CRUISE SHIP PASSENGER INJURED WHEN SINK COLLAPSED IN BATHROOM WHILE IN PORT IN FREEPORT BAHAMAS FAILED TO PROPERLY PLEAD NOTICE AND FAILED TO PROPERLY PLEAD ALLEGATIONS OF AN AGENCY RELATIONSHIP BETWEEN CARNIVAL AND THE FREEPORT COMPANY THAT MAINTAINED THE BATHROOM WHERE THE INCIDENT OCCURRED.
Mallory MOSELEY, Plaintiff, v. CARNIVAL CORPORATION, d/b/a Carnival Cruise Lines, Defendant.
2013 WL 5913833 S.D. Florida.
No. 13–20416–Civ. | Oct. 31, 2013.
PROCEDURAL POSTURE:
Plaintiff cruise ship passenger filed suit against Carnival which alleged that Defendant’s negligence caused Plaintiff to sustain serious injuries when a sink located in the bathroom of facilities at Freeport, Grand Bahamas collapsed causing her to fall with the sink. The second count alleged that Defendant is vicariously liable to Plaintiff because of its agency relationship with Freeport Harbor Company (“Freeport”), the operator of said bathroom facilities. Defendant moved to dismiss Plaintiff’s Complaint for failure to state a claim.
OVERVIEW:
Plaintiff was a passenger aboard the cruise ship Carnival Fantasy. While the vessel was in Freeport, Grand Bahamas, Plaintiff used bathroom facilities operated by Freeport, where the ship was docked. Plaintiff then moved up against the sink to allow her mother to enter the bathroom. The sink detached from the wall and caused Plaintiff to fall with the sink. Plaintiff alleges that Carnival and Freeport are engaged in a formal and/or informal business relationship in which Freeport acts as an agent for Carnival. Defendant seeks to dismiss Count I of the Complaint. First, Defendant challenges Plaintiff’s allegations regarding Defendant’s duty to inspect because no such duty exists when it comes to on shore facilities. Second, Defendant contends that Plaintiff’s allegations regarding Defendant’s duty to warn fail because Plaintiff has not pled sufficient facts to demonstrate Defendant knew or should have known about the sink’s condition. Plaintiff, on the other hand, argued that Defendant’s duty to inspect is part of Defendant’s duty to warn. The Court considered the alleged duty to inspect the Freeport bathroom facilities. Beyond the point of debarkation, a cruise line only owes its passengers a duty to warn of known dangers in places where passengers are invited or reasonably expected to visit. Carlisle v. Ulysses Line Ltd., S.A., 475 So.2d 248, 251 (Fla.Dist.Ct.App.1985). In the present case, Plaintiff was injured on shore while using a bathroom in the Freeport, Grand Bahamas, port of call. Court found that even assuming that Defendant expected passengers to visit this facility, the only duty Defendant had is the duty to warn of dangers the Defendant knew or should have known. Plaintiff did not cite any case law in her response supporting the assertion that Defendant had an additional duty to inspect a bathroom outside the ship. Second, the Court considered the alleged duty to warn of the dangerous condition of the bathroom. The duty to warn ‘encompasses only dangers of which the carrier knows, or reasonably should have known.” Plaintiff, however, had not pled any facts showing that Defendant knew or should have known of the sink’s condition. Furthermore, Plaintiff’ allegations that the sink fell suddenly with no warning is difficult to reconcile with Plaintiff’s assertion that Defendant knew or should have known of its condition. Accordingly, Court found that Plaintiff’s negligence count is not adequate to survive Defendant’s Motion to Dismiss. Defendant also contended that Plaintiff had not pled sufficient facts to establish an agency relationship. Plaintiff, on the other hand, argues that an agency relationship is a question for the fact finder and thus should not be addressed at this stage. Plaintiff simply stated in her complaint that Freeport acted as an agent for Defendant and that it maintained the bathroom facilities as part of the ongoing relationship with Defendant. There are no factual allegations establishing the existence of this agency relationship. Plaintiff further claims that it would be improper to dismiss her agency claim at this stage because she has not had an opportunity to conduct discovery. Plaintiff, however, has only gone through the recitation of the elements of agency rather than stating facts as to how each element is met. Thus Court found that Plaintiff did not sufficiently plead facts to support the claim that Freeport acted as a direct agent of Defendant in the maintenance of the bathroom facilities.
OUTCOME:
Motion to Dismiss was granted. Complaint was dismissed without prejudice and Plaintiff was given leave to amend.
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SEAMAN INJURED HIS SHOULDER WHILE PUTTING AWAY A 75 FOOT LONG CARGO CHAIN. THE COURT FOUND IN FAVOR OF THE SEAMAN DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BECAUSE THERE WAS ENOUGH EVIDENCE ON HIS JONES ACT NEGLIGENCE CLAIM TO PROCEED TO A JURY AND RESERVED IN PART REGARDING SEAMAN’S UNSEAWORTHINESS CLAIM.
Timothy DAVIS, Plaintiff, v. ABDON CALLAIS OFFSHORE, INC., Defendant.
2013 WL 5775907 S.D. Texas, Galveston Division.
Civil Action No. 3:12–CV–00263. | Oct. 25, 2013.
PROCEDURAL POSTURE:
Plaintiff Deckhand injured while working aboard cargo vessel. Defendant employer moved for summary judgment.
OVERVIEW:
Plaintiff, Deckhand (“Davis”) was injured while working aboard vessel JESSICA MOORE. Davis was placing links of cargo chain away which were about 75 feet long after getting authorization from his boss to do so. While pulling the chain to put it away Davis injured his shoulder. Not realizing how bad the injury sustained was, he reported it to his boss two weeks later due to the pain worsening. Davis’s boss sent him to the doctor to have his shoulder examined. Davis filed his initial complaint against Abdon in 2012. Abdon sought summary judgment on the broader issues of whether it was negligent and whether its negligence caused Davis’ injuries. Abdon acknowledged that Davis pulled, rather than lifted, the tangled chain out of its box. Abdon argued that Davis was negligent too—he failed to ask for help, failed to stop working when he felt a jog in his arm, and then continued working for two weeks before reporting his injury. But one of the main reasons for enactment of the Jones Act in 1920, and for the 1908 enactment of the Federal Employer’s Liability Act on which it is based, was eliminating the common law doctrine of contributory negligence. As such, Davis’ failures to ask for assistance or recognize when he should have stopped working might lower, but should not completely bar, his recovery. Because “the issues of fact and law are too intertwined to grant summary judgment at this stage,” the Court denied Abdon’s motion on Davis’ negligence claim. Court further found that he unseaworthiness claim may well warrant different treatment. The plaintiff “must establish a causal connection between his injury and the breach of duty that rendered the vessel unseaworthy.” Id. This causation standard is generally stricter than the standard in negligence claims: it requires that Davis show that “the unseaworthy condition played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness.” Davis claims that the JESSICA MOORE was unseaworthy because Abdon “(1) had no policies or procedures related to unloading or putting cargo chain away, and (2) did not provide Mr. Davis any training or instruction on how to pull, unpack, or put away the cargo chain.” Davis did not explain why the method he used to stow the cargo chain was unsafe. Nor did he show that any other deckhand onboard the JESSICA MOORE has been injured in the course of stowing cargo chain. Finally, Davis had made no allegation that the JESSICA MOORE was in any other way unseaworthy. But since the Court allowed the negligence claim to proceed to trial, and the evidence presented in support of that claim will largely overlap with the seaworthiness evidence, the Court exercises its discretion to reserve ruling on the unseaworthiness claim until it has had the benefit of seeing the full record developed at trial.
OUTCOME:
Summary Judgment denied in part, reserved in part.
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SOUTHERN DISTRICT OF FLORIDA COMPELLED ARBITRATION IN NCL CREWMEMBER INJURY CASE AND FOUND THAT IT WAS UP TO THE ARBITRATOR TO DETERMINE WHETHER NCL HAD TO PAY ALL OF THE COSTS ASSOCIATED WITH THE ARBITRATION. THE COURT ALSO DENIED PLAINTIFF’S REQUESTS TO HAVE THE ARBITRATION TAKE PLACE IN MIAMI, FLORIDA, PURSUANT TO U.S. LAW, RATHER THAN IN THE BAHAMAS PURSUANT TO BAHAMIAN LAW.
Shelma RAMIREZ, Plaintiff, v. NCL (BAHAMAS), LTD.
2013 WL 6981941 United States District Court, S.D. Florida.
No. 12–24460–CIV. Oct. 16, 2013.
PROCEDURAL POSTURE:
Seaman who injured her back and her Achilles tendon while working aboard cruise ship brought action in state court against cruise ship owner, alleging Jones Act negligence, unseaworthiness, failure to provide prompt and adequate medical care, and failure to provide maintenance and care. Action was removed to federal court. Cruise ship owner moved to compel arbitration pursuant to employment agreement and collective bargaining agreement (CBA).
OVERVIEW:
Plaintiff filed a four-count Complaint in Florida state court alleging: (I) Jones Act negligence; (II) unseaworthi ness; (III) failure to provide prompt and adequate medical care; and (IV) failure to provide maintenance and care. Thereafter, NCL removed the case and moved to Compel Arbitration, pursuant to the employment contract and CBA. The Court conducted little to no analysis regarding the motion to compel arbitration based on the fact that the parties agreed that the prerequisites for arbitration were met under the Convention. The Court therefore limited its analysis to Plaintiff’s alternative arguments: (1) that the arbitration agreement should not be enforced because NCL’s refusal to pay the entire cost of arbitration constitutes an anticipatory breach of the agreement; and (2) that in the event the Court orders arbitration, it should do so under United States law in Miami. First, Plaintiff argued that the arbitration agreement should not be enforced because pursuant to the CBA, NCL is required to pay the entire cost of arbitration and that its refusal to do so is an anticipatory breach of the parties’ agreement. The Court found that the CBA does not require NCL to pay all costs associated with the arbitration. By its plain language, the CBA requires NCL to pay all costs associated with an arbitration proceeding in a dispute between (1) the NSU and NCL, or (2) NCL and a seafarer represented by the NSU. Neither of those scenarios is presented by the case, as Plaintiff is represented by non-NSU counsel. Accordingly, court held NCL’s refusal to pay all costs associated with the arbitration does not constitute an anticipatory breach of the agreement, and is not a basis for precluding its enforcement. The allocation of arbitration costs is a proper subject for the arbitrator. Next, Plaintiff argued that if the Court compels arbitration, it should order arbitration under American law in Miami. The Court cited case law stating that “[w]e will not invalidate choice [-of-forum or choice-of-law] clauses … simply because the remedies available in the contractually chosen forum are less favorable than those available in the courts of the United States.” Lipcon v. Underwriters at Lloyd’s, London, 148 F.3d 1285, 1297 (11 th Cir.1998). “Instead, we will declare unenforceable choice clauses only when the remedies available in the chosen forum are so inadequate that enforcement would be fundamentally unfair.” Id. (citing Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991); Roby v. Corporation of Lloyd’s, 996 F.2d 1353, 1360–61 (2d Cir.1993); Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 958 (10th Cir.1992)); see also Lindo, 652 F.3d at 1271. Court found that Plaintiff failed to offer any evidence that Bahamian law is unreasonable or that it will not provide her with adequate remedies for her claims.
OUTCOME:
Court compelled arbitration and concluded that: (1) pursuant to Bautista and Lindo, the arbitration clause in Plaintiff’s Employment Agreement is enforceable; (2) NCL’s refusal to pay all costs associated with arbitration does not amount to an anticipatory breach of the agreement rendering the agreement unenforceable; and (3) Plaintiff has failed to demonstrate that the choice-of-law and/or forum-selection clause provide her an inadequate remedy.
