Passengers who claim a former Royal Caribbean Cruises Ltd. crew member secretly filmed them, including children, while they undressed urged the Eleventh Circuit on Wednesday to uphold a ruling that their case cannot be forced into arbitration.
In an answer brief, the plaintiffs said the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act applies because former stateroom attendant Arvin Joseph Mirasol allegedly used covert recordings of passengers for sexual gratification. They separately argued that federal maritime law protects their right to pursue personal injury claims in court.
“This appeal turns on the words Congress enacted, not a generalized preference for arbitration,” the plaintiffs said.
Royal Caribbean is appealing a Florida federal court order denying its bid to enforce an arbitration clause in its passenger ticket contract. The cruise line has argued that the EFAA does not apply because Mirasol’s alleged masturbation occurred later and outside the plaintiffs’ presence, rather than constituting sexual contact with them.
The plaintiffs countered that masturbation qualifies as sexual contact under Eleventh Circuit precedent because federal law defines the term to include intentional touching of the genitalia of “any person,” including the offender.
They said Mirasol’s alleged touching was part of the same concealed scheme in which he hid cameras in passenger bathrooms, recorded adults and children while undressed and later used the recordings to masturbate.
“Concealment made knowing consent impossible; it did not transform the conduct into consensual sexual contact,” the plaintiffs said.
The plaintiffs said the EFAA does not require victims to witness the sexual contact. Instead, it applies to a case that “relates to” a dispute involving nonconsensual sexual contact, which they said covers the alleged recording scheme and Mirasol’s later sexual use of the videos.
The plaintiffs also rejected Royal Caribbean’s argument that most of them failed to plausibly allege they were recorded. They said the complaint identifies their sailings and cabins, alleges Mirasol was assigned to those rooms and states that he recorded them during the hidden-camera scheme.
Mirasol admitted placing cameras in cabin bathrooms, hiding beneath beds while passengers showered and choosing rooms based on whether he liked the occupants, according to the brief. An examination of a USB stick seized from Mirasol allegedly revealed videos of naked females undressing in bathrooms and child pornography.
“Royal Caribbean’s contrary argument improperly converts the motion to compel into a demand for evidentiary proof,” the plaintiffs said.
The plaintiffs said their allegations are detailed enough to meet the standard Royal Caribbean says should apply, meaning the appeals court does not need to decide whether the EFAA allows a less demanding standard.
They separately argued that federal maritime law voids Royal Caribbean’s arbitration clause for their personal injury claims because it protects cruise passengers’ right to have those claims heard in court.
Royal Caribbean has argued that protection applies only to physical injuries, but the plaintiffs said Congress used the broader phrase “personal injury” while expressly using “physical injury” elsewhere in the same law.
“Ultimately, Royal Caribbean asks the Court to substitute ‘physical injury’ for ‘personal injury,’ ‘adjudication’ for ‘trial by court,’ and an implied arbitration exception for one Congress never enacted,” the plaintiffs said.
The plaintiffs allege severe emotional and psychological harm with physical effects including nausea, insomnia, dizziness, sickness and pain.
They also challenged the Eleventh Circuit’s authority to immediately review the maritime-law portion of the ruling, asking the court to dismiss that part of the appeal or otherwise affirm the order in full.
Mirasol is serving a 30-year federal prison sentence following his conviction for conduct related to the alleged scheme.
The plaintiffs are represented by Adam M. Moskowitz and Joseph M. Kaye of The Moskowitz Law Firm PLLC, Jason R. Margulies, Michael A. Winkleman and Jacqueline Garcell of Lipcon Margulies & Winkleman PA, and Thomas A. Tucker Ronzetti of Tucker Ronzetti PA.
Royal Caribbean is represented by Kurt K. Lunkenheimer of Cozen O’Connor.
