D.M. v. NCL (Bahamas) Ltd.

Lipcon, Margulies, Alsina & Winkleman, P.A

October 3, 2014

D.M. v. NCL (Bahamas) Ltd.

D.M.,
Plaintiff,

v.

NCL (BAHAMAS) LTD.,
Defendant.

                                                                        /

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST DEFENDANT, NCL (BAHAMAS) LTD.

The Plaintiff, D.M., by and through undersigned counsel and pursuant to Federal Rule of Civil Procedure 56 and this Court’s Local Rule 56.1, hereby respectfully moves this Honorable Court for summary judgment against Defendant, NCL (BAHAMAS) LTD. (“NCL”) and, as grounds thereof, states as follows:

1. Introduction

The instant matter arises out of the personal injuries suffered by the Plaintiff while he was a passenger aboard NCL’s vessel. [D.E. 1].  Specifically, on September 3, 2013, the Plaintiff was on a cruise aboard the cruise ship the Norwegian Gem, and the port-of-call on that date was Great Stirrup Cay. [D.E. 1, ¶¶6-8].  Due to the fact that the cruise ship was unable to dock on that island, the ship dropped anchor and passengers were transported to and from the island by tenders. [See Page 8, Lines 15-25 of the deposition of NCL’s Corporate Representative attached hereto as Exhibit 1].

As the Plaintiff was attempting to disembark the tender to board the cruise ship, he tripped over the threshold between the gangway and the tender. [D.E. 1, ¶9; see also Page 113, Lines 3-8 of the Plaintiff’s deposition attached hereto as Exhibit 2].  As a result, he fell and suffered a fracture to his right arm. [Exhibit 2, Page 129, Line 18 – Page 131, Line 10].  The Plaintiff therefore initiated this lawsuit alleging negligence against NCL due to inter alia, NCL’s failure to 1) provide adequate assistance between the tender and the cruise ship; 2) warn the Plaintiff of the dangers of crossing the gangway between the tender and the cruise ship; and/or 3) instruct passengers on how to embark/disembark the tender in a safe manner. [D.E. 1, ¶¶13(f), (i), (u)].

As set forth in further detail below, the undisputed facts show that the crewmembers responsible for providing passengers instruction at the gangway linking the tender to the ship while passengers disembark the ship’s tender, did not in fact provide the Plaintiff any such instruction on the date of the subject incident.  In light of NCL’s heightened duty of care that approaches strict liability in tender cases, the Plaintiff hereby moves for summary judgment against NCL.

2. Statement of Material Facts Not in Dispute

1. Pursuant to this Court’s Local Rule 56.1, the Plaintiff submits the following concise statement of material facts as to which there is no genuine issue to be tried:

2. On September 3, 2013, the Plaintiff was a passenger aboard the vessel, Norwegian Gem. [D.E. 1, ¶¶5-6].

3. During the subject cruise, the port-of-call on September 3, 2013 was Great Stirrup Cay. [D.E. 1, ¶8; see also Page 4 of the Plaintiff’s Booking Summary attached as Exhibit 3].

4. On September 3, 2013, NCL was using tenders to transport passengers (including the Plaintiff) to and from the island of Great Stirrup Cay. [Exhibit 1, Page 8, Lines 15-25].

5. The port of Great Stirrup Cay was the only port that required tender service during the subject cruise. [Exhibit 3, Page 4].

6. The Plaintiff had never participated in tendering operations before the date of his incident. [Exhibit 2, Page 154, Line 22 – Page 155, Line 17].

7. For purposes of this lawsuit, NCL owned and operated the vessel, Norwegian Gem. [¶¶3-4 of NCL’s responses to Plaintiff’s Initial Request for Admissions attached as Exhibit 4.]

8. For purposes of this lawsuit, NCL owned and operated the ship’s tender involved in this incident. [Exhibit 1, Page 9, Lines 14-17; see also Exhibit 4, ¶5].

9. For purposes of this lawsuit, NCL owned the gangway involved in this incident. [Exhibit 1, Page 9, Lines 18-21; see also Exhibit 4, ¶6].

10. NCL stations at least one crewmember at the gangway aboard its ship’s tenders when passengers are embarking and disembarking the tenders. [Exhibit 1, Page 14, Line 10 – Page 15, Line 4; see also ¶16 of NCL’s answers to Plaintiff’s Initial Interrogatories attached as Exhibit 5].

11. Among the duties of the crewmember(s) stationed at the gangway is to assist passengers embarking and disembarking ship’s tenders and provide those passengers instructions, including, but not limited to, warning passengers to “watch their step” because the gangway requires the passenger to step up from the tender to the gangway. [Exhibit 1, Page 15, Lines 1-19; Page 21, Lines 1-18; Page 40, Lines 12-21; Page 51, Line 19 – Page 55, Line 4; see also Exhibit 5, ¶¶16- 17].

12. NCL admits that if the crewmembers stationed near the gangway did not warn the Plaintiff to watch his step, then they should have pursuant to NCL’s training. [Exhibit 1, Page 56, Line 13 – Page 57, Line 4].

13. NCL’s surveillance video from the date of September 3, 2013 depicts passengers disembarking the tender and boarding the Norwegian Gem between 4:23 PM and 4:53 PM. [The Plaintiff moved for leave to file a copy of the surveillance video conventionally as Exhibit 7 to this motion [D.E. 27], and Plaintiff will file the video upon the Court’s ruling on such motion; a copy of the video was also emailed to [email protected] contemporaneous with the filing of this Motion for Summary Judgment].

14. NCL’s surveillance video from the date of September 3, 2013 shows the Plaintiff falling while disembarking the tender at or about 4:38 PM. [Exhibit 7[1]].

15. It is evident from NCL’s surveillance video that the crewmembers stationed near the gangway did not assist the Plaintiff to disembark the tender. [Exhibit 7].

16. It is evident from NCL’s surveillance video that the crewmembers stationed near the gangway were not facing or paying attention to passengers as they transferred from the deck of the tender onto the gangway. [Exhibit 1, Page 55, Lines 5-14].

17. The crewmembers near the gangway did not assist passengers (including the Plaintiff) while they were disembarking the tender on the date of the incident. [Exhibit 2, 157, Lines 22-24; see also Affidavits from other passengers on the ship’s tender with the Plaintiff attached as composite Exhibit 6].

18. The crewmembers near the gangway did not give passengers (including the Plaintiff) any instructions on the date of the incident. [Exhibit 2, Page 97, Line 21 – Page 98, Line 1; Page 98, Lines 18-21; Page 157, Line 25 – Page 158, Line 2; see also Exhibit 6].

19. The crewmembers near the gangway did not warn passengers (including the Plaintiff) to watch their step or direct their attention to the uneven floor surface between the tender and the gangway on the date of the incident. [Exhibit 2, Page 97, Line 21 – Page 98, Line 1; Page 156, Line 14 – Page 157, Line 21; see also Exhibit 6].

20. The crewmembers near the gangway were just silent while the passengers were disembarking the tender on the date of the incident, and they were not paying attention to the passengers. [Exhibit 6].

21. NCL is unable to identify the crewmembers stationed near the gangway aboard the subject tender on September 3, 2013. [Exhibit 1, Page 39, Line 23 – Page 40, Line 2; Page 59, Line 17 – Page 62, Line 25].

22. Thus, NCL cannot offer any evidence that the crewmembers stationed near the gangway on the date of the subject incident told the Plaintiff to “watch his step” before his fall. [Exhibit 1, Page 56, Lines 8-12].

23. Tendering is a unique maritime activity. [Exhibit 1, Page 28, Line 13 – Page 30, Line 3].

24. Passengers are subject to the movement of both the cruise ship as well as the tender when they are embarking/disembarking the ship’s tenders. [Exhibit 1, Page 30, Line 4 – Page 32, Line 19].

25. NCL had a duty to exercise a high degree of care in seeing to the safe embarkation and disembarkation of the passengers (including the Plaintiff) at each port-of-call during the subject cruise.

Argument

Summary judgment is appropriate when the facts properly supported by the record and taken in the light most favorable to the non-moving party “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).  The movant bears the initial burden of proving that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).  A material fact is one that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986).  There is no genuine issue of material fact when “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348 (1986).  The Court’s function is not to “weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 249.  “All reasonable doubts about the facts should be resolved in favor of the non-movant.” Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1246 (11th Cir. 1999) (citing Casey Enterprises v. Am. Hardware Mutual Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981)).

Herein, for reasons discussed in detail below, summary judgment should be entered against NCL based on the undisputed facts that 1) a heighted duty of care approaching strict liability is applied to ship owners like NCL on tender cases; and, 2) the crewmembers who were responsible for providing passengers instructions and assisting passengers (like the Plaintiff) embark and disembark the ship’s tender did not in fact provide the Plaintiff any instructions or assistance on the date of the subject incident.

3. NCL’s heightened duty of care is akin to strict liability for tender cases like the Plaintiff’s case herein.

A ship owner’s duty is well settled under maritime law pursuant to the seminal case of Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959).  In Kermarec, the United States Supreme Court held that the owner of a ship owes the duty of exercising reasonable care under the circumstances of each case. Id. at 632.  Expanding on that duty, multiple circuits – including the Eleventh Circuit – have held that “[t]he extent to which circumstances surrounding maritime travel are different from those encountered in daily life and involve more danger to the passenger, will determine how high a degree of care is reasonable in each case.” Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989) (citing Rainy v. Paquet Cruises, Inc., 709 F.2d 169, 172 (2d Cir. 1983)).

Thus, the more a situation is unique to maritime travel and/or involves danger to a passenger, the higher the ship owner’s duty is, under binding precedent.  Herein, it is axiomatic that the practice of tendering is wholly unique to maritime and the cruising experience. [Exhibit 1, Page 28, Line 13 – Page 30, Line 3].  Thus, tendering is subject to the highest degree of care in the sliding scale between reasonable care and strict liability set forth by the Court in Rainy.

Because of the unique dangers associated with tendering, the law is well settled that “‘[a] carrier that contracts to take a passenger on a cruise stopping at a designated foreign port has a duty if the vessel anchors in that harbor to provide him with safe transportation, under adequate supervision, to and from the dock.’” Samuelov v. Carnival Cruise Lines, Inc., 870 So. 2d 853, 855 (Fla. 3d DCA 2003) (citation omitted) (alterations in original) (emphasis added).  Furthermore, “[b]ecause ‘a passenger cruise ship entices people aboard with the promise of stopovers in exotic ports, the ship owner must see to those passengers’ safe embarking and disembarking in each such port.’” Samuelov, 870 So. 2d at 8556 (citing Isham v. Pacific Far East Line, Inc., 476 F.2d 835, 836 (9th Cir. 1973)) (emphasis added).

The case relied on by the Third District Court of Appeal in SamuelovIsham v. Pacific Far East Line, Inc. – specifically noted that the basis under which a plaintiff establishes a duty upon the ship owner “is the long-established rule that embarking and disembarking are a part of the voyage which the shipowner agrees to provide.” Id. at 836.  It went on to specify that the required degree of care is quite high as follows:

Where a passenger or cruise vessel puts into numerous ports in the course of a cruise, these stopovers are the sine qua non of the cruise. In such a situation, the shipowner has a duty to exercise a high degree of care in seeing to the safe embarking and disembarking of the passengers.

….

Regardless of other factors, any vessel which engages in the carriage of passengers for hire has a duty to provide for embarking and disembarking at the beginning and end of the voyage. In so providing, he must exercise a high degree of care. Similarly, where, as in Lawlor, supra, a passenger cruise ship entices people aboard with the promise of stopovers in exotic ports, the shipowner must see to those passengers’ safe embarking and disembarking in each such port.

Isham, 476 F.2d at 836-37 (emphasis added); see also Sullivan v. Ajax Navigation Corp., 881 F. Supp. 906, 908-09 (S.D.N.Y. 1995) (“It is well settled that a common carrier generally owes a high duty of care to provide its passengers with safe transportation under adequate supervision to and from a dock or pier…. Such duty extends at least to the point of embarkation and debarkation. It does not cease at each port of call where the passengers are free to disembark. Rather, it is owed for the extent of the voyage.”) (emphasis added); Lawlor v. Incres Nassau Steamship Line, Inc., 161 F.Supp. 764, 767 (D. Mass. 1958) (holding same).

Accordingly, based on the foregoing case law, on the date of the subject incident, NCL had a heightened duty of care in seeing to the safe embarkation and disembarkation of the Plaintiff at the scheduled port-of-call of Great Stirrup Cay.  In fact, pursuant to binding precedent (Keefe), NCL’s duty of care was so high that it was akin to strict liability because tendering is unique to maritime and because passengers are subject to increased danger when embarking/disembarking tenders.

4. It is uncontested that the crewmembers did not assist or provide any instructions to the passengers embarking/disembarking the ship’s tender, including the Plaintiff.

Applying the above heightened duty of care herein, a review of the undisputed facts makes clear that summary judgment is warranted against NCL because its crewmembers did not provide any instruction or assistance to the passengers disembarking the tender, including the Plaintiff.

It is undisputed that NCL requires at least one crewmember to be stationed at the gangway aboard its ship’s tenders when passengers are embarking and disembarking the tenders. [Exhibit 1, Page 14, Line 10 – Page 15, Line 4; see also Exhibit 5, ¶16: “It is Norwegian’s policy and procedure to have crewmembers stationed on both sides of a gangway during tender operations”].  It is also undisputed that the crewmember(s) stationed at the gangway are required to provide assistance to the passengers embarking and disembarking ship’s tenders. [Exhibit 1, Page 15, Lines 1-19; Page 21, Lines 1-18; Page 40, Lines 12-21; Page 51, Line 19 – Page 55, Line 4; see also Exhibit 5, ¶16].  Those crewmembers are also required to give passengers verbal warnings to “watch their step” as they transition up from the deck of the tender to the gangway leading to the cruise ship. [Id.; see also Exhibit 5, ¶17].

Despite their heighted duty to assist and warn passengers, however, the uncontested evidence and testimony show that the crewmembers stationed near the gangway on the date of the subject incident failed to give any instructions or provide any assistance to the passengers disembarking the ship’s tender, including the Plaintiff.  First, NCL’s surveillance video depicting the tender operations on the date of the subject incident – including the Plaintiff’s fall – conclusively shows that the crewmembers never provided the Plaintiff any physical assistance.  Even NCL’s Corporate Representative admitted that, based upon the surveillance video, the crewmembers stationed near the gangway never extended their hand to the Plaintiff to assist him in crossing the gangway. [Exhibit 1, Page 55, Lines 5-14].

Second, Plaintiff’s testimony confirms what is depicted in the surveillance video.  Pursuant to the Plaintiff’s testimony, the crewmembers near the gangway did not assist the Plaintiff while he was disembarking the tender. [Exhibit 157, Lines 22-24].  Despite the instructions that NCL alleges crewmembers are supposed to provide, the crewmembers near the gangway did not give the Plaintiff any instructions on the date of the incident. [Exhibit 2, Page 97, Line 21 – Page 98, Line 1; Page 98, Lines 18-21; Page 157, Line 25 – Page 158, Line 2].  Specifically, those crewmembers did not warn the Plaintiff to watch his step, nor did they direct his attention to the uneven floor surface between the tender and the gangway. [Exhibit 2, Page 97, Line 21 – Page 98, Line 1; Page 156, Line 14 – Page 157, Line 21].

Third, multiple witnesses who were on the same ship’s tender with the Plaintiff further confirm that crewmembers 1) never provided the passengers with any assistance while they were disembarking the tender; 2) never provided the passengers any instructions while they were disembarking the tender; and, 3) never warned the passengers to watch their step as they were disembarking the tender. [See Affidavits attached as Exhibit 6].  These witnesses also confirm that the crewmembers were simply silent, and they were not paying attention to the passengers disembarking. [Id.]  By NCL’s own admissions, the failure of the crewmembers to warn the passengers (including the Plaintiff) to watch their step was a breach of their required duty because they were supposed to provide such warning. [Exhibit 1, Page 56, Line 13 – Page 57, Line 4].

Importantly, NCL never identified the crewmembers near the gangway on the date of the subject incident.  As a result, NCL cannot offer evidence contrary to the evidence submitted.  In fact, NCL admitted that it does not know whether the crewmembers stationed near the gangway told the Plaintiff to watch his step before his fall, and thus, effectively admit that NCL breached its duty to the Plaintiff. [Exhibit 1, Page 56, Lines 8-12]. Thus, based on the above testimony from the Plaintiff and the witnesses, which are uncontested, NCL violated its heightened duty to see to the safe disembarkation of the Plaintiff at the scheduled port-of-call of Great Stirrup Cay.

WHEREFORE, for the foregoing reasons, this Honorable Court should enter summary judgment against NCL consistent with the instant motion, as well as any and all further relief this Court deems just and proper.

RESPECTFULLY SUBMITTED,
LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone No.: (305) 373-3016
Facsimile No.: (305) 373-6204

By:  /s/ Jason R. Margulies                        
JASON R. MARGULIES
Florida Bar No. 57916
JACQUELINE GARCELL
Florida Bar No. 104358

[1] The Plaintiff herein attaches a screenshot of the video identifying the Plaintiff, the crewmembers and each crewmember’s line of sight as Exhibit 7 to supplement the surveillance video.