Jane Doe as Mother and Natural Guardian of Minor Daughter vs. Oceania Cruises, Inc. – Part 2

Lipcon, Margulies, Alsina & Winkleman, P.A

May 31, 2011

Jane Doe as Mother and Natural Guardian of Minor Daughter vs. Oceania Cruises, Inc. – Part 2

Response in Opposition to Defendant’s Motion for Leave to File an Amended Answer

In this response in opposition to Defendant’s motion to amend its answer to add an affirmative defense the Plaintiff offers convincing arguments to deny the requested relief. Defendant Oceania Cruises sought to limit its liability to the minor plaintiff for a sexual assault that occurred onboard their ship. Oceania argued that it should be allowed to avail itself of the liability limitations set forth in the Athens Convention. This limitation would cap the recovery available to the Plaintiff. Oceania claimed this right pursuant to a clause in its ticket contract. The Plaintiff argued that the court should deny the relief because the request was untimely, inapposite of established U.S. maritime law, and that its application would also be inconsistent with U.S. contract law.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case No. 10-XXXX CIV-KING/BANDSTRA
JANE DOE, as mother
and natural guardian of MINOR
DAUGHTER, a minor,
Plaintiff,

v.

OCEANIA CRUISES, INC.,
Defendant.

___________________________/

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR LEAVE TO FILE AMENDED ANSWER

COMES NOW, the Plaintiff, JANE DOE, as mother and natural guardian of MINOR DAUGHTER, a minor, who files this response in opposition to Defendant’s Motion for Leave to File an Amended Answer and for good cause relies on the following memorandum of law.

MEMORANDUM OF LAW

I. SUMMARY OF ARGUMENT

Defendant’s Motion for Leave to File an Amended Answer should be denied because the affirmative defense fails as a matter of law because it is specifically prohibited by U.S. Statute. Oceania, as a shipowner transporting passengers from U.S. ports, is subject to 46 U.S.C. §30509 which prohibits limitations on liability in cases involving personal injury, death, sexual assault, and rape. Further, the U.S. is not a party to the Athens Convention. Since U.S. laws apply here and the case can be brought in U.S. courts to the exclusion of all others, the Defendant cannot invoke the Athens Convention because precedent dictates that where U.S. law applies, the Athens Convention is inapplicable. Additionally, the affirmative defense fails because Defendants seek to impermissibly invoke only the limitation portion of the Convention, but not the strict liability provision, which is a contravention of basic laws of contract and the policies of the Convention. Further, the Defendant’s intention is to apply the Athens Convention by the passenger ticket contract. However, this case involves an intentional tort committed by Defendant’s crewmember on the minor Plaintiff. Ticket terms and limitations do not apply to minors nor actions arising from intentional torts because this would be a contravention of 46 U.S.C.A. §§ 30509 and 30509. Article 13 of the Athens Convention also expressly bars the application of the Athens Convention to intentional torts. Additionally, the provisions attempting to incorporate the Athens Convention into the ticket contract fails the reasonable communicativeness test because the physical characteristics do not meet the threshold requirements and it is pure legal fiction to assume that the minor Plaintiff’s mother, Jane Doe, a layperson, could become meaningfully informed of what the ambiguous, internally contradicted clauses actually mean. Further, the Defendant is seeking to add this affirmative defense after four months based on facts and evidence available to the Defendant at all times previous. Finally, Defendant has also not plead specifics in its Defendant’s Motion for Leave to File an Amended Answer to sufficiently inform Plaintiff so that she may adequately prepare a response or even sufficiently to through what laws the Athens Convention would be applied.

II. OCEANIA’S MOTION FOR LEAVE TO FILE AMENDED ANSWER TO ADD ATHENS CONVENTION DEFENSE SHOULD BE DENIED.

A. OVERVIEW

This case arises out of the severe injuries sustained to the Plaintiff, Minor daughter, while a passenger aboard the Defendant Oceania Cruises Inc. vessel, Regatta[1]. As the complaint sets forth, on or about October 4, 2009, while cruising aboard the Oceania Cruises Inc. vessel, Regatta with her mother, Minor daughter, who was 13 years old, was raped by one of Defendant’s crewmembers. Ashamed and humiliated, Minor daughter did not tell her mother Jane Doe about the rape until late October 2010, until after Minor daughter received psychological counseling for a number of symptoms later learned by her mother to be as a result of the rape. As a result of the incident, Minor daughter suffered severe permanent injuries including physical pain, mental anguish, and loss of enjoyment of life.

As the complaint sets forth, Plaintiff filed suit alleging negligence, vicarious liability, and false imprisonment against Oceania Inc. on December 3, 2010. Defendant Oceania Inc. filed its Answer, on January 10, 2011, which included three affirmative defenses.[2] On May 12, 2011, Defendant filed a Motion for Leave to File an Amended Answer to invoke a fourth defense, namely, the application of the Athens Convention, a wholly foreign convention never ratified by the United States. The Defendant purports to apply the Athens Convention through a provision in the terms and conditions of its form passenger ticket.[3] As the following memorandum sets forth, the Athens Convention is wholly inapplicable to the present case and is therefore a legally insufficient affirmative defense. Further the Defendant’s Motion for Leave to File an Amended Answer to add an affirmative defense which was known or should have been known to Defendant at the time of the filing its original answer, is untimely. Thus Oceania’s Motion for Leave to File an Amended Answer should be denied.

Defendant’s motion arises four months after filing the original Answer to the Complaint, and is purportedly raised pursuant to the contractual provision in the cruise line ticket paragraph 10(a) which states in part “The Athens Convention Limits the Carrier’s Liability For Death of or personal injury to a passenger to no more than 46,666 special drawing rights as defined therein.” [4] However, as set forth in more detail as follows, the Athens Convention and this ticket provision is unenforceable in the present case.

B. OCEANIA IS PROHIBITED BY 46 U.S.C. §30509 FROM ATTEMPTING TO LIMIT LIABILITY OR DAMAGES THROUGH CONTRACT, INCLUDING APPLICATION OF THE ATHENS CONVENTION

Shipowners who, in general, engage in the transportation of passengers either between ports in the United States or between a port in the United States and a port in a foreign country are prohibited from attempting to limit liability for personal injury or death. Oceania, like all cruise lines with a base of operations in the United States, regularly engages in the transportation of passengers, both between U.S. ports and between U.S. ports and foreign countries.[5] 46 U.S.C. § 30509(a) provides:

In general. – The owner, master, manager, or agent of a vessel transporting passengers between ports in the United States, or between a port in the United States and a port in a foreign country, many not include in a regulation or contract a provision limiting –

(A) the liability of the owner, master, or agent for personal injury or death
caused by the negligence or fault of the owner or the owner’s employees
or agents;

Accordingly, as an owner of a vessel which trasports pasengers between a port in the United States and a foreign port, Oceania is prohibited from attempting to limit its liability through it’s passenger ticket clause’s application of a damage ceiling contained within the Athens Convention.

Further, the present case involves a sexual assault committed by one of Oceania’s crewmembers. 46 U.S.C. §30509, while allowing limitations from liability for infliction of emotional distress, does not allow such limitations in cases where the emotional distress was either: (A) the result of a physical injury; (B) the result of the having been at risk of physical injury; or (C) intentionally inflicted by a crewmember or the owner, master, manager, agent, or operator. Finally, and most applicable to the instant matter, 46 U.S.C. §30509(b)(2) specifically prohibits the limitation of liability “of a crewmember or the owner, master, manager, agent, or operator of a vessel in a case involving sexual harrassment, sexual assault, or rape.

Pursuant to §30509(a)(2), Oceania’s ticket provision is void as a matter of law and, hence, its attempt to plead said void limitation as an affirmative defense should be denied.

C. THE ATHENS CONVENTION IS INAPPLICABLE BECAUSE IT HAS NOT BEEN RATIFIED BY THE UNITED STATES AND IS CONTRARY TO THE U.S. GENERAL MARITIME LAW

The Athens Convention does not apply to the present case. First, the Athens Convention has not been ratified by the United States. Because United States law applies here and the defendant has invoked a forum selection clause exclusive to all other venues[6], the fact that the U.S. has not ratified the Athens Convention is detrimental to affirmative defense that it is applicable here.

A reasonable person reading the relevant portions of the passenger ticket would conclude that U.S. laws apply and that actions will be brought in U.S. courts. First, under paragraph 1 (11) of the Passenger Ticket Contract, Oceania requires that “Guest acknowledges and agrees that except as otherwise expressly provided herein, the interpretation, applicability, and enforcement of this Ticket/Contract shall be governed by the general maritime law of the United States, which replaces, supersedes and preempts any provision of law of any state or nation to the contrary. Further, under paragraph 10(a) of the Passenger Ticket Contract, Oceania invokes United States statutory laws. The relevant paragraph provides that “In addition, and on all other cruises, all the exemptions from and limitations of liability provided in or authorized by the laws of the United States (Including Title 46 U.S. Code Sections 30501-30511), 30511 will apply.”

Additionally, in paragraph 27 of the Passenger Ticket Contract, the Defendants require that all claims be brought in Miami Florida to the exclusion of any other forum. Thus it was reasonable for the Plaintiff here to assume that under these provisions, U.S. law would apply and claims would be brought in U.S. courts.

Since the United States has never ratified the Athens Convention, it is axiomatic that in cases where United States law applies, the Athens Convention is inapplicable. Chan v. Society Expeditions, Inc.123 F.3d 1287, 1296(9th Cir.1997). In Chan, the Plaintiff’s were victims of personal injury in the South Pacific during a cruise which had begun a day earlier in Tahiti. The lower Court had applied the Athens Convention to limit the Plaintiffs’ damages through the application of Liberian Law, the law of the flag of the vessel and a signatory to the Athens Convention. In reversing the application of the Athens Convention to limit the Plaintiff’s damages, the Ninth Circuit Court of Appeals, considered the passenger ticket contract in Chan, which is nearly identical to the ticket provisions in the instant case. The Court noted:

The contract of carriage the defendants issued to the Chans included a choice-of-law provision in paragraph 18, which specified that the “Ticket and all other rights and duties of Passengers and of Society will be construed in accordance with the general maritime law of the United States.” Paragraph 15 states that “nothing in this Ticket is intended to nor shall operate to limit or deprive Society of any such statutory limitation of or exoneration from liability, or of the benefits of any statute or law of any country which might be applicable providing for exoneration from or limitation of liability.”

The Court then rejected the defendants argument that Paragraph 15 allowed for a limitation on liability through the Athens Convention, noting that “the ambiguity of the contractual provisions should be resolved against the interest of the party that drafted it.”

Here, Oceania’s ticket contract portions are conflicting and confusing. In paragraph 10(a), the Defendants provide that the Athens Convention and other International Conventions[7] apply to foreign voyages, but also that the “general maritime law of the United States” applies to the same voyages. Hence, it is unclear if both apply or in what circumstances U.S. law is applied. Thus, any ambiguity as to what laws apply should be resolved in favor of Plaintiffs, since the contract was constructed by Defendants.

Finally, the Defendants seek to invoke a U.S.-rejected Convention in a United States court. This court should not allow Oceania to attempt to apply a U.S.-rejected foreign convention in direct contravention to the U.S. general maritime law.

D. THE DEFENDANT SEEKS TO INVOKE ONLY THE DAMAGE LIMITATIONS OF THE ATHENS CONVENTION RATHER THAN THE DOCUMENT AS A WHOLE

As set forth infra, in the Defendant’s Motion For Leave To File An Amended Answer, Document 11, paragraph 20, the Defendant seeks to add the one sentence affirmative defense, “Plaintiff’s damages are limited pursuant to the Athens Convention” (emphasis added). Hence, Defendant seeks to utilize the Athens Convention solely to limit the Plaintiff’s damages in the present action, rejecting an application of the liability provisions within the Athens Convention. In short, Oceania is seeking to subvert the U.S. general maritime law, by selecting a damage limitation in a U.S.-rejected foreign convention, and not applying the strict liability provisions in the same convention.

Put simply, the Athens Convention, if applicable, operates as a whole to find ships strictly liable for negligence but also limits the amount of damages. Article 3 of the Athens Convention provides that a carrier “shall be liable” for personal injury to passengers if the incident “occurred during the course of the carriage and was due to the fault or neglect of the carrier or of his servants or agents…” [emphasis added] and Article 7 provides that the damages of the carrier for death or personal injury to a passenger are limited to approximately $65,000 USD.[8] The Defendant’s invocation of the favorable provision, limiting damages, but not the unfavorable provision, applying strict liability, is an impermissible circumvention of the purposes of the Athens Convention and the laws of contract.

“A writing is interpreted as a whole, and all writings that are part of the same transaction are interpreted together.” RESTATEMENT (SECOND) OF CONTRACTS §202 (1979) See Premier Ins. Co. v. Adams 632 So.2d 1054, 1057(Fla. 5th DCA1994), (citing First Nat’l Bank v. Savannah, F. & W. Ry. Co., 36 Fla. 183, 18 So. 345 (1895); Curtiss-Wright Corp. v. Exhaust Parts, Inc., 144 So.2d 822 (Fla. 3d DCA 1962)). The Defendant’s attempt to avoid the unfavorable provisions and utilize only the favorable provision is impermissible under this basic principle of contract interpretation.

The Athens Convention finds ships strictly liable for incidents in any way attributable to the ship or crew, with the balance that damages are very limited. Applying only one of these provisions defeats this give-and-take balance within the Convention. The limitation on rights of both parties is only permissible where both parties interests are also met. Applying only the limitation but not the strict liability is an impermissible violation of the rights of Plaintiffs and a circumvention of the intention of the Convention to balance these rights.

E. THE ATHENS CONVENTION DOES NOT APPLY TO INTENTIONAL TORTS

In the present case, the action arises from the rape of a minor passenger by a crewmember — an intentional tort. The Athens Convention, however, does not apply to reckless acts or omissions or acts with intent. Article 13 of the Athens Convention provides:

1. The carrier shall not be entitled to the benefit of the limits of liability prescribed in Articles 7 and 8 and paragraph 1 of Article 10, if it is proved that the damage resulted from an act or omission of the carrier done with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.

The servant or agent of the carrier or of the performing carrier shall not be entitled to the benefit of those limits if it is proved that the damage resulted from an act or omission of that servant or agent done with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.”

The rape here was committed by a crewmember – a servant or agent of the vessel. Accordingly, the express provisions of the Athens Convention preclude its application to cases such as the one herein.

F. DEFENDANT’S TICKET LIMITATIONS INCLUDING THE ATTEMPT TO APPLY LIMITATIONS CONTAINED WITHIN THE ATHENS CONVENTION ARE INAPPLICABLE TO THE PLAINTIFF BECAUSE SHE IS A MINOR

As previously explained, the basis for Defendant’s invocation of the damage limitations under the Athens Convention, arise from paragraph 10(a) of its passenger ticket contract. Accordingly, here Oceania is asking this Court to apply, through contract, not only Oceania-favorable limitations of a U.S.-rejected convention to an expressly inapplicable intentional tort, but it is further asking this Court to apply the inapplicable, illegal, and unconscionable ticket provisions to a minor. However, the general maritime law has expressed that contractual limitations in passenger tickets are inapplicable to minors. For example, under United States Maritime Law, contractual one-year statutes of limitations are inapplicable to children on seagoing vessels. 46 U.S.C.A. § 30508 (d) provides:

“If a claimant is a minor or mental incompetent, or if a claim is for wrongful death, any period provided by a contract for giving notice of the claim is tolled until the earlier of

(1) the date a legal representative is appointed for the minor, incompetent, or decedent’s estate; or
(2) 3 years after the injury or death.”

See also, Ayoub v. Moore-McCormack Lines, Inc., 191 N.Y.S. 2d, 411 N.Y.Sup.1958. (Holding that if a person entitled to recover was a minor any lawful limitation of time prescribed in a passenger ticket contract was not applicable so long as no legal representative had been appointed.) Additionally, the United States Supreme Court has recognized that within the United States, “[i]t is a common policy for States to suspend of for civil harms against, in order to “protec[t] during the period when they are unable to protect themselves.”” 539 U.S. 607, 123 S.Ct. 2446, U.S.Cal.,2003.2 (Citing C. Corman, Limitation of Actions § 10.2.1, p. 104 (1991).) These statutes and policies function to ensure that vulnerable children and minors can obtain legal recourse and provides a disincentive for individuals seeking to take advantage of the legal naiveté of children. Under this rationale, a damage limitation provision, such as those contained in the Athens Convention, should not be contractually imposed on a minor.

Per 46 U.S.C.A. § 30508 (d), and 46 U.S.C.A. § 30509, which the Defendant specifically lists as applicable law in the contract, damage and liability limitations for personal injury and death are impermissible. Under these provisions, the Defendant, who regularly transports passengers to, from, and between U.S. Ports[9], and who has chosen the forum of U.S. courts to the exclusion of all others, and who expressly recognizes that U.S. laws apply to incidents involving its passengers, cannot limit its liability for personal injury aboard its vessel. Taken together, these statutes stand for the proposition that a ship cannot contractually limit its liability; particularly in cases involving minors. Thus, under the general maritime law which prohibits contractual limitations from being applied to minors, and under 46 U.S.C.A. § 30509 expressly prohibiting such limitations in cases of personal injury, and more specifically, rape and sexual assault, the Defendant’s attempt to assert the defense of damage limitation pursuant to the Athens Convention provision should be denied.

G. THE SUBJECT CLAUSE FAILS THE “REASONABLE

COMMUNICATIVENESS” TEST.

The foregoing arguments explain why a ticket limitation asserting the damage limitations set forth in Athens Convention is not applicable to the present case. However, beyond the inapplicability of the damage limitation of a U.S.-rejected convention, severed from its strict liability application, to an intentional tort, and to a minor; is that the damage limitation was not reasonably communicated to the passenger. The test to determine whether this clause buried in the fine print of Oceania’s passenger ticket contract is well established. As the Eleventh Circuit set forth in Krenkel v. Kerzner Int’l Hotels Ltd., 579 F.3d 1279, 1281 (11th Cir. Fla. 2009):

“A useful two-part test of “reasonable communicativeness” takes into account the clause’s physical characteristics and whether the plaintiffs had the ability to become meaningfully informed of the clause and to reject its terms.

This approach has been taken by many of our sister circuits. See , e.g., Wallis v. Princess Cruises, Inc., 306 F.3d 827, 835-37 (9th Cir. 2002) v. Princess Cruises, Inc., 306 F.3d 827, 835-37 (9th Cir. 2002); Ward v. Cross Sound Ferry, 273 F.3d 520, 523-24 (2d Cir. 2001); Dillon v. Admiral Cruises, Inc., 960 F.2d 743, 744-45 (8th Cir. 1992); Shankles v. Costa Armatori, S.P.A., 722 F.2d 861, 863-66 (1st Cir. 1983).”

Furthermore, “The proper test of reasonable notice is an analysis of the overall circumstances on a case-by-case basis, with an examination not only of the ticket itself, but also of any extrinsic factors indicating the passenger’s ability to become meaningfully informed of the contractual terms at stake.'” Deiro v. Am. Airlines, Inc., 816 F.2d 1360, 1364 (9th Cir. 1987) (quoting Shankles v. Costa Armatori, S.P.A., 722 F.2d 861, 866 (1st Cir. 1983). As detailed below, the Athens Convention clause contained in Minor daughter’s passenger ticket contract fails both prongs of the reasonable communicativeness test and is unenforceable as a matter of law.

i. The first prong of the “reasonable communicativeness” test: the physical characteristics.

The first prong of the reasonable communicativeness test focuses on the physical characteristics of the ticket and assesses features such as size of type, conspicuousness and clarity of notice on the face of the ticket, and the ease with which a passenger can read the provisions in question. Wallis, 306 F.3d at 835. Herein, the physical characteristics of the ticket weigh in favor of finding that the Athens Convention provision was not reasonably communicated.

First, the font size used throughout the ticket contract is tiny. See attached copy of the ticket contract, attached as Exhibit 1. The relevant provision of the ticket contract, buried in the middle of the contract (at page 3 of 6) reads as follows:

10. CARRIER’S LIABILITY

(a) Foreign Voyages: On cruises which neither embark, disembark nor call at any U.S. port, Carrier shall be entitled to any and all liability limitations, immunities and rights applicable to it under the “Convention Relating to the Carriage of Passengers and Their Luggage by Sea” of 1974 as well as the “Protocol to the Convention Relating to the Carriage of Passengers and Their Luggage by Sea” of 1976 (“Athens Convention”). The Athens Convention limits the Carrier’s liability for death of or personal injury to a Passenger to no more than 46.666 Special Drawling Rights as defined therein (approximately U.S. $65,000 which fluctuates, depending on a daily exchange rate as printed in the Wall Street Journal). On such Cruises, Carrier’s liability shall further be subject to the provisions of the Convention on Limitation of Liability for Maritime Claims, 1976. with revision, protocols and amendments. In addition, and on all other Cruises, all exemptions from and limitations of liability provided in or authorized by the laws of the United States (including Title 46 U.S. Code Sections 30501-30509), 30511 will apply.

This is the actual font size used and it is noteworthy that it violates Southern District Local Rule 5.1 (a)(4), which states that “Fonts for typewritten documents, including footnotes and quotations, must be no smaller than twelve (12) point.” (Emphasis added).[10] Reading such tiny print is an eye-straining nightmare, creating a disincentive to actually reading the ticket contract.

Second, the Athens provision is hidden in the contract. The relevant provision is exactly in the middle of the contract, at page three and four of seven. All of these points weigh in favor of finding that the physical characteristics of the ticket contract did not reasonably communicate to the Plaintiff that the Athens Convention would be applicable.

ii. Minor daughter’s ticket fails the second prong of the “ reasonable communicativeness” test also because it is pure legal fiction to assume that Mrs. Farraway could become meaningfully informed of the what the ambiguous, internally contradicted clauses actually mean and the Defendant does not specify which application of the Convention would be applicable.

Part two of the Wallis “reasonable communicativeness” test requires the court to evaluate the circumstances surrounding the passenger’s purchase and subsequent retention of the ticket/contract. Wallis, 306 F.3d at 836. These circumstances include the passenger’s familiarly with the ticket, the time and incentive under the circumstances to study the provisions of the ticket and any other notice that the passenger received outside of the ticket. Id. Largely subjective, this prong essentially evaluates the passenger’s ability to become meaningfully informed. Id. (quoting Shankles v. Costa Armatory, S.P.A., 722 F.2d 861, 866 (1st Cir. 1983). The liability limitation clause at issue in Plaintiff’s passenger ticket also fails this prong. As succinctly stated by the Ninth Circuit Court of Appeals in Wallis v. Princess Cruises, Inc., 306 F.3d 827, 835, 839 (9th Cir. 2002):

The United States is not a signatory to the 1974 Convention or the 1976 Protocol. We think it is unrealistic to assume the average passenger with no legal background would even attempt to analyze the conditions under which the Athens Convention would or would not apply.

Thus, beyond the inapplicability of the Athens Convention to the instant case and to the minor Plaintiff, JANE DOE; and if this Court were to impart JANE DOE’s mother’s acceptance of the passenger ticket, onto her minor daughter, another question before this Honorable Court is whether the minor Plaintiff’s mother, Jane Doe, who is herself and “average passenger,” is capable of becoming meaningfully informed of the conditions where the contractual provisions invoking the Athens Convention apply. It is a legal fiction to presume that a lay passenger, such as Mrs. Farraway, has the ability to know and understand the disputed contract terms. As described in the foregoing sections of this memorandum, the internal choice of law contradictions within the ticket contract make it difficult for an attorney, much less a layperson, to interpret the provisions. Faced with these two contractual clauses, Mrs. Farraway is first told that U.S. law applies. This statement creates a disincentive to further study the provision regarding the Athens Convention because it is reasonable for Mrs. Farraway to assume that U.S. applies to the exclusion of these other laws.[11] Nonetheless, if Mrs. Farraway gets past the fact the contract clearly states that U.S. law governs, then she is faced with the Athens provision. Mrs. Farraway will first have to try to figure out what the “Convention Relating to the Carriage of Passengers and Their Luggage by Sea” of 1974 as well as the “Protocol to the Convention Relating to the Carriage of Passengers and Their Luggage by Sea” of 1976 are. Finally, Mrs. Farraway has not been informed nor warned that the Athens Convention is a foreign convention which has been rejected by the United States. The legal fiction which accompanies assuming that Mrs. Farraway undertakes to research the intricate and confusing language that accompanies her purchase of a vacation, and the history and interpretation of the Athens Convention is obvious. (Nevertheless, such an assumption must further assume that Mrs. Farraway would have also discovered that that the Athens Convention would have no application to the intentional tort of rape.)

Accordingly, Oceania’s Athens clause also fails the second prong of the ‘reasonably communicated’ test and is thereby unenforceable.

Additionally, it is worth noting that Oceania’s ticket provisions do not even set forth the method of application of the Athens Convention. The Defendant does not set forth whether the document will be implemented through a specific country’s laws of implementation or through the express provisions of the Convention. Since the United States is not a party and the Defendants do not provide for a choice of law for the application of the Convention, it is impossible to become meaningfully informed of the terms of this contract and its potential future application to either Mrs. Farraway or her daughter.

H. THE DEFENDANT SHOULD NOT BE PERMITTED TO AMEND THE ANSWER AFTER FIVE MONTHS WHERE NO NEW INFORMATION HAS BEEN LEARNED TO PRECIPITATE A NEW AFFIRMATIVE DEFENSE; NOR SHOULD IT BE PERMITTED TO VAGUELY PLEAD AN AFFIRMATIVE DEFENSE.

The Defendant filed the original answer to the Complaint on January 10, 2011 and waited until May 12, 2011, four months later, to add one sentence as an affirmative defense. At the time of the original answer, the Defendant knew of the terms and conditions contained within its passenger ticket contract. Further, Defendant has not sufficiently set forth facts or information so as to sufficiently plead the affirmative defense.

As the Florida Court of Appeals recognized, “The requirement of certainty will be insisted upon in the pleading of a defense; and the certainty required is that the pleader must set forth the facts in such a manner as to reasonably inform his adversary of what is proposed to be proved in order to provide the latter with a fair opportunity to meet it and prepare his evidence.” Zito v. Washington Federal Savings and Loan Association of Miami Beach, 318 So. 2d 175, 176 Fla. DCA 3d (1975).

Here, the Defendant has failed to plead anything specifically. The proposed amendment merely states, “Plaintiff’s damages are limited pursuant to the Athens Convention.” As the foregoing memorandum explains, the Athens Convention is inapplicable to the rape of the Plaintiff. As such, the Plaintiff is unable to anticipate how her damages may potentially be limited. Accordingly, the Defendant’s proposed fourth affirmative defense does not explain how the Athens Convention is to be applied. The Defendant does not specify whether the Athens Convention will be implemented through a specific country’s laws of implementation or through the express provisions of the Convention and the proposed effect thereof. Since the United States is not a party and the Defendants do not provide for a choice of law for the application of the Convention, with the vague statement regarding the “fourth affirmative defense,” it is impossible for the Plaintiff to become reasonably informed to allow adequately preparation.

Taken together, the Defendant’s unjustifiable delay before seeking to amend the Answer to the Complaint, and the lack of specificity in the text of the proposed amendment, unreasonably delay proceedings and do not meet the most basic requirements of pleading an affirmative defense under Florida law. Procedurally and substantively, the Defendant’s threadbare invocation of the Athens Convention fails as a matter of law. This unreasonable delay prejudices Plaintiff and this Court in terms of the efficient disposition of the matter. The excessive delay in the proceedings adds costs in both time and money to the Plaintiff and this Court.

I. CONCLUSION

In conclusion, Oceania’s Motion for Leave to File an Amended Answer should be denied because the Athens Convention affirmative defense it seeks to add, fails as a matter of law because: (1) Oceania, as a shipowner transporting passengers from U.S. ports, is subject to 46 U.S.C. §30509 which prohibits limitations on liability in cases involving personal injury, death, sexual assault, and rape; and hence, may not utilize the damage limitations in the Athens Convention against its passengers in such cases; (2) the General Maritime Law of the United States applies to the instant action and the Athens Convention is a U.S.-rejected convention; (3) Oceania’s added affirmative defense impermissibly attempts to invoke only the damage limitation portion of the Athens Convention while ignoring its strict liability provision; (4) the Athens Convention expressly does not apply to intentional torts such as the one at issue in this case; (5) Oceania’s contractual ticket limitations do not apply to minors; (6) application of the Athens Convention to this case would be in specific contravention of the U.S. General Maritime Law, 46 U.S.C.A. §§ 30509 and 30509; (7) Oceania’s contractual ticket limitations concerning the Athens fail the reasonable communicativeness ; and (8) Oceania’s motion is unreasonably delayed and Oceania’s proposed added affirmative defense is inadequately pled.

WHEREFORE, the Plaintiff respectfully requests that this Honorable Court deny Defendant’s Motion for Leave to File an Amended Answer.