JANE DOE v. Carnival Corp.

Lipcon, Margulies, Alsina & Winkleman, P.A

August 21, 2013

JANE DOE v. Carnival Corp.

Response to Memorandum

When a cruise ship passenger is injured on a shore excursion, it is imperative that they seek out an experienced cruise ship lawyer. There are many reasons for this, but one of the most important reasons is that when a passenger is injured on a shore excursion, cruise lines often try do defend these claims by arguing that U.S. law does not apply to the case. An experienced maritime injury attorney, like those at Lipcon, Margulies, Alsina & Winkleman, P.A., will know what law to apply and and how that law will affect your rights. In this response to a memorandum filed by Carnival Corp, our experienced maritime lawyers argue for the application of U.S. general maritime law and Florida law.

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 12-CV-23770
JANE DOE
Plaintiff,

v.

CARNIVAL CORPORATION,
LISANDRA S.A.- OPERATED BY FURY DE MEXICO S.A.
De C.V./ FURY CATAMARANS COZUMEL, and
XYZ CORPORATION(S).
Defendants.
_____________________________________/

PLAINTIFF’S RESPONSE TO CARNIVAL CORP’S

MEMORANDUM OF LAW ON CHOICE OF LAW ISSUES[1]

Plaintiff, JANE DOE, by and through her undersigned counsel, hereby files this response to Defendant CARNIVAL CORP’s Memorandum of Law on Choice of Law Issues filed pursuant to the Court’s Order dated June 6, 2013. [D.E. 35], and states:

WELL SETTLED PRECEDENT MAKES CLEAR THAT U.S. GENERAL MARITIME LAW, SUPPLEMENTED BY FLORIDA LAW, APPLIES TO THE INSTANT CASE. CARNIVAL’S ATTEMPT TO CLAIM OTHERWISE IS SIMPLY AN EFFORT TO MUDDY THE ISSUES BEFORE THE COURT.

Over Plaintiff’s objection, Defendant CARNIVAL CORP. included in the parties’ joint scheduling report the representation that this Honorable Court will likely face a choice-of-law determination in this matter. CARNIVAL CORP. should know that this simply is not true.

This is a cruise ship shore excursion injury case governed by U.S. general maritime law, supplemented by Florida law. The Southern District of Florida routinely handles cases of this nature in exactly this manner. See e.g., Isbell v. Carnival Corp., 462 F.Supp.2d 1232 (S.D. Fla. 2006) (summary judgment in shore excursion case applying general maritime law of the U.S.); Smolnikar v. Royal Caribbean Cruises, Ltd., 787 F.Supp.2d 1308 (S.D. Fla. 2011) (summary judgment applying general maritime law of the U.S.); Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 901 (11th Cir.2004) (applying maritime law to sexual battery claim of cruise ship passenger committed by crew member at port of call); Pownall v. Cunard Line Limited Co., Case No. 06–22836–Civ–Altonaga [D.E. 120] at 15; John Morrell & Co. v. Royal Caribbean Cruises, Ltd., 534 F. Supp. 2d 1345, 1350 (S.D. Fla. 2008) (shore excursion accident applying Florida law); Fojtasek v. NCL (Bahamas) Ltd., 613 F. Supp. 2d 1351, 1353 (S.D. Fla. 2009) (shore excursion case mixing Florida and general maritime law claims); Koens v. Royal Caribbean Cruises, Ltd., 774 F. Supp. 2d 1215, 1217 (S.D. Fla. 2011) (analyzing a motion to dismiss a shore excursion claim under Florida law.) This is by no means an exhaustive list of Southern District of Florida cases applying general maritime law and Florida law to a cruise ship shore excursion injury case.

Moreover, Florida state courts, and a number of federal courts outside this Circuit, have applied general maritime law under analogous circumstances. See, e.g., Carlisle v. Ulysses, 475 So.2d 248, 250 (Fla. 3d DCA 1985) (applying maritime law to negligence claim arising from events that occurred on a beach after the passengers rented jeeps); Bennion v. Clipper Cruise Line, 1996 WL 218649, at *2 (9th Cir. Apr. 30, 1996) (applying maritime law to injuries suffered during shore excursion); Andia v. Full Service Travel, 2007 WL 4258634, at *6 (S.D.Cal.2007) (applying maritime law to claim that cruise ship passenger was injured during shore excursion to lava field).

Despite this well settled precedent, CARNIVAL CORP. hopes to muddy the waters by leading the Court to believe that this case will involve complex international law. First, CARNIVAL CORP. argues that Plaintiff’s complaint creates ambiguity regarding whether this case has been brought pursuant to this Honorable Court’s diversity jurisdiction or admiralty jurisdiction. According to CARNIVAL CORP. this creates a problem as the Court would have to perform one of two possible choice-of-law analysis, either of which would lead to a different result. This purported problem is a red hearing.

Under either choice of law analysis (Florida’s significant-relationship test or the LauritzenRhoditis test), general maritime law and Florida law applies.

Plaintiff’s claims consisting of Negligence, Apparent Agency, Joint Venture, and Third Party Beneficiary all necessarily center on the Defendant’s actions here in Florida. Accordingly, under Florida’s most significant relationship test, Florida and general admiralty law would apply. Alternatively, under the LauritzenRhoditis test, which centrally focuses on where the Defendant maintains its base of operations[2], again Florida law and general admiralty law would apply as CARNIVAL CORP. maintains its base of operations in Miami, FL. This is why all of the similar cases cited above (and many other cases not cited above to save space) apply U.S. general maritime law and Florida law.

For example, Plaintiff’s negligence count alleges that CARNIVAL CORP. was negligent for: failing to warn the Plaintiff of the dangers associated with the subject shore excursion; failing to promulgate and/or enforce adequate policies and procedures; failing to adequately inspect, supervise, and monitor the subject excursion; and failing to retain a reasonably safe excursion operator, amongst other allegations. [D.E. 1 ¶ 30]. Each of these allegations centers on the alleged failures of CARNIVAL CORP. here in Florida.

Similarly, Plaintiff’s claims of Apparent Agency focus on the representations of CARNIVAL CORP. and decisions of CARNIVAL CORP. in Florida. Lastly, Plaintiff’s Joint Venture and Third Party beneficiary claims are based on contracts that were, upon information and belief, drafted and entered into in Florida and further specify the application of Florida law to any all disputes arising out of those contracts.

Based on the overwhelming precedent in favor of adjudicating cruise ship shore excursion injury claims under general maritime law and Florida law, along with the substantial connection the Plaintiff’s claims have with CARNIVAL CORP.’s conduct in its Florida headquarters, the Court should not face any issue regarding choice of law.

Tellingly, although Plaintiff points to a number of cases applying general maritime and Florida law and involving injuries to cruise ship passengers on shore excursions, CARNIVAL CORP. does not cite to a single analogous case wherein international law or the law of a flag state applies to a cruise ship passenger injury claim.[3] Accordingly, this Honorable Court should apply general maritime and Florida law as pled in Plaintiff’s complaint.

RESPECTFULLY SUBMITTED,
LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
Suite 1776, One Biscayne Tower
Miami, Florida 33131
Telephone: (305) 373-3016
Facsimile: (305) 373-6204

By: /s/ Eric C. Morales
ERIC CHARLES MORALES
FLORIDA BAR # 91875

 


[1] Plaintiff files this response even though CARNIVAL’s memorandum seeks no specific relief. Further, with the limited facts before the Court, it would be difficult for the Court to conduct any choice-of-law analysis. Nonetheless, this “issue” is a simple one that can be easily resolved by the Court as Plaintiff will more fully set forth below.

[2] Both the United States Supreme Court and the Eleventh Circuit have held that the eighth factor (“operational business contacts with United States”) is the most compelling and determinative of the analysis. See Membreno v. Costa Crociere S.p.A., 425 F. 3d 932 (11th Cir. 2005) (“Thus, the only significant question is whether the defendants have a substantial base of operations in the United States warranting the application of United States law.”)