Jane Doe v. Carnival Corp., LISANDRA S.A.- OPERATED BY FURY DE MEXICO S.A. De C.V./ FURY CATAMARANS COZUMEL and/or XYZ CORPORATION(S)

Lipcon, Margulies, Alsina & Winkleman, P.A

October 16, 2012

Jane Doe v. Carnival Corp., LISANDRA S.A.- OPERATED BY FURY DE MEXICO S.A. De C.V./ FURY CATAMARANS COZUMEL and/or XYZ CORPORATION(S)

Complaint

Cruise ship passengers are often injured not while on the cruise ship, but instead while partaking in one of the many shore excursions offered by the cruise line. If you are injured while on a shore excursion, it is critical that you contact an experienced maritime attorney to ensure that your rights are protected. The attorneys at Lipcon, Margulies, Alsina & Winkleman, P.A. have decades of experience handling shore excursion injury cases and will work to make sure that an injured passenger receives fair and adequate compensation from all culpable parties involved.

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO.
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.
_____________________________________/

COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff sues Defendant and alleges:

PRELIMINARY ALLEGATIONS

Plaintiff, JANE DOE is a citizen of Illinois.

Defendant, CARNIVAL CORPORATION (“Carnival”), is a Panamanian corporation with its principal place of business in Florida.

Defendant, LISANDRA S.A.- OPERATED BY FURY DE MEXICO S.A. De C.V./ FURY CATAMARANS COZUMEL, is believed to be an entity organized under the laws of Mexico.

Defendant, XYZ CORPORATION(S), is included to represent the owner(s) and/or operator(s) of the subject excursion, insofar as such entity has a different name than the named Defendants herein. According to Carnival, the “tour operator” of the subject excursion is LISANDRA S.A.- OPERATED BY FURY DE MEXICO S.A. De C.V./ FURY CATAMARANS COZUMEL. XYZ CORPORATION(S) is (are) included in the event that discovery reveals any other entities are involved. XYZ CORPORATION(S) is (are) also used in a plural form. In the event that discovery reveals that additional entities, other than the named Defendants herein, contributed to the ownership, operation, and/or management of the subject excursion, the legal names of the entities will be substituted for XYZ CORPORATION(S).

The matter in controversy exceeds the sum or value of $75,000 specified by 28 U.S.C. §1332, exclusive of interest and costs. In the event diversity jurisdiction does not apply, then this matter is brought under the admiralty and maritime jurisdiction of this Court.

6. At all times material hereto, all Defendants, personally or through an agent:
a. Operated, conducted, engaged in or carried on a business venture in this state and/or county or had an office or agency in this state and/or county;
b.Were engaged in substantial activity within this state;
c. Operated vessels in the waters of this state;
d. Committed one or more of the acts stated in Florida Statutes, §§ 48.081, 48.181 and/or 48.193;
e. The acts of Defendants set out in this Complaint occurred in whole or in part in this county and/or state.
f. The Defendant, Carnival, was engaged in the business of providing to the public and to the Plaintiffs in particular, for compensation, vacation cruises aboard the vessel, the Carnival Liberty.

Defendants are subject to the jurisdiction of the Courts of this State.

The causes of action asserted in this Complaint arise under the General Maritime Law of the United States.

At all times material hereto, Carnival owned, operated, managed, maintained and/or controlled the vessel, the Carnival Liberty.

At all times material hereto, Defendants, LISANDRA S.A.- OPERATED BY FURY DE MEXICO S.A. De C.V./ FURY CATAMARANS COZUMEL and/or XYZ CORPORATION(S) (hereinafter collectively referred to as “the Excursion Entities” in a manner so as to retain each Defendant’s separate and individual liability in the event said Defendants are severed) owned and/or operated the subject excursion, “Deluxe Sail, Snorkel & Beach Party”, which was offered, arranged for, sponsored, recommended, marketed, sold, co-operated and/or managed by Carnival.

The Excursion Entities are believed to have entered into a contract with Carnival for the protection of Carnival’s passengers, whereby the Excursion Entities agreed to subject themselves to the laws and jurisdiction of the State of Florida, consented to personal jurisdiction over themselves, and consented to the venue of the United States District Court for the Southern District of Florida. The Excursion Entities are believed to have also agreed to indemnify Carnival for the claims made in this Complaint within the meaning of Florida Statute § 48.193(d). Furthermore, the Excursion Entities are subject to the jurisdiction of this Court because they sell shore excursion tickets through Carnival’s website which is administered in Florida.

FACTS COMMON TO ALL COUNTS

On or about November 21, 2011, Plaintiffs were paying passengers aboard the Carnival Liberty which was in navigable waters.

At all times material hereto, excursions from the Carnival Liberty were advertised to passengers and the Plaintiff in Carnival’s website and Carnival’s promotional material, including, but not limited to, brochures, and in cabin television commercials which contained Carnival’s logo.

At all times material hereto, Carnival offered passengers aboard the Carnival Liberty and the Plaintiff the opportunity to go on various shore excursions during the subject cruise, including, but not limited to, the subject excursion, Deluxe Sail, Snorkel & Beach Party.

At all times material hereto, Carnival had a shore excursion desk aboard the Carnival Liberty for the purpose of, inter alia, providing Carnival passengers recommendations regarding shore excursions and charging Carnival passengers for shore excursions.

At all times material hereto, Carnival sold tickets for the Deluxe Sail, Snorkel & Beach Party to passengers aboard the Carnival Liberty, including the Plaintiff, during the subject cruise.

At all times material hereto, Carnival did not provide any information to Plaintiff with respect to the name, address, owner and/or operator of the Deluxe Sail, Snorkel & Beach Party.

On or about November 21, 2011, as part of Plaintiff’s cruise aboard the Carnival Liberty, Plaintiff participated in the Deluxe Sail, Snorkel & Beach Party in Cozumel, Mexico. This excursion was arranged for, sponsored, recommended, operated, marketed, and/or sold by Carnival as part of the voyage on the subject cruise.

The Deluxe Sail, Snorkel & Beach Party consisted of a ride on a sailing catamaran to a snorkeling area, and then to a private beach for a party before returning passengers to the pier.

On or about November 21, 2011, as part of the subject excursion, the Plaintiff was instructed to move toward a stair well on the catamaran while the catamaran was still underway and approaching the beach. As the Plaintiff stood by the open stairwell, the catamaran moved abruptly causing the Plaintiff to fall down the stairwell. As a result thereof, Plaintiffs suffered severe and permanent personal injuries.

21. At all times material hereto, the Excursion Entities were the agent(s) and/or apparent agent(s) of Carnival by virtue of the following, such that Carnival is estopped from denying that Carnival was the agent for the Excursion Entities:
a. Carnival made all arrangements for the subject excursion without disclosing to Plaintiffs that the subject excursion was being run by another entity (and/or entities); and/or
b. Carnival marketed the subject excursion using its company logo on its website and/or in its brochures and/or on its ship without disclosing to Plaintiffs that the subject excursion was being run by another entity (and/or entities); and/or
c. Carnival’s web page advertising the Deluxe Sail, Snorkel & Beach Party makes numerous references to Carnival and none to the shore excursion entities; and/or
d. Carnival’s web page advertising the Deluxe Sail, Snorkel & Beach Party refers to the tour as a “Carnival cruise shore excursion”; and/or
e. Carnival’s web page advertising the Deluxe Sail, Snorkel & Beach Party refers to the boat passengers use on the excursion as the “65-foot, custom built ocean catamaran at the Carnival pier”; and/or
f. Carnival’s name and logo was on the sign directing passengers to the excursion on the Carnival pier; and/or
g. Carnival maintained an excursion desk on its ship whereby it offered, sold, provided information to, and answered questions of passengers about the subject excursion without disclosing to Plaintiffs that the subject excursion was being run by another entity (and/or entities); and/or
h. Carnival recommended its passengers to not engage in excursions, tours and/or activities that are not sold through Carnival; and/or
i. Until the point that Plaintiff actually participated in the subject excursion, the Plaintiff’s exclusive contact concerning the subject excursion was with Carnival and/or Carnival’s onboard excursion desk; and/or
j. The fee for the subject excursion was charged to the Plaintiff, and collected from the Plaintiff, exclusively by Carnival; and/or
k. Plaintiff received a receipt exclusively from Carnival for the purchase of the subject excursion.

At all times material hereto, Plaintiff relied on the above, to their detriment, so as to believe that the Excursion Entities were the employee(s) and/or agent(s) of Carnival, in choosing the subject shore excursion. At no time did Carnival represent to Plaintiff in particular, or the ship’s passengers in general, in a meaningful way that the Excursion Entities were not agent(s) and/or employee(s) of Carnival.

At all times material hereto, Carnival was the owner or co-owner of the subject excursion. At all times material hereto, Carnival was responsible for, and liable for, the actions of the Excursion Entities with respect to the subject excursion.

24. In the alternative, at all times material hereto, a partnership and/or joint venture existed between the Excursion Entities by virtue of the following, whereby Carnival and the Excursion Entities are jointly and severally responsible for the negligence of each other as partners of the partnership and/or joint venture:
a. Carnival and the Excursion Entities entered into an agreement whereby: Carnival made all arrangements for the Plaintiff, on behalf of the partnership with the Excursion Entities, for the subject excursion being run by the Excursion Entities; and/or
b. Carnival marketed on Carnival’s website and/or in its brochures and/or on its ship, on behalf of the partnership with the Excursion Entities, the subject excursion being run by the Excursion Entities; and/or
c. Carnival maintained an excursion desk on its ship whereby it offered, sold, provided information to, and answered questions of passengers, on behalf of the partnership with the Excursion Entities, about the subject excursion being run by the Excursion Entities; and/or
d. The Excursion Entities provided the subject excursion boat to be used in the subject excursion; and/or
e. Carnival determined the amount of money charged for the subject excursion being run by the Excursion Entities; and/or
f. Carnival collected the amount of money charged for the subject excursion being run by the Excursion Entities; and/or
g. Carnival paid the Excursion Entities a portion of the sales of tickets for the subject excursion after the subject excursion tickets were sold; and/or
h. Carnival shared profits and losses with the Excursion Entities for the subject excursion.

At all times material hereto, Carnival was an agent for the Excursion Entities in the United States.

At all times material hereto, Carnival was a partner in the subject excursion.

At all times material hereto, Carnival operated and/or supervised the subject excursion.

At all times material hereto, the Excursion Entities owned and operated the subject excursion. The Excursion Entities were involved in providing the subject excursion to Plaintiff. At all times material hereto, the Excursion Entities were the agent(s), apparent agent(s), joint venturer(s), servant(s), and/or employee(s) of Carnival and at all times acted within the course and scope of their agency, apparent agency, joint venture, service and/or employment

COUNT I – NEGLIGENCE AGAINST CARNIVAL

Plaintiff re-alleges, adopts, and incorporates by reference the allegations in paragraphs one (1) through twenty-seven (27) as though alleged originally herein.

It was the duty of Carnival to provide Plaintiff with reasonable care under the circumstances.

On or about November 21, 2011, Carnival and/or its agents, servants, joint venturers and/or employees breached its duty to provide Plaintiff with reasonable care under the circumstances.

30. Plaintiff was injured due to the fault and/or negligence of Carnival and/or its agents, servants, joint venturers and/or employees for acts and/or omissions that include, but are not limited to, the following:
a. Failure to provide a safe excursion; and/or
b. Failure to properly supervise and oversee the excursion marketed, advertised, offered and sold to its guests; and/or
c. Failure to adequately inspect and/or routinely monitor excursion providers so as to ensure that the subject excursion was reasonably safe for cruise passengers and the Plaintiffs; and/or
d. Failure to adequately inspect and/or routinely monitor the subject excursion so as to ensure that the equipment used in the subject excursion (including the catamaran and its stairwells) was reasonably safe for Plaintiff and cruise passengers; and/or
e. Failure to adequately inspect and/or maintain the equipment used in the subject excursion (including the catamaran and its stairwells) so as to ensure that it was reasonably safe for cruise ship passengers; and/or
f. Failure to provide an excursion that utilized reasonably safe equipment that was routinely and adequately inspected and maintained; and/or
g. Failure to adequately warn the Plaintiff of the danger posed by traveling aboard the Fury Catamaran; and/or
h. Failure to require that the Excursion Entities adequately warn the Plaintiff of the danger posed by traveling aboard the Fury Catamaran; and/or
i. Failure to promulgate, enforce and/or comply with adequate policies and procedures to ensure that participants of the subject shore excursion are warned about the danger posed by traveling aboard the Fury Catamaran; and/or
j. Failure to require that the Excursion Entities promulgate, enforce and/or comply with policies and procedures to ensure that participants of the subject shore excursion are warned about the danger posed by traveling aboard the Fury Catamaran; and/or
k. Failure to promulgate, enforce and/or comply with adequate policies and procedures to ensure that the Catamaran used for the subject shore excursion was reasonably safe for cruise ship passengers; and/or
l. Failure to require that the Excursion Entities promulgate, enforce and/or comply with policies and procedures to ensure that the catamaran used for the subject shore excursion was reasonably safe for cruise ship passengers; and/or
m. Failure to promulgate, enforce and/or comply with rules, regulations, policies and practices concerning the safety of individuals riding on the catamaran; and/or
n. Failure to require that the Excursion Entities promulgate, enforce and/or comply with rules, regulations, policies and practices concerning the safety of individuals riding on the catamaran; and/or
o. Encouraging Plaintiff and other passengers to stand and move about the catamaran while underway and/or docking, putting Plaintiff in a dangerous position; and/or
p. Failure to adequately warn Plaintiffs of the dangers of participating in the subject excursion; and/or
q. Failure to advise the Plaintiff and other cruise ship passengers that Carnival does not inspect and/or maintain the equipment used for the subject shore excursion, including the catamaran; and/or
r. Failure to advise the Plaintiff and other cruise ship passengers that Carnival does not provide training, safety advice, and/or safety equipment to the subject shore excursion; and/or
s. Failure to ensure that properly trained and supervised persons operated the subject excursion; and/or
t. Having a shore excursion that was not competently operated; and/or
u. Failure to adequately inspect and review the subject shore excursion prior to offering this tour to passengers; and/or
v. Retaining a shore excursion company whose catamaran violated safety laws including those promulgated in the International Convention for the Safety of Life at Sea (SOLAS) and/or the Mexican Navy; and/or
w. Failure to retain an adequate tour operator with knowledge regarding the safe operation of the subject catamaran.

All of which caused the Plaintiff to suffer severe and permanent injuries when she fell down an open stairwell while participating in the shore excursion, Deluxe Sail, Snorkel & Beach Party.

At all times material hereto, Carnival had exclusive custody and control of the vessel, the Carnival Liberty.

At all times material hereto, Carnival negligently failed to determine the hazards that the excursion posed to Plaintiff, failed to eliminate the hazard, failed to modify the hazard and failed to properly warn Plaintiff of the hazard. In addition, Carnival violated the International Safety Management Code and failed to have a proper, adequate and safe Safety Management System Manual. All of the above caused the Plaintiff to be injured.

Carnival knew of the foregoing conditions causing Plaintiff’s accident and did not correct them, or the conditions existed for a sufficient length of time so that Carnival, in the exercise of reasonable care under the circumstances, should have learned of them and corrected them.

As a direct and proximate result of the negligence of Carnival, the Plaintiff was injured about her body and extremities, suffered physical pain, mental anguish, loss of enjoyment of life, disability, disfigurement, mental and/or nervous disorders, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of Plaintiff’s injuries, suffered physical handicap, lost earnings and lost earning capacity both past and future. The injuries are permanent or continuing in nature and Plaintiff will suffer the losses and impairments in the future. In addition, Plaintiff lost the benefit of her vacation, cruise, and transportation costs.

WHEREFORE, Plaintiff demands judgment for all damages recoverable under the law and demand trial by jury.

COUNT II – NEGLIGENCE AGAINST THE EXCURSION ENTITIES

Plaintiff re-alleges, adopts, and incorporates by reference the allegations in paragraphs one (1) through twenty-seven (27) as though alleged originally herein.

At all times material hereto, the Excursion Entities owned and/or operated the subject excursion.

It was the duty of the Excursion Entities to provide Plaintiff with reasonable care under the circumstances.

On or about November 21, 2011, the Excursion Entities and/or their agents, servants, joint venturers and/or employees breached their duty to provide Plaintiff with reasonable care under the circumstances.

38. Plaintiff was injured due to the fault and/or negligence of the Excursion Entities and/or their agents, servants, joint venturers and/or employees for acts and/or omissions that include, but are not limited to, the following:
a. Failure to provide a safe excursion; and/or
b. Failure to properly supervise and oversee the excursion marketed, advertised, offered and sold to its guests; and/or
c. Failure to adequately inspect and/or routinely monitor excursion so as to ensure that the subject excursion was reasonably safe for cruise passengers and the Plaintiff; and/or
d. Failure to adequately inspect and/or routinely monitor the subject excursion so as to ensure that the equipment used in the subject excursion (including the catamaran) was reasonably safe for Plaintiff and cruise passengers; and/or
e. Failure to adequately inspect and/or maintain the equipment used in the subject excursion (including the catamaran) so as to ensure that it was reasonably safe for Plaintiff and cruise ship passengers; and/or
f. Failure to provide an excursion that utilized reasonably safe equipment/transportation that was routinely and adequately inspected and maintained; and/or
g. Failure to adequately warn the Plaintiffs of the danger posed by traveling aboard the catamaran; and/or
h. Failure to promulgate, enforce and/or comply with adequate policies and procedures to ensure that participants of the subject shore excursion are warned about the danger posed by traveling aboard the catamaran; and/or
i. Failure to promulgate, enforce and/or comply with adequate policies and procedures to ensure that the catamaran used for the subject shore excursion was reasonably safe for cruise ship passengers; and/or
j. Failure to promulgate, enforce and/or comply with rules, regulations, policies and practices concerning the safety of individuals traveling aboard the catamaran; and/or
k. Encouraging Plaintiff and other passengers to stand and move about the catamaran while underway and/or docking, putting Plaintiff in a dangerous position; and/or
l. Failure to adequately warn Plaintiff of the dangers of participating in the subject excursion; and/or
m. Failure to advise the Plaintiff and other cruise ship passengers that Carnival does not inspect and/or maintain the equipment/vehicles used for the subject shore excursion, including the catamaran; and/or
n. Failure to advise the Plaintiff and other cruise ship passengers that Carnival does not verify that the equipment/vehicles used for the subject shore excursion including the catamaran, are reasonably safe, inspected, and/or maintained; and/or
o. Failure to ensure that properly trained and supervised persons operated the subject excursion; and/or
p. Having a shore excursion that was not competently operated; and/or
q. Violating safety laws including those promulgated in the International Convention for the Safety of Life at Sea (SOLAS) and/or promulgated by the Mexican Navy; and/or
r. Failure to provide proper emergency medical care; and/or
s. Failure to provide prompt and proper medical care;

All of which caused the Plaintiff to suffer severe and permanent injuries when the rear wheel of the scoot coupe malfunctioned while Plaintiffs were participating in the shore excursion, Deluxe Sail, Snorkel & Beach Party.

At all times material hereto, the Excursion Entities had exclusive custody and control of the subject excursion.

The Excursion Entities knew of the foregoing conditions causing Plaintiff’s accident and did not correct them, or the conditions existed for a sufficient length of time so that the Excursion Entities, in the exercise of reasonable care under the circumstances, should have learned of them and corrected them.

As a direct and proximate result of the negligence of the Excursion Entities, the Plaintiff was injured about her body and extremities, suffered physical pain, mental anguish, loss of enjoyment of life, disability, disfigurement, mental and/or nervous disorders, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of her injuries, suffered physical handicap, lost earnings and lost earning capacity both past and future. The injuries are permanent or continuing in nature and Plaintiff will suffer the losses and impairments in the future. In addition, Plaintiff lost the benefit of her vacation, cruise, and transportation costs.

WHEREFORE, Plaintiff demands judgment for all damages recoverable under the law and demand trial by jury.

COUNT III – APPARENT AGENCY OR AGENCY BY ESTOPPEL CLAIM AGAINST CARNIVAL

Plaintiff re-alleges, adopts, and incorporates by reference the allegations in paragraphs one (1) through twenty-seven (27) as though alleged originally herein.

At all times material hereto, the Excursion Entities were the apparent agent(s) of Carnival.

At all times material hereto, Carnival is estopped to deny that the Excursion Entities were their agent(s) or employee(s).

44. At all times material hereto, Carnival made manifestations which caused Plaintiff to believe that the Excursion Entities had authority to act for the benefit of Carnival. These manifestations included:
a. Carnival allowed its name to be utilized in connection with the advertising of the Excursion Entities; and/or
b. Carnival allowed its name and logo to be used by the excursion company while at the pier; and/or
c. Carnival made all arrangements for the subject excursion before Plaintiff ever boarded the ship or received their excursion tickets and never effectively disclosed to Plaintiff that the subject excursion was being run by another entity (and/or entities); and/or
d. Carnival marketed the subject excursion using its company logo and name on its website and/or in its brochures and/or on its ship without effectively disclosing to Plaintiff that the subject excursion was being run by another entity (and/or entities); and/or
e. Carnival maintained an excursion desk on its ship whereby it offered, sold, provided information to, and answered questions of passengers about the subject excursion without effectively disclosing to Plaintiff that the subject excursion was being run by another entity (and/or entities); and/or
f. Until the point that Plaintiff actually participated in the subject excursion, the Plaintiff’s exclusive contact concerning the subject excursion was with Carnival; and/or
g. Carnival recommended Plaintiff to not engage in excursions, tours or activities that were not sold through Carnival as Carnival has no familiarity with other tours or their operations; and/or
h. Plaintiff received a receipt exclusively from Carnival for the purchase of the subject exc