John Doe, et al v. Royal Caribbean Cruises, Ltd.

Lipcon, Margulies, Alsina & Winkleman, P.A

March 05, 2014

John Doe, et al v. Royal Caribbean Cruises, Ltd.

Post Hearing Memorandum

Whether your accident happened at sea or on land, the maritime attorneys at Lipcon, Margulies, Alsina & Winkleman, P.A. can help. In this case, a group of passengers suffered injuries when the shore excursion bus they were on crashed. The shore excursion had been arranged and sold by Royal Caribbean. In this memorandum of law, our experienced admiralty lawyers advise the Court regarding its maritime jurisdiction over the accident that occurred on land.

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
IN ADMIRALTY
CASE NO. 13-20619-CIV-GOODMAN
[CONSENT CASE]
JOHN DOE, et al.,
Plaintiffs,

v.

ROYAL CARIBBEAN CRUISES LTD., et al.
Defendants.

_____________________________/

JOHN DOE, et al.,
Garnishors,

v.

ROYAL CARIBBEAN CRUISES LTD., et al.
Garnishees.

_____________________________/

PLAINTIFFS’ POST-HEARING MEMORANDUM

PURSUANT TO THIS COURT’S ORDER [D.E. 118]

The Plaintiffs, JOHN DOE, et al., pursuant to this Court’s Post-Hearing Briefing Order [D.E. 118], hereby file their post-hearing memorandum, addressing each question, in turn, as posed by this Honorable Court, for good cause, as follows:

CONTROLLING PRECEDENT SQUARELY HOLDS THAT ADMIRALTY JURISDICTION EXISTS OVER THE PLAINTIFFS’ CLAIMS AGAINST DEFENDANT DUTCH TOURS. NOTABLY, EVEN IF THIS HONORABLE COURT FOUND THAT ADMIRALTY JURISDICTION WAS LACKING OVER THE CLAIMS AGAINST DUTCH TOURS, THEN THE DOCTRINE OF SUPPLEMENTAL JURISDICTION WOULD EXTEND ADMIRALTY JURISDICTION TO SAID CLAIMS BECAUSE ALL CLAIMS HEREIN ARISE FROM THE SAME CASE OR CONTROVERSY. LASTLY, THERE IS NO SEPARATE, ADDITIONAL, LEGAL HURDLE, AS DUTCH TOURS ARGUES, IN A ‘RULE B’ ACTION. THE ONLY ANALYSIS IS THE TRADITIONAL ‘LOCATION AND CONNECTION’ TEST FOR ADMIRALTY JURISDICTION, WHICH CONTROLLING PRECEDENT (AND PRIOR BRIEFS FROM COUNSEL FOR DUTCH TOURS) SHOWS APPLIES TO SHORE EXCURSION INCIDENTS ON LAND, IN PORTS OF CALL.

1. First Issue: Admiralty jurisdiction over what? Admiralty jurisdiction applies over certain claims

The first issue as framed by this Honorable Court is whether admiralty jurisdiction applies over certain parties and/or claims, or over the entire case. The answer is simple: admiralty jurisdiction is over claims, not over parties. “Occasionally courts, even the U.S. Supreme Court, mis-speak of exercising subject matter jurisdiction over parties.” Wright & Cooper, 13D Fed. Prac. & Proc. Juris. § 3567.1 (3d ed. 2008) (citing Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 549, (2005)). “Instead, of course, courts should assess whether there is subject matter jurisdiction over a claim…” Id. (emphasis added).

Herein, the “claims” all arise out of the St. Marten bus crash incident which occurred as part of a shore excursion offered to Defendant Royal Caribbean’s cruise ship passengers. It is well settled that admiralty jurisdiction includes incidents involving cruise ship passengers on shore excursions, even on land.[1] While counsel for Dutch Tours may argue otherwise, any such argument is directly undercut by prior briefs filed in nearly identical cruise ship shore excursion cases by the same law firm representing Dutch Tours. As counsel argued in Gentry v. Carnival Corp., 11-21580-CIV (S.D. Fla. 2011) [D.E. 13, pp. 2-3] (copy attached as Exhibit 1):

A. This Action is Substantively Controlled by General Maritime Law

General maritime law is the substantive law applied to lawsuits arising from torts accruing on navigable waters. [Internal citations omitted]. It is well settled that the law governing passengers’ suits against cruise lines is the general maritime law. [Internal citations omitted]. Federal maritime law also governs causes of action arising on shore excursions. Isbell v. Carnival Corp., 462 F.Supp.2d 1232, 1236 (S.D. Fla. 2006).

Stated simply, counsel for Dutch Tours routinely argues that shore excursion cases, such as herein[2], are governed and controlled by maritime law (which is, of course, predicated on the existence of admiralty jurisdiction over the claims). The fact that the instant matter now involves Rule B has no bearing on the issue of admiralty jurisdiction because Rule B is merely a unique procedural tool, available in admiralty, to attach/garnish defendant’s assets, located in the district.

Stated simpler, Dutch Tours is merely trying to confuse and convolute an otherwise straightforward issue. That is, admiralty jurisdiction exists over all of the instant claims, including the negligence claim against Dutch Tours. Thus, federal maritime law governs the causes of action and the instant Rule B action is entirely appropriate.

2. Second Issue: If a court has admiralty jurisdiction over the claims against one defendant, does it have jurisdiction over the related claims against all defendants, including Rule B quasi in rem claims? Yes.

The next question posed is whether a court has admiralty jurisdiction over all defendants if it has admiralty jurisdiction over one defendant generally, and in a Rule B quasi in rem action specifically. The answer is a simple yes.

For the sake of argument, assuming there was not admiralty jurisdiction over the claims against Dutch Tours (a point not conceded), then admiralty jurisdiction would be extended through the concept of supplemental jurisdiction. 28 U.S.C. § 1367 allows supplemental jurisdiction “over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). Herein, it is indisputable that all of the claims against all of the parties form part of the same case or controversy.[3] Thus, even where admiralty jurisdiction did not independently exist over the claims against Dutch Tours, admiralty jurisdiction would be extended via the doctrine of supplemental jurisdiction.

As previously cited, Belik v. Carlson Travel Group, Inc., No. 11-21136-CIV, 2012 WL 4511236, at *5 (S.D. Fla. Oct. 1, 2012), and the cases Belik relied on [4], squarely describe the concept of supplemental jurisdiction and apply it in a nearly identical circumstance. There is simply no reason or basis to deviate from the thorough, well-reasoned holding of Belik.[5]

Simply put, even if there is not independent admiralty jurisdiction over the claims against Dutch Tours, but there is admiralty jurisdiction over a different defendant (i.e., the cruise line), then the doctrine of supplemental jurisdiction extends admiralty to all claims, as long as they arise from the same facts, or involve similar occurrences, witnesses or evidence as the admiralty claim (which is certainly the case herein).

Accordingly, the holding in Belik is applicable in this case and is supported by binding precedent. Murphy v. Fla. Keys Elec. Co-op. Ass’n, Inc., 329 F.3d 1311, 1319 (11th Cir. 2003) (“A maritime tort claim may be asserted in federal court without invoking the court’s admiralty jurisdiction if the claim falls within the court’s supplemental jurisdiction.”); see also Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 531, 115 S. Ct. 1043, 1047, 130 L. Ed. 2d 1024 (1995) (noting that jurisdiction as to the non-maritime claims (indemnity and contribution) “hinge[d]” on whether the court had admiralty jurisdiction).

Next, this Honorable Court asks: “does the holding [in Belik] also apply to a quasi in rem attachment proceeding in an admiralty case?” [D.E. 118, p. 2.] The answer is yes because there is simply no reason that the analysis would be any different. Again, Rule B is merely a procedural tool. Rule B does not alter or change the underlying admiralty jurisdiction is any way, shape or form. And any and all arguments by Dutch Tours to the contrary are disingenuous, at best.

In addition, even the case that Dutch Tours heavily relies on, Goodwin v. Rios Tropicales, S.A., No. 04-22707-CIV, 2005 U.S. Dist. Lexis 45878 (S.D. Fla. November 16, 2005), makes a distinction with the fact that there was no cruise line defendant in the case:

In this case, neither defendant is a cruise line…, but rather, they are an independent tour provider and rafting operator… The Court therefore defines the incident as an injury to a passenger on a white water river rafting tour. Id. at 27 (emphasis added).

Herein, unlike Goodwin, there is a defendant cruise line in the case (Royal Caribbean). As such, while Plaintiffs maintain that they have admiralty jurisdiction over Dutch Tours, this Honorable Court may alternatively exercise supplemental jurisdiction over both RDVT and Dutch Tours, including Plaintiffs’ Rule B claim.

3. Third Issue: There is no different, separate or additional analysis, above and beyond the traditional analysis to determine whether there is admiralty jurisdiction.

Lastly, this Honorable Court asks whether there is a different, separate or additional analysis for a Rule B quasi in rem proceeding, above and beyond the analysis to determine whether a court has admiralty jurisdiction. The answer is a resounding no.

All of the prior briefing by Dutch Tours centers on the well-established admiralty jurisdiction analysis (location and connection to maritime activity). But at the hearing, counsel for Dutch Tours, realizing they are on the losing side of the argument, attempted to confuse and convolute the issue by suggesting to this court that ‘an additional legal hurdle’ above and beyond the traditional admiralty jurisdiction analysis exists.[6] No such additional legal hurdle exists.

There is but one analysis to determine whether there is admiralty jurisdiction, as set forth by the Eleventh Circuit in Doe v. Celebrity Cruises, Inc., 394 F.3d 891 (11th Cir. 2004): “‘[A] party seeking to invoke federal admiralty jurisdiction… over a tort claim must satisfy conditions both of location and of connection with maritime activity.’” Id. at 900 (citing Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995)).

Herein, there is no reason or law or logic to find that admiralty jurisdiction does not exist against Dutch Tours (either independently or via supplemental jurisdiction). In Doe v. Celebrity Cruises, the Eleventh Circuit held that admiralty jurisdiction applied despite the fact that the tort at issue did not occur aboard the cruise ship because scheduled ports-of-call are an “integral part of the on-going cruise or maritime activity.” Doe, 394 F.3d at 901. Likewise, courts have repeatedly held that incidents occurring during shore excursions (even land-based excursions) fall under the Court’s admiralty jurisdiction. See, e.g., Balaschak v. Royal Caribbean Cruises, Ltd., 09-21196-CIV, 2009 WL 8659594, *2-5 (S.D. Fla. Sept. 14, 2009); Gentry v. Carnival Corp., 11-21580-CIV, 2011 WL 4737062, *1-2 (S.D. Fla. Oct. 5, 2011); Caldwell v. Carnival Corp., 944 F. Supp. 2d 1219, 1222 (S.D. Fla. 2013) (“Injuries suffered by cruise ship passengers while on shore excursions and in the port-of-call satisfy the Grubart test, invoking admiralty jurisdiction.”).

Further to this point, despite the fact that the incident at issue in Doe occurred ashore, the first issue of the connection test was “readily dispense[d]” by the Eleventh Circuit because “the cruise line industry is maritime commerce.” Doe, 394 F.3d at 900. As the Court reasoned, “[i]t is easy to imagine that if rape or other forms of sexual battery became a concern of passengers, cruise-ship business would necessarily suffer.” Id. By that same token, this Court has previously held that “when a passenger is injured on a shore excursion, it has the potential to impact the number of excursions purchased by passengers, thereby affecting maritime commerce.” Belik, supra at *5; see also Balaschak, supra at * 4 (“The cruise line industry is maritime commerce…. Shore excursions attract passengers to participate in cruises and are an integral part of the cruise-line industry.”). Notably, this impact could be substantial considering one district court’s recent finding that “shore excursions are a great source of profit” and “annual shore excursion program[s] could exceed one hundred million dollars.” em>Meyer v. Carnival Corp., 938 F. Supp. 2d 1251, 1259 (S.D. Fla. 2013) (emphasis added).

Importantly, the fact that the above analysis is the only one conducted in Rule B claims concerning maritime torts is shown via the case that Dutch Tours heavily relies on, Goodwin, 2005 U.S. Dist. Lexis 45878. In Goodwin, the Court conducts the same “location and connection” analysis set forth in Doe. The difference is, however, that Goodwin improperly limited the scope of the location to navigable waters only. It is well settled, however, that the locality aspect of the jurisdictional test has been extended to injuries and/or damages that occur ashore. See, e.g., 46 U.S.C. § 30101; Lewis Charters, Inc. v. Huckins Yacht Corp., 871 F.2d 1046, 1052 (11th Cir. 1989); see also Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 25, 125 S. Ct. 385, 394, 160 L. Ed. 2d 283 (2004) (“the shore is now an artificial place to draw a line”).

In addition to Goodwin, another recent opinion from the Southern District further cements that the only test is the traditional admiralty jurisdiction test, and that there is no additional legal hurdle faced in a Rule B action. In Ms Adele Schifffahrtsgesellschaft mbH & Co. KG v. Wonderland Int’l Corp., 10-20963-CIV, 2010 WL 8932403 (S.D. Fla. Apr. 12, 2010), the Honorable Judge Moore analyzed the validity of a Rule B action and looked only to the traditional “location and connection” test.

Hence, there is no different, separate or additional jurisdictional analysis for a Rule B quasi in rem proceeding. Rather, courts conduct the same analysis set forth by the Eleventh Circuit in Doe. And in this case, Plaintiffs’ Rule B claim against Dutch Tours undisputedly meets the criteria to apply admiralty jurisdiction.

Dutch Tours was engaged in the business of providing shore excursions to many of the major Miami-based cruise lines, including co-defendant Royal Caribbean. (Copy of contract between Royal Caribbean and Dutch Tours attached as Exhibit 2.) The bus crash incident occurred during a shore excursion carrying Royal Caribbean passengers and bears a direct connection to the cruise vessel.[7] This is undeniably a situation where admiralty jurisdiction and thus, Rule B applies. As stated by counsel for Dutch Tours in its prior briefing on the issue: “Federal maritime law also governs causes of action arising on shore excursions.” Exhibit 1, pp. 2-3.

Consequently, both the location and connection requirements are met herein and admiralty jurisdiction exists over Plaintiffs’ claims against Dutch Tours. And in the unlikely event this Honorable Court disagrees and finds that admiralty jurisdiction does not exist independently, then the doctrine of supplemental jurisdiction allows this Honorable Court to extend admiralty jurisdictional to Dutch Tours.

WHEREFORE, based on the foregoing, Plaintiffs respectfully request this Honorable Court find that there are grounds for issuing the writ of attachment and any further relief this Court deems just and proper.

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

By: /s/ Michael A. Winkleman
JASON R. MARGULIES
Florida Bar No. 57916
MICHAEL A. WINKLEMAN
Florida Bar No. 36719
JACQUELINE GARCELL
Florida Bar No. 104358

 


[1] To this point, 46 U.S.C. § 30101, expressly states: “The admiralty and maritime jurisdiction of the United States extends to and includes cases of injury or damage, to person or property, caused by a vessel on navigable waters, even though the injury or damage is done or consummated on land.” 46 U.S.C.A. § 30101 (emphasis added).

[2] Shore excursions include transportation from and to the ship. It is of no consequence that the accident occurs during the transportation (as opposed to the activity) part of the shore excursion for purposes of exercising admiralty jurisdiction over the claim. See, e.g., Balaschak v. Royal Caribbean Cruises, Ltd., 09-21196-CIV, 2009 WL 8659594, *2-5 (S.D. Fla. Sept. 14, 2009). In Balaschak, a cruise passenger was injured in a crash during a shore excursion – after a cooking presentation – while being transported in a truck back to the ship. This Court held that the truck crash met both the location and connection requirements to establish admiralty jurisdiction. Id.

[3] In order to determine whether the claims are all part of the same case or controversy, the Eleventh Circuit looks to “whether the claims arise from the same facts, or involve similar occurrences, witnesses or evidence.” Hudson v. Delta Air Lines, Inc., 90 F.3d 451, 455 (11th Cir. 1996) (citation omitted). Herein, it is indisputable that the claims all arise from the same fact and involve the same occurrence, witnesses and evidence.

[4]Roco Carriers, Ltd. v. M/V Nurnberg Express, 899 F.2d 1292, 1296–97 (2d Cir. 1990) (“[A]dmiralty jurisdiction extends to an entire case, including non-admiralty claims against a second defendant.” (citing Teledyne, Inc. v. Kone Corp., 892 F.2d 1404, 1409 (9th Cir. 1989); Osborn v. Bank of U.S., 22 U.S. (9 Wheat.) 738, 822–23, 6 L.Ed. 204 (1824))); see also Ortega v. Schramm, 922 F.2d 684, 693 n .9 (11th Cir. 1991) (recognizing pendent party jurisdiction is allowed in admiralty cases under 28 U.S.C. section 1333(1) (citing id. at 1295-97)).

[5] To be clear, the term ‘pendent party jurisdiction’ is used in the Belik case, but the doctrine of pendent party jurisdiction is now codified in the supplemental jurisdiction statute, 28 U.S.C. § 1367. See, e.g., City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 165, 118 S. Ct. 523, 530, 139 L. Ed. 2d 525 (1997); Eubanks v. Gerwen, 40 F.3d 1157, 1161 (11th Cir. 1994); see also Comments to § 1367.

[6] “So let us not talk falsely now, the hour is getting late.” Bob Dylan, All Along the Watchtower (John Wesley Harding, 1967).

[7] First and foremost, Plaintiffs purchased tickets for the subject shore excursion aboard the vessel. [D.E. 99, ¶¶19-21]. In addition, Plaintiffs received the promotional material (including descriptions/warnings) for shore excursions (including Dutch Tours’ subject excursion) aboard the subject vessel. [D.E. 99, ¶¶18, 20]. And Plaintiffs allege that Dutch Tours was negligent in the manner in which the shore excursion was marketed and the lack of warnings concerning the route taken and the transportation used for the excursion. [D.E. 99, ¶43(n)-(o)].