John Doe v. Royal Caribbean, et al – Continued

Lipcon, Margulies & Winkleman, P.A

May 17, 2013

John Doe v. Royal Caribbean, et al – Continued

Response to Motion to Dismiss

The experienced attorneys focused on maritime injury law at Lipcon, Margulies & Winkleman, P.A. are always striving to ensure that our clients rights are protected and to ensure that maritime law evolves in the manner best fit to protect passengers and crewmembers at sea. In this response to a motion to dismiss filed by Royal Caribbean, Plaintiff argues that he should be able to recover for injuries he sustained as a result of negligent medical care he received onboard the Oasis of the Seas.

CASE NO.:13-cv-20984-JEM


ALBERTO BERRIO (Ship’s Doctor),
DOCTOR DOE, (Ship’s Doctor),
NURSE DOE, (Ship’s Nurse),



Plaintiff, JOHN DOE, by and through his undersigned counsel, hereby files his Response in Opposition to Defendant ROYAL CARIBBEAN CRUISES, LTD.’s (“Royal Caribbean”) Motion to Dismiss Plaintiff’s Complaint [D.E. 9], and for good cause relies on the following:



Plaintiff, JOHN DOE, was a passenger aboard the Royal Caribbean vessel Oasis of the Seas, on or about April 27, 2012. [D.E. 1 17]. On that date, Plaintiff became ill and visited the ship’s medical facility where he complained of severe abdominal pain radiating to his shoulder. Id at 19. Royal Caribbean’s shipboard medical personnel, Defendants Alberto Berrio, Daniela Croitoru, and Christian Herbst[1], diagnosed the Plaintiff as suffering from a heart attack. Id. In reality, Plaintiff was suffering from a ruptured spleen and was bleeding into his abdominal cavity. Id.

After misdiagnosing the Plaintiff, Royal Caribbean and the Medical Defendants administered a hazardous combination and amount of drugs that worsened the Plaintiff’s condition. Id at 19, 20. As his condition deteriorated, Plaintiff pleaded with the Defendants to be evacuated from the Oasis of the Seas to receive emergency medical care at a hospital on land. Id at 19. Ignoring Plaintiff’s pleas, Royal Caribbean refused to evacuate Mr. DOE or make an unscheduled stop in the nearest port of call. Id. Royal Caribbean refused to do this despite both the readily apparent nature of Plaintiff’s life threatening condition and despite Dr. Berrio informing the captain of the Oasis of the Seas that the Plaintiff could die if he did not receive emergency medical care soon. Id at 26, fn 3. Instead, Royal Caribbean chose to speed up the Oasis of the Seas so that it would arrive in Ft. Lauderdale earlier than originally scheduled. Id.

By the time Plaintiff reached Ft. Lauderdale, he was in such poor condition due to the delay in receiving adequate emergency care and the negligent treatment he received onboard the Oasis of the Seas, that his blood pressure had dropped to dangerously low levels that prevented doctors from performing emergency surgery. Id at 20. Surgeons in Florida were only able to perform life saving surgery a day later, after numerous blood transfusions had stabilized Mr. DOE’s condition. Id. When Doctors did perform surgery, they removed approximately three gallons of blood from his abdomen and treated him for severe infection. Id. Mr. DOE then spent 8 days in a medically induced coma before he awoke. Id.

As a result of the negligence of Royal Caribbean and the Medical Defendants, Plaintiff was severely injured, disfigured, and disabled. Id. Mr. DOE suffered memory loss, had to re-learn to walk, and was left with life threatening conditions as complications from his injuries. Id.

II.Royal Caribbean acknowledges that there is a well established duty to furnish such aid and assistance as a reasonably prudent person would under similar circumstances. Plaintiff adequately pled his claim along with sufficient facts supporting it and that is all that is required of him at this stage. The challenges raised by Royal Caribbean require factual inquiries not appropriately made and decided at the motion to dismiss stage.

Royal Caribbean readily admits that it had a duty to secure medical aid for Mr. DOE once it became incapable of dealing with his injuries. [D.E. 9, pg. 3]. A motion to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, should be a motion attacking the legal sufficiency of a complaint, however Royal Caribbean does not claim that Plaintiff’s complaint is legally insufficient.

Rather, Royal Caribbean argues that it cannot be held responsible for its failure to evacuate the Plaintiff from the Oasis of the Seas because it did not know how serious Plaintiff’s condition was, and further because the Oasis of the Seas eventually disembarked the Plaintiff to “the most adequate hospital, under the circumstances”. [D.E. 9, pg. 8-9].[2]

Both of these arguments rely on bare factual assertions that cannot be considered without evidentiary support and further cannot be considered at the motion to dismiss stage. See St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir.2002)(the District Court’s inquiry is properly limited to the four corners of the complaint).

Royal Caribbean admits that it owed Plaintiff the duty he alleged in Count I of his complaint, but disagrees whether under the circumstances there was any breach of that duty.[3] Essentially, what Royal Caribbean has offered are affirmative defenses to the Plaintiff’s complaint, not challenges to its legal sufficiency and thus it is inappropriate for the Court to consider Royal Caribbean’s argument at this stage. See Court Appointed Receiver of Lancer Management Group LLC v. Lauer¸ 2010 WL 1372442 (S.D. Fla. 2010)(affirmative defenses not considered in a motion to dismiss).

Further to this point, contrary to what Royal Caribbean asserts in its Motion to Dismiss, Plaintiff specifically pled that Royal Caribbean had both actual and constructive knowledge regarding the serious nature of his condition and the need for evacuation because 1) it was readily apparent and 2) because Dr. Berrio specifically informed the Captain of the Oasis of the Seas that if Mr. DOE did not receive emergency medical care soon, he could die. [D.E. 9 at 26, fn 3][4]. Thus, whether or not Royal Caribbean had knowledge of the need to evacuate Mr. DOE is clearly a question of fact that must be presented to a jury.

Similarly, Plaintiff pled sufficient factual allegations to support his claim that Royal Caribbean’s failure to medically evacuate him was unreasonable under the circumstances. [D.E. 24(a)-(g)]. Accordingly, it is not the Court’s position to weigh (especially at this stage of proceedings without any factual record) the adequateness of the medical facility that Plaintiff ultimately was disembarked to, or whether delaying disembarkation for many hours was reasonable under the circumstances. The very case upon which Royal Caribbean relies to make its argument recognizes that these issues are necessarily questions of fact: “To judge of the propriety of the master’s conduct in a particular case we are bound, so far as possible, to put ourselves in his place, and inquire whether, in view of all the circumstances, he was bound to put into an intermediate port.” The Iroquois, 194 U.S. 240, 243 (1904).

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the … claim is and the grounds upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) citing Conley v. Gibson, 355 U.S. 41, 47 (1957). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

Royal Caribbean does not argue that Plaintiff’s claim is not adequately pled or that it has not been put on notice of the nature of Plaintiff’s claim and the ground upon which it rests. This is because Mr. DOE’s complaint meets the threshold requirements of Rule 8(a)(2). Royal Caribbean’s only arguments are based on bare factual assertions and thus its Motion to Dismiss as to Count I should be denied.

III.Because Royal Caribbean refused to medically evacuate the Plaintiff when it knew or should have known that this was necessary and possible, Royal Caribbean voluntarily assumed a duty to provide competent medical care that did not fall below the applicable standard of care. Accordingly, Royal Caribbean should be held responsible for the negligent medical care provided to the Plaintiff.

In seeking to dismiss Count III of Plaintiff’s complaint, Royal Caribbean relies on the case of Barbetta v. Bermuda Star, 848 F. 2d 1364, 1372 (5th Cir. 1988). Barbetta holds that general maritime law does not impose liability under the doctrine of respondeat superior upon a shipowner for the negligence of a ship’s doctor who treats the ship’s passengers.[5] The Barbetta position is based on the argument that cruise lines lack of control over the doctor-patient relationship (Barbetta argues that such relationship “is under the control of the passengers themselves”), and that cruise line’s lack the expertise to provide medical services to their passengers (Barbetta argues that “[a] ship is not a floating hospital”). Id at 1369-70. As Plaintiff will more fully set out below, the underpinnings of Barbetta are a fallacy in the modern day cruise industry, but regardless of Barbetta’s shortfalls, the District Court need not confront that issue in this case.

Plaintiff’s case presents a very specific set of factual circumstances that prevents Royal Caribbean from claiming the safe harbor offered by Barbetta. Nothing in Barbetta or the general maritime law holds that a cruise line can escape liability for its negligence in performing a duty that it voluntarily assumed.

“Federal maritime law is an amalgamation of federal legislation, federal common law, and state maritime law. A court sitting in admiralty jurisdiction ‘may-and should-resort to state law when no federal rule covers a particular situation.’” Carnival Corp. v. Carlisle, 953 So. 2d 461, 464 (Fla. 2007). Maritime law is silent with regard to the voluntary assumption of a duty and thus this Honorable Court may turn to state law for guidance. Id. Under Florida law, “[w]henever one undertakes to provide a service to others, whether one does so gratuitously or by contract, the individual who undertakes to provide the service thereby assumes a duty to act carefully and to not put others at an undue risk of harm.” Zinn v. United States, 835 F. Supp. 2d 1280, 1312 (S.D. Fla. 2011) citing Clay Electric Coop., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla. 2003).

As Plaintiff alleged, Royal Caribbean had both the duty and the opportunity to medically evacuate the Plaintiff to a land-based hospital when the life threatening nature of his illness became apparent. [D.E. 24(a)-(g)]. Instead of evacuating the Plaintiff, Royal Caribbean elected to keep the Plaintiff on the Oasis of the Seas and simply speed the ship up to arrive in its scheduled port of call earlier than originally planned. Id at 26, fn 3. In the time period between Royal Caribbean’s decision to keep Plaintiff on the Oasis of the Seas and Plaintiff’s eventual arrival in Ft. Lauderdale, Plaintiff suffered severe injuries due to the negligent medical care rendered by Royal Caribbean’s shipboard medical personnel.

Royal Caribbean could have discharged its duty to provide Plaintiff with such aid and assistance as a reasonably prudent person would under the circumstances by medically evacuating the Plaintiff when it had the chance, but Royal Caribbean declined to do this. Instead, Royal Caribbean elected to provide additional medical care to the Plaintiff. In doing so, Royal Caribbean had a duty to exercise reasonable care in the provision of that medical care. Union Park Mem’l Chapel v. Hutt, 670 So. 2d 64, 66-67 (Fla. 1996) (“It is clearly established that one who undertakes to act, even when under no obligation to do so, thereby becomes obligated to act with reasonable care.”)

This case is clearly distinguishable from Barbetta. The underpinnings of Barbetta are based on the premise that a cruise ship passenger has a choice when he decides to seek medical assistance from a ship’s physician. Further, Barbetta again assumes that a cruise ship passenger controls the doctor patient relationship and the provision of medical care he receives onboard a cruise ship.[6] It would be manifestly unfair to allow Royal Caribbean to avail itself of the protections of Barbetta under the factual circumstances herein, because in this case Royal Caribbean was making all of the choices.

JOHN DOE had no choice when he was treated by the ship’s physician onboard the Oasis of the Seas. As made clear in Plaintiff’s complaint, Mr. DOE specifically asked to be evacuated from the vessel and treated onshore. [D.E. 1 19]. Not knowing what malady he suffered from, but understanding that his life was at stake, Mr. Miseredino offered to pay all of the costs associated with his evacuation. Id. Royal Caribbean ignored the Plaintiff’s pleas and forced him to receive treatment from the ship’s medical personnel. Id. Accordingly, the rationales of choice and control underlying Barbetta are inapposite to the factual circumstances of this case. Allowing Mr. DOE to hold Royal Caribbean responsible for the negligent medical care he received after Royal Caribbean refused to evacuate him does not run afoul of general maritime law and is equitable in these circumstance.

Should this Court allow Royal Caribbean to escape liability for the negligent medical care it provided by claiming the protection of Barbetta, it would set a dangerous precedent. Royal Caribbean would then have an incentive to ignore critically injured passengers for sake of keeping their scheduled ports of call and saving money. If this Honorable Court fails to hold Royal Caribbean accountable, the next passenger may not make it to the next port alive.

IV.Notwithstanding the clear distinction between this case and Barbetta, if the Court finds that Barbetta applies herein, it should decline to apply that outmoded precedent in favor of adopting a rule of law that promotes passenger safety by holding that cruise lines are liable for the negligence of their shipboard physicians.

Barbetta is based on precedent from a line of cases originating in 1887. See The Korea Maru, 254 F. 397, 399 (9th Cir. 1918); The Great Northern, 251 F. 826 (9th Cir. 1918); Branch v. Compagnie Generale Transatlantique, 11 F. Supp. 832 (S. D.N.Y. 1935); Churchill v. United Fruit Co., 294 F. 400 (D. Mass. 1923); The Napolitan Prince, 134 F. 159 (E. D.N.Y. 1904); O’Brien v. Cunard Steamship Co., 154 Mass. 272, 28 N.E. 266, 267 (1891); Laubheim v. Maatschappy, 107 N.Y. 228, 13 N.E. 781 (1887). A few date back more than a century, long before cruise liners became floating cities offering a wide range of services to passengers, including twenty four hour medical care.

The majority rule of Barbetta as espoused by the Fifth Circuit Court of Appeals (as previously noted, neither the United States Supreme Court nor the Eleventh Circuit Court of Appeals has addressed this issue) is that if a cruise line’s doctor is negligent in treating a passenger, the cruise line cannot be held vicariously liable for the doctor’s negligence. 848 F.2d 1364, 1369 (5th Cir. 1988). Ironically, that same cruise line can be held liable for that same doctors negligence when he treats a cruise line employee.

For many years, the “lone beacon of dissent” was Nietes v. American President Lines, Ltd., 188 F. Supp. 219, 220 (N.D. Cal. 1959). which held that:

where a ship’s physician is in the regular employment of a ship, as a salaried member of the crew, subject to the ship’s discipline and the master’s orders, and presumably also under the direction and supervision of the company’s chief surgeon through modern means of communication, he is, for the purposes of respondeat superior at least, in the nature of an employee or servant for whose negligent treatment of a passenger a shipowner may be held liable.

Then, in 2003, the Third District Court of Appeal of Florida rejected Barbetta and chose to follow the minority rule set forth in Nietes. Carlisle, 864 So.2d at 5.[7] In a thorough and well-reasoned opinion, the Carlisle Court rejected Barbetta’s finding that a passenger at sea has any meaningful control over his or her relationship with the ship’s doctor, finding instead that “a cruise passenger at sea and in medical distress does not have any meaningful choice but to seek treatment from the ship’s doctor.” Id; see also Fairley v. Royal Cruise Line, LTD., 1993 AMC 1633, 1638.

Disposing with the first myth of Barbetta, the Court found that Carnival exercised a certain amount of control over the doctor’s medical services because the cruise line provided the medical supplies, selected the nurses, and set the hours of operation for the infirmary. Also, the Court noted that “the cruise line is already held vicariously liable for the negligence of the same ship’s doctor in the treatment of hundreds of people – the crew.” Id. at 7. The Carlisle Court thus concluded that “regardless of the contractual status ascribed to the doctor [as an independent contractor], for purposes of fulfilling the cruise line’s duty to exercise reasonable care, the ship’s doctor is an agent of the cruise line whose negligence should be imputed to the cruise line.864 So.2d at 7 (emphasis added).[8]

Disposing with the second myth of Barbetta, the Court rejected the argument that a cruise line is not in the business of providing its passengers with medical care and thus, lacks the necessary expertise to be held vicariously liable for the ship doctor’s negligence. 864 So.2d at 6. As stated by the court in Nietes, the distinction that a non-professional employer could not be expected to exercise control or supervision over a skilled physician “no longer provides a realistic basis for the determination of liability.” Nietes, 188 F. Supp. at 220. The Nietes court analogized a ship owner’s vicarious liability for the medical malpractice of its shipboard physician with a ship owner’s vicarious liability for the negligent operation of the ship by the master. The board of directors of a modern steamship company has as little professional ability to supervise effectively the highly skilled operations involved in the navigation of a modern ocean carrier by its master, as it has to supervise a physician’s treatment of shipboard illness. Id. at 221. Yet, the company is held liable for the negligent operation of the ship by the master. So, too, should it be liable for the negligent treatment of a passenger by a physician. Id.

Furthermore, “[e]ven where a shop owner’s business has nothing to do with driving trucks, and even where the derelict conduct has been expressly forbidden, we still hold him vicariously liable for the negligence of his employee out driving the company truck on an assigned errand.” Fairley v. Royal Cruise Line, Ltd., 1993 A.M.C. 1633, 1637-38 (S.D. Fla. 1993). This is done for sound reasons of public policy in that the economic burden of the injury is more easily borne by the employer rather than the plaintiff, and because the employer is in a better position to reduce the risk invoked by the conduct of the agent. Id.

On review, the Florida Supreme Court expressly recognized the soundness of the Nietes rule in light of the changes that had occurred in the world in the last century. However, because it was a maritime case, the Florida Supreme Court reversed and found that the court was bound to follow the majority position set forth in Barbetta. Carnival Corp. v. Carlisle, 953 So. 2d 461, 470 (Fla. 2007).

As a Federal Court not bound by any controlling precedent, this Honorable Court can do what the Florida Supreme Court could not: hold Royal Caribbean responsible for the negligent medical care rendered by its doctors and set the billion dollar cruise industry on a course that will protect the 16,000,000 passengers a year that travel on these ships.

V.Plaintiff’s claims based on apparent agency are properly pled and inappropriately decided at the motion to dismiss stage.

Royal Caribbean first attempts to dispose of Plaintiff’s apparent agency claims by arguing that Plaintiff has not adequately pled “reasonable reliance”.[9] Defendant cites the Southern District case of Hajtman v. NCL (Bahamas) Ltd., 526 F. Supp.2d 1324, 1328 (S.D. Fla. 2007) and makes the blanket statement that Plaintiff herein has alleged the exact same facts to establish reasonable reliance as the Plaintiff in Hajtman. This is simply untrue.

Contrary to what the Defendant would have this Honorable Court believe, Plaintiff herein made additional allegations that demonstrate the reasonable nature of his reliance on the representations of Royal Caribbean and its medical personnel. With regard to the medical personnel who treated him and the actions of Royal Caribbean, Plaintiff alleged that:
a. They wore a ship’s officer’s uniform (white with embroidered epaulettes); and/or
b. They ate with the ship’s crew; and/or
c. They communicated directly with Royal Caribbean (to the captain and to unknown persons in Royal Caribbean’s shore side office) while providing treatment to the Plaintiff; and/or
d. They were under the commands of the ship’s officers and followed all of the master’s rules and regulations; and/or
e. The Medical Defendants were themselves ship’s officers; and/or
f. There were Royal Caribbean insignia’s in various places inside the ship’s medical facility where the Medical Defendants worked; and/or
g. The literature provided by the Royal Caribbean’s representatives showed the doctors and nurses as crew members and employees of Royal Caribbean; and/or
h. They worked aboard the ship and in the ship’s hospital and further represented themselves as the “ship’s medical crew” to the Plaintiff; and/or
i. They were paid a salary by Royal Caribbean; and/or
j. They spoke to the Plaintiff as though they had authority to do so given to them by Royal Caribbean.

[D.E. 1, pg. 17, 51(a)-(j)]. Plaintiff further specifically alleged that his reliance on the above representations was reasonable and that it was detrimental because it prevented him from receiving proper medical treatment. Id at 54,55.[10]

Royal Caribbean then goes on to argue that it cannot be held vicariously liable for the conduct of its doctors under a theory of apparent agency because Barbetta bars a claim of direct agency. This argument fails because apparent agency is a cause of action separate and apart from that of vicarious liability based on a theory of respondeat superior or actual agency. Under apparent agency, it is the manifestation(s) by the cruise ship to the third party that is controlling, whereas under a theory of respondeat superior or actual agency, it is the actual existence of an employer-employee and/or principal-agent relationship that is controlling. See, e.g., Doonan v. Carnival Corp., 404 F. Supp. 2d 1367, 1371-1372 (S.D. Fla. 2005).

This distinction has been observed by the Southern District of Florida, which has found that while the majority rule under federal maritime law is that a cruise ship cannot be vicariously liable for the conduct of a ship’s doctor under an actual agency theory,a plaintiff can seek to hold a cruise line vicariously liable for the conduct of a ship’s doctor under an apparent agency theory. See Doonan, 404 F. Supp. 2d 1367, 1371 citing Suter v. Carnival Corp., 2007 WL 4662144, at 4 (S.D. Fla. May 14, 2007).[11]

VI.Plaintiff’s Joint Venture claim against Royal Caribbean should not be dismissed because it was properly pled and raises questions of fact not properly decided at a motion to dismiss.

Count VI of Plaintiff’s Complaint alleges that Royal Caribbean and the Medical Defendants engaged in a Joint Venture to operate the ship’s medical facility for profit. Royal Caribbean alleges that Plaintiff failed to properly plead his claim relating to the joint venture between itself and the Medical Defendants because Plaintiff “failed to allege any facts showing that Royal Caribbean and the ship’s doctors had a joint right of control over medical services provided onboard the [Oasis of the Seas].” [D.E. 9, pg. 8]. Again, this is simply untrue. In support of his claim of joint venture, Plaintiff alleged joint control and stated:

64. Both Royal Caribbean and the Medical Defendants had joint or shared control over aspects of the Joint Venture. The Medical Defendants had control over the day to day workings of the ship’s medical facility, including the treatment of patients. Royal Caribbean also had control over the day to day workings of the ship’s medical facility including hours of operation and had control over the billings and collections for the ship’s medical facility. Further, Royal Caribbean issued policies and procedures that were to be followed by the Medical Defendants. Thus, Royal Caribbean and the Medical Defendants had joint control over the day to day operations of the medical facility in that the Medical Defendants performed the medical aspects of the Joint Venture and Royal Caribbean performed the operational and some procedural aspects of the Joint Venture.

As the Florida Supreme Court in Kislack v. Kreedian, 95 So. 2d 510, 515 (Fla. 1957) (emphasis added) stated: “the relationship of joint venturers is created when two or more persons combine their property or time or a combination thereof in conducting some particular line of trade or for some particular business deal.” Herein, Royal Caribbean engaged the Medical Defendants to carry out a single business enterprise for profit: the operation of a medical facility onboard the Oasis of the Seas to provide medical services to passengers for profit. [D.E. 1 62].

As part of the joint venture, Royal Caribbean financed and equipped the ship’s medical facility and assisted in running it. Id at 63. The Medical Defendants, in turn, provided labor and/or assisted in running the ship’s medical facility so as to generate charges to passengers which were then collected by Royal Caribbean. Id. Further, Royal Caribbean promulgated policies and procedures governing the provision of medical care onboard the vessel. Id at 64. Upon information and belief, the money was then shared by Royal Caribbean and the Medical Defendants pursuant to a written agreement. Id at 66.

Royal Caribbean and the Medical Defendants shared a common purpose: to operate the ship’s medical facility for profit. Plaintiff also alleged that the Defendants had a joint proprietary or ownership interest in the ship’s medical facility. Id at 66. Royal Caribbean has the interest in the money it devoted to setting up the medical facility and the Medical Defendants have a proprietary interest in the time and labor expended in operating the ship’s medical facility. Id. Further, the Defendants each had an interest in the money generated by the medical care provided in the ship’s medical facility. Id.

In certain situations, where one party supplies labor and skill (such as the Medical Defendants herein), the other supplies capital (such as Royal Caribbean herein), and both agree to share in the profits of the venture, Florida courts have concluded an agreement to share losses exists as a matter of law “since in the event of a loss, the party supplying the know how would have exercised his skill in vain and the party supplying the capital investment would have suffered a diminishment thereof.” Williams v. Obstfeld, 314 F.3d 1270, 1276 (11th Cir. 2002) (quoting Fla. Tomato Packers, Inc. v. Wilson, 296 So.2d 536, 539 (Fla. 3d DCA 1974)).

Furthermore, to the extent this Honorable Court finds any element lacking, Eleventh Circuit precedent makes clear that the elements of a joint venture “cannot be applied mechanically” and that “[n]o one aspect of the relationship is decisive.” Fulcher’s Point Pride Seafood, Inc. v. M/V “Lady Mary,” 935 F.2d 208, 211 (11th Cir. 1991) citing Sasportes v. M/V Sol de Copacabana, 581 F.2d 1204, 1208 (5th Cir. 1978). Further to this point, the factors are not a checklist, “[t]hey are only signposts, likely indicia, but not prerequisites.” Id. (emphasis added). Accordingly, even if this Honorable Court finds a required element is missing, this Court can still find that Plaintiff’s cause of action for joint venture is plausible, and should therefore survive the Defendant’s Motion to Dismiss.

Finally, it is well settled that questions of an agency relationship, including the existence of a joint venture present a question of fact for the jury. See USA Independence Mobilehome Sales, Inc. v. City of Lake City, 908 So.2d 1151, 1158 (Fla. 1st DCA 2005). Accordingly, this Honorable Court should deny Royal Caribbean’s Motion to Dismiss Count VI.

VII. Plaintiff’s third party beneficiary claim against Royal Caribbean was properly pled and supported by facts.

Count VII of Plaintiff’s Complaint alleges a cause of action based on third party beneficiary. [D.E. 1, p. 25]. To maintain a cause of action for breach of a third party beneficiary contract, the party asserting the third party beneficiary status must prove (1) the existence of the contract; (2) clear or manifest intent of the parties that the contract primarily and directly benefits the third party; (3) breach of a contact by a contracting party; and (4) damages to the third-party resulting from the breach. Steadfast Ins. Co. v. Corporate Protection Security, Inc., 554 F. Supp. 2d 1335 (S.D. FL 2008) citing Jenne v. Church & Tower, Inc., 814 So. 2d 522, 524 (Fla. 4th DCA 2002). Herein, all of these elements were sufficiently pled in paragraphs 73-75 of the Complaint. [D.E. 1, pg. 25].

Royal Caribbean argues Plaintiff’s count for Third Party Beneficiary fails because Plaintiff failed to give details about the contract between the medical Defendants and Royal Caribbean that Plaintiff alleges he is a third party beneficiary of. Royal Caribbean’s argument, however, is devoid of merit.

At the pleading stage in the litigation, Plaintiff cannot provide the large amount of detail Royal Caribbean claims he is required to possess in order to survive a motion to dismiss. Information on the contents of the contract, the types of claims covered, and the form of the contract cannot be provided without the benefit of discovery. See Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (holding that to meet the Rule 8 requirement of providing a “short plain statement of the claim showing that the pleader is entitled to relief,” the factual allegations in the complaint must be sufficient to “raise a right above the speculative level.”) See also Tamayo v. Blagojevich, 526 F. 3d 1074, 1083 (7th Cir. 2007) (interpreting Twombly and asserting that “plaintiff still must provide only enough detail to give Defendant fair notice of what claim is and the grounds on which it rests, and through allegations show that claim is plausible rather than merely speculative”) (emphasis added).

Regardless of the impossibly high standard which Royal Caribbean would have this Court use to rule on Plaintiff’s complaint, Plaintiff submits that he has provided ample allegations that ensure his claim is not based merely on speculation. Firstly, Plaintiff pled that the contract requires that “Royal Caribbean finance[e] and equip[] the ship’s medical facility” and that the medical defendants were required to run the ship’s medical facility. [D.E. 1, 74]. Plaintiff further alleged that there is an indemnity provision in the contract which inures to the benefit of Plaintiff, id at 73, and that all of these provisions were meant to benefit passengers by way of allowing them access to medical care while at sea. Id at 75(a)-(c).


Plaintiff’s complaint was adequately pled and states viable causes of action under existing law. Although Royal Caribbean hopes to hide behind the shield of Barbetta, that case is inapplicable herein, and the remainder of the Defendant’s arguments present questions of fact that cannot be decided in a motion to dismiss. Accordingly, Royal Caribbean’s Motion to Dismiss should be denied in its entirety.

Attorneys for Plaintiff
Suite 1776, One Biscayne Tower
Miami, Florida 33131
Telephone: (305) 373-3016
Facsimile: (305) 373-6204

By: /s/ Eric Charles Morales


[1] Collective