October 24, 2012
RCCL v. JOHN DOE and JANE DOE v. NINO ABARQUEZ and RAMON MUSNGI
Response in Opposition to Defendant’s Motion To Dismiss
When passengers are injured at sea, their claims are governed by maritime law. It is important to hire an experienced maritime attorney who understand the intracacies of this body of law when pursuing your claim. In this case, a passenger was injured when riding on a jet ski at Royal Caribbean’s private destination. Royal Caribbean filed a limitation of liability seeking to limit the Plaintiff’s damages to the value of the jet ski. Our attorneys filed a counter-claim and opposed Royal Caribbean’s attempt to dispose of the Plaintiff’s claims.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-CV-22000-SEITZ/SIMONTON
ROYAL CARIBBEAN CRUISES LTD.
as owner of the Ocean Pro 31 vessel bearing
Hull Identification No. CNXO0014A303
for Exoneration from or Limitation of Liability
JOHN DOE and JANE DOE
Defendants/Counter-Claimant/Third-Party Plaintiff (“Claimant”)
NIÑO ABARQUEZ and RAMON MUSNGI,
CLAIMANTS’ RESPONSE IN OPPOSITION TO RAMON MUSNGI ´S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
COMES NOW, Counter-Plaintiffs, JOHN DOE and JANE DOE (hereinafter “Claimants”) and hereby file their Response in Opposition to Ramon Musngi (hereinafter “Musngi”), Motion to Dismiss for Failure to State a Claim [D.E. 33, pg. 14 – 20].
I. Factual background.
This case arises out of severe injuries sustained by Plaintiff while on an RCCL cruise. At the time of the incident, Claimant, was a paying passenger aboard the cruise ship Explorer of the Seas. [D.E. 23, 14].
As part of the cruise, RCCL took the Claimants to Labadee, Haiti; a private enclave entirely owned and controlled by RCCL. Id., 15. Further, RCCL offered and recommended to the Claimants that they purchase a parasail excursion referred to as the “Parasail ZL04G” taking place in the waters adjacent to both the cruise ship and Labadee. Id., 15.
3. The activities in Labadee offered to passengers aboard the Explorer of the Seas were part and parcel of the cruise. RCCL has privately controlled/owned Labadee since 1986.
The resort is guarded by a private security force and is fenced off from the rest of Haiti. Passengers are not allowed to leave the property and no outsiders, other than RCCL passengers or RCCL employees are allowed in the area. For all practical purposes Labadee is nothing more than a private Royal Caribbean enclave.
Indeed, upon information and belief, the cruise ship never “docks” in Labadee; rather, it drops anchor near the “enclave.” To get passengers to its private “enclave” RCCL ferries them utilizing both lifeboats and/or a ferry it maintains in Labadee. Id., 22. Labadee is a small land mass which has no living accommodations for passengers. The only amenities offered to the passengers at Labadee is a beach and adjacent beach activities and water sports. As such, the “visit” to Labadee amounts to nothing more than the cruise ship stopping near a large sandbar where passengers are offered the opportunity to participate in water sports activities. Id., 19. See, i.e. Doe v. Celebrity Cruises, et. al., 394 F. 3d 891 (11th Cir. 2004) (holding that for purposes of cruise, there is no distinction in terms of liability whether a tort occurs inside the ship or at a scheduled port of call). Relying on the Supreme Court in Norfolk Southern Railroad v. Kirby, 343 U.S. at 25 (“[T]he shore is now an artificial place to draw a line”), the Eleventh Circuit held:
… Ports-of-call not only add to the enjoyment of a cruise but form an essential function of the cruise experience… Plainly, individuals choose cruise ship vacations because they want to visit unfamiliar places ashore. Cruises to Alaska, the New England States, Bermuda or the Caribbean offer fundamentally different experiences, not generally because of any material difference between ships, but often because of where the ship elects to stop. . See Isham v. Pacific Far East Line, Inc.., 476 F. 2d 835, 837 (9th Cir. 1973) (“where a passenger or cruise vessels puts into numerous ports, these stopovers are sine qua non of the cruise”). When a passenger selects a particular cruise, ports-of-call or stopovers provide these passengers with the “cruise experience” for which they are paying … there was little practical experience between the port-of-call and other parts of the ship. Id. (Emphasis Added).
While anchored adjacent to Labadee, RCCL organized and operated the “Parasail ZL04G” activity. Passengers who purchased the activity were placed on a parasail, in the waters adjacent to both the cruise ship and the beach, for a guided tour under the supervision of tour leaders who were RCCL employees and included Third Party Defendants Niño Abarquez and Ramon Musngi. [D.E. 23, 16].
The Claimants purchased the “Parasail ZL04G,” activity aboard the cruise ship. To begin the activity, the Claimants and the other participating cruise passengers met at the Labadee beach. Subsequently, the Claimants were harnessed to the parasail canopy attached to a parasail vessel. Id., 15.
RCCL employees and Tour Leaders, Abarquez and Musngi operated the parasail vessel. As the parasail vessel moved at high rates of speed, it dragged the Claimants and ejected them high into the air. Id., 16.
While in tow and attached to the parasail canopy, the Claimants were suddenly lowered back onto the subject parasail vessel by Abarquez and Musngi. Suddenly, the two-line harness holding the Claimants lost tension, and the Claimants rapidly fell from midair onto or around the stern of the subject parasail vessel and into the ocean. As a result, the Claimant’s were severely injured. Id., 17.
II. Procedural Background.
On May 28, 2012, RCCL filed a Verified Complaint for Exoneration From or Limitation of Liability, pursuant to 46 U.S.C. §§181-188, (“The Limitation Act”). [D.E. 1].
In the Verified Complaint, RCCL invokes the Limitation Act, so that it be either exonerated from Liability for Claimant’s injuries, or that such liability be limited to the value of the parasail vessel: the Ocean Pro 31 vessel (parasail vessel) operated by RCCL employees Niño Abarquez and Ramon Musngi. According to RCCL, its interest in the vessel (its value) is USD $84,000.00. [D.E. 1, 14].
On August 22, 2012, Claimants filed their Answer and Affirmative Defenses with respect to RCCL’s Verified Complaint for Exoneration and Limitation from Liability. [D.E. 23]. Additionally, pursuant to Federal Rule of Civil Procedure 13, they filed a counter-claim against RCCL, asserting Negligence (Count I) and a Third Party Complaint Against Abarquez asserting Negligence (Count II) [D.E. 23].
On October 3, 2012, Defendant Musngi filed a Motion to Quash Service [D.E. 33, pg. 1- 10, a Motion to Dismiss for Lack of Personal Jurisdiction [D.E. 33, pg. 10 – 14], and a Motion for Failure to State a Claim for which relief cannot be granted [D.E. 33, pg. 14 – 20].
For clarity’s sake, Claimant will respond to each of Musngi’s Motions separately. Here, Claimant will file a Preliminary Response in Opposition to Musngi’s Motion to Dismiss for Failure to State a Claim [D.E. 32, pg. 14 – 20].
III. Musngi’s Motion to Dismiss Count II of the Third Party Complaint (Negligence) should be denied.
A. Standard of Review.
When ruling on a motion to dismiss, the Court must accept as true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89 (2007). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Court reaffirmed the “notice pleading” principle codified in Federal Rule of Civil Procedure 8, asserting that a complaint must offer more than a formulaic recitation of the elements of a cause of action. Three weeks after issuing Twombly, the Supreme Court put its decision in context with its ruling in Erickson v. Pardus, 551 U.S. 89 (2007). Quoting Twombly and Conley v. Gibson, 355 U.S. 41 (1957), the Supreme Court in Erickson held:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that a pleader is entitled to relief.” Specific facts are not necessary; the statement need only “give the defendant fair notice of what the… claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41 (1957)). In addition, when ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations in the complaint. Bell Atlantic Corp. Supra., at 555-556.
Id., at 93-94. (emphasis added) (Other internal citations omitted).
All in all, as this Honorable Court recently explained in the matter of Rocha v. Carnival Corporation, Case No: 10-22799-CV-LENARD/TURNOFF (S.D. Fla. 2011) [D.E. 26] even after Twombly, “it remains black-letter law today that in the ordinary case a complaint need not provide detailed factual allegations in order to withstand 12(b)(6) scrutiny.” “Twombly neither eliminated nor marginalized the liberal pleading rules.” Id., at 3-4, citing Caytrans BBC, LLC v. Equipment Rental & Contractors Corp., 2009 WL857554, at *2 (S.D. Ala. Mar. 25, 2009) and Wilchombe v. TeeVee Toons, Inc., 555 F. 3d 949, 958 (11th Cir. 2009).
B. In support of their Negligence Count the Claimants pled sufficient factual matter to show Musngi’s breach of duty and causation.
To satisfy the burden of proof in a negligence action a Plaintiff must show: 1) that defendant owed plaintiff a duty; 2) that defendant breached that duty; 3) that this breach was the proximate cause of Plaintiff’s injury; and 4) that Plaintiff suffered damages. Hasenfus v. Secord, 962 F. 2d 1556, 1559-60 (11th Cir. 1992).
In the context of admiralty torts, a shipowner’s “duty” (and the duty of a shipowner’s agents such as Abarquez) was defined in the seminal case of Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632 (1959). In Kermarec the Supreme Court held that “the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case.” (emphasis added). 
At paragraphs 29 and 32 of the Third Party Complaint, the Claimants succinctly allege that “it was the duty of the Third-Party Defendants Niño Abarquez and Ramon Musngi to provide Claimants, JOHN DOE and JANE DOE, with reasonable or ordinary care under the circumstances” and that “[o]n or about November 2, 2011, Niño Albarquez and Ramon Musngi breached their duty to provide Plaintiff with reasonable or ordinary care under the circumstances.”
Therefore, it is undisputed that Claimants pled the correct duty of care in this matter. See, i.e. Gentry v. Carnival Corp., 11-21580-JG (S.D. Fla. October 5, 2011) [D.E. 36] (“Plaintiff properly alleges that Carnival’s duty was ‘to provide Plaintiff with reasonable care under the circumstances’). The applicable standard of reasonable care also “requires, as a prerequisite to imposing liability, that the carrier had actual or constructive notice of the risk creating condition.” Keefe v. Bahama Cruise Line., Inc., 867 F. 2d 1318 (11th Cir. 1989). Constructive notice may be established through evidence which shows 1) that the dangerous condition existed for such a length of time that in the exercise of ordinary care, the Defendant should have known of the condition; or 2) that the condition occurred with regularity and was therefore foreseeable. Kloster Cruise Ltd. v. Grubbs, 762 So. 2d 522 (Fla. 3d DCA 2000). See, Third Party Complaint, D.E. 23, 31 alleging:
At all times material, Third-Party Defendants Niño Abarquez and Ramon Musngi was the parasail excursion tour leader and/or group guide and/or instructor. In doing so, Niño Abarquez and Ramon Musngi, the masters of the subject parasail vessel, had both privity and actual or constructive notice of the manner in which the subject parasail vessel and excursion were being operated. Therefore, Niño Abarquez and Ramon Musngi, the masters of the subject parasail vessel, were in privity of knowledge of their own negligence as the excursion operator/guide and the unseaworthy conditions prior to the commencement of the subject parasail excursion.
In his Motion to Dismiss [D.E. 33], Defendant argues that Count I of the counter-claim fails to comply with the pleading requirements because it does not contain sufficient factual matter. Defendant also alleges that Claimants’ negligence allegations are “legal conclusions,” and that Claimants have failed to adequately allege a breach of Defendant’s duty. Defendant is incorrect.
As illustrated earlier, it remains black-letter law today that a complaint need not provide detailed factual allegations in order to withstand 12(b)(6) scrutiny. As the Supreme Court explained in Twombly and subsequently in Erickson, Rule “8(a)(2) requires only a short and plain statement of the claim showing that a pleader is entitled to relief.” The statement need only “give the defendant fair notice of what the… claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89 (2007), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Here, the Claimants have succinctly alleged that the Third Party Defendants owed them, as passengers, a duty of care. (see, e.g., Third Party Complaint. D.E. 23, 29, 30, and 31). In support of the duty allegations Claimants pled with sufficient factual matter the different ways by which Defendant breached that standard of care. (See e.g., Third Party Complaint, D.E. 23, 33(a)-(ee)).
The Claimants’ allegations have therefore notified the Third Party Defendants of their claim. As footnote 2 shows, there is nothing “conclusory or formulaic” about Claimants allegations. On the contrary, Claimants’ allegations contain a great deal of facts in support of the Negligence count, and particularly the Third Party Defendants’ breach of duty to the Claimants.
All in all, Claimants have gone above and beyond the pleading requirements set forth in Federal Rule 8(a), Erickson, and Twombly, by setting forth in succinct, enumerated statements RCCL’s negligence with sufficient particularity to give Celebrity notice of what the claim is and the grounds it rests on. See Bridgewater v. Carnival Corporation, 10-22241-JLK [D.E. 55] (S.D. Fla. 2011) (King, J.):
In large part, Plaintiffs’ claim for negligence under Count I is predicated upon a laundry list of duties allegedly owed by Carnival to Plaintiff … Nonetheless, Defendant would have this Court dismiss Count I on the basis that Plaintiff failed to plead “sufficient factual matter” to support a claim for negligence. The Court cannot agree. As was well settled by the Supreme Court in Bell Atlantic v. Twombly, 550 U.S. 544 (2007), only a short and plain statement of a claim is required. Upon consideration of the Complaint (DE #1), there can be no doubt that the allegations are sufficient to provide notice to Carnival of both Plaintiffs claims and the factual bases upon which that claim is predicated. As such, Defendant’s Motion to Dismiss must be denied as to Count I.
Id., D.E. 55 at 3.
As Judge King found in Bridgewater, there can be no doubt here that the allegations in the Complaint are sufficient to provide notice to the Third Party Defendants of Plaintiff’s claim for negligence and the factual bases upon which that claim is predicated. Moreover, these facts are sufficient to draw a reasonable inference of negligence under Iqbal against the Third Party Defendants See Propenko v. Royal Caribbean Cruise Ltd., 10-20068, 2010 U.S. Dist. Lexis 37618 (S.D. Fla. Apr. 15, 2010) (allegation that plaintiff “was caused to fall on water on deck of the ship at or near the swimming pool, causing her serious injury” was “sufficient to draw a reasonable inference of negligence” under Iqbal).
The Claimants are not required to plead evidence. In his Motion to Dismiss, Defendant also seems to be making the argument that the Claimants should plead evidence or even to plead every single fact/detail upon which their claim is based. However, nothing of the sort is required under Federal Rule 8(a), Twombly, or Erickson. See, i.e. Gentry v. Carnival Corp., 11-21580-JG (S.D. Fla. October 5, 2011) [D.E. 36]:
Carnival also argues that Gentry has not alleged sufficient details regarding her injury. Gentry alleged that she was injured when the seat belt restraint on the excursion bobsled ride failed. Nevertheless, Carnival contends that it is unclear from the complaint what Gentry claims Carnival knew or should have known about the dangers of going on the excursion…
…. The Court finds that Gentry sufficiently alleged a negligence claim for purposes of surviving a Rule 12(b)(6) motion and requiring Gentry to replead this claim in greater detail would be unnecessary and inefficient. The complaint contains “enough factual matter (taken as true) to suggest that” Carnival was Negligent. Twombly, 550 U.S. at 556 … It provides Carnival with notice of what the claim is about. See Thomson v. Allstate Ins. Co., 476 F. 2d 746, 749 (5th Cir. 1973). Gentry is not required to plead evidence, nor even all of the facts upon which her claim is based. Bogosian v. Gulf Oil Corp., 561 F. 2d 434, 446 (3d Cir. 1977). Carnival will have ample opportunity to learn more about Gentry’s injury and the specific dangers which she claims Carnival failed to warn her about during discovery.
Id., at pg. 8 (emphasis added).
Here, like in Gentry, during discovery the Third Party Defendants will have ample opportunity to learn more about Claimants’ injuries and the specific facts which they claims would have prevented their injury.
WHEREFORE, Claimants respectfully request that this Honorable Court enter an Order denying Defendant’s Motion to Dismiss Count II of Claimants’ Third Party Complaint. [D.E. 33]. Alternatively, in the event this Honorable Court grants Defendants Motion to Dismiss, or any part thereof, Claimant respectfully moves this court for leave to file an Amended Third Party Complaint.
 The duty of exercising reasonable care under the circumstances is owed to passengers to the extent of their entire cruise (both onboard and off the vessel). Indeed, maritime law applies regardless of whether the Plaintiff was injured in the vessel or in a port of call. In fact, the duty of reasonable care applies even where a cruise ship passenger has been injured in a port of call outside of the ship. In Doe v. Celebrity Cruises, et. al., 394 F. 3d 891 (11th Cir. 2004), the Court explained that it is immaterial whether a tort occurred on the ship, or in a scheduled port of call. Relying on the Supreme Court in Norfolk Southern Railroad v. Kirby, 343 U.S. at 25 (“[T]he shore is now an artificial place to draw a line”), the Doe Court focused on circumstances – similar to the case herein. For instance, that the stop “was a scheduled port-of-call, and was an integral part of the ongoing cruise or maritime activity in this case” Id., and that “in many ways the particular incident effectively began and ended aboard the cruise ship.”
Therefore, the standard of care for negligence does not vary whether the tort occurs on the ship or on the port of call. See Doe, at 901:
Jane Doe was no less a crew passenger the moment she stepped of the ship at the port-of-call than she was the moment she stepped on the ship. We see no reason that a cruise line’s liability to their passengers while at a regularly-scheduled port of call … should vary from port to port … Indeed, a ruling that admiralty jurisdiction did not extend literally beyond the gangplank in this case would upset the very uniformity that the Supreme Court has determined so important for maritime activity.
 The Counter-claim succinctly alleges that at all times material the Third Party Defendants failed to: See e.g.: 33 (a) provide a safe excursion; and/or; (b) provide an excursion with proper equipment and/or adequately maintained equipment; (c) warn Plaintiff of the dangers with respect to going on the excursion; and/or (d) cancel the subject excursion; and/or (e) properly and adequately inspect the equipment used on the shore excursion; and/or (f) promulgate and/or enforce and/or follow policies and/or procedures for inspecting and/or monitoring and/or maintaining the equipment used on the shore excursion; and/or (g) failing to warn the Claimants of the dangers posed by the subject shore excursion; and/or (h) failing to describe the level of activity required in the subject shore excursion so as to enable the Claimants to evaluate the subject activities in light of their experience and level of ability; and/or (i) Failing to provide adequate assistance to the Claimants during the subject excursion; and/or (j) Failing to promulgate and/or enforce adequate policies and procedures so as to provide adequate assistance to the Claimants during the subject excursion; and/or (k) Operating the subject parasail vessel at an unreasonable/unsafe rate of speed; and/or (l) Designating an inexperienced employee(s) to operate the subject shore excursion at the time the Claimants were injured; and/or (m) Negligent hiring of an inexperienced crew member(s) to operate the subject shore excursion at the time the Claimants were injured; and/or (n) Using unseaworthy vessels vessel during the subject excursion that Claimants suffered their injuries described above; and/or (o). Negligently failing to assure that tour operators were appropriately supervised; and/or (p). Negligently allowing the tour operators to operate the subject parasail vessel at an unreasonable rate of speed; and/or (q). Failing to properly train the tour operators in the safe operation of the subject parasail vessel and in avoiding/detecting hazardous conditions; and/or (r). Negligently failing to provide tour participants with appropriate training and guidance in participating in the subject shore excursion; and/or (s). Negligently operating and maintaining the subject parasail vessel improperly under dangerous conditions; and/or (t). Failing to have an adequate number of employees supervising and/or operating the subject shore excursion and/or subject parasail vessel; and/or (u). Failing to properly and adequately inspect the equipment used on the subject shore excursion and/or subject parasail vessel; and/or (v). Failing to take into account passenger payload when selecting a parasail canopy to be used by the Claimants during the subject excursion; and/or (w). Allowing Claimants to participate simultaneously in the subject excursion knowing that the passenger payload exceeded the maximum safe passenger payload allowed for the specific parasail canopy to be used by the Claimants; and/or (x). Failing to take into account the Claimants total body weight to be able to correctly choose an adequate parasail canopy to be used by the Claimants; and/or (y). Failing to take into account wind speed when selecting a parasail canopy for Claimants to be used during the subject excursion; and/or (z). Failing to provide a safety briefing to Claimants prior to the start of the subject excursion, including but not limited to: (i) safety precautions while onboard the subject parasail vessel; (ii) a detailed explanation of parasailing activity; (iii) emergency procedures in the event of an unexpected emergency; and/or (iv) the proper use of hand signals by the excursion participants. (aa). Failing to excuse any passengers, who are visibly afraid, from participating in the subject excursion; and/or (bb). Failing to check the surrounding weather visually and/or with weather radar; and/or (cc). Failing to monitor wind speed and direction; and/or (dd). Failing to monitor sea conditions before and/or during the subject excursion; and/or (ee).