Ruben v. Silversea Cruises LTD (Inc)
Filing
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ORDER granting in part and denying in part 10 Motion to Dismiss. Amended Complaint due by 10/18/2019. Signed by Judge Beth Bloom on 10/11/2019. See attached document for full details. (amb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 19-cv-22241-BLOOM/Louis
RONNA RUBEN,
Plaintiff,
v.
SILVERSEA CRUISES, LTD. (INC.)
and MEDIPORT SERVICES,
Defendants.
________________________________/
ORDER
THIS CAUSE is before the Court upon Defendant Silversea Cruises, Ltd.’s (“Defendant”)
Motion to Dismiss Plaintiff’s Amended Complaint, ECF No. [10] (“Motion”), filed on July 31,
2019. Plaintiff Ronna Ruben (“Plaintiff”) filed a Response in Opposition to Defendant’s Motion,
ECF No. [17] (“Response”), to which Defendant replied, ECF No. [20] (“Reply”). The Court has
reviewed the Motion, all opposing and supporting submissions, the record in this case, and is
otherwise fully advised. As explained below, the Motion is granted in part and denied in part.
I.
BACKGROUND
Plaintiff initiated the instant negligence action against Defendant on May 31, 2019. ECF
No. [1] (“Complaint”). On June 28, 2019, Plaintiff amended her Complaint to add another
Defendant, Mediport Services (“Mediport”). ECF No. [7] (“Amended Complaint”).
In the Amended Complaint, Plaintiff alleges that she was a passenger on one of
Defendant’s cruise ships — the Silver Muse — during an eight-day voyage beginning on July 8,
2018. Id. ¶ 16. On July 10, 2018, Plaintiff and her husband participated in an electric bicycle
excursion that consisted of a guided tour of Bastia, Corsica, France. Id. ¶ 19. Plaintiff booked this
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excursion through one of Defendant’s representatives. In doing so, she relied on the fact that
Defendant held the operator of the excursion out as its agent. Id. ¶ 20-21. Plaintiff alleges that
Defendant was “responsible for supervising, vetting, screening, and selecting the [excursion] tour
operator,” and it exercised control over the tour guides, as well as the operation of the excursion
itself. Id. ¶ 22. In booking the excursion, Plaintiff believed, based on Defendant’s representations,
that it consisted of “a leisurely bike tour on flat surfaces to view the scenery and natural preserve
of the surrounding area.” Id. ¶ 24.
Upon commencing the excursion, Plaintiff discovered that, rather than being a leisurely
bicycle tour on a manual bike, the excursion involved operating electric bicycles, without prior
instruction on the electric bicycles’ operation, along high-traffic roads at speeds in excess of thirty
miles per hour. Id. ¶ 25. During the excursion, Plaintiff was informed by one of Defendant’s
employees who accompanied them on the excursion that Defendant had not previously vetted the
tour operator and that it was Defendant’s first time conducting the excursion using this tour
operator. Id. ¶ 26. Plaintiff alleges that numerous excursion participants expressed concerns about
their safety and complained to Defendant’s employee that they did not want to finish the tour
because they were concerned they would be injured. Id. ¶ 27. Defendant’s employee acknowledged
to Plaintiff “that the tour was not being conducted in a safe manner and was sufficiently concerned
that passengers would suffer injuries that she contacted the [Silver Muse] prior to the end of the
tour” and requested that a bus come pick the passengers up. Id. After contacting the cruise ship,
Defendant’s employee indicated that Plaintiff would need to continue the excursion until the group
reached a better location because the bus was unable meet them at their current location. Id. Shortly
thereafter, Plaintiff was thrown from her electric bicycle and sustained injuries to her mouth, face,
leg, elbow, and shoulder. Id. ¶ 28.
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Plaintiff’s Amended Complaint asserts two counts against Defendant: Count I
(Negligence) and Count II (Negligence – Apparent Agency). Id. at 5-8. Plaintiff also asserts a third
count of negligence against Mediport, which is not at issue in the Motion before the Court today.
Id. at 8-9. Defendant’s Motion argues that this Court should dismiss Counts I and II because
Plaintiff has misstated the relevant law and the applicable legal standards, and she has failed to
sufficiently plead the elements necessary to establish her causes of action. ECF No. [10].
II.
LEGAL STANDARD
A pleading in a civil action must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While a complaint “does not need
detailed factual allegations,” it must provide “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)’s
pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation”). Nor can a complaint rest on “‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). “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.’” Id. (quoting Twombly, 550 U.S. at 570).
When reviewing a motion to dismiss, a court, as a general rule, must accept the plaintiff’s
factual allegations as true and evaluate all plausible inferences derived from those facts in favor of
the plaintiff. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012); Miccosukee
Tribe of Indians of Fla. v. S. Everglades Restoration All., 304 F.3d 1076, 1084 (11th Cir. 2002).
“A facially plausible claim must allege facts that are more than merely possible. . . . The
plausibility standard ‘calls for enough fact to raise a reasonable expectation that discovery will
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reveal evidence’ of the defendant’s liability.” Chaparro, 693 F.3d at 1337 (citations omitted)
(citing Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 556).
Further, while the Court is required to accept all of the factual allegations contained in the
complaint and exhibits attached to the pleadings as true, this tenet is inapplicable to legal
conclusions. Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cty. Sheriff’s Office, 449 F.3d 1342,
1352 (11th Cir. 2006) (“When considering a motion to dismiss . . . the court limits its consideration
to the pleadings and all exhibits attached thereto.” (internal quotation marks omitted)). “Factual
allegations that are merely consistent with a defendant’s liability fall short of being facially
plausible.” Chaparro, 693 F.3d at 1337. “Similarly, ‘unwarranted deductions of fact’ in a
complaint are not admitted as true for the purpose of testing the sufficiency of plaintiff’s
allegations.” Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009), abrogated on
other grounds by Mohamad v. Palestinian Auth., 566 U.S. 449 (2012) (quoting Aldana v. Del
Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005)); see also Iqbal, 556 U.S.
at 681 (stating conclusory allegations are “not entitled to be assumed true”); Chaparro, 693 F.3d
at 1337 (“if allegations are indeed more conclusory than factual, then the court does not have to
assume their truth” (citing Mamani v. Berzain, 654 F.3d 1148, 1153-54 (11th Cir. 2011))).
III.
APPLICABLE LAW
In cases involving alleged torts “committed aboard a ship sailing in navigable waters,” the
applicable substantive law is general maritime law, the rules of which are developed by the federal
courts. Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1320 (11th Cir. 1989) (citing Kermarec
v. Compagnie Generale Transatlantique, 358 U.S. 625, 628 (1959)). “In a claim based on an
alleged tort occurring at an offshore location during the course of a cruise, federal maritime law
applies, just as it would for torts occurring on ships sailing in navigable waters.” Aronson v.
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Celebrity Cruises, Inc., 30 F. Supp. 3d 1379, 1392 (S.D. Fla. 2014) (citing Smolnikar v. Royal
Caribbean Cruises Ltd., 787 F. Supp. 2d 1308, 1315 (S.D. Fla. 2011)); see also Doe v. Celebrity
Cruises, Inc., 394 F.3d 891, 901 (11th Cir. 2004). In the absence of well-developed maritime law,
courts may supplement the maritime law with general common law and state law principles. See
Smolnikar, 787 F. Supp. 2d at 1315. The parties in the instant action do not dispute that maritime
law governs.
IV.
DISCUSSION
Defendant’s Motion contends that Plaintiff’s Amended Complaint should be dismissed as
it relates to Defendant because (1) Plaintiff has misstated the law on the duty of care that Defendant
owed Plaintiff, and (2) Plaintiff has failed to plead sufficient facts to state a valid cause of action
for negligence under an apparent agency theory. ECF No. [10] at 3-12. Additionally, Defendant
argues that the Court should also dismiss Plaintiff’s requests for attorney’s fees because Plaintiff
has not identified any statutory or contractual basis authorizing an award of attorney’s fees. ECF
No. [10] at 13. Plaintiff’s Response, on the other hand, argues that Defendant’s alleged duty of
care in the Amended Complaint is not a heightened duty of care; rather, it is the duty of care that
is well-established under maritime law. ECF No. [17] at 5-8. Plaintiff further asserts that the
Amended Complaint has sufficiently pled the facts necessary to support a claim of apparent
agency. Id. at 9-14.
A. Negligence
Defendant first argues that Plaintiff’s Amended Complaint should be dismissed because
Plaintiff incorrectly attempts to heighten the duty of care that cruise lines owe passengers on shore
excursions. ECF No. [10] at 3-4. In her Response, Plaintiff notes that Defendant is not moving to
dismiss Count I on the basis that Plaintiff “failed to allege the elements of negligence or that each
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theory of negligence should be pled as a separate cause of action.” ECF No. [17] at 5. Rather, the
Motion challenges the allegation that Defendant had duty, under a claim for negligence, “to
exercise reasonable care in selecting, vetting, screening, or hiring trained and competent tour
operators,” which Plaintiff argues is clearly established under the law. Id. at 6, 8. Defendant’s
Reply asserts that “Plaintiff’s negligence claim stemming from a cruise passenger incident that
occurred beyond the point of debarkation can only be assessed in light of [Defendant’s] duty to
warn of known dangers.” ECF No. [20] at 2.
To state a claim for negligence in a maritime tort case, a plaintiff must allege that “(1) the
defendant had a duty to protect the plaintiff from a particular injury; (2) the defendant breached
that duty; (3) the breach actually and proximately caused the plaintiff’s injury; and (4) the plaintiff
suffered actual harm.” Chaparro, 693 F.3d at 1336.
“A shipowner owes the duty of exercising reasonable care towards those lawfully aboard
the vessel.” Id. (quoting Kermarec, 358 U.S. at 630). This duty of care is examined through the
lens of “ordinary reasonable care under the circumstances.” Keefe, 867 F.2d at 1322. Moreover, a
cruise ship operator’s duty of care includes “a duty to warn of known dangers beyond the point of
debarkation in places where passengers are invited or reasonably expected to visit.” Chaparro,
693 F.3d at 1336 (citing Carlisle v. Ulysses Line Ltd., S.A., 475 So. 2d 248, 251 (Fla. 3d DCA
1985)). This duty to warn passengers of certain dangers “encompasses only dangers of which the
carrier knows, or reasonably should have known.” Carlisle, 475 So. 2d at 251. “Accordingly, as a
prerequisite to imposing liability, a carrier must have had ‘actual or constructive notice of the riskcreating condition.’” Wolf v. Celebrity Cruises, Inc., 683 F. App’x 786, 794 (11th Cir. 2017)
(quoting Keefe, 867 F.2d at 1322). Moreover, this duty extends only to specific, known dangers
that are otherwise “not apparent and obvious to the passenger,” Smolnikar, 787 F. Supp. 2d at
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1323, and that are “particular to the places where passengers are invited or reasonably expected to
visit, not to general hazards.” Aronson, 30 F. Supp. 3d at 1392-93 (footnote omitted).
With regard to the duty requirement under a cause of action for negligence, Plaintiff’s
Amended Complaint alleges that Defendant owed her a duty “to exercise reasonable care in
planning, organizing, and supervising The Excursion,” ECF No. [7] ¶ 29, and “to exercise
reasonable care in selecting and/or vetting and/or screening and/or hiring trained and competent
tour operators,” id. ¶ 30. Defendant argues that these allegations misstate and heighten the duty
owed by a cruise line to its passengers on shore excursions. ECF No. [10] at 4. Instead, Defendant
contends that, in the context of shore excursions, cruise lines owe a more limited “duty to warn of
known dangers beyond the point of debarkation in places where passengers are invited or
reasonably expected to visit.” Chaparro, 693 F.3d at 1336 (citing Carlisle, 475 So. 2d at 251).
As an initial matter, some of our sister courts have noted that district courts in the Southern
District of Florida have reached different conclusions when faced with the question of whether
cruise operators owe passengers on shore excursions additional duties beyond just the duty to warn.
See Lienemann v. Cruise Ship Excursions, Inc., No. 18-21713-CIV, 2018 WL 6039993, at *7 (S.D.
Fla. Nov. 15, 2018); Ferretti v. NCL (Bahamas) Ltd., No. 17-cv-20202, 2018 WL 1449201, at *2
(S.D. Fla. Mar. 22, 2018); Thompson v. Carnival Corporation, 174 F. Supp. 3d 1327, 1342 (S.D.
Fla. 2016). Defendant’s Motion asks this Court to weigh in on the scope of a cruise line’s duty of
care. As the Court explains below, Count I of Plaintiff’s Amended Complaint fails to allege the
correct duty of care under a general negligence claim. As such, the Court need not address this
issue at present.
The duty of care a cruise line owes its passengers under a negligence claim brought
pursuant to maritime law is a duty to exercise “ordinary reasonable care under the circumstances,”
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Keefe, 867 F.2d at 1322, which “includes ‘a duty to warn of known dangers beyond the point of
debarkation in places where passengers are invited or reasonably expected to visit.’” Wolf, 683 F.
App’x at 794 (quoting Chaparro, 693 F.3d at 1336). It is unclear to the Court whether Plaintiff is
asserting any specific theory (or theories) of negligence beyond a general negligence claim in
Count I of her Amended Complaint.1 See ECF No. [7] ¶¶ 29-33; ECF No. [17] at 7. Yet, as a
general rule, cruise operators owe passengers a duty to exercise ordinary, reasonable care under
the circumstances, including a duty to warn passengers of known dangers in areas beyond the
cruise ship itself where passengers are invited or are reasonably expected to visit. See Wolf, 683 F.
App’x at 794 (quoting Chaparro, 693 F.3d at 1336). While the duty of care allegations set forth in
Count I may be relevant to certain specific theories of negligence, they do not state the correct
duty of care applicable to the general negligence claim that is pled.2 As such, “[b]ecause Plaintiff
has not alleged the proper standard of care [under a general cause of action for negligence], the
count should be dismissed without prejudice.” White v. NCL Am., Inc. & Norwegian Cruise Line
Ltd., No. 05-22030-CIV, 2007 WL 414331, at *2 (S.D. Fla. Feb. 6, 2007).
Count I of Plaintiff’s Amended Complaint is simply labeled “negligence.” Yet, Plaintiff’s Response and
some of the duty and breach allegations in Count I implicate “claims for negligence based on theories of
negligent hiring, misrepresentation, and failure to warn.” ECF No. [17] at 7; see ECF No. [7] ¶¶ 29-33.
Notably, however, Defendant’s Motion only challenges Count I on the basis that Plaintiff misstated the
proper duty of care for a general negligence claim. As such, the Court limits its review of Count I to the
duty of care under a general claim of negligence. The Court will not assess whether the remaining elements
of negligence are sufficiently pled because Defendant has not raised the issue. Nor will the Court examine
whether Plaintiff has sufficiently pled the facts necessary to establish any other causes of action for specific
theories of negligence. Cf. Gayou v. Celebrity Cruises, Inc., No. 11-23359-Civ, 2012 WL 2049431, at *5
n.2, *6 (S.D. Fla. June 5, 2012).
2
To the extent that Plaintiff intended to assert specific claims under different theories of negligence, she
has the opportunity to more clearly assert these separate claims upon re-pleading because the Court is
dismissing Count I with leave to amend. Gayou, 2012 WL 2049431, at *5 n.2, *6.
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B. Negligence – Apparent Agency
Next, Defendant contends that Plaintiff has not sufficiently pled the necessary elements to
state a valid cause of action for negligence under an apparent agency theory because: (1) Plaintiff’s
conclusory allegations do not establish that Defendant made any representation that the tour
operator was its agent; (2) Plaintiff has not sufficiently plead facts to support a reasonable reliance,
even if any representations were made by Defendant, because Plaintiff received the Passage
Contract, which indicated that all excursions were operated by independent contractors; and (3)
Plaintiff has not alleged any reasonable belief upon which justifiable reliance can be established.
ECF No. [10] at 5-12. Plaintiff, however, argues that Count II alleges numerous facts sufficient to
support her cause of action for negligence under a theory of apparent agency. ECF No. [17] at 914. Moreover, Plaintiff notes that the Passage Contract that Defendant attaches to its Motion
cannot properly be considered on a motion to dismiss because it is not a document that is central
to Plaintiff’s claims. Id. at 12-13. Plaintiff contends that, absent the representation that the tour
operator was Defendant’s agent, she would not have participated in the bike excursion. Id. at 14.
Defendant’s Reply argues that Count II fails to allege any facts to establish how she was induced
to change her position based upon the apparent agency relationship. ECF No. [20] at 5-6.
“[T]he doctrine of apparent agency allows a plaintiff to sue a principal for the misconduct
of an independent contractor who only reasonably appeared to be an agent of the principal.” Franza
v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1249 (11th Cir. 2014). To prevail on a cause of
action for negligence based upon a theory of apparent agency, three essential elements must be
alleged: (1) “a representation by the principal to the plaintiff,” (2) which “causes the plaintiff
reasonably to believe that the alleged agent is authorized to act for the principal’s benefit,” and (3)
which “induces the plaintiff’s detrimental, justifiable reliance upon the appearance of agency.” Id.
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at 1252. However, “to hold a principal liable for the negligence of an apparent agent, a plaintiff
must sufficiently allege the elements of apparent agency in addition to the elements of the
underlying negligent act of the agent for which the plaintiff seeks to hold the principal liable.”
Rojas v. Carnival Corp., 93 F. Supp. 3d 1305, 1311 (S.D. Fla. 2015); Ferretti, 2018 WL 1449201,
at *4; Thompson, 174 F. Supp. 3d at 1342; Zapata v. Royal Caribbean Cruises, Ltd., No. 1221897-CIV, 2013 WL 1296298, at *1 (S.D. Fla. Mar. 27, 2013).
As explained above, the Court concludes that Count I fails to sufficiently allege an
underlying negligence claim against Defendant because it does not set forth the proper duty of care
owed under such a cause of action. Thus, as “Plaintiff’s agency claims are due to be dismissed
irrespective of whether [s]he has adequately alleged . . . apparent agency, the Court will not address
the substantive allegations of these claims.” Ferretti, 2018 WL 1449201, at *4 (citing Rojas, 93 F.
Supp. 3d at 1311; Zapata, 2013 WL 1296298, at *5 (stating that because the “factual allegations
warranted the dismissal without prejudice of Plaintiff’s negligence claim,” the plaintiff’s agency
claim must also be dismissed); Brown v. Carnival Corp., et al., 202 F. Supp. 3d 1332, 1340 (S.D.
Fla. 2016) (finding that because “Plaintiff has failed to state a plausible negligence claim,
Plaintiff’s claim for apparent agency also fails.”)). Accordingly, Count II of Plaintiff’s Amended
Complaint is also dismissed without prejudice.
C. Attorney’s Fees
Lastly, Defendant argues that the Court should dismiss the requests for attorney’s fees
under Counts I and II because Plaintiff has not identified any statutory or contractual basis allowing
such an award. ECF No. [10] at 13. Plaintiff’s Response does not address this argument.
The Court of Appeals for the Eleventh Circuit has clearly set forth the law regarding the
recovery of attorney’s fees in maritime disputes: “The prevailing party in an admiralty case is not
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entitled to recover its attorneys’ fees as a matter of course.” Misener Marine Constr., Inc. v.
Norfolk Dredging Co., 594 F.3d 832, 838 (11th Cir. 2010) (quoting Natco Ltd. P’ship v. Moran
Towing of Fla., Inc., 267 F.3d 1190, 1193 (11th Cir. 2001)). However, courts may award attorney’s
fees under certain, limited exceptions to the general rule if: “(1) they are provided by the statute
governing the claim, (2) the nonprevailing party acted in bad faith in the course of the litigation,
or (3) there is a contract providing for the indemnification of attorneys’ fees.” Natco, 267 F.3d at
1193. “Absent one of these exceptions, this Court will not award the prevailing party attorneys’
fees.” Misener Marine Const., Inc., 594 F.3d at 838.
As Defendant notes, Plaintiff’s Amended Complaint does not identify any statutory or
contractual basis upon which her request for attorney’s fees is justified. Nor has Plaintiff addressed
this argument in her Response to Defendant’s Motion. Absent some clear statutory or contractual
provision that allows for the recovery of attorney’s fees, the Court concludes that Plaintiff’s
requests for attorney’s fees must be dismissed. See id.
V.
CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss
Plaintiff’s Amended Complaint, ECF No. [10], is GRANTED in part and DENIED in part.
Plaintiff is permitted to amend her Complaint on or before October 18, 2019.
DONE AND ORDERED in Chambers at Miami, Florida, on October 11, 2019.
_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record
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