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Water Log 28.4, February, 2009

Florida Court Addresses Admiralty Jurisdiction and Choice of Law in Suit Involving Death on High Seas

Smith v. Carnival Corp., 2008 U.S. Dist. LEXIS 87149 (S.D. Fla. Oct. 27, 2008).

Juliane D. Morris, J.D. December 2008, University of
Mississippi School of Law
Timothy M. Mulvaney, J.D.
           
The United States District Court for the Southern District of Florida found that a complaint supported U.S. admiralty jurisdiction in a case involving a fatality on a snorkeling excursion because the claims satisfied tests assessing the location of the incident and the connections of the Defendant’s operatons to marine activity. Further, the court denied a motion to dismiss claims of misrepresentation and negligence asserted by the decedent’s children.

Background
In December 2006, Lois Gales and her family went on a cruise operated by Carnival Cruise Lines (“Carnival”). On the vacation, the Gales family attended a conference hosted by Carnival, during which Carnival presented the Gales with materials describing a snorkeling excursion operated by Frank’s Watersports Ltd. (“FWS”). According to a wrongful death and related claims suit filed by Lois Gales’ children (“Plaintiffs”) against Carnival and FWS (collectively, “Defendants”), Carnival indicated in these materials that it sold shore excursions in coordination with reputable tour operators.1 Plaintiffs also alleged that Carnival promoted the FWS excursion as a safe activity on its website.2

On the day of the Gales’ excursion with FWS, the complaint states that the weather proved ominous, and many other operators cancelled their snorkeling tours. FWS, however, decided to proceed with the planned excursion.

Plaintiffs contend that FWS failed to provide any safety or snorkeling instructions. Further, they allege that FWS incorrectly tied vests around the Gales and other guests’ waists, instead of fitting them properly around the necks.
Once in the water, Lois Gales floated a significant distance away from the other snorkelers. Plaintiffs assert that when FWS realized Gales’ predicament, they attempted to drive the tour boat to her rescue, but were unable to start the motor. Plaintiffs further assert that FWS could not call for assistance because of a malfunction with the boat’s radio.3

The complaint states that one of Lois Gales’ daughters managed to bring her mother back to the boat, where other guests assisted in unsuccessful attempts at resuscitation. The Plaintiffs alleged that the FWS crew did not assist with these efforts, nor did they have any equipment onboard to aid with the rescue and attempted resuscitation.4

The complaint included three counts conceivably within the bounds of the Death on the High Seas Act (“DOHSA”): misrepresentation, negligence, and un-seaworthiness. Further, the complaint sought other relief under general maritime law and the laws of the Cayman Islands.

The Defendants filed a motion to dismiss the complaint. The court first addressed whether it maintained admiralty jurisdiction and then examined choice of law.

Admiralty Jurisdiction
Although both parties agreed that admiralty law applied, the court has an independent duty to ensure that admiralty jurisdiction exists prior to applying admiralty law.5 Two conditions are required to invoke federal admiralty jurisdiction over a tort claim, the first relating to the location of the incident and the second relating to the connection of the Defendant’s operations to marine activity.

The court held that the location requirement is satisfied because the decedent drowned in navigable waters, and the alleged conduct of FWS and misrepresentations of Carnival also occurred on navigable waters.6

Further, the court found a sufficient connection to maritime activity because Carnival’s cruise operations “epitomizes maritime commerce” and FWS’s tours are closely related thereto.7

Choice of Law
The standard of review on such a motion “merely tests the sufficiency of the [counts in the] complaint; it does not decide the merits of the case.”8 The court examined the sufficiency of Plaintiffs’ claims under the law of the Cayman Islands and those under the law of the U.S. separately.

Claims under Cayman Islands Law
Ordinarily, the court will apply federal admiralty law when the claims support admiralty jurisdiction. However, admiralty jurisdiction requires application of the admiralty choice of law rules where there is an issue as to whether U.S. or foreign law (here, that of the Cayman Islands) applies.9

The parties agree that DOHSA, a U.S. admiralty law, applies, at least in part, to the case. However, the parties did not address the choice of law in their respective briefs. Plaintiffs contend that they may supplement their DOHSA claims with additional claims under both U.S. general maritime law and the law of the Cayman Islands, while Defendants argue that DOHSA precludes any supplementary claims.

While the court did not rule on whether the law of the Cayman Islands applies, it noted that litigants generally may not supplement claims brought under U.S. law with foreign law claims.10 However, the court also noted that plaintiffs could allege the applicability of multiple sources of law at the pleading stage, in the form of alternative arguments.11

As the court did not yet rule on whether Cayman Islands law controls, it declared it “premature to dismiss Plaintiffs’ claims for relief” under the laws of the Cayman Islands.12

Claims under United States Law
The court then addressed Plaintiffs four other claims under U.S. law, assuming, but not deciding, that U.S. admiralty law applied.

Plaintiffs presented the first three of these claims as DOHSA claims. DOHSA applies to wrongful death claims that are “caused by act, neglect, or default occurring on the high seas” be­ yond three nautical miles from the shore of the United States.13

First, the Plaintiffs based their misrepresentation claim on the fact that Carnival made representations concerning the safety of FWS’s snorkel excursions.14 According to the district court, although admiralty law does not provide a specific cause of action for misrepresentation, a court sitting in admiralty may look to state law in certain situations.15

Here, the court applied Florida state law to the Gales’ misrepresentation claim. The court denied the Defendant’s motion to dismiss this count by declaring that Plaintiffs had provided sufficient notice of the misrepresentation claim in accord with the elements required by Florida law.16

Second, the complaint alleged that FWS was negligent in causing the death of Lois Gales. While Defendants apparently conceded that a negligence count is proper under DOHSA, they sought dismissal based on the contention that the complaint did not state the applicable standard of care.

The Court found that notice pleading does not require that the complaint allege the specific standard of care, provided that it notifies the defendant of the nature of the claim against him.17 Therefore, the court denied the motion to dismiss on this count by finding that FWS is on general notice of the claims against them.

Third, Plaintiffs based their un-seaworthiness claim against FWS on the fact that the boat’s motor was inoperable while Gales was drowning. The court dismissed this claim with prejudice because un-seaworthiness claims are only meant to protect cargo and seamen, not passengers.

Finally, the children of the decedent each brought personal claims under general maritime law for negligent infliction of emotional distress for their having witnessed the drowning of their mother due to the negligence of FWS. Although the court noted that  DOHSA does not forbid such a claim (indeed, the court noted, a death is not even required to bring such a claim), the court stated that the complaint must sufficiently support the allegation.18

Here, the court rejected Plaintiffs’ allegation that this count is governed by Florida law, which follows the minority rule that relative bystanders may re­ cover under a negligent infliction of emotional distress theory. Rather, citing the need for uniformity in the application of general maritime law, the court declared the more re­ stric­ tive “zone of danger” test applicable.19

The court found that the complaint did not allege the Gales children were within the zone of danger, which would enable them to seek recovery for their alleged emotional distress.20 Therefore, the court dismissed the emo­ tional distress claim, though it did so without prejudice, allowing the Plaintiffs the opportunity to re-file their complaint in an effort to fulfill the zone of danger test requirements before the matter proceeds.l

Endnotes:
1.   Smith v. Carnival Corp., 2008 U.S. Dist. LEXIS 87149 (S.D. Fla. Oct. 27, 2008).
2.   Id. at *2.
3.   Id. at *3.
4.   Id.
5.   Id. at *6-7.
6.   Id. at *7-8.
7.   Id. at *8.
8.   Id. at *5.
9.   Id.
10. Id. at *13-14.
11. Id. at *15.
12. Id.
13. Id.
14. Id. at *19.
15. Id. at *19-20.
16. Id. at *21.
17. Id. at *23.
18. Id. at *26.
19. Id. at *27-31.
20. Id. at *31.

University of Mississippi