HM&B Secures Dismissal of All Claims, Several with Prejudice, on Behalf of Cruise Line in Shore Excursion Matter

Doria v. Royal Caribbean Cruises, Ltd., No. 1:19-cv-20179-KMW, 2019 U.S. Dist. LEXIS 104354 (S.D. Fla. June 19, 2019)(Williams, J.)

HM&B Secures Dismissal of All Claims, Several with Prejudice, on Behalf of Cruise Line in Shore Excursion Matter

Royal Caribbean passenger, Enid Porrata Doria filed suit for injuries she alleges occurred during an ATV shore excursion operated by an independent contractor in Cozumel, Mexico. Plaintiff sued Royal Caribbean under several theories that included negligence, misleading advertising, negligent misrepresentation, breach of fiduciary duty, breach of contract under the third-party beneficiary theory, and vicarious liability on the theories of apparent agency and joint venture.

HMB partner, Carlos J. Chardon, handled the matter on behalf Royal Caribbean and briefed the Motion to Dismiss. U.S. District Court Judge, Kathleen Williams granted the motion and dismissed all counts, including three with prejudice.  The Court considered the independent contractor agreement between Royal Caribbean and the tour operator after finding that Plaintiff referenced it in the complaint and made it central to her claims of joint venture and third-party beneficiary. After analyzing the agreement, the Court found that the claims should be dismissed with prejudice because language in the agreement contradicted the allegations in the complaint. In support, the Court relied on other decisions that Mr. Chardon had previously secured on behalf his clients. See e.g. Ceithaml v. Celebrity Cruises, Inc., 207 F. Supp. 3d 1345 (S.D. Fla. 2016) (Williams, J); Zapata v. Royal Caribbean Cruises, Ltd., 2013 U.S. Dist. LEXIS 43487 (S.D. Fla. Mar. 27, 2013) (Cooke, J.); Skeen v. Carnival Corp., 2009 U.S. Dist. LEXIS 39355 (S.D. Fla. Apr. 24, 2009)(Cooke,J.); and Gayou v. Celebrity Cruises, Inc., 2012 U.S. Dist. LEXIS 77536 (S.D. Fla. June 5, 2012)(Scola, J.)

The Court similarly dismissed with prejudice the claim for breach of fiduciary duty after finding that it misstated the applicable duty of care, which is reasonable care under the circumstances. The Court noted that maritime law does not impose a fiduciary duty upon ship owners.

The Court dismissed the claims of misleading advertising and negligent misrepresentation, were Plaintiff claimed that she received false or misleading materials regarding the safety of the ATV excursion. The Court found that the Complaint failed to comply with the heightened pleading standard of Rule 9(b), in part because the allegations did not provide the sources of the alleged misleading representations.

The Court dismissed the claim of negligence after finding that plaintiff failed to plead sufficient facts alleging that Royal Caribbean had actual or constructive notice of the alleged dangers conditions of the ATV excursion. Lastly, the Court dismissed the apparent agency claim after noting that it is a theory of liability that is dependent on the sufficiency of the underlying negligence claim, which the Court found to be insufficiently pled.

The decision was also significant for the defense of the foreign tour operator, which HMB also represents. Plaintiff’s principal theory of personal jurisdiction was premised on the allegation that Plaintiff could enforce the Florida forum selection provision in the agreement between Royal Caribbean and the tour operator as third-party beneficiary.  Because the Court dismissed the thirty party beneficiary claim with prejudice, Plaintiff can no longer pursue the theory.