United States District Court, S.D. Florida, Miami Division
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
LAWRENCE KING UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court upon Defendant NCL
(Bahamas) Ltd.'s ("NCL") Motion for Summary
Judgment ("Motion") (D.E. 16), filed August 5,
2019. No. Response was filed.
personal injury case arises from Plaintiff's fall while
attempting to walk from one floating dock to another on a
shore excursion from an NCL ship. Specifically, Plaintiff
alleges in her Complaint that"[o]n or about June 20,
2017," while a passenger on the NCL vessel Norwegian
Gem Voyage, she went on a day excursion to Great Stirrup
Cay (D.E. 1, ¶¶ 4-6). According to her Complaint,
first, Plaintiff Roseann Albanese, together with Sam
Albanese, were "taken by a tender (mini ferry), from the
ship to Great Stirrup Cay;" then, she was
"transferred via a small mini ferry ... for the next
portion of the excursion;" finally, she was
"assisted onto an unstable, rubberish floating dock with
instructions to transfer again, to another unstable,
rubberish floating dock, this time without assistance,"
and fell (id. ¶¶ 7, 9, 11-12).
the close of all discovery, NCL filed the instant Motion for
Summary Judgment, arguing that (a) it is not vicariously
liable for Plaintiffs injury where it "does not own or
control Stingray City Bahamas or Stingray Island Bahamas [the
companies that provided the excursion to Great Stirrup Cay]
and they are hot in a joint venture relationship" (D.E.
16, at 1-2); and (b) it is not directly liable for Plaintiffs
injury where it was not on notice of any condition on the
shore excursion that created a risk to passengers
(id. at 6, 10).
Legal Standard on Summary Judgment
judgment is appropriate where there is "no
genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(c) (emphasis added); Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). An
issue is genuine if a reasonable fact finder could return a
verdict for the nonmoving party. Mize v. Jefferson City
Bd. of Educ., 93 F.3d 739, 742(11th Cir. 1996). A fact
is material if it may affect the outcome of the case under
the applicable substantive law. Allen v. Tyson Foods,
Inc., 121 F.3d 642, 646 (11th Cir. 1997). The moving
party has the burden of establishing both the absence of a
genuine issue of material fact and that it is entitled to
judgment as a matter of law. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 106 S.Ct. 1348, 1356 (1986).
prevail on a maritime negligence claim, a plaintiff must
establish that (1) the defendant owed the plaintiff a duty
(e.g., to maintain the ship in a safe condition for
passengers, to warn passengers of dangers that are not open
and obvious); (2) the defendant breached the duty; and (3)
the breach actually and proximately caused injury to the
plaintiff. See, e.g., Chaparro v. Carnival
Corp., 693 F.3d 1333, 1336 (11th Cir. 2012). The duty of
care that a shipowner owes to passengers is "ordinary
reasonable care under the circumstances." Keefe v.
Bahama Cruise Line, Inc., 867 F.2d 1318, 1322
(11th Cir. 1989). As such, for liability to exist, "the
carrier [must] have had actual or constructive notice of the
risk-creating condition, at least where ... the menace is one
commonly encountered on land and not clearly linked to
nautical adventure." Id. An example of
constructive notice is where a "hazard [has] been
present for a period of time so lengthy as to [reasonably]
invite corrective measures" by the shipowner.
Id. Evidence of "substantially similar"
prior accidents or occurrences may also support the ship
owner having had notice. See Sorrels v. NCL (Bah.)
Ltd., 796 F.3d 1275, 1287-88 (11th Cir. 2015).
NCL Is Not Liable for Plaintiff's Injury
posits in its Statement of Material Facts that
"Plaintiff booked a shore excursion in Great Stirrup cay
called Stingray City Bahamas" (D.E. 16, at 2, ¶ 5).
In support, NCL has provided a shore excursion ticket to
Great Stirrup Cay dated "6/20/2017" in the name of
"ALBANESE, SAMUEL - Stateroom: 10124" labeled
"Stingray City Bahamas" (D.E. 16-2). The ticket
states at the bottom "Operated by: Stingray Island
Bahamas" (id). The back of the shore excursion
ticket (titled "CONDITIONS OF CONTRACT") states:
[NCL] and its agents and vessels have no ownership or
control; over the means of transportation or any other
services furnished in connection with such independent shore
excursions. The owners or contractors providing such
transportation or any other services are independent
contractors and control these operations . . . These owners
or contractors are not [NCL's] joint ventures, agents,
and/or employees, and have no other relationship with
Norwegian other than that of independent contractor . . .
Guest hereby releases [NCL], its agents and vessels, from any
and all liability associated with the independent shore
excursion(s) and agrees to hold [NCL] . . . harmless from any
and all loss [or] injury . . . however caused and of
whatsoever nature, in connection with the independent shore
(D.E. 16, at 3, ¶ 6; D.E. 16-3). Consistent with this,
NCL has proffered its Standard Shore Excursion Agreement
between NCL and Stingray Island Bahamas signed in December
2016 (see D.E. 16-6, at 1, 10) for the 2017 and 2018
calendar years (id. at 2, ¶ 4), which states
that "[t]he Operator's relationship with [NCL]
during the Term of ...