United States District Court, S.D. Florida
BLOOM UNITED STATES DISTRICT JUDGE
CAUSE is before the Court upon Defendant Silversea
Cruises, Ltd.'s (âDefendantâ) Motion to Dismiss
Plaintiff's Amended Complaint, ECF No.  (âMotionâ),
filed on July 31, 2019. Plaintiff Ronna Ruben (âPlaintiffâ)
filed a Response in Opposition to Defendant's Motion, ECF
No.  (âResponseâ), to which Defendant replied, ECF No.
 (âReplyâ). 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.
initiated the instant negligence action against Defendant on
May 31, 2019. ECF No.  (“Complaint”). On June
28, 2019, Plaintiff amended her Complaint to add another
Defendant, Mediport Services (“Mediport”). ECF
No.  (“Amended Complaint”).
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 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. ¶
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.
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. .
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
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).
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 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).
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))).
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. 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.