DOHSA Applies to Death of Same Sex Spouse On Passenger Cruise Ship

DOHSA Applies to Death of Same Sex Spouse

On Passenger Cruise Ship

By: Michael Harrison

Elbaz v. Royal Caribbean Cruises, Ltd., 2017 U.S. Dist. LEXIS 5417 (S.D. Fla. 2017).Erik Elbaz and his husband embarked on a cruise in November 2015; unfortunately, their trip was marred by anti-gay insults from both passengers and crew members. When the couple reported these insults to management, the cruise line employees only exacerbated the situation. The employees ultimately came to the couple’s room and engaged in an argument. The plaintiff’s husband, Bernardo Garcia, fell from a balcony on the seventh deck into the ocean. Even after this, the plaintiff alleged that the cruise employees failed to deploy rescue boats immediately and otherwise acted recklessly in light of the circumstances. The plaintiff sued Royal Caribbean Cruises for the wrongful death of his husband, alleging (1) negligence, (2) intentional infliction of emotional distress (IIED), (3) negligent infliction of emotional distress (NIED), and (4) damages under Bahamian law. In response, Royal Caribbean moved to dismiss the complaint. It argued that (1) the Death On the High Seas Act (DOHSA) was plaintiff’s exclusive remedy; (2) the plaintiff’s allegations did not state a cause of action for IIED; (3) the plaintiff was not in the zone of danger required to prove NEID; and (4) the plaintiff could not apply Bahamian law under DOHSA.The U.S. District Court for the Southern District of Florida first considered the applicability of both DOHSA and Bahamian law. Plaintiff’s main argument was that a ruling on controlling law was a premature decision for a court to make when considering a motion to dismiss. The court cited Offshore Logistics, Inc. v. Tallentire in holding that the DOHSA preempts all other forms of wrongful death claims where it applies. 477 U.S 207, 232 (1986). It was undisputed the Garcia’s death occurred on the High Seas; and the court dismissed the first allegation (that Royal Caribbean’s negligence caused Garcia’s death). The court also disagreed with the plaintiff’s argument regarding a court preliminary rulings on controlling law, stating that DOHSA should be applied early to prevent unnecessary litigation later on. The court next dismissed the plaintiff’s attempt to seek damages under Bahamian law, stating that plaintiffs cannot pick and choose bits and pieces of U.S. and foreign law to make their own remedies against a defendant. (citing Smith v. Carnival Corp., 584 F. Supp. 2d 1343, 1349 (S.D. Fla. 2008)).The court next permitted the plaintiff’s IIED claim but dismissed the NEID claim. Accepting the plaintiff’s claims as true, the court decided that the allegations met the threshold for intentional infliction of emotion distress. However, the court noted that the standard for negligent infliction of emotional distress was different; specifically, a NEID must allege that the plaintiff was in the “zone of danger” in order to prevail. The court held that the plaintiff could not bring a NEID claim simply because he witnessed a traumatic event. Accordingly, the court dismissed the plaintiff’s NEID claim.