Death on Carnival Cruise “Jolly Roger Roatan” Excursion Claim Dismissed
Nichols v. Carnival Corp., No. 1:19-CV-20836-UU, 2019 U.S. Dist. LEXIS 105153 (S.D. Fla. Jun. 21, 2019).
By: Roy E. Lambert
Plaintiff Martha Nichols, as a surviving spouse of Decedent Larry Nichols and his estate, brought a lawsuit against Carnival Corporation. During the late summer of 2018, Plaintiff and Decedent were passengers on the Carnival cruise ship Breeze, docked in Honduras. While aboard the ship, the two booked an advertised “CARNIVAL” excursion—titled “Jolly Roger Roatan”—directly from Carnival.
On September 5, 2018, Plaintiff and Decedent participated in the excursion, which entailed being transported by catamaran to sail, swim, and snorkel. While the Decedent snorkeled, he began to experience emergency respiratory and/or cardiac symptoms. No crew members, lifeguards, or tour guides were in the area to assist.. After a delay, the Decedent was brought back to the catamaran and transported to a hospital. No one provided emergency aid. Plaintiff alleged that Decedent died that same day as a result of Carnival’s negligence.
Plaintiff filed a complaint against Carnival in the United States District Court for the Southern District of Florida and alleged five causes of action, which include: (1) general negligence, (2) negligent hiring and/or retention, (3) negligence “based on apparent agency,” (4) negligence “based on joint venture,” and (5) breach of third party beneficiary contract. Judge Ursula Ungaro granted Carnival’s motion to dismiss without prejudice.
Theopinion began by citing the Federal Rule of Civil Procedure, which requires “ashort and plain statement of the claim showing that the pleader is entitled torelief.”[1]In other words, a complaint must contain enough factual background to state aclaim for relief that is prima facie plausible. This plausibilitystandard requires a complaint to provide enough facts to support a plausibleallegation of a defendants’ liability, not simply a possibility. The mostproblematic aspect of the Complaint was that it failed to tie her allegationsto her claims. For example, in Count One, Plaintiff plead “causation in [a]completely conclusory fashion.”[2]The court asserted that “[u]nder the adversary system, it is counsel’sresponsibility to explain why these points have legal merit; the Court does notserve as counsel’s law clerk.”[3]
Additionally,the Death on the High Seas Act (DOHSA) preempted Plaintiff’s state law claims.“DOHSA applies ‘[w]hen the death of an individual is caused by wrongful act,neglect, or default occurring on the high seas beyond 3 nautical miles from theshore of the United States.’”[4]According to the Eleventh Circuit and Florida state courts, “[W]hen a cause ofaction exists for wrongful death under DOHSA, no additional action exists understate law or general maritime law for wrongful death caused by negligence.”[5]The court rejected Plaintiff’s claim that DOHSA did not apply due to Decedent dying on land because the alleged negligencebegan while on the high seas. Consequently, DOHSA applied and preempted Plaintiff’sclaims. All claims based on non-pecuniary damages, Florida law, and/or generalmaritime claims were dismissed.
Thecourt, nevertheless, evaluated Plaintiff’s claims based upon the theories ofnegligence and explained why each claim was deficient and in need of amendment.The court also cautioned Plaintiff to specify what facts supported each elementin her updated complaint.
[1] Fed. R.Civ. P. 8(a)(2).
[2] Nichols v. Carnival Corp., No. 1:19-CV-20836-UU, 2019 U.S.Dist. LEXIS 105153, at *7 (S.D. Fla. Jun. 21, 2019).
[3] Id. at *8 (citing Fed. Ins. Co. v.City of Westchester, 921 F. Supp. 1136, 1138 (S.D.N.Y. 1996).
[4] 46 U.S.C. § 30302.
[5] Nichols, at *11 (citing Ford v. Wooten,681 F.2d 712, 715-16 (11th Cir. 1982).
