Smith Duggan Prevails in Federal Court for Major Cruise Line
Smith Duggan Buell & Rufo partners Rodney E. Gould and Robert C. Mueller recently secured an impressive order granting summary judgment on behalf of their client in this matter, an international cruise ship operator, in Verna v. Silver Sea Cruises et al., 13-23051 (S.D. FL.). Of great professional satisfaction to the lawyers was the fact that the judge’s decision cited the same cases and raised the exact points argued in the brief by Messrs. Gould and Mueller.
During her trip from Copenhagen, Denmark to the Northern European country of Estonia, the plaintiff embarked on an optional excursion on a motor coach from the Port of Tallinn to Mere Boulevard. During this onshore excursion, the bus driver backed into a utility pole that was torn from its base, striking the plaintiff’s head. The bus for this trip was owned and operated by the largest motor coach operator in the country. The tour itself was operated by Tumlare, Inc., a tour operator which services other major cruise lines as well.
The plaintiff filed suit in the U.S. District Court for the Southern District of Florida, alleging a five-count complaint against the defendants that included claims for negligence, apparent agency, joint venture, and negligent misrepresentation. The case was decided by U.S. District Judge Jose E. Martinez.
Generally, cruise lines and tour operators are not liable for the negligent actions of third parties and cannot be held responsible for the negligent acts of third parties. The Court noted that the complaint was devoid of any non-conclusory factual allegation that the bus was either controlled or operated by either of the defendants or that the bus driver was an employee, agent, or apparent agent of the defendants.
The Court found that the cruise line’s waivers of liability, which were clearly and repeatedly noted in bold and capital letters throughout its documents, were reasonably communicated to the passengers. Then, the Court held that the cruise line had no actual or constructive knowledge of any open or obvious dangers where passengers would reasonably be expected to visit. Moreover, the cruise line demonstrated that it never owned, operated, managed, supervised, or controlled the motor coach operator, its equipment, or staff. Additionally, the Court found that there was no evidence that the motor coach operator had the actual or apparent authority to act on behalf of the cruise line or the tour operator.
The Court also held that specific language in the promotional materials did not support her claim of negligent misrepresentation. Representations that the cruise line subjected tour operators to a “stringent screening process”; to insure they are “safe, reputable and insured”; that the cruise line’s “expert advice” should be trusted; and that passengers “are in good hands” were not misleading. In fact, the Court found that the cruise line hired the tour operator after “careful analysis” and was unaware of any incidents occurring during the previous four years. Moreover, the Court concluded that merely representing “safe” is not actionable.
As a result, the defendant’s motion for summary judgment on all counts was granted. The dismissal of this action saved the cruise line the time, energy, and resources necessary to conduct additional pre-trial motions, discovery, and possibly a trial in the federal court with fact witnesses from outside the United States.
Rodney Gould has handled numerous litigations in federal and state courts throughout the country. He is an international authority on travel and tour operator law and co-authored the leading text on the subject, “Litigating International Torts in U.S. Courts.” Robert Mueller has an extensive civil and commercial litigation practice with a concentration in travel and recreation law.
In this case, the tour operator was Rodney Gould’s longtime client. Because of an indemnification agreement between Tumlare and the cruise line, he represented the cruise line in this action as well. The judge’s decision cited the same cases and raised the exact points mentioned in the brief by Rodney Gould and Robert Mueller.
August 29, 2018
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