The opinion
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case Number: 16-20924-CIV-O’SULLIVAN
DONNA INCARDONE, et al.,
Plaintiffs,
vs.
ROYAL CARIBBEAN CRUISES, LTD.,
Defendant.
_____________________________________/
ORDER ON MOTION FOR RECONSIDERATION
THIS CAUSE came upon the Plaintiffs’ Motion for Reconsideration of Court Order to
Exclude the Bahamas Maritime Authority Report and Testimony. ECF No. 512. Pursuant to
Federal Rule of Civil Procedure 59(e),1 Plaintiffs request the Court reconsider its Order granting
Defendant’s Motion in Limine. ECF Nos. 482, 508. The Court has reviewed the Motion for
Reconsideration, Defendant’s Response in Opposition thereto, ECF No. 513, the pertinent portions
of the record, and is otherwise fully advised in the premises. After careful consideration, Plaintiffs’
Motion is denied.
I. Background
Defendant’s cruise ship, the Anthem of the Seas, encountered a winter storm that produced
hurricane-force winds. After the incident, a maritime investigative report was prepared by the
1 The Court notes that Federal Rule of Civil Procedure 59(e) may be used to alter or amend a
judgment. There is no indication that the Rule contemplates a court’s evidentiary order on a non-
dispositive motion in limine. In fact, “[t]he Federal Rules of Civil Procedure do not mention
motions for reconsideration.” Brogdon ex rel. Cline v. Nat’l Healthcare Corp., 103 F. Supp. 2d
1322, 1338 (S.D. Ga. 2000). Nonetheless, because a motion for reconsideration typically seeks to
invoke a district court’s authority to modify or vacate its prior orders, a similar analysis to that
under Rule 59(e) applies.
Bahamian Maritime Authority (“BMA”). Though Plaintiffs dispute whether the investigation was
jointly conducted by the BMA, the National Transportation Safety Board (“NTSB”), and the
United States Coast Guard (“Coast Guard”), the Court found that the investigation was indeed the
product of a collaborative investigation between the three entities. ECF No. 508 at 3. To prepare
the report, the authorities interviewed Staff Captain Wendy Williams, First Navigation Officer
Kyriakos Spahis, and Captain Claus Anderson. Defendant moved in limine to exclude the
transcripts of these interviews pursuant to 46 U.S.C. § 6308(a). ECF No. 482. The Court granted
the motion, finding that (1) the BMA Report fell within the statute’s purview despite BMA’s lead
role in the investigation, and (2) the interview transcripts are therefore protected. ECF No. 508.
II. Legal Standard
“Courts have distilled three major grounds justifying reconsideration: (1) an intervening
change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear
error or manifest injustice.” Instituto de Prevision Militar v. Lehman Bros., Inc., 485 F. Supp. 2d
1340, 1343 (S.D. Fla. 2007) (internal quotation marks and citation omitted). The reconsideration
decision is granted only in extraordinary circumstances and is “committed to the sound discretion
of the district judge.” Tristar Lodging, Inc. v. Arch Specialty Ins. Co., 434 F. Supp. 2d 1286, 1301
(M.D. Fla. 2006) (quoting Am. Home Assur. Co. v. Glenn Estess & Assocs., Inc., 763 F.2d 1237,
1238–39 (11th Cir. 1985)) (internal quotations omitted) (emphasis added).
III. Discussion
Plaintiffs assert that by granting Defendant’s Motion in Limine and thereby excluding the
interview transcripts, the Court committed “errors of fact and law and should grant reconsideration
to prevent manifest injustice.” ECF No. 512 at 2.
Plaintiffs’ first argument that the Court has misinterpreted Plaintiffs’ position regarding
whether Plaintiffs previously agreed to exclude the BMA Report is a non-starter. The Court
decided the Motion in Limine based on its substance and merely noted—in a procedural context—
the parties’ previous positions on the Report’s admissibility.
As to the Court’s second purported error, Plaintiffs argue that the Court’s finding that the
interviews form the foundation of the BMA Report—and that they are therefore statutorily
protected—amounts to speculation. Plaintiffs further suggest that the Court shifted the burden onto
them as the nonmovants. This is not so. Despite Plaintiffs’ contention that no evidence was
introduced showing that these statements were part of the Report, it is apparent on the face of the
Report that these interviews indeed underlie the Report’s findings.
For example, the very first page of the Report states that “officers of a ship involved in an
accident [are required] to answer an Inspector’s questions fully and truly,” indicating that the
Report is premised upon such questions—i.e., interviews. ECF No. 485-1 at 1.2 This is buttressed
by the Report’s repeated references to Staff Captain Williams. See, e.g., ECF No. 485-1 at 10–12.
Further, and most importantly, by cross-referencing the Report and the testimony contained within
the interview transcripts, it is particularly apparent that the “Narrative of Events” as described in
2 The first page of the Report additionally states: “In accordance with the IMO Casualty
Investigation Code, mandated by the International Convention for the Safety of Life at Sea
(SOLAS) Regulation XI-1/6, investigations have the objective of preventing marine casualties and
marine incidents in the future and do not seek to apportion blame or determine liability.” ECF No.
485-1 at 1. Further, pursuant to such Regulation, the BMA made the Report available “on the strict
understanding that it will not be used as evidence in any legal proceedings anywhere in the world.”
Id. The Court notes that though Plaintiffs contend that Bahamian law mandating the inadmissibility
of the Report is non-binding, the United States is a signatory to SOLAS—further bolstering the
Court’s holding that policy implications support exclusion. See Int’l Maritime Org. [IMO], MSC.
255 (84), Casualty Investigation Code, at 6, 16, 23 (May 16, 2008),
http://www.imo.org/en/OurWork/MSAS/Casualties/Documents/Res.%20MSC.255(84)%20Casu
alty%20Iinvestigation%20Code.pdf.
the Report derives from the statements made during the course of these investigative interviews.3
Plaintiffs likewise suggest that the Court erred in relying on the decision in In re Eternity
Shipping, 444 F. Supp. 2d 347, 363 (D. Md. 2006). The only valid challenge to the Court’s reliance
on that case stems from the fact that in In re Eternity, the transcripts were in fact an attachment to
the report; while, here, it is not apparent whether the interview transcripts served as an exhibit to
the BMA Report. As such, the Court analyzed the issue as if the transcripts were not in fact
attached. With these principles in mind, the Court found—and still finds—that the statute’s intent
and its underlying policy rationale support exclusion.
Plaintiffs stress that the Court “did not give deference” to Judge Torres’s holding in Guest
v. Carnival Corp., 917 F. Supp. 2d 1242, 1246 (S.D. Fla. 2012). The Court, however, simply
distinguished that case from the case at issue—both factually and procedurally. Asking the Court
to re-analyze arguments and caselaw previously raised and otherwise addressed is inadequate to
establish grounds for reconsideration. “It is an improper use of the motion to reconsider to ask the
Court to rethink what the Court already thought through—rightly or wrongly.” Z.K. Marine, Inc.
v. M/V Archigetis, 808 F. Supp. 1561, 1563 (S.D. Fla. 1992) (internal quotations and citation
omitted). Therefore, the Motion is denied.
Accordingly, it is hereby:
3 Similarly, and as previously discussed by the Court, there is sufficient indication throughout the
Report and the interview transcripts to support the Court’s determination that the investigation was
jointly conducted by the BMA, the NTSB, and the Coast Guard. See, e.g., ECF No. 485-2 at 22–
23 (during the course of Mr. Spahis’s interview, Interviewer 4 states, “Mike Carr with the National
Transportation Safety Board. These are some questions that came in from a national transportation
safety board weather specialist.”); ECF No. 485-1 at 13–14. And, again, the Court notes that the
Plaintiffs have repeatedly acknowledged that this investigation was conducted by the three entities.
See ECF No. 266 at 1 (“After the February 6, 2014 voyage the Bahamian Maritime Authorities,
U.S. Coast Guard, and National Transportation Safety Board began an investigation into the cruise
and the incident at issue in this action.”).
ORDERED AND ADJUDGED that:
1. Plaintiffs’ Motion for Reconsideration of Court Order to Exclude the Bahamas
Maritime Authority Report and Testimony, [ECF No. 512], is DENIED.
DONE and ORDERED in Chambers at Mianj, Florida, this 29th day of June, 2020.
J. V SULLIVAN
CHIEF UNITED STATES MAGISTRATE JUDGE
Copies provided to:
All Counsel of Record