Hazelitt v. Royal Caribbean Cruises, Ltd.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 23-cv-21014-BLOOM/Otazo-Reyes

MARIANNE HAZELITT,

Plaintiff,

v.

ROYAL CARIBBEAN CURISES, LTD,

d/b/a ROYAL CARIBBEAN GROUP,

DOLPHIN ENCOUNTERS, LTD., and

XYZ DEFENDANT(S),

Defendants.

________________________________/

ORDER ON MOTION TO DISMISS

THIS CAUSE is before the Court upon Defendant Royal Caribbean Cruises Ltd.’s (“Royal

Caribbean” or “Defendant”) Motion to Dismiss Plaintiff’s Complaint, ECF No. [12] (“Motion”).

Plaintiff Marianne Hazelitt filed a Response in Opposition, ECF No. [17], to which Defendant

filed a Reply, ECF No. [18]. The Court has reviewed the Motion, Response, Reply, the record in

this case, applicable case law, and is otherwise fully advised. For the reasons set forth below the

Motion is granted in part and denied in part.

I. BACKGROUND

On March 13, 2023, Plaintiff initiated the instant case alleging eleven counts against Royal

Caribbean and Co-Defendants Dolphin Encounters Ltd. (“Dolphin Encounters”) and XYZ

Defendant(s) (collectively, “Defendants”). Plaintiff alleges she sustained an injury to her right

knee on March 21, 2022, while disembarking a ferry in order to travel to and access an excursion.

ECF No. [1] ¶¶ 27, 29, 32, 34. Plaintiff alleges that Royal Caribbean is a cruise line operator who

owned, operated, managed, maintained, and/or controlled the Harmony of the Seas cruise ship

aboard which she was a paying passenger. ECF No. [1] ¶ 14, 16. Dolphin Encounters primarily

operated the excursion on which Plaintiff sustained her injury, id. ¶ 28, and the XYZ Defendants

were included in the Complaint “to represent the owner(s) and/or operator(s) of the subject

excursion upon which Plaintiff became injured, insofar as such entity has a different name than

the named Defendants[,]” id. ¶ 4. Plaintiff asserts 11 counts: Count I: Misleading Advertising in

Violation of Florida Statute § 817.41 (all Defendants), Count II: Negligent Misrepresentation (all

Defendants), Count III: Negligent Selection and/or Retention (Royal Caribbean), Count IV:

Negligent Failure to Warn (Royal Caribbean), Count V: General Negligence (Royal Caribbean),

Count VI: Negligent Failure to Warn (Dolphin Encounters and XYZ Defendants), Count VII:

General Negligence (Dolphin Encounters and XYZ Defendants), Count VIII: Negligence Based

on Apparent Agency or Agency by Estoppel (all Defendants), Count IX: Negligence Based on

Joint Venture (all Defendants), Count X: Third-Party Beneficiary (all Defendants), and Count XI:

Breach of Non-Delegable Duty (Royal Caribbean). See generally id.

On May 29, 2023, Royal Caribbean filed the instant Motion seeking dismissal of Plaintiff’s

Complaint, contending that the Complaint “fails to state a cause of action for which relief can be

granted.” ECF No. [12] at 1. Plaintiff responds that the allegations in her Complaint are sufficiently

pled and that the Court should deny the Motion in its entirety. See generally ECF No. [17].

II. LEGAL STANDARD

A. Failure to State a Claim

A pleading 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). Although 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 unadorned, the-defendant-unlawfully-harmed-me accusation”).

Additionally, a complaint may not rest on “‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557, 127 S. Ct. 1955).

“Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly,

550 U.S. at 555, 127 S. Ct. 1955. If the allegations satisfy the elements of the claims asserted, a

defendant’s motion to dismiss must be denied. See id. at 556.

When reviewing a motion to dismiss, a court, as a general rule, must accept the plaintiff’s

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 Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002);

AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F. Supp. 2d 1349, 1353 (S.D. Fla. 2009)

(“On a motion to dismiss, the complaint is construed in the light most favorable to the non-moving

party, and all facts alleged by the non-moving party are accepted as true.”); Iqbal, 556 U.S. at 678.

B. General Maritime Law

In 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)); see also Everett v. Carnival

Cruise Lines, 912 F.2d 1355, 1358 (11th Cir. 1990) (“Because this is a maritime tort, federal

admiralty law should control. Even when the parties allege diversity of citizenship as the basis of

the federal court’s jurisdiction (as they did in this case), if the injury occurred on navigable waters,

federal maritime law governs the substantive issues in the case.”). In the absence of well-developed

maritime law, courts may supplement the maritime law with general common law and state law

principles. See Smolnikar v. Royal Caribbean Cruises, Ltd., 787 F. Supp. 2d 1308, 1315 (S.D. Fla.

2011).

III. DISCUSSION

Defendant moves for dismissal of each count of Plaintiff’s Complaint, asserting that the

claims are either unsupported by sufficient factual pleading or contradicted by extrinsic documents

Plaintiff made central to her Complaint. See generally ECF No. [12]. Plaintiff responds that each

claim is sufficiently pled and that the Court should not consider extrinsic evidence not specifically

attached or made central to each claim in assessing Defendant’s Motion. See generally ECF No.

[17]. The Court addresses the parties’ arguments as they relate to each Count.

C. Counts I and II: Misleading Advertising and Negligent Misrepresentation

Defendant argues that Plaintiff’s claims for misleading advertising and negligent

misrepresentation should be dismissed because the Complaint “is devoid of facts supporting

allegations that the representations [Defendant] made were in any way false.” ECF No. [12] at 3.

Defendant also contends that Plaintiff’s claimed misrepresentation is contradicted by materials

Plaintiff references, including the Passenger Ticket Contract. Id. at 4. Defendant further asserts

that “even if Plaintiff had pled supporting facts, it remains that the majority of the representations

that [Plaintiff] identifies are not actionable under the law.” Id. at 5. Plaintiff responds that “the

Complaint contains a truthful pleading of facts regarding misrepresentations made by [Defendant]”

and the Court should therefore find Plaintiff’s claims for misleading advertising and negligent

misrepresentation are sufficiently pled. ECF No. [17] at 3.

To state a claim for negligent misrepresentation in Florida, a plaintiff must allege:

(1) a misrepresentation of a material fact; (2) that the defendant made the

representation without knowledge as to its truth or falsity, or under circumstances

in which he ought to have known of its falsity; (3) that the defendant intended that

the misrepresentation induce another to act on it; and (4) injury must result to the

party acting in justifiable reliance on the misrepresentation.

Souran v. Travelers Ins. Co., 982 F.2d 1497, 1503 (11th Cir. 1993).

To assert a claim for misleading advertising under § 817.41, Fla. Stat., a plaintiff must

plead that: “(1) the representor made a misrepresentation of a material fact; (2) the representor

knew or should have known of the falsity of the statement; (3) the representor intended that the

representation would induce another to rely and act on it; and (4) the plaintiff suffered injury in

justifiable reliance on the representation.” Colonial Van Lines, Inc. v. Colonial Moving & Storage,

LLC, No. 20-CV-61255, 2020 WL 6700449, at *4 (S.D. Fla. Oct. 20, 2020).

Defendant relies primarily on Zhang v. Royal Caribbean Cruises, Ltd., No. 19-CV-20773,

2019 WL 8895223, at *5-6 (S.D. Fla. Nov. 15, 2019) and contends that Plaintiff’s claim is

inadequately pled. In Zhang, the court dismissed plaintiff’s claims for negligent misrepresentation

and misleading advertising, where the court found that the plaintiff “fails to supply facts showing

that a particular statement was false” and failed to explain how his reliance on the alleged

misrepresentations resulted in his injuries. Id. The Zhang court also found that many of the

misrepresentations alleged were not actionable because general promises of safe, reliable

excursions, are “considered mere puffery and cannot, therefore, support a claim for

misrepresentation.” Id. at 6.

Plaintiff responds, citing Barham v. Royal Caribbean Cruises Ltd., 556 F. Supp. 3d 1318,

1326-27 (S.D. Fla. 2021), appeal dismissed, No. 21-13119-JJ, 2021 WL 6197353 (11th Cir. Nov.

22, 2021). The Barham court declined to dismiss the plaintiff’s claim for negligent

misrepresentation, because (1) the court found that the facts were sufficiently pled because “it was

empirically demonstrable that a volcanic eruption was more likely than usual”; (2) “some of the

alleged misrepresentations here are more specific than general promises of safety”; and (3) where

complaints are met with puffery defenses the motion to dismiss is due to be denied when the

negligent misrepresentation claims are well-pled. Id. at 1326-27.

The allegations in the Complaint are sufficient to plead claims for negligent

misrepresentation and misleading advertising. Unlike Zhang, where the allegations were limited

to general allegations of promises of a safe, reliable excursion, Plaintiff has alleged more than

general promises of safety. See generally ECF No. [1]. Plaintiff also pled factual allegations

incorporated into those counts that the ferry provided was not safe, did not contain sufficiently

staffed crew, and was not equipped with adequate equipment despite representations and

advertisements that the excursion was safe, and Plaintiff would receive adequate transportation,

instruction and/or assistance. Id. ¶¶ 21-25. Plaintiff specifically alleged that the misrepresentations

involved the activity level and proprietary interest in addition to misrepresentations about general

safety, insurance, and jurisdiction. Id. ¶¶ 49, 57. The facts alleged include that Plaintiff embarked

on a ferry, as required to travel to and access the subject excursion, and once again embarked on

the ferry in order to leave. Id. ¶¶ 29, 30. She alleges that to disembark the ferry as required during

low tide she “was instructed and required to cross over an unreasonably long distance between the

ferry and the pier.” Id. ¶ 30. She asserts that during her attempts to disembark, a tour guide on the

ferry pushed her up while a tour guide on the pier pulled her up during which her right knee was

rotated causing her pain. Id. ¶ 31. Plaintiff alleges that she was not given adequate spacing or time,

assistance, equipment, or an alternative means to safely disembark the ferry. Id. ¶ 33.

In Counts I and II, Plaintiff specifically alleges that she relied on Defendant’s

misrepresentations and advertisements and, based on that reliance, she was exposed to dangerous

conditions that caused her injury, physical pain, mental anguish, and other damages. Id. ¶¶ 53, 54,

61, 62. Those allegations support the finding that Plaintiff has adequately pled Counts I and II.

D. Count III: Negligent Selection and/or Retention

Defendant argues that Count III should be dismissed because “Plaintiff’s Complaint fails

to allege sufficient facts regarding the inquiry [Defendant] made concerning [Dolphin Encounters]

prior to contracting with them” and “lacks factual allegations supporting that [Dolphin Encounters]

was unfit or incompetent, let alone that lack of fitness or competence proximately caused

Plaintiff’s alleged injuries.” ECF No. [12] at 6. Plaintiff responds that “Plaintiff specifically and

sufficiently pled facts as to [Dolphin Encounters’] incompetence.” ECF No. [17] at 5. Plaintiff

further contends that she specifically pled that Defendant knew or should have known of Dolphin

Encounters’ incompetence. Id. at 6.

“Though cruise ship owners ... cannot be held vicariously liable for the negligence of an

independent contractor, it is well-established that they may be liable for negligently hiring or

retaining a contractor.” McLaren v. Celebrity Cruises, Inc., No. 11-23924-CIV, 2012 WL

1792632, at *4 (S.D. Fla. May 16, 2012) (quoting Smolnikar, 787 F. Supp. 2d at 1318). Negligent

hiring occurs when, “prior to the time the employee is actually hired, the employer knew or should

have known of the employee’s unfitness, and the issue of liability primarily focuses upon the

adequacy of the employer’s pre-employment investigation into the employee’s background.”

Mumford v. Carnival Corp., 7 F. Supp. 3d 1243, 1249 (S.D. Fla. 2014) (citing Williams v. Feather

Sound, Inc., 386 So. 2d 1238 (Fla. 2d DCA 1980)).

To state a claim for negligent hiring, a plaintiff must allege “(1) that an employee or

independent contractor (like an excursion entity) was incompetent or unfit to perform the work

provided; (2) that Defendant knew [or] reasonably should have known of the particular

incompetence or unfitness; and (3) that the competence or unfitness proximately caused the

injuries.” Kennedy v. Carnival Corp., 385 F. Supp. 3d 1302, 1334 (S.D. Fla. 2019) (citing

Smolnikar, 787 F. Supp. 2d at 1318), report and recommendation adopted, No. 18-CV-20829,

2019 WL 2254962, at *1 (S.D. Fla. Mar. 21, 2019).

In her Complaint, Plaintiff alleged that pursuant to Defendant’s excursion approval

process, “[D]efendant is supposed to verify whether the operator and its agents are qualified,

competent and whether they reasonably deliver safe instructions to tour guests.” ECF No. [1] ¶ 38.

The Complaint further alleges that “[p]art of the approval process also entails [Defendant’s]

representatives inspecting the excursion being proposed, including the transportation and vessels

utilized, equipment, and operations.” Id. On the date of her incident, she was not provided a

reasonably safe excursion or “adequate instruction regarding how to safely disembark the ferry.”

Id. ¶ 66. Defendant and Dolphin Encounters failed to select reasonably safe transportation, to

reasonably warn her of the dangers she would or could experience, failed to employ a reasonable

number of tour guides, and failed to provide her with an alternate means to safely disembark the

ferry. Id. Plaintiff specifically alleges that on the date of her incident, she was not given adequate

spacing or time, assistance, equipment, or an alternative means to safely disembark the ferry. Id. ¶

33.

To support its argument that the allegations are insufficient, Defendant relies on cases from

this district, including Woodley v. Royal Caribbean Cruises, Ltd., 472 F. Supp. 3d 1194 (S.D. Fla.

2020). There, the defendant similarly argued that plaintiffs did not sufficiently plead a claim for

negligent selection and retention. Id. at 1205. The Woodley court agreed, finding that the plaintiffs

“insufficiently alleged facts supporting the second element of both negligent selection and

negligent retention.” Id. That court held that an allegation that the defendant had a team of

employees overseeing contractors and inspecting a contractor’s operations was insufficient to meet

the necessary pleading of the defendant’s knowledge of the contractor’s incompetence or unfitness.

Id. Similarly, in Munday v. Carnival Corp., the court found the allegations were deficient because

they did not allege what the excursion operator’s unreasonably dangerous practices were, or how

the cruise line would know that the operator was unfit. No. 16-CV-24841, 2017 WL 5591640, at

*3 (S.D. Fla. July 18, 2017).

Here, Plaintiff correctly points out that the allegations in ¶ 67 of her Complaint provide

significantly more detail, including that Defendant knew or should have known of the conditions

of Dolphin Encounters’ excursion which caused her injury because of Defendant’s initial approval

process, yearly inspections, and prior incidents. ECF No. [17] at 6 (citing ECF No. [1] ¶ 67).

The Court finds that the allegations are sufficient. In Blow v. Carnival Corp., there were

similar allegations that a cruise line defendant should have acquired notice though the “initial

approval process or its yearly inspections of the subject excursion” where the excursion operator

did “not provide adequate instructions,” and other inadequacies. Those allegations were “more

than sufficient to demonstrate that Carnival knew or reasonably should have known of [the

excursion operator’s] alleged incompetence.” Blow, No. 22-CV-22587, 2023 WL 3686840, at *8

(S.D. Fla. May 26, 2023). The allegations here include nearly identical allegations related to the

initial approval process, inspections, and unfitness of Dolphin Encounters to provide the excursion

safely.

Accordingly, accepting the allegations in the Complaint as true, Plaintiff has sufficiently

pled sufficient facts to support each element of a claim for negligent selection and/or retention.

Count III is not due to be dismissed.

E. Counts IV and V: Negligent Failure to Warn and General Negligence

Next, Defendant contends that Counts IV and V should be dismissed because they “seek

to impose heightened duties of care that [Defendant] did not owe under general maritime law” and

“fail to allege facts showing that [Defendant] knew or should have known of any dangerous

condition that allegedly caused Plaintiff’s injuries.” ECF No. [12] at 8. Plaintiff responds that it

correctly pled Defendant’s duty and that it “specifically alleged the subject excursion was

unreasonably dangerous due to the conditions referenced in paragraph 35 of the Complaint.” ECF

No. [17] at 8-9.

Generally, “[o]nce [a] passenger leaves the ship, a cruise ship operator ‘only owes its

passengers a duty to warn of known dangers in places where passengers are invited or reasonably

expected to visit.’” Thompson v. Carnival Corp., 174 F. Supp. 3d 1327, 1340 (S.D. Fla. 2016).

“Although generally the duty to warn is the most relevant duty regarding off-vessel excursions, a

cruise ship might have additional obligations under the reasonable care standard, if, for example,

there is an agency relationship between the cruise ship and the excursion operator.” Bailey v.

Carnival Corp., 369 F. Supp. 3d 1302, 1310 (S.D. Fla. 2019) (internal quotation marks and citation

omitted). “The duty to warn of known dangers beyond the ship is, in fact, a subset of the general

duty a of reasonable care that a shipowner owes to its passengers.” Blow, 2023 WL 3686840, at

*8.

In Count IV, Plaintiff alleges that Defendant breached its duty to warn by: (a) failing to

adequately warn of dangers associated with participating in the excursion, (b) not providing

adequate instructions, (c) not warning that she would not have adequate or safe transportation, (d)

not warning that she would not be given alternate means of transportation when required to

embark/disembark in light of the weather and sea conditions, (e) not warning that she would not

be provided with adequate assistance during the subject excursion, and (f) not being warned that

Dolphin Encounters did not employ a reasonable number of tour guides. ECF No. [1] ¶ 72. Count

V similarly pleads the following unsafe conditions about which Plaintiff asserts Defendant

breached its duty to provide reasonable care under the circumstances: (a) failure to provide a

reasonably safe excursion, (b) failure to actively monitor embarkation and disembarkation, (c)

failure to provide adequate instruction about safely disembarking the ferry, (d) failure to provide

transportation equipped to handle embarkation and disembarkation, (e) failure to provide

transportation with suitable equipment, (f) failure to position the ferry to allow for safe

disembarkation, (g) requiring Plaintiff to transverse unreasonably long distance between uneven

surfaces, (h) failure to provide adequate and safe transportation, (i) failure to assess weather and

sea conditions, (j) failure to warn of dangers, (k) failure to provide adequate staff, and (l) failure

to provide trained or qualified staff. Id. ¶ 76.

As in Blow, considering the allegations pled by Plaintiff, the Court “cannot and will not

say at this stage that the Plaintiffs’ allegations are insufficient to support their negligence claims,

that Carnival did not owe any duty other than the duty to warn, or that Carnival did not even owe

a duty to warn.” Blow, 2023 WL 3686840, at *9. The Court is therefore left with Defendant’s

alternative argument that “Plaintiff fails to allege that Plaintiff knew of or should have known

about any specific dangerous condition that caused Plaintiff’s alleged incident.” ECF No. [12] at

10.

As the Court explained above, Plaintiff’s allegations in ¶ 38 of the Complaint, which were

incorporated by reference into both Count IV and Count V, sufficiently sets forth the basis for

Defendant’s knowledge. The instant case is distinguishable from those cases cited by Defendant

in which courts in this district found that the plaintiffs failed to provide factual support or explain

how cruise line operators’ inspections could have alerted them to the dangerous conditions. ECF

No. [12] at 11 (citing Thompson v. Carnival Corp., 174 F. Supp. 3d 1327, 1341 (S.D. Fla. 2016);

Hoard v. Carnival Corp., No. 14-CV-23660, 2015 WL 1954055, at *2 (S.D. Fla. Apr. 17, 2015)).

Here, Plaintiff specifically alleges that:

Part of the approval process also entails [Defendant’s] representatives inspecting

the excursion being proposed, including the transportation and vessels utilized,

equipment, and operations. Accordingly, taking the subject excursion under similar

conditions that Plaintiff experienced did or should have revealed the [Dolphin

Encounters’] insufficient and/or inadequate policies and procedures, transportation,

assistance, equipment, instruction, and/or supervision involving the excursion, as

well as their inexperienced and untrained employees that were unable and did not

give Plaintiff adequate disembarkation assistance, instructions, or alternate means

to disembark the ferry.

ECF No. [1] ¶ 38.

Plaintiff has alleged that the initial approval and continued inspections of Dolphin

Encounters by Defendant were sufficient for Defendant to have knowledge of the unsafe

conditions about which Plaintiff claims she should have been warned and for which she claims

Defendant was negligent. The Court therefore finds that Counts IV and V are adequately pled and

do not warrant dismissal.

F. Count VIII: Negligence Based on Apparent Agency or Agency by Estoppel

Defendant argues that Plaintiff’s claim for vicarious liability should be dismissed because

Plaintiff’s underlying negligence claim is deficient, and Plaintiff’s theory of apparent agency fails

because it is contradicted by materials referenced in the Complaint. ECF No. [12] at 12-13.

Plaintiff responds that Count VIII sufficiently alleges that Defendant is vicariously liable for

Dolphin Encounters’ negligence because Dolphin Encounters was an agent of Defendant. ECF No.

[17] at 10.

“[A]bsent any statutory mandate to the contrary, the existence of an agency relationship is

a question of fact under the general maritime law.” Franza v. Royal Caribbean Cruises, Ltd., 772

F.3d 1225, 1235-36 (11th Cir. 2014). “Under federal maritime law, a defendant can be held

vicariously liable through the doctrine of apparent agency.” Twyman v. Carnival Corp., 410 F.

Supp. 3d 1311, 1323 (S.D. Fla. 2019). “Apparent agency will be established when: 1) the alleged

principal makes some sort of manifestation causing a third party to believe that the alleged agent

had authority to act for the benefit of the principal, 2) that such belief was reasonable and 3) that

the claimant reasonably acted on such belief to his detriment.” Doonan v. Carnival Corp., 404 F.

Supp. 2d 1367, 1371 (S.D. Fla. 2005). “In Florida, agency by estoppel is nearly the same as

apparent agency. The Eleventh Circuit does not even consider the two separately.” Belik v. Carlson

Travel Group, Inc., 864 F. Supp. 2d 1302 (S.D. Fla. 2011).

The Court has already determined that Plaintiff’s underlying negligence claim does not

warrant dismissal. As such, it considers only the theory that the vicarious liability claim fails

because it is contradicted by materials central to the Complaint. Defendant specifically argues that

“Plaintiff’s contention she unaware [sic] that the excursion was not operated by [Defendant] is

contradicted by the very materials she references in the Complaint, which unequivocally establish

that all excursions were operated by independent contractors.” ECF No. [12] at 13. Defendant

argues that the contradiction makes Plaintiff’s allegations unreasonable as a matter of law. In

support of the proposition that where a ticket contract categorizes an entity as an independent

contractor, a belief that an agency relationship exists is unreasonable as a matter of law, Defendant

cites Wajnstat v. Oceania Cruises, Inc., No. 09-CV-21850, 2011 WL 465340, at *4 (S.D. Fla. Feb.

4, 2011). However, that decision was abrogated by the Eleventh Circuit in Franza. See Franza,

772 F.3d at 1235-37. There the Eleventh Circuit declined to consider the passenger ticket contract

at the early stage of the proceedings and reversed the district court’s dismissal of an apparent

agency claim, finding that the plaintiff “plausibly alleged all of the elements of apparent agency.”

Id. at 1237-38, 1249, 1253.

However, unlike in Franza, the excursion ticket contract here is central to Plaintiff’s

Complaint. See id. at 1237-38 (finding the ticket contract was not attached to the complaint or

mentioned in the complaint); ECF No. [1] ¶¶ 20-24. Although not attached to the Complaint, the

excursion ticket contract is mentioned multiple times in Plaintiff’s Complaint, and she says

specifically that she was provided with the excursion tickets and materials. ECF No. [1] ¶ 24.

Nevertheless, this Court is still bound by the Eleventh Circuit’s decision in Franza that

instructs the district court not to consider the ticket contract at the motion to dismiss stage because

“even if we were to look to the contract at this stage, we would not consider the nurse and doctor

to be independent contractors simply because that is what the cruise line calls them.” Franza at

1238. The Court is not persuaded by Defendant’s argument that Plaintiff’s reliance on Franza is

misplaced because there is no ambiguity within the documents. ECF No. [18] at 8.

Here, Plaintiff has sufficiently alleged the facts that created the ambiguity and states a claim

for apparent agency. See ECF No. [1] ¶¶ 90-97. The allegations in Count VIII include that

Defendant made manifestations which caused Plaintiff to believe an agency relationship existed

including: allowing its name to be utilized in connection with advertising the excursion, arranging

for the subject excursion, marketing the subject excursion using Defendant’s company logo,

collecting the fee for and issuing the receipt for the excursion, and recommending Plaintiff not

engage in excursions, tours, or activities, not sold through Defendant. Id. ¶ 92. The Complaint

further explains that Plaintiff reasonably believed an agency relationship between Defendant and

co-Defendants Dolphin Encounters and XYZ Defendants existed because “Plaintiff booked, paid

for and made all necessary arrangements for the subject excursion with [Defendant].” Id. ¶ 94.

Recent case law from this district cited by Plaintiff further supports the sufficiency of the

allegations. See e.g., Heller v. Carnival Corp., 191 F. Supp. 3d 1352, 1362 (S.D. Fla. 2016); Brown

v. Carnival Corp., 215 F. Supp. 3d 1312, 1318 (S.D. Fla. 2016).

Given the sufficiency of the allegations in Count VIII of the Complaint, the Court declines

to dismiss Count VIII.

G. Count IX: Negligence Based on Joint Venture

Defendant argues that because the underlying negligence claim fails, so should Count IX

and, “even assuming arguendo that the negligence claim was sufficiently pled, the joint venture

claim still fails as a matter of law.” ECF No. [12] at 14. Plaintiff responds that the Court should

not consider the Tour Operator Agreement (“TOA”) between Defendant and Dolphin Encounters

on which Defendant relies and that “[a]t a minimum, these provisions create a question of fact as

to whether or not the parties conduct formed a joint venture.” ECF No. [17] at 16-17.

To assert a joint venture theory of negligence liability, a plaintiff must allege the following

elements: “(1) a community of interest in the performance of a common purpose; (2) joint control

or right of control; (3) a joint proprietary interest in the subject matter; (4) a right to share in the

profits; and (5) a duty to share in any losses which may be sustained.” Fojtasek v. NCL (Bahamas)

Ltd., 613 F.Supp.2d 1351, 1357 (S.D.Fla.2009).

The Court previously found the underlying negligence claim sufficiently pled, and

therefore only addresses Defendant’s argument that the joint venture claim fails as a matter of law.

Defendant specifically argues that the “Complaint contains mere recitals of the elements of joint

venture with no supporting factual basis” and that the TOA directly contradicts Plaintiff’s

allegation that the parties intended to create a joint venture. ECF No. [12] at 15.

Plaintiff responds that she did not “reference or rely on the TOA, and as such, the Court

should not consider it.” ECF No. [17] at 16. However, while not specifically referenced as the

TOA, Plaintiff alleges that Defendant and co-Defendants Dolphin Encounters and XYZ

Defendant(s) “entered into an agreement where [Defendant] would sell the subject excursion to its

passengers and [Dolphin Encounters] and XYZ DEFENDANT(S) would operate the subject

excursions.” ECF No. [1] ¶ 99. The Court therefore rejects Plaintiff’s contention that she did not

reference the TOA and finds that it is appropriate to consider in resolving that portion of the

Motion. See Brooks v. Blue Cross & Blue Shield of Florida, Inc., 116 F.3d 1364, 1369 (11th Cir.

1997) (“[W]here the plaintiff refers to certain documents in the complaint and those documents

are central to the plaintiff's claim, then the Court may consider the documents part of the pleadings

for purposes of Rule 12(b)(6) dismissal, and the defendant's attaching such documents to the

motion to dismiss will not require conversion of the motion into a motion for summary

judgment.”).

The terms of the TOA explicitly state that “[n]othing related in this agreement shall be

construed as constituting Operator and Cruise Line as partners, or as treating the relationship of

employer and employee, franchisor and franchisee, master and servant or principal and agent or

joint venture between the Parties hereto.” ECF No. [12-4] § 10. Defendant cites multiple cases

from this district where courts dismissed similar claims after examining similar language in the

relevant tour operator agreements. See ECF No. [12] at 15-16. In the first, Zapata v. Royal

Caribbean Cruises, Ltd., the court concluded that “[t]he unambiguous language of the Tour

Operator Agreement directly contradicts Plaintiff’s allegations and warrants the dismissal of

Plaintiff’s joint venture claim.” No. 12-CV-21897, 2013 WL 1296298, at *6 (S.D. Fla. Mar. 27,

2013). That court dismissed the joint venture claim with prejudice. Id. In Doria v. Royal Caribbean

Cruises, Ltd., another court dismissed with prejudice a claim for negligence based on joint venture

against the same Defendant where the TOA included an identical provision to the one Defendant

points to as dispositive in this case. No. 19-CV-20179-KMW, 2019 WL 13151601, at *5-6 (S.D.

Fla. June 20, 2019).

Plaintiff responds by citing an Eleventh Circuit decision in which the court noted that

regardless of self-serving testimony, the conduct of the parties is the decisive evidence of whether

parties created a joint venture. Fulcher’s Point Pride Seafood, Inc. v. M/V Theodora Maria, 935

F.2d 208, 213 (11th Cir. 1991). Plaintiff also cites to Slater v. Energy Services Group Intern., Inc.,

in which the Eleventh Circuit held that “[t]he court must look at the contract as a whole, the parties,

and the purpose of the agreement to best determine the intent of the parties in interpreting the

agreement.” 634 F.3d 1326, 1330 (11th Cir. 2011).

Although certainly noteworthy in establishing principles of contract interpretation,

Plaintiff’s cited authority does not directly challenge or present a case for disregarding the recent

decisions from this circuit cited by Defendant. The language in the TOA explicitly contradicts the

allegations in Count IX rendering Plaintiff’s alleged belief that Defendant and Dolphin Encounters

and XYZ Defendants were engaged in a joint venture totally in conflict with a material on which

she was given. Because Plaintiff has not distinguished this case from those in this district which

found substantially similar claims subject to dismissal under substantially similar circumstances,

the Court finds that Count IX must be dismissed with prejudice.

H. Count X: Third-Party Beneficiary

Defendant asserts that Count X should be dismissed with prejudice because of the

disclaimer language in the TOA. ECF No. [12] at 16-17. Plaintiff responds that the allegations are

sufficient at this stage because the allegations make clear that Defendant and Dolphin Encounters

entered into a contract for the benefit of Defendant’s passengers, including Plaintiff. ECF No. [17]

at 18-19.

“To plead a breach of a third-party beneficiary contract, Plaintiff must allege (1) the

existence of a contract to which Plaintiff is not a party; (2) an intent, either expressed by the parties,

or in the provisions of the contract, that the contract primarily and directly benefit Plaintiff; (3)

breach of that contract by one of the parties; and (4) damages to Plaintiff resulting from the

breach.” Aronson v. Celebrity Cruises, Inc., 30 F. Supp. 3d 1379, 1398 (S.D. Fla. 2014).

Defendant relies on language from the TOA to support its position. Specifically, Defendant

points to the portion of the TOA that reads “[o]ther than as expressly set forth herein, this

Agreement shall not be deemed to provide third parties with any remedy, claim, right or action or

other right.” ECF NO. [12] at 17 (quoting ECF No. [12-4] at ¶ 12.11). Defendant cites multiple

cases from this district in which cases were dismissed with prejudice because of substantially

similar disclaimers. Id. First, in Doria, the court found “that the TOA expressly disclaims any

intent for the contract to benefit [plaintiff]” and therefore dismissed the plaintiff’s third-party

beneficiary claim with prejudice. 2019 WL 13151601, at *7. Second, Defendant cites Gayou v.

Celebrity Cruises, Inc., in which the Court found that “[n]ot only does the contract expressly

disclaim any intent to provide third parties with “any remedy, claim, right or action or other right,”

but the Court is also unable to find any provision of the contract from which to infer any intent to

directly benefit Gayou, as a cruise ship passenger.” No. 11-CV-23359, 2012 WL 2049431, at *11

(S.D. Fla. June 5, 2012); see also Zapata v. Royal Caribbean Cruises, Ltd., No. 12-CV-21897,

2013 WL 1296298, at *6 (S.D. Fla. Mar. 27, 2013) (dismissing third-party beneficiary claim with

prejudice because the agreement “expressly disclaims any intent to benefit Plaintiff.”).

Plaintiff responds, asserting that in addition to the disclaimer, the TOA also provides

language including multiple arrangements to be made on Defendants’ Passengers’ behalf. ECF

No. [17] at 18 (citing ECF No. [12-4]). Plaintiff argues that in light of those paragraphs it is

“abundantly clear from the contractual language” that the contract’s purpose was to confer “a

benefit on the third party, the Plaintiff.” Id. at 19.

Defendant offers additional authority and argument, relying on Zhang, where the Court

found that “allegations that a contract requires excursion operators to maintain insurance and

exercise reasonable care, ‘fail to satisfy the pleading requirements because they do not clearly and

specifically express a [d]efendant[’s] intent to primarily and directly benefit a [p]laintiff[ ].’”

Zhang, 2019 WL 8895223, at *7 (quoting Finkelstein v. Carnival Corp., No. 14-CV-24005-UU,

2015 WL 12765434, at *4 (S.D. Fla. Jan. 20, 2015) (alterations in original)). Here too, Plaintiff’s

Complaint does not clearly and specifically allege Defendant’s intent to benefit Plaintiff primarily

and directly. See ECF No. [1]. The allegations therefore fail to satisfy the pleading requirements.

Plaintiff does not address Defendant’s citation to that authority. In light of the cases cited, the

specific disclaimer, and the deficiency in the allegations, dismissal of Count X is warranted.

I. Count XI: Breach of Non-Delegable Duty

Finally, Defendant argues that Count XI should be dismissed because Plaintiff’s contention

that Defendant owed a non-delegable contractual duty to provide a reasonably safe excursion “is

not supported by the law.” ECF No. [12] at 18. Plaintiff responds that her claim for breach of a

non-delegable duty is properly pled. ECF No. [17] at 19.

Defendant specifically argues that the allegations in the Complaint are insufficient to

support a claim that it undertook heightened duties of care. Defendant contends that because

Plaintiff “failed to sufficiently plead the existence of any express provision(s) in the shore

excursion ticket that [Defendant] purportedly breached, Plaintiff’s claim fails as a matter of law.”

ECF No. [12] at 19. Defendant cites multiple cases in which courts in this circuit have held that

contract claims cannot be implied and must arise explicitly. See Gentry v. Carnival Corp., No. 11-

21580-CIV, 2011 WL 4737062, at *9 (S.D. Fla. Oct. 5, 2011) (finding that the complaint’s lack

of allegations of contractual obligations weighed in favor of dismissing a breach of contract claim);

Isberner v. Celebrity Cruises, Inc., No. 06-60447 CIV, at *3-4 2006 WL 4005569 (S.D. Fla. Dec.

21, 2006) (dismissing contract claim with prejudice where the contract at issue “does not contain,

nor does Plaintiff actually allege the existence of, an express provision guaranteeing safe passage

on the excursion”); Doonan v. Carnival Corp., 404 F. Supp. 2d 1367, 1373 (S.D. Fla. 2005)

(dismissing breach of contract claim because the plaintiff did “not allege the existence of a express

provision guaranteeing safe passage” but “argued an implied contract was created”). Here, as in

the cases cited by Defendant, Plaintiff did not allege that the shore excursion ticket contained a

provision guaranteeing a safe excursion. See ECF No. [1]. There is also no such provision on the

shore excursion ticket itself. See ECF No. [12-3].

Plaintiff cites to Bailey, where the court held that the plaintiff sufficiently alleged

defendant’s breach of a contractually established non-delegable duty. 369 F. Supp. 3d 1302, 1309.

There the court reasoned that because the plaintiff alleged the existence of a contractually created

duty, the claim was sufficiently pled “to proceed past the motion to dismiss stage.” Id. Plaintiff

also cites to Witover v. Celebrity Cruises, Inc., where another court in this district similarly ruled

against a cruise line’s motion to dismiss a non-delegable duty claim. 161 F. Supp. 3d 1139, 1145-

46 (S.D. Fla. 2016). In that case the court found that “Plaintiff not only entered into a contract for

the sale of a shore excursion, but also purportedly contracted with Celebrity for a handicapped-

accessible shore excursion.” Id. at 1146. The court found the allegations that the “contract was

orally modified to include a guarantee that the excursion was handicapped accessible are sufficient

to survive a motion to dismiss.” Id.

Defendant points out that both cases cited by Plaintiff are distinguishable because each

involved oral modifications of the excursion ticket contract; here, Plaintiff has not alleged any oral

modification. ECF No. [12] at 19; see ECF No. [1]. Another court in this district did find Bailey

and Witover distinguishable from general allegations of breach of a non-delegable duty where no

oral modification was alleged. See Singh v. Royal Caribbean Cruises Ltd., 576 F. Supp. 3d 1166,

1191 (S.D. Fla. 2021). The Singh court held that because “Plaintiff does not allege that RCL made

specific representations like the ones in Bailey and Witover, so as to orally modify the excursion

contract” or that the plaintiff had communicated any special needs to the cruise line and received

reassurances that the excursion would be safe given the particular circumstances, the case was

distinguishable. Id. The Singh court dismissed the non-delegable duty claim without prejudice. In

Barham v. Royal Caribbean Cruises Ltd., another court in this district drew the same distinction

as the Singh court and dismissed a plaintiff’s claim for breach of a non-delegable duty. 556 F.

Supp. 3d 1318, 1332 (S.D. Fla. 2021), appeal dismissed, No. 21-13119-JJ, 2021 WL 6197353

(11th Cir. Nov. 22, 2021)

Because Plaintiff does not allege that there was an explicit contractual provision providing

for a safe excursion and does not assert that she orally modified the excursion contract or received

any specific assurances as to special needs communicated by her to Defendant, the Court finds that

dismissal of Count XI is warranted.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Defendant’s Motion, ECF No. [12], is GRANTED IN PART and DENIED IN

PART consistent with this Order.

2. Counts IX, X and XI of Plaintiff’s Complaint, ECF No. [1], are DISMISSED.

3. Defendant shall file an Answer to the remaining Counts in Plaintiff’s Complaint by

August 7, 2023.

Case No. 23-cv-21014-BLOOM/Otazo-Reyes

DONE AND ORDERED in Chambers at Miami, Florida, on July 26, 2023.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

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Counsel of Record

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