Petition for Writ of Certiorari — Cynthia Davis, et al., Petitioners v. Valsamis, Inc.

Supreme Court briefJan 30, 2019

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App. 1

2018 WL 4182116

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United States Court of Appeals, Eleventh Circuit.

Cynthia DAVIS, Leslie Mayberry,

Diane Tucker, Ana Santa Ana, Carmel Taylor,

et al., Plaintiffs-Appellants,

VALSAMIS, INC., Defendant-Appellee.

No. 16-17081

Non-Argument Calendar

(August 30, 2018)

Attorneys and Law Firms

Francis I. Spagnoletti, Marcus R. Spagnoletti,

Spagnoletti & Co., Houston, TX, Jerry C. von Sternberg, Godwin Lewis, PC, Houston, TX, for PlaintiffsAppellants

Harold Kemler Watson, Chaffe McCall, LLP, Houston,

TX, David N. Gambach, Evan Seth Gutwein, Hamilton

Miller & Birthisel, LLP, Miami, FL, for DefendantAppellee

App. 2

Appeal from the United States District Court for the

Southern District of Florida, D.C. Docket No. 1:16-cv20517-JAL

Before WILSON, HULL, and JULIE CARNES, Circuit

Judges.

Opinion

PER CURIAM.

In this maritime tort action, Plaintiffs, a group of

more than 100 former co-passengers on an ill-fated

sailing of the cruise ship Carnival Triumph, appeal the

district court’s grant of Defendant Valsamis, Inc.’s motion for summary judgment. The district court held

that Plaintiffs’ failure to notify Defendant of their personal injury claims within 185 days, as required by a

notice provision in their ticket contract, barred Plaintiffs’ claims that Defendant’s negligence caused a fire,

resulting in harm to Plaintiffs. After careful review, we

affirm.

BACKGROUND

A. Factual Background

The Ill-Fated Sailing of the Carnival Triumph

On February 7, 2013, Plaintiffs embarked on a

cruise aboard the Carnival Triumph, a ship owned by

Carnival Cruise Lines (“Carnival”). Carnival hired Defendant to maintain the ship’s engines and generators.

App. 3

During Plaintiffs’ voyage, a fire in the ship’s engine room disabled the ship, stranding its passengers

and crew in the Gulf of Mexico. The fire caused a power

outage. The power outage prevented toilets, refrigerators, air conditioners, and other electrical systems from

working. The failure of those electrical systems caused

living conditions aboard the ship to deteriorate. The

unsatisfactory living conditions caused passengers discomfort and distress.

The Carnival Ticket Contract

Each Carnival Triumph passenger is bound by a

Carnival ticket contract. Carnival’s ticket contract contains provisions limiting passenger rights to assert

claims arising from injuries sustained as a Carnival

guest. The ticket contract alerts passengers of those restrictions on the first page in bold, capital letters:

IMPORTANT NOTICE TO GUESTS THIS

DOCUMENT IS A LEGALLY BINDING

CONTRACT ISSUED BY CARNIVAL

CRUISE LINES TO, AND ACCEPTED BY,

GUEST SUBJECT TO THE IMPORTANT

TERMS AND CONDITIONS APPEARING

BELOW.

NOTICE: THE ATTENTION OF GUESTS

IS ESPECIALLY DIRECTED TO CLAUSES

1, 4 AND 10 THROUGH 13, WHICH CONTAIN IMPORTANT LIMITATIONS ON

THE RIGHTS OF GUESTS TO ASSERT

CLAIMS AGAINST CARNIVAL CRUISE

LINES, THE VESSEL, THEIR AGENTS

App. 4

AND EMPLOYEES, AND OTHERS, INCLUDING FORUM SELECTION, ARBITRATION AND WAIVER OF JURY TRIAL

FOR CERTAIN CLAIMS.

One such limitation on the rights of guests to assert claims against Carnival is a requirement to give

timely notice of their personal injury claims. As stated

in Clause 12(a):

Carnival shall not be liable for any claims

whatsoever for personal injury, illness or

death of the guest, unless full particulars in

writing are given to Carnival within 185 days

after the date of the injury, event illness or

death giving rise to the claim. Suit to recover

on any such claim shall not be maintainable

unless filed within one year after the date of

the injury, event, illness or death, and unless

served on Carnival within 120 days after filing. Guest expressly waives all other potentially applicable state or federal limitations

periods.

Clause 1(f ) is a “Himalaya” Clause1 that extends Carnival’s rights, like the 185-day notice requirement of

Clause 12(a), to certain other potential defendants:

All rights, exemptions from liability, defenses and immunities of Carnival under this

contract shall also inure to the benefit of Carnival’s facilities, whether at sea or ashore,

Himalaya Clauses extend liability limitations to downstream parties and take their name from an English case involving a steamship called Himalaya. Norfolk S. Ry. Co. v. Kirby, 543

U.S. 14, 20 n.2, 125 S. Ct. 385, 160 L.Ed. 283 (2004).

App. 5

servants, agents, managers, affiliated or related companies, suppliers, shipbuilders and

manufacturers of component parts and independent contractors, including, but not limited to, shore excursion or tour operations,

ship’s physician, ship’s nurse, retail shop personnel, health and beauty staff, fitness staff,

video diary staff, and other concessionaires,

who shall have no liability to the Guest, either

in contract or in tort, which is greater than or

different from that of Carnival.

B. Procedural History

On July 24, 2013, within the 185-day notice period

of Clause 12(a), 31 passengers notified Carnival of

their personal injury claims arising from their experience aboard the Carnival Triumph. None of the current

Plaintiffs notified Defendant of their claim at that

time.

Having failed to provide the required advance notice, Plaintiffs filed suit against Defendant on February 9, 2014, nearly one year after their return to port

aboard the Carnival Triumph.2 Plaintiffs allege that

Defendant: (1) negligently maintained the ship’s engines and generators; and (2) negligently designed,

manufactured and/or constructed insulation panels,

Plaintiffs filed suit in the United States District Court for

the Southern District of Texas. The court transferred the case to

the United States District Court for the Southern District of Florida on Defendant’s motion to enforce the forum-selection clause

in the ticket contract.

App. 6

fuel pipe covers, T-shaped structures, and other apparatuses installed on the diesel generators to reduce the

temperature of existing hot spots on the ship’s engines.

Plaintiffs claim that Defendant’s negligence caused

the fire which disabled the ship and left them stranded

at sea for days in undesirable conditions, causing them

physical and emotional injuries.

Defendant moved for summary judgment, asserting that Clause 12(a) of the ticket contract barred

Plaintiffs’ claims because they failed to notify Defendant of their claims within the required 185 days. The

court found that Defendant qualified as a “manufacturer of component parts” or an “independent contractor” within the meaning of the Himalaya Clause and

was, therefore, entitled to receive notice of Plaintiffs’

claims as specified in Clause 12(a). The court further

found that: (1) Plaintiffs did not provide the required

notice to Defendant; (2) notice to Carnival was insufficient under Clause 12(a) as properly interpreted; and

(3) 46 U.S.C. § 30508 did not excuse their failure to provide notice because Plaintiffs produced no evidence

that Defendant knew of their claims or was not prejudiced by their failure to give notice within 185 days.

The court granted summary judgment for Defendant,

holding that Plaintiffs’ claims are barred by Clause 12

of the ticket contract.

Plaintiffs appeal, arguing that they satisfied their

contractual obligations by providing notice of their

claims to Carnival and that 46 U.S.C. § 30508 excuses

any failure to provide sufficient notice.

App. 7

II.

DISCUSSION

A. Standard of Review

This Court reviews a district court’s grant of summary judgment de novo, applying the same legal

standards as the district court. Chapman v. AI Transp.,

229 F.3d 1012, 1023 (11th Cir. 2000) (en banc). A grant

of summary judgment is appropriate “if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). In making this determination, we view all evidence and make all reasonable inferences in favor of the non-moving party.

Chapman, 229 F.3d at 1023.

“[C]ontract interpretation is generally a question

of law.” Underwriters at Lloyds Subscribing to Cover

Note B0753PC1308275000 v. Expeditors Korea Ltd.,

882 F.3d 1033, 1039 (11th Cir. 2018) (quoting Lawyers

Title Ins. Corp. v. JDC (Am.) Corp., 52 F.3d 1575, 1580

(11th Cir. 1995)). “The question of whether a contract

is ambiguous is a question of law that we review de

novo.” Id. (citing Carneiro Da Cunha v. Standard Fire

Ins. Co./Aetna Flood Ins. Program, 129 F.3d 581, 584–

85 (11th Cir. 1997)).

B. Federal Maritime Law: Rules of Contract

Interpretation

Plaintiffs’ ticket constitutes a maritime contract

because its primary objective is to accomplish the

transportation of passengers by sea. Norfolk S. Ry., 543

U.S. at 24, 125 S. Ct. 385. “Drawn from state and

App. 8

federal sources, the general maritime law is an amalgam of traditional common-law rules, modifications of

those rules, and newly created rules.” E. River S.S.

Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864–

65, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986) (citations

omitted). “When a contract is a maritime one, and the

dispute is not inherently local, federal law controls the

contract interpretation.” Norfolk S. Ry., 543 U.S. at 22–

23, 125 S.Ct. 385; Carnival Cruise Lines, Inc. v. Shute,

499 U.S. 585, 590, 111 S.Ct. 1522, 113 L.Ed.2d 622

(1991) (enforceability of forum-selection clause in

cruise ticket presented a case in admiralty governed by

federal law). “Specifically, our interpretation of maritime contracts sounds in federal common law, so we

look to the general common law of contracts.” Internaves de Mexico s.a. de C.V. v. Andromeda Steamship

Corp., 898 F.3d 1087, 1093 (11th Cir. 2018).

Maritime contracts “must be construed like any

other contracts: by their terms and consistent with the

intent of the parties.” Norfolk S. Ry. Co., 543 U.S. at 31,

125 S.Ct. 385. Under general principles of contract interpretation, “[t]he plain meaning of a contract’s language governs its interpretation.” In re FFS Data, Inc.,

776 F.3d 1299, 1305 (11th Cir. 2015) (internal quotation marks omitted). “[A] document should be read to

give effect to all its provisions and to render them consistent with each other.” Id. (internal quotation marks

omitted) (citing Restatement (Second) of Contracts

§ 203(a) (Am. Law. Inst. 1981)). “The elementary canon

of interpretation is, not that particular words may be

isolatedly considered, but that the whole contract must

App. 9

be brought into view and interpreted with reference to

the nature of the obligations between the parties, and

the intention which they have manifested in forming

them.” O’Brien v. Miller, 168 U.S. 287, 297, 18 S.Ct. 140,

42 L.Ed. 469 (1897). Thus, courts look to “the contract

as a whole to determine whether it unambiguously

states the parties’ intentions.” Sander v. Alexander

Richardson Invs., 334 F.3d 712, 716 (8th Cir. 2003);

Feaz v. Wells Fargo Bank, N.A., 745 F.3d 1098, 1104

(11th Cir. 2014) (“Traditional contract-interpretation

principles make contract interpretation a question of

law, decided by reading the words of a contract in the

context of the entire contract and construing the contract to effectuate the parties’ intent.”). A contract provision is ambiguous if it “is susceptible to two or more

reasonable interpretations that can fairly be made.”

Dahl-Eimers v. Mut. of Omaha Life Ins. Co., 986 F.2d

1379, 1381 (11th Cir. 1993); Sompo Japan Ins. Co. of

Am. v. Norfolk S. Ry. Co., 762 F.3d 165, 179 (2d Cir.

2014) (maritime contract is ambiguous “where it is

susceptible of two reasonable and practical interpretations”) (internal quotation marks omitted). An ambiguous provision in a maritime contract is interpreted

against the drafter. Edward Leasing Corp. v. Uhlig &

Assoc. Inc., 785 F.2d 877, 889 (11th Cir. 1986).

C. The District Court Properly Granted

Summary Judgment for Defendant

Plaintiffs assert the district court erroneously

granted summary judgment on the legally flawed conclusion that the ticket contract entitled Defendant to

App. 10

receive notice of Plaintiffs’ injuries within 185 days.

This case warrants summary judgment only if: (1) Defendant qualifies to exercise the protections afforded

by the Himalaya Clause; (2) Clause 12(a) requires

Plaintiffs to provide notice of their claims to Defendant, as opposed to Carnival; and (3) 46 U.S.C. § 30508

does not excuse Plaintiffs’ failure to provide such notice to Defendant. We address each issue in turn.

Defendant Qualifies to Exercise the Rights

Conferred by the Himalaya Clause

The ticket contract permits Defendant to assert

the right to notice under Clause 12(a) only if the Himalaya Clause extends that right to Defendant. The

Himalaya Clause states that “[a]ll rights, exemptions

from liability, defenses and immunities of Carnival under this contract shall also inure to the benefit of Carnival’s . . . suppliers, shipbuilders and manufacturers

of component parts and independent contractors.”

Plaintiffs maintain that “Defendant was hired, retained and otherwise authorized by Carnival to perform maintenance on the [Carnival Triumph], in

particular its engines and diesel generators, and

equipment appurtenant thereto.” Plaintiffs further

contend that Defendant “designed, manufactured,

and/or constructed insulation panels fuel pipe covers,

T-shaped structures and other apparatuses that the

company installed on diesel generators and in other

places in order to reduce the temperature of existing

hot spots on the [ship’s] engines.” The services performed by Defendant indisputably make Defendant a

App. 11

supplier, manufacturer of component parts, or an independent contractor, as those terms are ordinarily defined.

We find Plaintiffs’ argument that the Himalaya

Clause is ambiguous because it fails to define the term

“independent contractor” unpersuasive. First, Defendant qualifies to receive the rights conferred by the

Himalaya Clause as a “supplier” or “manufacturer of

component parts” for the Carnival Triumph. Our holding is not dependent on characterizing Defendant as

an independent contractor.

Second, unlike the bill of ladings in the cases cited

by Plaintiffs, the ticket contract here unambiguously

defines the independent contractors receiving extended rights—those contractors employed by Carnival. See La Salle Mach. Tool, Inc. v. Maher Terminals,

Inc., 611 F.2d 56, 60 (4th Cir. 1979) (finding provision

of bill of lading extending liability limitation to independent contractor “ambiguous because it does not indicate Whose agents and independent contractors are

meant” and holding terminal operator not covered by

that provision where terminal operator was “not

clearly acting as an independent contractor of the carrier”); Caterpillar Overseas, S.A. v. Farrell Lines, Inc.,

1988 A.M.C. 2894, 2895 (E.D. Va. Apr. 28, 1988), aff ’d

sub nom., Caterpillar Overseas, S.A. v. Marine Transp.

Inc., 900 F.2d 714 (4th Cir. 1990) (relying on La Salle

Machine Tool and holding that Himalaya Clause extending ocean carrier’s liability limitations to “all independent contractors” did not unambiguously apply

to an interstate trucking company not engaged in

App. 12

normal maritime operations). This is not a case like

those cited where defendant’s relationship to the contracting party was tangential or uncertain or defendant was engaged in non-maritime activity that one

would not reasonably expect to be covered by the contract. Plaintiffs acknowledge that “Defendant was

hired, retained and otherwise authorized by Carnival

to perform maintenance on the [Carnival Triumph].”

That Defendant is an independent contractor of Carnival engaged in normal maritime activity requires no

speculation. Defendant is squarely within the reasonable scope of the Himalaya Clause.

Plaintiffs contend that the Himalaya Clause

should be strictly construed to exclude Defendant because “Carnival’s passenger ticket is plainly intended

to govern the carriage of passengers on holiday cruises

and protect those providing services to Carnival with

respect [to] matters immediately affecting the cruise,”

i.e. ship personnel and shore excursion or tour operators. But the second paragraph in the ticket contract

boldly declares in all capital letters that the contract

imposes “IMPORTANT LIMITATIONS ON THE

RIGHTS OF GUESTS TO ASSERT CLAIMS

AGAINST CARNIVAL CRUISE LINES, THE VESSEL, THEIR AGENTS AND EMPLOYEES, AND

OTHERS” (underline added). That same bolded and

capitalized paragraph specifically directs passengers

to Clause 1, containing the Himalaya Clause, and

Clause 12, containing the notice provision. The Himalaya Clause extends rights to suppliers, shipbuilders,

and manufacturers of component parts, as well as

App. 13

independent contractors. Thus, the ticket contract expressly and conspicuously limits the liability of those

not directly providing services to passengers while on

the cruise. See Estate of Myhra v. Royal Caribbean

Cruises, Ltd., 695 F.3d 1233, 1246 (11th Cir. 2012) (concluding that the physical characteristics of the warning in ticket contract were sufficient to reasonably

communicate a forum-selection clause to passengers).

Moreover, if Plaintiffs’ allegations prove true, one can

hardly imagine how Defendant’s conduct did not “immediately affect[ ] the cruise,” the ambiguous standard

Plaintiffs urge us to adopt.

We also reject Plaintiffs’ argument that extending

notice rights to Defendant “is poor public policy because it disrupts the uniformity of maritime law reflected in the uniform three-year statute of limitations

for maritime tort.” Section 30106 of Title 46 of the

United States Code establishes a three-year statute of

limitations for bringing a civil action for damages for

personal injury arising out of a maritime tort. It does

not prohibit parties from contractually shortening that

limitations period. Instead, 46 U.S.C. § 30508 permits

a shipowner to contractually require notice of personal

injury in as little as six months and to require an action be brought in one year. 46 U.S.C. § 30508(b). The

provisions at issue here comply with the notice and filing limitations permitted by § 305083 and do not

Plaintiff concedes that “this statute allows a vessel transporting passengers . . . between ports in the U.S. and a port in a

foreign country to limit its liability through clauses such as used

by Carnival’s ticket.”

App. 14

“contravene an act of Congress” or “prejudice the characteristic features of maritime law.” Whether these

congressionally sanctioned limitations constitute “poor

public policy,” as Plaintiffs contend, is not for us to decide.

The ticket contract here differs markedly from the

contracts evaluated in Plaintiffs’ cited district court

cases declining to extend contractual liability limitations to others. In Sharpe v. West Indian Company,

Ltd., the district court held that a clause purporting to

extend a cruise line’s exclusions and limitations to

owners of shoreside properties was overbroad and ambiguous because it extended to shoreline properties

that have no connection to the cruise line. Sharpe v. W.

Indian Co., Ltd., 118 F. Supp. 2d 646, 653 (D.V.I. 2000).

The Himalaya Clause here, however, is expressly limited to “Carnival’s . . . independent contractors.” Likewise, in Stotesbury v. Pirate Duck Adventure, LLC, the

district court held that a ticket contract did not reasonably communicate that suits against independent contractors are subject to a one-year limitations period

because the language extending the limitations period

was buried in fine print in a section not highlighted by

the contract. Stotesbury v. Pirate Duck Adventure, LLC,

No. 3:11-CV-00018, 2013 WL 3199353, at *3 (D.V.I.

June 25, 2013). The ticket contract here alerts passengers to the specific provisions limiting independent

contractor liability in bolded capitalized letters in the

second paragraph of the contract.

Even when strictly construed, the ticket contract

unambiguously extends the rights afforded Carnival to

App. 15

Carnival’s suppliers, manufacturers, and independent

contractors, like Defendant, and reasonably communicates that fact to passengers. In particular, the ticket

contract entitles Defendant to the notice rights provided in Clause 12(a).

2. The Notice Provision of the Ticket

Contract Entitles Defendant to Receive

Notice of Plaintiffs’ Claims within 185 Days

Having concluded that the Himalaya Clause extends the notice rights of Clause 12(a) to Defendant,

we now endeavor to discern what right the notice provision actually confers: the right for the alleged offending party to receive notice of claims, or the right to have

Carnival notified of claims? Plaintiffs argue that

Clause 12(a) requires only that Carnival be notified of

Plaintiffs’ claims, even when Carnival is not accused of

wrongdoing and is not a party to the suit. We disagree.

The application of general principles of contract

interpretation yields the conclusion that the ticket contract requires Plaintiffs to provide notice of their

claims to the alleged offending party. The notice provision states: “Carnival shall not be liable for any claims

whatsoever for personal injury, illness or death of the

guest, unless full particulars in writing are given to

Carnival within 185 days after the date of the injury,

event illness or death giving rise to the claim.” Clause

12(a) grants Carnival the right to be notified of the full

particulars of claims against them within 185 days of

the date of injury. The Himalaya Clause grants

App. 16

Defendant that same right: “[a]ll rights, exemptions

from liability, defenses and immunities of Carnival under this contract shall also inure to the benefit of [Defendant].” Viewing the contract as a whole, as we must,

Clause 12(a) clearly expresses the intent to bar suit

unless notice of a claim is timely provided to the offending party. Since the clause defines Carnival’s

rights, the clause identifies Carnival as the offending

party. But when Carnival’s right is extended to others,

the clear intent is for that party to receive notice of the

claim. The specific recitation in the Himalaya Clause

that Defendant shall have all of Carnival’s rights and

shall not have any liability different from that of Carnival renders unreasonable any interpretation of the

notice provision that holds Defendant liable without

receiving notice of Plaintiffs’ claims within the allotted

time.4

Plaintiffs’ argument that the right conferred by

the notice provision of Clause 12(a) is merely the right

to have Carnival receive notice does not provide Defendant “[a]ll rights” Carnival has under the contract,

as required by the Himalaya Clause. Plaintiffs’

We note that, even if we held that notice to Carnival complied with the ticket contract, the only evidence cited by Plaintiff

to establish notice to Carnival is a letter from Carnival acknowledging receipt of a letter from counsel on behalf of 31 Carnival

Triumph passengers. Plaintiffs submitted no evidence of an attempt to notify Carnival of injuries sustained by any of the remainder of the more than 100 Plaintiffs in this case, much less

evidence demonstrating that each Plaintiff submitted the “full

particulars” of their claims to Carnival. That said, for purposes of

this ruling, we assume that Carnival received notice that was

compliant with the contract.

App. 17

construction results in a different right being afforded

Defendant (i.e. the right for a third-party to receive notice of claims) than that possessed by Carnival (i.e. the

right to actually receive notice of claims). Under Plaintiffs’ construction, Defendant faces liability without receiving timely notice of claims against it where

Carnival would be exempt from liability absent receiving notice. Plaintiffs’ construction does not give full effect to the Himalaya Clause, which extends “all rights”

of Carnival to Defendant and expressly states that Defendant “shall have no liability to the Guest, either in

contract or in tort, which is greater than or different

from that of Carnival.” “[A contract] should be read to

give effect to all its provisions and to render them consistent with each other.” In re FFS Data, Inc., 776 F.3d

at 1305 (quoting Mastrobuono v. Shearson Lehman

Hutton, Inc., 514 U.S. 52, 63, 115 S.Ct. 1212, 131

L.Ed.2d 76 (1995)). Accordingly, we find that the notice

provision unambiguously requires notice be provided

to Defendant.

That Clause 12(a) also bars liability for any suit

“unless served on Carnival within 120 days after filing” provides another indication that “Carnival” as

used in Clause 12(a) refers to the offending party.

Reading that provision to require service of a suit on

Carnival when it is not a party to that suit is neither

reasonable nor sensible. See Golden Door Jewelry Creations, Inc. v. Lloyds Underwriters Non-Marine Ass’n,

117 F.3d 1328, 1338 (11th Cir. 1997) (“[A]n interpretation which gives a reasonable meaning to all provisions

of a contract is preferred to one which leaves a part

App. 18

useless or inexplicable.”) (internal quotation marks

omitted). Moreover, nothing in the ticket contract suggests that “Carnival” as used in the notice provision

should be read differently from “Carnival” as used in

other parts of Clause 12, and other provisions exempting Carnival from liability. The only reasonable consistent interpretation is that “Carnival” in Clause

12(a) refers to the offending party when the relevant

liability limiting rights are being exercised by those extended protection under the Himalaya Clause.

Plaintiffs argue that Clause 12(a) of the ticket contract fails to reasonably communicate that the 185-day

pre-suit written notice provision must be given to Defendant and not to Carnival. We are unpersuaded. As

we see it, Clause 12(a) clearly expresses the intent that

notice of claims be provided to the offending party and

no reason exists to contravene the Himalaya Clause’s

express grant of that right to Defendant.5 Norfolk S.

Ry. Co., 543 U.S. at 31–32, 125 S.Ct. 385 (citing Green

v. Biddle, 21 U.S. 1, 8 Wheat. 1, 89–90, 5 L.Ed. 547

(1823) (“[W]here the words of a . . . contract, have a

plain and obvious meaning, all construction, in hostility with such meaning, is excluded”)).

The only reasonable interpretation of the notice

provision consistent with the entirety of Clause 12(a),

That Defendant’s “claims contact information is absent

from the passenger ticket” does not compel a different conclusion.

The ticket contract does not contain “claims contact information”

for Carnival either. Moreover, such information is available

through the exercise of ordinary diligence, as Plaintiffs demonstrated in filing this action.

App. 19

and the ticket contract as a whole, is that it requires

notice of claims be provided to those being sued. Any

ambiguity caused by the reference to “Carnival” when

reading the notice provision of Clause 12(a) in isolation

cannot undermine the manifest intent to provide all of

Carnival’s rights, exemptions from liability, defenses

and immunities, including the right to receive notice of

claims, to those extended protections by the Himalaya

Clause. Internaves de Mexico s.a. de C.V., 898 F.3d at

1092-93.

3. Plaintiffs Failed to Demonstrate

that 46 U.S.C. § 30508 Excuses Their

Non-Compliance with the Notice Provision

Plaintiffs argue that under § 30508(c) Defendant

must prove prejudice from lack of notice for the notice

provision of the ticket contract to bar their claims. Section 30508(c) states: “When notice of a claim for personal injury or death is required by a contract, the

failure to give the notice is not a bar to recovery if—(1)

the court finds that the owner, master, or agent of the

vessel had knowledge of the injury or death and the

owner has not been prejudiced by the failure. . . .”

Plaintiffs offered no evidence to prove that Defendant had knowledge of their injuries. Defendant,

however, submitted the Declaration of Dimitrios

Valsamis, Defendant’s President, stating that “[Defendant] had no knowledge of Plaintiffs’ alleged

injuries/illnesses until Plaintiffs filed their Original

Complaint . . . on February 9, 2014.” Plaintiffs failed to

App. 20

rebut this declaration or otherwise offer admissible evidence raising a genuine issue of material fact concerning Defendant’s knowledge of Plaintiffs’ injuries.6

Consequently, Plaintiffs’ failure to comply with the notice requirement cannot be excused.7 See Shankles v.

Costa Armatori, S.P.A., 722 F.2d 861, 867–68 (1st Cir.

1983) (declining to excuse plaintiff ’s failure to provide

Contrary to Plaintiffs’ argument, Defendant’s knowledge of

Plaintiffs’ injuries via news accounts of what Plaintiffs deem the

“CARNIVAL TRIUMPH 2013 cruise debacle” is not an adjudicative fact of which we can take judicial notice. Fed. R. Evid. 201.

“Judicial notice is a means by which adjudicative facts not seriously open to dispute are established as true without the normal

requirement of proof by evidence.” Dippin’ Dots, Inc. v. Frosty Bites

Distribution, LLC, 369 F.3d 1197, 1204 (11th Cir. 2004). What Defendant knew and when are not generally known and cannot accurately and readily be determined from reliable sources. See

United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (stating

that judicial notice is appropriate if the fact is “one that only an

unreasonable person would insist on disputing” and declining to

take judicial notice that a defendant “refused to come to work.”)

Moreover, Plaintiffs submitted no evidence of the “widely known

and exhaustive” news coverage that would permit us to authoritatively conclude that such coverage existed, much less that Defendant indisputably received knowledge of these particular

Plaintiffs’ injuries through the news.

Plaintiffs’ argument that notice to Carnival is sufficient under § 30508(c) fails for the reasons already expressed in rejecting

this same argument in connection with the notice provision. Defendant is entitled to the same rights as Carnival and Plaintiffs

failure to provide notice of their injuries to Defendant may be excused under § 30508 only if Defendant had knowledge of their injuries and was not prejudiced from the lack of notice. Applying 46

U.S.C. § 30508 in the manner suggested by Plaintiffs would result

in the illogical evaluation of whether a party not being sued was

prejudiced by Plaintiffs’ failure to notify them of injuries caused

by another.

App. 21

contractually required notice where plaintiff did not

controvert affidavit accompanying defendant’s motion

for summary judgment, which stated that defendant

had never received notice of her claim for personal injuries).

III. CONCLUSION

For the reasons explained above, we AFFIRM the

decision of the district court.

App. 22

2016 WL 8677194

Only the Westlaw citation is currently available.

United States District Court, S.D. Florida.

Cynthia DAVIS, et al., Plaintiff,

VALSAMIS, INC., Defendant.

CASE NO. 16-20517-CIV-LENARD/GOODMAN

Signed 10/12/2016

Attorneys and Law Firms

Francis I. Spagnoletti, Marcus Raymond Spagnoletti,

Spagnoletti & Co., Jerry C. Von Sternberg, Godwin

Lewis, PC, Houston, TX, for Plaintiff.

Evan S. Gutwein, David Neal Gambach, Hamilton,

Miller, & Birthisel, LLP, Miami, FL, Harold K. Watson,

Chaffe McCall, LLP, Houston, TX, for Defendant.

ORDER GRANTING DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT

(D.E. 57) AND CLOSING CASE

JOAN A. LENARD, UNITED STATES DISTRICT

JUDGE

THIS CAUSE is before the Court on Valsamis,

Inc.’s (hereinafter, “Valsamis” or “Defendant”) Motion

for Summary Judgment (D.E. 57), filed on April 22,

2016. Plaintiffs filed their Response in Opposition

(D.E. 61) on May 9, 2016. Defendant replied on May 24,

App. 23

2016. (D.E. 68.) Having reviewed the fully-briefed Motion for Summary Judgment and the underlying record, the Court finds as follows.

Background

This case arises out of the now infamous sailing of

the Carnival Triumph in February 2013.1 During this

sailing, a fire in the engine room disabled the ship leaving its crew and passengers stranded in the Gulf of

Mexico. During the next several days, everyone

onboard the Carnival Triumph suffered from horrific

living conditions including lack of food and water, electricity, and functional plumbing.2

Plaintiffs, who were all passengers onboard the

Carnival Triumph, now sue Valsamis, the company responsible for maintaining the engines and diesel generators on the vessel. (Pls.’s 3d Am. Compl. at ¶ 5.03;

D.E. 9 at 12.) They allege that Valsamis: (1) negligently

maintained the engines and generators; and (2) negligently designed, manufactured and/or constructed insulation panels, fuel pipe covers, T-shaped structures

This case was transferred from the United States District

Court for the Southern District of Texas, Hon. George C. Hanks

presiding, on February 9, 2016. (D.E. 30 and 31.) Judge Hanks

granted the Defendant’s Motion to Transfer based upon the Carnival Ticket Contract’s forum selection clause. (D.E. 30.)

In a related case Terry v. Carnival Corp., United States

District Judge Donald Graham provides a detailed description of

the incident and the conditions onboard the vessel after making

extensive findings of fact. Civ. Case No. 13-20571- DLG, Findings

of Fact and Conclusions of Law (D.E. 309).

App. 24

and other apparatuses that were installed on the diesel generators in order to reduce the temperature of

existing hot spots on the vessel’s engines. (Id. at ¶ 6.03;

id. at 17.) They claim that Defendant’s negligence was

the direct and proximate cause of the fire which disabled the vessel and left the passengers stranded at sea

for days. (Id.; id.) Plaintiffs seek damages for their

physical and emotional injuries which they claim were

caused by Defendant’s negligence. (Id. at ¶ 6.16; id. at

23.)

On April 22, 2016, Valsamis filed its Motion for

Summary Judgment asserting that all of the Plaintiffs’

claims are barred because they failed to provide

Valsamis with notice of their injuries within the 185

days as required by the Carnival Ticket Contract

(hereinafter, “Ticket Contract”). (D.E. 57.) Valsamis

also argues, in the alternative, that the Plaintiffs who

were previously plaintiffs in the Terry case are barred

from recovery in this matter based upon the non-mutual collateral estoppel and one satisfaction doctrines.

(Id.) In response, the Plaintiffs contend that: (1) the

plain language of Section 12(a) of the Ticket Contract

(i.e. the notice provision) only requires that notice be

given to Carnival within 185 days—a condition which

Plaintiffs satisfied; (2) to the extent that Section 12(a)

could be construed to cover Valsamis, it is ambiguous

and must be construed against the drafter; (3) even if

Valsamis was covered by Section 12(a), it is not entitled

to summary judgment because it has not shown it was

prejudiced by the lack of notice as required by 46 U.S.C.

§ 30508; and (4) summary judgment is inappropriate

App. 25

against the 31 Plaintiffs who were also plaintiffs in the

Terry case, because Defendant has provided no evidence about the claims litigated or damages received

in the Terry matter. (D.E. 61.)

II.

Applicable Legal Standards

Summary Judgment

Federal Rule of Civil Procedure 56 provides that

summary judgment “shall be rendered forthwith if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(c). A material fact

is one that might affect the outcome of the case. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). “Only disputes over facts that might affect the

outcome of the suit under the governing law will

properly preclude the entry of summary judgment.

Factual disputes that are irrelevant or unnecessary

will not be counted.” Id. The Court “must view all the

evidence and all factual inferences reasonably drawn

from the evidence in the light most favorable to the

nonmoving party,” Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997),

and “must resolve all reasonable doubts about the facts

in favor of the non-movant.” United of Omaha Life Ins.

Co. v. Sun Life Ins. Co. of Am., 894 F.2d 1555, 1558

(11th Cir. 1990).

App. 26

Because “the interpretation of a written contract

is a matter of law to be decided by the court,” cases involving the interpretation of ticket contracts are wellsuited for summary judgment. Cf. Nat’l Specialty Ins.

Co. v. ABS Freight Transp., Inc., 91 F. Supp. 3d 1258,

1260 (S.D. Fla. 2014), aff ’d sub nom. Nat’l Specialty

Ins. Co. v. MartinVegue, No. 14-15811, 2016 WL 737780

(11th Cir. Feb. 25, 2016); Marek v. Marpan Two, Inc.,

817 F.2d 242 (3rd Cir. 1987), cert denied. 108 S.Ct. 155

(1987) (holding the interpretation of the passenger

ticket contract, including the one-year contractual suit

time limitation, and the issue as to whether a cruise

operator may be estopped in asserting the suit time

limitation are questions of law).

Choice of Law

It is well-established that a ticket for passage on a

cruise ship constitutes a maritime contract and is governed by United States maritime law. Carnival Cruise

Lines, Inc. v. Shute, 499 U.S. 585 (1991); accord Norfolk

S. Ry. Co. v. Kirby, 543 U.S. 14, 22–23, 125 S. Ct. 385,

392, 160 L.Ed. 2d 283 (2004) (holding federal maritime

law controls the interpretation of a maritime contract

when the dispute is not inherently local).

III. Discussion

The threshold issue in this case is whether

Valsamis can assert the rights afforded to Carnival in

Section 12(a) of the Ticket Contract. If Valsamis is entitled to assert the contractual notice provision, then

App. 27

Plaintiffs’ claims are barred.3 If not, then the Court

must consider Valsamis’ alternative arguments.

To answer this question, the Court must interpret

several clauses contained in the Ticket Contract.

A. Terms of the Ticket Contract

The first page of the Ticket Contract provides a

general warning to Carnival passengers about reading

the contract to learn their rights and obligations:

IMPORTANT NOTICE TO GUESTS THIS

DOCUMENT IS A LEGALLY BINDING

CONTRACT ISSUED BY CARNIVAL

CRUISELINES TO, AND ACCEPTED BY,

GUEST SUBJECT TO THE IMPORTANT

TERMS AND CONDITIONS APPEARING

BELOW.

NOTICE: THE ATTENTION OF GUESTS

IS ESPECIALLY DIRECTED TO CLAUSES

1, 4 AND 10 THROUGH 13, WHICH CONTAIN IMPORTANT LIMITATIONS ON THE

RIGHTS OF GUESTS TO ASSERT CLAIMS

AGAINST CARNIVAL CRUISELINES,

THE VESSEL, THEIR AGENTS AND EMPLOYEES, AND OTHERS, INCLUDING

FORUM SELECTION, ARBITRATION

The Eleventh Circuit recently enforced language in a cruise

line ticket contract limiting the timeframe within which passengers may file suit. See Chang v. Carnival Corp., No. 14-13228

(11th Cir. Oct. 6, 2016).

App. 28

AND WAIVER OF JURY TRIAL FOR

CERTAIN CLAIMS.

(D.E. 16-1at 34) (emphasis in original). The Ticket Contract’s general warning specifically directs passengers

to review Clauses 1 and 12 which are particularly relevant in this case. Section 1(f ) of the Ticket Contract

purports to extend Carnival’s rights and defenses to

certain third-parties as defined below:

All rights, exemptions from liability, defenses and immunities of Carnival under this

contract shall also inure to the benefit of Carnival’s facilities, whether at sea or ashore,

servants, agents, managers, affiliated or related companies, suppliers, shipbuilders and

manufacturers of component parts and independent contractors, including, but not limited to, shore excursion or tour operations,

ship’s physician, ship’s nurse, retail shop personnel, health and beauty staff, fitness staff,

video diary staff, and other concessionaires,

who shall have no liability to the Guest, either

in contract or in tort, which is greater than or

different from that of Carnival.

(Id. at 35.) And Section 12(a) sets forth the contractual

deadline for providing Carnival with notice of any injuries and for filing suit:

Carnival shall not be liable for any claims

whatsoever for personal injury, illness or

death of the guest, unless full particulars in

writing are given to Carnival within 185 days

after the date of the injury, event illness or

death giving rise to the claim. Suit to recover

App. 29

on any such claims shall not be maintainable

unless filed within one year after the date of

the injury, event illness or death, and unless

served on Carnival within 120 days after filing. Guest expressly waives all other potentially applicable state or federal limitations

periods.

(Id. at 44.) The Court must interpret these contractual

provisions to determine whether the Plaintiffs were required to give Valsamis notice of their injuries within

185 days.

B. Rules of Construction

Maritime contracts “must be construed like any

other contracts: by their terms and consistent with the

intent of the parties.” Norfolk S. Ry. Co., 543 U.S. at 31;

Rutledge v. NCL (Bahamas) Ltd., No. 08-21412-CIV.

2010 WL 4116473, at *2 (S.D. Fla. Oct. 18, 2010) (“Passenger ticket contracts are subject to the same principles as other contracts.”). “Drawing from state and

federal sources, the general maritime law is an amalgam of traditional common-law rules, modifications of

those rules, and newly created rules.” E. River S.S.

Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 864–

65 (1986) (footnote omitted). “It should, therefore, not

come as a surprise to learn that general federal maritime law has adopted the general rules of contract interpretation and construction.” F.W.F., Inc. v. Detroit

Diesel Corp., 494 F. Supp. 2d 1342, 1356 (S.D. Fla.

2007), aff ’d, 308 Fed.Appx. 389 (11th Cir. 2009) (citing

App. 30

United States ex rel. E. Gulf, Inc. v. Metzger Towing,

Inc., 910 F.2d 775, 779 (11th Cir. 1990)).

Courts “give effect to the plain language of contracts when that language is clear and unambiguous.”

Equity Lifestyle Properties, Inc. v. Florida Mowing And

Landscape Serv., Inc., 556 F.3d 1232, 1242 (11th Cir.

2009) (citations omitted). When interpreting a contract, courts look to “the contract as a whole to determine whether it unambiguously states the parties’

intentions.” Sander v. Alexander Richardson Invs., 334

F.3d 712, 716 (8th Cir. 2003); see also O’Brien v. Miller,

168 U.S. 287, 297–300 (1897) (“The elementary canon

of interpretation is, not that particular words may be

isolatedly considered, but that the whole contract must

be brought into view and interpreted with reference to

the nature of the obligations between the parties, and

the intention which they have manifested in forming

them.”); Southern–Owners Ins. Co. v. Hayden, 413

Fed.Appx. 187, 189 (11th Cir. 2011) (citing Jones v.

Warmack, 967 So.2d 400, 402 (Fla. 1st DCA 2007))

(“[Courts] do not read clauses in a contract in isolation;

we look to the contract as a whole.”); Pac. Gas & Elec.

Co. v. United States, 536 F.3d 1282, 1288 (Fed. Cir.

2008) (“In construing the meaning of a contractual provision, the court does not interpret the disputed term

or phrase in isolation, but ‘construes contract terms in

the context of the entire contract, avoiding any meaning that renders some part of the contract inoperative.’ ”) (internal citations omitted). Every word, term

or phrase of a maritime contract should, to the extent

possible, be given effect and should not be interpreted

App. 31

to render any provision of the contract meaningless or

superfluous. See, e.g., Am. Roll–On Roll–Off Carrier,

LLC v. P & O Ports Baltimore, Inc., 479 F.3d 288, 293

(4th Cir. 2007); Chembulk Trading LLC v. Chemex Ltd.,

393 F.3d 550, 555 (5th Cir. 2004).

The language of a contract “will be deemed conclusively indicative of [the parties’] intentions where it is

reasonably susceptible to only one interpretation.”

F.W.F., Inc. v. Detroit Diesel Corp., 494 F. Supp. 2d 1342,

1357 (S.D. Fla. 2007), aff ’d, 308 Fed.Appx. 389 (11th

Cir. 2009) (citation omitted). “Conversely, the language

will be deemed ambiguous where it is reasonably susceptible to more than one interpretation.” (Id.); see also

Novak v. Irwin Yacht & Marine Corp., 986 F.2d 468,

472 (11th Cir. 1993) (holding that a contractual provision is only ambiguous if it is susceptible to two or

more reasonable interpretations). Whether a contract

is ambiguous is a question of law to be resolved by the

court. See East v. Premier, Inc., 98 Fed.Appx. 317, 319

(5th Cir. 2004); Atl. Dry Dock Corp. v. United States,

773 F.Supp. 335, 338 (M.D. Fla. 1991). “ ‘In cases of

doubt, an instrument is to be taken against the party

that drew it.’ ” Rams v. Royal Caribbean Cruise Lines,

Inc., 17 F.3d 11, 12 (1st Cir. 1994) (quoting Chelsea Industries, Inc. v. Accuray Leasing Corp., 699 F.2d 58, 61

(1st Cir. 1983)); see also Alexandra H. v. Oxford Health

Ins. Inc. Freedom Access Plan, No. 15-11513, 2016 WL

4361936, at *5 (11th Cir. Aug. 16, 2016) (“[O]nce we

conclude a term is ambiguous, the rule of contra

proferentem requires us to construe any ambiguities

against the drafter.”). However, it must be noted that a

App. 32

maritime contract is not ambiguous simply because

one of the parties disputes its proper interpretation.

Atl. Dry Dock Corp., 773 F.Supp. at 338.

C. Application

The first page of the Ticket Contract contains an

introductory warning that alerts passengers that

“clauses 1, 4 and 10 through 13 [ ] contain important

limitations on the rights of guests to assert claims

against Carnival Cruiselines [sic], the vessel, their

agents and employees, and others.” (D.E. 16-1at 34.)

This is the first signal to passengers that: (1) Carnival

has certain contractual rights and defenses that may

be asserted against them; and (2) individuals and entities other than the cruise line and vessel may also

assert these rights and defenses based on their relationship with Carnival. Section 1(f ) of the Ticket Contract then makes clear that all of Carnival’s rights and

defenses “shall also inure to the benefit of . . . shipbuilders and manufacturers of component parts and independent contractors . . . who shall have no liability to

the Guest, either in contract or in tort, which is greater

than or different from that of Carnival.” (Id. at 35.)

Reading these two provisions together, passengers are

put on reasonable notice that any of Carnival’s rights

or defenses contained in the Ticket Contract may also

be asserted by third-party entities including “shipbuilders and manufacturers of component parts and

independent contractors.”

App. 33

Section 12(a) of the Ticket Contract creates a right

to notice of any injury within 185 days: “Carnival shall

not be liable for any claims whatsoever for personal injury, illness or death of the guest, unless full particulars in writing are given to Carnival within 185 days

after the date of the injury, event illness or death giving rise to the claim.” This provision serves to limit

Carnival’s liability if proper notice is not given.

In its Motion for Summary Judgment, Valsamis

argues that it is an independent contractor and that it

is entitled to all of Carnival’s contractual rights—including the right to notice of any injury within 185

days. In contrast, Plaintiffs contend that Section 12(a)

clearly states that passengers need only provide notice

to Carnival to satisfy their contractual obligation. Alternatively, Plaintiffs contend that Section 12(a),

viewed in light of Section 1(f ), is subject to two reasonable meanings and is therefore ambiguous.

Having read the Ticket Contract as a whole, it is

unmistakable that Section 12(a) creates a contractual

right and that Section 1(f )—along with the contract’s

introductory warnings—confers all of Carnival’s contractual rights on “shipbuilders and manufacturers of

component parts” and “independent contractors.” In

this case, Plaintiff alleges that Valsamis was hired by

Carnival to maintain the engines and generators and

to manufacture and install parts on the ship’s generators. Therefore, under Section 1(f ) Valsamis qualifies

as a “manufacturer of component parts” or “independent contractor.” Because Valsamis is a “manufacturer

of component parts” and/or “independent contractor,” it

App. 34

is entitled to assert all of Carnival’s contractual

rights—including the 185 day notice provision.

Plaintiffs’ interpretation of the contract improperly isolates Section 12(a) from the rest of the contract

and fails to give effect to the intent of the parties as

evidenced by the contract’s plain language. The better

reading of the Ticket Contract is that an independent

contractor (or other qualified third-party) steps into

the shoes of Carnival and may assert its rights and defenses.4 Accordingly, the Court concludes that Valsamis

was entitled to notice of any injury within 185 days of

the occurrence, and that by failing to give notice, Plaintiffs violated Section 12(a) of the contract.5

This interpretation of the Ticket Contract accords with an

earlier decision by this Court which interpreted virtually identical provisions and held that an onboard masseuse was a concessionaire and was entitled to assert the one year statute of

limitations contained in the ticket contract. Levick v. Steiner

Transocean, Ltd., 377 F.Supp.2d 1251 (S.D. Fla. 2005) (Lenard,

J.).

The Supreme Court has held that a clause in a form passenger ticket contract is enforceable when (1) the terms withstand

judicial scrutiny as to reasonableness and fundamental fairness

and (2) the clause is “reasonably communicated” to the passenger

by the carrier. Shute, 499 U.S. at 590. Here, the terms of the

Ticket Contract were reasonable and fundamentally fair because

they comply with the limitations imposed by Congress in 46

U.S.C. § 30508. Furthermore, the Ticket Contract reasonably

communicated to passengers Carnival’s contractual rights and

defenses and that certain third-parties may also assert those

rights and defenses. The first page of the Ticket Contract contains

a bolded warning in all capital letters which instructs passengers

to read Sections 1(f) and 12(a) because they contain “important

limitations on the rights of guests to assert claims against

App. 35

D. 46 U.S.C. § 30508(c)

Plaintiffs’ failure to give notice under the contract

does not necessarily bar recovery. Under 46 U.S.C.

§ 30508(c), “[w]hen notice of a claim for personal injury

or death is required by a contract, the failure to give

the notice is not a bar to recovery if . . . the court finds

that the owner, master, or agent of the vessel had

knowledge of the injury or death and the owner has not

been prejudiced by the failure.” The statute provides

that “the injured passenger need not provide the cruise

line with a written notice that she intends to hold the

ship legally liable for the injury, as long as there is evidence to show that the cruise line or its agent was

aware of the passenger’s injury, and there was no prejudice as a result thereof.” Rutledge, 2010 WL 4116473,

at *4 (quoting Brown v. New Commodore Cruise Line

Ltd., No. 98 CIV. 4402 BSJ, 2000 WL 45443, at *2

(S.D.N.Y. Jan. 19, 2000)).

Here, Plaintiffs claim that summary judgment

must be denied because Defendant failed to produce

any evidence that it was: (1) unaware of Plaintiffs’ injuries; and (2) prejudiced by the lack of formal notice.

However, Plaintiffs completely misunderstand which

party bears the burden of production regarding

§ 30508(c)’s bail-out provision. As the party asserting

and deriving benefit from § 30508’s savings clause, the

Plaintiffs were responsible for producing evidence that

Valsamis knew of their injuries and was not prejudiced

Carnival Cruiselines, the vessel, their agents and employees, and

others.”

App. 36

by their failure to give notice within 185 days. Because

Plaintiffs produced no such evidence, § 30508(c) is inapplicable in this case. Accordingly, Plaintiffs’ claims

are contractually barred because of Plaintiffs’ failure

to provide Valsamis with notice of their injuries within

185 days.

IV. Conclusion

For the reasons set forth above, it is ORDERED

AND ADJUDGED that:

Plaintiffs’ claims are barred by Section 12 of

the Ticket Contract;

Valsamis’ Motion for Summary Judgment

(D.E. 57), filed on April 22, 2016, is hereby

GRANTED;

Final Judgment shall be entered by separate

order; and

This case is CLOSED.

DONE AND ORDERED in Chambers at Miami,

Florida this 12th day of October, 2016.

App. 37

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

-----------------------------------------------------------------------

No. 16-17081-GG

-----------------------------------------------------------------------

CYNTHIA DAVIS,

LESLIE MAYBERRY,

DIANE TUCKER,

ANA SANTA ANA,

CARMEL TAYLOR, et al.,

Plaintiffs - Appellants,

versus

VALSAMIS, INC.,

Defendant - Appellee.

-----------------------------------------------------------------------

Appeal from the United States District Court

for the Southern District of Florida

-----------------------------------------------------------------------

ON PETITION(S) FOR REHEARING AND PETITION(S) FOR REHEARING EN BANC

(Filed Nov. 1, 2018)

BEFORE: WILSON, HULL and JULIE CARNES,

Circuit Judges.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no

Judge in regular active service on the Court having

App. 38

requested that the Court be polled on rehearing en

banc (Rule 35, Federal Rules of Appellate Procedure),

the Petition(s) for Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

/s/ Julie Carnes

UNITED STATES

CIRCUIT JUDGE

ORD-42

App. 39

EXHIBIT C

TICKET CONTRACT

IMPORTANT NOTICE TO GUESTS THIS DOCUMENT IS A LEGALLY BINDING CONTRACT ISSUED BY CARNIVAL CRUISE LINES TO, AND

ACCEPTED BY, GUEST SUBJECT TO THE IMPORTANT TERMS AND CONDITIONS APPEARING BELOW.

NOTICE: THE ATTENTION OF GUEST IS ESPECIALLY DIRECTED TO CLAUSES 1, 4, AND 10

THROUGH 13, WHICH CONTAIN IMPORTANT

LIMITATIONS ON THE RIGHTS OF GUESTS TO

ASSERT CLAIMS AGAINST CARNIVAL CRUISE

LINES, THE VESSEL, THEIR AGENTS AND EMPLOYEES, AND OTHERS, INCLUDING FORUM

SELECTION, ARBITRATION AND WAIVER OF

JURY TRIAL FOR CERTAIN CLAIMS.

IMPORTANT TERMS AND CONDITIONS

OF CONTRACT – READ CAREFULLY

In consideration of the receipt of the full cruise fare,

Carnival Cruise Lines (“Carnival”) agrees to transport

Guest on the above – specified voyage on the following

terms and conditions:

1. DEFINITIONS AND SCOPE OF CONTRACT

(a) Whenever the word “Carnival” is used in this Contract it shall mean and include the Vessel, its owners,

operators, employees, agents, charterers and tenders.

The term “Guest” shall include the plural where

App. 40

appropriate, and all persons or entities booking or purchasing passage and/or traveling under this Contract,

including heirs, representatives and any accompanying minors. The masculine includes the feminine.

“Guest” shall have the same meaning as “Passenger”

in this Contract.

(b) “Cruise Fare” or “Fare” means the amount paid for

the cruise which includes full board, ordinary ship’s

food during the voyage, but not spirits, wine, beer, soft

drinks or mineral waters, shore excursions, salon and

spa services, or any other incidental charge or expense.

The cruise fare shall be deemed to be earned when paid

and not refundable except as stated in Carnival’s brochure applicable to the voyage and as provided in

Clauses 7 and 8, herein.

and fees imposed or sanctioned by the U.S. Government or other Governments. “Government fees and

taxes” may include any and all fees, charges, surcharges, tolls and taxes imposed by U.S. and/or foreign

governmental or quasi-governmental authorities including, but not limited to, U.S. Customs fees, Guest

Facility Charges, Security Surcharges, International

Passenger Departure or Arrival Tax, Agricultural Inspection Fee, head taxes, Panama Canal tolls, dockage

fees, wharfage fees, inspection fees, taxes on airline

transportation, hotel or VAT taxes incurred as part of

a land tour, immigration and naturalizations fees, and

Internal Revenue Service fees, whether assessed on a

per Guest, per berth, per ton or per vessel basis. In the

App. 41

case of per ton or per vessel assessments, those assessments will be spread over expected Guest counts.

(d) Cruise Fare does not include fuel supplement

charges. “Fuel supplement” shall mean any’ additional

charge to defray a portion of Carnival’s fuel costs. The

amount of fuel supplements and government fees and

taxes collected are subject to change. Carnival reserves

the right to charge a fuel supplement of up to $9.00 per

person per day, without prior notice, in the event that

the price of light sweet crude oil according to the NYMEX (New York Mercantile Exchange Index) is

greater than $70.00 per barrel of oil. Carnival may collect any fuel supplement in effect at the time of sailing,

even if the cruise fare has been paid in full.

(e) This ticket is valid only for the person(s) named

hereon as Guests and cannot be transferred or modified without Carnival’s written consent. The acceptance or use of this ticket by the person(s) named

hereon as Guests shall be deemed acceptance and

agreement by each of them to all of the terms and conditions of this cruise Contract.

(f ) All rights, exemptions from liability, defenses and

immunities of Carnival under this contract shall also

inure to the benefit of Carnival’s facilities, whether at

sea or ashore, servants, agents, managers, affiliated or

related companies, suppliers, shipbuilders and manufacturers of component parts and independent contractors, including, but not limited to, shore excursion or

tour operators, ship’s physician, ship’s nurse, retail

shop personnel, health and beauty staff, fitness staff,

App. 42

video diary staff, and other concessionaires, who shall

have no liability to the Guest, either in contract or in

tort, which is greater than or different from that of

Carnival.

(g) This contract constitutes the entire agreement between Carnival and Guest and supersedes all other

agreements, oral or written. Any alteration to any term

of this contract must be in writing and authorized by

Carnival. Except as provided in Clause 13 below,

should any provision of this contract be contrary to or

invalid by virtue of the law of the jurisdiction in which

this contract is sought to be enforced or be so held by a

court of competent jurisdiction, such provision(s) shall

be deemed to be severed from the Contract and of no

effect and all remaining provisions herein shall be in

full force and effect and constitute the Contract of Carriage.

2. NATURE OF CRUISE AND GUEST’S OBLIGATIONS

(a) The Guest admits a full understanding of the

character of the Vessel and assumes all risks incident

to travel and transportation and handling of Guests

and cargo. The Vessel may or may not carry a ship’s

physician or other medical personnel at the election of

Carnival. While at sea or in port the availability of

medical care may be limited or delayed. Guest

acknowledges that all or part of their voyage may be in

areas where medical care and evacuation may not be

available. Guest agrees to indemnify and reimburse

App. 43

Carnival in the event Carnival elects to advance the

cost of emergency medical care, including medical care

provided ashore as well as transportation and/or lodging in connection therewith.

(b) Carnival’s vessels visit numerous ports in a number of countries. Guests assume responsibility for their

own safety and Carnival cannot guarantee Guest’s

safety at any time. The United States Department of

State, Centers for Disease Control and Prevention and

other governmental and tourist organizations regularly issue advisories and warnings to travelers and

Carnival strongly recommends Guests obtain and consider such information when making travel decisions.

Carnival assumes no responsibility for gathering said

information. The Guest acknowledges that the cruise

may be booked in a location that is susceptible to severe weather systems, including but not limited to hurricanes, tropical storms and depressions, and that

Carnival reserves the right to alter the ship’s course,

ports of call, itinerary, activity and shore excursions to

avoid such weather systems and insure the comfort

and safety of the Guest and crew.

sole responsibility to bring and have available at all

times all required travel documents. Guests are advised to check with their travel agent or the appropriate government authority to determine the necessary

documents. Away guest traveling without proper documentation will not be allowed to board the vessel and

no refund of the cruise fare will be issued.

App. 44

(d) Guest acknowledges receipt of Carnival’s applicable brochures and agrees to abide by the terms and

conditions of Carnival’s brochures and web site, including but not limited to the information contained in the

“Frequently Asked Questions” and “Embarkation Information” sections.

(e) Guest acknowledges that, for a voyage commencing in a United States port for a round-trip voyage via

one or more United States ports, Guest must complete

the voyage and disembark at the embarkation port.

Failure to do so may result in a fine or penalty being

imposed by the United States Customs Service or

other governmental agency. In consideration for the

fare paid, Guest agrees to pay any such fine or penalty

imposed because of Guest’s failure to complete the voyage.

(f ) Carnival shall refuse boarding to any Guest under

the age of twenty-one unless: (1) the Guest is traveling

in the same stateroom with an individual twenty-five

years or older; (2) traveling in the same stateroom with

their spouse; or (3) traveling with a parent or guardian

in an accompanying stateroom. Proof of age and/or

proof of marriage are required. Carnival shall not be

liable to make any refunds or for any damages with

respect to any Guest’s failure to provide proper proof

of age or marriage or otherwise comply with this provision.

App. 45

3. YOUR TRAVEL AGENT

Any travel agent or sales agent utilized by the Guest

in connection with the booking of the cruise, or this

contract is solely the agent of the Guest and not Carnival. Carnival is not responsible for the financial condition or integrity of any travel agent utilized by Guest.

In the event that an agent shall fail to remit to Carnival any monies paid to the agent by Guest, Guest shall

be and remain liable for the fare due to Carnival, regardless of whether liability is asserted before or after

embarkation. Issuance and validity of ticket contract

is conditional upon final payment being received by

Carnival prior to sailing. Any refund made by Carnival

to an agent on behalf of Guest shall be deemed payment to Guest, regardless whether the monies are delivered by the agent to Guest. Receipt of this ticket

contract, any other documentation or notification pertaining to the cruise by Guest’s travel agent shall constitute receipt by Guest.

4. BAGGAGE, PERSONAL PROPERTY, PROHIBITED ITEMS, LIMITATION OF LIABILITY

(a) Each fully paid adult Guest will be allowed a reasonable amount of luggage on board containing their

personal belongings. Luggage means only trunks, valises, satchels, bags, hangers and bundles with their

contents consisting of only such wearing apparel, toilet

articles and similar personal effects as are necessary

and appropriate for the purpose of the journey.

App. 46

(b) No tools of trade, household goods, presents and/

or property of others, jewelry, money, cameras, documents, valuables of any description including but not

limited to such articles as are described in Title 46 of

the United States Code section 30503 shall be carried

except under and subject to the terms of a special written contract or Bill of Lading entered into with Carnival prior to embarkation upon application of the Guest.

The Guest warrants that no such articles are contained in any receptacle or container presented by him

as baggage hereunder, and if any such articles are

shipped in the Guest’s baggage in breach of this warranty, no liability for negligence, gross or ordinary,

shall attach to Carnival for any loss or damage thereto.

to comply with the requirements set forth in Clauses

4(a) and 4(b); (2) any loss or damage before baggage

comes into Carnival’s actual custody on board or after

baggage leaves Carnival’s actual custody on board, including, but not limited to, loss or damage by airlines

or other transportation services; (3) any loss or damage

of baggage while not in the actual possession, custody

and control of Carnival; (4) damage due to wear, tear

or normal usage; (5) any loss or damage of perishable

items, medicine, liquor, cash, securities or other financial instruments, or (6) any loss or damage while in the

custody and control of stevedores.

(d) It is stipulated and agreed that the aggregate

value of Guest’s property, does not exceed $50 per guest

or bag with a maximum value of $100 per stateroom

regardless of the number of occupants or bags and any

App. 47

liability of Carnival for any cause whatsoever with respect to said property shall not exceed such sum, unless the Guest shall in writing, delivered to Carnival,

prior to embarkation, declare the true value thereof

and pay to Carnival prior to embarkation a sum equal

to 5% of the excess of such value. If Carnival shall be

held liable for the loss of or damage to Guest’s baggage

or property it is agreed that such liability shall not exceed the lesser of: (1) the actual cash value, or (2) value

declared in the manner above provided (up to U.S. $100

if no such declaration has been made). Declared value

amounts to be proportionately reduced in any case

where less than all of Guest’s baggage or property is

lost, delayed or rendered unusable due to damage. In

no event shall Carnival be liable to pay any compensation if the nature or value of the property has been misrepresented.

(e) No Guest is permitted, to bring on board the vessel live animals (other than qualified service animals,

with not less than 14 days advance notice given to Carnival). Guest will be solely responsible for any and all

damage and/or loss caused by service animals.

(f ) Weapons, firearms, contraband, ammunition, explosives, incendiary devices, or other dangerous items

are strictly prohibited aboard the vessel. Carnival reserves the right to confiscate, destroy and/or turn over

to authorities these or any other items it deems in its

sole discretion to be detrimental to the safety or comfort of any person or which are otherwise improperly

in the possession of any Guest. Each Guest warrants

that no such articles are contained in any receptacle or

App. 48

container carried or presented as baggage. Alcoholic

beverages are prohibited except as provided for in

clause 8(f ). All Guests agree Carnival has, at all times

with or without notice, the right to search Guest’s baggage and/or personal effects for any of the prohibited

items, at any location, to ensure compliance with these

restrictions. Any Guest who refuses any such search or

screening, or any Guest traveling with such items, may

be denied boarding or disembarked and no refund of

the cruise fare will be issued. The Guest will be solely

responsible for any and all damage and/or loss caused

by his violation of this policy.

5. FITNESS TO TRAVEL, SPECIAL NEEDS,

PREGNANCY, INFANTS, DRINKING, DISEMBARKATION

(a) The Guest warrants that he and those traveling

with him are physically fit to travel at the time of embarkation and is required to notify Carnival in writing

at the time of booking the cruise of any physical disability or medical condition which may require special

assistance during the voyage. Failure to do so will release Carnival from any liability for loss, damages or

other compensation arising from or related in any way

to such disability or condition. Upon booking the

cruise, guests who have special needs are required to

contact Carnival’s Special Needs Desk (305-599-2600

ext. 70025) to discuss the details of their special needs.

Carnival reserves the right to require that any Guest,

who is not self-sufficient, travel with a companion who

App. 49

shall take responsibility for any assistance needed during the voyage and in case of emergency.

(b) Carnival and the Master each reserves the right

to refuse passage, disembark or confine to a stateroom

any Guest whose physical or mental condition, or behavior would be considered in the sole opinion of the

Captain and/or the ship’s physician to constitute a risk

to the Guest’s own well-being or that of any other

Guest or crew member. Guest understands and

acknowledges that in addition to the limitations on

medical care described in Clause 2 (a), prenatal and

early infant care, in particular, may require specialized

diagnostic facilities and/or treatment that are not obtainable during the cruise on board the ship and/or

ashore in ports of call. Therefore, the Guest agrees not

to book a cruise or board the ship unless on the day of

disembarkation she is pregnant for 24 completed

weeks or less, nor for or with infants less than six

months old – for trans-ocean crossings, South America

and Hawaii the infant must be at least twelve months

of age at the time of embarkation to sail. Carnival and

the Master reserve the right to disembark any guest

whose behavior affects the comfort, enjoyment, safety

or well being of other guests or of any crew. All expectant Guests further agree to provide Carnival, prior

to embarkation, with a physician’s statement verifying

that her gestational status is in accordance with this

policy, and certifying her fitness to travel even if she

will be less than twenty-four completed weeks pregnant upon disembarkation. Failure to do so shall result

in the cancellation of the Guest’s reservation without

App. 50

refund, compensation or payment except as set forth in

Carnival’s cancellation policy described in Clause 6,

based on the timing of such cancellation.

legal guardians are not cruising, we strongly recommend bringing an original signed letter from the absent parent/guardian authorizing the minor to travel

with you. This will expedite processing by the Department of Homeland Security. Please note that a letter to

this effect is required if debarking with children in

Mexico.

6. CANCELLATION BY GUEST, REFUNDS

Reservations will be held until 30 minutes prior to departure. No refunds will be made in the event of “no

shows”, unused tickets, lost tickets, interruptions, partially used tickets, cancellations received late or after

the start of the cruise, or for Pack & Go program purchases. Carnival strongly recommends the purchase of

trip cancellation insurance from your travel agent.

Cancellation charges for individual bookings will be

assessed as listed below. For cancellation charges related to group bookings, partial ship charters or full

ship charters refer to your charter contract or group

booking agreement for terms and conditions.

App. 51

DAYS PRIOR TO CANCELLATION

DEPARTURE

CHARGE(per

DATE

guest)

2,3,4 & 5

day cruises

Up to 61 days

60 to 46 days

45 to 30 days

29 to 15 days

14 days or less

None(except

Cruises to Nowhere

and Early Saver

Fares*)

Deposit**

Deposit or 50% of

Total Fare, whichever is greater

Deposit or 75% of

Total Fare, whichever is greater

100% of Total Fare

6 day or longer Up to 76 days

cruises (includ- 75 to 46 days

ing Alaska and 45 to 30 days

Hawaii)

29 to 15 days

14 days or less

None (except for

Early Saver Fares*)

Deposit

Deposit or 50% of

Total Fare, whichever is greater

Deposit or 75% of

Total Fare, whichever is greater

100% of Total Fare

Europe Cruises Up to 91 days

& Panama

90 to 56 days

Canal Cruises 55 to 30 days

7,9, & 12 day 29 to 15 days

14 days or less

None (except for

Early Saver Fares*)

Deposit

Deposit or 50% of

Total Fare, whichever is greater

App. 52

Deposit or 75% of

Total Fare, whichever is greater

100% of Total Fare

All cruises

Any time after

purchased

booking

under the Pack

& Go program

100% of Total Fare

Total Fare is defined as Cruise Fare, Air Fare Supplement, Transfer Services and Pre/Post Cruise Vacation

Packages.

*The deposit is non refundable

**For cruises-to-nowhere, the cancellation charge is

25% of Total Fare.

7. CARNIVAL’S RIGHT TO INCREASE FARES,

CANCEL OR CHANGE VOYAGE CHANGE

STATEROOM ASSIGNMENTS:

(a) Carnival reserves the right to increase published

fares and air fare supplements without prior notice.

However, fully paid or deposited guests will be protected, except for fares listed, quoted, advertised or

booked in error, fuel supplements, government taxes,

other surcharges and changes to deposit, payment and

cancellation terms/conditions, which are subject to

change without notice. In the event that a cruise fare

listed, quoted or advertised through any website, Carnival sales person, travel agent or any other source is

booked but is incorrect due to an electronic error,

App. 53

typographical error, human error or any other error

causing the fare to be listed, quoted or advertised for

an amount not intended by Carnival, Carnival reserves the right to correct the erroneous fare by requesting the Guest to pay the correct fare intended, or

by canceling the cruise in exchange for a full refund,

but in no event shall Carnival be obligated to honor

any such booking resulting from the error or otherwise

be liable in such circumstances.

(b) Carnival reserves the right to offer promotional

cruise fares that require a minimum occupancy requirement per cabin. When the booked cruise fare is

contingent on a minimum occupancy requirement per

cabin, cancellation by one or more guests in a cabin

may cause an adjustment to the remaining guests

booked cruise fare based on the prevailing and available rate at the time of the cancellation (“recalculated

fare”). Final payment in full of the recalculated fares

for all remaining guests in a cabin is due by 11:59:59

p.m. EST on the eve before the start of the cancellation

penalty period. Failure to make timely final payment

in full of the recalculated fares by all remaining guests

in a cabin will result in automatic cancellation of the

reservation for the entire cabin.

cancel this contract at the port of embarkation or any

time during the voyage and shall thereupon return to

the Guest, if the Contract is completely canceled, his

passage money, or, if the Contract is partially canceled,

App. 54

a proportionate part thereof. Under such circumstances, Carnival shall have no further liability for

damages or compensation of any kind.

(d) The Vessel shall be entitled to leave and enter

ports with or without pilots or tugs, to tow and assist

other vessels in any circumstances, to return to or enter any port at the Master’s discretion and for any purpose, and to deviate in any direction or for any purpose

from the direct or usual course, and to omit or change

any or all port calls, arrival or departure times, with or

without notice, for any reason whatsoever, including

but not limited to safety, security, adverse weather,

strikes, tides, hostilities, civil unrest, port closings,

emergency debarkations of Guests or crew, late air, sea,

car or motor coach departures or arrivals, mechanical

breakdowns, US or foreign governmental advisories or

travel warnings, all such deviations being considered

as forming part of and included in the proposed voyage.

Carnival shall have no liability for any compensation

or other damages in such circumstances other than as

provided by Carnival’s change of itinerary policy at the

time Guest or his agent acknowledges receipt and acceptance of the terms and conditions of the cruise

ticket contract. Carnival’s change of itinerary policy

can be found at www.carnival.com.

(e) If the performance of the proposed voyage is hindered or prevented (or in the opinion of Carnival or the

Master is likely to be hindered or prevented) by war,

hostilities, blockage, ice, labor conflicts, strikes on

board or ashore, restraint of Princes, Rulers or People,

seizure under legal process, breakdown of the Vessel,

App. 55

congestion, docking difficulties or any other cause

whatsoever or if Carnival or the Master considers that

for any reason whatsoever, proceeding to, attempting

to enter, or entering or remaining at the port of Guest’s

destination may expose the Vessel to risk or loss or

damage or be likely to delay her, the Guest and his baggage may be landed at the port of embarkation or at

any port or place at which the Vessel may call, at which

time the responsibility of Carnival shall cease and this

contract shall be deemed to have been fully performed,

or if the Guest has not embarked, Carnival may cancel

the proposed voyage without liability to refund passage money or fares paid in advance.

(f) Carnival and the Master shall have liberty to comply with any orders, recommendations or directions

whatsoever given by the Government or Department

of any nation or by any person acting or purporting to

act with the authority of such Government or Department or by any Committee or person having under the

terms of the War Risks Insurance on the Vessel the

right to give such orders, recommendations or directions, and if by reason of, and in compliance with any

such orders, recommendations or directions anything

is done or is not done the same shall not be deemed a

deviation or a breach of this contract. Disembarkation

of any Guest or discharge of baggage in accordance

with such orders, recommendations or directions shall

constitute due and proper fulfillment of the obligation

of Carnival under this Contract.

(g) Specific stateroom assignments are not guaranteed. Carnival reserves the right to move Guests to a

App. 56

comparable stateroom for any reason, including but

not limited to, instances in which a stateroom is

booked with fewer than the maximum number of

Guests the stateroom can accommodate; or when a partial Guest cancellation occurs and the remaining number of Guests do not match the maximum number of

Guests the stateroom can accommodate.

8. COMPLIANCE WITH RULES, SOLICITATION, SMOKING, DRINKING, ILLEGAL ACTIVITY, SEARCHES

(a) Guest agrees during the course of the voyage to

follow the directions of the ship’s Master, or his authorized officer. Guest further agrees not to solicit anyone

on the vessel for any commercial or professional purposes. Guest agrees that any violation of this Clause

may subject guest to disembarkation.

(b) Guest acknowledges that Carnival’s vessels contain non-smoking sections. Guest agrees to refrain

from smoking in those sections and agrees that Carnival has the right to disembark the Guest for failure to

observe Carnival’s non-smoking policy.

suite accommodations as an entirely smoke free environment. Guest booked in a Spa cabin agrees to strictly

comply with this non-smoking policy and refrain from

smoking or allowing any other Guests from smoking in

the Spa cabin. Guest further acknowledges and agrees

that any violation of this policy shall, in the sole discretion of Carnival, constitute a material breach of this

App. 57

cruise contract. In the event of such breach, Guest forfeits all rights hereunder, including the right to

occupy the Spa Cabin and remain on board. Carnival

reserves the right to move the Guest(s) to a nonSpa cabin or to disembark the Guest(s), at any port, as

determined by Carnival. Carnival shall not be liable

for any refund or other compensation or damages

whatsoever to any Guest vacated from the Spa Cabin

or disembarked pursuant to this provision, or who disembarks because another Guest is so disembarked,

and all such Guests forfeit all rights under Carnival’s

“Vacation Guarantee.” Guest and Carnival furtheragree that any violation of the non-smoking policy

would also cause Carnival to incur damages, including

but not limited to, loss of Guest goodwill, revenue,

cleaning, maintenance and/or other costs. Guest and

Carnival expressly acknowledge the difficulty of ascertaining the amount of such damages, and therefore

agree that a reasonable estimate of the damages for

any violation of the non-smoking policy is $250. Guest

authorizes a charge in this amount as liquidated damages, as well as repatriation expenses (including airfare) against Guest’s on board charge account, without

further notice, for any violation of the non-smoking

policy.

(d) Guest agrees, in all ports of call, to return to the

Vessel not less than 30 minutes before the scheduled

departure time. Guest further acknowledges that

shipboard and shore side clocks may have different

times, but it is Guest’s responsibility to return to the

vessel so as not to miss vessel’s departure. Any costs

App. 58

associated with transporting Guest to rejoin the vessel

including, but not limited to, governmental fees, visa

fees, subsistence, lodging, air fare, launch fare, car hire

or agency fees shall be for the account of Guest.

(e) Carnival has a “zero tolerance” policy toward any

illegal activity or behavior by Guests or crew aboard.

Guest agrees to comply with this policy and further

acknowledges that it is Carnival’s policy to report incidents of illegal activity or behavior to the appropriate

law enforcement authorities.

(f ) Except as noted below, Guests are prohibited from

bringing alcohol on Carnival’s vessels for on board consumption. However, at the beginning of the cruise during embarkation day, guests 21 years and older may

bring on board, only in their carry-on luggage, one bottle, per person, of wine or champagne, 750ml or less.

A $10 corkage fee per bottle will be charged should

guests wish to consume this wine/champagne in the

dining room, or a $14 corkage fee per bottle if consumed in the Supper Club. All alcohol, additional

quantities of wine/champagne and excessive nonalcoholic beverages will be confiscated and discarded

without compensation. Alcoholic beverages purchased

in the vessel’s gift shops or at a port of call will be retained by Carnival until the end of the voyage. Carnival reserves the right to refuse to serve alcohol to any

passenger. Guest acknowledges that the minimum age

permitted for the purchase, possession or consumption

of alcoholic beverages aboard Carnival’s vessels is

twenty-one (21). Guest agrees to supervise all persons

under age twenty-one (21) under Guest’s charge to

App. 59

insure that they do not violate this, or any other, shipboard regulation. Guests who attempt to purchase alcohol by using false identification or the Sail & Sign

card of a Guest who is twenty-one or older will be

deemed in violation of this policy. Any Guest twentyone or older who attempts to or purchases alcohol for

any guest under twenty-one will also be deemed in violation of this policy. Guest agrees that Carnival has

the right to disembark any guest who violates this policy and as well as any adults traveling with minors

who violate this policy or any other shipboard regulation.

(g) All Guests agree Carnival has, at all times with or

without notice, the right to enter and search Guest’s

stateroom, personal safe or storage spaces, or to search

or screen any Guest, and/or personal effects, at any location, to ensure compliance with any of the restrictions set forth in this agreement. Any Guest who

refuses any such search or screening may be denied

boarding or disembarked and no refund of the cruise

fare will be issued.

9. GUEST’S REIMBURSEMENT FOR FINES,

EXPENSES, DEBTS AND DAMAGES

(a) The Guest shall be liable to and shall reimburse

Carnival or the Master for any fines or penalties imposed on Carnival by any government, governmental

agency or official, port or port official, for Guest’s failure to observe or comply with local requirements in

respect of immigration, border patrol, customs and

App. 60

excise, agriculture, health or any other government

regulation whatsoever.

(b) The Guest or Guest’s estate shall be liable to and

shall reimburse Carnival for all deviation expenses (including loss of revenue), damages to the Vessel, its furnishings, operations or equipment, or any property of

Carnival caused directly or indirectly, in whole or in

part, by any misconduct, willful or negligent act or

omission on the part of the Guest or any minors traveling with Guest. The Guest or Guest’s estate shall defend and indemnify Carnival and the Vessel, their

servants and agents against liability which Carnival

or the Vessel or such servants or agents may incur towards any person, company or Government for any

damage to property, personal injury or death caused

directly or indirectly, in whole or in part, by any misconduct, willful or negligent act or omission on the part

of the Guest or minors traveling with Guest.

baggage, money and other property whatsoever accompanying the Guest and the right to sell the same by

public auction or otherwise for all sums whatsoever

due from the Guest under this Contract and for the

costs and expenses of enforcing such lien and such sale.

10. INDEPENDENT CONTRACTORS, SHORE

EXCURSIONS AND OTHER SERVICES

(a) Guest acknowledges that all Shore excursions/

tours (whether conducted in the water, on land or by

air), airline flights and ground transportation, as well

App. 61

as the ship’s physician, and on board concessions (including but not limited to, the gift shops, spa, beauty

salon, fitness center, golf and art programs, video/

snorkel concession) are either operated by or are independent contractors. Even though Carnival shall be

entitled to collect a fee and earn a profit from the ticketing or sale of such services by such persons or entities, Carnival neither supervises nor controls their

actions, nor makes any representation either express

or implied as to their suitability. Carnival, in arranging

for the services called for by the physician or nurse, all

on board concessions, all shore excursion/tour tickets,

all pre and post cruise airline flights or other transportation off of the ship and its tenders, does so only as a

convenience for the Guest and Guests are free to use

or not use these services. Guest agrees that Carnival

assumes no responsibility, does not guarantee performance and in no event shall be liable for any negligent

or intentional acts or omissions, loss, damage, injury or

delay to Guest and/or Guest’s baggage, property or effects in connection with said services. Guests use the

services of all independent contractors at the Guest’s

sole risk. Independent contractors are entitled to make

a proper charge for any service performed with respect

to a Guest

(b) Guest acknowledges that the ship’s masseuse,

barber, hair dresser, manicurist, fitness or golf instructor, videographer, art auctioneer, gift shop personnel,

wedding planners or other providers of personal services are employees of independent contractors and

Carnival is not responsible for their actions. Guest

App. 62

further acknowledges that although independent contractors or their employees may use signage or clothing which contains the name “Carnival” or other

related trade names or logos, the independent contractor status remains unchanged. Independent contractors, their employees and assistants are not agents,

servants or employees of Carnival and have no authority to act on behalf of Carnival.

11. LIMITATIONS OF CARNIVAL’S LIABILITY

(a) In consideration for the fare paid, it is agreed that

Carnival shall not be held vicariously liable for the intentional or negligent acts of any persons not employed

by Carnival nor for any intentional or negligent acts of

Carnival’s employees committed while off duty or outside the course and scope of their employment.

(b) In consideration for the fare paid, it is agreed that

Carnival shall have no liability as a consequence of

guest’s use of ship’s athletic or recreational equipment

or as a consequence of guest’s decision to participate in

any athletic or recreational activity or event.

call at any U.S. port, Carnival shall be entitled to any

and all liability limitations and immunities provided

under the Athens Convention Relating to the Carriage

of Passengers and Their Luggage by Sea of 1974, as

well as the 1976 Protocol to the Convention Relating

to the Carriage of Passengers and Their Luggage by

Sea (“Athens Convention”), which limits Carnival’s liability for death or personal injury of a passenger to no

App. 63

more than 46,666 Special Drawing Rights as defined

therein (approximately U.S. $60,000 which fluctuates

depending on daily exchange rate as printed in the

Wall Street Journal), and all other limits for damage

or loss to personal property.

(d) Carnival shall not be liable to the passenger for

damages for emotional distress, mental suffering/

anguish or psychological injury of any kind under any

circumstances, except when such damages were

caused by the negligence of Carnival and resulted from

the same passenger sustaining actual physical injury,

or having been at risk of actual physical injury, or

when such damages are held to be intentionally inflicted by Carnival.

(e) In addition to all the restrictions and exemptions

from liability provided in this Contract, Carnival shall

have the benefit of all statutes of the United States of

America providing for limitation and exoneration from

liability and the procedures provide [sic] thereby, including but not limited Title 46 of the United States

Code sections 30501 through 30509, and 30511. Nothing in this Contract is intended to nor shall it operate

to limit or deprive Carnival or any such statutory limitation of or exoneration from liability under any applicable laws.

12. JURISDICTION, VENUE, ARBITRATION

AND TIME LIMITS FOR CLAIMS

(a) Carnival shall not be liable for any claims whatsoever for personal injury, illness or death of the guest,

App. 64

unless full particulars in writing are given to Carnival

within 185 days after the date of the injury, event, illness or death giving rise to the claim. Suit to recover

on any such claim shall not be maintainable unless

flied within one year after the date of the injury, event,

illness or death, and unless served on Carnival within

120 days after filing. Guest expressly waives all other

potentially applicable state or federal limitations periods.

(b) Carnival shall not be liable for any claims whatsoever, other than for personal injury, illness or death

of the Guest, unless full particulars in writing are

given to Carnival within 30 days after the Guest is

landed from the Vessel or in the case the Voyage is

abandoned, within 30 days thereafter. Legal proceedings to recover on any claim whatsoever other than for

personal injury, illness or death shall not be maintainable unless commenced within six months after the

date Guest is landed from the Vessel or in the case the

Voyage is abandoned, within six months thereafter,

and unless served upon Carnival within 120 days after

commencement. Guest expressly waives all other potentially applicable state or federal limitation periods

for claims which include, but are not limited to, allegations concerning any and all civil rights, the ADA,

trade practices and/or advertising

agreed by and between the Guest and Carnival that all

disputes and matters whatsoever arising under, in connection with or incident to this Contract or the Guest’s

cruise, including travel to and from the vessel, shall be

App. 65

litigated, if at all, before the United States District

Court for the Southern District of Florida in Miami, or

as to those lawsuits to which the Federal Courts of the

United States lack subject matter jurisdiction, before

a court located in Miami-Dade County, Florida, U.S.A.

to the exclusion of the Courts of any other county, state

or country.

(d) Any and all disputes, claims, or controversies

whatsoever, other than for personal injury, illness or

death of a Guest, whether brought in personam or in

rem or based on contract, tort, statutory, constitutional

or other legal rights, including but not limited to alleged violation of civil rights, discrimination, consumer

or privacy laws, or for any losses, damages or expenses,

relating to or in any way arising out of or connected

with this Contract or Guest’s cruise, no matter how described, pleaded or styled, between the Guest and Carnival, with the sole exception of claims brought and

litigated in small claims court, shall be referred to and

resolved exclusively by binding arbitration pursuant to

the United Nations Convention on the Recognition and

Enforcement of Foreign Arbitral Awards (New York

1958), 21 U.S.T. 2517, 330 U.N.T.S. 3, 1970 U.S.T.

LEXIS 115, 9 U.S.C. §§ 202-208 (“the Convention”) and

the Federal Arbitration Act, 9 U.S.C. §§ 1, et seq.,

(“FAA”) solely in Miami-Dade County, Florida, U.S.A.

to the exclusion of any other forum. Guest hereby consents to jurisdiction and waives any venue or other objection that may be available to any such arbitration

proceeding in Miami-Dade, Florida. The arbitration

shall be administered by National Arbitration and

App. 66

Mediation (“NAM”) under its Comprehensive Dispute

Resolution Rules and Procedures and the fee schedule

in effect at the time of initiating the proceeding with

NAM, which are deemed to be incorporated herein by

reference. If you have a question about the arbitration

process or to obtain a current copy of the Comprehensive Dispute Resolution Rules and Procedures and/or

fee schedule, you can contact them at: National Arbitration and Mediation, attention Claims Department,

990 Stewart Street, First Floor, Garden City, NY

11530, telephone number (800) 358-2550.

NEITHER PARTY WILL HAVE THE RIGHT TO A

JURY TRIAL OR TO ENGAGE IN PRE-ARBITRATION DISCOVERY EXCEPT AS PROVIDED IN

THE APPLICABLE ARBITRATION RULES AND

HEREIN, OR OTHERWISE TO LITIGATE THE

CLAIM IN ANY COURT (OTHER THAN SMALL

CLAIMS COURT). THE ARBITRATOR’S DECISION

WILL BE FINAL AND BINDING. OTHER RIGHTS

THAT GUEST OR CARNIVAL WOULD HAVE IN

COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION. An award rendered by an arbitrator may be

entered in any court having jurisdiction under the

Convention or FAA. Carnival and Guest further agree

to permit the taking of a deposition under oath of the

Guest asserting the claim, or for whose benefit the

claim is asserted, in any such arbitration. In the event

this provision is deemed unenforceable by an arbitrator or court of competent jurisdiction for any reason,

then and only then the provisions of Clause 12(c) above

governing venue and jurisdiction shall exclusively

App. 67

apply to any lawsuit involving claims described in this

Clause.

13. CLASS ACTION WAIVER

THIS CONTRACT PROVIDES FOR THE EXCLUSIVE RESOLUTION OF DISPUTES THROUGH INDIVIDUAL LEGAL ACTION ON GUEST’S OWN

BEHALF INSTEAD OF THROUGH ANY CLASS ACTION. EVEN IF THE APPLICABLE LAW PROVIDES

OTHERWISE, GUEST AGREES THAT ANY ARBITRATION OR LAWSUIT AGAINST CARRIER WHATSOEVER SHALL BE LITIGATED BY GUEST

INDIVIDUALLY AND NOT AS A MEMBER OF ANY

CLASS OR AS PART OF A CLASS ACTION, AND

GUEST EXPRESSLY AGREES TO WAIVE ANY LAW

ENTITLING GUEST TO PARTICIPATE IN A CLASS

ACTION. IF GUEST’S CLAIM IS SUBJECT TO ARBITRATION UNDER CLAUSE 12(d) ABOVE, THE

ARBITRATOR SHALL HAVE NO AUTHORITY TO

ARBITRATE CLAIMS ON A CLASS ACTION BASIS.

GUEST AGREES THAT THIS SECTION SHALL

NOT BE SEVERABLE UNDER ANY CIRCUMSTANCES FROM THE ARBITRATION CLAUSE SET

FORTH IN SECTION 12(d) ABOVE, AND IF FOR

ANY REASON THIS CLASS ACTION WAIVER IS

UNENFORCEABLE AS TO ANY PARTICULAR

CLAIM, THEN AND ONLY THEN SUCH CLAIM

SHALL NOT BE SUBJECT TO ARBITRATION.

App. 68

14. CARNIVAL’S USE OF GUEST’S LIKENESS

Carnival and/or its promotional partners have the exclusive right to include photographic, video and other

visual portrayals of Guest in any medium of any nature whatsoever for the purpose of trade, advertising,

sales, publicity or otherwise, without compensation to

Guest, and all rights, title and interest therein (including all worldwide copyrights therein) shall be Carnival’s sole property, free from any claims by Guest or

any person deriving any rights or interest from Guest.

15. GUEST’S USE OF PHOTOS, VIDEOS OR

RECORDINGS PROHIBITED

Guest hereby expressly agrees that he/she will not utilize any tape recording, video, or photograph(s) of

himself/herself, any other guest, crew, or third party on

board the vessel, or depicting the vessel, its design,

equipment, or any part thereof whatsoever, for any

commercial purpose or in any media broadcast, or for

any other non private use, without the express written

consent of Carnival. Guest acknowledges that by

boarding the vessel, at any time, Guest irrevocably

agrees to this provision, which is a condition precedent

to being permitted on board the vessel and can be enforced by any legal means, including, but not limited

to, injunctive relief.

App. 69

16. GUEST’S OBLIGATIONS FOR EXPENSES

OR IF CONFINED, DENIED BOARDING OR

DISEMBARKED

(a) Guest agrees if Carnival incurs any expense or

sustains any damage as delineated in but not limited

to Clauses 2, 4, 8, 9 and 16, that Carnival may charge

Guest’s on-board charge account for any expense incurred or damage sustained.

(b) If guest is denied boarding, confined to a stateroom or disembarked from the vessel pursuant to any

provision of this contract, including but not limited to

Clauses 2, 4. 5, or 8, guest agrees:

i. Carnival will not be liable for any refund of Cruise

Fare, other compensation or any damages.

ii. All rights under Carnival’s Vacation Guarantee

are forfeited. This forfeiture also applies to any guest

who disembarks because another guest is disembarked.

iii. Disembarkation and repatriation to the embarkation port or any other destination will be at guest’s sole

expense.

iv. To indemnify Carnival and that Carnival may

charge Guest’s on-board charge account for any and all

expenses incurred by Carnival in relation to Guest’s

disembarkation and/or repatriation.

App. 70

IMPORTANT TERMS AND CONDITIONS

FOR NON CRUISE PORTIONS OF VACATION

PACKAGES PLEASE READ CAREFULLY

Please see pages 1 through 11 for the applicable

terms and conditions for the cruise portion of

Guests vacations. The terms and conditions in paragraphs 1 through 11 herein apply only to Carnival’s responsibilities for non cruise portions of

vacation packages. Other terms and conditions

with respect to air travel, hotel and other non

cruise activities may be applied by the entities

providing those services.

The payment of the required deposit or any partial

or full payment for reservation of a land package

before or after the cruise shall constitute acceptance and consent to all of the terms and

conditions of this Contract and the General Information and Vacation Package Conditions and

Restrictions contained in the brochure for such vacation package and/or the brochures and circulars

of the suppliers. These provisions are herby [sic]

incorporated by reference in this Contract and vacation package Guests (hereinafter referred to as

Guests) are advised to take note of them.

Carnival Cruise Lines, its affiliates, subsidiary

companies, agents, servants, and employees (hereinafter referred to as “CARNIVAL”) is the principle [sic] tour operator and its responsibility to

Guests is limited to the arrangement of all tours

and accommodations offered in these vacation

packages. CARNIVAL shall not be responsible for

personal injuries, death, or property damage, economic loss, inconvenience or delay, consequential

App. 71

damages, or change of itinerary or accommodations incurred by any person or Guest which may

occur due to acts or omissions or tortious conduct

on the part of any direct or supplemental air carrier, hotel or other suppliers of arrangements and

services or other independent contractors, their

employees, agents or others not under the direct

control of CARNIVAL.

CARNIVAL reserves the right to decline to accept

or to reject any person as a Guest, at any time, or

to cancel a vacation package due to circumstances

beyond the control of CARNIVAL.

CARNIVAL reserves the right to substitute hotels

for other hotels in a similar category, to substitute

air carriers, and to change schedules without prior

notice should circumstances so require.

If a change in the itinerary is needed due to factors

or conditions beyond CARNIVAL’S control, no refund or credit will be made, however, CARNIVAL

will make an effort to provide accommodations

and services of a comparable quality and standard

as set forth in the brochure. Any such change shall

not modify the cancellation provisions in the brochure. No credit will be allowed nor refund given

for any services provided in the brochure should

any such services not be utilized by Participants.

CARNIVAL makes no representations or warranties, implied or otherwise, in regard to the reliability of suppliers or independent contractors, nor

does it assume a duty of safety or responsibility for

the independent acts of suppliers, independent

contractors, their employees or agents.

App. 72

Vacation packages are non-transferable. Fares

shall be deemed to be earned when paid and nonrefundable unless otherwise expressly stated in

the cancellation provisions in the brochure.

CARNIVAL shall not be liable for any claims

whatsoever other than for personal injury, illness

or death, of the Guest unless full particulars

thereof in writing are given to CARNIVAL within

30 days after the Guest shall complete the packages, or in the case that the tour is abandoned,

within 30 days thereafter. Suit to recover any

claim shall not be maintainable in any event unless commenced within six months after the date

of the loss.

10. Carnival shall not be liable for any claims whatsoever for personal injury, or illness or death of the

guest unless full particulars in writing are given

to Carnival within 185 days after the date of the

injury, event, illness or death giving rise to the

claim. Suit to recover on any such claim shall not

be maintainable unless filed within one year after

the date of the injury, event, illness or death, and

unless served on Carnival within 120 days after

filing.

11. It is agreed by Guest and CARNIVAL that all disputes between Guest and CARNIVAL arising under or in connection with a vacation package shall

be litigated, if at all, in and before the United

States District Court for the Southern District of

Florida in Miami-Dade County, Florida, U.S.A., to

the exclusion of the courts of any other state or

county.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.