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Case No. 2:17-cv-08412-FLA (JEMx)
2022-01-25
Rhonda ESPINOZA, Plaintiff, v. PRINCESS CRUISE LINES, LTD., et al., Defendants.
Aksana Moshaiv Coone, Law Offices of Aksana M. Coone, Los Angeles, CA, Charles D. Naylor, Law Offices of Charles D. Naylor APC, San Pedro, CA, Aaron Michael Brown, Dmitriy Aristov, California Trial Team PC, Long Beach, CA, for Plaintiff. Jeffrey B. Maltzman, Maltzman and Partners PA, Encinitas, CA, Teresa Robin, Senior, Maltzman and Partners PA, Coral Gables, FL, for Defendant Princess Cruise Lines, Ltd. David M. Gillen, Stephen M. Harber, McCune and Harber LLP, Los Angeles, CA, for Defendants Promotura Cultural Y. Gastronomica De Mexico SA de CV, Grupo Plexon.
Aksana Moshaiv Coone, Law Offices of Aksana M. Coone, Los Angeles, CA, Charles D. Naylor, Law Offices of Charles D. Naylor APC, San Pedro, CA, Aaron Michael Brown, Dmitriy Aristov, California Trial Team PC, Long Beach, CA, for Plaintiff.
Jeffrey B. Maltzman, Maltzman and Partners PA, Encinitas, CA, Teresa Robin, Senior, Maltzman and Partners PA, Coral Gables, FL, for Defendant Princess Cruise Lines, Ltd.
David M. Gillen, Stephen M. Harber, McCune and Harber LLP, Los Angeles, CA, for Defendants Promotura Cultural Y. Gastronomica De Mexico SA de CV, Grupo Plexon.
ORDER DENYING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT [DKTS. 65, 76]
FERNANDO L. AENLLE-ROCHA, United States District Judge
RULING
Before the court are motions for summary judgment by Defendants Princess Cruise Lines, Ltd. ("Princess"), Dkt. 76 ("Princess’ Motion"), and Promotora Cultural y Gastronomica De Mexico S.A. de C.V. dba Viva Tequila ("Promotora"), Dkt. 65 ("Promotora's Motion") (collectively, "Defendants’ Motions" or "Motions"). On August 13, 2021, the court found Defendants Princess and Promotora's Motions appropriate for resolution without oral argument and vacated the hearing set for August 20, 2021. Dkt. 92; see Fed. R. Civ. P. 78(b) ; Local Rule 7-15. For the reasons stated herein, the court DENIES Defendants’ Motions.
BACKGROUND
Plaintiff Rhonda Espinoza ("Plaintiff") boarded the cruise ship the Ruby Princess on November 19, 2016, which departed from Los Angeles, California for Puerto Vallarta, Mexico. Dkt. 71-1 (Plaintiff's Statement in Response to Promotora's Separate Statement, or "PSS to Promotora Mot.") at 2, ¶ 1; Dkt. 93-1 (Princess’ Amended Separate Statement, or "Princess Am. St.") ¶ 1. While the Ruby Princess was docked in Puerto Vallarta on November 22, 2016, Plaintiff and her husband exited the ship to participate in the Viva Tequila Tasting, Mariachi Show Beach and Lunch excursion ("Viva Tequila Tour"), an excursion operated by Defendants Promotora and Grupo Plexon. Dkt. 93-1 (Princess Am. St.) ¶¶ 2, 4-5.
For purposes of these motions, the court will cite the page numbers added to the documents by the court's CM/ECF system.
Promotora identifies itself as "Defendant, PROMOTORA CULTURAL y GATRONOMICA de MEXICO, S.A. de C.V. (dba VIVA TEQUILA and GRUPO PLEXON) on the first page of its Motion. Dkt. 65 at 1. It is unclear whether Promotora and Grupo Plexon are separate entities. Nevertheless, the court need not make this determination on the subject Motions.
The Viva Tequila Tour featured a visit to a tequila museum and a Folklorico performance at Teatro Vallarta, a local theater. Dkt. 71-1 (PSS to Promotora Mot.) at 21, ¶¶ 10, 12. On the tour, Plaintiff was offered and drank a small sample margarita and was then directed to enter the theater for the tequila tasting and Folklorico show. Id. at 21, ¶ 12. Plaintiff and her husband were each given a tray with three "small" samples of tequila. Id. at 21, ¶ 13; Dkt. 80 (Promotora Reply Separate Statement, "Promotora RSS") at 24, ¶ 13. Plaintiff drank the clear tequila sample, and only took a sip of the others. Dkt. 71-1 (PSS to Promotora Mot.) at 21, ¶ 13; Dkt. 80 (Promotora RSS) at 24, ¶ 13. After the show, the house lights were brought up, and, as she exited the row of seats and entered the center stairwell, Plaintiff slipped and fell, suffering injuries. Dkt. 71-1 (PSS to Promotora Mot.) at 21, ¶¶ 14-15.
Plaintiff filed the Complaint in this action on November 17, 2017 and asserted four causes of action: (1) "Negligence-General Maritime Law" as to Promotora and Grupo Plexon; (2) "Negligence-General Maritime Law" as to Princess; (3) "Apparent Agency or Agency by Estoppel-General Maritime Law" as to Princess; and (4) "Third Party Beneficiary Breach of Contract-General Maritime Law" as to Princess, Promotora, and Grupo Plexon. Dkt 1 ("Compl").
Promotora filed its Motion for Summary Judgment on July 16, 2021. Dkt. 65. Princess filed its Motion for Summary Judgment on August 4, 2021. Dkt. 76. On August 13, 2021, Princess filed a Notice of Withdrawal, in which it withdrew the portions of its Motion pertaining to Plaintiff's second cause of action for negligence. Dkt. 89. Having found ambiguity in the extent of the withdrawal, the court ordered Princess to file amended versions of its Motion, memorandum of points and authorities, and separate statement of undisputed facts with stricken text that Princess intended the court not consider. Dkt. 92. Princess timely filed its amended materials on August 17, 2021. Dkts. 93, 93-1 (Princess Am. St.), 93-2 (Amended Memorandum or "Princess Am. Mem.").
EVIDENTIARY OBJECTIONS
Plaintiff and Defendants Princess and Promotora filed objections to evidence used in support of the party's moving or opposing papers. Dkts. 74, 81, 84, 88. In moving for or opposing a summary judgment motion, "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2).
After reviewing the parties’ arguments, the court finds each objecting party fails to establish the opposing party's evidence "cannot be presented in a form that would be admissible in evidence" at trial. See id. While objections to evidence may be cognizable at trial, on a motion for summary judgment, the court is concerned only with the admissibility of the relevant facts at trial, and not the form of these facts as presented in the motions. See Fed. R. Civ. P. 56(c)(2) advisory committee's note to 2010 amendment ("Subdivision (c)(2) provides that a party may object that material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. The objection functions much as an objection at trial, adjusted for the pretrial setting."); Fraser v. Goodale , 342 F.3d 1032, 1036 (9th Cir. 2003) ("At the summary judgment stage, we do not focus on the admissibility of the evidence's form. We instead focus on the admissibility of its contents."); Block v. City of L.A. , 253 F.3d 410, 418-19 (9th Cir. 2001) ("To survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rule of Civil Procedure 56."); Fonseca v. Sysco Food Servs. of Ariz., Inc. , 374 F.3d 840, 846 (9th Cir. 2004) (finding "declarations that do contain hearsay are admissible for summary judgment purposes because they could be presented in an admissible form at trial") (quotation marks omitted).
Thus, the court DENIES all objections to all evidence on which the court relies in ruling on the parties’ motions. The court further DENIES AS MOOT all of Defendants’ objections to evidence on which the court does not rely herein.
The court further declines to consider Princess’ Supplemental Declaration of Lisa Banner, Dkt. 82, offered for the first time with Princess’ Reply in support of its Motion. Zamani v. Carnes , 491 F.3d 990, 997 (9th Cir. 2007) ("The district court need not consider arguments raised for the first time in a reply brief"). Thus, the court DENIES AS MOOT Plaintiff's objections to the Banner Declaration and exhibits thereto, Dkt. 88.
LEGAL STANDARD
Summary judgment is appropriate where "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). The moving party bears the initial burden of identifying relevant portions of the record that demonstrate the absence of a fact or facts necessary for one or more essential elements of each claim upon which the moving party seeks judgment. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Facts are "material" only if dispute about them may affect the outcome of the case under applicable substantive law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmovant. Id.
If the moving party meets its initial burden, the opposing party must then set out specific facts showing a genuine issue for trial to defeat the motion. Anderson , 477 U.S. at 248-49, 106 S.Ct. 2505 ; see also Fed. R. Civ. P. 56(c), (e). Summary judgment must be granted for the moving party if the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex , 477 U.S. at 322, 106 S.Ct. 2548. The court must decide whether the moving party is entitled to judgment as a matter of law in light of the facts presented by the nonmoving party, along with any undisputed facts. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n , 809 F.2d 626, 630-31 & n. 3 (9th Cir. 1987). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ " Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
When deciding a motion for summary judgment, "the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion." Id. at 587, 106 S.Ct. 1348. "If the nonmoving party produces direct evidence of a material fact, the court may not assess the credibility of this evidence nor weigh against it any conflicting evidence presented by the moving party. ... Inferences from the nonmoving party's ‘specific facts’ as to other material facts, however, may be drawn only if they are reasonable in view of other undisputed background or contextual facts and only if such inferences are otherwise permissible under the governing substantive law." T.W. Elec. , 809 F.2d at 631-32. "[S]ummary judgment should not be granted where contradictory inferences may reasonably be drawn from undisputed evidentiary facts...." Hollingsworth Solderless Terminal Co. v. Turley , 622 F.2d 1324, 1335 (9th Cir. 1980). The nonmoving party, however, must not simply rely on the pleadings and must do more than make "conclusory allegations [in] an affidavit." Lujan v. Nat'l Wildlife Fed'n , 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) ; see also Celotex , 477 U.S. at 324, 106 S.Ct. 2548.
PROMOTORA'S MOTION FOR SUMMARY JUDGMENT
Promotora moves for summary judgment on both of Plaintiff's claims against it: the first cause of action for negligence and the fourth cause of action for breach of contract as a third-party beneficiary. Dkt. 65 (Promotora Mot.); see Dkt. 1 (Compl.) ¶¶ 18-21, 30-43. The court will address the parties’ arguments regarding each claim in turn.
I. Plaintiff's First Cause of Action for Negligence Against Promotora
Plaintiff alleges Promotora owed Plaintiff a duty to exercise reasonable care under the circumstances to avoid causing her personal injuries and to warn Plaintiff of any dangerous conditions that were known or could have been discovered by reasonable inspection. Dkt. 1 (Compl.) ¶ 19. According to Plaintiff, Promotora breached its duty by causing or allowing the dangerous conditions to exist on the excursion, failing to take appropriate remedial action, and failing to warn Plaintiff of dangerous conditions. Id. ¶ 20.
A. Whether Maritime Law Applies Based on the Court's Maritime Jurisdiction
Article III of the Constitution grants the federal courts jurisdiction over maritime cases. U.S. Const. art III, § 2, cl. 1. Federal district courts have "original jurisdiction, exclusive of the courts of the States, of ... [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled." 28 U.S.C. § 1333(1). "The admiralty and maritime jurisdiction of the United States extends to and includes cases of injury or damage, to person or property, caused by a vessel on navigable waters, even though the injury or damage is done or consummated on land." 46 U.S.C. § 30101.
Plaintiff asserts this court has jurisdiction to decide her claims against Promotora, either sitting in diversity under 28 U.S.C. § 1332 or under admiralty jurisdiction pursuant to 28 U.S.C. § 1333. Dkt. 1 (Compl.) ¶ 1. "Under either jurisdictional statute, federal maritime law governs if the claim comes within the admiralty and maritime jurisdiction conferred on the district courts by the Constitution and the jurisdictional statutes." Adamson v. Port of Bellingham , 907 F.3d 1122, 1126 (9th Cir. 2018) (quotation marks, brackets, and citations omitted). "In other words, if the district court could have maritime jurisdiction over a tort claim, substantive maritime law controls the claim, whatever the forum or asserted basis of jurisdiction." Id. (quotation marks, brackets, and citations omitted); see E. River S.S. Corp. v. Transamerica Delaval , 476 U.S. 858, 864, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986) ("With admiralty jurisdiction comes the application of substantive admiralty law."). Accordingly, if Plaintiff's claims fall within maritime jurisdiction, then substantive maritime law controls; if they do not, however, then the court must apply other substantive law. See Adamson , 907 F.3d at 1126.
The Ninth Circuit has advised it "use[s] the terms ‘admiralty’ and ‘maritime’ interchangeably, as the relevant caselaw often uses both words without apparent distinction." Gruver v. Lesman Fisheries, Inc. , 489 F.3d 978, 982 n. 5 (9th Cir. 2007).
"Over time, courts have developed tests for ... [tort] claim[s] that determine whether a claim has sufficient ‘maritime flavor’ that a litigant may properly invoke federal admiralty jurisdiction." Ali v. Rogers , 780 F.3d 1229, 1235 (9th Cir. 2015). The relevant tort or harm must (1) have occurred on or over navigable water or been caused by a vessel on navigable water if the injury were suffered on land (the "location test"), and (2) bear a nexus to traditional maritime activity (the "connection test"). E.g., Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co. , 513 U.S. 527, 534, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995) ; Ali , 780 F.3d at 1235. Under this analysis, the court must "look at a tort claim's general features, rather than at its minute particulars, to assess whether there is the requisite connection[.]" Ali , 780 F.3d at 1235.
1. The Location Test and Plaintiff's Negligence Claim
The court must first assess whether the relevant tort or harm took place on navigable water or an injury on land was caused by a vessel on navigable water. See Ali , 780 F.3d at 1235. "[T]he situs of a tort for the purpose of determining admiralty jurisdiction is the place where the injury occurs." Taghadomi v. United States , 401 F.3d 1080, 1084 (9th Cir. 2005). In the simplest case, where the alleged injury occurs on navigable waters, the situs element is easily satisfied. See Tobar v. United States , 639 F.3d 1191, 1197 (9th Cir. 2011). Courts have also exercised admiralty jurisdiction when the injury is suffered on navigable waters, even where the resulting damage from the alleged tortious act occurred on land. See, e.g., Taghadomi , 401 F.3d at 1084-85. Where the injury occurs on land, however, courts may decline to exercise maritime jurisdiction unless the injury is "caused by a vessel on navigable waters," under 46 U.S.C. § 30101 (the Admiralty Extension Act, "AEA"). See, e.g., Adamson , 907 F.3d at 1126, 1132 (holding the AEA does not extend to injuries "on a pier by pier-based equipment" because an injury that occurs on land "must have been caused by a vessel or its appurtenance" for maritime jurisdiction to apply). Here, it is undisputed Plaintiff's injury occurred not on navigable waters, but on Mexican territory, inside the Teatro Vallarta, where she fell down a flight of stairs and sustained injuries. Dkt. 71-1 (PSS to Promotora Mot.) at 21-22, ¶¶ 11-12, 14-16. Because Plaintiff's injuries occurred on land, Promotora argues maritime law does not apply to Plaintiff's negligence claim against it. Dkt. 64 (Promotora Mem.) at 13. Plaintiff, meanwhile, argues maritime law applies to her claim against Promotora and relies on Doe v. Celebrity Cruises , 394 F.3d 891 (11th Cir. 2004), and Norfolk Southern Railway Co. v. James N. Kirby Pty Ltd. , 543 U.S. 14, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004), to argue that "courts have uniformly held that admiralty jurisdiction extends to passengers’ injuries in ports of call." Dkt. 71 (Pl. Opp. to Promotora Motion) at 15-16.
According to Plaintiff, the Eleventh Circuit held in Doe , 394 F.3d at 901, that it is immaterial whether a tort occurred on the ship or in a scheduled port of call, for purposes of maritime jurisdiction. Dkt. 71 (Pl. Opp. to Promotora Motion) at 15-16. The court disagrees and, like the Eleventh Circuit, considers Doe to represent "the outer boundaries of admiralty jurisdiction over torts," due in large part to "the peculiar circumstances" of that case. Doe , 394 F.3d at 901.
Although Doe is routinely cited within the Eleventh Circuit, Plaintiff cites no case within the Ninth Circuit adopting its reasoning to hold that admiralty jurisdiction extends to torts that occur in ports-of-call. Doe constitutes only persuasive authority and, as explained below, even if it were binding on this court, the undisputed facts underlying Plaintiff's claim against Promotora are distinguishable from those in Doe.
In Doe , the plaintiff brought tort claims against the defendant cruise line and sought to hold it vicariously liable for sexual battery committed by an employee of the cruise line, a waiter who had been assigned to serve the plaintiff, Doe, every night during dinner service on the cruise ship. Id. at 894, 897. The evidence at trial showed the waiter recommended a nightclub, located "a short, five-to-ten-minute walk from the ship," to Doe and her friends at dinner, and later encountered the plaintiff at the nightclub, while off-duty. Id. at 897-98. After the nightclub closed at 3:00 a.m., the employee discovered Doe intoxicated and "lying on the ground in need of assistance" and "offered to help her find a bathroom," ultimately leading her to a small public park within the vicinity of the cruise ship. Id. at 898 & n. 6. The jury found that the employee sexually assaulted the plaintiff in the park, before walking her back to the ship. Id. at 898.
In finding the alleged tort fell within "the outer boundaries of admiralty jurisdiction," the Eleventh Circuit relied on Norfolk to reject drawing a "bright line" rule that jurisdiction was limited to the shoreline and proceeded to set forth in detail the "particular circumstances" that supported extending admiralty jurisdiction in that case.
First, the Eleventh Circuit noted that the battery occurred in a scheduled port-of-call, which it explained "was an integral part of the on-going cruise or maritime activity in [that] case." Id. at 901 ("Ports-of-call not only add to the enjoyment of a cruise but form an essential function of the cruise experience. ... Simply put, the destinations or ports-of-call are frequently the main attraction.").
Second, the court found relevant that "[t]he sexual battery occurred very close to the docked ship, and neither the victim passenger nor the crew member left the port-of-call or traveled any real distance from the ship." Id. Moreover, "when docked at the port-of-call, the cruise ship allowed passengers to come and go from the ship as they elected," such that "there was little practical difference between the port-of-call and other parts of the ship." Id.
Third, the Eleventh Circuit recognized that:
[I]n many ways this particular incident effectively began and ended aboard the cruise ship. The necessary precursors for this sexual battery occurred while the ship was on navigable waters; that is, it would not have occurred if the ship had not assigned Aydin to be Doe's waiter or if Aydin had not directed Doe's group to attend this particular bar within eyeshot of the ship on that fateful night. And the incident did not end until Aydin and Doe returned to the ship and parted ways.
Id. at 901-02.
Finally, Doe recognized that the purpose behind the court's exercise of admiralty jurisdiction "is to provide for the uniform application of general maritime law" and that "the standard of care that governs when a cruise line's crew member assaults a passenger should be uniform and not vary from port to port on a single cruise." Id. at 902.
These same considerations do not apply to the case at hand. Unlike in Doe , here, Plaintiff submits no evidence that the injury was sustained close to or within sight of the Ruby Princess or that precursor events on the cruise ship itself, if any, bore a nexus to Promotora's alleged negligence and Plaintiff's injury. See generally Dkt. 71-1 (PSS to Promotora Mot.). To the contrary, it is undisputed that Plaintiff booked the Viva Tequila! event through Princess’ website, a week before boarding the cruise ship and while she was still on land. Dkt. 71-1 (PSS to Promotora Mot.) at 4, ¶ 8. The mere fact that Plaintiff suffered injury at an event while she was at a port-of-call is, alone, insufficient to demonstrate that Plaintiff's injury occurred on navigable waters or was caused by a vessel on navigable waters. See Jerome B. Grubart , 513 U.S. at 534, 115 S.Ct. 1043. Plaintiff, thus, fails to demonstrate her claims against Promotora satisfy the location test for admiralty jurisdiction.
Plaintiff next argues that admiralty jurisdiction should apply because the Supreme Court recognized in Norfolk , 543 U.S. at 25, 125 S.Ct. 385, that "the shore is now an artificial place to draw a line." Dkt. 71 (Pl. Opp. to Promotora Motion) at 16. The Court, however, made that statement in discussing admiralty jurisdiction for maritime contracts under the two-step analysis from Kossick v. United Fruit Co. , 365 U.S. 731, 735, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961) ; it did not assess whether the same reasoning applies for maritime torts, which employ a different two-part test under Jerome B. Grubart , 513 U.S. at 534, 115 S.Ct. 1043, as stated above, and do not implicate the same interests of efficiency and protection of maritime commerce. See Norfolk , 543 U.S. at 25, 125 S.Ct. 385. Indeed, Norfolk itself noted the analysis of whether a contract arises under maritime jurisdiction is distinct from the analysis for torts. See id. at 23, 125 S.Ct. 385 ("We have recognized that the boundaries of admiralty jurisdiction over contracts—as opposed to torts or crimes—being conceptual rather than spatial, have always been difficult to draw. To ascertain whether a contract is a maritime one, we cannot look to whether a ship or other vessel was involved in the dispute, as we would in a putative maritime tort case.") (citations and quotation marks omitted).
Plaintiff cites no Ninth Circuit case extending Norfolk from maritime contract to tort law. See Dkt. 71 (Pl. Opp. to Promotora Mot.) at 15-17. After Norfolk , district courts within the Ninth Circuit have continued to recognize that injuries suffered on land do not fall within admiralty jurisdiction under 28 U.S.C. § 1333. See, e.g., Signal Mut. Indem. Ass'n, Ltd. v. Dignity Health , Case No. 4:15-cv-03818-HSG, 2016 WL 3902492, at *3, 2016 U.S. Dist. LEXIS 94123, at *7 (N.D. Cal. July 19, 2016) (citing Jerome B. Grubart , 513 U.S. at 534, 115 S.Ct. 1043, and Ninth Circuit authority; holding plaintiff's negligence claim for workplace injury suffered on land fell outside court's admiralty jurisdiction); see also Andia v. Full Serv. Travel , Case No. 3:06-cv-00437-WQH (JMA), 2007 WL 4258634, at *3-7, 2007 U.S. Dist. LEXIS 88247, at *9-21 (S.D. Cal. Nov. 29, 2007) (concluding state law applied to tort claims against an onshore tour operator for injuries sustained during a cruise excursion). In the absence of controlling authority establishing that the Court's reasoning in Norfolk extends to maritime tort law and the court's jurisdiction under 46 U.S.C. § 30101, the court will not conclude it has maritime jurisdiction on this basis.
The district court cases Plaintiff cites in support of her arguments, Dkt. 71 (Pl. Opp. to Promotora Mot.) at 16-17, are from other circuits, rely on Norfolk , 543 U.S. 14, 125 S.Ct. 385, 160 L.Ed.2d 283, and Doe , 394 F.3d 891, and are neither binding on this court nor persuasive with respect to Plaintiff's claims against Promotora for the reasons stated above. See, e.g., Skeen v. Carnival Corp. , Case No. 1:08-cv-22618-MGC, 2009 WL 1117432, at *2, 2009 U.S. Dist. LEXIS 39355, at *7 (S.D. Fla. Apr. 24, 2009) (holding admiralty jurisdiction existed as to plaintiff's claims against defendant cruise ship and tour operator); Ash v. Royal Caribbean Cruises Ltd. , Case No. 1:13-cv-20619-JG, 2014 WL 2480612, at *5, 2014 U.S. Dist. LEXIS 75387, at *16 (S.D. Fla. June 3, 2014). Many of these cases are also distinguishable as they involved claims against cruise ships instead of tour operators located at a port-of-call. See, e.g., Smolnikar v. Royal Caribbean Cruises Ltd. , 787 F. Supp. 2d 1308, 1315 (S.D. Fla. 2011) ; Balaschak v. Royal Caribbean Cruises, Ltd. , Case No. 1:09-cv-21196-CMA, 2009 WL 8659594, at *4-5, 2009 U.S. Dist. LEXIS 126949, at *13 (S.D. Fla. Sep. 14, 2009).
Accordingly, Plaintiff fails to establish that the court may properly exercise maritime jurisdiction over her negligence claim against Promotora. Because the application of maritime law requires the existence of maritime jurisdiction, the court declines to apply maritime law to Plaintiff's tort claim against Promotora on this basis. See Adamson v. Port of Bellingham , 907 F.3d 1122, 1126 (9th Cir. 2018). For the sake of completeness, the court also briefly addresses the second prong of the jurisdiction analysis: whether Plaintiff's claim bears a nexus to maritime activity. See Jerome B. Grubart , 513 U.S. at 534, 115 S.Ct. 1043.
Promotora cites Samuels v. Holland Am. Line-USA, Inc. , 656 F.3d 948, 953 (9th Cir. 2011), for the proposition that maritime law does not apply because Plaintiff's claims do not arise out of "a form of ‘maritime travel’ when and where the incident occurred." Dkt. 64 (Promotora Mem.) at 13. Having found that Plaintiff's claims do not trigger the court's maritime jurisdiction based on the record and briefing currently before the court, the court need not address Promotora's arguments with respect to Samuels.
2. The Connection Test and Plaintiff's Negligence Claim
The second condition for admiralty jurisdiction is the "connection test," which examines the relationship of the activity giving rise to the incident with respect to traditional maritime activity. E.g., Jerome B. Grubart , 513 U.S. at 534, 115 S.Ct. 1043. "The nexus requirement avoids sweeping into admiralty jurisdiction wholly unrelated torts" with little relationship to maritime activity. Adamson , 907 F.3d at 1126 (noting "airplane crashes over water" fail the nexus requirement).
There are two prongs to the nexus requirement. Jerome B. Grubart , 513 U.S. at 534, 115 S.Ct. 1043. First, a court "must assess the general features of the type of incident involved to determine whether the incident has a potentially disruptive impact on maritime commerce." Id. (quotations omitted). The Ninth Circuit has construed this requirement liberally and held the mere "potential" to disrupt maritime commerce is sufficient to satisfy the first prong. See id. ; see also Gruver v. Lesman Fisheries, Inc. , 489 F.3d 978, 982 (9th Cir. 2007) ("[W]ith respect to the first prong of the connection test, the general features of the incident in question have the potential to disrupt commercial maritime activity.") (citations omitted).
Here, the court is satisfied that a cruise passenger's injury sustained during an on-shore excursion has the "potential" to disrupt maritime commerce, insofar as medical attention on the cruise ship or a resultant disincentive to travel via cruise ship again may affect or frustrate maritime commerce. Thus, the first prong is satisfied.
"Second, a court must determine whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity." Jerome B. Grubart , 513 U.S. at 534, 115 S.Ct. 1043 (quotations omitted). "We ask whether a tortfeasor's activity, commercial or noncommercial, on navigable waters is so closely related to activity traditionally subject to admiralty law that the reasons for applying special admiralty rules would apply in the suit at hand." Id. at 539-40, 115 S.Ct. 1043. Here, the court finds Plaintiff fails to establish that a fall down a flight of stairs at an on-shore venue is "substantial[ly]" related to "traditional maritime activity." Indeed, it is not apparent any features of Plaintiff's claim against Promotora have any necessary or unique relationship to maritime activity, such as the nature of the injury (a fall), the location of the incident (a theater), the type of claim (negligence), or the defendant (a tour operator). Thus, for this additional reason, the court concludes—based on the present record and briefing—that the exercise of maritime jurisdiction over Plaintiff's tort claim against Promotora would be improper.
B. Applicable Law Based on the Court's Diversity Jurisdiction
Plaintiff alternatively invokes the court's diversity jurisdiction under 28 U.S.C. § 1332(a)(2) (" § 1332(a)(2)") as the basis for her claims against Promotora. Dkt. 1 (Compl.) ¶ 1. Under § 1332(a)(2), the district court has "original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—... (2) citizens of a State and citizens of a foreign state ...." Here, Plaintiff alleges, and Defendant Promotora does not contest on the present Motion, that she is a resident of Nevada, Promotora is a foreign business entity doing business in Mexico, and the amount in controversy exceeds $75,000. Id. ¶¶ 3, 5. Thus, the court may properly exercise its diversity jurisdiction over Plaintiff's tort claim against Promotora.
As Promotora does not challenge the court's diversity jurisdiction on the present Motion, the court will apply California's choice of law rules to the parties’ remaining arguments regarding the applicable substantive law. See Fields v. Legacy Health Sys. , 413 F.3d 943, 950 (9th Cir. 2005) ("Federal courts sitting in diversity must apply the forum state's choice of law rules to determine the controlling substantive law.") (quotation marks and citation omitted).
"Generally speaking the forum will apply its own rule of decision unless a party litigant timely invokes the law of a foreign state." Wash. Mut. Bank v. Super. Ct. , 24 Cal. 4th 906, 919, 103 Cal.Rptr.2d 320, 15 P.3d 1071 (2001) (quotation marks, brackets, and citations omitted). Under California's "governmental interest approach," the party seeking to apply foreign law "must demonstrate that the latter rule of decision will further the interest of the foreign state and therefore that it is an appropriate one for the forum to apply to the case before it." Id. (quotation marks, brackets, and citations omitted). "Under the first step of the governmental interest approach, the foreign law proponent must identify the applicable rule of law in each potentially concerned state and must show it materially differs from the law of California." Id.
If the relevant laws of each state are identical, the trial court may find California law applicable to the claims. Id. at 920, 103 Cal.Rptr.2d 320, 15 P.3d 1071. "If, however, the trial court finds the laws are materially different, it must proceed to the second step and determine what interest, if any, each state has in having its own law applied to the case." Id. "Despite materially different laws, there is still no problem in choosing the applicable rule of law where only one of the states has an interest in having its law applied." Id. (quotation marks and citations omitted). "This means the trial court may properly find California law applicable without proceeding to the third step in the analysis if the foreign law proponent fails to identify any actual conflict or to establish the other state's interest in having its own law applied." Id. (citations omitted).
If the trial court determines that the laws are materially different and that each state has an interest in having its own law applied, the court must take the final step of selecting the law of the state whose interests would be "more impaired" if its law were not applied. Id. If the party advocating the application of a foreign state's law fails to meet its burden at any step of the governmental interest test, the court may properly find California law applicable without proceeding with the rest of the analysis. Pokorny v. Quixtar, Inc. , 601 F.3d 987, 995 (9th Cir. 2010) (citing Wash. Mut. Bank , 24 Cal. 4th at 920, 103 Cal.Rptr.2d 320, 15 P.3d 1071 ).
Plaintiff argues the court should apply the "general maritime law of the United States," pursuant to the Passage Contract between her and Princess, while Promotora urges the court to apply Mexican substantive law on the grounds that Plaintiff's injury occurred at the Teatro Vallarta in the State of Jalisco, Mexico. See Dkt. 71 (Pl. Opp. to Promotora Mot.) at 17-18; Dkt. 71-1 (PSS to Promotora Mot.) at 17, ¶ 51; Dkt. 64 (Promotora Mem.) at 19-21. The court will address the parties’ arguments in turn.
1. Whether Maritime Law Governs Plaintiff's Negligence Claim Against Promotora Pursuant to the Choice of Law Clause in the Passage Contract
In her opposition to Promotora's Motion, Plaintiff argues the court should apply maritime law to her negligence claim against Promotora under the choice of law clause in the Passage Contract between Plaintiff and Princess. Dkt. 71 (Pl. Opp. to Promotora Mot.) at 17-18; Dkt. 71-1 (PSS to Promotora Mot.) at 17, ¶ 51. As stated, the court looks initially to California law to guide the analysis of the choice-of-law clause. See Fields , 413 F.3d at 950. Because Plaintiff is the party advocating for the application of a substantive law other than California law—here, federal maritime law—Plaintiff bears the burden of showing her tort claim falls within the scope of the choice of law provision. See Oestreicher v. Alienware Corp. , 502 F. Supp. 2d 1061, 1065 (N.D. Cal. 2007) (citing Wash. Mut. Bank , 24 Cal. 4th at 916, 103 Cal.Rptr.2d 320, 15 P.3d 1071 ).
The Passage Contract is an agreement between Plaintiff and Defendant Princess. Dkt. 71-17 (Coone Decl., Ex. 15) at 1 ("This Passage Contract constitutes the entire understanding and agreement between You and Princess Cruise Lines, Ltd., the operator of the ship (‘Carrier’) ...."). It further contains a third-party beneficiary provision that states in relevant part:
You and Carrier agree and intend that certain third party beneficiaries derive rights and exemptions from liability as a result of this Passage Contract. Specifically, all of Carrier's rights, exemptions from liability, defenses and immunities under this Passage Contract (including, but not limited to, those described in Sections 4, 6, 7, 12, 13, 14, and 15) will also inure to the benefit of the following persons and entities who shall be considered "Carrier" only for purposes of such rights, exemptions from liability, defenses and immunities: ... independent contractors, ... shore excursion providers, [and] tour operators ....
Id. at 1-2.
In Section 1, the Passage Contract includes the following choice of law clause:
You acknowledge and agree that, except as otherwise expressly provided herein, the resolution of any and all disputes between Carrier and any Guest shall be governed exclusively and in every respect by the general maritime law of the United States without regard to its choice of law principles, except in cases involving death arising outside the United States which shall be governed exclusively by the Death on the High Seas Act, 46 U.S.C. § 30301, et seq. You agree this choice of law provision replaces, supersedes and preempts any provision of law of any state or nation to the contrary.
Id. at 1 (emphasis in original).
Relying on these provisions, Plaintiff argues her claim against Promotora falls within the Passage Contract's choice of law clause and must be assessed under maritime law for two primary reasons. Dkt. 71 (Pl. Opp. to Promotora Mot.) at 18. First, Plaintiff argues Promotora is bound by the choice of law clause as a shore excursion provider and a third-party beneficiary of the clause. Id. Second, Plaintiff argues Promotora is estopped from denying the Passage Contract's choice of law clause since Promotora seeks to avail itself of and benefit from the Passage Contract's exculpatory clauses. Id.
In neither case, however, does Plaintiff meet her burden to establish the applicability of maritime law to her negligence claim against Promotora. First, Plaintiff fails to show, as a matter of contract interpretation, that the choice of law clause extends to tort claims against Promotora. Second, even assuming the choice of law clause applies to Plaintiff's tort claim against Promotora, Plaintiff fails to show this court may enforce the choice of law clause and apply maritime law pursuant to California's choice of law rules. See Wash. Mut. Bank , 24 Cal. 4th at 916, 103 Cal.Rptr.2d 320, 15 P.3d 1071.
Plaintiff cites Chan v. Society Expeditions, Inc. , 123 F.3d 1287, 1296 (9th Cir. 1997), for the proposition that the court may apply federal maritime law—the chosen law under the Passage Contract—without conducting a preliminary choice of law analysis. See Dkt. 71 (Pl. Opp. to Promotora Mot.) at 19. Chan is inapposite because the court in that case, unlike here, sat in admiralty. The Chan court explained, "[i]n the absence of a contractual choice-of-law clause, federal courts sitting in admiralty apply federal maritime choice-of-law principles .... But where the parties specify in their contractual agreement which law will apply, admiralty courts will generally give effect to that choice." Chan , 123 F.3d at 1296-97. While a federal court sitting in admiralty may apply the chosen substantive law without a choice of law analysis, this court, sitting in diversity, must resort first to the choice of law principles of the forum state. See Fields , 413 F.3d at 950.
Plaintiff next argues that, under estoppel principles, Promotora is bound by the Passage Contract's choice of maritime law. See Dkt. 71 (Pl. Opp. to Promotora Mot.) at 18. According to Plaintiff, Promotora seeks defenses available to Princess under the Passage Contract and, as a result, should endure the burden of applying maritime law, even as a non-signatory to the Passage Contract. See id. (citing, e.g., Hajibekyan v. BMW of N. Am., LLC , Case No. 2:20-cv-3924-PA (PLAx), 2020 WL 5014698, at *2-3, 2020 U.S. Dist. LEXIS 155304, at *6 (C.D. Cal. June 3, 2020) ("Equitable estoppel ‘precludes a party from claiming the benefits of a contract while simultaneously attempting to avoid the burdens that contract imposes.’ ")). However, even assuming, arguendo , Promotora is equitably estopped from denying the application of maritime law, Plaintiff fails to engage in the choice-of-law analysis described above and demonstrate the application of maritime law—the contractually chosen substantive law—is proper. Thus, the court will not apply maritime law on this basis.
In sum, Plaintiff fails to carry her burden to show this court must apply federal maritime law to Plaintiff's tort claim against Promotora.
2. Whether Mexican Law Governs Plaintiff's Negligence Claim Against Promotora
Defendant Promotora asserts the court should apply "the laws of Mexico, generally" and "the State of Jalisco, in particular" to Plaintiff's negligence claim, because Plaintiff's fall occurred while she was at the Teatro Vallarta in the State of Jalisco, Mexico. See Dkt. 64 (Promotora Mem.) at 5-6, 20. Promotora urges the court to grant summary judgment in its favor based on Promotora's defense of contributory fault under Mexican law because Plaintiff consumed alcohol during the tour, chose to ascend stairs without a handrail, and "did not look where she was stepping." Id. at 19-20, 125 S.Ct. 385.
As the party invoking Mexican law, Promotora bears the burden to demonstrate the interest of Mexico and that Mexican law should apply. See Wash. Mut. Bank , 24 Cal. 4th at 919, 103 Cal.Rptr.2d 320, 15 P.3d 1071. Promotora, however, does not show "what interest, if any, each state has in having its own law applied to the case" or that Mexico's interest in having its law applied outweighs California's interest in having its law applied to Plaintiff's claim. See id. at 920, 103 Cal.Rptr.2d 320, 15 P.3d 1071. Promotora, therefore, fails to meet its burden to show Mexican law should apply under California's governmental interest test, and fails to demonstrate it is entitled to summary judgment on Plaintiff's negligence claim on this basis. Accordingly, the court DENIES this portion of Promotora's Motion.
C. Conclusion re: Plaintiff's Negligence Claim Against Promotora
Because Plaintiff fails to demonstrate maritime law should apply and Promotora fails to demonstrate Mexican law should apply, this court must presumptively apply California law. Promotora argues it is entitled to summary judgment, even if California law applies, because Plaintiff had a duty "to look where [she was] going." Dkt. 64 (Promotora Mem.) at 21 n. 4 (citing Curland v. L.A. Cnty. Fair Ass'n , 118 Cal. App. 2d 691, 695, 258 P.2d 1063 (1953) ).
Promotora's brief citation to Curland does not establish Promotora is entitled to judgment as a matter of law, even assuming the existence of undisputed facts. In Curland , the court explained that, under California law, a premises owner owes an invitee a duty to use "ordinary care" with respect to the invitee's safety, which includes a duty to give the invitee "reasonable notice or warning" of dangerous conditions "not readily apparent to the eye." Curland , 118 Cal. App. 2d at 695, 258 P.2d 1063 (citation omitted). Thus, the court explained, a plaintiff has a duty "to look where he [is] going and to observe that which was in plain sight in front of him." Id. The court cautioned, however, that "[w]hether the danger [is] obvious to plaintiff [is] a question of fact for the jury." Id. (citation omitted). As Promotora does not show it is undisputed that the dangers here were "obvious," the court will not grant Promotora's Motion on this basis.
Promotora also assumes, without establishing, that the duty of care owed Plaintiff was that of an invitee, as in Curland. Because Promotora fails to establish this is so as a matter of law, the court denies Promotora's Motion as to this claim on this alternative basis.
Because Promotora fails to establish it is entitled to judgment as a matter of law under California negligence law, the court DENIES Promotora's Motion as to this claim.
Promotora further argues Plaintiff's negligence claim is foreclosed under an exculpatory clause contained within the Passage Contract, an agreement between Plaintiff and Princess. See Dkt. 64 (Promotora Mem.) at 8-10, 14-19. Because Promotora's rights under the Passage Contract are derivative of Princess’ and the analysis with respect to Princess is discussed below, the court need not repeat the same analysis here with respect to Promotora.
II. Plaintiff's Third-Party Beneficiary Claim Against Promotora and Princess
As to her fourth cause of action for breach of contract as a third-party beneficiary, Plaintiff alleges she is a third-party beneficiary under Princess and Promotora's Tour Operator Agreement (Dkt. 71-5, Coone Decl. Ex. 3) and Tour Operating Manual (Dkt. 71-6, Coone Decl. Ex. 4) (collectively, the "Tour Operator Agreements"), which are the two agreements governing the relationship between Princess and Promotora. Dkt. 1 (Compl.) ¶¶ 30-43. According to Plaintiff, Promotora breached the Tour Operator Agreements by failing to comply with its "safety and service obligations." Id. ¶ 41.
As with her tort claim, Plaintiff alleges the court has maritime and diversity jurisdiction to decide her third-party beneficiary claim against Promotora. Dkt. 1 (Comp.) ¶ 1. For federal common law to apply in these circumstances, this suit must be sustainable under the court's admiralty jurisdiction. See Norfolk , 543 U.S. at 23, 125 S.Ct. 385. Plaintiff and Promotora appear to agree that the Tour Operator Agreements are to be construed under maritime law. See Dkt. 64 (Promotora Mem.) at 23-24 (citing, e.g., Polo Ralph Lauren, L.P. v. Tropical Shipping & Constr. Co. , 215 F.3d 1217, 1222 (11th Cir. 2000) (applying maritime law in the context of third-party beneficiary claim)); Dkt. 71 (Pl. Opp. to Promotora Mot.) at 34 (citing Meyer v. Carnival Corp. , Case No. 1:12-cv-20321-WJZ, 2013 WL 12061857, at *8-9, 2013 U.S. Dist. LEXIS 199991, at *26 (S.D. Fla. Sep. 4, 2013) (same)). Thus, for purposes of the subject Motions, the court will assess Plaintiff's fourth cause of action under maritime law. Contracts bind only named parties unless both parties to the contract clearly express an intent to benefit a third party. Polo Ralph Lauren , 215 F.3d at 1222 (citing Blu-J, Inc. v. Kemper C.P.A. Group , 916 F.2d 637, 640 (11th Cir. 1990) ). The third party need not be mentioned by name so long as the contract refers to a "well defined class of readily identifiable persons" that it intends to benefit. Id. (citing Generali v. D'Amico , 766 F.2d 485, 490 (11th Cir. 1985) ).
The court briefly notes, however, that the Tour Operator Agreements are not clearly maritime contracts to which maritime law should apply. See Norfolk , 543 U.S. at 23-28, 125 S.Ct. 385 (explaining and applying the "two-step analysis" to determine whether a contract has sufficient maritime character to fall under the court's maritime jurisdiction and merit the application of maritime law). No party demonstrates the Tour Operator Agreement, Dkt. 71-6 (Coone Decl. Ex. 4), which governs Promotora's contractual relationship with Princess regarding the Viva Tequila Tour, "reference[s] ... maritime service or maritime transactions." Norfolk , 543 U.S. at 24, 125 S.Ct. 385 (quotation marks and citations omitted). Furthermore, the Tour Operator Agreement attached as an exhibit to Princess’ Motion states that "the laws of the state of Florida shall govern this Agreement." Dkt. 76-4 (Vlad Decl. Ex. A) at ¶ 15.4. Nevertheless, even if Plaintiff's third-party beneficiary claim arose under the court's diversity jurisdiction, the court would still deny Promotora's Motion for failure to establish it is entitled to judgment as a matter of law under the applicable state law.
To properly plead a claim for breach of a third-party beneficiary contract, a plaintiff must allege: (1) the existence of a contract in which plaintiff is not a party, (2) "an intent, either expressed by the parties, or in the provisions of the contract, that the contract primarily and directly benefit" the plaintiff, (3) breach of that contract by one of the parties and (4) damages to plaintiff resulting from the breach.
Belik v. Carlson Travel Grp., Inc. , 864 F. Supp. 2d 1302, 1312 (S.D. Fla. 2011) (citing Rinker v. Carnival Corp. , 753 F. Supp. 2d 1237, 1243-44 (S.D. Fla. 2010) ).
Promotora argues Plaintiff's third-party beneficiary claim fails because the Tour Operator Agreements do not evince an intent, either expressed by the parties or evident in the provisions of the contract, that the contract primarily and directly benefits Plaintiff. Dkt. 64 (Promotora Mem.) at 23-24 (citing Belik , 864 F. Supp. 2d at 1312 ). Plaintiff counters the Tour Operator Agreements "are replete with duties intended for the safety of passengers and requirements for Promotora to act with the highest standards of care." Dkt. 71 (Pl. Opp. to Promotora Mot.) at 34. For example, the Tour Operator Agreement provides in relevant part:
Operator shall ... (ii) exercise reasonable care for Guests’ safety at all times; ... and, (iv) comply with all applicable legal requirements including, without limitation, the Americans with Disabilities Act, P.L. 101-336, and the regulations promulgated thereunder, and any state and/or local accessibility laws, to the extent such laws and regulations apply to the Shore Excursions.
Dkt. 71-6 (Coone Decl. Ex. 4) at 4, ¶ 6.4.
Similarly, the Tour Operating Manual provides:
The Operator is responsible for the safety and security of passengers and crew. The Operator and its authorized sub-contractors are expected to perform all shore excursions with reasonable care and skill. The responsibility will at all times remain with the Operator. It is essential that your excursions are safe, secure and suitable for the age and physical abilities of the participating passengers. All excursions provided for Carnival passengers must be operated according to the highest professional standards and must utilize high quality, properly maintained equipment. ...
The Operator will carefully examine the tour itinerary for any potentially dangerous spots or activities such as unfenced viewpoints, slippery walkways, uneven terrain, busy roadways on walking tours, thefts and pickpocketing, special events taking place during the call (national or local celebrations, sport contests, political or religious gatherings,
etc.). Tour Guides must be aware of such hazards and must mention them to the guests in their introductory talk in a diplomatic and tactful manner.
Dkt. 71-5 (Coone Decl. Ex. 3) at 12-13.
According to Plaintiff, this and other contractual language raises a triable issue regarding whether she is a third-party beneficiary of the Tour Operator Agreements. Dkt. 71 (Pl. Opp. to Promotora Mot.) at 34. The court agrees. Pursuant to the Tour Operating Agreement, Promotora agreed to, among other things, "exercise reasonable care for Guests’ safety at all times" and "comply with all applicable legal requirements including, without limitation, the Americans with Disabilities Act ... and any state and/or local accessibility laws, to the extent such laws and regulations apply to the Shore Excursions." Dkt. 71-6 (Coone Decl. Ex. 4) at 4. The Tour Operating Manual further provided that Promotora would "carefully examine the tour itinerary for any potentially dangerous spots or activities such as unfenced viewpoints, slippery walkways, uneven terrain, busy roadways on walking tours, thefts and pickpocketing, special events taking place during the call ...." Dkt. 71-5 (Coone Decl. Ex. 3) at 13. Promotora's tour guides were required to be "aware of such hazards and must mention them to the guests in their introductory talk in a diplomatic and tactful manner." Id. at 13. A reasonable jury could find these provisions primarily and directly benefit third-party guests, such as Plaintiff. Accordingly, the court will not grant Promotora's Motion as to this claim on this basis.
For the same reasons, the court also will not grant Princess’ Motion on the fourth cause of action, as Princess argues it is entitled to summary judgment on the same claim for substantially the same reasons asserted by Promotora. See Dkt. 93-2 (Princess Am. Mem.) at 27-28; see also Dkt. 73 (Pl. Opp. to Princess Mot.) at 29.
Having found genuine disputes of material fact, the court DENIES Defendants’ Motions as to Plaintiff's third-party beneficiary claim.
PRINCESS’ MOTION FOR SUMMARY JUDGMENT
Plaintiff alleges Princess was negligent with respect to the Viva Tequila Tour and, alternatively, that Princess is vicariously liable for Promotora's negligence. Dkt. 1 (Compl.) ¶¶ 23-24, 27-29. On the present Motion, Princess seeks summary judgment only as to Plaintiff's agency claim. See Dkts. 89, 93-2 (Princess Am. Mem.).
I. Jurisdiction and Applicable Law
Princess and Plaintiff agree substantive maritime law applies to Plaintiff's tort claims against Princess. See Dkt. 93-2 (Princess Am. Mem.) at 15; Dkt. 73 (Pl. Opp. to Princess Mot.) at 14; Compl. ¶¶ 1, 26-42. Thus, for purposes of Princess’ Motion, the court will apply maritime law to Plaintiff's claims against Princess.
Even if Plaintiff's claims arise under this court's diversity jurisdiction, the court's analysis would not materially change, and the court would still deny Princess’ Motion for failure to show the absence of genuine disputes of fact. As explained below, the court finds no appreciable difference between general maritime and California agency law and, indeed, the court properly looks to California law to supplement maritime law as appropriate. See Jerome B. Grubart , 513 U.S. at 545-46, 115 S.Ct. 1043 ; Yamaha Motor Corp., U.S.A. v. Calhoun , 516 U.S. 199, 207, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996).
Admiralty law is "an amalgam of traditional common-law rules, modifications of those rules, and newly created rules." E. River , 476 U.S. at 865, 106 S.Ct. 2295. "Absent a relevant statute, the general maritime law, as developed by the judiciary, applies." Id. at 864, 106 S.Ct. 2295. The application of admiralty or maritime law, however, "does not result in automatic displacement of state law." Jerome B. Grubart , 513 U.S. at 545, 115 S.Ct. 1043. Indeed, a "fundamental feature" of maritime law is that "federal admiralty courts sometimes do apply state law," id. at 546, 115 S.Ct. 1043, and state law may be used to supplement federal maritime law so long as state law is "compatible with substantive maritime policies." Yamaha Motor Corp. , 516 U.S. at 207, 116 S.Ct. 619.
II. Plaintiff's Agency Claim Against Princess
"[N]egligence is an actionable wrong under the general maritime law." Thomas J. Schoenbaum, 1 Admiralty & Mar. Law, § 5:4 Negligence (6th ed. Nov. 2020) (hereinafter, "Schoenbaum"); see Leathers v. Blessing , 105 U.S. 626, 629, 26 L.Ed. 1192 (1881) (recognizing negligence under general maritime law). " ‘To recover for negligence, a plaintiff must establish: (1) duty; (2) breach; (3) causation; and (4) damages.’ " Samuels , 656 F.3d at 953 (quoting Morris v. Princess Cruises, Inc. , 236 F.3d 1061, 1070 (9th Cir. 2001) ); see also In re Catalina Cruises, Inc. , 137 F.3d 1422, 1424-25 (9th Cir. 1998). Under maritime law, a plaintiff is owed a duty of reasonable care under the circumstances. Kermarec v. Compagnie Generale Transatlantique , 358 U.S. 625, 632, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959) ; Samuels , 656 F.3d at 953 ; 1 Schoenbaum § 5:4 Negligence.
General maritime law recognizes typical respondeat superior principles, under which a principal may be held to be directly or vicariously liable for the negligence of its agent. See De Los Santos v. Scindia Steam Navigation Co. , 598 F.2d 480, 489 (9th Cir. 1979) (explaining shipowner could incur liability under respondeat superior if crewmembers knew of allegedly defective conditions that injured plaintiff); Franza v. Royal Caribbean Cruises, Ltd. , 772 F.3d 1225, 1234-35 (11th Cir. 2014) (collecting authority); 1 Schoenbaum § 5:4 Negligence ("The doctrine of vicarious liability or imputed negligence is fully applicable in admiralty unless excluded by statute. ... The law of agency is fully applicable in admiralty.").
An agent may be "actual" or "ostensible" (i.e., "apparent"). See Cal. Civ. Code § 2298 ; see also Corby v. Kloster Cruise, Ltd. , Case No. 3:89-cv-04548-MHP, 1990 WL 488464, at *3, 1990 U.S. Dist. LEXIS 13675, at *8-9 (N.D. Cal. Oct. 5, 1990) (applying general maritime law and looking to California law in the absence of maritime law to the contrary); Witover v. Celebrity Cruises, Inc. , 161 F. Supp. 3d 1139, 1149 (S.D. Fla. 2016) (applying general maritime law and looking to actual and apparent agency under Florida law). An actual "agent is anyone who undertakes to transact some business, or manage some affair, for another, by authority of and on account of the latter, and to render an account of such transactions." McCollum v. Friendly Hills Travel Ctr. , 172 Cal. App. 3d 83, 91, 217 Cal.Rptr. 919 (1985) (citations omitted).
"The chief characteristic of the agency is that of representation, the authority to act for and in the place of the principal for the purpose of bringing him or her into legal relations with third parties." Id. "The significant test of an agency relationship is the principal's right to control the activities of the agent. [Citations.] It is not essential that the right of control be exercised or that there be actual supervision of the work of the agent; the existence of the right establishes the relationship." Id.
By contrast, apparent or ostensible agency exists where "the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him." Cal. Civ. Code § 2300 ; see Witover , 161 F. Supp. 3d at 1149 ("[A]pparent agency exists where the alleged principal makes a manifestation that causes a third party to reasonably believe that the alleged agent had the authority to act for the benefit of the principal, and the third party reasonably acts on such belief to his detriment").
The court finds, and the parties identify, no conflict between general maritime law, Florida law, or California law regarding apparent or ostensible agency that materially affects the analysis herein. Thus, the court finds Florida or California agency law instructive when applying general maritime law.
Apparent agency is established when "(1) the alleged principal makes some sort of manifestation causing a third party to believe that the alleged agent had authority to act for the benefit of the principal, (2) that such belief was reasonable and (3) that the claimant reasonably acted on such belief to his detriment." Id. (quotation marks and citation omitted). In applying this principle, " ‘it is the manifestation by the cruise ship to the third party that is controlling.’ " Id. (quoting Doonan v. Carnival Corp. , 404 F. Supp. 2d 1367, 1371-72 (S.D. Fla. 2005) ); see also Warren v. Ajax Navigation Corp. , Case No. 1:91-cv-00230-KLR, 1995 WL 688421, at *3, 1995 U.S. Dist. LEXIS 19535, at *8 (S.D. Fla. Feb. 2, 1995) ("Apparent authority only applies when it is the principal, rather than the agent, who represents or ‘holds out’ to third parties that the agency exists."). "[A]bsent any statutory mandate to the contrary, the existence of an agency relationship is a question of fact under the general maritime law." Franza , 772 F.3d at 1235-36 (looking to Florida law of agency).
Princess contends there is no basis for a reasonable jury to find Promotora acted as Princess’ agent, and, as a result, that Princess cannot be held liable for Promotora's alleged negligence. See Dkt. 93-2 (Princess Am. Mem.) at 25-27. Princess first argues its Operator Agreement with Promotora explicitly disclaims any agency relationship. Id. at 25. The Operator Agreement provides, in relevant part, that Promotora "shall be treated as an independent contractor" and "nothing in this [Operator] Agreement shall be construed as creating a partnership, joint venture or employer-employee relationship." Dkt. 73-1 (PSS to Princess Mot.) at 7, ¶ 17. Plaintiff responds that Princess and Promotora's descriptions of their relationship are not dispositive of whether an agency relationship existed. Dkt. 73 (Pl. Opp. to Princess Mot.) at 20. The court agrees with Plaintiff.
The existence or scope of an agency relationship is not "controlled by the parties’ use of descriptive labels." Witover , 161 F. Supp. 3d at 1149 (citations omitted); People v. Johnsen , 10 Cal. 5th 1116, 1154, 274 Cal.Rptr.3d 599, 480 P.3d 2 (2021) (quoting Restatement (Third) of Agency, § 1.02 cmt. a) (Am. L. Inst. 2006) (" ‘Although agency is a consensual relationship, how the parties to any given relationship label it is not dispositive.’ "). Indeed, the Restatement (Third) of Agency provides:
The parties’ agreement may negatively characterize the relationship as not one of agency, or as one not intended by the parties to create a relationship of agency or employment. Although such statements are relevant to determining whether the parties consent to a relationship of agency, their presence in an agreement is not determinative and does not preclude the relevance of other indicia of consent.
Restatement (Third) of Agency, § 1.02 cmt. b (Am. L. Inst. 2006). Accordingly, Princess’ argument that Promotora is not Princess’ agent by virtue of the disclaimer in the Operator Agreement fails.
Princess next argues the uncontroverted facts demonstrate it has no affiliation or ownership interest in Promotora, or any control over Promotora's management or operations, and that the Passage Contract (Dkt. 76-10, Steinke Decl. Ex. F) informs passengers that port excursions are operated by independent contractors not subject to Princess’ control. Dkt. 93-2 (Princess Am. Mem.) at 26; Dkt. 93-1 (Princess Am. St.) ¶¶ 4-5. Plaintiff, meanwhile, argues "Princess controls, or reserves the right to control, every aspect of the shore excursion from beginning to end." Dkt. 73 (Pl. Opp. to Princess Mot.) at 20.
The court finds genuine disputes of fact exist as to whether Promotora acted as Princess’ actual or apparent agent. Plaintiff submits evidence that Princess (1) controlled the safety standards Promotora was required to follow, including building standards and regulations, (2) required Promotora to warrant it would comply with "accepted industry standards" and all applicable legal requirements, including the Americans with Disabilities Act and its regulations, and any state and/or local accessibility laws, to the extent such laws and regulations applied, (3) required Promotora be insured in specified amounts, (4) controlled the manner in which the tour was advertised, marketed, sold and refunded, (5) demanded exclusivity in sales and branding on promotional materials, (6) mandated qualifications for Promotora's tour guides "in approximately 25 detailed bullet points" that "each guide must follow," (7) dictated the alcohol, drug, and smoking policy applicable to tour operator's employees, (8) reserved the right to conduct drug and alcohol testing on such employees, and (9) outlined Promotora's emergency response and accident reporting, including using brand specific incident report forms. Dkt. 73-1 (PSS to Princess Mot.) at 21-23, ¶¶ 4-14. Princess further required Promotora to hold up Princess’ sign or flag during the Viva Tequila Tour and to show Princess’ cruise name only and no other, and made all the arrangements for the Viva Tequila Tour without disclosing that the tour was operated by Promotora. Id. at 22-24, ¶¶ 11, 12, 19. From these facts, a reasonable jury could conclude either that Princess had sufficient right to control Promotora's activities, such that Promotora was Princess’ actual agent, or that Princess caused Plaintiff to reasonably believe Promotora was its agent. See McCollum , 172 Cal. App. 3d at 91, 217 Cal.Rptr. 919 ; Smolnikar , 787 F. Supp. 2d at 1324.
As to apparent authority, although Princess contends it disclosed to Plaintiff that excursions, such as the Viva Tequila Tour, would be operated by third parties not subject to Princess’ control, Dkt. 93-2 (Princess Am. Mem.) at 26, a factfinder must ultimately determine whether Plaintiff's stated belief to the contrary was reasonable in light of all the circumstances. See Franza , 772 F.3d at 1235-36 ("[A]bsent any statutory mandate to the contrary, the existence of an agency relationship is a question of fact under the general maritime law.").
Accordingly, the court will not grant Princess’ Motion on this basis.
III. Whether the Passage Contract's Exculpatory Clause Precludes Plaintiff's Negligence Claims Against Princess
Princess argues Plaintiff's agency cause of action fails as a matter of law under an exculpatory clause contained within the Passage Contract. Dkt. 93-2 (Princess Am. Mem.) at 16-19; see also Dkt. 76-10 (Steinke Decl. Ex. F (Passage Contract)). Promotora argues it is a third-party beneficiary to the Passage Contract and seeks to enforce the Passage Contract's exculpatory clause against Plaintiff's first cause of action for negligence. Dkt. 64 (Promotora Mem.) at 15-19. Plaintiff responds: (1) she did not have adequate notice that the exculpatory clause was intended to apply to shore operators, such as Promotora, or that Princess intended to disclaim its direct liability for the acts of its alleged agents, and (2) even if the exculpatory clause had been reasonably communicated to her, the provision is unenforceable under 46 U.S.C. § 30509(a)(1) (" § 30509(a)"). Dkt. 71 (Pl. Opp. to Promotora Mot.) at 22-27, 29-30; Dkt. 73 (Pl. Opp. to Princess Mot.) at 16-19.
Because the court may decide the present Motions under § 30509(a)(1), it need not address the parties’ arguments regarding whether Plaintiff had reasonable notice of the exculpatory clause.
Section 30509(a) provides:
(1) In general. The owner, master, manager, or agent of a vessel transporting passengers between ports in the United States, or between a port in the United States and a port in a foreign country, may not include in a regulation or contract a provision limiting—
(A) the liability of the owner, master, or agent for personal injury or death caused by the negligence or fault of the owner or the owner's employees or agents; or
(B) the right of a claimant for personal injury or death to a trial by court of competent jurisdiction.
(2) Voidness. A provision described in paragraph (1) is void.
46 U.S.C. § 30509(a). "This statutory prohibition applies to passenger cruise ship companies attempting to disclaim or limit their liability for injuries to passengers based upon their own negligence." Smolnikar , 787 F. Supp. 2d at 1316 (citing, e.g., Kornberg v. Carnival Cruise Lines, Inc. , 741 F.2d 1332, 1335-36 (11th Cir. 1984) ).
Under Plaintiff's theory, Princess (as Promotora's master) and Promotora (as Princess’ agent) are prohibited under § 30509(a) from disclaiming liability caused by the negligence or fault of Promotora. Princess does not respond to Plaintiff's argument in its reply. See generally Dkt. 82 (Princess Reply). Although Promotora argues it is not an owner, master, manager, or agent of a vessel under § 30509(a), Dkt. 64 (Promotora Mem.) at 18, the court will not grant Promotora's Motion on this basis, having found a genuine dispute exists regarding whether Promotora was Princess’ agent. Thus, the court denies Defendants’ Motions on this basis.
CONCLUSION
For the reasons stated herein, the court DENIES Princess and Promotora's Motions for Summary Judgment. Dkts. 65, 76.
Given the uncertainty as to whether any of Plaintiff's claims arise under the court's maritime jurisdiction and, thus, what substantive law applies to each claim, the court ORDERS the parties to SHOW CAUSE in writing why the court should not apply California or other state law to each of Plaintiff's claims. The parties shall meet and confer, and thereafter respond with and file by no later than February 25, 2022, their respective memoranda of points and authorities, not to exceed 25 pages, explaining: (1) whether each of Plaintiff's claims against each Defendant arises under the court's maritime jurisdiction, with citation to the relevant tort and contract tests under Supreme Court and/or Ninth Circuit authority (and, only in the absence of such controlling authority, citation to persuasive authority); and (2) whether, even if maritime jurisdiction does not lie, which substantive law the court must apply to each of Plaintiff's claims against each Defendant, with citation to the relevant choice-of-law rules. The parties may support their memoranda with evidence, if necessary. The parties may not reargue that they are entitled to summary judgment on any claim or issue; the court will disregard any such argument without explanation. The court SETS a hearing on the OSC for March 18, 2022 at 1:30 p.m.
IT IS SO ORDERED.