Federal District Court Opinions

Defendants. CASE NO. 06-21527-CIV-HUCK/SIMONTON. United
States District Court, S.D. Florida. December 5, 2006


PAUL HUCK, District Judge

THIS MATTER is before the Court upon Defendant Carnival’s
Motion to Dismiss Plaintiff’s Complaint [D.E. #12]. For the
reasons set forth below, Defendant Carnival’s Motion to


Defendant Carnival Corporation (“Carnival”) is a
Panamanian company engaged in the business of owning,
operating and conducting carriage of passengers for hire
aboard luxury cruise vessels. Pl. Cmplt. at § 10.
Plaintiff Erin Lynn Baker (“Baker”) booked and paid for
passage as a guest on the Carnival ship “Destiny.” Id. at
§ 11. On June 12, 2005 she boarded the “Destiny” in
San Juan, Puerto Rico along with other passengers to
celebrate the wedding of a friend. Among the other
passengers traveling on the Destiny for the wedding were
Denie and Shelley Hiestand (the “Hiestands”). Id. at
§ 12.

On June 16, 2005, while on board the “Destiny,” Baker and
some friends were in one of the ship’s bars, tended by
Destiny crewmembers. Id. at § 13. They were joined
by Mr. Hiestand, and alcoholic drinks were served to all.
Id. When taking another order of drinks, the waiter asked
Page 2 whether he should make the drinks stronger and Mr.
Hiestand replied in the affirmative. Id. Ms. Hiestand also
joined the group at some point. Id.

Baker alleges that the Hiestands seem to have added
something to her drink, already made stronger by the
waiter, which caused her to be rendered semiconscious. Id.
at § 14. The Hiestands then picked up and carried
the “obviously impaired [] Baker from the bar area, in full
view of Destiny crewmembers who did nothing to protect or
promote” Baker’s safety. Id. at § 15. The wait staff
knew that the Hiestands were taking Baker to their own
cabin. Id. In the Hiestands’ cabin, Baker was, for several
hours, sexually assaulted, abused and raped by the two of
them. Id. at § 16.

Baker eventually regained consciousness and struggled away
from the Hiestands’ cabin to her own. Id. at § 17.
Baker experienced extreme distress knowing she had been
sexually violated, internal pain and serious concern about
whether she had contracted sexually transmitted diseases
from the Hiestands. Id.

After waiting several hours for the ship’s infirmary to
open, Baker was attended by the nurse and physician on
duty, who performed only a perfunctory examination and
prepared a rape kit. Id. at § 18. The nurse and
physician did not take a complete history from Ms. Baker
and did not conduct tests to confirm that Baker had been
drugged. They also provided no counseling to Baker. Id.

Baker then provided a lengthy written statement to the
ship’s security and turned over two notes written to her by
Ms. Hiestand following the assault. Id. at § 19. The
security department did not interview the Hiestands
although they knew the Hiestands were leaving the ship to
stay in Aruba. Id. A security officer advised Baker that
the FBI would be given the materials collected on board and
would investigate the matter. Id.

Baker disembarked in Aruba on June 17, 2005 to return home,
and left her contact information with the ship’s security
officer so that the FBI could contact her to further
investigate the matter. Id. at 20. No one advised
Baker that if she disembarked in Aruba, before returning
to Page 3 the home port of Puerto Rico, an investigation
by the authorities would be impaired. Id. Yet Carnival
later claimed that her leaving precluded an investigation.
Id. Carnival later claimed it lost the rape kit. Id.

On June 14, 2006 Baker filed this Complaint against
Carnival and the Hiestands. Baker brings claims against
Carnival for negligence and breach of contract. Carnival
has filed the instant motion to dismiss.

Standard for Motion to Dismiss

In reviewing a motion to dismiss, all well-pleaded facts in
a plaintiff’s complaint and all reasonable inferences drawn
from those facts must be taken as true. Oladeinde v. City
of Birmingham, 963 F.2d 1481, 1485 (11th Cir. 1992). The
federal rules do not require a claimant to set out in
detail all the facts upon which the claim is based. Id. at
47. All that is required is a “short and plain statement of
the claim.” Fed.R.Civ.P. 8(a)(2). A complaint should not be
dismissed for failure to state a claim unless it appears
beyond a doubt that Plaintiff can prove no set of facts
that support a claim for relief. Conley v. Gibson, 355 U.S.
41, 45-46 (1957); Bracewell v. Nicholson Air Servs., Inc.,
680 F.2d 103, 104 (11th Cir. 1982). Nonetheless, when on
the basis of a dispositive issue of law no construction of
the factual allegations will support the cause of action,
dismissal of the complaint is appropriate. Marshall County
Bd. of Educ. v. Marshall County Gas Dist., 992 F.2d 1171,
1174 (11th Cir. 1993).


Carnival seeks to dismiss Baker’s Complaint on three
grounds: (1) that it owed no duty to Baker; (2) that the
contract has no explicit provision guaranteeing safe
passage; and (3) that punitive damages and attorney’s fees
are not recoverable under general maritime law. Each of
these arguments will be addressed in turn.

I. Applicable Law

Defendant’s Motion to Dismiss is governed by federal
maritime law because the alleged Page 4 incident occurred
on board a ship upon navigable waters. See Everett v.
Carnival Cruise Lines, 912 F.2d 1355, 1358 (11th Cir.
1990); Jackson v. Carnival Cruise Lines, Inc., 203 F.Supp.
2d 1367, 1373 (S.D. Fla. 2002). In the absence of
applicable maritime law, courts may apply state law, so
long as the application of state law “does not frustrate
the national interest in having uniformity in admiralty
law.” Doe v. Celebrity Cruises, 145 F.Supp.2d 1337, 1340-41
(11th Cir. 2001).

II. Negligence

To prove negligence, a plaintiff must show: (1) that
defendant owed plaintiff a duty; (2) that defendant
breached that duty; (3) that this breach was the proximate
cause of plaintiff’s injury; and (4) that plaintiff
suffered damages. Hasenfus v. Secord, 962 F.2d 1556,
1559-60 (11th Cir. 1992).

Under general maritime law a shipowner owes passengers the
duty of exercising reasonable care under the circumstances.
Kemarec v. Compagnie General Transatlantique, 358 U.S. 625,
632 (1959). However, “a shipowner is not an insurer of its
passengers’ safety. . . . There must be some failure to
exercise due care before liability may be imposed.”
Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63, 64 (2d
Cir. 1988). The standard of reasonable care generally
requires that a carrier have actual or constructive notice
of the risk-creating condition. Keefe v. Baham Cruise Line,
Inc., 867 F.2d 1318, 1322 (11th Cir. 1989). Where it is
alleged, however, that defendant created an unsafe or
foreseeably hazardous condition, a plaintiff need not prove
notice in order to show negligence. Rockey v. Caribbean
Cruise, Ltd., 2001 WL 420993 at *4-5 (S.D. Fla. 2001)
(citations omitted). The question becomes whether the
defendant created an unsafe or foreseeably hazardous
condition. Id. at *5.

Carnival argues that it did not violate any duty owed to
Baker because it has no obligation to continually monitor
the safety of its passengers, only a duty to warn of
dangers which the carrier knew or reasonably should have
known existed. Carnival maintains that since Baker does not
allege that Carnival knew or should have known of the
alleged danger, i.e., that the Hiestands would drug Page
5 Baker and sexually abuse her, there is no cause of
action against Carnival for Baker’s injuries. Furthermore,
Carnival argues, Carnival had no duty to warn Baker of
dangers that are apparent and obvious such as the danger of
drinking too much. See Isbell v. Carnival Corp., 2006 WL
3360382 at *4 (S.D. Fla. 2006) (cruise line operator not
required to warn of dangers that are open and obvious).

The Court finds that, taken as true, Baker’s allegations
state a cause of action for breach of Carnival’s duty to
exercise reasonable care for the safety of its passengers.
Specifically, Baker alleges that Carnival created a
foreseeably hazardous situation when its wait staff
suggested and prepared stronger drinks for Baker and then
knowingly allowed the Hiestands to carry the impaired Baker
from the bar area to their cabin. Pl Cmplt. at
§§ 29(a) and (b). Baker claims that as a
result she was sexually assaulted by the Hiestands and
suffered physical and emotional damages. Pl. Cmplt. at
§§ 25, 30. These allegations meet the basic
elements of a negligence claim and are sufficient to
overcome Carnival’s motion to dismiss the negligence claim.
See, e.g. Hall v. Royal Caribbean Cruises, Ltd., 888 So.2d
654 (Fla. 3d DCA 2004) (passenger’s allegation that he was
injured after being served alcohol by vessel’s employees
past the point of intoxication stated cause of action
against cruise ship).

Baker also advances several alternative theories of
negligence. First, Baker alleges that Carnival was
negligent because its medical crewmembers failed to use
proper care in attending to Baker’s injuries and in
safeguarding Baker’s rapekit. Pl. Cmplt. at § 29(c).
Carnival does not challenge this theory of negligence.
Since Baker’s first theory of negligence is sufficient to
state a cause of action, the Court will not rule on this
alternative theory of negligence.[fn1] Page 6

Another theory advanced by Baker to support her negligence
claim is that Carnival was negligent in failing to
investigate fully the offense committed on Baker. Pl.
Cmplt. at § 29(d). As noted by Carnival, several
courts have held that no duty to investigate exists. See
Doe v. Celebrity, 145 F. Supp. 2d 1337, 1346 (11th Cir.
2001) (holding that operator’s alleged failure to
investigate sexual assault on passenger did not constitute
negligence) (citing York v. Commodore Cruise Line, Ltd.,
863 F.Supp. 159, 164 (S.D.N.Y. 1994) and Jaffess v. Home
Lines, Inc., 1988 WL 42049 at *6 (S.D.N.Y. Apr. 22, 1988)).
Baker argues that this Court should not follow Doe because
its analysis is limited and the clearly established rule is
that one who undertakes a duty to act is obligated to act
with reasonable care. Union Park Memorial Chapel v. Hutt,
670 So.2d 64, 67-68 (Fla. 1966) (citations omitted). As
discussed above, Baker has stated a cause of action based
on her first theory of negligence. Therefore, at this time
the Court will not make a determination as to whether this
theory — negligence for failure to investigate
— is a viable one, but advises Baker that going
forward she should carefully consider whether this theory
of negligence is supported by the law.[fn2]

Lastly, Baker alleges that Carnival was negligent in
failing to advise Baker about the actions Page 7 she
needed to take to involve onshore authorities in the
investigation and prosecution of the offense, and in the
failure of Carnival’s security department crewmembers to
safeguard and maintain custody of the rape kit. Pl. Cmplt.
at §§ 29(e) and (f). Carnival does not
address these theories in its motion to dismiss, except to
argue that it reported the allegations to the appropriate
authorities in Puerto Rico. As noted above, Baker has
sufficiently alleged a negligence cause of action based on
another theory of negligence. Therefore, the Court will not
dismiss the negligence claim. Baker, however, should
carefully consider whether these last two theories are
grounds for a negligence cause of action.

III. Breach of Contract

Baker alleges that Carnival violated the “zero tolerance”
policy[fn3] of the ticket contract it entered into with
Baker by failing to report the illegal activity that took
place aboard the ship and by enabling the illegal activity
of the Hiestands towards Baker. Pl. Cmplt. at
§§ 34-36. According to Baker, by reporting
the offense only to authorities in Puerto Rico, Carnival
did not fulfill its obligation to Baker because the Puerto
Rican authorities could not properly investigate the
offense since the victims and the perpetrators were not
there when the ship docked. Id. at § 36.

Carnival seeks to dismiss Baker’s breach of contract
claim, arguing that there is no explicit provision in the
ticket contract guaranteeing safe passage or obligating
Carnival to report illegal activity. Carnival argues it
fulfilled any obligation it may have had by reporting
Baker’s allegations of criminal activity to the Puerto
Rican authorities.

Maritime law will not imply a duty of safe passage absent
a specific contractual provision guaranteeing it. Doe, 145
F. Supp. 2d at 1346-47 (dismissing plaintiff’s breach of
contract claim in Page 8 sexual assault case) (citing Hass
v. Carnival Cruise Lines, 1986 WL 10154 (S.D. Fla. Mar. 20,
1986). Baker has pointed to no provision other than
Carnival’s zero tolerance policy, for its breach of
contract claim. The plain language of that provision,
however, does not guarantee a passenger’s safe passage, nor
does it impose an obligation upon Carnival to report
illegal activity. Rather, it sets forth, as a warning to
passengers, Carnival’s policy of reporting illegal
activity. Therefore, Carnival’s failure to follow that
policy does not create a cause of action for breach of

IV. Punitive Damages

Baker also seeks punitive damages in this action. As Baker
concedes, however, under maritime law punitive damages are
precluded in personal injury actions except in cases
involving intentional wrongdoing. In re Amtrak “Sunset
Ltd.” Train Crash in Bayou Canot, Alabama, on September 22,
1993, 121 F.3d 1421, 1429 (11th Cir. 1997). Baker has not
alleged that Carnival acted intentionally, wilfully or with
malice. Accordingly, at this time Baker’s request for
punitive damages is stricken.

V. Attorney’s Fees

Baker’s request for attorney’s fees is also inappropriate
in this action. Federal maritime law provides that “absent
specific federal statutory authorization for an award of
attorney’s fees, the prevailing party is generally not
entitled to those fees.” Garan Inc. v. M/V Aivik, 907
F.Supp. 397, 399 (S.D.Fla. 1995) (citing Noritake Co., Inc.
v. M/V Hellenic Champion, 627 F.2d 724 (5th Cir.
1980)).[fn4] Baker has pointed to no statutory
authorization for the award of attorney’s fees.
Accordingly, Baker’s request for attorney’s fees is also

VI. Conclusion

For the reasons set for above, Carnival’s Motion to
Dismiss Count I of the Complaint is Page 9 DENIED. The
Motion to Dismiss Count II of the Complaint is GRANTED.
Baker’s requests for punitive damages and attorney’s fees

DONE AND ORDERED in Chambers, Miami, Florida.

[fn1] The Court notes, however, that the state of maritime
law on this issue currently is in flux. The majority rule
is that a cruise line cannot be held vicariously liable for
a doctor’s negligence onboard. Barbetta v. S/S Bermuda
Star, 848 F.2d 1364 (5th Cir. 1988). In August of 2003,
however, the Florida Third Circuit Court of Appeal rejected
Barbetta and held that a ship’s doctor’s negligence should
be imputed to a cruise line. Carlisle v. Carnival Corp.,
864 So.2d 1 (Fla. 3d DCA 2003). One court in the Southern
District of Florida, relying in part on Carlisle, has also
declined to apply the Barbetta majority rule. See Huntley
v. Carnival Corp., 307 F.Supp.2d 1372, 1374 (S.D. Fla.
2004). More recently, however, another court in the
Southern District of Florida has upheld the Barbetta rule.
See Doonan v. Carnival Corp., 404 F. Supp. 2d 1367 (S.D.
Fla. 2005). There is currently no Eleventh Circuit
precedent on this issue, and the Carlisle case is pending
review before the Florida Supreme Court. Carnival Corp. v.
Carlisle, 904 So.2d 430 (Fla. 2005).

[fn2] Carnival argues that even if there was a duty to
investigate and Carnival breached that duty, the passenger
ticket bars Baker’s damages for strictly emotional
injuries. The relevant provision is found at paragraph 17
of the ticket contract. It provides: “Carnival shall not be
liable to the passenger for damages for emotional distress,
mental suffering/anguish or psychological injury of any
kind . . . 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. . . .” Baker has alleged that
she suffered physical injury because she was physically
assaulted and raped. Pl. Cmplt. §§ 16-17.
Although she has also alleged that she suffered emotional
injuries, those damages are recoverable under the ticket
contract because they are a result or component of the
physical injuries she allegedly suffered.

[fn3] The relevant provision provides: “Carnival has a
`zero tolerance’ policy towards reports of any illegal
activity or behavior by passengers or crew aboard its
vessels. Guest agrees to comply with this policy and
further acknowledges that Carnival will report any and all
alleged instances of illegal activity or behavior to the
appropriate law enforcement authorities.” Pl. Cmplt., Ex.
B, § 10(c).

[fn4] An exception to this rule exists where bad faith is
alleged. See Noritake, 627 F.2d at 730 n. 5. Baker,
however, has not alleged that Carnival acted in bad faith.
Therefore, the exception does not apply here.