101 F. Supp. 3d 1298
S.D. Fla.2015Background
- Plaintiff Brent Wolf was injured during an OCT-operated zip-line shore excursion in Costa Rica while a passenger on Celebrity Infinity; he purchased the excursion through Celebrity onboard and signed Celebrity’s ticket contract and OCT’s waiver.
- Celebrity’s cruise ticket and the excursion ticket contained disclaimers stating shore excursions are independent-contractor operations; OCT’s onsite waiver also disclaimed Celebrity liability.
- Celebrity selected OCT after a bidding/approval process, performed recurring evaluations (including a site visit one week before the accident), and had offered OCT excursions for years without reported safety complaints.
- The accident video and witness testimony show Wolf failed to lift his legs approaching the receiving platform and was traveling at high speed; OCT guides had given body/leg positioning instructions.
- Wolf sued Celebrity asserting negligence (duty to warn; negligent hiring/retention), apparent agency, joint venture, actual agency, and breach of third-party-beneficiary contract; OCT was previously dismissed from the case.
- The court applied federal maritime law and granted Celebrity’s motion for summary judgment, finding Wolf failed to raise genuine issues of material fact on each theory of liability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Negligence — duty to warn | Wolf: Celebrity knew or should have known of unsafe conditions and failed to warn passengers | Celebrity: No actual/constructive notice of dangerous condition; had positive evaluations and no reports | Held: No genuine issue — Celebrity lacked notice and did not create the danger; summary judgment for Celebrity |
| Negligent hiring/retention | Wolf: Celebrity negligently selected/retained OCT and should be liable | Celebrity: Diligent selection/evaluation process; OCT was independent contractor | Held: No genuine issue — Celebrity reasonably vetted OCT; claim fails |
| Apparent agency | Wolf: Marketing, on-board ticketing, and staff conduct created reasonable belief OCT was Celebrity’s agent | Celebrity: Multiple express disclaimers stated excursions were independent contractors | Held: No genuine issue — disclaimers and record preclude apparent agency |
| Joint venture / Actual agency / Third-party beneficiary | Wolf: Parties’ conduct shows joint venture or actual agency; contract intended to benefit passengers | Celebrity: Tour Operator Agreement disclaims agency/joint venture and any third-party rights | Held: No genuine issue — contract language and record defeat joint venture, actual agency, and third-party beneficiary claims; summary judgment for Celebrity |
Key Cases Cited
- Keefe v. Bahama Cruise Line, 867 F.2d 1318 (11th Cir.) (maritime law duty and notice principles)
- Doe v. Celebrity Cruises, Inc., 394 F.3d 891 (11th Cir.) (maritime law applies to offshore port-of-call torts)
- Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225 (11th Cir.) (apparent agency discussion in cruise-ship context)
- Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332 (11th Cir.) (invalidity of contractual disclaimers for a carrier’s own negligence)
- Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (U.S.) (shipowner’s duty of reasonable care to passengers)