Felix Wajnstate v. Oceania Cruises, Inc.Felix Wajnstate v. Oceania Cruises, Inc.
Before CARNES, BARKETT and HILL, Circuit Judges.
CARNES, Circuit Judge:
Oceania Cruises, Inc., attempts to bring this interlocutory appeal under
I.
Felix Wajnstat and his wife booked a cruise on a ship owned by Oceania, which would depart from Istanbul, Turkey, stop at various Black Sea ports, and then end in Athens, Greece. During that cruise, Wajnstat became ill and sought medical attention from the ship‘s doctor. He eventually had to be evacuated to Sevastopol, Ukraine, where he underwent three surgeries and allegedly received substandard care.
Wajnstat then filed this lawsuit in federal district court,1 and in his second amended complaint he claimed that Oceania negligently hired, retained, and supervised the ship‘s doctor. Oceania answered, and raised as an affirmative
defense that its liability to Wajnstat, if any, was limited by the Athens Convention2 as incorporated by
The district court applied the “reasonable communicativeness” test from Shankles v. Costa Armatori, S.P.A., 722 F.2d 861, 863–67 (1st Cir. 1983), to determine whether the non-negotiated limitation-of-liability provision was enforceable. It concluded that the provision was not reasonably communicative because it was confusing and because it required the passengers to parse through the treaties and the statutes to determine the limits of Oceania‘s liability. The court also noted that the Ninth Circuit had held a similar limitation-of-liability provision unenforceable in Wallis v. Princess Cruises, Inc., 306 F.3d 827, 837 (9th Cir. 2002). The court denied Oceania‘s motion for partial summary judgment and instead granted partial summary judgment to Wajnstat on Oceania‘s limitation-of-liability defense. Oceania then filed this interlocutory appeal.
II.
We must inquire into our own jurisdiction if it is possible that jurisdiction does not exist. Amnesty Int‘l, USA v. Battle, 559 F.3d 1170, 1176 (11th Cir. 2009). We are generally precluded from hearing interlocutory appeals under the final judgment rule. See
In order for this appeal to fit within the
The same rule applies here. If, as Ford Motor Co. held, a district court does not determine the “rights and liabilities of the parties” when it decides the applicability of a statutory limitation of liability, it also does not determine the “rights and liabilities of the parties” when it determines the applicability of a contractual limitation of liability. The Ninth Circuit reached a contrary conclusion about contractual limitations of liability in Wallis, 306 F.3d at 834, but we are bound by Ford Motor Co.3 And our conclusion here, which follows the Ford Motor Co. precedent, is also in keeping with our Court‘s narrow interpretation of
Oceania contends that even if we do not have interlocutory jurisdiction under
Putting aside the “completely separate from the merits” requirement, the district court‘s order fails the Cohen test because the limitation-of-liability provision is not “effectively unreviewable on appeal from a final judgment.” “If [Wajnstat‘s] case goes forward and [Oceania] is ultimately found liable for compensatory damages, it will have an ample opportunity to test the propriety of that award before it is forced to pay.” Espinal-Dominguez v. Puerto Rico, 352 F.3d 490, 498 (1st Cir. 2003). If, on the other hand, Wajnstat does not succeed, there will be no award against Oceania.
That is what concerns Oceania—the possibility of a pyrrhic victory. Oceania argues that, if it is not found liable in this case, it will be unable to appeal the district court‘s interlocutory ruling that the limitation-of-liability provision is unenforceable. See Abbs v. Sullivan, 963 F.2d 918, 924 (7th Cir. 1992) (“[A] winner cannot appeal a judgment merely because there are passages in the court‘s opinion that displease him—that may indeed come back to haunt him in a future case. He can appeal only if the judgment gives him less relief than he considers himself entitled to.” (citations omitted)). Even though no court, including the issuing court will be bound by the ruling, Oceania fears that the very existence of the ruling will persuade other courts to follow it. But so what? If another court does follow the ruling and Oceania suffers a non-limited award of damages in some future case, it can appeal that judgment and argue the issue on appeal. If the appellate court agrees with Oceania on the issue, it will have suffered no harm from the reiteration of the ruling. If the appellate court disagrees with Oceania on the issue, it will have suffered nothing that it should not have.
Oceania‘s proposed interpretation of the Cohen “effectively unreviewable on appeal” requirement would effectively take the “require” out of requirement. It would do so because virtually every interlocutory ruling is unreviewable on appeal if the party who suffers that ruling ultimately prevails in the trial court. As the First Circuit has explained, if an issue that concerns a party were considered effectively unreviewable simply because that party might prevail in the district court and thereby moot the issue, “almost every pretrial or trial order might be called ‘effectively unreviewable’ in the sense that relief from error can never extend to rewriting history.” Espinal-Dominguez, 352 F.3d at 498 (quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 872, 114 S.Ct. 1992, 1998 (1994)). The Supreme Court has “repeatedly stressed that the ‘narrow’ [Cohen] exception should stay that way and never be allowed to swallow the general rule that a party is entitled to a single appeal, to be deferred until final judgment has been entered, in which claims of district court error at any stage of the litigation may be ventilated.” Digital Equip., 511 U.S. at 868, 114 S.Ct. at 1996 (citation omitted); cf. Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 744, 96 S.Ct. 1202, 1207 (1976) (“[Judgments] where assessment of damages or awarding of other relief remains to be resolved have never been considered to be ‘final’ within the meaning of
This appeal is DISMISSED for lack of jurisdiction.4