LOWES v. ROYAL CARIBBEAN CRUISES LTD (2021)

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

THIS MATTER is before the Court on Defendant Royal Caribbean Cruises’ motion to dismiss, which the Court converted into a motion for summary judgment. The motion is fully briefed and ripe for adjudication. The main issue before the Court is whether Plaintiff Mr. Gregg Lowes filed this suit within the statute of limitations. For the reasons stated below, the Court finds Mr. Lowes did not. Accordingly, Defendant's motion is GRANTED. Summary judgment will be entered in favor of Defendant, and this action shall be DISMISSED with prejudice.

Factual Background and Procedural History

This case concerns a personal injury occurring on Royal Caribbean's vessel, Spectrum of the Seas. Mr. Gregg Lowes was a passenger aboard the ship. On May 9, 2019, as Mr. Lowes was exiting the ship, he “tripped and fell on a gap in the gangplank ramp, sustaining serious bodily injuries as a result.” ECF No. 1 at ¶ 12. Mr. Lowes incurred numerous medical expenses because of these injuries. Id. at ¶ 13.

Mr. Lowes filed this action on September 22, 2020. ECF No. 1. On February 1, 2021, Royal Caribbean moved to dismiss the case with prejudice. ECF No. 11 at 1. Royal Caribbean argues the case should first be dismissed because Mr. Lowes's claims are time barred. Id. at 3. According to Defendant, when Mr. Lowes purchased his ticket aboard the ship, he entered into a so-called ticket contract setting a one-year statute of limitations on actions like this one. Id. Royal Caribbean also argues that Mr. Lowes has failed to show that Royal Caribbean had actual or constructive notice of the alleged dangerous condition on the gangplank ramp. Id. at 1.¹ Plaintiff Mr. Lowes filed an opposition to this motion, ECF No. 17, which Royal Caribbean replied to, ECF No. 18. On May 17, 2021, the Court converted the motion to dismiss to a motion for summary judgment. See ECF No. 23.² The Court granted the parties reasonable opportunity to present additional material relevant to the motion, and the parties submitted additional briefing and supporting exhibits in support of their respective positions. See ECF Nos. 24, 25, 27.

Legal Standards

“Summary judgment is appropriate if there are no genuine issues of material fact, and the movant is entitled to judgment as a matter of law.” Scott v. United States, 825 F.3d 1275, 1278 (11th Cir. 2016). The Court must “consider all evidence in the record when reviewing a motion for summary judgment—pleadings, depositions, interrogatories, affidavits, etc.—and can only grant summary judgment if everything in the record demonstrates that no genuine issue of material fact exists.” Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012).

“The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact.” FindWhat Inv'r Grp. v. FindWhat.com, 658 F.3d 1282, 1307 (11th Cir. 2011) (citation omitted). If the moving party meets this burden, “the nonmoving party must present evidence beyond the pleadings showing that a reasonable jury could find in its favor.” Fickling v. United States, 507 F.3d 1302, 1304 (11th Cir. 2007). “Speculation does not create a genuine issue of fact[.]” Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005). “An issue is genuine if there is sufficient evidence such that a reasonable jury could return a verdict for either party.” Great Am. All. Ins. Co. v. Anderson, 847 F.3d 1327, 1331 (11th Cir. 2017). (citation omitted). “Similarly, an issue is material if it may affect the outcome of the suit under governing law.” Id. When deciding whether summary judgment is appropriate, the Court must “resolve all ambiguities and draw reasonable factual inferences from the evidence in the non-movant's favor.” Layton v. DHL Exp. (USA), Inc., 686 F.3d 1172, 1175 (11th Cir. 2012) (citation omitted).

Analysis

The parties do not dispute that the injury in this case occurred on May 9, 2019 and that the case was filed on September 22, 2020. The parties also agree that they entered into a so-called ticket contract that controls when this action may be filed. The parties do dispute: (1) whether Royal Caribbean has provided an accurate copy of the operative contract to the Court; (2) whether this action is subject to a one- or two-year statute of limitations. For the reasons stated below, the Court finds there is no genuine issue of material fact that Royal Caribbean has presented a copy of the operative contract. Similarly, the Court finds that a one-year statute of limitations applies to this action, and Mr. Lowes's suit is therefore untimely.

I. The validity of the contract at issue

The parties dispute whether the contract presented is the operative ticket contract. Mr. Lowes acknowledges in his complaint that he entered into a ticket contract that controls this action. See ECF No. 1 at ¶¶ 7, 9. Mr. Lowes has not provided a copy of this contract, nor did he initially challenge that Royal Caribbean had provided a valid copy of said contract. See, e.g., ECF No. 17 at 2 (citing to the contract provided by Defendant as the operative contract). In his supplemental brief, however, he appears to raise two challenges to the validity of this contract. First, he states the writing Royal Caribbean has provided the Court is merely an exemplar, and not the actual contract Mr. Lowes agreed to. ECF No. 25 at 1–2. Second, he states that Royal Caribbean has not provided “any copy of an acceptance report” or other document showing Mr. Lowes accepted the ticket contract. Id. Although he does not say as much, Mr. Lowes appears to suggest that because Royal Caribbean has not demonstrated it has provided the contract Mr. Lowes agreed to, there is a genuine issue of material fact here that warrants a denial of summary judgment.

Meanwhile Royal Caribbean filed with its motion to dismiss a document it states is the operative ticket contract. ECF No. 11-1. Royal Caribbean refiled this same document—along with what it states is the complete guest ticket booklet issued to Mr. Lowes—in its reply brief. ECF No. 18-1. This same filing also includes a document titled “Authorized Consent Information,” which appears to be an electronic acceptance of the contract at issue. See id. at 47. Additionally, in response to questions raised by Mr. Lowes about the validity of the contract, and Mr. Lowes's acceptance of the ticket contract, Royal Caribbean also filed a Declaration of Amanda Campos, Director of Guest Claims & Litigation for Royal Caribbean. See ECF No. 24-1. Ms. Campos’ declaration states that as part of the process for booking tickets aboard the Spectrum of the Seas, Mr. Lowes electronically accepted the terms and conditions of a ticket contract. Id. at ¶ 12. Ms. Campos attaches to her declaration a document which she states serves as evidence of electronic acceptance by Mr. Lowes. Id. at Ex. A. (This same document is filed as part of ECF No. 18-1.) Additionally, Ms. Campos confirms Royal Caribbean has provided the Court with the guest ticket booklet issued to Mr. Lowes, which contains a copy of the operative contract. Id. at ¶ 13. Mr. Lowes does not contest the veracity of Ms. Campos’ declaration, nor does he present to the Court any evidence to dispute that (1) Royal Caribbean has provided a copy of the operative contract or (2) the electronic acceptance provided by Royal Caribbean is deficient. Likewise, though he acknowledges that there is an operative contract that controls the statute of limitations question below, he does not present the Court with a copy of said document.

As the moving party, Royal Caribbean here has the initial burden to show an absence of a genuine issue of material fact. See FindWhat, 658 F.3d at 1307. The only factual disputes concern whether the contract before the Court is the operative contract, and whether Mr. Lowes agreed to that contract. Royal Caribbean here has met its initial burden by providing the Court with what it says is the operative contract, along with a sworn declaration from one of its employees, and an electronic confirmation from Mr. Lowes agreeing to this contract. The burden therefore shifts to Mr. Lowes to provide some evidence that this is not the contract he agreed to, or that he failed to agree to any ticket contract at all. Specifically, Mr. Lowes must provide “enough evidence such that a reasonable jury could return a verdict for either party.” Anderson, 847 F.3d at 1331. Mr. Lowes, however, provides no evidence to support his position—just argument in briefing. Accordingly, the Court finds this insufficient to create a genuine issue of material fact, and that the contract presented by Royal Caribbean is the operative ticket contract agreed to by Mr. Lowes.

II. The applicable statute of limitations

The parties dispute what part of the ticket contract provides the statute of limitations controlling this action. Royal Caribbean argues that Section 10(a) provides a one-year statute of limitations here. Section 10 is titled “NOTICE OF CLAIMS AND COMMENCEMENT OF SUIT OR ARBITRATION; SECURITY.” Section 10(a) reads:

TIME LIMITS FOR PERSONAL INJURY/ILLNESS/DEATH CLAIMS: NO SUIT SHALL BE MAINTAINABLE AGAINST CARRIER, THE VESSEL OR THE TRANSPORT FOR PERSONAL INJURY, ILLNESS OR DEATH OF ANY PASSENGER UNLESS [․] SUIT IS COMMENCED (FILED) WITHIN ONE (1) YEAR FROM THE DATE OF SUCH INJURY, ILLNESS OR DEATH[.]

ECF No. 18-1 at 35.³

Mr. Lowes argues that Section 11(e) provides a two-year statute of limitations. Section 11 is titled “LIMITATIONS OF LIABILITY” and Section 11(e) reads:

ON CRUISES WHICH ARE BOOKED BY A PASSENGER IN A EUROPEAN UNION MEMBER STATE, OR WHICH EMBARK OR DISEMBARK IN A PORT LOCATED IN A EUROPEAN UNION MEMBER STATE, THE CARRIER SHALL BE ENTITLED TO THE BENEFIT OF ANY AND ALL RESTRICTIONS, EXEMPTIONS, IMMUNITIES, AND LIMITATIONS OF LIABILITY SET FORTH IN EUROPEAN UNION REGULATION 392/2009 ON THE LIABILITY OF CARRIERS TO PASSENGERS IN THE EVENT OF ACCIDENTS (“EU 392/2009”).

ECF No. 18-1 at 36. Section 11(e) continues, “EU 392/2009 LIMITS CARRIER'S LIABILITY AS FOLLOWS,” and in eight subparts numbered i. though viii., the section goes on to explain certain monetary limitations to how much carrier will compensate passengers in specific situations. Id.⁴ According to Mr. Lowes, because he embarked the Spectrum of the Seas in Barcelona—a port located in a European Union (“EU”) member state—EU Regulation 392/2009 applies (“the EU regulation”). In turn, the EU regulation incorporates the statute of limitations provided for in the Athens Convention.⁵ The Athens Convention, says Mr. Lowes, provides a two-year statute of limitations. And because this suit was filed less than two years after the injury, the suit is timely.

For the reasons stated out below, the Court finds this action is subject to the one-year statute of limitations set out in Section 10(a). There is no question Mr. Lowes filed his case more than one year after his injury, and therefore this action is time-barred.

a. Whether Section 11(e) applies

Pursuant to the language of the operative contract, Section 11(e) applies “[o]n cruises which are booked by a passenger in a European Union member state, or which embark or disembark in a port located in a European Union member state[.]” ECF No. 18-1 at 36. Notably the plain language of the provision says it applies to “cruises [․] which embark” in certain ports, not that it applies to passengers who embark in certain ports.

The parties agree that Mr. Lowes first boarded the Spectrum of the Seas in Barcelona, Spain—an EU member state. Accordingly, Mr. Lowes argues that his cruise “embark[ed]” in “a port located in a European Union member state,” within the meaning of Section 11(e). ECF No. 17 at 2. Royal Caribbean disagrees. Instead, it explains that Mr. Lowes purchased two consecutive cruise tickets aboard the Spectrum of the Seas. ECF No. 18 at 4–5. The first ticket was for a cruise beginning in Barcelona, Spain on April 18, 2019 and ending in Dubai, United Arab Emirates on May 4, 2019. The second ticket was for a cruise beginning in Dubai, United Arab Emirates on May 4, 2019, and ending in Singapore on May 18, 2019. Because Mr. Lowes's injury occurred on May 9, 2019—during the cruise beginning in Dubai—Royal Caribbean argues that the cruise in question did not embark in a port located in an EU member state, but in Dubai.

The Court agrees with Royal Caribbean's reading of Section 11(e). Section 11(e) specifies that the contract applies to “cruises” embarking in EU ports. Section 2(c) defines a cruise as “the specific cruise covered by this Ticket Contract.” ECF No. 18-1 at 33. Mr. Lowes received the operative contract as part of a guest ticket booklet for a 14 Night Spice Route Cruise (“the Spice Route Cruise”). See ECF No. 24-1 at ¶ 13 (declaration from Defendant's employee); ECF No. 18-1 at 22 (guest ticket booklet). The second page of the guest booklet provides a cruise summary and specifies Dubai, United Arab Emirates as the port of embarkation, and Singapore as the port of disembarkation. ECF No. 18-1 at 23. There is no question that Mr. Lowes's injury occurred during this the Spice Route Cruise on May 9, 2019.⁶ Accordingly, Section 11(e) does not apply here.

b. Whether Section 11(d) alters the statute of limitations in Section 10(a)

Although Section 11(e) does not apply to Mr. Lowes's cruise, it appears that Section 11(d) does. This section applies to cruises “which do not embark, disembark or call” at a port in the United States or the EU. According to the travel summary provided by Royal Caribbean for Mr. Lowes's Spice Route Cruise meets these criteria. ECF No. 18-1 at 25 (travel itinerary showing this cruise did not embark, disembark, or call at a port in the United States or the EU). On cruises like the Spice Route Cruise, Section 11(d) provides that:

CARRIER SHALL BE ENTITLED TO ANY AND ALL LIABILITY LIMITATIONS, IMMUNITIES AND RIGHTS APPLICABLE TO IT UNDER THE “ATHENS CONVENTION RELATING TO THE CARRIAGE OF PASSENGERS AND THEIR LUGGAGE BY SEA” OF 1974, AS WELL AS THE “PROTOCOL TO THE ATHENS CONVENTION RELATING TO THE CARRIAGE OF PASSENGERS AND THEIR LUGGAGE BY SEA” OF 1976 (“ATHENS CONVENTION”).

ECF No. 18-1 at 36. Because Mr. Lowes argues that the Athens Convention establishes a two-year statute of limitations for this action, the Court considers whether Section 11(d) (incorporating the Athens Convention) modifies the one-year statute of limitations at Section 10(a). The Court concludes it does not for the reasons stated in Farris v. Celebrity Cruises Inc., No. 11-21489-CIV, 2011 WL 13175627, at *4 (S.D. Fla. June 29, 2011), aff'd, 487 F. App'x 542 (11th Cir. 2012).

Like in Farris, here Section 11(d) states that “the carrier shall be entitled” to “any and all liability limitations, immunities, and rights applicable to it.” ECF No. 18-1 at 36 (emphasis added). Pursuant to the definitions in the contract, Mr. Lowes is not a carrier but a passenger. See supra note 4. On its face, Section 11(d) does not entitle Mr. Lowes to anything—and certainly not a longer statute of limitations than he agreed to under Section 10(a). See Farris, 2011 WL 13175627 at *4.⁷ This reading is further supported by the overall structure of Section 11, which is titled “Limitations on Liability” and deals exclusively with limitations on the liability of the carrier, not additional rights of the passenger. Section 11(d) therefore does not modify the one-year statute of limitations at Section 10(a).

Because Mr. Lowes filed his case outside of the one-year statute of limitations, his action is untimely.⁸

DONE and ORDERED in chambers, Miami, Florida, this 3rd day of August 2021.

FOOTNOTES

1.   Because the Court grants summary judgment based on its finding that the Plaintiff has filed this action outside of the statute of limitations, it sees no reason to address the notice argument.

2.   The Court stated it was converting the motion to dismiss into a motion for “partial” summary judgment. This was a clerical error. Because Royal Caribbean moved to dismiss all of Mr. Lowes's claims, the Court should have stated it was converting the motion to dismiss to a motion for summary judgment.

3.   The Court cites to the contract provided by Royal Caribbean at ECF No. 18-1. Defendant appears to provide excerpts of this same document—including copies of the contract in question—at ECF No. 11-1 (submitted with the motion to dismiss) and at ECF No. 24-1 (submitted with Defendant's supplemental brief).

4.   The contract defines a carrier as “(i) the Vessel, or any substituted ship; (ii) the Vessel's Operator.” ECF No. 18-1 at 33. It defines passenger or guest as “all persons traveling under this Ticket Contract and persons in their care, together with their respective heirs and representatives.” Id. The parties do not dispute that Royal Caribbean is the carrier, and Mr. Lowes is the passenger or guest.

5.   “The Athens Convention is a multilateral treaty consisting of the Athens Convention Relating to the Carriage of Passengers and Their Luggage by Sea, Dec. 13, 1974, 1463 U.N.T.S. 19, and the Protocol to the Athens Convention Relating to the Carriage of Passengers and Their Luggage by Sea, Nov. 19, 1976, 1545 U.N.T.S. 339.” Farris v. Celebrity Cruises, Inc., 487 F. App'x 542, 543 (11th Cir. 2012).

6.   The fact that Mr. Lowes purchased two back-to-back cruises aboard the same ship is irrelevant. Royal Caribbean has provided evidence that Mr. Lowes received two separate contracts, each with a separate cruise summary attached. See ECF No. 18-1; ECF No. 24-1. Mr. Lowes provides no evidence to the contrary.

7.   For similar reasons, even if Section 11(e) did apply, given it contains similar language entitling the “carrier” to certain rights, Section 11(e) would likewise not modify the one-year statute of limitations at Section 10(a).

8.   Mr. Lowes also raises an argument concerning Defendant's alleged failure to reasonably communicate the material terms of the contract. See ECF No. 17 at 2–3. The Court sees no need to address this at length because Mr. Lowes argues the two-year statute of limitations has not been reasonably communicated in Section 11(e), not the one-year statute of limitations in Section 10(a). Section 11(e), however, does not apply here for the reasons already stated. And even if it did, this argument would cut against Mr. Lowes. Where a contract provision is not reasonably communicated, it is generally considered to be unenforceable. See, e.g., Caron v. NCL (Bahamas), Ltd., 910 F.3d 1359, 1367–68 (11th Cir. 2018). Assuming Mr. Lowes were correct on the Defendant's failure to reasonably communicate a two-year statute of limitations set out in Section 11(e), this would void that provision.

MARCIA G. COOKE, United States District Judge