Brent Wolf v. Celebrity Cruises, Inc. , 683 F. App'x 786 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-12341
________________________
D.C. Docket No. 1:13-cv-23697-MGC
BRENT WOLF,
Plaintiff - Appellant,
versus
CELEBRITY CRUISES, INC.,
d.b.a. Celebrity Cruises,
THE ORIGINAL CANOPY TOUR,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 28, 2017)
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Before JORDAN, ROSENBAUM, and SILER, * Circuit Judges.
PER CURIAM:
Brent Wolf sued OCT Enterprises, Ltd., doing business as The Original
Canopy Tour, and Celebrity Cruises, Inc. after being injured during an offshore
zip-lining excursion. He appeals two district court orders—one dismissing the
claims against OCT for lack of personal jurisdiction, and the other granting
summary judgment in favor of Celebrity. After a thorough review of the parties’
briefs, the record, and with the benefit of oral argument, we affirm both orders.
I
In October of 2012, Mr. Wolf, his wife, Patricia Cannon, and a friend of
theirs, Beverly Falor, set sail as passengers aboard the Celebrity Infinity.
Ms. Cannon purchased cruise tickets for herself and Mr. Wolf through a travel
agent. Mr. Wolf received a cruise ticket contract which stated that “providers,
owners[,] and operators” of shore excursions and tours “are independent operators
and are not acting as [Celebrity’s] agents or representatives.” D.E. 65-1 at 2.
Mr. Wolf and Ms. Falor purchased tickets at the shore excursion desk
onboard the Infinity to participate in a zip-lining activity on a private nature reserve
in Costa Rica on October 15, 2012. Those tickets stated again that providers of
shore excursions and tours “are independent contractors and are not acting as
*
The Honorable Eugene Siler, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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[Celebrity’s] agents or representatives.” D.E. 65-4. Mr. Wolf signed a liability
waiver provided by OCT, which stated that the zip-line excursion was owned and
operated by OCT. See D.E. 65-5.
The zip-lining tour consisted of ten observation platforms and nine
horizontal traverses. On one of the traverses, Mr. Wolf failed to stop or otherwise
slow down near the end of the zip-line and slammed into a platform. He suffered
severe injuries, including an avulsion of his calf muscle on his left leg. Mr. Wolf
asserts that he had spun backwards during the traverse and could not see the
platform as he approached it. He maintains that he was unaware of how to turn
himself around because OCT personnel had not instructed him on how to do so. He
also claims that he was unable to slow down because the leather gloves provided
by OCT were not thick enough, and that a bumper was missing from the landing
platform he crashed into.
In his complaint, Mr. Wolf asserted negligence claims against OCT and
claims against Celebrity under theories of direct and vicarious liability. He alleged
that Celebrity was negligent in failing to warn him of a dangerous condition and
negligent in hiring and retaining OCT. He also claimed that Celebrity was liable
for OCT’s alleged negligence under theories of actual agency, apparent agency,
and joint venture. He further asserted that he was the intended beneficiary of the
contract between Celebrity and OCT, and that Celebrity had breached its
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contractual duties to him. Following a hearing, the district court dismissed OCT
from the lawsuit for lack of personal jurisdiction. The district court then granted
summary judgment in favor of Celebrity on all of Mr. Wolf’s remaining claims.
II
We review de novo the district court’s dismissal of OCT for lack of personal
jurisdiction. See Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447
F.3d 1357, 1360 (11th Cir. 2006). A plaintiff has the burden of establishing a
prima facie case of jurisdiction over a non-resident defendant, meaning he must
present enough evidence to withstand a motion for directed verdict. See Meier ex
rel. Meier v. Sun Int’l Hotels, Ltd., 288 F.3d 1264, 1268–69 (11th Cir. 2002).
“Where, as here, the defendant submits affidavits to the contrary, the burden
traditionally shifts back to the plaintiff to produce evidence supporting jurisdiction
unless those affidavits contain only conclusory assertions that the defendant is not
subject to jurisdiction.” Id. at 1269 (citations omitted). “Where the plaintiff’s
complaint and supporting evidence conflict with the defendant’s affidavits, the
court must construe all reasonable inferences in favor of the plaintiff.” Id.
(citations omitted).
“A federal district court sitting in diversity may exercise personal
jurisdiction to the extent authorized by the law of the state in which it sits and to
the extent allowed under the Constitution.” Id. (citations omitted). “A defendant
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can be subject to personal jurisdiction under Florida’s long-arm statute in two
ways: first, [Fla. Stat. §] 48.193(1)(a) lists acts that subject a defendant to specific
personal jurisdiction—that is, jurisdiction over suits that arise out of or relate to a
defendant’s contacts with Florida,” and, second, “[Fla. Stat. §] 48.193(2) provides
that Florida courts may exercise general personal jurisdiction—that is, jurisdiction
over any claims against a defendant, whether or not they involve the defendant’s
activities in Florida—if the defendant engages in ‘substantial and not isolated
activity in Florida.’” Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201, 1203–
04 (11th Cir. 2015) (emphasis in original).
Mr. Wolf asserted that OCT is subject to personal jurisdiction under both the
general and specific jurisdiction provisions of the Florida long-arm statute, or,
alternatively, under Federal Rule of Civil Procedure 4(k)(2). The complaint alleged
that the similarly named The Original Canopy Tour-USA, L.L.C.—a company
with the same officers as OCT and whose website referenced OCT, and
vice-versa—is listed with the Florida Department of State with a principal place of
business in Miami, Florida; that OCT is carrying out business and/or business
ventures in Florida; that OCT marketed its shore excursions through Celebrity for
sale to passengers boarding its ships in Fort Lauderdale; and that OCT entered into
contracts in Miami with Celebrity and other carriers, in which it consented to
personal jurisdiction and venue in the Southern District of Florida and agreed to
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indemnify Celebrity. Mr. Wolf noted that he was not in possession of the contract
between OCT and Celebrity and therefore could not attach a copy of it to his
complaint.
OCT moved to dismiss Mr. Wolf’s complaint for improper venue and lack
of personal jurisdiction and to quash service of process. In support, OCT attached
the declaration of Richard Graham, a shareholder and vice-president of OCT.
According to Mr. Graham, The Original Canopy Tour-USA, L.L.C. is an entirely
independent and separate entity; OCT never owned or used the P.O. box mailing
address in Miami, Florida identified on the website, www.canopytour.com, which
is operated by an independent travel agency; and OCT never maintained any place
of business in Florida or a branch office in Florida or the United States.
Mr. Graham stated that OCT shareholders pay for a service at a mail
holding/forwarding facility in Miami to avoid unreliable mail service in
Costa Rica. He acknowledged that OCT listed the facility’s Miami address in its
Tour Operator Agreement with Celebrity and in other contracts with other cruise
lines, but maintained that OCT communicates almost exclusively by email and has
received almost no mail at the Miami facility, nor has it ever conducted business or
maintained employees or personnel there.
Mr. Wolf attached several documents to his response, including the Tour
Operator Agreement, listing OCT as a limited liability company with offices in
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Miami, Florida; The Original Canopy Tour-USA, L.L.C.’s Florida Department of
State registration, articles of incorporation, and 2011 annual report; and a
screenshot from www.canopytour.com, listing a P.O. box in Miami.
The district court held a non-evidentiary hearing on OCT’s motion to
dismiss. After hearing from the parties, it granted the motion.
A
We begin with general jurisdiction. Under Florida’s long-arm statute, “[a]
defendant who is engaged in substantial and not isolated activity within this state,
whether such activity is wholly interstate, instrastate, or otherwise, is subject to the
jurisdiction of the courts of this state, whether or not the claim arises from that
activity.” Fla. Stat. § 48.193(2). “The reach of this provision extends to the limits
on personal jurisdiction imposed by the Due Process Clause of the Fourteenth
Amendment” and, therefore, to determine general jurisdiction, “we need only
determine whether the district court’s exercise of jurisdiction over [OCT] would
exceed constitutional bounds.” Fraser v. Smith, 594 F.3d 842, 846 (11th Cir.
2010).
“A court may assert general jurisdiction over foreign . . . corporations . . .
when their affiliations with the State are so ‘continuous and systematic’ as to
render them essentially at home in the foreign State.” Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). “[O]nly a limited set of
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affiliations with a forum will render a defendant amenable to all-purpose
jurisdiction there’”—indeed, “[t]he paradigm all-purpose forums for general
jurisdiction are a corporation’s place of incorporation and principal place of
business.” Daimler AG v. Bauman, 134 S. Ct. 746, 760, 761 n.19 (2014). Only in
the “exceptional case” may “a corporation’s operations in a forum other than its
formal place of incorporation or principal place of business . . . be so substantial
and of such a nature as to render the corporation at home in that State.” Id. at 761
n.19.
Mr. Wolf’s jurisdictional allegations and evidentiary submissions are
substantially similar to those we concluded were insufficient in Carmouche. In that
case, we held that a shore excursion operator’s connections with Florida—
including a Florida bank account, two Florida addresses (one of which was a P.O.
box), purchasing insurance from Florida companies, filing a financing statement
with the Florida Secretary of State, joining a non-profit trade organization based in
Florida, and consenting to jurisdiction in the Southern District of Florida for all
lawsuits arising out of its agreements with a cruise line—were not so “continuous
and systematic as to render it essentially at home there.” 789 F.3d at 1204 (internal
quotation marks and alterations omitted). Similarly, in Fraser, we concluded that a
foreign tour operator’s aggregate contacts, including a website accessible from
Florida, advertisements in publications with circulation in the United States, the
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procurement of insurance through an agent in Florida, the purchase of about half of
its boats in Florida, and employee trainings and promotions in Florida, did not
confer general jurisdiction in Florida. See 594 F.3d at 847.
To the extent Mr. Wolf asserts that the Miami address listed on the Tour
Operator Agreement would establish general jurisdiction, OCT sufficiently
rebutted this contention through Mr. Graham’s declaration. Mr. Graham explained
that this address is merely a mail-forwarding facility used because of the unreliable
mail system in Costa Rica. In response, Mr. Wolf attached a number of documents,
including the Tour Operator Agreement itself. These documents, however, do not
conflict with or rebut Mr. Graham’s statements.
Mr. Wolf requested jurisdictional discovery in order to adequately rebut the
evidence presented by OCT. The right to jurisdictional discovery is a qualified one,
available “when a court’s jurisdiction is genuinely in dispute.” Eaton v. Dorchester
Dev., Inc., 692 F.2d 727, 730 (11th Cir. 1982). Such discovery requests should not
serve as fishing expeditions, and, as such, are appropriate only when “a party
demonstrates that it can supplement its jurisdictional allegations through
discovery.” Trintec Indus., Inc. v. Pedre Promotional Prod., Inc., 395 F.3d 1275,
1283 (Fed. Cir. 2005). Mr. Wolf’s general request for jurisdictional discovery—
made over four months after filing his complaint and buried within his response to
OCT’s motion to dismiss—did not specify what information he sought or how that
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information would bolster his allegations. The district court therefore did not
improperly deny jurisdictional discovery. Compare United Techs. Corp. v. Mazer,
556 F.3d 1260, 1280–81 (11th Cir. 2009) (affirming district court’s dismissal for
lack of personal jurisdiction before discovery was taken where plaintiff never
formally moved for jurisdictional discovery but included the request as a proposed
alternative in response to a motion to dismiss, did not serve notices for depositions,
and did not take formal action to compel discovery), and Posner v. Essex Ins. Co.,
178 F.3d 1209, 1214 (11th Cir. 1999) (affirming district court’s denial of
jurisdictional discovery when no efforts had been made in the eight months
between the filing of the complaint and the time it was dismissed, plaintiffs’ only
allusion to discovery was on the first page of their response to the motion to
dismiss, and plaintiffs “failed to specify what they thought could or should be
discovered”), with Eaton, 692 F.2d at 730–31 (reversing district court’s dismissal
for lack of personal jurisdiction as premature where plaintiff had served subpoenas
duces tecum identifying specific materials to support the allegations, but plaintiff
had not yet received the discovery). 1
B
1
To the extent that Mr. Wolf suggests that The Original Canopy Tour-USA, L.L.C, as a
subsidiary or otherwise related entity, would establish general jurisdiction, he has made no
argument as to how this connection is “‘so substantial’ as to make it one of the ‘exceptional’
cases in which a foreign corporation is ‘at home’ in a forum other than its place of incorporation
or principal place of business.” Carmouche, 789 F.3d at 1204 (quoting Daimler, 134 S. Ct. at
761 n.19). Nor has he specified what jurisdictional discovery he seeks with regard to this entity
or how it might support such a finding.
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“[S]pecific personal jurisdiction authorizes jurisdiction over causes of action
arising from or related to the defendant’s actions within Florida and concerns a
nonresident defendant’s contacts with Florida only as those contacts related to the
plaintiff’s cause of action.” Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d
1339, 1352 (11th Cir. 2013). See also Am. Overseas Marine Corp. v. Patterson,
632 So. 2d 1124, 1127 (Fla. 1st DCA 1994) (specific jurisdiction “is often referred
to as ‘connexity jurisdiction’”). The Florida long-arm statute provides, in relevant
part, that a defendant “submits himself or herself . . . to the jurisdiction of the
courts of this state for any cause of action arising from” the defendant’s acts of
“[o]perating, conducting, engaging in, or carrying on a business or business
venture in this state or having an office or agency in this state.” Fla. Stat.
§ 48.193(1)(a).
Mr. Wolf does not allege that OCT committed a tortious act in Florida and
cannot assert specific jurisdiction based on any tort claims related to the incident
that occurred in Costa Rica. See id. at § 48.193(1)(b). He instead argues that
specific jurisdiction is established through language in the Tour Operator
Agreement executed in Miami, Florida, between OCT and Celebrity, of which he
and other passengers are purportedly direct third-party beneficiaries. As discussed
below, however, Mr. Wolf’s claim for breach of contract based on a third-party
beneficiary theory fails because the language of the Agreement expressly belies
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any intent to benefit a third party. Because the alleged tortious activity occurred
outside of Florida, and there is no connexity between the Agreement and
Mr. Wolf’s cause of action, the district court did not err in determining it lacked
specific personal jurisdiction over OCT.
C
Where “a defendant is not subject to the jurisdiction of the courts of general
jurisdiction of any one state,” Rule 4(k)(2) “permits a court to aggregate a foreign
defendant’s nationwide contacts to allow for service of process provided that two
conditions are met: (1) plaintiff’s claims must ‘arise under federal law;’ and, (2)
the exercise of jurisdiction must be ‘consistent with the Constitution and laws of
the United States.’” Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th
Cir. 2000) (quoting Fed. R. Civ. P. 4(k)(2)).
Mr. Wolf has not addressed the due process prong of this analysis in his
briefing, nor has he specifically alleged any contacts with the United States beyond
those asserted under Florida’s long-arm statute. See Compl., D.E. 1, at ¶¶ 11–12
(conclusorily alleging that OCT carried out business in “the State of Florida and/or
United States as a whole” and entered into contracts in Miami with Celebrity and
“other carriers as well as other entities within Florida and the United States”).
Accordingly, our analysis is the same as above with respect to general jurisdiction.
Mr. Wolf, without more, has not established jurisdiction under Rule 4(k)(2).
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III
Mr. Wolf also appeals the district court’s grant of summary judgment on his
negligence claims against Celebrity for failure to warn of a dangerous condition
and negligent hiring and retention of OCT. We discuss each claim in turn.
A
Mr. Wolf first contends that Celebrity owed him a duty to exercise
reasonable care to warn him of any dangerous conditions which may have existed
with respect to the shore excursion. We hold that, on this record, Celebrity had no
notice of a dangerous condition and, absent notice, held no such duty.
“In analyzing a maritime tort case, we rely on general principles of
negligence law.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir.
2012) (internal quotation marks and citation omitted). To establish negligence, a
plaintiff must show that “(1) the defendant had a duty to protect the plaintiff from a
particular injury; (2) the defendant breached that duty; (3) the breach actually and
proximately caused the plaintiff’s injury; and (4) the plaintiff suffered actual
harm.” Id.
The existence of a duty is a question of law. See Virgilio v. Ryland Grp.,
Inc., 680 F.3d 1329, 1339 (11th Cir. 2012). A shipowner generally owes to its
passengers a duty to exercise “reasonable care under the circumstances.” See
Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1233 (11th Cir. 2014).
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This includes “a duty to warn of known dangers beyond the point of debarkation in
places where passengers are invited or reasonably expected to visit.” Chaparro,
693 F.3d at 1336 (citing Carlisle v. Ulysses Line Ltd., S.A., 475 So. 2d 248, 251
(Fla. 3d DCA 1985)). But the duty to warn “encompasses only dangers of which
the carrier knows, or reasonably should have known.” Carlisle, 475 So. 2d at 251.
Accordingly, as a prerequisite to imposing liability, a carrier must have had “actual
or constructive notice of the risk-creating condition.” Keefe v. Bahama Cruise
Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989).
On this record, we cannot conclude that Celebrity had actual or constructive
notice of any dangerous condition. We do not mean to suggest that a cruise line
may shirk its responsibility of reasonable care to its passengers, but here the record
demonstrates that Celebrity conducted its due diligence at the front end and had no
reason to question the continued safety of OCT’s zip-line operation. As further
discussed below, there is undisputed evidence that OCT is generally regarded as a
market leader in canopy tours, and Celebrity selected it for this reason. The record
reveals no evidence of any subsequent incidents or problems over the years prior to
the incident that would have placed Celebrity on notice of any dangerous
conditions that may have existed and may have required some action on its part. 2
2
We note that, one week prior to Mr. Wolf’s injury, a Celebrity employee, Elizabeth Acevedo,
participated in, and conducted an evaluation of, OCT’s zip-lining excursion. Celebrity maintains
that her report contained no allegations or concerns regarding dangerous conditions on the
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We are surprised that, over a decade’s span, Celebrity received no incident
reports—even those occurring through no negligence at all—or passenger safety
concerns from OCT for an activity that involves participants of all ages, sizes, and
fitness and experience levels whizzing through the air on high speed traverses.
Skepticism, however, is not a substitute for evidence. This record does not contain
any affirmative evidence of safety concerns or reports of injuries caused by safety
concerns. To impose a duty under the circumstances would be akin to imposing
vicarious strict liability upon Celebrity.
Mr. Wolf also argues that Celebrity had a duty to conduct regular safety
inspections of OCT’s operation and therefore should have known of any dangerous
conditions in its facilities or services. He relies upon the report of his expert,
Mr. Timothy Kempfe, which states that standards developed by the Association for
Challenge Course Technology—of which Mr. Kempfe is a founding member and
current board trustee—require annual inspections by a qualified professional
inspector. See D.E. 90-2 at 19–25. Mr. Wolf maintains that Mr. Kempfe provided
“significant details” concerning industry standards developed by the ACCT, and
that, by failing to conduct such inspections, Celebrity fell below these standards.
excursion. Mr. Wolf suggests that Ms. Acevedo’s form merely addressed hospitality—not
safety—issues, and that she was not a qualified safety inspector. Mr. Wolf, however, did not
depose Ms. Acevedo to inquire into the specifics of her evaluation. His mere speculation is not
sufficient to raise a genuine issue of material fact, and, as discussed, he has not established that,
absent notice, Celebrity was required to conduct safety inspections.
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We have held that “evidence of custom within a particular industry, group,
or organization is admissible as bearing on the standard of care in determining
negligence” and that “[c]ompliance or noncompliance with such custom, though
not conclusive on the issue of negligence, is one of the factors the trier of fact may
consider in applying the standard of care.” Sorrels v. NCL (Bahamas) Ltd., 796
F.3d 1275, 1282 (11th Cir. 2015) (citation omitted). Mr. Wolf, however, has failed
to present sufficient evidence that the ACCT regulations reflect industry custom or
standards.
Mr. Kempfe described the ACCT as “an international organization that
serves the zip line challenge course community, writing standards and offering
professional workshops throughout the world.” Kempfe Dep., D.E. 90-2 at 36.
Mr. Kempfe also testified that the ACCT is not a governmental organization, and
that there is no statute or act that requires companies to follow regulations issued
by the ACCT. See id. When asked if the ACCT’s regulations are legally binding on
a company like OCT, he responded that “if we’re talking about the standard of care
in the industry, they do have obligations.” Id. Beyond these broad statements,
Mr. Kempfe offered in his report that “[a]t least one other cruise line mandates an
external professional inspection by an ACCT approved Professional Vendor
Member.” Id. at 25. But he does not provide further details, such as the timing or
frequency of such an inspection, or if the inspection is conducted pursuant to the
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ACCT’s regulations. These conclusory statements fail to demonstrate industry
standards against which a trier of fact could consider in determining whether
Celebrity breached a duty to its passengers by not conducting annual inspections,
or inspections by an outside professional. Use of the ACCT standard by one cruise
line does not demonstrate an industry custom. Cf. Muncie Aviation Corp. v. Party
Doll Fleet, Inc., 519 F.2d 1178, 1180–81 (5th Cir. 1975) (affirming the
introduction of F.A.A. circulars as evidence of practices customarily followed by
pilots because “[b]oth the defendant’s and plaintiff’s pilots testified to their general
familiarity with the F.A.A. advisory materials, and other witnesses testified that the
landing procedures recommended in the circulars were generally followed”). Thus,
on this record, the district court correctly granted summary judgment as to
Mr. Wolf’s failure to warn claim. 3
B
Mr. Wolf’s contention that Celebrity was negligent in its hiring and retention
of OCT as a shore excursion operator similarly fails. Under Florida law, “an
employer is subject to liability for physical harm to third persons caused by [its]
3
Mr. Wolf also contends that Smolnikar v. Royal Caribbean Cruises, Ltd., 787 F. Supp. 2d 1308
(S.D. Fla. 2001), provides “a base-line persuasive opinion that other cruise lines are employing
an industry standard for this type of high risk activity[.]” Br. for Appellant at 53. That the case
broadly discusses Royal Caribbean’s evidence that an offshore excursion tour was regularly
inspected by outside professionals is not dispositive here. See Smolnikar, 787 F. Supp. 2d at
1314. Mr. Wolf has not submitted any record evidence related to those inspections, and
Smolnikar did not hold that a cruise line has an affirmative duty to inspect a tour operation
absent any indication of a problem. See id. at 1323–24.
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failure to exercise reasonable care to employ a competent and careful contractor
(a) to do work which will involve a risk of physical harm unless it is skillfully and
carefully done, or (b) to perform any duty which the employer owes to third
persons.” Davies v. Commercial Metals Co., 46 So. 3d 71, 73 (Fla. 5th DCA 2010)
(citation omitted). A plaintiff must generally establish “(1) the contractor was
incompetent or unfit to perform the work; (2) the employer knew or reasonably
should have known of the particular incompetence or unfitness; and (3) the
incompetence or unfitness was a proximate cause of the plaintiff’s injury.” Id. at 74
(citation omitted).
Celebrity presented evidence regarding its selection process and reasons for
selecting OCT. Specifically, Celebrity’s corporate representative, Amanda
Campos, testified that in selecting tour operators, Celebrity accepts bids from
different tour companies and selects the company by visiting the facility and
analyzing different factors, such as safety ratings and price. See Campos Dep.,
D.E. 65-6, at 13–14. She further explained the multiple reasons Celebrity selected
OCT, including that OCT had “basically wr[itten] the book on zip lining” because
they were the first to do it, they had been operating for three years beforehand, and
they generally have a reputation of being safe. Id. at 15–16. She also detailed that
Celebrity has been using OCT since 2001, that Celebrity has had no serious safety
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concerns with OCT, and that representatives from either Celebrity or Royal
Caribbean have made visits to the excursion. Id.
The record is devoid of evidence demonstrating that OCT was incompetent
or unfit to perform the shore excursion—much less that Celebrity knew or should
have known of any deficiencies. Mr. Wolf again relies upon Mr. Kempfe’s
testimony regarding the ACCT standards, as well as Smolnikar, to argue that
Celebrity did not adequately conduct inspections. Again, however, these sources
are insufficient to establish a standard of care against which a jury could measure
Celebrity’s actions.
Given the evidence regarding Celebrity’s hiring process, including
Celebrity’s reliance on OCT’s positive reputation and its own evaluations of the
facilities, and the dearth of evidence indicating any prior incidents or safety
concerns, we cannot say, on this record, that a reasonable jury could conclude that
Celebrity was negligent in its hiring or continued retention of OCT as an excursion
operator. As a result, the district court correctly granted summary judgment in
favor of Celebrity on this claim.
IV
Mr. Wolf contends that Celebrity is liable for OCT’s alleged negligence
based on theories of actual and apparent agency and joint venture, as well as for
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breach of a third-party beneficiary contract. The district court correctly granted
summary judgment in Celebrity’s favor on those claims.
A
“Federal maritime law embraces the principles of agency.” Archer v.
Trans/Am. Servs., Ltd., 834 F.2d 1570, 1573 (11th Cir. 1998). An agency
relationship requires “(1) the principal to acknowledge that the agent will act for it;
(2) the agent to manifest an acceptance of the undertaking; and (3) control by the
principal over the actions of the agent.” Franza v. Royal Caribbean Cruises, Ltd.,
772 F.3d 1225, 1236 (11th Cir. 2014) (citation omitted). Mr. Wolf has not set forth
sufficient evidence to create a triable issue on the existence of an actual agency
relationship between OCT and Celebrity.
The central question here is whether Celebrity exercised a degree of control
over OCT sufficient to create an agency relationship. To determine whether the
principal exercised control over the agent, we consider several probative factors,
including:
(1) direct evidence of the principal’s right to or actual exercise of
control; (2) the method of payment for an agent’s services, whether by
time or by the job; (3) whether or not the equipment necessary to
perform the work is furnished by the principal; and (4) whether the
principal had the right to fire the agent.
Id. at 1236–37 (citation omitted).
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Although generally “the existence of an agency relationship is a question of
fact under general maritime law[,]” id. at 1235–36, Mr. Wolf has provided little
direct or circumstantial evidence of Celebrity’s right to exercise control over OCT.
Indeed, the Tour Operator Agreement expressly provided that “the control and
responsibility of the Shore Excursion remains exclusively with [OCT],” and there
is no evidence that Celebrity had the right to or did participate in OCT’s
day-to-day operations. Further, although Celebrity billed the passengers, it appears
that it paid OCT “by the job,” rather than “by time” (which “normally suggests an
agency relationship”). Id. at 1237. Additionally, there is no evidence that Celebrity
furnished OCT with equipment necessary to perform its work.
Celebrity did retain the right to terminate its agreement with OCT “for
convenience.” On balance, however, the evidence does not allow a reasonable jury
to conclude that Celebrity exercised a degree of control over OCT so as to create
an agency relationship. See Johnson v. Unique Vacations, Inc., 498 F. App’x 892,
895 (11th Cir. 2012) (determining there was insufficient evidence to demonstrate
agency relationship between resort and excursion company because the resort did
not dictate how the excursion owner was to operate its tours and the excursion
owner was wholly responsible for the maintenance of its equipment, the hiring and
supervision its employees, and the procurement of its own licensing and
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insurance). Accordingly, the district court correctly granted summary judgment on
that theory.
B
Mr. Wolf’s theory of apparent agency also fails. Admiralty law allows
“plaintiffs to sue shipowners based on the apparent authority of third-parties” in
cases involving maritime torts. Franza, 772 F.2d at 1250–51. “Unlike actual
agency, the doctrine of apparent agency allows a plaintiff to sue a principal for the
misconduct of an independent contractor who only reasonably appeared to be an
agent of the principal.” Id. at 1249. To succeed on a claim of apparent agency, a
plaintiff must establish “first, a representation by the principal to the plaintiff,
which, second, causes the plaintiff reasonably to believe that the alleged agent is
authorized to act for the principal’s benefit, and which, third, induces the plaintiff’s
detrimental, justifiable reliance upon the appearance of agency.” Id. at 1252.
In support of his contention that Celebrity made representations that
suggested an agency relationship, Mr. Wolf cites to evidence that Celebrity
promoted, marketed, and advertised the excursion. He also relies on his own
testimony, as well as that of Ms. Falor and a fellow passenger, Timothy Gilbert,
who say they believed the excursion was endorsed or approved by Celebrity.
Mr. Wolf’s purported belief that OCT was an agent of Celebrity, however, is
not reasonable in light of the two separate disclaimers he received—the Cruise
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Ticket Contract and the Shore Excursion Ticket—which expressly stated that
excursion operators were independent contractors and not agents or representatives
of Celebrity, as well as the OCT Liability Waiver, which reiterated that the zip-line
excursion was owned and operated by OCT. See D.E. 65-1 at 2; D.E. 65-4; D.E.
65-5. Cf. Bethany Pharmacal Co. v. QVC, Inc., 241 F.3d 854, 860 (7th Cir. 2001)
(concluding that vendor’s apparent agency claim failed because, although company
permitted an individual to work with vendors by providing logistical information,
that relationship could not reasonably be interpreted as including authority to
contract on company’s behalf given company’s repeated disclaimers regarding the
need for a purchase order). Accordingly, there is no dispute of material fact as to
whether there was an apparent agency relationship between Celebrity and OCT and
the district court correctly granted summary judgment as to that issue.
C
Nor has Mr. Wolf established that that Celebrity is liable for OCT’s alleged
negligence under a theory of joint venture. In a contract creating a joint venture,
there must be “(1) a community of interest in the performance of the common
purpose[;] (2) joint control or right of control[;] (3) a joint proprietary interest in
the subject matter[;] (4) a right to share in the profits[;] and (5) a duty to share in
any losses which may be sustained.” Browning v. Peyton, 918 F.2d 1516, 1520
(11th Cir. 1990) (citation omitted).
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The Tour Operator Agreement does not create a joint right of control
because it vested control exclusively in OCT. Further, Mr. Wolf has not provided
any evidence that Celebrity and OCT had a joint proprietary interest in the shore
excursions, or that they shared in the profits, or that they had a duty to share in any
losses. Accordingly, Mr. Wolf’s joint venture theory does not survive summary
judgment.
D
Finally, Mr. Wolf asserts that the district court erred in granting summary
judgment as to his claim that Celebrity is liable for breach of a third-party
beneficiary contract because Mr. Wolf was the intended beneficiary of the Tour
Operator Agreement between Celebrity and OCT. “[A] third party is an intended
beneficiary of a contract between two other parties only if a direct and primary
object of the contracting parties was to confer a benefit on the third party.”
Bochese v. Town of Ponce Inlet, 405 F.3d 964, 982 (11th Cir. 2005). The Tour
Operator Agreement does not express an intent to benefit any third party—instead,
it expressly states the contrary: “this Agreement shall not be deemed to provide
third persons with any remedy, claim, right, or action or other right.” D.E. 65-8
at 3. The district court’s grant of summary judgment as to Mr. Wolf’s claim for
breach of a third-party beneficiary contract is therefore affirmed.
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V
For the foregoing reasons, the district court’s orders dismissing the claims
against OCT for lack of personal jurisdiction and granting summary judgment in
favor of Celebrity are affirmed.
AFFIRMED.
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