             Case: 17-15008     Date Filed: 12/13/2018   Page: 1 of 22


                                                                         [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 17-15008
                          ________________________

                     D.C. Docket No. 1:16-cv-23065-RNS


OLIVIER CARON,

                                                              Plaintiff – Appellant,

                                      versus

NCL (BAHAMAS), LTD.,
A Bermuda Company
d.b.a. Norwegian Cruise Line,

                                                             Defendant – Appellee.

                          ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        ________________________

                                (December 13, 2018)

Before TJOFLAT, MARTIN, and JILL PRYOR, Circuit Judges.


TJOFLAT, Circuit Judge:
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      This case arises from a drunken tumble down an escape hatch on a cruise

ship. Olivier Caron, a Canadian citizen, was injured while a passenger on the Star,

a vessel owned and operated by NCL. On the second day of his Baltic cruise,

Caron bought an all-inclusive package, which allowed him unlimited beer and

wine while on the cruise, and proceeded to drink beer late into the night. After

leaving the bar, instead of returning to his room, Caron entered an area that was

clearly marked with signs reading “CREW ONLY” and “RESTRICTED, CREW

ACCESS ONLY.” Pressing on, Caron entered another door labeled “CAUTION

Only authorized crew beyond this sign,” and fell several feet through an

emergency-exit hatch, causing injuries for which he now seeks to recover. He filed

suit in the District Court, claiming the cruise line was negligent in allowing him to

fall down the hatch and in over-serving alcohol to him, which led to his fall. The

District Court dismissed the over-service claim and granted summary judgment for

NCL on the other negligence claim. Plaintiff appeals both rulings. After careful

consideration, we affirm.

                                           I.

      This opinion is organized as follows. We discuss the facts and procedural

history of the case in Part I, the subject-matter jurisdiction of the District Court in

Part II, the dismissed over-service claim in Part III, and the other negligence claim

in Part IV. Part V concludes.

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                                          A.

      Olivier Caron spent the evening of July 15, 2015, drinking with his fellow

passengers aboard the Star. He became intoxicated to the point that he felt

“completely disoriented.” At about 3:37 a.m. on July 16, Caron descended a mid-

ship flight of stairs into a passenger-elevator area. But instead of continuing on to

his room on the ship, Caron opened a clearly marked crew-only door and

proceeded into a restricted area of the ship. He walked down a hallway, where he

was seen by two crewmembers who tried to talk to him; he did not respond. While

the crewmembers called security, Caron moved away from them, such that they

did not see where he went. He opened and walked through another door with

obvious crew-only markings, where he fell into a hole, hitting the deck below and

suffering an injury to his foot. The hole was an escape hatch from the bow-thruster

room below, and the hole would have been clearly visible once the door was

opened. Caron fell down the hole approximately four minutes after entering the

crew-only area. About four and a half hours later, Caron climbed out of the hatch

and, with assistance, went to the ship’s medical center, where his injuries were

treated.

                                          B.

      On July 14, 2016, Caron filed suit against NCL in the Southern District of

Florida, asserting jurisdiction on the basis of diversity of citizenship and admiralty

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jurisdiction. See 28 U.S.C. § 1332(a)(2), §1333(1).1 His complaint made no

mention of being served alcohol, but he did allege several other theories of

negligence. He claimed, among other things, that NCL had failed to maintain its

walkways and manholes in a safe condition, to remedy a known dangerous

condition, and to warn Caron of a danger that was not open or obvious. Caron

demanded a jury trial, and one was scheduled. Although Caron alleged that

admiralty jurisdiction was proper, he did not make a Rule 9(h) election for his

claim to proceed in admiralty. Fed. R. Civ. P. 9(h).

       On September 30, 2016, Caron amended his complaint, adding an allegation

that NCL was negligent in over-serving alcohol to him. NCL moved to dismiss this

claim under Federal Rule of Civil Procedure 12(b)(6) and strike the allegation of

over-service on the basis of a limitations provision in Caron’s ticket contract,

which required any personal-injury suits against NCL to be brought within one

year of the incident giving rise to the injury. The District Court granted the motion,

finding that the over-service claim was contractually barred and did not relate back

to the initial complaint.

       On November 3, 2017, the District Court granted NCL’s Motion for

Summary Judgment on the remaining negligence theories. It found that Caron had


       1
          The District Court accepted jurisdiction but did not indicate expressly whether its
jurisdiction lay under § 1332(a) or § 1333. In accepting Caron’s demand for a jury trial, the
Court purported to assume jurisdiction under § 1332(a) and not § 1333.
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not met his burden of production, as he had failed to produce evidence of the

dangerousness of the escape hatch, of NCL’s knowledge of such dangerousness, or

of the unreasonableness of the crew’s behavior in letting Caron escape further into

the restricted area. This appeal followed.

                                          II.

      Whether subject matter jurisdiction exists is an issue of law that we review

de novo. Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1340 (11th

Cir. 2011). The party seeking federal jurisdiction must prove, by a preponderance

of the evidence, facts supporting the exercise of jurisdiction. McCormick v.

Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002).

                                          A.

      The parties disagree as to whether the District Court had subject-matter

jurisdiction. Caron contends that the alienage-diversity provision, which governs

suits between aliens and citizens of a State, applies, and that the District Court thus

entertained jurisdiction under this provision. See 28 U.S.C. § 1332(a)(2). Since

Caron is a Canadian citizen and NCL is a Bermuda corporation with its principal

place of business in Florida, Caron argues that NCL should be deemed a Florida

citizen for diversity purposes. And even if alienage-diversity jurisdiction fails,

Caron argues, as a fallback, that he sufficiently invoked the court’s admiralty

jurisdiction under 28 U.S.C. § 1333.

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      NCL contends that Caron failed to adequately plead NCL’s citizenship to

invoke alienage-diversity jurisdiction, since he did not allege NCL’s Bermuda

citizenship or move to amend his complaint to do so. It also denies that admiralty

jurisdiction is available, since Caron did not elect to proceed under admiralty per

Federal Rule of Civil Procedure 9(h).

      Alienage diversity, like general diversity under 28 U.S.C. § 1332(a)(1), must

be complete; an alien on both sides of a dispute will defeat jurisdiction. Lama, 633

F.3d at 1340; cf. Strawbridge v. Curtiss, 3 Cranch 267 (1806) (requiring complete

diversity under the predecessor statute to § 1332(a)(1)). This Court has never

explicitly decided whether dual-citizen corporations, incorporated under the laws

of a foreign state but with their principal place of business in a U.S. state, count as

aliens in order to defeat complete diversity in suits against other aliens. Every other

circuit court of appeals to consider the issue has concluded that alienage diversity

is lacking in these cases, defeating subject-matter jurisdiction. See, e.g., Vantage

Drilling Co. v. Hsin-Chi Su, 741 F.3d 535, 537-38 (5th Cir. 2014); Slavchev v.

Royal Caribbean Cruises, Ltd., 559 F.3d 251, 254-55 (4th Cir. 2009); Peninsula

Asset Mgmt. (Cayman) Ltd. v. Hankook Tire Co., 509 F.3d 271, 272-73 (6th Cir.




                                           6
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2007); Creaciones Con Idea, S.A. de C. V. v. Mashreqbank PSC, 232 F.3d 79, 82

(2d Cir. 2000). 2

       The 2012 amendments to § 1332(c) bolster the rationale of these decisions.

Section 1332(c) governs the citizenship of corporations for purposes of diversity

jurisdiction. Previous versions of the statute referred only to corporations

incorporated in, or with their principal place of business in, a “State.” 28 U.S.C. §

1332(c) (2006); see also Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1557

(11th Cir. 1989) (interpreting a prior version of § 1332). Before the recent

amendments, the circuits were split on whether foreign states were “State[s]”

within the meaning of the statute. Compare Cabalceta, 883 F.2d at 1557 with Nike,

Inc. v. Comercial Iberica de Exclusivas Deportivas, S.A., 20 F.3d 987, 990 (9th

Cir. 1994).

       In contrast, the 2012 amendments to § 1332(c) explicitly impute to

corporations citizenship in every State or foreign state where the company is

incorporated and in the State or foreign state where the company has its worldwide

principal place of business. § 1332(c)(1) (2012). So a corporation incorporated in a


       2
          A panel of this Court has suggested, in a footnote, that alienage-diversity jurisdiction
was proper in a seemingly indistinguishable case. Estate of Myhra v. Royal Caribbean Cruises,
Ltd., 695 F.3d 1233, 1235 n.1 (11th Cir. 2012). We decline to follow Myhra, as it has been
superseded by statute. The district court case reviewed in Myhra was originally filed before the
2012 amendments to § 1332, which clarified the citizenship of foreign corporations. Myhra gave
no effect to the foreign incorporation of the defendant corporation, treating it as only a citizen of
a state based on its principal place of business. This interpretation is clearly unavailable under
the current text of the statute. See § 1332(c) (2012).
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foreign state is specifically deemed a citizen of that foreign state when evaluating

jurisdiction.

       We therefore hold that § 1332(a)(2) does not grant jurisdiction over a suit

between a corporation incorporated solely in a foreign state and another alien,

regardless of the corporation’s principal place of business. 3

       Here, Caron is a Canadian citizen, and NCL is a Bermuda company with its

principal place of business in Florida. Since both Caron and NCL are aliens,

§ 1332(a)(2) does not support the exercise of jurisdiction in this case.

                                               B.

       But all is not lost. Although alienage-diversity jurisdiction is lacking, the

District Court validly exercised admiralty jurisdiction over the case pursuant to 28

U.S.C. § 1333(1).

       Tort claims are within admiralty jurisdiction if 1) the incident occurred on

navigable water, or the injury was caused by a vessel on navigable water, and 2)

the incident is connected with maritime activity. Broughton v. Fla. Int'l

Underwriters, Inc., 139 F.3d 861, 865 (11th Cir. 1998). An incident is connected

with maritime activity if, on an assessment of the general features of the type of



       3
          We are not required to decide, and do not decide, whether a corporation incorporated in
a State, but with its worldwide principal place of business abroad, can invoke alienage-diversity
jurisdiction in a suit against an alien. This court held in Cabalceta that alienage-diversity
jurisdiction was proper in that circumstance. 883 F.2d at 1557. Whether the 2012 amendments to
§ 1332 overruled Cabalceta is a question for another day.
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incident involved, it has “a potentially disruptive impact on maritime commerce,”

and “the general character of the activity giving rise to the incident shows a

substantial relationship to traditional maritime activity.” Jerome B. Grubart, Inc. v.

Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S. Ct. 1043, 1048 (1995).

Personal-injury claims by cruise ship passengers, complaining of injuries suffered

at sea, are within the admiralty jurisdiction of the district courts. See, e.g., Carnival

Cruise Lines, Inc. v. Shute, 499 U.S. 585, 587-88, 111 S. Ct. 1522, 1524 (1991)

(exercising admiralty jurisdiction in a case alleging personal injury suffered aboard

a cruise ship at sea).

         In this tort case, Caron seeks to recover for a personal injury he suffered at

sea. Furthermore, Caron alleged that admiralty jurisdiction was proper from the

inception of the case and met his burden to prove facts showing a maritime nexus

to his injury. The District Court therefore validly exercised jurisdiction over the

case.4

         That the District Court mistakenly believed it had jurisdiction under § 1332

is troubling, but its lack of awareness does not invalidate the proceedings below.

Before the union of law and admiralty under the 1966 revisions to the Federal


         4
          Since admiralty was the only proper source of jurisdiction, Caron was not required to
elect it under Federal Rule of Civil Procedure 9(h). This election is not required for the exercise
of admiralty jurisdiction unless “ a claim for relief is within the admiralty or maritime
jurisdiction and also within the court's subject-matter jurisdiction on some other ground . . . . A
claim cognizable only in the admiralty or maritime jurisdiction is an admiralty or maritime claim
. . . whether or not so designated.” Fed. R. Civ. P. 9(h)(1).
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Rules of Civil Procedure, such a mistake would have required vacatur and remand

with an instruction for the district court to decide whether transferring the case to

its admiralty docket would be appropriate. See Poole v. Lykes Bros. Steamship Co.,

273 F.2d 423, 424 (5th Cir. 1960); 1 Thomas L. Schoenbaum & Jessica L.

McClellan, Admiralty & Maritime Law § 3-2 (5th ed. 2011) (describing the 1966

union of law and admiralty). Nowadays, procedure in law and admiralty is much

more similar, with only a few admiralty-specific rules remaining. See Fed. R. Civ.

P. 9(h), 14(c), 38(e), 82 (special rules for admiralty claims); Supp. Adm. & Mar.

Cl. R. (same). These rules do not generally require admiralty litigation to be

conducted differently from other litigation in the district courts; rather, the

admiralty rules mostly add strategy options for plaintiffs. Vacatur and remand are

thus unnecessary.

      The most salient difference that proceeding in admiralty creates is the

absence of a right to a jury trial. Fed. R. Civ. P. 38(e); St. Paul Fire & Marine Ins.

Co. v. Lago Canyon, Inc., 561 F.3d 1181, 1187 (11th Cir. 2009) (setting out the

“general rule that admiralty claims are to be tried without a jury”). Here, Caron

made a jury demand, which would have been proper had the District Court had

alienage-diversity jurisdiction, and the case had been scheduled for a jury trial. But

even this does not cast doubt on the propriety of the proceedings below, since no




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jury trial occurred; every claim in the case was finally adjudicated at either the

pleading or summary judgment stage.

      In his complaint, Caron alleged sufficient facts to support the District

Court’s exercise of admiralty jurisdiction, and all of the proceedings below were

appropriate in light of this jurisdictional basis. We thus conclude that the District

Court had jurisdiction to hear the case, and its mistake as to its basis was harmless.

Having so concluded, we now address the District Court’s rulings on each of

Caron’s negligence theories.

                                         III.

      Caron appeals the dismissal of his claim for negligent over-service of

alcohol as contractually waived. We review the grant of a Federal Rule of Civil

Procedure 12(b)(6) motion to dismiss de novo. Mills v. Foremost Ins. Co., 511 F.3d

1300, 1303 (11th Cir. 2008).

                                          A.

      Caron’s ticket contract contained a one-year limitations period on bringing

personal-injury suits:

      The Guest agrees that no suit, whether brought in rem or in personam, shall
      be maintained against the Carrier for emotional or physical injury, illness or
      death of Guest unless written notice of the claim, including a complete
      factual account of the basis of such claim, is delivered to the Carrier within
      185 calendar days from the date of the incident giving rise to such injury,
      illness or death; and no suit shall be maintainable unless commenced within
      one (1) year from the day of the incident giving rise to such injury, illness or

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      death, notwithstanding any provision of law of any state or country to the
      contrary.

Although Caron’s original complaint was filed within this contractual limitations

period, his over-service claim was not present in his original complaint; it was

added in an amendment months later, after the one-year period had run. On NCL’s

Motion to Dismiss, the District Court held the waiver valid and enforceable,

interpreting it to bar adding untimely claims to an already-filed suit, and held that

Caron’s allegations of over-service did not relate back to his original filing date.

      We address each of these holdings in turn.

                                          B.

      Under general maritime law, a valid waiver of a passenger’s right to sue

requires a waiver term that has been reasonably communicated to the passenger.

Nash v. Kloster Cruise A/S, 901 F.2d 1565, 1567 (11th Cir. 1990). The two-factor

test for reasonable communication evaluates the physical characteristics of the

clause and the passenger’s opportunity to become meaningfully informed of the

contract terms. Myhra, 695 F.3d at 1244.

      Caron does not object to the physical location or readability of the waiver

language. Nor does he suggest that he lacked an opportunity to become informed

of what the terms—the words constituting the contract—were. Rather, he suggests,

the word “suit” is ambiguous and should be construed to permit claims first

mentioned in an amended complaint more than one year after the incident, as long
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as the initial complaint is filed within the year. Furthermore, according to Caron, if

the waiver were interpreted to bar his claim, it would be invalid, since this meaning

of “suit” was not reasonably communicated to him by the text of the contract.

      We disagree because when read in context, the provision unambiguously

bars a passenger from raising new claims in an amended complaint more than a

year after an incident. Cf. Kohlheim v. Glynn Cty., 915 F.2d 1473, 1479 (11th Cir.

1990) (finding that an initially ambiguous contract term was clarified by context).

Under the subheading “Suits for Injury or Death,” the contract features two clauses

that bar personal-injury suits except as specified. The first clause provides in part

“no suit . . . shall be maintained against the Carrier for emotional or physical injury

. . . of Guest unless written notice of the claim, including a complete factual

account of the basis of the claim, is delivered” within a specified time frame

(emphasis added). The second clause imposes a limitations period requiring that a

“suit” be “commenced within one (1) year from the day of the incident giving rise

to such injury, illness or death.”

      The notice clause makes clear the relationship between a “claim” and a

“suit.” This clause requires a passenger to give written notice of each claim he

alleges in the suit. It would make no sense to interpret this provision as allowing

the passenger to give notice of one claim but then bring a lawsuit for different or

additional claims. Our interpretation is bolstered by the notice clause’s

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specification that the passenger provide NCL with “a complete factual account of

the basis of” his claim. It would likewise be nonsensical for this provision to

permit the passenger to provide the factual basis of his claim to NCL before filing

suit but then later change the factual basis to support a different claim.

      The reference to “suit” in the second clause—the one that features the one

year limitation at issue here—must be interpreted in light of and consistent with its

earlier use. Thus, “suit” in this clause must refer to a lawsuit alleging a claim or

claims for which notice was given.

      Because of this language, the limitations provision is reasonably subject to

only one interpretation: that it is to be read like a statute of limitations, barring not

only untimely suits but also untimely claims added to already-filed suits. The word

“suit,” on its own and without considering the context, is susceptible of the

meaning that Caron attaches to it. But our duty is to interpret the contract as a

whole, not each term in a vacuum. See Restatement (Second) of Contracts § 202(b)

(1981). Here, the context resolves any potential ambiguity about the meaning of

“suit.”

      Since the limitations provision was unambiguous in context, and the

presentation of its terms within the contract document was reasonable, its meaning

was reasonably communicated to Caron. Caron objects to the specialized meaning

of “suit” in its context in the contract. But Caron has not proposed a reasonable

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alternative construction that would render the contract insufficiently

communicative of NCL’s proposed meaning. NCL’s duty is reasonable

communication; it has no responsibility to disabuse its customers of every

imaginable-but-unreasonable interpretation of the contract terms.

       So Caron’s over-service claim is time-barred unless it relates back to his

original filing date.

                                           C.

       Relation back is a legal fiction employed to salvage claims that would

otherwise be unjustly barred by a limitations provision. See McCurdy v. United

States, 264 U.S. 484, 487, 44 S. Ct. 345, 346 (1924); Moore v. Baker, 989 F.2d

1129, 1131 (11th Cir. 1993). Under Rule 15, a claim in an amended complaint

relates back to the filing date of the original complaint if it “asserts a claim or

defense that arose out of the conduct, transaction, or occurrence set out—or

attempted to be set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B).

When the facts in the original complaint do not put the defendant “on notice that

the new claims of negligence might be asserted,” but the new claims instead

“involve[] separate and distinct conduct,” such that the plaintiff would have to

prove “completely different facts” than required to recover on the claims in the

original complaint, the new claims do not relate back. Moore, 989 F.2d at 1132.




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      Here, the over-service claim does not relate back. The original complaint

made no mention of alcohol and focused mostly on the physical condition of

various areas of the ship, alleging various failures to maintain its “manholes,

floors, walkways, or thresholds” in a safe condition. For example, Caron

complained of inadequate lighting around hazards, unreasonably slippery floors,

and failure to ensure proper drainage of liquids. Such allegations did nothing to put

NCL on notice that Caron could complain of over-service of alcohol.

      Nor are the complaint’s generic allegations capacious enough to smuggle

Caron’s over-service claim into the case. The complaint alleges NCL’s “failure to

take proper precautions for the safety of passengers using its manholes, floors,

walkways, or thresholds.” This allegation, by its terms, could conceivably

encompass serving more alcohol than passengers could safely consume before

walking elsewhere on the ship. But the test for relation back is not whether the new

facts alleged could substantiate an old, boilerplate claim but whether the old facts

alleged could put the defendant on notice that the new claim might be part of the

litigation. Here, Caron’s original allegations did not put NCL on notice that over-

service of alcohol (or anything involving alcohol, for that matter) could be relevant

to the case.

      Caron’s over-service claim thus does not relate back and is barred by the

limitations clause.

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                                         IV.

      The District Court granted summary judgment for NCL on Caron’s other

negligence theories. We review a district court’s grant of summary judgment de

novo. Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1234 (11th Cir. 2010). We will

affirm “if we conclude that there is no genuine issue of material fact—that is, if no

fair-minded jury could return a verdict for the plaintiff on the evidence presented.”

Goodman v. Kimbrough, 718 F.3d 1325, 1331 (11th Cir. 2013).

      Federal maritime law provides the substantive law for this case. Everett v.

Carnival Cruise Lines, 912 F.2d 1335, 1358 (11th Cir. 1990). Under the maritime

law of negligence, Caron must prove that 1) NCL had a duty to protect him from a

particular injury, 2) NCL breached that duty, 3) NCL’s breach proximately caused

his injury, and 4) he incurred damages. Chaparro v. Carnival Corp., 693 F.3d

1333, 1336 (11th Cir. 2012). To survive summary judgment, Caron must produce

evidence establishing the existence of a genuine issue of material fact as to each of

the elements.

      Caron included twenty-one separate allegations of negligence in his

amended complaint, most of which asserted that the open escape hatch was

dangerous. He also alleged that NCL was negligent in allowing him access to the

area where he fell and failing to properly warn him of the area’s hidden dangers.

Still, the District Court concluded summary judgment was proper, since Caron did

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not produce sufficient evidence that the hatch was dangerous, that NCL had notice

of the danger, or that NCL’s crewmembers acted unreasonably upon encountering

him in the hallway.

                                               A.

      To survive summary judgment on his negligence claim based on a dangerous

condition, Caron must produce evidence, sufficient for a jury to find for him, that

the hatch was a dangerous condition of which NCL had notice. As the District

Court correctly concluded, Caron did not do so.

      Caron cannot show that the hatch he fell down was unreasonably dangerous.

To get to the hatch, Caron had to pass through two clearly marked doors. The first

indicated that the area was restricted and that only crewmembers were allowed in.

The second indicated that persons passing through the door should use caution, and

specified that only authorized crew were allowed in. Despite these measures that

NCL took to keep passengers away from the hatch, Caron contends that they were

insufficient to render the hatch reasonably non-dangerous. But the evidence Caron

presents is insufficient to create a genuine issue of material fact on dangerousness.

      Caron sought to prove dangerousness by expert and fact testimony about

whether the doors to the crew-only areas and the hatch door itself should have been

locked.5 Caron’s expert contended that the hatch door, as well as the marked crew-


      5
          None of these doors had locking mechanisms installed at all.
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only doors, should have had locking mechanisms installed, since those doors could

have been locked without compromising their usability as emergency exits from

the bow-thruster room, and since locking them would have been safer. Caron’s fact

witness, an assistant carpenter with NCL, stated his belief that emergency hatches

on the ship are generally locked and cannot be accessed from the corridor.

      We agree with the District Court that this testimony did not create a genuine

issue of material fact on whether the absence of locks rendered the hatch

dangerous. It may be safer to lock the doors than to leave them unlocked, but it

does not follow that the absence of door locks rendered the hatch unreasonably

unsafe. Additionally, one employee’s perception that hatches are generally locked

does not create a genuine issue of material fact on whether NCL had a policy of

locking its hatch doors. Caron thus failed to meet his burden to produce sufficient

evidence that the hatch was unreasonably dangerous, and summary judgment was

proper on his dangerous-condition theory.

      Even if Caron had produced evidence of dangerousness, summary judgment

still would have been proper, as Caron failed to produce evidence that NCL was on

notice of the dangerous condition. See Keefe v. Bahama Cruise Line, Inc., 867 F.2d

1318, 1322 (11th Cir. 1989). NCL’s uncontroverted records showed that no

injuries similar to Caron’s had been reported on any ship of NCL’s in the last five

years. None of Caron’s proffered evidence on appeal, which mostly describes

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NCL’s efforts to keep passengers out of crew-only areas and remove them when

they enter, suggests that NCL had actual or constructive notice that the hatch was

dangerous. Summary judgment was thus proper on the notice issue as well.

                                         B.

      We similarly find no error in the District Court’s treatment of the allegations

of unreasonable behavior by NCL’s crew.

      Caron alleges that various crewmembers failed to follow NCL’s policy on

passengers in crew-only areas. Specifically, Caron alleges that crewmembers acted

unreasonably after encountering him in the crew-only area by failing to escort him

back to his cabin, by losing track of him, and by calling off the search for him

while he remained in the hatch.

      None of these contentions can survive summary judgment. Caron presented

testimony from crewmembers, suggesting that NCL’s policy requires crew who

find passengers in crew-only areas to escort the passengers back to the passenger

area of the ship. Other crewmembers testified that NCL policy required crew to

attempt to speak with the passenger and, if the passenger was unresponsive, to call

security. It is undisputed that, when two crewmembers found Caron in the crew-

only area and tried to talk with him, he did not respond. While the crew called

security, Caron began to walk or run away. The crewmembers attempted to follow

Caron, but he outpaced them and disappeared. Within two minutes of his initial

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encounter with the crew, Caron had fallen down the hatch. Security arrived within

a few minutes, after Caron had already fallen, and searched for Caron but did not

find him.

      We agree with the District Court that Caron has not presented sufficient

evidence of negligence on the part of NCL’s crew. Caron did not controvert the

testimony that NCL crew were required to call security if a passenger was

unresponsive when spoken to. While the crewmembers were calling security,

Caron escaped down the hall and outpaced at least one crewmember who

attempted to follow. Perhaps the crew could have physically blocked Caron from

running down the hall or chased after him quickly enough not to lose sight, but

Caron has presented no evidence that the standard of care is set that high. All

available evidence suggests that the crewmembers tried to comply with NCL’s

policy and that they were not unreasonably lax in trying.

      Caron contends as well that NCL’s security personnel were negligent in

calling off the search before finding him, leaving him to languish in the bow-

thruster room for hours. We agree with the District Court that summary judgment

is proper here as well, since Caron’s injury had already occurred by the time NCL

called off the search. Caron’s eleventh-hour allegations, not fairly traceable to his

complaint, of additional injury due to the time he spent in the bow-thruster room

do not properly put the issue before the Court. Miccosukee Tribe of Indians of Fla.

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               Case: 17-15008        Date Filed: 12/13/2018        Page: 22 of 22


v. United States, 716 F.3d 535, 559 (11th Cir. 2013) (refusing to consider

allegations raised for the first time in a response to a motion for summary

judgment). 6

                                                V.

       NCL was entitled to dismissal of Caron’s over-service claim and summary

judgment on Caron’s negligence claim. We thus AFFIRM the District Court’s

judgment and DENY AS MOOT Caron’s Motion for Leave to File an Amended

Complaint and his Motion to Supplement the Record.

       SO ORDERED.




       6
         Caron had additionally appealed several magistrate orders. As he did not address these
orders in his opening brief, his contentions on the topic are waived. Little v. T-Mobile USA, Inc.,
691 F.3d 1302, 1306 (11th Cir. 2012).
                                                22
