       Third District Court of Appeal
                               State of Florida

                          Opinion filed January 3, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-0445
                          Lower Tribunal No. 15-3111
                             ________________


                           Carnival Corporation,
                                    Appellant,

                                        vs.

                                Mirta Garcia,
                                    Appellee.

     An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Barbara Areces, Judge.

      Ross and Girten, and Lauri Waldman Ross, and Theresa L. Girten; Foreman
Friedman, P.A., and Jeffrey E. Foreman and Noah D. Silverman, for appellant.

      Alvarez, Carbonell, Cooke, Feltman, & DaSilva, PL., and Paul B. Feltman,
for appellee.

Before LOGUE, LUCK and LINDSEY, JJ.

      LINDSEY, J.

      Carnival Corporation appeals the trial court’s denial of its motion for

reconsideration of its motion to dismiss (the “motion to dismiss”) which sought
dismissal of this action for improper venue.        Because the federal court has

admiralty jurisdiction over this action, and because the cruise contract that governs

the relationship between Carnival Corporation (“Carnival”) and the plaintiff below

required this lawsuit to be filed in the United States District Court for the Southern

District of Florida in Miami, we reverse for the reasons more fully set forth below.1

I.    BACKGROUND

      Mirta Garcia purchased a ticket to cruise on the M/V CARNIVAL

VICTORY, a cruise ship she alleges is owned and/or operated by Carnival

departing on November 7, 2013. Bold, capitalized language on the top of the

“ticket contract” stated:

             IMPORTANT NOTICE TO GUESTS THIS
             DOCUMENT    IS  A   LEGALLY BINDING
             CONTRACT ISSUED BY CARNIVAL CRUISE
             LINES TO, AND ACCEPTED BY, GUEST
             SUBJECT TO THE IMPORTANT TERMS AND
             CONDITIONS APPEARING BELOW.

1 The terms “admiralty” and “maritime” are used interchangeably for purposes of
this opinion as the precedents discussed herein use both terms. As noted by a
leading treatise, “insofar as the reference is to substantive law, the terms
‘admiralty’ and ‘maritime law’ are virtually synonymous in this country today,
though the first derives from the connection of our modern law with the system
administered in a single English court, while the second makes a wider and more
descriptive reference.” See Weaver v. Hollywood Casino-Aurora, Inc., 255 F.3d
379, 381 n.2 (7th Cir. 2001) (citing Grant Gilmore and Charles L. Black, Jr., The
Law of Admiralty § 1-1 (2d ed., 1975)); see also Aqua Log, Inc. v. Lost &
Abandoned Pre-Cut Logs & Raft of Logs, 709 F.3d 1055, 1057 n.1 (11th Cir.
2013) (citing Bryan Garner, A Dictionary of Modern Legal Usage 29 (2d ed. 1995)
(“The terms “admiralty” and “maritime” are “virtually synonymous.” We therefore
use the terms interchangeably.)).

                                          2
            NOTICE: THE ATTENTION OF GUEST IS
            ESPECIALLY DIRECTED TO CLAUSES 1, 4 AND
            10   THROUGH     13,  WHICH     CONTAIN
            IMPORTANT LIMITATIONS ON THE RIGHTS
            OF GUESTS TO ASSERT CLAIMS AGAINST
            CARNIVAL CRUISE LINES, THE VESSEL, THEIR
            AGENTS AND EMPLOYEES, AND OTHERS,
            INCLUDING       FORUM        SELECTION,
            ARBITRATION AND WAIVER OF JURY TRIAL
            FOR CERTAIN CLAIMS.

Paragraph 13, entitled “Jurisdiction, Venue, Arbitration and Time Limits for

Claims,” contains the following forum selection provision:

            (c) [I]t is agreed by and between the Guest and Carnival
            that all disputes and matters whatsoever arising under, in
            connection with or incident to this Contract or the
            Guest’s cruise, including travel to and from the vessel,
            shall be litigated, if at all, before the United States
            District Court for the Southern District of Florida in
            Miami, or as to those lawsuits to which the Federal
            Courts of the United States lack subject matter
            jurisdiction, before a court located in Miami-Dade
            County, Florida, U.S.A. to the exclusion of the Courts of
            any other county, state or country.

Garcia sued Carnival in state court for injuries allegedly sustained at the Port of

Miami terminal while riding on an escalator to embark on her cruise.2 Garcia

asserted jurisdiction is proper in state court under “general maritime law” and the

2 Garcia initially filed this action in the Circuit Court of the Fifteenth Judicial
Circuit in and for Palm Beach County, Florida, the county of Garcia’s residence.
The case was transferred to the Eleventh Judicial Circuit in and for Miami-Dade
County, Florida on January 20, 2015, when the Fifteenth Judicial Circuit entered
an order granting Garcia’s motion to transfer venue. Prior to transfer, Garcia filed
an amended complaint which is the operative pleading for purposes of this appeal.

                                         3
“savings to suitors clause” of 28 U.S.C. section 1333. In her complaint, Garcia

alleged she was a business invitee of Carnival and that Carnival undertook the duty

to supervise, control, and direct the embarkation of its business invitees using the

escalator and, specifically, that “[i]n order to board the vessel, she and a crowd of

people were directed [by Carnival] to utilize an escalator leading up a ramp, the

upper landing of which led to the vessel’s gangway.” Garcia claimed she was

injured when she fell because the escalator jolted, purportedly due to “crowded

conditions on board the escalator[] and a lack of crowd control,” all of which

Garcia attributed to negligence on the part of Carnival. Further, Garcia contended

Carnival, among other things, breached its non-delegable duty to provide safe

ingress and egress to the vessel by failing to provide an “appropriately designed

entranceway to the M/V [CARNIVAL VICTORY].” And, Garcia alleged Carnival

breached its assumed duty to supervise, control, and direct the embarkation of

business invitees on board various ships including the M/V CARNIVAL

VICTORY.

      Carnival moved to dismiss, arguing that venue was improper because the

ticket contract between Garcia and Carnival contains a forum selection clause

which requires all suits for personal injuries to be filed in the United States District

Court for the Southern District of Florida in Miami. In her response, Garcia

asserted that the case was properly filed in state court because the United States



                                           4
District Court lacked subject matter jurisdiction. After a hearing in July of 2015,

the trial court entered an order denying the motion to dismiss.

       In November of 2015, after this Court decided Newell v. Carnival Cruise

Lines, 180 So. 3d 178 (Fla. 3d DCA 2015), Carnival moved for reconsideration of

the trial court’s prior order denying dismissal and for dismissal based on Newell.

Over a year later, the trial court entered an order reconsidering its prior order but

adhering to its initial ruling denying dismissal. The trial court found venue proper

in state court in Miami-Dade County because the United States District Court

lacked subject matter jurisdiction. This timely appeal follows.

II.    JURISDICTION

       This Court has jurisdiction to review non-final orders that concern venue

under Florida Rule of Appellate Procedure 9.130(a)(3)(A). “This rule enables a

party to seek review of an adverse decision on venue before that party is forced to

litigate the entire controversy in the wrong forum.”        Regal Kitchens, Inc. v.

O'Connor & Taylor Condo. Constr., Inc., 894 So. 2d 288, 290 (Fla. 3d DCA 2005)

(quoting Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So. 2d

627, 630 (Fla. 1st DCA 1999)).

III.   STANDARD OF REVIEW

       As the trial court’s order denying Carnival’s motion to dismiss was based on

the interpretation of the contractual forum selection clause, this Court's standard of



                                          5
review is de novo. Celistics, LLC v. Gonzalez, 22 So. 3d 824, 825 (Fla. 3d DCA

2009).

IV.   ANALYSIS

      A federal court’s authority to hear cases in admiralty flows initially from the

United States Constitution, which ‘“extend[s]’ federal judicial power’ to all Cases

of admiralty and maritime Jurisdiction.’”       Jerome B. Grubart v. Great Lakes

Dredge & Dock Co., 513 U.S. 527, 531 (1995) (alteration in original) (citing U.S.

Const., Art. III, § 2). Section 1333 prescribes: “The district courts shall have

original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of

admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies

to which they are otherwise entitled.” 28 U.S.C. § 1333(1).

      The mandatory forum selection clause contained in the ticket contract

applies to “all disputes. . . incident to this Contract or the Guest’s cruise, including

travel to and from the vessel” and provides for venue in the United States District

Court for the Southern District of Florida in Miami for those lawsuits over which

the federal court has subject matter jurisdiction. See, e.g., Carnival Cruise Lines v.

Shute, 499 U.S. 585 (1991) (finding a forum selection clause in a commercial

cruise ticket contract enforceable); Carnival Corp. v. Booth, 946 So. 2d 1112 (Fla.

3d DCA 2006) (enforcing a forum selection clause identical to the one in the

present appeal); Leslie v. Carnival, 22 So. 3d 561 (Fla. 3d DCA 2008) (enforcing a



                                           6
nearly identical forum selection clause as the one in the instant appeal), aff’d by an

equally divided court en banc, 22 So. 3d 567 (Fla. 3d DCA 2009), rev. denied, 44

So. 3d 1178 (Fla. 2010), cert. denied, 131 S. Ct. 1603 (2011). Thus, it follows that

only in the absence of admiralty jurisdiction, will proper venue lie in a state court

in Miami-Dade County.

      The issue before us, then, is whether the federal court or the state court has

subject matter jurisdiction. Carnival contends that our recent decision in Newell,

and the cases on which we relied therein, compels reversal and dismissal.3 180 So.

3d 178. In response, Garcia contends Newell does not apply because the injury

here occurred prior to embarkation and seeks affirmance based on Fernandez v.

Ceres Marine Terminals, Inc. 2013 U.S. Dist. LEXIS 54992, at *1 (M.D. Fla. Apr.

17 2013) and Vicenzo v. Carnival Corp., 2012 U.S. Dist. LEXIS 57040, at *1

(S.D. Fla. Apr. 24, 2012).4

      In Newell, a passenger who had just completed a Carnival cruise alleged she

was injured in the Port of Miami after exiting the ship when she fell over a metal

stand located on a pathway between the luggage claim area and the United States


3 The terms “connectivity test” and “connection test” are used interchangeably for
purposes of this opinion as the precedents discussed herein use both terms.
4 Garcia also relies on Anderson v. United States, 317 F.3d 1235 (11th Cir. 2003).

Anderson involves a suit by a contractor working at an observation post claiming
injury from a bomb released by a United States aircraft carrier conducting a
training exercise off shore at Vieques Island, Puerto Rico, and as such, is factually
distinguishable. 317 F.3d at 1236.

                                          7
Customs station. 180 So. 3d at 179. The passenger sued Carnival in state court in

Miami-Dade County alleging that Carnival negligently maintained or created the

walkway by its placement of the metal stands. Id. at 179-80. The ticket contract

between Carnival and the passenger contained a forum selection clause requiring

that any prospective clams “arising under, in connection with or incident to [the

ticket contract] … including travel to and from the vessel, shall be litigated, if at

all, in the United States District Court for the Southern District of Florida.” Id. at

180 (alteration in original). The ticket contract further provided if the federal court

lacked subject matter jurisdiction, then the lawsuit must be filed in a state court

located in Miami-Dade County. Id. We framed the issue in Newell as “whether

admiralty jurisdiction exists when a cruise ship passenger alleges that, as a result of

the negligence of the cruise line, she was injured after exiting the ship and while

walking in a restricted area of the cruise ship terminal on her way to the United

States Customs station.” In answering the question in the positive, we found both

the location and connectivity tests were met. Id. at 180-81, 183.

      In Fernandez, on which Garcia relies, a plaintiff sued Ceres Marine

Terminal, Inc. (“Ceres Marine”) in state court for injuries allegedly sustained when

she fell on the roadway in front of the Tampa port terminal. 2013 U.S. Dist.

LEXIS 54992, at *7. The plaintiff had a ticket for a cruise with Carnival Cruise

Line, scheduled to depart from that port. Id. at *6. At the time of injury, the



                                          8
plaintiff had stopped her car in the front of the terminal to drop off her luggage

before parking to embark on the cruise. Id. at *6-7. Ceres Marine removed the

case to federal court and the United States District Court for the Middle District of

Florida remanded the case back to state court upon finding there was no basis to

exercise admiralty jurisdiction. Id. at *1, 8. In so doing, the District Court

concluded that the locality test had not been met because the incident occurred

entirely on land and not on navigable waters and was not caused by a vessel on

navigable waters. Id. at *8.

      Similarly, in Vicenzo, on which Garcia also relied, the United States District

Court for the Southern District of Florida dismissed a plaintiff’s claim for

negligence against Carnival Corporation for lack of admiralty jurisdiction because

the location test had not been met, where a cruise ship passenger tripped and fell

while stepping down a large step while exiting the port area of the terminal after

departing the ship. 2012 U.S. Dist. LEXIS 57040, at *1-2, 5.

      Pursuant to the Extension of Admiralty Jurisdiction Act “[t]he admiralty and

maritime jurisdiction of the United States extends to and includes cases of damage

or injury, to person or property, caused by a vessel on navigable water, even

though the injury or damage is done or consummated on land.” 46 U.S.C. App. §

30101(a)).5 In determining whether admiralty jurisdiction exists, the United States

5Grubart cites to an earlier version of the Extension of Admiralty Jurisdiction Act,
which states that “the admiralty and maritime jurisdiction of the United States shall

                                         9
Supreme Court has held:

             [A] party seeking to invoke federal admiralty jurisdiction
             pursuant to 28 U.S.C. § 1333(1) over a tort claim must
             satisfy conditions both of location and of connection with
             maritime activity. A court applying the location test must
             determine whether the tort occurred on navigable water
             or whether injury suffered on land was caused by a vessel
             on navigable water. The connection test raises two issues.
             A court, first, must assess the general features of the type
             of incident involved, to determine whether the incident
             has a potentially disruptive impact on maritime
             commerce. Second, a court must determine whether the
             general character of the activity giving rise to the incident
             shows a substantial relationship to traditional maritime
             activity.

Grubart, 513 U.S. at 534 (internal quotations omitted) (citations omitted).

      A. The Location Test

      “[C]ase law interpreting and applying the location test unequivocally holds

that the location test is met where it is alleged that the shipowner commits a tort

before or while the ship is being unloaded, and the impact is felt on shore at a time

and place not remote from the wrongful act.” Newell, 180 So. 3d at 181 (citing

e.g., Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 210 (1963)). The “caused

extend to and include all cases of damage or injury, to person or property, caused
by a vessel on navigable water, notwithstanding that such damage or injury be
done or consummated on land.” 513 U.S. at 532 (citing 46 U.S.C. App. § 740).
The court further explains that “[t]he purpose of the Act was to end concern over
the sometimes confusing line between land and water, by investing admiralty with
jurisdiction over ‘all cases’ where the injury was caused by a ship or other vessel
on navigable water, even if such injury occurred on land.” Grubart, 513 U.S. at
532 (citing e.g., Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 209-210 (1963);
Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 260 (1972)).

                                          10
by” language in the location test has been interpreted to require “proximate

causation.” Newell, 180 So. 3d at 181 (citing Grubart, 513 U.S. at 536). In

finding the location test was met in Newell, we relied on two cases involving

injuries that occurred at the port terminal just after disembarkation, Lipkin v.

Norwegian Cruise Line Ltd., 93 F. Supp. 3d 1311 (S.D. Fla. 2015) and Duck v.

Royal Carribean Cruises, Ltd., 2013 U.S. Dist. LEXIS 92974, at *1 (S.D. Fla. June

28, 2013). In both of those cases, although the claimed injury did not occur on

navigable water, the court found it nonetheless bore a proximate causation to the

vessel.

          In Lipkin, a passenger who was using a cane was injured after he collided

with a wheelchair that got stuck at the end of a moving walkway inside the port

terminal leading to the baggage claim area. 93 F. Supp. 3d at 1316. The passenger

sued the cruise line in federal court claiming it was negligent for allowing or

directing passengers using wheelchairs to use the moving walkway. Id. Lipkin

held that the passenger’s injuries occurred during the disembarkation process, that

is, during the cruise ship's “unloading” of passengers “from the ship to a nearby

point onshore,” and thus, the passenger’s claim against the cruise line satisfied the

location test. Id. at 1318 (quoting Duck v. Royal Carribean Cruises, Ltd., 2013

U.S. Dist. LEXIS 92974, at *5-6 (S.D. Fla. June 28, 2013)). In other words, the

Newell court explained, the location test was satisfied in Lipkin because “there



                                         11
was a proximate causal link between the act of unloading passengers and the

activities of the vessel on navigable waters.” 180 So. 3d at 182.

      In Duck, a passenger sued a cruise line for negligence for injuries sustained

when he fell from a wheelchair while being pushed to a parking lot outside of the

cruise ship terminal by the cruise line’s employees. 2013 U.S. Dist. LEXIS 92974,

at *2. The Duck court held that the location test was satisfied “when it is alleged

that a ship owner’s employee commits a tort while the vessel is being unloaded,

and the impact of which is felt ashore at a time and place not remote from the

wrongful act.” Id. at *5. Importantly, the Duck court explained that “[a]lthough

the alleged incident did not take place on a gangplank or some other place one

might more readily associate with disembarkation, the Supreme Court has ‘taken

the expansive view of admiralty jurisdiction and has stated that in modern

maritime commerce the shore is now an artificial place to draw a line.’” Id. (citing

Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 900 (11th Cir. 2004)). In concluding

the location test was met, we reasoned in Newell that “[t]hese facts are highly

analogous to the facts in Lipkin and display a proximate causal link similar to the

one found in Duck.” Id. at 182-83.

      Here, Garcia was allegedly injured on an escalator inside the cruise terminal

leading up to the ship’s gangway during the process of boarding the ship. In her

complaint, Garcia alleged Carnival “direct[ed] its business invitees en masse to use



                                         12
the Port of Miami escalator.” According to Garcia, the escalator led up to a ramp,

the upper landing of which led to the vessel’s gangway. It follows that the only

way to board the cruise ship was to somehow rise to the level of the gangplank.

Here, the escalator provided the necessary lift. As such, we find the instant facts

more in line with those in Lipkin and Duck and our precedent in Newell than those

in Vicenzo and Fernandez where the claimed injuries occurred outside the terminal

in an area accessible to both ticketed passengers and non-ticketed individuals alike.

Moreover, though Newell, Vicenzo and Fernandez all involved injuries claimed to

have occurred after disembarkation, we find no distinction between embarking and

disembarking for purposes of admiralty jurisdiction. Therefore, we conclude the

location test is satisfied.

       B. The Connectivity Test

       Under the connectivity test, sometimes referred to as the “nexus” test, the

inquiry focuses on maritime commerce. Courts look to whether the incident had a

potentially disruptive impact on maritime commerce and whether a substantial

relationship exists between the activity giving rise to the incident and maritime

commerce. Newell, 180 So. 3d at 180 (citing Grubart, 513 U.S. at 534).

       In Newell, this Court relied on Lipkin, noting that “[t]he failure to provide

for the safe unloading of a commercial vessel such as a cruise ship has a rather

obvious potential to disrupt maritime commerce,” (quoting Duck, 2013 U.S. Dist.



                                         13
LEXIS 92974, at *7), and that “the failure to provide a reasonably safe means of

debarking, with consequent injury to a passenger, is a tort within admiralty

jurisdiction” (quoting Tullis v. Fid. and Cas. Co. of N.Y., 397 F.2d 22, 23-24 (5th

Cir. 1968)). Id. at 181 (citing Lipkin, 93 F. Supp. 3d at 1318); see also Carlisle v.

Ulysses Line, Ltd., S.A., 475 So. 2d 248, 250 (Fla. 3d DCA 1985) (“[Case law]

hold[s] that the duty of a common carrier extends to the point of debarkation and

embarkation. . . . The cases do not, however, purport to define the limits of the

duty.”).6

      In Kirk v. Holland America Line, Inc., two cruise ship passengers were

injured on an escalator in the port terminal while passengers were disembarking

the ship at the final port of call. 616 F. Supp. 2d 1101, 1102-03 (W.D. Wash.

2007). The passengers departed the vessel, proceeded on the vessel’s gangway,

then to a downward escalator, and then to baggage claim. Id. at 1103. In denying

the cruise line’s motion for summary judgment, the court, using a “totality of the

circumstances” analysis, determined that material issues of fact existed as to the

scope of duty of reasonable care during egress. Id. at 1104. The court in Kirk

further stated that “any vessel which engages in the carriage of passengers for hire

has a duty to provide for embarking and disembarking at the beginning and end of


6  The terms “debarking” and “disembarking” are synonyms and are used
interchangeably for purposes of this opinion as the precedents discussed herein use
both terms.

                                         14
the voyage.” Id. (citation omitted). Moreover, the court declined to establish a

rigid rule that leaving the gangway is, as a matter of law, the endpoint of a carrier’s

duty. Id. at 1104-05.

      Inasmuch, the failure to provide for the safe boarding of a cruise ship 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.”     Grubart, 513 U.S. at 534 (internal quotations omitted)

(citations omitted); see also Duck, 2013 U.S. Dist. LEXIS 92974, at *7

(“[I]ncidents occurring during embarkation/disembarkation can slow down the

process of getting other passengers on and off the vessel and can potentially cause

the vessel to depart port at a later time, causing delays.”); Butler v. American

Thawler Co., Inc., 887 F.2d 20, 21 (1st Cir. 1989) (finding that the boarding of a

ship bears a significant relation to traditional maritime activities, as one does not

normally board a ship in quite the same way one enters a building, an airplane, or a

car). Thus, based on the facts alleged in Garcia’s complaint and irrespective of

whether she was embarking or disembarking—whether the escalator was going up

or going down—we find that the connection test is satisfied.

      This finding is consistent with the modern, expansive view of admiralty

jurisdiction to provide for the uniform application of general maritime law. See

Doe, 394 F.3d at 902 (“[T]he purpose behind the exercise of this Court's admiralty



                                          15
jurisdiction is to provide for the uniform application of general maritime law. . . .

Indeed, a ruling that admiralty jurisdiction did not extend literally beyond the

gangplank in this case would upset the very uniformity that the Supreme Court has

determined is so important for maritime activity.”); Norfolk Southern Ry. v. James

N. Kirby, Pty Ltd., 543 U.S. 14, 28-29 (2004) (discussing its touchstone concern

for the uniformity of general maritime law); Carnival Corp. v. Carlisle, 953 So. 2d

461, 470 (Fla. 2007) (“[B]ecause this is a maritime case, this Court and the Florida

district courts of appeal must adhere to the federal principles of harmony and

uniformity when applying federal maritime law.”).

V.    CONCLUSION

      Since the location test and connectivity tests are satisfied, we find that

federal admiralty jurisdiction exists in this case. Because the cruise contract that

governed the relationship between the parties required Garcia to file her lawsuit in

the United States District Court for the Southern District of Florida, the trial court

erred in denying the motion to dismiss. As such, we reverse and remand for

further proceedings consistent with this opinion.

REVERSED AND REMANDED.




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