       Third District Court of Appeal
                                State of Florida

                            Opinion filed April 24, 2019.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D18-1233
                          Lower Tribunal No. 17-24287
                              ________________

                              Victor Allan Clark,
                                     Appellant,

                                         vs.

                     Celebrity Cruises, Inc., etc., et al.,
                                     Appellees.

      An Appeal from the Circuit Court for Miami-Dade County, Rodney Smith,
Judge.

      Alvarez, Feltman, & DaSilva, PL, and Paul B. Feltman, for appellant.

      Coffey Burlington, P.L., and Jeffrey B. Crockett and Paul J. Schwiep, for
appellees.


Before SCALES, LINDSEY and HENDON, JJ.

      SCALES, J.

      Victor Allan Clark, the plaintiff below, appeals a non-final order1 granting

Celebrity Cruises, Inc. and Royal Caribbean Cruises Ltd.’s, the defendants below,
motion to dismiss Clark’s First Amended Complaint. Because we conclude the

trial court did not err, as a matter of law, in finding that venue lies in the Turks and

Caicos Islands based on the mandatory forum selection clause contained within

Clark’s independent contractor agreement, we affirm. See Antoniazzi v. Wardak,

259 So. 3d 206, 209 (Fla. 3d DCA 2018) (“The trial court’s construction of the

forum selection clause is subject to de novo review.”).

      Clark was employed by a staffing agency (Caribbean Staffing Solutions) to

work – on an independent contractor basis – as an art auctioneer for Park West

Galleries, Inc. on cruise ships. Clark alleges that he was injured, on two separate

occasions, while moving artwork on cruise ships separately owned and operated by

the two appellee cruise lines. The First Amended Complaint alleges claims against

the cruise lines for general maritime law negligence (counts I and IV); general

maritime law unseaworthiness (counts II and V), and general maritime law failure

to provide maintenance and cure (counts III and VI).

      Citing this Court’s decision in Durkovic v. Park West Galleries, Inc., 217

So. 3d 159 (Fla. 3d DCA 2017), the appellees moved to dismiss the instant action

based on the mandatory forum selection clause2 contained within Clark’s
1 Because the subject order is a non-final order that “concern[s] venue,” we have

jurisdiction. Fla. R. App. P. 9.130(a)(3)(A).
2 The independent contractor agreement’s mandatory forum selection clause

provides, in relevant part, that “any and all legal proceedings . . . arising from or
relating to this Agreement . . . shall be brought only in a court in the Turks &
Caicos Islands.”


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independent contractor agreement with the staffing agency, of which the appellees

were intended third-party beneficiaries.3 At the hearing on the appellees’ motion,

the trial court found that, based on Durkovic, venue lies in the courts of the Turks

and Caicos Islands. We agree.

      In Durkovic, this Court considered a similar independent contractor

agreement with the same staffing agency, containing the same mandatory forum

selection clause and the same release provision at issue here. There, this Court

affirmed the dismissal of the plaintiff’s personal injury action against Park West

Galleries, Inc. (also an intended third-party beneficiary of the independent

contractor agreement), holding that the action must be brought in the Turks and

Caicos Islands. Id. at 159-60. That the instant action alleges claims against the

appellee cruise lines only4 is of no matter. We find that, under Durkovic, the trial

3 The independent contractor agreement’s “Indemnification, Hold Harmless, and
Release” provision (“release provision”) provides, in relevant part, that Clark
“irrevocably and unconditionally releases . . . all cruise ships and cruise lines on
which [Clark] performs services . . . from and against any past, present or future
loss, claim, damage, or liability of any kind or nature whatsoever arising from
[Clark’s] activities in connection with this Agreement.” The release provision
further provides that the release includes “claims for personal injuries,” “claims
under the Jones Act,” “claims for maintenance and cure,” and “claims for
unseaworthiness.” The release provision supports the trial court’s conclusion that
the appellees are intended third-party beneficiaries of the independent contractor
agreement. The trial court did not reach the issue of, and we express no opinion
on, whether the release provision exculpates the appellees. See footnote 5, infra.


4Clark filed his original complaint against the appellee cruise lines and Park West
Galleries, Inc. When Park West Galleries, Inc. moved to dismiss the complaint

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court correctly dismissed the instant action because venue lies in the Turks and

Caicos Islands.5

      Affirmed.




against it based on Durkovic, Clark filed the First Amended Complaint against the
appellee cruise lines only.
5 We express no opinion as to the merits of, or defenses to, Clark’s claims. This
includes, as noted in foonote 3, supra, the validity and enforceability of the subject
release provision. As we stated in Durkovic, “the courts of the Turks and Caicos
Islands are capable of deciding the choice of law issues, determining whether the
contractual provisions limiting liability and recovery are operative, and applying
the Jones Act, if appropriate.” 217 So. 3d at 160.

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