              Case: 18-12644   Date Filed: 08/29/2019   Page: 1 of 7


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 18-12644
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 1:15-cv-24776-JLK


VALENTINA AZZIA,
STEFANO AGAZZI,
Individually and as Parents and Natural Guardians of A.A. and J.A., Minors,

                                                             Plaintiffs-Appellants,

                                     versus

ROYAL CARIBBEAN CRUISES, LTD,

                                                             Defendant-Appellee.

                          ________________________

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

                               (August 29, 2019)

Before WILSON, BRANCH, and JULIE CARNES, Circuit Judges.

PER CURIAM:
               Case: 18-12644     Date Filed: 08/29/2019    Page: 2 of 7


      When a family of four took a cruise with Royal Caribbean Cruises, Ltd., one

of their children nearly drowned while in the pool area on the ship. After the

incident, the parents of the child sued Royal Caribbean for negligence and

negligent infliction of emotional distress (NIED). Royal Caribbean moved for

partial summary judgment on the NIED claim, which the district court granted.

The parents now appeal.

                           I. FACTUAL BACKGROUND

      Appellants and their two children are citizens and residents of Italy. Royal

Caribbean is incorporated in Liberia and has a principal place of business in

Florida. In 2015, Appellants and their children took a cruise on a Royal Caribbean

ship, the Oasis of the Seas. On the first day of the cruise, the family lost sight of

A.A., their four-year-old child, in the children’s pool area. The family then saw

another passenger pull A.A.’s body from the pool and witnessed two other

passengers begin resuscitation efforts. Fortunately, A.A. survived.

      Appellants sued Royal Caribbean for (1) negligence on behalf of A.A., and

(2) NIED on behalf of themselves and A.A.’s sibling. Appellants allege that, when

A.A. nearly drowned, Royal Caribbean did not have lifeguards or crew members

stationed in the children’s pool area—even though other children had suffered

similar incidents on Royal Caribbean ships.




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      Royal Caribbean moved for partial summary judgment on the NIED claim,

arguing that A.A.’s family was not in the “zone of danger” at the time of A.A.’s

incident. The district court agreed and granted Royal Caribbean’s motion.

Appellants now appeal.

                                   II. DISCUSSION

                                    A. Jurisdiction

      We must raise concerns about our subject matter jurisdiction sua sponte.

Mallory & Evans Contractors & Eng’rs, LLC v. Tuskegee Univ., 663 F.3d 1304,

1304–05 (11th Cir. 2011) (per curiam). We generally only have jurisdiction to

review final orders, see 28 U.S.C. § 1291, or interlocutory orders “that are made

appealable by statute or jurisprudential exception,” CSX Transp., Inc. v. City of

Garden City, 235 F.3d 1327, 1327 (11th Cir. 2000). An order that disposes of

fewer than all claims against all parties to an action is ordinarily not final or

immediately appealable unless the district court certifies the order for immediate

review under Federal Rule of Civil Procedure 54(b). See Supreme Fuels Trading

FZE v. Sergeant, 689 F.3d 1244, 1246 (11th Cir. 2012) (per curiam).

      We also have jurisdiction to review interlocutory orders “determining the

rights and liabilities of the parties to admiralty cases in which appeals from final




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decrees are allowed.” 28 U.S.C. § 1292(a)(3).1 To qualify for interlocutory appeal

under section 1292(a)(3), a party must be seeking review of an order (1) disposing

of an admiralty claim, or a claim integrally linked to an admiralty claim, or (2)

making a complete determination of the appellant’s liability to the appellee.

Beluga Holding, Ltd. v. Commerce Capital Corp., 212 F.3d 1199, 1203–04 (11th

Cir. 2000). Generally, this includes appeals from orders resolving an admiralty

claim or dismissing a party. Sea Lane Bahamas Ltd. v. Europa Cruises Corp., 188

F.3d 1317, 1321 (11th Cir. 1999).

       Here, the district court neither disposed of all claims in the case, nor entered

a partial judgment under Rule 54(b). Thus, we must determine if we have

appellate jurisdiction under section 1292(a)(3), which would require that this

appeal involve claims under admiralty jurisdiction.

       Appellants originally asserted two bases of jurisdiction: (1) diversity

jurisdiction under 28 U.S.C. § 1332, and (2) maritime and admiralty jurisdiction.

Diversity jurisdiction does not exist because the Appellants are citizens and

residents of Italy, and Royal Caribbean is incorporated solely in Liberia. See

Caron v. NCL (Bahamas), Ltd., 910 F.3d 1359, 1364–65 (11th Cir. 2018) (holding

that diversity jurisdiction does not exist between “a corporation incorporated solely



1
 A case that includes an admiralty or maritime claim within Rule 9(h) of the Rules of Civil
Procedure is an admiralty case within 28 U.S.C. § 1292(a)(3). Fed. R. Civ. P. 9(h)(2).
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in a foreign state and another alien, regardless of the corporation’s principal place

of business”). Although Appellants failed to properly elect to proceed under

maritime law, see id. at 1363, their claims fall within admiralty jurisdiction under

28 U.S.C. § 1333(1), because “[a] claim cognizable only in the admiralty or

maritime jurisdiction is an admiralty or maritime claim for those purposes, whether

or not so designated,” Fed. R. Civ. P. 9(h)(1); see also Caron, 910 F.3d at 1365

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

suffered at sea, are within the admiralty jurisdiction of the district courts.”). Thus,

the district court validly exercised admiralty jurisdiction over this case, and

properly carried on all proceedings in light of the admiralty jurisdiction basis.

Caron, 910 F.3d at 1365–66.

      Because this case properly proceeded under admiralty law, we have

jurisdiction under section 1292(a)(3) to review the district court’s disposal of

Appellants’ NIED claim. See Fed. R. Civ. P. 9(h)(1); Beluga Holding, Ltd. v.

Commerce Capital Corp., 212 F.3d 1199, 1203–04 (11th Cir. 2000).

                    B. Negligent Infliction of Emotional Distress

      We review de novo a district court’s grant of summary judgment, applying

the same legal standards as the district court. Langfitt v. Fed. Marine Terminals,

Inc., 647 F.3d 1116, 1120 n.10 (11th Cir. 2011). Summary judgment is

appropriate when there is no genuine issue of material fact and the moving party is


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entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). We view the

evidence and resolve all inferences in the light most favorable to the nonmoving

party. Williamson Oil Co. v. Philip Morris USA, 346 F.3d 1287, 1298 (11th Cir.

2003). We may not undertake credibility determinations or weigh the evidence

when reviewing the record for summary judgment. Latimer v. Roaring Toyz, Inc.,

601 F.3d 1224, 1237 (11th Cir. 2010).

      The district court granted summary judgment for Royal Caribbean on

Appellants’ NIED claim, holding that the Appellants were not in the required

“zone of danger.” Appellants argue that the “zone of danger” test should not apply

in the context of general maritime law, but this Court has already recognized that

“federal maritime law has adopted . . . the ‘zone of danger’ test which allows

recovery if a plaintiff is ‘placed in immediate risk of physical harm by [defendant’s

negligent] conduct.’” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337–38 (11th

Cir. 2012) (per curiam) (applying the “zone of danger” test). We are bound by

Chaparro under the prior panel precedent rule. See Breslow v. Wells Fargo Bank,

755 F.3d 1265, 1267 (11th Cir. 2014) (per curiam). The district court therefore

properly used the “zone of danger” test.

      The “zone of danger” extends to plaintiffs “who sustain a physical impact as

a result of a defendant’s negligent conduct, or who are placed in immediate risk of

physical harm by that conduct.” Consol. Rail Corp. v. Gottshall, 512 U.S. 532,


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547–48, 114 S. Ct. 2396, 2406 (1994). Appellants have failed to support their

NIED claim because they failed to show that they sustained physical impact or

were placed in immediate risk of physical harm by Royal Caribbean’s allegedly

negligent conduct. Accordingly, we affirm the district court’s grant of summary

judgment on this claim.

      AFFIRMED.




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