                Case: 16-16889        Date Filed: 12/13/2017      Page: 1 of 8


                                                                   [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 16-16889
                               ________________________

                         D.C. Docket No. 1:15-cv-23603-KMM



GABRIELE KRESSLY,

                                                          Plaintiff - Appellant,

versus

OCEANIA CRUISES, INC.,

                                                          Defendant - Appellee.

                               ________________________

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

                                    (December 13, 2017)

Before HULL and DUBINA, Circuit Judges, and RESTANI, * Judge.




         *
          Honorable Jane A. Restani, Judge for the United States Court of International Trade,
sitting by designation.
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PER CURIAM:

      Gabriele Kressly (“Kressly”) appeals the district court’s order granting

summary judgment to Defendant Oceania Cruise, Inc. (“Oceania”) on her

negligence claim against Oceania for damages relating to physical injuries,

physical handicap, lost wages, medical expenses, mental anguish, and loss of

enjoyment of life resulting from an injury Kressly sustained while on board

Oceania’s ship, the Regatta. After reviewing the record, reading the parties briefs,

and having the benefit of oral argument, we affirm.

                                I.    BACKGROUND

      Kressly and her husband boarded the Regatta on October 20, 2014, for a

cruise scheduled to sail from Montreal to Quebec, Nova Scotia, Bar Harbor,

Boston, New York, Charleston, and Miami. On November 1, near the end of the

16-day cruise, the Regatta left Bermuda on a course towards Charleston, South

Carolina. Early that morning, Captain Jakub Meinhardt Hanusson Hansen

(“Captain Hansen”) noted the weather appeared to be significantly worse than what

he had seen in the forecasts. When he realized the significant weather change,

Captain Hansen adjusted the Regatta’s course to head further south and away from

worsening weather conditions.




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      Around noon, Captain Hansen issued his first adverse weather

announcement. Oceania has an established protocol for issuing warnings related to

adverse weather conditions. (R. Doc. 31-11.) In addition to notifying the

passengers that the ship will be experiencing adverse weather and reading the

specific forecast, the Captain makes the following statement:

      Due to the potential of rough seas, we kindly ask our Guests to
      exercise extreme caution when moving around the ship, use the hand
      rails when on stairways, keep Stateroom, bathroom doors and
      cupboards closed, and fingers away from door frames, as doors may
      close suddenly and with some force. When using the shower or bath
      please use the hand rail. If proceeding on the open decks please use
      the handrails as the deck may be slippery from sea spray or rain. To
      avoid any discomfort to our Guests the stabilizers have been extended
      and the course and speed adjusted to minimize the ship’s motion.

Id. As per Oceania’s policy, the Cruise Director makes the same announcement

again immediately following the Captain’s announcement. (R. Doc. 31-11.)

      At approximately 5:00 p.m. that same day, Captain Hansen issued another

warning and reduced the speed of the Regatta. In addition to the standard warning,

Captain Hansen advised passengers that it was safest to remain seated on sofas

until the weather improved and that the safest part of the ship was mid-ship, at

deck four or deck five. According to the Captain’s logbook, the worst of the storm

occurred between 5:00 p.m. and midnight. (R. Doc. 31-8.)




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      At about 6:10 p.m., Kressly attempted to stand and move across her cabin

room when the ship pitched, causing her to be thrown into the air. As a result,

Kressly suffered a fracture to her left hip, which required surgery, hospitalization,

and physical therapy.

                                     II.       ISSUE

      Whether the district court properly granted summary judgment to Oceania

on Kressly’s negligence claim.

                          III.   STANDARD OF REVIEW

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

the same legal standards used by the district court.” Galvez v. Bruce, 552 F.3d

1238, 1241 (11th Cir. 2008). “Summary judgment is appropriate where ‘there is

no genuine issue as to any material fact and the moving party is entitled to a

judgment as a matter of law.’” Wooden v. Bd. of Regents of the Univ. Sys. of Ga.,

247 F.3d 1262, 1271 (11th Cir. 2001) (quoting Fed. R. Civ. P. 56(c)).

                                 IV. DISCUSSION

      Essentially, Kressly urges this court to adopt a heightened standard of care

for vessels when they transport passengers during tumultuous weather. She

contends that the district court erred in granting summary judgment to Oceania

because the district court applied the wrong standard of care under the unique


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circumstances of this case. She also argues that Oceania had actual and

constructive notice of the dangerous conditions because weather forecasts

predicting the storm were available to the Captain days prior to the November 1

storm, and the Captain witnessed firsthand the deteriorating weather conditions

prior to the storm’s impact on the Regatta. Under these circumstances, Kressly

argues that the reasonable standard of care was not sufficient, and Oceania owed

her a heightened degree of care to protect her against the unique maritime peril that

caused her accident. Just as the district court did, we reject Kressly’s arguments.

      The federal maritime law in this circuit is clear that the owner of a vessel in

navigable waters owes passengers a duty of reasonable care under the

circumstances. Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1279 (11th Cir.

2015). Importantly, Kressly does not provide any circuit precedent to support her

contention that, under the specific circumstances of this case, Oceania owed her a

heightened standard of care. She refers to a Ninth Circuit case, Catalina Cruises v.

Luna, 137 F.3d 1422 (9th Cir. 1998), but mischaracterizes the court’s holding. In

that case, the court merely clarified that “where the risk is great because of high

seas, an increased amount of care and precaution is reasonable.” Id. at 1425–26.

      In Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.

Ct. 406 (1959), the Supreme Court held that “[i]t is a settled principle of maritime


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law that a shipowner owes the duty of exercising reasonable care towards those

lawfully aboard the vessel who are not members of the crew.” Id. at 630, 79 S. Ct.

at 409. Kressly attempts to distinguish this valid law by asserting that that case

involved a non-passenger/non-paying visitor. This distinction does not have any

bearing upon the Supreme Court’s conclusion. The Court determined that a carrier

owed an equivalent standard of reasonable care to any licensee aboard a vessel,

whether categorized as a paying passenger or not. Id. at 632, 79 S. Ct. at 410. See

also Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012)

(“Concerning the duty element in a maritime context the Supreme Court held in

Kermarec [] that a ‘shipowner owes the duty of exercising reasonable care

towards those lawfully aboard the vessel who are not members of the crew.’”

(quoting Kermarec, 358 U.S. at 630, 79 S. Ct. at 409)); Keefe v. Bahama Cruise

Line Inc., 867 F.2d 1318, 1322 (11th Cir. 1989) (“the benchmark against which a

shipowner’s behavior must be measured is ordinary reasonable care under the

circumstances . . . which requires . . . that the carrier have had actual or

constructive notice of the risk-creating condition”).

      Because Oceania owed Kressly a reasonable standard of care, Kressly has to

demonstrate that Oceania had the requisite notice of the dangerous conditions to

the Regatta and its passengers. She cannot satisfy this requirement. The record


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does not demonstrate that Captain Hansen was unreasonable in charting the

Regatta’s course, let alone intentionally endangering passengers. Although

Captain Hansen knew of the adverse weather prior to November 1, there is no

indication that such severe weather was near the Regatta’s location. Even

Kressly’s own expert, Douglas M. Torborg, a Master Mariner-Marine Consultant,

does not provide any evidence to suggest that the route taken by Captain Hansen

was not viable. He did state there was another route which, in his opinion, would

have been the better course, but he proffers nothing to show that Captain Hansen’s

course was unreasonable under the circumstances. (R. Doc. 31-6.) Moreover,

Captain Hansen testified at his deposition that he was continually apprised of

weather conditions; hence, Oceania did not have the requisite actual and

constructive notice that the severity of the weather would necessarily cause a risk-

creating condition in Kressly’s cabin.

      Finally, Kressly challenges the adequacy of Oceania’s warnings about the

implications of adverse weather. However, the record supports that Captain

Hansen’s warnings were sufficient. The warnings alerted the passengers that

during the severe weather, they should remain seated, and the best place on the

ship was mid-ship, either deck four or deck five. Kressly acknowledged that she

heard the announcements about the severe weather and that she had sailed on 13


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previous cruises. Furthermore, Kressly provides no evidence that the Captain or

Oceania was aware of a specific risk-creating condition in her cabin due to the

severe weather of which they had a duty to warn. See, e.g., Smith v. Royal

Caribbean Cruises, Ltd., 620 F. App’x 727, 730 (11th Cir. 2015) (finding that

Defendant did not breach its duty of reasonable care by failing to warn Plaintiff of

a condition of which he, as a reasonable person, would be aware).

      In conclusion, because we reject all of the arguments Kressly makes in this

appeal, we affirm the district court’s grant of summary judgment in favor of

Oceania.

      AFFIRMED.




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