Olivier Carol v. NCL (BAHAMAS) LTD

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[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.
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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.
21
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