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11 of 31 DOCUMENTS
MONIKA GOODWIN, Plaintiff, vs. RIOS TROPICALES, S.A. and SWISS
TRAVEL SERVICES, S.A., Defendants. MONIKA GOODWIN, Garnishor, vs.
SILVERSEA CRUISES, LTD., HOLLAND AMERICA LINE, N.V., etc. et al., Garnishees.
Case No. 04-22707 CIV JORDAN
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
FLORIDA
2005 U.S. Dist. LEXIS 45878
November 16, 2005, Decided
November 18, 2005, Filed
COUNSEL: [*1] For Monika Goodwin, Plaintiff:
Charles R. Lipcon, LEAD ATTORNEY, Matthew Taylor Ross, LEAD ATTORNEY, Lipcon Margulies &
Alsina, Miami, FL.
JUDGES: STEPHEN T. BROWN, U.S. MAGISTRATE
JUDGE.
For Rios Tropicales, S.A., Swiss Travel Service, S.A.,
Defendants: Albert L. Frevola, Jr., LEAD ATTORNEY,
Mark Blumstein, LEAD ATTORNEY, Gordon Hargrove
& James, Fort Lauderdale, FL.
OPINION
For Costa Cruise Lines, N.V., Garnishee: Richard James
McAlpin, LEAD ATTORNEY, McAlpin & Conroy PA,
Miami, FL.
For Carnival Corp., Garnishee: Brant Collin Hadaway,
LEAD ATTORNEY, Diaz Reus Rolff & Targ, P.A.,
Miami, FL; Richard David Lara, LEAD ATTORNEY,
Mase & Lara, P.A., Miami, FL.
For Royal Caribbean Cruises, Ltd., Garnishee: Donald
Christopher Tyler, LEAD ATTORNEY, Royal Carribean
Cruises, Miami, FL; Sanford Lewis Bohrer, LEAD ATTORNEY, Holland & Knight, Miami, FL.
For Silversea Cruises, Ltd., Garnishee: Arthur Charles
Neiwirth, LEAD ATTORNEY, Fort Lauderdale, FL.
For NCL (Bahamas) Ltd., Garnishee: Daniel S. Farkas,
LEAD ATTORNEY, Norwegian Cruise Lines Inc., Miami, FL.
For Holland America Line, N.V., Garnishee: Jeffrey
Bradford Maltzman, LEAD ATTORNEY, Maltzman
Foreman PA, Miami, FL.
OPINION BY: STEPHEN T. BROWN
REPORT AND RECOMMENDATION
This [*2] matter is before the Court on Defendants' Emergency Motion to Quash and/or Vacate Plaintiff's Writ of Attachment and Garnishment Against Defendants & Request for Rule E(4)(f) Hearing, filed
March 14, 2005, and Defendants' Supplemental Motion
to Quash and/or Vacate Plaintiff's Writ of Attachment
and Garnishment and Request for Adequate Security,
filed April 11, 2005. The Court has considered the motions, Responses, Replies, and all pertinent materials in
the file. Additionally, an evidentiary hearing was held on
April 7 and May 9, 2005, and this Court adopts the transcript of that hearing by reference herein.
Resolution of certain issues raised in these motions
was dependent upon the outcome of several other
non-referred motions. By Order dated October 21, 2005,
the Honorable Adalberto Jordan denied Plaintiff's Motion for Judgment on the Pleadings, Motion for Default
Judgment as to Count II of the Complaint, Motion to
Strike Swiss Travel Services' Pleadings, Defenses, Motions and for Default to be Entered, and Amended Motion to Strike Swiss Travel Services' Pleadings, Defenses,
Motions and for Default to be Entered. Judge Jordan
additionally determined that the Amended Complaint
and [*3] Swiss Travel's Verified Answer thereto are the
operative pleadings in the case. This Order has rendered
certain of the issues raised in the instant motions moot.
Page 2
2005 U.S. Dist. LEXIS 45878, *
PROCEDURAL FACTS
Swiss Travel for those trips. Ex. A to Memo. in Opp. to
M. Jdgmt. on Pldgs.
Plaintiff was a cruise ship passenger on Holland
America Line's ("HAL") Maasdam who alleges she was
injured on December 29, 2001, while on a whitewater
rafting shore excursion on Rio Reventazon, a river in the
Republic of Costa Rica. The tour was conducted by Defendant Rios Tropicales, S.A. (hereinafter "Rios") and
was arranged by Defendant Swiss Travel Service, S.A.
(hereafter "Swiss Travel"), both of whom are Costa Rican entities.
On March 14, 2005, Defendants filed the Emergency Motion to Quash and/or Vacate Plaintiff's Writ of
Attachment and Garnishment Against Defendants &
Request for Rule E(4)(f) Hearing, in which they argue
that Plaintiff failed to establish a basis for this Court to
exercise subject matter jurisdiction over the maritime tort
claim because the Rio Reventazon, on which Plaintiff
was allegedly injured, was not a navigable river for purposes of admiralty jurisdiction.
On October 27, 2004, Plaintiff filed a "Passenger
Complaint," pursuant to Supplemental Rule B and Local
Admiralty Rule B, alleging Negligence (Counts I and II)
and seeking Quasi in Rem Attachment and Garnishment
against ten cruise-related companies (Count III). The
sole basis of jurisdiction alleged in that complaint was
that the Defendants committed a maritime tort causing
Plaintiff to suffer personal injuries while a passenger on
a white water rafting trip on a navigable river in Costa
Rica.
On March 18, 2005, a Summons and Process of
Maritime Attachment and Garnishment was issued to
RCCL, and same was served on March 21, 2005. That
summons requests "the past and present proceeds from
the sale of excursion tickets by Garnishee [RCCL], for
Defendants for all Royal Caribbean Cruises, Ltd., vessels
and/or ...[a]ny and all funds owing by Garnishee Royal
Caribbean Cruises, Ltd., to [*6] Defendants, up to the
amount sued for, to wit $ 1,000,000 ...."
On January 6, 2005, the Honorable Adalberto Jordan
issued an Order Directing the Issuance [*4] of Summons and Process of Maritime Attachment and Garnishment and Maritime Summons to Show Cause Respecting an Intangible Property, and writs were issued to
the named Garnishees. No Garnishee, has, to date, indicated that it is holding any tangible property belonging to
Defendants responsive to the writs. However, on February 9, 2005, Garnishee Royal Caribbean Cruises, Ltd.
("RCCL"), indicated that it was indebted to Swiss Travel
in the amount of $ 29,628.00. 1
1 Since no garnishees have answered that they
have any property belonging to Defendant Rios,
the writs as to Defendant Rios must be quashed.
On March 1, 2005, Judge Jordan issued a Summons
and Process of Maritime Attachment and Garnishment
directed to RCCL for "the past and present proceeds
from the sale of excursion tickets by Garnishee... for
Defendants['] white water rafting trips for all ROYAL
CARIBBEAN CRUISES, LTD. vessels sailing to Costa
Rica, up to the amount [of] $ 1,000,000." D.E. 38. Also
on March 1, 2005, Defendants filed their respective Answer and Affirmative Defenses Solely to Plaintiff's Rule
B Attachment and Garnishment (Count III) and Request
for Rule E(4)(f) Hearing.
On March 7, 2005, RCCL served (but apparently
[*5] did not file) a Supplemental Answer to RCCL Writ
of Garnishment, stating that Swiss Travel did not provide
any white water rafting trips to RCCL guests at any time
during 2001 through 2005, but did provide other excursion trips, and that it had monies which were due to
On April 4, 2005, Plaintiff filed a Motion for Leave
to conduct Discovery, and on April 7, 2005 the Court,
after a hearing, granted Plaintiff limited discovery, limited to jurisdictional issues only. On April 11, 2005, Defendants filed the Supplemental Motion to Quash and/or
Vacate Plaintiff's Writ of Attachment and Garnishment
and Request for Adequate Security.
On April 22, 2005, Plaintiff moved to file an
Amended Complaint, which added an allegation that the
Court had admiralty jurisdiction on the basis of a maritime contract. On May 5, 2005, Defendant Swiss Travel
filed a Memorandum of Law in Opposition to the Motion
to Amend, but then on May 11, 2005 filed a Notice of
Withdrawal and Consent to Amended Complaint, and
Verified Answer and Affirmative Defenses, Statement of
Claim and Request for Rule E(4)(f) Hearing. 2 On May
13, 2005, Plaintiff filed a Notice of Withdrawal of Plaintiff's Motion to Amend Complaint. On October 21, 2005,
Judge Jordan entered the previously referenced Order
denying Plaintiffs' motions and determining that the
Amended Complaint and Swiss Travel's Verified Answer
thereto are the operative pleadings [*7] in the case.
2
This answer addressed all counts of the
Amended Complaint.
In the Emergency Motion to Quash and/or Vacate
Plaintiff's Writ of Attachment and Garnishment Against
Defendants & Request for Rule E(4)(f) Hearing and the
Supplemental Motion, Defendants argue that this Court
is without admiralty subject matter jurisdiction over this
matter, on both procedural and substantive grounds, and
therefore, has no jurisdiction for any attachment and garnishment writ pursuant to Supplemental Rule B. Under
Page 3
2005 U.S. Dist. LEXIS 45878, *
Supplemental Rule B, the court may exercise jurisdiction
over a defendant's property located within a jurisdiction
of the subject court when the court is without personal
jurisdiction over the defendant. Madredeus Shipping Co.,
Ltd. v. Century Bridge Chartering Co., Ltd., No.
00-414-Civ, 2000 U.S. Dist. LEXIS 20874, 2000 WL
1344101 (S. D. Fla. Feb. 11, 2000). The attached or garnished property provides jurisdiction over the defendants
as well as a fund from which a judgment can be paid.
Winter Storm Shipping Ltd. v. TPI, 310 F.3d 263, 268
(2d Cir. 2002). When a defendant challenges the validity
of a Rule B attachment, the burden is on the plaintiff to
prove there are reasonable grounds for issuing the writ.
Salazar v. Atlantic Sun, 881 F.2d 73, 79 (3rd Cir. 1989)
[*8] (noting that "[t]he post-arrest hearing is not intended
to resolve definitively the dispute between the parties,
but only to make a preliminary determination whether
there were reasonable grounds for issuing the arrest warrant...").
EVIDENTIARY FACTS
Plaintiff Monika Goodwin purchased the ticket for
the river rafting tour on the Maasdam, and the ticket
price was charged by HAL on her ship's bill and she received a voucher in return. The first time Plaintiff spoke
with whoever was acting as the tour operator was on a
bus on the way to the drop-off point. She then was required to sign a Swiss Travel form waiver and medical
questionnaire. The two and a half hour rafting trip on Rio
Reventazon, which flows to the Caribbean shore, started
at Florida de Siquirres and ended at El Carmen de Siquirres. Plaintiff testified that at one point during the trip
the operator let people go over the side with life jackets
that kept them floating. The accident in this case occurred towards the end of the route near a place called
San Alberto. At the time of the incident waves were
washing over the raft and one side went down, and
Plaintiff slid off into the water and was injured when she
hit some rocks. 3
3
Much [*9] of Plaintiff's testimony concerned the lack of any warnings about the possible dangers of white water rafting. This evidence
was largely unchallenged by Defendants, and the
Court finds this evidence sufficient for purposes
of Plaintiff's burden on this issue with respect to
these motions.
Swiss Travel is a ground tour operator and in 2001,
Rios was the primary operator of white water rafting
tours sold by Swiss Travel. Swiss Travel's president and
co-owner, Emilia Gamboa testified by deposition that
Swiss Travel has handled shore excursions for up to four
cruise ships at a time, totaling over 800,000 passengers
as of April, 2005; in 2001, about 30% of Swiss Travel's
business came from cruise ship passengers from five
cruise lines.
Ms. Gamboa testified that no one on behalf of Swiss
Travel gave HAL authorization to act on its behalf, and
there were no employees or representatives of Swiss
Travel on HAL vessels. HAL had pre-sales through the
internet (approximately 70% of passengers) and sold
tours on board, with a mark-up. Swiss Travel did not sell
any shore excursion tickets directly to cruise passengers
on HAL vessels, and if a travel agent wanted to book a
rafting tour, Swiss Tours [*10] was required to advise
them to contact the shore excursions department group
coordinator. When passengers purchased a tour, HAL
gave them a Shore Excursion Voucher, which is an
agreement between Swiss Travel and the passenger.
HAL collected the money from the passengers and then
paid Swiss Tours. The customer must bring the Voucher
to shore to board the bus (owned and operated by Rios),
which is the first time the cruise passenger has contact
with a Swiss Travel employee. 4
4 A port agent who is not affiliated with Swiss
Travel was in charge of getting the customers to
and from the vessel to the land. A shore excursion manager from the vessel oversaw the entire
boarding operation on the pier and met the tour
buses when they returned to the dock.
Rafael Ernesto Gallo, one of the owners of Rio, 5
testified by deposition that the Rio Reventazon, which
goes all the way out to the Paris Mina River, is one of the
longest rivers in the Atlantic side of the country. He
stated that it has a "very constant gradient," (six degrees)
which "averages 50 feet per mile," and is "very rocky,"
"fairly shallow" and "doesn't get over... ten inches or so."
Gallo depo. pp. 11-12. Some of the rocks are a foot
[*11] under the waves, and at other places they may be
visible. The water in the Rio Reventazon goes up and
down throughout the year. The area on which the rafting
is offered does not change. The section where the incident occurred, called the El Carmen section, was developed about seven years ago, as the river got dammed up
above at Anguostura, about 30 miles up river.
5 Mr. Gallo also wrote a book called The Rivers of Costa Rica, A Canoeing, Kayaking, and
Rafting Guide, has competed in white water rafting championships throughout the world and has
personally rafted the portion of the river where
Plaintiff was injured hundreds of times. He stated
that "being capsized is part of the activity." Gallo
depo. p. 27.
According to Mr. Gallo, it would be impossible for
motorized vehicles to travel on the river, and because of
the dam, sometimes there is no water at all in the river
Page 4
2005 U.S. Dist. LEXIS 45878, *
and at others a lot of water is released because the lake is
flooded. There have also been flash floods in the rivers.
Rio only does the rafting trip, which covers ten to eleven
miles, when the water is released. In Mr. Gallo's experience, the area where Plaintiff's tour took place is not part
of the river which is capable [*12] of sustaining any
commercial shipping. He has never observed a vessel
other than a raft or a kayak transversing this portion of
the river. The only commercial activity that is done on
the river is white water rafting tours and kayaking and
related souvenir and photograph sales. He stated that it
could possibly be used as a highway of commerce to
connect it with the Atlantic Ocean, but only in rafts,
which no one does. 6
6 Ms. Gamboa also testified that based upon
her personal observations and experience with the
river, boats other than white water rafts or kayaks
could not be used there because the river has
"drops." She also has never personally observed
any other commercial vessels traveling on that
area of the river.
DISCUSSION
I. Procedural Deficiencies
Defendants make several procedural arguments in
support of their request that the Rule B attachment
should be quashed and/or vacated. Plaintiff also argues
that Defendants are not entitled to the relief they seek
due to procedural irregularities
A. Verification of complaint
The Supplemental Admiralty Rules and the Local
Admiralty Rules require that a complaint be verified as a
jurisdictional prerequisite of the issuance of a writ of
attachment. [*13] Local Admiralty Rule A(5); see
Benny Chan v. Society Expeditions, 123 F.3d 1287,
1997 AMC 2713 (9th Cir. 1997); CTC Imports & Exports v. Nigerian Petroleum Corp., 739 F. Supp. 966
(E.D. Pa. 1990). In Plaintiff's Amended Complaint, she
provides the verification required by the Rules. Therefore, this argument is moot.
B. Changing of Writs
Defendants argue that Plaintiff improperly changed
and broadened the language contained in the writs. As
the Amended Complaint requests the attachment of
property beyond the white water rafting proceeds, this
argument is also moot. Furthermore, although the Court
agrees that Plaintiff should not have changed the language on the writs without seeking court approval, it
appears that such approval would have been granted, in
that the property which is the subject of the writ does not
need to be tied to the alleged conduct. See Winter Storm
Shipping, Ltd. v. TPI, 310 F.3d 263, 268 (2d Cir. 2002).
For these reasons, the Court also rejects Defendants' argument that there was no garnishment or attachment because the garnishees did not possess any of the Defendants' property on the date the writs requesting proceeds
from sales of white water river trips were served.
C. Probable [*14] Cause
Defendants next argue that at the time of filing the
Verified Complaint, Plaintiff failed to have the required
evidence to satisfy Supplemental Rule E(4)(f), which
requires that there be probable cause to invoke admiralty
jurisdiction and obtain seizure at the time of attachment.
Defendants point to Plaintiff's motion for leave to take
discovery, in which Plaintiff states that she needs to
conduct discovery in order to fully respond to the arguments raised in Defendants' Emergency Motion "that
there is no admiralty jurisdiction on the Rio Reventazon
and that there can be no admiralty jurisdiction from the
sale of the excursion ticket," and "to ascertain the relationship among the Defendants and between the Defendants and the Garnishees." This Court essentially already rejected Defendants' argument when it granted the
motion for discovery. Merely because Plaintiff requests
additional discovery to "fully respond" to Defendants'
arguments does not mean that she did not have probable
cause at the time the complaint was filed.
D. Additional Security
Defendants additionally request that Plaintiff be required to post additional security to cover their attorneys'
fees, costs and expenses. [*15] Supplemental Rule
E(2)(b) provides the court with broad discretion to require a party to post security in an in rem or quasi in rem
action. In this case, the Court has ordered the garnished
funds to be released to Defendants' attorney in an interest
bearing trust account, thereby providing adequate security. Accordingly, this request should be denied.
E. Failure to File a Claim of Owner
Plaintiff argues that Defendants failed to file a Claim
of Owner pursuant to Supplemental Rule C(6)(b)(i). The
Court finds that Defendants were not required to file
such a claim, in that Plaintiff is not proceeding under
Rule C, which only applies to proceedings In Rem. Rather, Plaintiff is proceeding under Supplemental Rule B,
which contains no such language. Pursuant to Local Admiralty Rule B(5), there is no requirement that a statement of claim by an interested party be verified. Rather,
it provides that the answer and claim "shall describe the
nature of the claimant's interest in the property, and shall
articulate reasons why the seizure should be vacated."
Defendants complied with this in their answers.
F. Admission of Allegations of Count II
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2005 U.S. Dist. LEXIS 45878, *
Plaintiff argues that Defendants have admitted the
allegations [*16] of Count II of the original Verified
Complaint by default, thereby admitting the Rule C and
Rule B allegations. This argument has been rendered
moot by Judge Jordan's Order of October 21, 2005.
II. Jurisdiction
Plaintiff argues that maritime contract and maritime
tort jurisdiction exist in this case.
A. Maritime Contract
Plaintiff alleges in the Amended Complaint that she
"purchased a passenger ticket for the rafting excursion
and thereby entered into a maritime contract with the
Defendants." P23. In support of her position that this
confers maritime jurisdiction, Plaintiff cites Leathers v.
Blessing, 105 U.S. (15 Otto) 626, 26 L. Ed. 1192 (1882)
for the proposition that "[p]assengers and visitors who
are injured onboard a vessel by negligence imputed to
the master, owner, or operator have a cause of action in
admiralty." Resp. p. 16. This holding concerns maritime
tort jurisdiction over negligence, not contract claims. See
also J. Lauritzen A/S v. Dashwood Shipping, 65 F.3d
139 (9th Cir. 1995); Overseas Private Investment Corporation v. Industria, 920 F. Supp. 207 (D. D.C. 1996)
(court stating, in dealing with a claim of tortious interference with a maritime contract, that when looking at a
tort claim [*17] court must apply principles of whether
or not jurisdiction applies under tort theories, which requires navigability and nexus components.)
The Eleventh Circuit has held that "the nature of the
disputed contract, not the status or alignment of parties,
is the crucial inquiry in determining whether a contract is
in admiralty." Ambassador Factors v. Rhein-, Maas-, und
See-Schiffahrtskontor GMBH, 105 F.3d 1397, 1398
(11th Cir. 1997). The Court must consider "whether the
services actually performed pursuant to a contract are
maritime in nature." Id. at 1399 (quoting Exxon Corp. v.
Central Gulf Lines, Inc., 500 U.S. 603, 611-12, 111 S.
Ct. 2071, 114 L. Ed. 2d 649 (1991)). Here, the service
performed was taking Plaintiff on a white water rafting
trip.
"The mere fact that a contract has some reference to
a maritime matter is insufficient to bring it within admiralty jurisdiction." Stickelber v. Fisher, 11 F. Supp. 2d
1374, 1375 (S. D. Fla. 1998). Rather,
[t]o come within the federal court's
admiralty and maritime jurisdiction, 'such
contracts must pertain directly to and be
necessary for commerce or navigation
upon navigable waters.' * * * The test we
apply in deciding whether the subject
matter of a contract is necessary to the
[*18] operation, navigation, or management of a ship is a test of reasonableness,
not of absolute necessity.
Ambassador Factors, 105 F.3d at 1399 (quoting Nehring
v. Steamship M/V Point Vail, 901 F.2d 1044, 1048 (11th
Cir. 1990) (quoting 7A Moore's Federal Practice P
.230[2], at 2761-62 (1988)).
Even if a passenger contract on a white water raft
could satisfy the "necessary for commerce or navigation"
test, the Court finds that the waterway on which the excursion took place was not a navigable waterway, as further explained below. Accordingly, the contract in this
case was not a maritime contract.
B. Maritime Tort
"[A] party seeking to invoke federal admiralty jurisdiction... over a tort claim must satisfy conditions both of
location and of connection with maritime activity." Doe
v. Celebrity Cruises, Inc., 394 F.3d 891, 900 (11th Cir.
2004) (citing Grubart, Inc. v. Great Lakes Dredge &
Dock Co., 513 U.S. 527, 534, 115 S. Ct. 1043, 130 L.
Ed. 2d 1024 (1995)).
Plaintiff alleges that Defendants were negligent due
to: failure to warn Plaintiff of dangers of white water
rafting, failure to train employees, failure to instruct
Plaintiff, and failure to provide protective gear. Although
failure of a cruise line to warn of known dangers [*19]
can be a maritime tort (see, e.g., Carlisle v. Ulysses Line
Ltd., S.A., 475 So. 2d 248 (Fla. 3d DCA 1985) (finding
that the cruise line's failure to warn passengers aboard a
cruise to the Bahamas of dangers of criminal activity on
land was a maritime tort)), this case is distinguishable
because the alleged negligence is not that of a cruise line,
but rather, of land based tour operators, which provided
inland river rafting tours to cruise ship passengers as well
as others. The Court agrees with Defendants that there is
no maritime tort jurisdiction in such a case.
1. Navigable Waters Locality Test
In The Daniel Ball, 77 U.S. 557, 563, 19 L. Ed. 999
(1870), the Supreme Court set forth the initial test for
determining the navigability of a river for purposes maritime jurisdiction:
Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in
fact when they are used, or are susceptible
of being used, in their ordinary condition,
as highways for commerce, over which
trade and travel are or may be conducted
Page 6
2005 U.S. Dist. LEXIS 45878, *
in the customary modes of trade and travel on water.
See also The Montello, 87 U.S. 430, 441-42, 22 L. Ed.
391 (1874). 7
7
The navigable waters test is also applied
[*20] to the determination of maritime tort jurisdiction in cases involving territorial waters of
foreign countries. See, e.g., Exter Shipping, Ltd.
v. Kilakos, 310 F. Supp. 2d 1301, 1311 (N.D. Ga.
2004).
In United States v. Holt State Bank, 270 U.S. 49, 56,
46 S. Ct. 197, 70 L. Ed. 465 (1926), the Court added that
navigability does not depend on the
particular mode in which such use is or
may be had - whether by steamboats,
sailing vessels or flatboats - nor on an absence of occasional difficulties in navigation, but on the fact, if it be a fact, that the
stream in its natural and ordinary condition affords a channel for useful commerce.
Additionally, the waterway must be navigable at the
point where the injury occurs. See, e.g., Weaver v. Hollywood Casino-Aurora, Inc., 255 F.3d 379, 383 (7th Cir.
2001); LeBlanc v. Cleveland, 979 F. Supp. 142
(N.D.N.Y. 1997).
In Weaver, the court stated:
"[t]he logic of requiring commercial
activity is evident. The purpose behind the
grant of admiralty jurisdiction was the
protection and promotion of the maritime
shipping industry through the development and application, by neutral federal
courts, of a uniform and specialized body
of federal law." [citations omitted] "No
purpose is served [*21] by application of
a uniform body of federal law, on waters
devoid of trade and commerce, to regulate
the activities and resolve the disputes of
pleasure boaters ... [T]he burdening of
federal courts and the frustrating of the
purposes of state tort law would thereby
served."
255 F.3d at 383 (quoting Chapman v. United States, 575
F.2d 147, 149-50 (7th Cir. 1978) (quoting Adams v.
Montana Power Co., 528 F.2d 437, 439-41 (9th Cir.
1975)).
In George v. Beavark, Inc., 402 F.2d 977 (8th
Cir.1968), the court found significant the Supreme
Court's the use of the phrase "useful commerce," in finding that commercial float fishing did not constitute such
commerce and transportation as to characterize the
stream as navigable. Id. at 981. The fishing took place in
flat bottomed boats because "the river consisted of a
slow-moving deep holes interspersed by shallow water
and shoals and, in fact, was negotiable only by these flat
bottomed boats with a draw of from two to at most six
inches of water, depending upon the load." Id. at 979.
Although recognizing that the courts have liberalized the
rule on navigability, the court found it significant that
petitioners admitted that float fishing was the only
[*22] commerce on the river, and that there was evidence
that the Corps of Engineers had rendered an opinion that
the stream was non-navigable. Id.
The Honorable Donald L. Graham applied the analysis in In re Complaint of Bridges Enterprises, Inc., Case
No., 02-60270-CIV-GRAHAM, 2003 U.S. Dist. LEXIS
24747, 2003 WL 23305261 (S.D. Fla. Oct. 14, 2003),
which concerned an air boat accident in an area which
"can only be safely traversed by air boat or other small
water craft that are capable of maneuvering in a marsh
area which consists of saw grass and large amounts of
plant life and vegetation that does not allow a propeller
driven vessel to safely operate." 2003 U.S. Dist. LEXIS
24747, [WL] at * 1. After noting that the area was landlocked, the court found the waterway to be
non-navigable. 2003 U.S. Dist. LEXIS 24747, [WL] at
*3. 8
8 This Court recognizes that the instant case is
distinguishable in that the area in which this accident occurred was not landlocked.
In Lynch v. McFarland, 808 F. Supp. 559, 561
(W.D. Ky. 1992), the court resolved the issue "whether
travel, limited to [rental] canoeing and rafting, up the Big
South Fork River from Tennessee to Kentucky and then
into Lake Cumberland is sufficient for purposes of conferring admiralty jurisdiction." Id. at 561. The court
[*23] determined that this "limited canoe and raft traffic"
was "clearly not commercial in the traditional maritime
sense," and was "not the sort of maritime activity in
which uniform 'rules of the road' are essential." Id. at
562, 563.
Plaintiff relies on Sawczyk v. United States Coast
Guard, 499 F. Supp. 1034 (W.D.N.Y. 1980), where the
court had to determine whether "the stretch of the Niagara from just below Niagara Falls, through the lower
rapids and the Whirlpool area, to Lewiston" was naviga-
Page 7
2005 U.S. Dist. LEXIS 45878, *
ble, in connection with a suit against the Coast Guard for
failure to exercise jurisdiction over and to inspect white
water rafts. Id. at 1039. Although recognizing that the
area of the river where the subject deaths occurred was
"forbidding and dangerous," the court nevertheless found
the river navigable. First, the court found that there was
"some evidence" of "actual commercial use," as follows:
For at least a limited portion of the
lower section of the river, that nearest the
falls, the Maid-of-the-Mist has operated a
commercial venture for a number of
years. Moreover, in 1972 for a period of
two to three weeks, the Niagara River
White Tours, Inc. operated four raft trips
each day from the Maid-of-the-Mist
[*24] docks in Niagara Falls, New York,
to Lewiston, at a charge of $ 20.00 per
person. Finally, the raft venture at issue in
these cases evidences the continuing effort to exploit the river commercially.
Id. The court also found it significant that "for administrative and regulatory purposes the Corps of Engineers
and the Coast Guard consider the Niagara River navigable in its entirety," and "the New York courts, in determining the Congressional Commerce Clause powers
with respect to the Nagara River, have held that the river
is navigable in its entirety." Id. Finally, the court noted
that the testimony of two witnesses indicated that
with care, the whole stretch of the
lower Niagara is navigable except the area
near the Whirlpool. That a portion of a
river is difficult to navigate, however, or
even that it is "interrupted by occasional
natural obstructions" does not preclude a
finding of navigability in a legal sense.
Id. at 1039-40 (quoting Economy Light & Power Co. v.
United States, 256 U.S. 113, 122, 41 S. Ct. 409, 65 L.
Ed. 847 (1921)).
The characteristics of the Rio Reventazon are that
the river is shallow, approximately ten inches deep, although deeper in spots, where rafters are allowed to
swim. It has a constant [*25] gradient of fifty feet per
mile. The river contains several dams which regulate the
amount of water which flow through the river. Additionally, flash floods have been known to occur. The only
"commercial" vessels which currently use, and could
possibly navigate the river are rafts and kayaks, which,
although they are commercially operated, are used for
recreational purposes. The only other "commercial" activity is a souvenir store associated with these ventures. 9
9 This Court declines to consider the Declaration of Carlos M. Valverde, offered by Defendants, in which Mr.Valverde rendered an opinion
as to whether the Rio Reventazon is a navigable
waterway under Costa Rican law, based on the
definitions contained in "a number of statutory
rules and executive decrees in Costa Rica." The
Court finds this opinion to be irrelevant to the
current motion, in which the Court is called upon
to determine the jurisdiction of the courts of the
United States over this case. Cf. Reynolds v.
Bradley, 644 F. Supp. 42 (N.D.N.Y. 1986) (finding, with respect to determination by the Army
Corps of Engineers regarding navigability that in
the absence of additional evidence the determination should not be given [*26] conclusive
weight, that "[a]dministrative or regulatory definitions of navigability serve an entirely different
purpose than judicial definitions of navigability.")
This Court finds Sawczyk to be distinguishable. The
evidence indicates that not a portion, but the entire Rio
Reventazon is difficult to navigate, and it is not only
"interrupted by occasional natural obstructions," but has
those obstructions throughout. The Court finds that the
limited commercial activity which takes place on the
river does not qualify as sufficiently "useful commerce"
and is not the sort of activity "in which uniform 'rules of
the road' are essential," such that admiralty/maritime
jurisdiction should be invoked. Therefore, the Court
finds the Rio Reventazon to be non-navigable for jurisdictional purposes.
2. Connection with Maritime Activity
In applying this portion of the test, the court must
examine two issues: (1) "the general features of the type
of incident involved to determine whether the incident
has a potentially disruptive impact on maritime commerce"; and (2) "whether the general character of the
activity giving rise to the incident shows a substantial
relationship to traditional maritime activity." [*27] Doe,
394 F.3d at 900 (citing Grubart, 513 U.S. at 534). The
Supreme Court has stated that the risk to maritime commerce must be "more than a fanciful" one. Grubart, 513
U.S. at 538-39.
In analyzing this issue, this Court must first characterize the incident. In Sisson v. Ruby, 497 U.S. 358, 110
S. Ct. 2892, 111 L. Ed. 2d 292 (1990), which involved a
marina fire, the Court held that the potential impact on
commerce must be judged in terms of the general characteristics of the activity, not the particular facts of the
incident or the actual effect it had. Id. at 363. The Court
described the incident in question not broadly as a "fire"
nor narrowly as a "fire ... damaging nothing but pleasure
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2005 U.S. Dist. LEXIS 45878, *
boats," but rather at "an intermediate level of possible
generality" as "a fire on a vessel docked at a marina on
navigable waters." Grubart, 513 U.S. at 538-39 (quoting
Sisson, 497 U.S. at 363).
In this case, neither defendant is a cruise line which
is being sued for violating a duty of care, but rather, they
are an independent tour provider and rafting operator,
which happen to provide tours to cruise ship passengers,
among others. The Court therefore defines the incident as
an injury to a passenger on a white water river rafting
tour. [*28] 10 For purposes of this analysis only, the
Court will assume that the river is navigable.
10 Because this case is not one by a cruise
passenger against a cruise line regarding the actions of an employee, the Court finds the analysis
applied in Doe to be inapposite. 394 F.3d at 900
(finding maritime jurisdiction over a suit against
a cruise ship operator, owner, caterer and service
company to recover damages arising from an alleged sexual assault by a male crew member during a cruise, stating that "[a]s the cruise line industry is maritime commerce, a crew member's
sexual assault on a passenger obviously 'has a
potentially disruptive impact on maritime commerce."); cf. Carlisle, 475 So. 2d at 249 (discussing duty of cruise line to provide for the safety of
passengers).
In Foremost Ins. Co. v. Richardson, 457 U.S. 668,
102 S. Ct. 2654, 73 L. Ed. 2d 300 (1982), the Supreme
Court held that a maritime activity need not bear a substantial relationship to a commercial activity as long as it
had a potential impact on maritime commerce. Id. at 674.
The Court held that the collision of two pleasure boats on
navigable waters was cognizable in admiralty because it
implicated the traditional maritime concern of navigation
and could [*29] possibly disrupt maritime commerce.
Id. at 675.
Similarly, in Sinclair v. Soniform, Inc., 935 F.2d 599
(3d Cir. 1991), the plaintiff, a passenger on a commercial
vessel who suffered the "bends" after scuba diving, sued
the crew of the vessel for negligence for failure to detect
the condition and provide care for plaintiff, as well as the
manufacturer of the buoyancy compensator vest. The
court found that the accident occurred on navigable waters while the plaintiff was a passenger aboard a vessel,
at which time the crew was transporting passengers for
hire. Id. at 602. The court found that the activity of the
crew affected maritime commerce actually, in that the
vessel itself was engaged in a commercial venture, and
potentially, in that
[i]f the crew had been aware of [plaintiff's] need for immediate medical assis-
tance, they may have signaled to other
vessels in the area for assistance. The
possibility that commercial vessels would
be diverted to respond to such a distress
signal was certainly as great as the potential relied upon by the Supreme Court in
Foremost that commercial vessels would
be diverted by the collision of two pleasure crafts.
Id.; but see Complaint of Bridges Enterprises, 2003 U.S.
Dist. LEXIS 24747, 2003 WL 23305261, at *4 [*30]
(finding that "even if access to other bodies of water
were possible, the fact that the waterway can only be
used for airboat tours is insufficient to establish the requisite connection with interstate commerce" such as to
allow maritime jurisdiction).
This Court finds that if the white water rafting activity in the Rio Reventazon is considered to be sufficient
commerce to cause the river to be considered navigable,
the potential impact on maritime commerce which would
be caused by a passenger being thrown from the raft
would similar to Sinclair.
The Court further finds that the general character of
the activity giving rise to the incident does "show a substantial relationship to traditional maritime activity."
Grubart, 513 U.S. at 539. In Reneau v. Shoreline Marine
Sightseeing Co., No. 84 C 10622, 1986 U.S. Dist. LEXIS
30275, 1986 WL 1589 (N.E. Ill. Jan. 17, 1986), the court
found maritime jurisdiction over a slip and fall incident
on a sightseeing boat ride on Lake Michigan, stating that
"[c]arrying passengers for hire is undoubtedly a traditional maritime activity, and suits in tort for personal
injuries to passengers are clearly included in admiralty
jurisdiction." 1986 U.S. Dist. LEXIS 30275, [WL] at *1
(quoting Duluth Superior Excursions, Inc. v. Makela,
623 F.2d 1251, 1253 (8th Cir. 1980) [*31] (finding
maritime jurisdiction where the defendants' alleged negligence "involves their performance of maritime duties in
caring for their passengers")).
Additionally, "[n]avigation of boats within navigable
waters clearly falls within the substantial relationship."
Grubart, 513 U.S. at 539-40 (citing Foremost, 457 U.S.
at 675). "The duties owed by vessel owners to their passengers have long been found a traditional maritime
concern." Quinn v. St. Charles Gaming Co., Inc., 815 So.
2d 963, 968 (La. App. 3d Cir. 2002) (finding that provision of alcohol to passengers on board a vessel without
adequate supervision met both prongs of nexus test.)
In Sinclair, the court further found that the crew was
engaged in the "traditional maritime activity of transporting passengers for compensation" and that
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2005 U.S. Dist. LEXIS 45878, *
[t]he fact that [plaintiff] was engaged
in this activity for recreational reasons
does not change its maritime character. ...
The injuries that [plaintiff] attributes to
the crew relate to their duty to provide
adequate care to an injured passenger,
which is an integral part of the carriage of
passengers. The standards defining the
duty of care owed to passengers relate to a
traditional goal of admiralty [*32] law,
the provision of a uniform body of law to
provide remedy for those injured while
traveling on navigable waters.
935 F.2d at 602-03.
Finding an insufficient connection with traditional
maritime activity, the court in Beiswenger Enterprises
Corp. v. Carletta, 779 F. Supp. 160, 163 (M.D. Fla.
1991) a parasailing case, stated that "although involvement of vessels strongly supports the application of admiralty law, it is not dispositive." The court noted that
the negligence allegations directly related to the use and
handling of the parasail and riders subsequent to their
descent, and the injuries were not claimed to have occurred while plaintiffs were being towed or still attached
to the vessel, but after the release of the tow line. Id. The
court also found that the injuries, which were caused
when one of the plaintiffs was dragged on land, and the
other was caused by the plunge into and removal from
the water were not "commonly maritime." Id.; see also
Hurley v. Larry's Water Ski School, 762 F.2d 925 (11th
Cir. 1985) (water skier suing for injuries during ski lessons); Gulf Oil Corp. v. Griffith, 330 F.2d 729 (5th Cir.
1964) (action for wrongful death of skiers electrocuted
by electrical [*33] current); Reed v. United States, 604
F. Supp. 1253 (N.D. Ind. 1984) (diving off of a boat into
water not sufficiently related to traditional maritime activity).
In this case, the activity was similar to that in
Beinsweiger in that it was a commercial recreational
activity, but is distinguishable in that the accident occurred while Plaintiff was actually riding in the boat as a
passenger. Based on the other case law cited herein, the
Court finds that if the Rio Reventazon were a navigable
river, there is a sufficient relationship to traditional maritime activity, as well as the requisite effect on maritime
commerce, such that maritime tort jurisdiction would
exist.
RECOMMENDATION
The Court having found that there is no maritime
contract or maritime tort jurisdiction over the instant
case, and being otherwise fully advised in the premises,
the Court respectfully recommends that Defendants'
Emergency Motion to Quash and/or Vacate Plaintiff's
Writ of Attachment and Garnishment Against Defendants & Request for Rule E(4)(f) Hearing and Defendants'
Supplemental Motion to Quash and/or Vacate Plaintiff's
Writ of Attachment and Garnishment and Request for
Adequate Security be GRANTED and that the [*34]
writs be quashed as to both Defendants.
DONE AND ORDERED this 16th day of November, 2005 at Miami, Florida.
/s/ Stephen T. Brown
STEPHEN T. BROWN
U.S. MAGISTRATE JUDGE