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[DO NOT PUBLISH]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. Case: 16-16889 Date Filed: 12/13/2017 Page: 2 of 8
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.
2 Case: 16-16889 Date Filed: 12/13/2017 Page: 3 of 8
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.)
3 Case: 16-16889 Date Filed: 12/13/2017 Page: 4 of 8
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
4 Case: 16-16889 Date Filed: 12/13/2017 Page: 5 of 8
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
5 Case: 16-16889 Date Filed: 12/13/2017 Page: 6 of 8
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
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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. Case: 16-16889 Date Filed: 12/13/2017 Page: 2 of 8
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.
2 Case: 16-16889 Date Filed: 12/13/2017 Page: 3 of 8
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.)
3 Case: 16-16889 Date Filed: 12/13/2017 Page: 4 of 8
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
4 Case: 16-16889 Date Filed: 12/13/2017 Page: 5 of 8
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
5 Case: 16-16889 Date Filed: 12/13/2017 Page: 6 of 8
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
6 Case: 16-16889 Date Filed: 12/13/2017 Page: 7 of 8
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
7 Case: 16-16889 Date Filed: 12/13/2017 Page: 8 of 8
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.