Brent Wolf v. Celebrity Cruises, Inc.

Case: 15-12341 Date Filed: 03/28/2017 Page: 1 of 25

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 15-12341
________________________

D.C. Docket No. 1:13-cv-23697-MGC

BRENT WOLF,

Plaintiff - Appellant,

versus

CELEBRITY CRUISES, INC.,
d.b.a. Celebrity Cruises,
THE ORIGINAL CANOPY TOUR,

Defendants - Appellees.

________________________

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

(March 28, 2017)
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Before JORDAN, ROSENBAUM, and SILER, * Circuit Judges.

PER CURIAM:

Brent Wolf sued OCT Enterprises, Ltd., doing business as The Original

Canopy Tour, and Celebrity Cruises, Inc. after being injured during an offshore

zip-lining excursion. He appeals two district court orders—one dismissing the

claims against OCT for lack of personal jurisdiction, and the other granting

summary judgment in favor of Celebrity. After a thorough review of the parties’

briefs, the record, and with the benefit of oral argument, we affirm both orders.

I

In October of 2012, Mr. Wolf, his wife, Patricia Cannon, and a friend of

theirs, Beverly Falor, set sail as passengers aboard the Celebrity Infinity.

Ms. Cannon purchased cruise tickets for herself and Mr. Wolf through a travel

agent. Mr. Wolf received a cruise ticket contract which stated that “providers,

owners[,] and operators” of shore excursions and tours “are independent operators

and are not acting as [Celebrity’s] agents or representatives.” D.E. 65-1 at 2.

Mr. Wolf and Ms. Falor purchased tickets at the shore excursion desk

onboard the Infinity to participate in a zip-lining activity on a private nature reserve

in Costa Rica on October 15, 2012. Those tickets stated again that providers of

shore excursions and tours “are independent contractors and are not acting as

*
The Honorable Eugene Siler, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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[Celebrity’s] agents or representatives.” D.E. 65-4. Mr. Wolf signed a liability

waiver provided by OCT, which stated that the zip-line excursion was owned and

operated by OCT. See D.E. 65-5.

The zip-lining tour consisted of ten observation platforms and nine

horizontal traverses. On one of the traverses, Mr. Wolf failed to stop or otherwise

slow down near the end of the zip-line and slammed into a platform. He suffered

severe injuries, including an avulsion of his calf muscle on his left leg. Mr. Wolf

asserts that he had spun backwards during the traverse and could not see the

platform as he approached it. He maintains that he was unaware of how to turn

himself around because OCT personnel had not instructed him on how to do so. He

also claims that he was unable to slow down because the leather gloves provided

by OCT were not thick enough, and that a bumper was missing from the landing

platform he crashed into.

In his complaint, Mr. Wolf asserted negligence claims against OCT and

claims against Celebrity under theories of direct and vicarious liability. He alleged

that Celebrity was negligent in failing to warn him of a dangerous condition and

negligent in hiring and retaining OCT. He also claimed that Celebrity was liable

for OCT’s alleged negligence under theories of actual agency, apparent agency,

and joint venture. He further asserted that he was the intended beneficiary of the

contract between Celebrity and OCT, and that Celebrity had breached its

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contractual duties to him. Following a hearing, the district court dismissed OCT

from the lawsuit for lack of personal jurisdiction. The district court then granted

summary judgment in favor of Celebrity on all of Mr. Wolf’s remaining claims.

II

We review de novo the district court’s dismissal of OCT for lack of personal

jurisdiction. See Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447

F.3d 1357, 1360 (11th Cir. 2006). A plaintiff has the burden of establishing a

prima facie case of jurisdiction over a non-resident defendant, meaning he must

present enough evidence to withstand a motion for directed verdict. See Meier ex

rel. Meier v. Sun Int’l Hotels, Ltd., 288 F.3d 1264, 1268–69 (11th Cir. 2002).

“Where, as here, the defendant submits affidavits to the contrary, the burden

traditionally shifts back to the plaintiff to produce evidence supporting jurisdiction

unless those affidavits contain only conclusory assertions that the defendant is not

subject to jurisdiction.” Id. at 1269 (citations omitted). “Where the plaintiff’s

complaint and supporting evidence conflict with the defendant’s affidavits, the

court must construe all reasonable inferences in favor of the plaintiff.” Id.

(citations omitted).

“A federal district court sitting in diversity may exercise personal

jurisdiction to the extent authorized by the law of the state in which it sits and to

the extent allowed under the Constitution.” Id. (citations omitted). “A defendant

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can be subject to personal jurisdiction under Florida’s long-arm statute in two

ways: first, [Fla. Stat. §] 48.193(1)(a) lists acts that subject a defendant to specific

personal jurisdiction—that is, jurisdiction over suits that arise out of or relate to a

defendant’s contacts with Florida,” and, second, “[Fla. Stat. §] 48.193(2) provides

that Florida courts may exercise general personal jurisdiction—that is, jurisdiction

over any claims against a defendant, whether or not they involve the defendant’s

activities in Florida—if the defendant engages in ‘substantial and not isolated

activity in Florida.’” Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201, 1203–

04 (11th Cir. 2015) (emphasis in original).

Mr. Wolf asserted that OCT is subject to personal jurisdiction under both the

general and specific jurisdiction provisions of the Florida long-arm statute, or,

alternatively, under Federal Rule of Civil Procedure 4(k)(2). The complaint alleged

that the similarly named The Original Canopy Tour-USA, L.L.C.—a company

with the same officers as OCT and whose website referenced OCT, and

vice-versa—is listed with the Florida Department of State with a principal place of

business in Miami, Florida; that OCT is carrying out business and/or business

ventures in Florida; that OCT marketed its shore excursions through Celebrity for

sale to passengers boarding its ships in Fort Lauderdale; and that OCT entered into

contracts in Miami with Celebrity and other carriers, in which it consented to

personal jurisdiction and venue in the Southern District of Florida and agreed to

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indemnify Celebrity. Mr. Wolf noted that he was not in possession of the contract

between OCT and Celebrity and therefore could not attach a copy of it to his

complaint.

OCT moved to dismiss Mr. Wolf’s complaint for improper venue and lack

of personal jurisdiction and to quash service of process. In support, OCT attached

the declaration of Richard Graham, a shareholder and vice-president of OCT.

According to Mr. Graham, The Original Canopy Tour-USA, L.L.C. is an entirely

independent and separate entity; OCT never owned or used the P.O. box mailing

address in Miami, Florida identified on the website, www.canopytour.com, which

is operated by an independent travel agency; and OCT never maintained any place

of business in Florida or a branch office in Florida or the United States.

Mr. Graham stated that OCT shareholders pay for a service at a mail

holding/forwarding facility in Miami to avoid unreliable mail service in

Costa Rica. He acknowledged that OCT listed the facility’s Miami address in its

Tour Operator Agreement with Celebrity and in other contracts with other cruise

lines, but maintained that OCT communicates almost exclusively by email and has

received almost no mail at the Miami facility, nor has it ever conducted business or

maintained employees or personnel there.

Mr. Wolf attached several documents to his response, including the Tour

Operator Agreement, listing OCT as a limited liability company with offices in

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Miami, Florida; The Original Canopy Tour-USA, L.L.C.’s Florida Department of

State registration, articles of incorporation, and 2011 annual report; and a

screenshot from www.canopytour.com, listing a P.O. box in Miami.

The district court held a non-evidentiary hearing on OCT’s motion to

dismiss. After hearing from the parties, it granted the motion.

A

We begin with general jurisdiction. Under Florida’s long-arm statute, “[a]

defendant who is engaged in substantial and not isolated activity within this state,

whether such activity is wholly interstate, instrastate, or otherwise, is subject to the

jurisdiction of the courts of this state, whether or not the claim arises from that

activity.” Fla. Stat. § 48.193(2). “The reach of this provision extends to the limits

on personal jurisdiction imposed by the Due Process Clause of the Fourteenth

Amendment” and, therefore, to determine general jurisdiction, “we need only

determine whether the district court’s exercise of jurisdiction over [OCT] would

exceed constitutional bounds.” Fraser v. Smith, 594 F.3d 842, 846 (11th Cir.

2010).

“A court may assert general jurisdiction over foreign . . . corporations . . .

when their affiliations with the State are so ‘continuous and systematic’ as to

render them essentially at home in the foreign State.” Goodyear Dunlop Tires

Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). “[O]nly a limited set of

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affiliations with a forum will render a defendant amenable to all-purpose

jurisdiction there’”—indeed, “[t]he paradigm all-purpose forums for general

jurisdiction are a corporation’s place of incorporation and principal place of

business.” Daimler AG v. Bauman, 134 S. Ct. 746, 760, 761 n.19 (2014). Only in

the “exceptional case” may “a corporation’s operations in a forum other than its

formal place of incorporation or principal place of business . . . be so substantial

and of such a nature as to render the corporation at home in that State.” Id. at 761

n.19.

Mr. Wolf’s jurisdictional allegations and evidentiary submissions are

substantially similar to those we concluded were insufficient in Carmouche. In that

case, we held that a shore excursion operator’s connections with Florida—

including a Florida bank account, two Florida addresses (one of which was a P.O.

box), purchasing insurance from Florida companies, filing a financing statement

with the Florida Secretary of State, joining a non-profit trade organization based in

Florida, and consenting to jurisdiction in the Southern District of Florida for all

lawsuits arising out of its agreements with a cruise line—were not so “continuous

and systematic as to render it essentially at home there.” 789 F.3d at 1204 (internal

quotation marks and alterations omitted). Similarly, in Fraser, we concluded that a

foreign tour operator’s aggregate contacts, including a website accessible from

Florida, advertisements in publications with circulation in the United States, the

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procurement of insurance through an agent in Florida, the purchase of about half of

its boats in Florida, and employee trainings and promotions in Florida, did not

confer general jurisdiction in Florida. See 594 F.3d at 847.

To the extent Mr. Wolf asserts that the Miami address listed on the Tour

Operator Agreement would establish general jurisdiction, OCT sufficiently

rebutted this contention through Mr. Graham’s declaration. Mr. Graham explained

that this address is merely a mail-forwarding facility used because of the unreliable

mail system in Costa Rica. In response, Mr. Wolf attached a number of documents,

including the Tour Operator Agreement itself. These documents, however, do not

conflict with or rebut Mr. Graham’s statements.

Mr. Wolf requested jurisdictional discovery in order to adequately rebut the

evidence presented by OCT. The right to jurisdictional discovery is a qualified one,

available “when a court’s jurisdiction is genuinely in dispute.” Eaton v. Dorchester

Dev., Inc., 692 F.2d 727, 730 (11th Cir. 1982). Such discovery requests should not

serve as fishing expeditions, and, as such, are appropriate only when “a party

demonstrates that it can supplement its jurisdictional allegations through

discovery.” Trintec Indus., Inc. v. Pedre Promotional Prod., Inc., 395 F.3d 1275,

1283 (Fed. Cir. 2005). Mr. Wolf’s general request for jurisdictional discovery—

made over four months after filing his complaint and buried within his response to

OCT’s motion to dismiss—did not specify what information he sought or how that

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information would bolster his allegations. The district court therefore did not

improperly deny jurisdictional discovery. Compare United Techs. Corp. v. Mazer,

556 F.3d 1260, 1280–81 (11th Cir. 2009) (affirming district court’s dismissal for

lack of personal jurisdiction before discovery was taken where plaintiff never

formally moved for jurisdictional discovery but included the request as a proposed

alternative in response to a motion to dismiss, did not serve notices for depositions,

and did not take formal action to compel discovery), and Posner v. Essex Ins. Co.,

178 F.3d 1209, 1214 (11th Cir. 1999) (affirming district court’s denial of

jurisdictional discovery when no efforts had been made in the eight months

between the filing of the complaint and the time it was dismissed, plaintiffs’ only

allusion to discovery was on the first page of their response to the motion to

dismiss, and plaintiffs “failed to specify what they thought could or should be

discovered”), with Eaton, 692 F.2d at 730–31 (reversing district court’s dismissal

for lack of personal jurisdiction as premature where plaintiff had served subpoenas

duces tecum identifying specific materials to support the allegations, but plaintiff

had not yet received the discovery). 1

B

1
To the extent that Mr. Wolf suggests that The Original Canopy Tour-USA, L.L.C, as a
subsidiary or otherwise related entity, would establish general jurisdiction, he has made no
argument as to how this connection is “‘so substantial’ as to make it one of the ‘exceptional’
cases in which a foreign corporation is ‘at home’ in a forum other than its place of incorporation
or principal place of business.” Carmouche, 789 F.3d at 1204 (quoting Daimler, 134 S. Ct. at
761 n.19). Nor has he specified what jurisdictional discovery he seeks with regard to this entity
or how it might support such a finding.
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“[S]pecific personal jurisdiction authorizes jurisdiction over causes of action

arising from or related to the defendant’s actions within Florida and concerns a

nonresident defendant’s contacts with Florida only as those contacts related to the

plaintiff’s cause of action.” Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d

1339, 1352 (11th Cir. 2013). See also Am. Overseas Marine Corp. v. Patterson,

632 So. 2d 1124, 1127 (Fla. 1st DCA 1994) (specific jurisdiction “is often referred

to as ‘connexity jurisdiction’”). The Florida long-arm statute provides, in relevant

part, that a defendant “submits himself or herself . . . to the jurisdiction of the

courts of this state for any cause of action arising from” the defendant’s acts of

“[o]perating, conducting, engaging in, or carrying on a business or business

venture in this state or having an office or agency in this state.” Fla. Stat.

§ 48.193(1)(a).

Mr. Wolf does not allege that OCT committed a tortious act in Florida and

cannot assert specific jurisdiction based on any tort claims related to the incident

that occurred in Costa Rica. See id. at § 48.193(1)(b). He instead argues that

specific jurisdiction is established through language in the Tour Operator

Agreement executed in Miami, Florida, between OCT and Celebrity, of which he

and other passengers are purportedly direct third-party beneficiaries. As discussed

below, however, Mr. Wolf’s claim for breach of contract based on a third-party

beneficiary theory fails because the language of the Agreement expressly belies

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any intent to benefit a third party. Because the alleged tortious activity occurred

outside of Florida, and there is no connexity between the Agreement and

Mr. Wolf’s cause of action, the district court did not err in determining it lacked

specific personal jurisdiction over OCT.

C

Where “a defendant is not subject to the jurisdiction of the courts of general

jurisdiction of any one state,” Rule 4(k)(2) “permits a court to aggregate a foreign

defendant’s nationwide contacts to allow for service of process provided that two

conditions are met: (1) plaintiff’s claims must ‘arise under federal law;’ and, (2)

the exercise of jurisdiction must be ‘consistent with the Constitution and laws of

the United States.’” Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th

Cir. 2000) (quoting Fed. R. Civ. P. 4(k)(2)).

Mr. Wolf has not addressed the due process prong of this analysis in his

briefing, nor has he specifically alleged any contacts with the United States beyond

those asserted under Florida’s long-arm statute. See Compl., D.E. 1, at ¶¶ 11–12

(conclusorily alleging that OCT carried out business in “the State of Florida and/or

United States as a whole” and entered into contracts in Miami with Celebrity and

“other carriers as well as other entities within Florida and the United States”).

Accordingly, our analysis is the same as above with respect to general jurisdiction.

Mr. Wolf, without more, has not established jurisdiction under Rule 4(k)(2).

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III

Mr. Wolf also appeals the district court’s grant of summary judgment on his

negligence claims against Celebrity for failure to warn of a dangerous condition

and negligent hiring and retention of OCT. We discuss each claim in turn.

A

Mr. Wolf first contends that Celebrity owed him a duty to exercise

reasonable care to warn him of any dangerous conditions which may have existed

with respect to the shore excursion. We hold that, on this record, Celebrity had no

notice of a dangerous condition and, absent notice, held no such duty.

“In analyzing a maritime tort case, we rely on general principles of

negligence law.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir.

2012) (internal quotation marks and citation omitted). To establish negligence, a

plaintiff must show that “(1) the defendant had a duty to protect the plaintiff from a

particular injury; (2) the defendant breached that duty; (3) the breach actually and

proximately caused the plaintiff’s injury; and (4) the plaintiff suffered actual

harm.” Id.

The existence of a duty is a question of law. See Virgilio v. Ryland Grp.,

Inc., 680 F.3d 1329, 1339 (11th Cir. 2012). A shipowner generally owes to its

passengers a duty to exercise “reasonable care under the circumstances.” See

Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1233 (11th Cir. 2014).

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This includes “a duty to warn of known dangers beyond the point of debarkation in

places where passengers are invited or reasonably expected to visit.” Chaparro,

693 F.3d at 1336 (citing Carlisle v. Ulysses Line Ltd., S.A., 475 So. 2d 248, 251

(Fla. 3d DCA 1985)). But the duty to warn “encompasses only dangers of which

the carrier knows, or reasonably should have known.” Carlisle, 475 So. 2d at 251.

Accordingly, as a prerequisite to imposing liability, a carrier must have had “actual

or constructive notice of the risk-creating condition.” Keefe v. Bahama Cruise

Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989).

On this record, we cannot conclude that Celebrity had actual or constructive

notice of any dangerous condition. We do not mean to suggest that a cruise line

may shirk its responsibility of reasonable care to its passengers, but here the record

demonstrates that Celebrity conducted its due diligence at the front end and had no

reason to question the continued safety of OCT’s zip-line operation. As further

discussed below, there is undisputed evidence that OCT is generally regarded as a

market leader in canopy tours, and Celebrity selected it for this reason. The record

reveals no evidence of any subsequent incidents or problems over the years prior to

the incident that would have placed Celebrity on notice of any dangerous

conditions that may have existed and may have required some action on its part. 2

2
We note that, one week prior to Mr. Wolf’s injury, a Celebrity employee, Elizabeth Acevedo,
participated in, and conducted an evaluation of, OCT’s zip-lining excursion. Celebrity maintains
that her report contained no allegations or concerns regarding dangerous conditions on the
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We are surprised that, over a decade’s span, Celebrity received no incident

reports—even those occurring through no negligence at all—or passenger safety

concerns from OCT for an activity that involves participants of all ages, sizes, and

fitness and experience levels whizzing through the air on high speed traverses.

Skepticism, however, is not a substitute for evidence. This record does not contain

any affirmative evidence of safety concerns or reports of injuries caused by safety

concerns. To impose a duty under the circumstances would be akin to imposing

vicarious strict liability upon Celebrity.

Mr. Wolf also argues that Celebrity had a duty to conduct regular safety

inspections of OCT’s operation and therefore should have known of any dangerous

conditions in its facilities or services. He relies upon the report of his expert,

Mr. Timothy Kempfe, which states that standards developed by the Association for

Challenge Course Technology—of which Mr. Kempfe is a founding member and

current board trustee—require annual inspections by a qualified professional

inspector. See D.E. 90-2 at 19–25. Mr. Wolf maintains that Mr. Kempfe provided

“significant details” concerning industry standards developed by the ACCT, and

that, by failing to conduct such inspections, Celebrity fell below these standards.

excursion. Mr. Wolf suggests that Ms. Acevedo’s form merely addressed hospitality—not
safety—issues, and that she was not a qualified safety inspector. Mr. Wolf, however, did not
depose Ms. Acevedo to inquire into the specifics of her evaluation. His mere speculation is not
sufficient to raise a genuine issue of material fact, and, as discussed, he has not established that,
absent notice, Celebrity was required to conduct safety inspections.
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We have held that “evidence of custom within a particular industry, group,

or organization is admissible as bearing on the standard of care in determining

negligence” and that “[c]ompliance or noncompliance with such custom, though

not conclusive on the issue of negligence, is one of the factors the trier of fact may

consider in applying the standard of care.” Sorrels v. NCL (Bahamas) Ltd., 796

F.3d 1275, 1282 (11th Cir. 2015) (citation omitted). Mr. Wolf, however, has failed

to present sufficient evidence that the ACCT regulations reflect industry custom or

standards.

Mr. Kempfe described the ACCT as “an international organization that

serves the zip line challenge course community, writing standards and offering

professional workshops throughout the world.” Kempfe Dep., D.E. 90-2 at 36.

Mr. Kempfe also testified that the ACCT is not a governmental organization, and

that there is no statute or act that requires companies to follow regulations issued

by the ACCT. See id. When asked if the ACCT’s regulations are legally binding on

a company like OCT, he responded that “if we’re talking about the standard of care

in the industry, they do have obligations.” Id. Beyond these broad statements,

Mr. Kempfe offered in his report that “[a]t least one other cruise line mandates an

external professional inspection by an ACCT approved Professional Vendor

Member.” Id. at 25. But he does not provide further details, such as the timing or

frequency of such an inspection, or if the inspection is conducted pursuant to the

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ACCT’s regulations. These conclusory statements fail to demonstrate industry

standards against which a trier of fact could consider in determining whether

Celebrity breached a duty to its passengers by not conducting annual inspections,

or inspections by an outside professional. Use of the ACCT standard by one cruise

line does not demonstrate an industry custom. Cf. Muncie Aviation Corp. v. Party

Doll Fleet, Inc., 519 F.2d 1178, 1180–81 (5th Cir. 1975) (affirming the

introduction of F.A.A. circulars as evidence of practices customarily followed by

pilots because “[b]oth the defendant’s and plaintiff’s pilots testified to their general

familiarity with the F.A.A. advisory materials, and other witnesses testified that the

landing procedures recommended in the circulars were generally followed”). Thus,

on this record, the district court correctly granted summary judgment as to

Mr. Wolf’s failure to warn claim. 3

B

Mr. Wolf’s contention that Celebrity was negligent in its hiring and retention

of OCT as a shore excursion operator similarly fails. Under Florida law, “an

employer is subject to liability for physical harm to third persons caused by [its]

3
Mr. Wolf also contends that Smolnikar v. Royal Caribbean Cruises, Ltd., 787 F. Supp. 2d 1308
(S.D. Fla. 2001), provides “a base-line persuasive opinion that other cruise lines are employing
an industry standard for this type of high risk activity[.]” Br. for Appellant at 53. That the case
broadly discusses Royal Caribbean’s evidence that an offshore excursion tour was regularly
inspected by outside professionals is not dispositive here. See Smolnikar, 787 F. Supp. 2d at
1314. Mr. Wolf has not submitted any record evidence related to those inspections, and
Smolnikar did not hold that a cruise line has an affirmative duty to inspect a tour operation
absent any indication of a problem. See id. at 1323–24.
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failure to exercise reasonable care to employ a competent and careful contractor

(a) to do work which will involve a risk of physical harm unless it is skillfully and

carefully done, or (b) to perform any duty which the employer owes to third

persons.” Davies v. Commercial Metals Co., 46 So. 3d 71, 73 (Fla. 5th DCA 2010)

(citation omitted). A plaintiff must generally establish “(1) the contractor was

incompetent or unfit to perform the work; (2) the employer knew or reasonably

should have known of the particular incompetence or unfitness; and (3) the

incompetence or unfitness was a proximate cause of the plaintiff’s injury.” Id. at 74

(citation omitted).

Celebrity presented evidence regarding its selection process and reasons for

selecting OCT. Specifically, Celebrity’s corporate representative, Amanda

Campos, testified that in selecting tour operators, Celebrity accepts bids from

different tour companies and selects the company by visiting the facility and

analyzing different factors, such as safety ratings and price. See Campos Dep.,

D.E. 65-6, at 13–14. She further explained the multiple reasons Celebrity selected

OCT, including that OCT had “basically wr[itten] the book on zip lining” because

they were the first to do it, they had been operating for three years beforehand, and

they generally have a reputation of being safe. Id. at 15–16. She also detailed that

Celebrity has been using OCT since 2001, that Celebrity has had no serious safety

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concerns with OCT, and that representatives from either Celebrity or Royal

Caribbean have made visits to the excursion. Id.

The record is devoid of evidence demonstrating that OCT was incompetent

or unfit to perform the shore excursion—much less that Celebrity knew or should

have known of any deficiencies. Mr. Wolf again relies upon Mr. Kempfe’s

testimony regarding the ACCT standards, as well as Smolnikar, to argue that

Celebrity did not adequately conduct inspections. Again, however, these sources

are insufficient to establish a standard of care against which a jury could measure

Celebrity’s actions.

Given the evidence regarding Celebrity’s hiring process, including

Celebrity’s reliance on OCT’s positive reputation and its own evaluations of the

facilities, and the dearth of evidence indicating any prior incidents or safety

concerns, we cannot say, on this record, that a reasonable jury could conclude that

Celebrity was negligent in its hiring or continued retention of OCT as an excursion

operator. As a result, the district court correctly granted summary judgment in

favor of Celebrity on this claim.

IV

Mr. Wolf contends that Celebrity is liable for OCT’s alleged negligence

based on theories of actual and apparent agency and joint venture, as well as for

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breach of a third-party beneficiary contract. The district court correctly granted

summary judgment in Celebrity’s favor on those claims.

A

“Federal maritime law embraces the principles of agency.” Archer v.

Trans/Am. Servs., Ltd., 834 F.2d 1570, 1573 (11th Cir. 1998). An agency

relationship requires “(1) the principal to acknowledge that the agent will act for it;

(2) the agent to manifest an acceptance of the undertaking; and (3) control by the

principal over the actions of the agent.” Franza v. Royal Caribbean Cruises, Ltd.,

772 F.3d 1225, 1236 (11th Cir. 2014) (citation omitted). Mr. Wolf has not set forth

sufficient evidence to create a triable issue on the existence of an actual agency

relationship between OCT and Celebrity.

The central question here is whether Celebrity exercised a degree of control

over OCT sufficient to create an agency relationship. To determine whether the

principal exercised control over the agent, we consider several probative factors,

including:

(1) direct evidence of the principal’s right to or actual exercise of
control; (2) the method of payment for an agent’s services, whether by
time or by the job; (3) whether or not the equipment necessary to
perform the work is furnished by the principal; and (4) whether the
principal had the right to fire the agent.

Id. at 1236–37 (citation omitted).

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Although generally “the existence of an agency relationship is a question of

fact under general maritime law[,]” id. at 1235–36, Mr. Wolf has provided little

direct or circumstantial evidence of Celebrity’s right to exercise control over OCT.

Indeed, the Tour Operator Agreement expressly provided that “the control and

responsibility of the Shore Excursion remains exclusively with [OCT],” and there

is no evidence that Celebrity had the right to or did participate in OCT’s

day-to-day operations. Further, although Celebrity billed the passengers, it appears

that it paid OCT “by the job,” rather than “by time” (which “normally suggests an

agency relationship”). Id. at 1237. Additionally, there is no evidence that Celebrity

furnished OCT with equipment necessary to perform its work.

Celebrity did retain the right to terminate its agreement with OCT “for

convenience.” On balance, however, the evidence does not allow a reasonable jury

to conclude that Celebrity exercised a degree of control over OCT so as to create

an agency relationship. See Johnson v. Unique Vacations, Inc., 498 F. App’x 892,

895 (11th Cir. 2012) (determining there was insufficient evidence to demonstrate

agency relationship between resort and excursion company because the resort did

not dictate how the excursion owner was to operate its tours and the excursion

owner was wholly responsible for the maintenance of its equipment, the hiring and

supervision its employees, and the procurement of its own licensing and

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insurance). Accordingly, the district court correctly granted summary judgment on

that theory.

B

Mr. Wolf’s theory of apparent agency also fails. Admiralty law allows

“plaintiffs to sue shipowners based on the apparent authority of third-parties” in

cases involving maritime torts. Franza, 772 F.2d at 1250–51. “Unlike actual

agency, the doctrine of apparent agency allows a plaintiff to sue a principal for the

misconduct of an independent contractor who only reasonably appeared to be an

agent of the principal.” Id. at 1249. To succeed on a claim of apparent agency, a

plaintiff must establish “first, a representation by the principal to the plaintiff,

which, second, causes the plaintiff reasonably to believe that the alleged agent is

authorized to act for the principal’s benefit, and which, third, induces the plaintiff’s

detrimental, justifiable reliance upon the appearance of agency.” Id. at 1252.

In support of his contention that Celebrity made representations that

suggested an agency relationship, Mr. Wolf cites to evidence that Celebrity

promoted, marketed, and advertised the excursion. He also relies on his own

testimony, as well as that of Ms. Falor and a fellow passenger, Timothy Gilbert,

who say they believed the excursion was endorsed or approved by Celebrity.

Mr. Wolf’s purported belief that OCT was an agent of Celebrity, however, is

not reasonable in light of the two separate disclaimers he received—the Cruise

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Ticket Contract and the Shore Excursion Ticket—which expressly stated that

excursion operators were independent contractors and not agents or representatives

of Celebrity, as well as the OCT Liability Waiver, which reiterated that the zip-line

excursion was owned and operated by OCT. See D.E. 65-1 at 2; D.E. 65-4; D.E.

65-5. Cf. Bethany Pharmacal Co. v. QVC, Inc., 241 F.3d 854, 860 (7th Cir. 2001)

(concluding that vendor’s apparent agency claim failed because, although company

permitted an individual to work with vendors by providing logistical information,

that relationship could not reasonably be interpreted as including authority to

contract on company’s behalf given company’s repeated disclaimers regarding the

need for a purchase order). Accordingly, there is no dispute of material fact as to

whether there was an apparent agency relationship between Celebrity and OCT and

the district court correctly granted summary judgment as to that issue.

C

Nor has Mr. Wolf established that that Celebrity is liable for OCT’s alleged

negligence under a theory of joint venture. In a contract creating a joint venture,

there must be “(1) a community of interest in the performance of the common

purpose[;] (2) joint control or right of control[;] (3) a joint proprietary interest in

the subject matter[;] (4) a right to share in the profits[;] and (5) a duty to share in

any losses which may be sustained.” Browning v. Peyton, 918 F.2d 1516, 1520

(11th Cir. 1990) (citation omitted).

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The Tour Operator Agreement does not create a joint right of control

because it vested control exclusively in OCT. Further, Mr. Wolf has not provided

any evidence that Celebrity and OCT had a joint proprietary interest in the shore

excursions, or that they shared in the profits, or that they had a duty to share in any

losses. Accordingly, Mr. Wolf’s joint venture theory does not survive summary

judgment.

D

Finally, Mr. Wolf asserts that the district court erred in granting summary

judgment as to his claim that Celebrity is liable for breach of a third-party

beneficiary contract because Mr. Wolf was the intended beneficiary of the Tour

Operator Agreement between Celebrity and OCT. “[A] third party is an intended

beneficiary of a contract between two other parties only if a direct and primary

object of the contracting parties was to confer a benefit on the third party.”

Bochese v. Town of Ponce Inlet, 405 F.3d 964, 982 (11th Cir. 2005). The Tour

Operator Agreement does not express an intent to benefit any third party—instead,

it expressly states the contrary: “this Agreement shall not be deemed to provide

third persons with any remedy, claim, right, or action or other right.” D.E. 65-8

at 3. The district court’s grant of summary judgment as to Mr. Wolf’s claim for

breach of a third-party beneficiary contract is therefore affirmed.

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V

For the foregoing reasons, the district court’s orders dismissing the claims

against OCT for lack of personal jurisdiction and granting summary judgment in

favor of Celebrity are affirmed.

AFFIRMED.

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