3d DCA Watch -- A Perfectly Split Decision.

I believe it's time we reclaimed the bunker by the highway for its rightful inhabitants -- the Resplendently Robed Ones, the swillers-of-the-free-coffee, the ones who make written and sometimes coherent utterances, yes it's a glorious pre-Turkey Day 3d DCA Watch:

Barry v. Carnival:

Wow, here's the backdrop:

Subsequent to the release of the panel opinion in Leslie v. Carnival Corp., Nos. 3D06-2228, 3D06-2226, 2008 WL 34793, at *1 (Fla. 3d DCA Jan. 2, 2008), the Court consolidated this case with two others, and by a majority vote of the active judges of this district, see Fla. R. App. P. 9.331(a), ordered that they be considered together en banc on the issue decided in the panel opinion. Upon consideration of the matter en banc, the Court is evenly divided. Judges Gersten,Wells, Shepherd, Suarez and Lagoa voted in favor of affirming the circuit court. Chief Judge Ramirez, and Judges Cope, Cortiñas, Rothenberg and Salter voted to reverse the decision of the circuit court. The effect of the vote is that the panel opinion stands.

That's a very telling split, no?

Not one to leave well enough alone, Judge Shepherd writes a fairly sharp concurrence that has all the hallmarks of his writing -- including use of the word "oxymoronic."

He says he did it to "balance" Judge Cortinas' dissent, but it doesn't really read that way.

Here's the gist of what happened in this case -- Carnival's forum selection clause acts as a deprivation of the right to a jury trial because, by limiting the forum to the SD FL, if you don't have $75k in damages you are stuck in admiralty and thus cannot have a jury hear your claim.

From my read Judge Shepherd's concurrence tends to be narrow and formalistic in its analysis of the "Savings to Suitor" clause. I'm not sure why the history of the clause is relevant unless there is something ambiguous about the language. He also neglects the clear import of the forum selection clause and its impact on the right to a jury if you don't meet the jurisdictional requirement.

In doing so he gets a little cute:

The paean to the “fundamental right to jury trial” under the United States and Florida constitutions found in the dissent is poignant. See infra p. 31-32. Its reminder—that any waiver of this fundamental right must be made knowingly and voluntarily—is gripping. See infra p. 32-36. The dissent forgets, however, that we are not dealing here with a judicial doctrine surrounding jury waiver clauses. Rather, we are dealing with a judicially created doctrine for determining when it is appropriate to enforce a forum-selection clause in a maritime case.

"Paean," "poignant," "gripping" -- do I detect sarcasm?

Yet the Judge abandons all formality and gets uber-practical and "real-worldy" when he imagines the true motivations of the plaintiffs in footnote 10:

Although cast in the idiom of jury sanctity, I deduce from the arguments made that the plaintiffs’ true concern is that the judges of the United States District Court somehow will be less favorable to them than a jury on issues of liability and compensation. However, analyses of empirical data from federal cases compiled by the Administrative Office of the United States Courts strongly suggest otherwise.

Note to Judge Shepherd -- those are interesting stats, but they all pre-date the last President and his impact on the composition of the federal judiciary. Also, one of the studies is particular to product liability cases only, the other deals only with Georgia tort cases, and the third is from 1996 and addresses verdicts only in "large counties."

Plus the plaintiffs' "true concern" is not part of the factual record, is it?

Judge Shepherd then ends, as he frequently does when a ruling seems unfair -- by blaming the legislature:

The passengers’ grievance in this case lies with the United States Congress.

Judge Cortinas, however, thinks otherwise:

On its face, the Forum Clause appears to operate as any ordinary forum selection clause, that is, it restricts the filing of a lawsuit against Carnival to a particular forum, namely the United States District Court for the Southern District of Florida. However, because of the jurisdictional limitations of the federal courts, this Forum Clause actually operates to deprive certain passengers, including all of the appellants, of their right to a trial by jury without notification and consent.

That seems pretty easy to understand -- no paeans to "gripping" poignancy required.

Judge Cortinas continues:

The concurring opinion posits that the application of federal law in maritime cases somehow minimizes the clear existence of concurrent state court jurisdiction over cases such as these and the accompanying right to a jury trial in our state courts. Of course, there is not a single case in American jurisprudence which supports this position. If that were the case, in a properly filed “saving to suitors” case, Carnival would be able to avoid a jury trial in our state courts by resorting to the concurring opinion’s “supremacy of federal maritime law” contrivance. No case has ever reached such a result.

Respectfully, the fact that federal law applies in maritime cases has little to do with this case or the issues before us. Instead, it is a red herring, worthy of momentary distraction without more. The concurring opinion alludes to the application of federal maritime law in construing the enforceability of a passenger cruise contract. See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 590(1991). It then concludes that, under federal maritime law, courts have enforced territorial forum selection clauses and, therefore, our Forum Clause must be enforced due to “supremacy of federal maritime law.” However, this inquiry assumes we are dealing with an ordinary territorial choice-of-forum clause that merely selects a particular forum over another. There is no dispute that, absent the waiver of the right to a jury trial, which is implicated in our particular Forum Clause, the selected forum would be upheld and enforced as it has been in our prior decisions where the right to a jury trial was not raised on appeal.

In other words -- look at the application of the clause, its effect, and not merely its label. Hail you went all "off-label" when you "deduced" the "true concerns" of the plaintiffs.

Close call but I'm giving this round to Judge Cortinas.

Given that they certified the question to the Florida Supreme Court I don't think we've heard the last of it.

BTW, you want to get all "real-worldy" go over to the Port of Miami and see the embarkation process on a Carnival ship. If you think these folks are concerned with detailed contract language when they are fighting to get a free daiquiri and a place at the buffet line you've never been on a "Fun Ship."

(And thank goodness for that).