Case 1:11-cv-20687-JLK Document 1 Entered on FLSD Docket 02/28/2011 Page 1 of 12

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

CASE NO.: ________________

CARNIVAL CORPORATION
d/b/a CARNIVAL CRUISE LINES,

Plaintiff,

vs.

OPERADORA AVIOMAR S.A. de C.V.,

ACE AMERICAN INSURANCE COMPANY
d/b/a ACE USA, JOHN DOE 1, JOHN DOE 2,
JOHN DOE 3, JOHN DOE 4, JOHN DOE 5,
JOHN DOE 6, JOHN DOE 7, JOHN DOE 8,
JOHN DOE 9, and JOHN DOE 10,

Defendants.
_______________________________________/

COMPLAINT

COMES NOW, Plaintiff CARNIVAL CORPORATION, d/b/a CARNIVAL CRUISE

LINES (“CARNIVAL”), and for its causes of action against defendant OPERADORA

AVIOMAR S.A. de C.V. (“AVIOMAR”), ACE AMERICAN INSURANCE COMPANY, d/b/a

ACE USA (“ACE AMERICAN”) and JOHN DOES 1-10, and each of them, alleges as follows:

GENERAL ALLEGATIONS

1. Subject matter jurisdiction is based on 28 U.S.C. Sections 1331 and 1333, in that

this is an admiralty or maritime claim within the meaning of Fed. R. Civ. P. 9(h) and 14(c). The

claims underlying this matter are based upon the Jones Act, 46 U.S.C. 688, and general maritime

laws of maintenance and cure and unseaworthiness as detailed below.

2. The parties are citizens of a state and citizens or subjects of a foreign state, but

Mase, Lara, Eversole

Case 1:11-cv-20687-JLK Document 1 Entered on FLSD Docket 02/28/2011 Page 2 of 12
CARNIVAL CORPORATION
vs.
OPERADORA AVIOMAR S.A.
de C.V., ACE AMERICAN, et al.

none of the defendants are citizens of the same state as the plaintiff, and the amount in

controversy exceeds $75,000, exclusive of costs, interest and attorneys’ fees.

3. Plaintiff CARNIVAL is a corporation organized pursuant to the laws of Panama,

with its principal place of business in Miami, Florida.

4. Plaintiff is informed and believes defendant AVIOMAR is a foreign company

with its principal place of business located in Yucatan, Mexico.

5. Plaintiff is informed and believes defendant ACE AMERICAN is a Pennsylvania

corporation licensed to transact business in the State of Florida and with its principal place of

business in Philadelphia, Pennsylvania.

6. Plaintiff is ignorant of the true names and capacities, whether individual,

associates, corporation, partnership or otherwise, of the defendants, JOHN DOES 1 through 10

(individually referred to as “DOES 1 through 10” and collectively referred to as “Doe

Defendants”), and therefore sues said Doe Defendants by such fictitious names; that when the

true names and capacities of said Doe Defendants are ascertained, Plaintiff will amend this

Complaint accordingly. Plaintiff is informed and believes, and thereon alleges, that each of said

Doe Defendants fictitiously designated herein were negligent and/or otherwise responsible in

some manner for the occurrences alleged herein.

7. Venue lies within the Southern District of Florida pursuant to 28 U.S.C. Section

1391(b)(2)-(3) and (d) in that at all relevant times the contractual agreement between

CARNIVAL and AVIOMAR contained a forum selection provision, designating the Southern

District of Florida as the appropriate forum for disputes among the parties, including the claims

alleged by CARNIVAL herein.

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CARNIVAL CORPORATION
vs.
OPERADORA AVIOMAR S.A.
de C.V., ACE AMERICAN, et al.

8. Plaintiff owns and operates the vessel CARNIVAL SPIRIT (“Vessel”) which is

used for purposes of passenger cruises. On February 29, 2008, CARNIVAL employed MARIA

JAVIER (“Javier”) as a crewmember of the Vessel.

9. On February 29, 2008, while the Vessel was docked in the port of Acapulco,

Mexico, Javier claims she sustained personal injuries in the course of her employment during an

ATV tour excursion owned, conducted, operated and controlled exclusively by AVIOMAR

(“Incident”) and offered by CARNIVAL as part of their cruise.

10. Plaintiff believes and alleges Omar Hernandez Paredes, an employee or agent of

AVIOMAR, was the driver of the subject ATV at the time of the Incident.

11. In connection with the excursion, AVIOMAR obtained liability coverage under

the International Advantage Commercial Insurance Policy, policy number PHFD36896784

(“Insurance Policy”), from ACE AMERICAN. The Insurance Policy provides liability insurance

for, among other things, damages resulting from incidents such as the Incident involving Javier.

The Insurance Policy was in effect on the date of the Incident. See Insurance Policy attached

hereto as Exhibit “A.”

12. Further, CARNIVAL, as an additional insured under the Insurance Policy, also

obtained liability coverage from ACE AMERICAN. The Insurance Policy provides liability

insurance for, among other things, damages resulting from incidents such as the Incident

involving Javier. The Insurance Policy was in effect on the date of the Incident. See Exhibit A.

13. As a result of Javier’s alleged injuries, through no fault of its own, CARNIVAL

has paid and/or continues to pay Javier maintenance, cure, and unearned wages (“Maintenance

and Cure”) as required under federal maritime law, in excess of $400,000 to date and continuing.

14. In addition to seeking and obtaining Maintenance and Cure, Javier filed suit

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CARNIVAL CORPORATION
vs.
OPERADORA AVIOMAR S.A.
de C.V., ACE AMERICAN, et al.

against CARNIVAL and others in the United States District Court, Southern District of

California, Case No. 09 CV2003LAB WMC, for her alleged injuries claiming a violation of the

Jones Act, 46 U.S.C. 688, including claims for Jones Act Negligence and Unseaworthiness and

Maintenance and Cure. Said lawsuit was dismissed as against CARNIVAL on grounds that

plaintiff’s claims against CARNIVAL were subject to binding arbitration in Panama to be

decided in accordance with U.S. (maritime) law. AVIOMAR remains liable to CARNIVAL for

any settlement, award, or judgment resulting from any claim by Javier. Case No. 09

CV2003LAB WMC remains pending as to plaintiff’s claims against other defendants.

15. At all times relevant herein, AVIOMAR was an independent contractor to

CARNIVAL and subject to the terms of the “Standard Shore Excursion Independent Contractor

Agreement” executed by CARNIVAL and AVIOMAR on or about October 7, 2004, (“Indemnity

Agreement”) wherein AVIOMAR expressly agreed: (a) under paragraph 9 to procure and

maintain liability insurance against any and all injuries related to its shore excursions and to

include CARNIVAL as an additional insured for the same; and (b) under paragraph 10 to

indemnify, save, protect and defend and hold harmless CARNIVAL (and its agents and

employees) for all losses, claims, liabilities, damages, causes of action, legal fees, and costs and

expenses which may arise or be claimed against CARNIVAL related to, in connection with, as a

consequence of or arising from the business or operations of AVIOMAR and/or services

provided to CARNIVAL and its guests, as well as any breach of the Indemnity Agreement.

AVIOMAR expressly agreed to be fully liable for acts of any of its employees, officers,

representatives, subcontractors or agents, relating to, in connection with or otherwise arising as a

consequence of any of its shore excursions. See Indemnity Agreement attached hereto as Exhibit

“B.”

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CARNIVAL CORPORATION
vs.
OPERADORA AVIOMAR S.A.
de C.V., ACE AMERICAN, et al.

16. The Incident occurred in the course of a shore excursion subject to and within the

terms of the Indemnity Agreement.

17. CARNIVAL has tendered its defense and sought reimbursement and indemnity

for all past and future damages, claims, expenses and/or judgments incurred by CARNIVAL on

behalf of Javier, or as a result of Javier’s injuries as described above, from AVIOMAR to no

avail and continues to request and seek the same herein.

18. Through its timely claim for insurance coverage, CARNIVAL has also sought

reimbursement and indemnity for all past and future damages, claims, expenses and/or

judgments incurred by CARNIVAL on behalf of Javier, or as a result of Javier’s injuries as

described above, from ACE AMERICAN, who wrongfully denied CARNIVAL’s claim.

19. CARNIVAL alleges AVIOMAR is wholly or partially liable to Javier and/or

CARNIVAL for remedy over, contribution, or otherwise on account of the Incident.

20. All conditions precedent to the bringing of this action have occurred, been

discharged, waived or performed.

FIRST CAUSE OF ACTION

(Breach of Contract against AVIOMAR)

21. CARNIVAL incorporates herein by reference the allegations of paragraphs 1-20.

22. Javier claims to have been injured during a shore excursion operated and

controlled exclusively by AVIOMAR as set forth above.

23. Javier has sought and continues to seek Maintenance and Cure from CARNIVAL

and has filed suit as set forth above as a result of the Incident.

24. The shore excursion and Incident are subject to the Indemnity Agreement as set

forth above.

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CARNIVAL CORPORATION
vs.
OPERADORA AVIOMAR S.A.
de C.V., ACE AMERICAN, et al.

25. Under the express terms of the Indemnity Agreement, CARNIVAL is entitled to

be indemnified, defended, insured, and held harmless by AVIOMAR with respect to any and all

claims or judgments by or on behalf of Javier, including Maintenance and Cure, and any other

claims or expenses related to the Incident as set forth above.

26. AVIOMAR has breached the Indemnity Agreement by failing to indemnify

CARNIVAL in accordance with the terms thereof.

27. AVIOMAR has breached the Indemnity Agreement by failing to defend

CARNIVAL in accordance with the terms thereof.

28. In spite of timely and reasonable demand therefore, AVIOMAR has refused and

continues to refuse to indemnify, defend, insure, hold harmless, or reimburse CARNIVAL in

accordance with the terms of the Indemnity Agreement.

29. As a direct and proximate result of AVIOMAR’s breach of the Indemnity

Agreement, Plaintiff has suffered substantial damages.

WHEREFORE, Plaintiff, CARNIVAL, demands judgment against Defendant,

AVIOMAR, for damages, pre-judgment and post-judgment interest to the extent allowed by law,

costs, attorneys’ fees pursuant to the Indemnity Agreement, and for any further relief the Court

deems just and proper.

SECOND CAUSE OF ACTION

(Breach of Contract against ACE AMERICAN)

30. CARNIVAL incorporates herein by reference the allegations of paragraphs 1-20.

31. Javier claims to have been injured during a shore excursion operated and

controlled exclusively by AVIOMAR as set forth above.

32. Javier has sought and continues to seek Maintenance and Cure from CARNIVAL

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Case 1:11-cv-20687-JLK Document 1 Entered on FLSD Docket 02/28/2011 Page 7 of 12
CARNIVAL CORPORATION
vs.
OPERADORA AVIOMAR S.A.
de C.V., ACE AMERICAN, et al.

and has filed suit as set forth above as a result of the Incident.

33. Under the express terms of the Insurance Policy, ACE AMERICAN is obligated

to pay CARNIVAL “those sums that the insured becomes legally obligated to pay as damages

because of ‘bodily injury’ or ‘property damage’ to which (the) insurance applies.” See Exhibit

A.

34. In spite of timely and reasonable demand therefore, ACE AMERICAN has

breached the Insurance Policy by refusing to pay CARNIVAL for the aforementioned damages

in accordance with the terms of the Insurance Policy.

35. As a direct and proximate result of ACE AMERICAN’s breach of the Insurance

Policy, Plaintiff has suffered substantial damages.

WHEREFORE, Plaintiff, CARNIVAL, demands judgment against Defendant, ACE

AMERICAN, for damages, pre-judgment and post-judgment interest to the extent allowed by

law, costs, attorneys’ fees pursuant to the Insurance Policy, and for any further relief the Court

deems just and proper.

THIRD CAUSE OF ACTION

(Equitable Indemnity against AVIOMAR)

36. CARNIVAL incorporates herein by reference the allegations of paragraphs 1-20.

37. Javier claims to have been injured during a shore excursion operated and

controlled exclusively by Defendants as set forth above.

38. Javier has sought and continues to seek Maintenance and Cure from CARNIVAL

and has filed suit as set forth above as a result of the Incident.

39. CARNIVAL is informed and believes Javier alleges AVIOMAR and its

employees and agents were negligent in their operation of the subject shore excursion or are in

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Case 1:11-cv-20687-JLK Document 1 Entered on FLSD Docket 02/28/2011 Page 8 of 12
CARNIVAL CORPORATION
vs.
OPERADORA AVIOMAR S.A.
de C.V., ACE AMERICAN, et al.

some other actionable manner legally responsible for the Incident and for proximately causing

the injuries to and/or damage allegedly incurred by Javier.

40. CARNIVAL herein denies it is in any way responsible for the events or

occurrences or damages (current or future) claimed by or injuries allegedly sustained by Javier as

a result of the Incident, or for proximately causing the same. However, if CARNIVAL is held

responsible to Javier for any of the matters set forth above, it is entitled to total equitable

indemnity from the Defendants for any loss suffered or expense incurred or judgment paid,

including any costs, attorneys’ fees, Maintenance and Cure, and other expenses which have been,

or in the future may be, incurred in that CARNIVAL’s liability will be based (if at all) on only

passive or secondary negligence arising as a legal result of the active and primary negligence of

the Defendants.

WHEREFORE, Plaintiff, CARNIVAL, demands judgment against Defendant,

AVIOMAR, indemnifying CARNIVAL for any liability attributed to it as a result of

AVIOMAR’s acts or omissions, and for any further relief the Court deems just and proper.

FOURTH CAUSE OF ACTION

(Contribution against AVIOMAR)

41. CARNIVAL incorporates herein by reference the allegations of paragraphs 1-20.

42. CARNIVAL denies it either caused or contributed to the Incident or damages

alleged or claimed by Javier as set forth above. In the event, however, CARNIVAL is held liable

for the alleged Incident, claims or damages incurred by Javier, which liability is specifically

denied, CARNIVAL is entitled to indemnity and contribution from AVIOMAR’s corresponding

to their respective fault, negligence, carelessness or willful misconduct.

WHEREFORE, Plaintiff, CARNIVAL, demands judgment against Defendant,

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CARNIVAL CORPORATION
vs.
OPERADORA AVIOMAR S.A.
de C.V., ACE AMERICAN, et al.

AVIOMAR, requiring that it be responsible to CARNIVAL for AVIOMAR’s pro rata share of

liability, and for any further relief the Court deems just and proper.

FIFTH CAUSE OF ACTION

(Declaratory Relief against AVIOMAR)

43. CARNIVAL incorporates herein by reference the allegations of paragraphs 1-20.

44. As a result of AVIOMAR’s actions, an actual controversy has arisen and now

exists between CARNIVAL and AVIOMAR concerning their respective rights, duties and/or

financial obligations with respect to the Incident and the injuries or damages alleged to have

been suffered by Javier. CARNIVAL asserts and has asserted that in the event and to the extent

it is subject to any liability to Javier in any action, including arbitration or otherwise, or for any

claim or expense related to the Incident, including past and future payment of Maintenance and

Cure, it is entitled to be indemnified by AVIOMAR for the full amount of any loss suffered or

judgment or expense paid by CARNIVAL to Javier, if any, including all costs, reasonable

attorneys fees and other expenses which have been, and in the future may be incurred.

CARNIVAL is informed and believes that AVIOMAR disputes this contention and denies

liability to Javier and to CARNIVAL arising out of the facts and circumstances set forth herein.

45. CARNIVAL desires a judicial determination of its respective rights and duty of

AVIOMAR with respect to the damages, claims and other relief sought by Javier as set forth

above. In particular, CARNIVAL desires a declaration of the respective liabilities of

CARNIVAL and AVIOMAR for damages, Maintenance and Cure obligations, and other claims

or expenses (if any) and a declaration that AVIOMAR is obligated to insure, defend and hold

harmless CARNIVAL by virtue of the express terms of the Indemnity Agreement.

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Case 1:11-cv-20687-JLK Document 1 Entered on FLSD Docket 02/28/2011 Page 10 of 12
CARNIVAL CORPORATION
vs.
OPERADORA AVIOMAR S.A.
de C.V., ACE AMERICAN, et al.

46. Such a declaration is necessary and proper at this time in order that CARNIVAL

may ascertain its rights and duties with respect to the claims of Javier as set forth above

including past and future liability for Maintenance and Cure, any judgment resulting from the

case filed by Javier in United States District Court, Southern District of California, and/or any

subsequent arbitration award or judgment in this or any other court or forum.

WHEREFORE, Defendant, CARNIVAL, demands declaratory judgment that

AVIOMAR is obligated to (1) indemnify CARNIVAL for the full amount of any Maintenance

and Cure paid by CARNIVAL to Javier as a result of the Incident, including all past and any

future payment of the same, and (2) defend CARNIVAL in any action or arbitration by Javier

against CARNIVAL related to the Incident and indemnify CARNIVAL for the full amount of

any loss suffered and judgment paid by it as a result of the same and for the full amount of such

costs, attorneys’ fees and other expenses CARNIVAL may be required to incur in the conduct of

the defense of such action or arbitration, and for any further relief the Court deems just and

proper.

SIXTH CAUSE OF ACTION

(Declaratory Relief against ACE AMERICAN)

47. CARNIVAL incorporates herein by reference the allegations of paragraphs 1-20.

48. As a result of ACE AMERICAN’s actions, an actual controversy has arisen and

now exists between CARNIVAL and ACE AMERICAN concerning their respective rights,

duties and/or financial obligations with respect to the Incident and the injuries or damages

alleged to have been suffered by Javier. CARNIVAL asserts and has asserted that in the event

and to the extent it is subject to any liability to Javier in any action, including arbitration or

otherwise, or for any claim or expense related to the Incident, including past and future payment

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Case 1:11-cv-20687-JLK Document 1
Entered on FLSD Docket 02/28/2011 Page 11 of 12
CARNIVAL CORPORATION
vs.
OPERADORA AVIOMAR S.A.
de C.V., ACE AMERICAN, et al.

of Maintenance and Cure, it is entitled to be indemnified by AVIOMAR for the full amount of

any loss suffered or judgment or expense paid by CARNIVAL to Javier, if any, including all

costs, reasonable attorneys fees and other expenses which have been, and in the future may be

incurred. CARNIVAL is informed and believes that ACE AMERICAN disputes this contention

and denies liability to CARNIVAL arising out of the facts and circumstances set forth herein.

49. CARNIVAL desires a judicial determination of its respective rights and duty of

ACE AMERICAN with respect to the damages, claims and other relief sought by Javier as set

forth above. In particular, CARNIVAL desires a declaration of the respective liabilities of

CARNIVAL and ACE AMERICAN for damages, Maintenance and Cure obligations, and other

claims or expenses (if any) and a declaration that ACE AMERICAN is obligated to insure

CARNIVAL by virtue of the express terms of the Insurance Policy.

50. Such a declaration is necessary and proper at this time in order that CARNIVAL

may ascertain its rights and duties with respect to the claims of Javier as set forth above

including past and future liability for Maintenance and Cure, any judgment resulting from the

case filed by Javier in United States District Court, Southern District of California, and/or any

subsequent arbitration award or judgment in this or any other court or forum.

WHEREFORE, Defendant, CARNIVAL, demands declaratory judgment that ACE

AMERICAN is obligated to (1) indemnify CARNIVAL for the full amount of any Maintenance

and Cure paid by CARNIVAL to Javier as a result of the Incident, including all past and any

future payment of the same, and (2) defend CARNIVAL in any action or arbitration by Javier

against CARNIVAL related to the Incident and indemnify CARNIVAL for the full amount of

any loss suffered and judgment paid by it as a result of the same and for the full amount of such

costs, attorneys’ fees and other expenses CARNIVAL may be required to incur in the conduct of

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Entered on FLSD Docket 02/28/2011 Page 12 of 12
CARNIVAL CORPORATION
vs.
OPERADORA AVIOMAR S.A.
de C.V., ACE AMERICAN, et al.

the defense of such action or arbitration, and for any further relief the Court deems just and

proper.

Dated: February 28, 2011

Respectfully submitted,

MASE LARA EVERSOLE, P.A.

Attorneys for Plaintiff
2601 South Bayshore Drive
Suite 800
Miami, Florida 33133
Telephone: (305) 377-3770
Facsimile: (305) 377-0080

By: /s/ Richard Greiffenstein

CURTIS J. MASE
Florida Bar No.: 478083
cmase@mletrial.com
RICHARD GREIFFENSTEIN
Florida Bar No. 0058948
rgreiffenstein@mletrial.com

18110/CP#24v2

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