Meyer v. Carnival: Siobhan Beaubrun Cox deposition part 2
This is part two of the Siobhan Beaubrun deposition in our coverage of the Michael Meyer v. Carnival Cruise Lines, et al. case resulting from a cruise ship shore excursion catamaran propeller accident in St. Lucia.
Siobhan Beaubrun / Cox deposition part 2
Plaintiff attorney produced a Tour Information Form (TIF) with information on the Pitons excursion. It includes the text “a relaxing swim in the lovely waters of the Caribbean Sea.” Carnival now uses a similar statement on its website about the tour.
Plaintiff attorney produced an EDQ (Excursion Description Questionaire), Siobhan called it an Extreme Detail Questionaire, dated 30 July 2012 for a Cruise to Soufriere Bay. That description included stops at Anse Cochon and Malgretout Bay. Mr. Meyer was on the Piton tour and injured at Malgretout, but Exhibit 22, the EDQ for the Piton tour, said they would be stopping at Anse Cochon. It did not list Malgretout Bay. Malgretout is closer to the Pitons than Anse Cochon as seen in the map below.
View Michael Meyer Propeller Accident: St Lucia in a larger map
Plaintiff’s Exhibit 3, Tour Operators Liability Insurance Application signed by Siobhan and submitted to to Aon Risk Services of Florida in March 2009 asks, “What percentage of your operation is subcontracted?”, you answered, “95 percent.” A similar document dated 26 October 2011 was filled in as 99 percent. (pgs.187-188). PGIC comment – we assume the greater percentage of tours that are subcontracted, the lower her insurance bill.
Cox has offered a motorized vessel tour down the Caribbean side of St. Lucia since 2003.
Michael Meyer was injured on an excursion using the Tango Too catamaran, operated by Sea Spray Cruises.
Plaintiff attorney asked if Cox owned or leased the Tango Too at that time. She said no.
Plaintiff attorney asked her if Cox had ever made the statement that it did not own the watercraft used on the excursions, but that they were all leased by Cox. She said something like that might have been indicated on one of the forms. Plaintiff attorney showed her the form she signed to get Aon to get some insurance for Cox. On the first page it says the number of owned/leased watercraft. It has a block for entering the answer. It was filled in as “none owned, all leased”.
Plaintiff attorney asked he what she meant by “all leased”, she said that part was filled out by Insurance Services brokers, she just read it and signed it. Then she inspected it closer and said it was not her handwriting. She did not fill it out. Then Plaintiff attorney asked her if she filled all the form out except for the first page, then signed it and sent it to the brokers in St. Lucia. She said, “Really, I don’t know I can’t remember when, exactly when that happened.”
Plaintiff attorney asked her if Cox’s relationship to the vessels (ownership, leasing, whatever) was the same in 2011 as it was in 2009. She said they have never owned any vessels. After some discussion, she answered the question with, “Correct.”
Plaintiff attorney asked her about Plaintiff’s Exhibit 16, the agreement between Carnival and Cox. The agreement includes the clause:
“Neither party may assign any of its rights or obligations under this agreement by operation of law or otherwise without the written consent of the other party, and any attempt to do so shall be null and void (including any subcontracting by operator).”
Plaintiff attorney asked her if Cox subcontracted any part of the Catamaran Cruise to the Pitons that Meyers was injured on?, she said, they used a company that they had double checked and verified they were reputable. And I suppose part of my, in terms of the word “subcontracting” we did not subcontract.
Plaintiff attorney asked her if Cox provided the vessel, she said, No. So it’s not ours, per se.
Cox had a representative on the vessel at the time of the Meyer incident, a lady named Lera Toato.
Plaintiff attorney produced Plaintiff’s Exhibit 28, a from Eleanor Rae (of Cox) to the managing director of Sea Spray Cruises advising him Cox would require some services from him for the 2010/2011 cruise season (the period of the Meyer incident). (pgs.220-221).
Cox has been offering a catamaran tour down the coast to near the Pitons for about ten years. Cox brought Sea Spray on in 2009 to handle the Carnival catamaran excursions to the Pitons.
Cox has standards for watercraft used on tours. They had not yet been supplied to the plaintiff. At this time they were entered as Plaintiff’s Exhibit 29.
Cox made no attempts prior to the Meyer incident to determine who owned the Tango Too. Cox just dealt with Sea Spray Cruises and they supplied the catamaran.
Sail Away Tours and Sea Spray Cruises are owned by the same owners.
Cox regularly checked to make sure Tango Too was insured. It was not covered by Cox’s policy.
Cox required several things of Sea Spray Cruises. The boats needed to have approved life jackets for each person, the craft had to adhere to a no smoking policy, they had to have a certain number of crew members depending on how many people were onboard, the vessel had to have secure handrails, 2 crew members were to be at the gangplank to assist passengers off and on, etc.
Cox’s requirements also included, “Prior to swimming all passengers should be fitted with a life jacket, especially non-swimmers and children.” It also says life jackets are mandatory.
Siobhan interprets that as, passengers are to be shown where the life jackets are. It is not necessary that they wear them to go swimming.
Plaintiff attorney becoming upset with witnesses inability to answer many questions. Cox was to have someone here today capable of answering these questions. (pg.286).
She was asked if Cox ever formed a contract in Florida with a cruise line to act as a port agent (get them fresh water, make sure they get clearance, bring the customs guard on board, take people to the hospital, etc.), she said she could not answer that question.
Plaintiff’s Exhibit 36 is a letter of appointment by Prestige (they have Oceanic Cruises and Region Seven Seas Cruises). Plaintiff attorney then asked he how long Cox had been the port agent for Prestige. She said about six years. Then she said this is not a port agency agreement, it is for shore excursions and ground handling. It does say the agreement is entered into in Miami-Dade County, Florida.
Plaintiff attorney asked her if Cox was Carnival’s port agent in St. Lucia. She said they had been for about 20 years. To they best of her knowledge there is no contract/agreement for that relationship. It is just a handshake deal. Cox is paid for providing the service.
Cox’s vessel standard also requires crews “must provide assistance to the passengers as they enter in and out of the water.” (pg.301).
She was unable to provide the percentage of Cox’s excursion business with cruise ship customers that came from Carnival over the last five years. She was unable to even say Carnival had been a major customer in that time period.
She said Cox’s catamaran procedure called for shutting down the propellers and then advising passengers they could come off the catamaran. (pg.332).
Cox has not been able to purchase the required insurance, she thinks it was an “A plus” rating in St. Lucia. That is why it purchases insurance outside the country.
Cox has been a member of the Florida Caribbean Cruise Association for at least ten years. Cox has been a platinum member for the majority of those years.
Plaintiff attorney showed Exhibit 38, an insurance certificate for the Tango Too with the insured being Sail Away Tours for $500,000 U.S. dollars that was in the stack of documents produced by Cox. Plaintiff attorney asked them why it was $500,000 and not the $2 million required in Cox’s agreement with Carnival. She said the requirement was for Cox to have the insurance, not Sea Spray or Sail Away Tours. Then Plaintiff attorney asked her if anybody at Cox had ever told Carnival the coverage on the Tango Too was only 25 percent that which Cox was required to keep. She said, “But that was not relevant that we had to inform anybody, so we wouldn’t have. No.”
Plaintiff attorney read from Cox’s agreement with Carnival, the part saying that Carnival submitted itself to the U.S. District Court of Southern Florida for any any lawsuits to which Carnival is a party in connection to the shore excursions or terms of this agreement. Then plaintiff attorney asked her if Cox read and signed the agreement, did they not know that if Carnival became involved in a lawsuit related to the shore excursions, that lawsuit would be in Florida? She said she could not answer that one. (pgs.349-350).
Then plaintiff attorney asked her about the similar statement in the agreement in which the tour operators agree to submit themselves to the same jurisdiction (U.S. District Court Southern District of Florida) and if she could think of any interpretation that Cox might put on that statement beyond the obvious one. She said, “I wouldn’t be able to answer that.”
Plaintiff Attorney asked her if Carnival had ever been sued in the past for a Cox excursion. She said, “No, I am not aware.” Plaintiff attorney went to Exhibit 14, Henderson v. Carnival Corporation, a legal case dated in 2000. The case involved a injury to a passenger on a Cox catamaran in St. Lucia.
Once again she was asked if she had ever heard of the case, she said, “No, but I would have to say I don’t think it’s our tour actually.” (pg.372). She went on to say it could have been a mistake, we’ve been mentioned before and it wasn’t our tour.”
Noah Silverman, Attorney for Cox
Silverman opened by talking about the preparation Siobhan had done for the case (gathering documents, familiarizing herself with them, visiting with others at Cox, etc.) He went on to try to illustrate that Cox is a business in St. Lucia, not in the United States. He asked her if Cox had a P.O. Box or mailing address in the U.S., she said they did not (interesting answer after the earlier revelations of two Cox U.S. mailing addresses).
Defense attorney asked her if Cox had an agent in the U.S. authorized to conduct business on their behalf, she said, “No we do not.” (interesting after earlier testimony identifying at least two Cox agents in the U.S.)
Defense attorney asked her about listing several vessels as being leased by Cos on Exhibit 3, the agreement with Aon. he asked her, “Did you assume that because you didn’t own them that meant that you had to put down “leased”?”, she answered, “No, I did not.” (interestingly, the defense attorney just went on to the next question). Later she said she relied on Insurance Services Brokers, Limited to fill out that page of the form. (pg.403).
Cox was an independent contractor for Carnival. (pg.417).
Defense attorney pointed out one of the Cox U.S. addresses previously discussed, 8300 Northwest 53rd Street, Suite 102, Miami Florida is Royal Marine’s address. Siobhan said Cox did not authorize Royal Marine to establish a Cox address for that site.
Defense attorney asked her about the Henderson v. Carnival case involving a catamaran injury in St. Lucia. He asked her if Cox was involved in any of the events that occurred as described in this document, she said, “No, we were not actually.” Then he asked her if Cox had any idea who might have been involved if it was not Cox, she said, “I am not sure.”
Info From PGIC on the Henderson Incident
3 May 1998 Jennifer & Joseph Henderson were on their honeymoon and boarded the Carnival cruise ship, Inspiration. During the cruise they purchased tickets for a Soufrieres catamaran excursion in St. Lucia about May 5th. During the excursion, the catamaran struck and reef and they were both injured. The Hendersons allege the collision was caused by negligence and carelessness of Carnival in operation of the catamaran. The suit was originally filed in the Circuit Court of Hancock County Mississippi (home of the Hendersons), then moved to U.S. District Court of Southern Florida.
The Hendersons thought Carnival owned and operated the catamaran because the vessel had a Carnival logo on it, and the crew was wearing carnival clothing as well.
The only evidence plaintiff attorney presented in court for Carnival owning or operating the catamaran were claims of the Hendersons and others that the vessel bore the Carnival logo and the crew wore clothing with the Carnival logo.
Carnival said it was Cox’s Soufrieres Cruise Adventure catamaran excursion and backed that up with an affidavit from Lupe Seco, a claims representative for Carnival. He said Carnival does not own, operate, manage or control the independent contractors offering shore excursion. He has personal knowledge that Cox & Company was the tour operator on the Henderson’s excursion.
Carnival then moved for Summary Judgement that the case be dismissed based on the disclaimers on their tickets and on Carnival not owning or operating the catamaran, it being operated by an independent third party. Carnival said they had been selling tickets on Cox & Company excursions since 1991.
The only fact alleged by Plaintiff is that Carnival owned the catamaran. Defendant, Carnival, offered an affidavit with an uncontested statement that Cox & Company operated the excursion.
Plaintiff offered no evidence beyond logos to prove Carnival owns the catamaran, Summary Judgement was granted to Carnival and the case was dismissed.
The case was tried about 12 years before the Meyer case, but the Hendersons definitely lacked the details and tenacity portrayed by Meyer’s attorneys. Cruise ship excursion accident cases are tough and best left up to law firms with a lengthy history of cruise ship cases and at least a few cruise ship excursion cases.
Back to Defense Attorney Questioning Siobhan Beaubrun of Cox
As seen above in our discussion of the Henderson case, it appears Siobhan’s claims of that accident being falsely attributed to Cox are just like many of her other answers that didn’t hold much water. Plaintiff attorneys will probably be able to prove it was a Cox excursion in the trial.
Siobhan said Cox had filed approximately 6 claims with Aon over the last three or four years.
Defense attorney had Siobhan state that Cox & Company is identified as the tour operator on the Catamaran Cruise to the Pitons ticket. The back of the ticket identifies Cox & Company as an independent contractor.
Siobhan said Cox & Company has knowledge that Lera, the tour guide, provided the safety briefing / safety instructions more than once prior to Mr. Meyer jumping from the catamaran.
In that safety briefing, passengers are told they are not supposed to jump, they they are to use the stairs and exit the front of the vessel. She testified it was Cox & Company’s corporate knowledge that these instructions were provided to the excursion participants that day, prior to Meyer jumping from the vessel.
Siobhan said 35 percent of Cox & Company excursion business comes from North American cruise line passengers.
Recross Examination by Robert M. Oldershaw in Behalf of Carnival
Oldershaw started asking Siobhan about North American cruisers representing 35 percent of the company (he took it from 35 percent of the excursions to representing 35 percent of all Cox operations). Cox has several other income streams (shipping, cargo operations, documentations, provisioning, stores, medical assistance for the ships, customs brokerage, renting out properties in town, photo and video services, a concierge service for yachts, etc.). (pgs.476,477).
Siobhan said Cox has a gentleman from the standards department that goes out towards the beginning of the cruise ship season and inspects the vessels to make sure things are in order, clean, and they have their inspections, and certificate of operation.
Redirect by Eriksen representing Meyer
Plaintiff attorney Eriksen asked Siobhan about the Henderson case, to the extent that this case involved a Cox & Company catamaran excursion, would that have been a catamaran provided by Mr. Devuax or his companies (Sail Away and Sea Spray)?, she said, “Ok.” Then she went on to say, “But that case in question, I’m saying we were not involved. I know we are mentioned there, but it’s not our tour.”
The deposition ended at 11:30 at night. (pg.497).