Case 0:14-cv RLR Document 1 Entered on FLSD Docket 07/03/2014 Page 1 of 12

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1 Case 0:14-cv RLR Document 1 Entered on FLSD Docket 07/03/2014 Page 1 of 12 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA BROWARD DIVISION ROBERT M. HIRSH and ARTHUR W. HIRSH, ) Case No. Plaintiffs, ) ) v. ) ) SILVERSEA CRUISES LTD (INC) ) Defendant. ) ) COMPLAINT Plaintiffs, Robert M. Hirsh ( R. Hirsh ) and Arthur W. Hirsh ( A. Hirsh, collectively Plaintiffs ) sue the Defendant, Silversea Cruises Ltd (Inc.) ( Defendant ), and alleges as follows: GENERAL ALLEGATIONS PARTIES 1. This is an action to recover monies paid by Plaintiffs to Defendant on the basis of negligent misrepresentation, fraudulent misrepresentation, violation of the Florida Deceptive and Unfair Trade Practices Act, and other related causes of action. follows: 2. Plaintiffs were at all times hereinafter mentioned New York residences as (a) R. Hirsh maintains his primary residence at 336 East 53rd Street, 3rd Floor, New York, NY 10022; and (b) A. Hirsh maintains his primary residence at 95 Ash Drive, Great Neck, NY

2 Case 0:14-cv RLR Document 1 Entered on FLSD Docket 07/03/2014 Page 2 of Defendant was at all times hereinafter mentioned, a foreign business organization which is registered to do business in Florida and which maintains corporate offices at 110 East Broward Boulevard, Fort Lauderdale, FL Defendant is subject to general jurisdiction of this Court pursuant to section (2), Florida Statutes, based upon its engag[ing] in substantial and not isolated activity within this state. This activity includes Defendant generally conducting business in Florida, maintaining offices, in Florida, maintaining employees in Florida, and registering to do business in Florida. 5. In addition, Defendant is subject to the jurisdiction of this Court pursuant to section (1)(a), Florida Statutes, based upon Defendant maintaining an office in the State of Florida, and, specifically, at 110 East Broward Boulevard, Fort Lauderdale, Florida in Broward County, Florida. 6. Any and all conditions precedent to bringing this action have occurred, have been performed, or have been waived. 7. Plaintiffs have retained the undersigned law firm and are obligated to pay said firm reasonable attorney's fees for its services. JURISDICTION AND VENUE 8. This Court has subject matter jurisdiction over this civil case pursuant to 28 U.S.C. 1332(a). The matter in controversy exceeds the sum or value of $75, Plaintiff and Defendants are citizens of different states. 9. Specifically, Plaintiffs are solely residents of New York for diversity purposes as their residence is in New York State. 28 U.S.C. 1332(c)(1). 2

3 Case 0:14-cv RLR Document 1 Entered on FLSD Docket 07/03/2014 Page 3 of Defendant is a foreign business organization which, according to the Defendant s website is owned and operated by one family the Lefebvres of Rome. About Silversea Cruises, Ltd., (last visited May 22, 2014). 28 U.S.C. 1332(a)(4). 11. Accordingly, as none of the Plaintiffs or Defendant are domiciled or citizens of the same state, there is complete diversity between the parties. 12. Venue is proper in this district pursuant to 28 U.S.C. 1391(a)(2). A substantial part of the events and omissions giving rise to Plaintiffs claims occurred in this judicial district. Specifically, the Defendant s Fort Lauderdale offices conducted its business regarding this matter including in attempting to mediate settlement of this matter. In addition, the sole offices of Defendant in The Americas is its Fort Lauderdale office. FACTUAL BACKGROUND I. Defendant s Representations. 13. Defendant holds itself out and markets itself as an ultra-luxury cruise line with Butler Service... offered to every guest on every Silversea luxury cruise ship Among its other offering, Defendant offers the Silversea Expeditions packages which allow customers to visit the Galapagos Islands on luxurious cruise ships. The Silversea Expeditions package includes two ships: the Silver Explorer and the Silver Galapagos. 15. In fact, the Silversea Expeditions marketing materials provide that the following specific services are included on the Silver Galapagos : (a) Pratesi fine bed linens and down duvet covers ; 1 See and see also (listing numerous awards that Silversea has won). 3

4 Case 0:14-cv RLR Document 1 Entered on FLSD Docket 07/03/2014 Page 4 of 12 (b) (c) (d) (e) (f) (g) [b]each towels ; rain coats ; radio alarm ; Mini-bar ; complimentary 24-hour room service ; Flat-screen televisions offer[ing] live programming of all lecture presentations ; (h) Espresso machine ; (i) gourmet selections by Relais & Chateaux 2 ; (j) (k) Butler service; and Among numerous other ultra-luxury services and amenities. See Silversea Expeditions 2014 Voyages marketing materials attached hereto as Exhibit A. 16. The pictures of the cruise ship that was marketed by Defendant as the Silver Galapagos appeared beautiful and state of the art. See Exhibit B. 17. The photos that are featured on the marketing materials show the utmost in luxury and prestige. See Exhibit A. 18. In addition to the representations of Defendant, the Plaintiffs have travelled on the Defendant s luxury cruise ships before and therefore know well the luxurious conditions of the Defendant s typical cruises. 19. Based on the representations of Defendant made specifically to potential customers, such as Plaintiffs and others similarly situated, Plaintiffs paid Defendant $60, According to the website maintained by Relais & Châteaux Enterprise, located at Relais & Châteaux is an association of the world s finest hoteliers, chefs and restaurateurs that has set the standard for excellence in hospitality. 4

5 Case 0:14-cv RLR Document 1 Entered on FLSD Docket 07/03/2014 Page 5 of In addition, the Plaintiffs suffered damages of in excess of $100, in damages due to the Defendant s negligence in failure to maintain the Silver Galapagos cruise ship caused by mold, mildew, and other related harms which were caused directly by this negligence. II. The Hirsh s Vacation Experience. 21. R. Hirsh desired to take his parents A. Hirsh and E. Hirsh on a vacation so that they could experience the beauty of the Galapagos Islands. Based on the specific representations of Defendant in its market materials and promises about the luxurious conditions of the Defendant s cruise ships, the Plaintiffs spent $60, to book passage for themselves as well as: Eileen M. Hirsh ( E. Hirsh ), A. Hirsh s wife; Samantha G. Hirsh ( S. Hirsh ), R. Hirsh s daughter; and Kelly M. Weikes ( K. Weikes ), R. Hirsh s girlfriend. (E. Hirsh, S. Hirsh, K. Weikes, R. Hirsh, and A. Hirsh are collectively the Passengers ). 22. Based upon the representations and promises contained in the marketing materials the Plaintiffs booked the Passengers on the December 28, 2013 through January 2, 2014 cruise on the Silver Galapagos. 23. The Plaintiffs specifically booked this cruise so that the Passengers would have the "first-class" amenities represented and promised by Defendant in its marketing materials and website as part of the Silversea Expeditions package so that these included amenities (including specifically, those delineated in Paragraph 15 above and incorporated by reference herein) that would make them comfortable so that they could enjoy the beauty of the Galapagos Islands. 24. Notwithstanding the promises and representations of Defendant in its marketing materials and its website generally, in fact, the conditions that R. Hirsh and the other Passengers 5

6 Case 0:14-cv RLR Document 1 Entered on FLSD Docket 07/03/2014 Page 6 of 12 found themselves were anything but luxurious and, in fact, were of very poor quality which in fact caused illness and discomfort. 25. Each of the specific representations in Paragraph 15(a) through (i) were not present in the rooms that were provided by the Defendant to the Passengers. 26. Moreover, the condition of Cabins 506 and 507 (the Cabins ) at the time presented to Plaintiffs herein for use was of shockingly inferior quality and state of disrepair as compared to the marketing pictures of the proposed accommodations upon which Plaintiffs relied to book the cruise. 27. Both Cabins had cracks in the walls and ceilings as well as mold on the ceilings and associated odors. 28. These odors were so strong and unpleasing that S. Hirsh could not sleep in the Cabins for the duration of the cruise requiring Defendant's representatives to relocate R. Hirsh and K. Weikes to another cabin as Cabin 506 was entirely uninhabitable and unsuitable for sleeping. 29. Further, the temperature control also did not work, which caused A. Hirsh to become further ill from the heat and the continued smell of the mold throughout Cabin As a direct and proximate result of the mold-condition then existing in the Cabins, A. Hirsh experienced asthma, necessitating his taking medication to stymie this harm. 31. On the third day of the cruise, water began leaking into Cabin 507 through the ceiling. 32. After the ceiling tiles were removed the mold, that had apparently inundated, at minimum, that area of the cruise ship became even more evident as it could be seen behind the 6

7 Case 0:14-cv RLR Document 1 Entered on FLSD Docket 07/03/2014 Page 7 of 12 now removed ceiling tiles. In addition, that same day parts of the ceiling began to fall onto the bed in Cabin Because of the damage to the ceiling, Defendant s representatives siliconed Cabin 507 causing an unbearable smell that caused Cabin 507 to be effectively uninhabitable. 34. As a direct and proximate result of the smell caused by Defendant's representatives by using silicone on the ceiling of Cabin 507 after expressly representing they would not, the crew of the ship placed two ozonators running in Cabin 507 to assist with the horrible smell. 35. Because of the significant mold and mildew, A. Hirsh and E. Hirsh were unable to stay in Cabin 506, without any other options, were required to leave the door to Cabin 507 open to help minimize the terrible smell and suffer their way through another terrible night of sleep. 36. On the third day of the cruise, the ceiling panel outside both Cabins 506 and 507 literally fell down revealing significantly more areas infested with mold behind the paneling. 37. Upon information and belief, it is likely that this mold infested the entire cruise ship or, at a minimum, the portion of the cruise ship surrounding the Cabins. 38. In yet another prime example of Defendants false marketing and use of "bait and switch" policies, contrary to the specific representations in the marketing materials, instead of providing Relais & Chateaux selections, generally only cuisine local to Ecuador was available on the Silver Galapagos. 39. Had the Plaintiffs known that these would be the dining options, they would not have booked the ultra-luxurious Silver Galapagos cruise with Defendant. Defendant specifically represents that dining [is] a high priority at Silversea. See 7

8 Case 0:14-cv RLR Document 1 Entered on FLSD Docket 07/03/2014 Page 8 of 12 Apparently, this representation was not true on the Silver Galapagos. 40. The available food offerings made the Plaintiffs ill and uncomfortable. 41. Due to these poor meal offerings, the Plaintiffs at various times attempted to rely on the 24 room service which was specifically marketed for the Silver Galapagos. As this service was not available (contrary to the specific representations of Defendant s marketing materials), this further made the Plaintiffs cruise experience more unbearable. 42. As provided herein, the Defendant made representations in marketing materials that were incorrect and misleading. 43. Upon information and belief, the Defendant knew that these representations were incorrect when made. 44. The Defendant s actions constitute wrongs which require being remedied as provided infra. 45. The Plaintiffs have suffered damages in the form of purchasing a vacation from Defendant and those attendant harms that flow therefrom as provided infra. forth herein. COUNT I FRAUDULENT MISREPRESENTATION 46. Plaintiffs repeat and re-allege paragraphs 1 through 45, inclusive, as if fully set 47. As provided herein, in particular paragraph 15, supra, the Defendant made false statements concerning material facts in the marketing materials that the Defendant promulgated in connection with in promotion of the Silver Galapagos cruise package. 48. Upon information and belief, the Defendant knew or should have known that the statements made in their marketing materials were false. 8

9 Case 0:14-cv RLR Document 1 Entered on FLSD Docket 07/03/2014 Page 9 of The marketing materials were specifically created to induce parties including the Plaintiffs, and similarly situated parties, to purchase cruise packages on the Silver Galapagos cruise ship. 50. Plaintiffs relied on these marketing materials in purchasing the Silver Galapagos cruise package and were therefore consequently damaged thereby insofar as Plaintiffs spent significant monies on the Silver Galapagos cruise package. WHEREFORE, Plaintiffs demands judgment against Defendant in an amount of at least $60, plus interest and such further relief as the Court deems proper. forth herein. COUNT II NEGLIGENT MISREPRESENTATION 51. Plaintiffs repeat and reallege paragraphs 1 through 45, inclusive, as if fully set 52. As provided herein, in particular paragraph 15, supra, the Defendant misrepresented material facts in its marketing materials that the Defendant promulgated in connection with and to promote the Silver Galapagos cruise package. 53. Upon information and belief, the Defendant knew that these material representations in the marketing materials were misrepresentations, made these misrepresentations without knowledge of their truth or falsity, or should have known that the representations were false. 54. The marketing materials were specifically created to induce parties including the Plaintiffs, and similarly situated parties, to purchase cruise packages on the Silver Galapagos cruise ship. 9

10 Case 0:14-cv RLR Document 1 Entered on FLSD Docket 07/03/2014 Page 10 of Plaintiffs relied on these marketing materials in purchasing the Silver Galapagos cruise package and were consequently damaged thereby insofar as Plaintiffs spent significant monies on the Silver Galapagos cruise package. 56. Plaintiffs damages caused by the Defendant s negligence include: (a) Paying in excess of $60, for vacation packages on the Silver Galapagos; (b) Cost and inconvenience of travelling to the Galapagos Islands on the Silver Galapagos including using vacation time, opportunity cost of not traveling elsewhere or on another cruise line to the Galapagos Islands, and other associated and ancillary damages; and (c) Inconvenience and suffering related to being held on a defect cruise ship which was infected with mold and mildew for nearly a full week without the ability to escape. WHEREFORE, Plaintiffs demand judgment against Defendant in an amount of at least $100, plus interest and such further relief as the Court deems proper. forth herein. COUNT III FDUPTA 57. Plaintiffs repeat and reallege paragraphs 1 through 45, inclusive, as if fully set 58. As provided herein, the Defendant has engaged in multiple violations of Florida Deceptive and Unfair Trade Practices Act ( FDUPTA ) including, making material misrepresentation in marketing materials and documents regarding the quality of Silver 10

11 Case 0:14-cv RLR Document 1 Entered on FLSD Docket 07/03/2014 Page 11 of 12 Galapagos cruise package in an effort to induce the Plaintiffs, and other similarly situated persons, to purchase tickets on the Silver Galapagos cruise. WHEREFORE, Plaintiffs demand judgment against Defendant in an amount of at least $60, plus attorney s fees pursuant to section , Florida Statutes, interest and such further relief as the Court deems proper. forth herein. COUNT IV UNJUST ENRICHMENT 59. Plaintiffs repeat and reallege paragraphs 1 through 45, inclusive, as if fully set 60. Plaintiffs conferred a benefit upon Defendant by paying in excess of $60, to the Defendant. 61. Defendant knew and recognized this benefit as Defendant requested this benefit and, in fact, received the funds requested. of $60, Defendant accepted and retained the benefits by receiving and depositing payment 63. It would be inequitable for Defendant to retain the benefit of receiving the benefit of payment of $60, without providing services commensurate with such payment. WHEREFORE, Plaintiffs demand judgment against Defendant in an amount of at least $60, plus interest and such further relief as the Court deems proper. DEMAND FOR JURY TRIAL Plaintiffs demand trial by jury of all issues so triable. 11

12 Case 0:14-cv RLR Document 1 Entered on FLSD Docket 07/03/2014 Page 12 of 12 RESERVATION OF RIGHTS Plaintiffs specifically reserve their rights to amend this Complaint to add additional similarly situated plaintiffs who were damaged by the Defendant in Defendant s misrepresentations. Dated: July 2, 2014 s/ Jason B. Pear Michael I. Bernstein, Esq. Florida Bar No.: michael@bernstein-lawfirm.com Jason B. Pear, Esq. Florida Bar No.: jason@bernstein-lawfirm.com THE BERNSTEIN LAW FIRM Counsel for Plaintiff 1688 Meridian Avenue, Suite 418 Miami Beach, Florida Tel. (305) Fax. (305)