Capital Cruise Countersuit

Case
1:22-cv-20187-DPG Document 47 Entered on FLSD Docket 05/25/2022 Page 1 of 27
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF

FLORIDA MIAMI DIVISION
ROYAL CARIBBEAN CRUISES, LTD., a ) foreign corporation, doing business as ROYAL )

CARIBBEAN INTERNATIONAL, )
Plaintiff, ) v. ) CAPITAL JAZZ, INC., a foreign corporation, ) Defendant. )
DEFENDANT/COUNTERCLAIM PLAINTIFF CAPITAL JAZZ, INC.’S AMENDED

COUNTERCLAIMS AGAINST PLAINTIFF/COUNTERCLAIM DEFENDANT ROYAL
CARIBBEAN CRUISES, LTD.
Pursuant to Federal Rule of Civil Procedure 13 and the Court’s May 4, 2022 Order (ECF 45)
granting leave to amend, Defendant/Counterclaim Plaintiff, Capital Jazz, Inc., (“Capital Jazz”)
hereby counterclaims against Plaintiff/Counterclaim Defendant, Royal Caribbean Cruises Ltd,
d/b/a Royal Caribbean International (“RCCL”), as follows:
PARTIES, JURISDICTION AND VENUE
1. Capital Jazz is a Maryland corporation with its principal place of business at 5907 Clifton
Oaks Dr., Clarksville, Maryland 21029.
2. Capital Jazz is a music promoter focusing on jazz, soul, gospel and funk genres. Capital Jazz
typically promotes music festivals and concerts at amphitheaters, clubs and other music venues.
CASE NO. 22-cv-20187-DPG Jury Trial Demand

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Case 1:22-cv-20187-DPG Document 47 Entered on FLSD Docket 05/25/2022 Page 2 of 27
3. In the last fifteen years, Capital Jazz has annually promoted cruises featuring jazz themed
performances, headlined by internationally or nationally recognized music artists.
4. For these events, Capital Jazz reserves either charters or reserves all rooms on a cruise ship,
books the artists, publicizes and markets the event, and produces the musical performances. It
then resells the rooms to vacationers at prices in excess of the base room rates to cover the
artists’ performance fees and other costs and to generate a profit. Guests pay premium prices
only because they can attend performances by accomplished artists, mingle with the artists and
attend workshops and presentations throughout the cruise.
5. RCCL is a corporation that operates a fleet of cruise ships.

6. RCCL claims that the Court is vested with subject matter jurisdiction over its
Complaint on the grounds of diversity of citizenship. If those allegations are accurate, the Court
is vested with supplemental subject matter jurisdiction over Capital Jazz’s Amended
Counterclaims pursuant to 28 U.S.C. §1367 as they are part of the same claims and controversies
as those asserted in RCCL’s Complaint. Further, if RCCL is organized under the laws of Liberia
and maintains it principal place of business in Miami, Florida, as it avers, the Court
independently has subject matter jurisdiction over the Counterclaims pursuant to 28 U.S.C. §
1332 in that the parties would be citizens of different states and the amount in controversy
exceeds seventy-five thousand dollars ($75,000) exclusive of interest and costs.
7. Venue is proper in that RCCL filed in this District and consented to venue in this forum for
any proceeding seeking to enforce a provision of the contract between Capital Jazz and RCCL,
as well as any proceeding based on any right arising out of the contract at issue.
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GENERAL ALLEGATIONS A. The Charter Agreement
8. On or about May 30, 2019, Capital Jazz and RCCL executed an Agreement (the “Charter
Agreement”) to charter the M/V INDEPENDENCE OF THE SEAS (the “Ship”) for “the
purchase of guest accommodations on the specific sailing described herein subject to the terms
and conditions set forth in this Agreement.” (Charter Agreement, at 1) (A correct copy of the
Charter Agreement is attached to RCCL’s Complaint and marked Exhibit A [ECF 1-1]).
9. As RCCL has expressly alleged, the Agreement constituted a charter of the Ship. (See,
Complaint, ¶¶ 5, 6, 9)
10. Capital Jazz executed the Charter Agreement for the purpose of conducting a jazz themed
“SuperCruise” featuring performances throughout the cruise by internationally known, including
Grammy winning, jazz artists, work-shops, lectures, “meet and greet’ sessions and other features.
11. Under the Charter Agreement, Capital Jazz was responsible for delivering and managing all
of the enhanced entertainment and other aspects of the SuperCruise.
12. Section 1.1 of the Charter Agreement provides that RCCL shall reserve for Capital Jazz “
.”
13. The specified Sail Date was January 16, 2021.

14. Section 2.1 set a schedule for the Ship to depart Fort Lauderdale, Florida on
January 16, 2021, visit ports of call in Jamaica, Bonaire and Aruba and return to Fort Lauderdale
for disembarkation on January 24, 2021.
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onboard revenue and gratuity and agreed to pay applicable taxes and provide a security deposit,
(Agreement, §§3.2, 4.1 and 5.1 and Article 9).
19. Under Section 8.1, Capital Jazz was required to pay the CruiseFare and advance the
guaranteed revenue amount prior to the Sail Date in fourteen installments over twelve months.
20. After the Agreement was executed, Capital Jazz began marketing and advertised the
“SuperCruise”, scheduling artists and other activities and otherwise planning and preparing for
the cruise.
21. The overwhelming majority of the guests purchasing tickets to the SuperCruise were
African-America and over the age of 60.
B. The Outbreak of the COVID-19 Global Pandemic
22. In or on about December, 2019, infections in humans by a new strain of corona
virus, identified as SARS-CoV-2, were reported in the People’s Republic of China.

23. The SARS-CoV-2 virus is easily transmissible and spread rapidly throughout
the World.
24. There was no known vaccine, cure or effective treatment for the SARS-CoV-
2 virus.
25. On or about March 11, 2020, the World Health Organization declared the
outbreak of the SARS-CoV-2 virus a global pandemic.

26. A significant percentage of those infected with the SARS-CoV-2 virus, some
of whom suffered from preexisting comorbidities and others of whom did not, experienced fatal
or life threatening illness. Symptoms included the inability to absorb oxygen, often leading to a
slow agonizing death.
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27. Facilities in which individuals congregated in confined spaces, such as nursing homes and
schools, were particularly subject to the spread of the virus and routine gatherings turned into
super spreader events.
28. Millions of people were hospitalized. Hospitals and other health care facilities were overrun
in many areas, with patients triaged for severity of disease, elective procedures for other diseases
or injuries cancelled, and patients with minor diseases or injuries turned away. Temporary
facilities were opened in civic centers, schools, tents on hospital grounds and other facilities.
29. According to the website for the Centers of Disease Control (“CDC”), the federal public
health agency for the United States, more than 83 million people have been infected to date by
the SARS-CoV-2 virus in the United States resulting in nearly one million deaths.
30. Cruise ships are particularly susceptible to the spread of communicable disease because
thousands of individuals congregate in close quarters. During the Pandemic, it was unsafe for
cruise ships to operate because of the high risk of infection. Indeed, there were COVID
outbreaks on numerous cruise ships that were in the midst of voyages at the beginning of the
COVID-19 pandemic. Many cruise ships were refused entry into ports and forced to anchor
offshore with passenger confined to their cabins.
31. Governments around the world ordered unprecedented mitigation measures. Entire countries
or regions shut down with only essential services continuing for significant periods and travel
banned worldwide. Even after quarantines were lifted, masks were required indoors and on
public transportation, dining indoors at restaurants was prohibited or not offered, and businesses
continued to shutter their offices.
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32. Recognizing the extreme risk of COVID-19 outbreaks on cruise ships, on or about March 14,
2020, the CDC issued an Order prohibiting these vessels from embarking or disembarking in the
United States.
33. Given the unprecedented nature of the COVID-19 Pandemic, neither party to the Agreement
foresaw or could have foreseen the possibility of an event of its nature. For instance, accordingly
to published sources, there were only four pandemics during the entire 20th Century. Only the
Spanish Flu Pandemic of 1918 came near to the COVID-19 Pandemic in severity, duration and
the breath of the necessary mitigation measures.
C. Amendment No. 1 to the Charter Agreement
34. Under these circumstances, both parties recognized and agreed that the cruise could and
should not proceed in January 2021. On or about August 10, 2020, the parties executed
Amendment No. 1 to the Charter Agreement (“Amendment No. 1”). (A copy of Amendment No.
1 is attached to the Complaint and marked Exhibit B [ECF 1-2]) In that Agreement, the parties
rescheduled the cruise to January 14, 2022 and specified a new itinerary.
35. Based on all available information, at the time Amendment No. 1 was executed, the parties
believed that the COVID-19 Pandemic would be controlled by January 2022, more than two
years after its outbreak.
36. As of the execution of Amendment No. 1, Capital Jazz had paid
as a security deposit, towards the “Guaranteed Accommodation Amount” and as an advancement
of the “Guaranteed Gratuity Amount” as specified in Section 8.1 of the Agreement.
37. Amendment No. 1 specified that these sums would be applied towards the rescheduled cruise
and established a revised payment schedule.
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38. With the change in Sail Date and itinerary, some guests cancelled and received a refund from
Capital Jazz. Capital Jazz continued to market the SuperCruise and additional guests purchased
tickets. Capital Jazz also booked artists and performers, scheduled lectures developed workshops
and otherwise planned the SuperCruise.
39. In the late winter and early spring 2021, effective vaccinations were developed, approved and
administered and more effective treatments were developed.
40. As a result, restrictions were gradually removed and society began to reopen. Cruises
departing from U.S. ports resumed in approximately the summer. It therefore appeared that the
SuperCruise would be able to proceed with minimal interruption.
41. Capital Jazz paid the entire amount of the Guaranteed Accommodation Amount” and
“Guaranteed Gratuity Amount” by October, 2021. In total, Capital Jazz paid
D. The Omicron Surge
42. On or about November 26, 2021, the World Health Organization designated a new variant of
the SARS-CoV-2 virus as B.1.1.529, identified it as a Variant of Concern, and named it
Omicron.
43. On November 30, 2021, the United States classified the Omicron as a Variant of Concern
and the first cases of Omicron infections were reported in the United States on or about
December 1, 2021.
44. Omicron is more transmissible than the original SARS-CoV-2 virus and spread rapidly
despite the wide vaccination and ongoing mitigation efforts. Case counts and death rates surged
and, once again, hospital emergency rooms and intensive care unit capacity was breached or
threatened.
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45. Infections broke out on cruise ships despite mitigation measures.
46. Omicron led to renewed and/or intensified restrictions at the public and
private level in December 2021 and January 2022, including limitations on international travel.
47. While some SuperCruise guests sought to cancel with the surge of the vims,
there remained a sufficient critical mass of guests, and a sufficient number of aliists paliicipating
to provide the enhanced entertainment package for which Guests paid a
premmm pnce.
E. Amendment No. 2 to the Charter Agreement
48. Cmise lines requiring guests to provide proof of vaccination was prohibited
by an Executive Order the Governor of Florida issued banning "vaccine passports." On or about
December 24, 2021, RCCL and Capital Jazz executed Amendment No. 2 ofthe Charter
Agreement. (A copy of Amendment No. 2 is attached to the Complaint and marked Exhibit C
[ECF 1-3]).
49. Recognizing that the State of Florida had appealed a lower court's decision
that the Governor's vaccine passpo1i ban was unenforceable, in Section 2 of Amendment No. 2,
Bimini, Bahamas was substituted at RCCL's insistence for Kralenjijik, Bonaire as a port of call.
RCCL insisted on this change because vaccinations are required to disembark at Bimini.
50. Section 3 of Amendment deleted the existing Section 14.3 of the Chalier
Agreement and substituted the following:
..
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51. Amendment No. 2 also added an Article 28 to the Agreement, which provided
in Section 28(b) that:
F. The CDC's Travel Health Notice
52. On December 30, 2021, the United States Center for Disease Control ("CDC")
issued a Travel Health Notice (the "Travel Health Notice").
53. The CDC cited the outbreak of COVID-19, including Omicron infections,
aboard cruise ships as a reason for the Travel Health Notice.
54. The Travel Health Notice raised the warning level for travelling on cruise
ships to red, the highest level.
55. The Travel Health Notice advised avoiding travel on cruise ships.
56. The Travel Health Notice was widely reported.
57. As the Travel Health Notice represented the judgment of the federal public
health agency for the United States that it was unsafe to embark on cruises, Capital Jazz became
concerned about the safety of proceeding with the cruise. It also concluded that Section 28(b)
(added to the Charter Agreement by Amendment No. 2) permitted and actually required it to act
in accordance with this guideline.
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58. Capital Jazz immediately and repeatedly attempted to communicate with RCCL to discuss
the safety of the cruise and whether the parties should proceed and discuss alternative
arrangement. RCCL did not respond to any of these communications.
59. When Capital Jazz finally reached RCCL, it refused to discuss any of these issues until
January 7, 2022, just one week before the embarkation date.
60. Meanwhile, on each day between January 3 through 14, 2022, the CDC placed the Ship in
the yellow category on the portion of its website that classifies cruise ships calling in U.S. ports
on a color scheme indicating the number of COVID-19 cases reported for each ship in the
program, whether an investigation is needed, additional public health measures a ship is taking,
and whether a ship has opted out of the program. The yellow category reflects heightened
COVID infections and risks.
61. On January 3, 2022, the CDC reported over 900,000 new cases of COVID in the United
States.
62. On each day between January 4 through 7, 2022 the CDC reported over 700,000 new cases
of COVID in the United States.
63. On or about January 5, 2022, it was reported that a RCCL vessel was required to return to
port in Hong Kong because a number of passengers and/or crew were infected with COVID.
According to the reports, passengers were not permitted to disembark and required to remain on
the ship while COVID testing was conducted.
64. On or about January 7, 2022, Capital Jazz learned that RCCL had cancelled cruises of four
ships for a period ranging from January 8 through March 7 because they could not be safely
operated in an environment with a surge of COVID-19 infections.
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65. Ticketholders for the cruise also learned of the Travel Health Notice, the issues with COVID
outbreaks and the cruise cancellations. While Capital Jazz waited for a response from RCCL, it
received multiple inquiries from customers as to whether the cruise would be cancelled, the
Ship’s safety and whether the cruise package would be modified. Customers demanded
immediate answers because of the short window to cancel their travel plans. Beyond that, RCCL
had broadly advertised a no risk purchase policy, which entitled customers to cancel within 48
hours of a cruise and still receive a refund.
66. Artists also learned of the Travel Health Notice and the other issues with cruises.
Representatives of multiple artists advised that their clients would either refuse to perform under
these circumstances or demanded that their performances be cancelled.
67. During the week of January 3, 2022, several members of Capital Jazz’s production and
management staff contracted COVID. Other production and management staff refused to
participate in the cruise for fear of being infected with COVID.
68. When Capital Jazz and RCCL representatives finally spoke on January 7, 2022, RCCL
provided no definitive information about the crew’s infection rate or the seaworthiness of the
ship. It declined to discuss terms for postponing or cancelling the cruise or, conversely, to
commit to any specific ports of call or alternative entertainment packages.
69. RCCL only agreed to revisit these issues on Monday, January 10, 2022 and a conference call
was scheduled for that day.
70. Nevertheless, by that time, it was clear that Capital Jazz could not provide the promoted
entertainment program for which guests were paying a premium. It did not believe it could refuse
to provide refunds to guest electing not to proceed because the premium experience would not be
offered or due to concerns for being infected with COVID. With
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the volume and urgency of inquiries increasing with the time for guests to cancel their travel
plans evaporating, Capital Jazz did not believe it could delay any longer in providing information
to guests. It accordingly published a notice on its website that its “programming” would not be
available on the cruise and undertaking to provide information on refunds at a later date for those
customers deciding to cancel.
71. Capital Jazz did not cancel the Charter Agreement or even communicate with RCCL. If
RCCL insisted upon proceeding with the SuperCruise as scheduled, Capital Jazz intended to
discuss alternatives for salvaging the remnants of the cruise, including by offering a scaled back
program involving performing artists and the ship’s regular onboard entertainers and production
staff.
72. On Monday, January 10, RCCL cancelled the scheduled conference call claiming that Capital
Jazz had improperly cancelled the cruise.
73. As set forth previously, Capital Jazz did not cancel. Not only had Capital Jazz simply stated
that its programming would not be provided, it never in any manner provided any notice of
cancellation to RCCL. Further, Capital Jazz had fully paid the CruiseFare and otherwise
complied with all contractual obligations.
74. Through counsel, Capital Jazz immediately advised RCCL in writing that it had not cancelled
the cruise and demanded that RCCL proceed with the scheduled call. A true and correct copy of
counsel’s email is attached hereto and marked Exhibit A.
75. Beginning in the early morning hours of January 11, 2022, customers attempting to check in
for the cruise on the RCCL app or otherwise logging into the app were presented with the
following notice:
Cruise cancelled
This voyage has been cancelled
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The safety and well-being of our guests and crew is top priority. So, in light of current regional
travel conditions, we’ve made the difficult decision to cancel our voyage.
A true and correct copy of one such notice is attached hereto and marked Exhibit B.
76. Upon information and belief, customers logging on to their individual day
planner for the cruise received a notification that the cruise was cancelled.
77. Upon information and belief, RCCL cancelled the SuperCruise because of COVID
infections, the inability safely to travel by cruise ship and the unseaworthiness of the ship and
crew. The CDC web page color designation for the INDEPENDENCE OF THE SEAS on
January 10, 2022 specified that the “CDC has started an investigation and the ship remains under
observation.” RCCL cancelled the next scheduled cruise of the
INDEPENDENCE OF THE SEAS because of COVID concerns. As set forth previously, RCCL
and its affiliates furthermore cancelled numerous other cruises scheduled for January, 2022.
COUNT I: UNJUST ENRICHMENT/RESTITUTION
78. Capital Jazz incorporates by reference, as if fully set forth herein, paragraphs 1through 77
inclusive of these Counterclaims.
79. The fundamental bargained for exchange in the Charter Agreement was the
charter of the M/V Independence of the Seas for the SuperCruise featuring an enhanced
entertainment package and experience to which Capital Jazz could sell tickets at a premium price
over the price of a standard cruise.
80. Performance of the fundamental bargained for exchange was rendered impossible by the
surge of COVID infections fueled by the Omicron variant.
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81. It was unsafe to congregate thousands of guests, crew, performers and production staff in the
confined space of a ship. Infection with the COVID-19 virus presents a significant risk of serious
communicable disease. SuperCruise guests were predominantly African- American and over the
age of sixty, so they were particularly susceptible to serious disease.
82. The SuperCruise was not an essential or even business related voyage It was an
entertainment and vacation experience. Sailing on a ship under circumstances presenting a
serious risk of contracting a potentially life-threatening disease is not enjoyable.
83. RCCL recognized the dangers of proceeding with the SuperCruise under the circumstances
as evidenced by its cancellation of cruises during the exact same time period on other vessels and
cancelling subsequent cruises on the M/V Independence of the Seas.
84. RCCL also created an expectation among guests that they would be able to cancel up to
forty-eight hours of the Sailing Date by publishing its “no risk” booking policy.
85. It was also impossible for Capital Jazz to provide the enhanced entertainment program and
experience that was the essential purpose of the SuperCruise in that:
a. Artists and other performers were unwilling to board and perform onboard a cruise ship during
the surge in COVID infections and/or to comply with a vaccine mandate.
b. Even if artists and other performers were willing to perform, they are booked only for a
portion of the cruise and embark or disembark at ports of call on the itinerary. RCCL could not
and/or would not provide any assurance that the Ship would be able to dock at ports of call at
which artists and performers were scheduled to disembark.
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c. Capital Jazz personnel necessary to manage and direct the enhanced entertainment program
and experience were ill or refused to board the Ship. It was impossible to find substitutes for
these essential personnel, particularly with the spike in COVID infections.
d. Production staff necessary to produce artist performances were ill or refused to board the Ship.
Artists of the caliber booked for the SuperCruise require specialized production that can be
delivered only by a unique set of talented and experienced production personnel. It was
impossible to find substitute production personnel of this talent and experience, particularly with
the spike in COVID infections.
e. The audience the headline performers would draw could not safely be accommodated in the
onboard performance venues.
86. The COVID-19 Pandemic has been unique in its severity, impact and duration.
No other circumstances even remotely comparable to the COVID-19 Pandemic occurred in over
a century. As a result, Capital Jazz could not have foreseen the COVID-19 Pandemic when it
executed the Charter Agreement or the surge of infections the Omicron variant caused when it
executed Amendment No. 1 and believed the SuperCruise could proceed when it executed
Amendment No 2.
87. The parties were relieved of their responsibilities under the Charter Agreement as amended
by the impossibility of performance.
88. Section 3.1 of the Charter Agreement required the payment of the CruiseFare in
consideration RCCL’s providing the “Cruise” and Section 7 provides that the “
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89. The obligation to pay CruiseFare, to guarantee a specified gratuity level and to tender a
security deposit were obligations assumed in exchange for RCCL’s agreeing: (i) to Charter the
Ship; (ii) to provide the accommodations specified in Section 1.1; (iii) to transport guests to the
ports of call specified in Section 2.1 (as revised in Amendment No. 2); (iv) to embark on the date
specified in Section 2.2 (as revised in Amendment No. 1); (v) to provide the services and
entertainment specified in Article 7; and (vi) to permit Capital Jazz to resell tickets under Section
12.1, to offer merchandise under Section 15.1.2 and to provide entertainment and other services
under Section 15.2.
90. RCCL would be unjustly enriched and it would be otherwise inequitable if RCCL were
permitted to retain CruiseFare, advancement of the guaranteed gratuity and security deposit and
Capital Jazz is entitled to restitution of those sums.
91. Capital Jazz is entitled to restitution and/or a refund of the CruiseFare, advancement of the
guaranteed gratuity and the security deposit.
92. Section 25.2 of the Charter Agreement provides in relevant part that “all costs of such
litigation, including reasonable attorneys’ fees, shall be recovered by the prevailing party.”
WHEREFORE, Defendant/Counterclaim Plaintiff, Capital Jazz, Inc., demands judgement in its

favor and against Plaintiff/Counterclaim Defendant, Royal Caribbean Cruises, Ltd. d/b/a Royal
Caribbean International, in the amount of Four Million, Five Hundred and Sixty Thousand,
Twenty-Two Dollars and Fifty-Five Cents ($4,560,022.54), together with attorneys’ fees and
costs as specified in the Agreement, pre- and post-judgment interest and such other relief as this
Court deems just and equitable.
COUNT II: UNJUST ENRICHMENT/RESTITUTION
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93. Capital Jazz incorporates by reference, as if fully set forth herein, paragraphs 1 – 77
inclusive, 89 and 92 of these Counterclaims.
94. The fundamental purpose of the Charter Agreement was for Capital Jazz to obtain the use
M/V Independence of the Seas to offer a SuperCruise featuring a jazz themed enhanced
entertainment package and experience.
95. As a result of the impossibility of providing the jazz themed enhanced entertainment package
and experience, the essential purpose of the Charter Agreement has been frustrated.
96. Capital Jazz could not have foreseen the unique severity, impact and duration of the COVID-
19 Pandemic when it executed the Charter Agreement or the surge of infections the Omicron
variant caused when it executed Amendment No. 1. It also believed the SuperCruise could
proceed when it executed Amendment No 2.
97. The parties were relieved of their obligations under the Charter Agreement as amended by
the frustration of its performance.
98. The obligation to pay CruiseFare, to guarantee a specified gratuity level and to tender a
security deposit were obligations assumed in exchange for RCCL’s agreeing: (i) to Charter the
Ship; (ii) to provide the accommodations specified in Section 1.1; (iii) to transport guests to the
ports of call specified in Section 2.1 (as revised in Amendment No. 2); (iv) to embark on the date
specified in Section 2.2 (as revised in Amendment No. 1); (v) to provide the services and
entertainment specified in Article 7; and (vi) to permit Capital Jazz to resell tickets under Section
12.1, to offer merchandise under Section 15.1.2 and to provide entertainment and other services
under Section 15.2.
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99. RCCL would be unjustly enriched and it would be otherwise inequitable if it were permitted
to retain CruiseFare, the advancement of the guaranteed gratuity and security deposit.
100. Capital Jazz is entitled to restitution and/or a refund of the CruiseFare, advancement of the
guaranteed gratuity and security deposit.

COUNT III: BREACH OF CONTRACT
101. Capital Jazz incorporates by reference, as if fully set forth herein, paragraphs 1 – 77
inclusive, 88, 91 and 92 of these Counterclaims.
102. The Travel Health Notice constituted a “public health guideline pertaining to SARS-
CoV/COVID-19” and, as such, Capital Jazz was required and entitled to comply with that Notice
under Section 28(b) of the Charter Agreement as amended.
103. The Travel Health Notice relieved Capital Jazz of its obligations to proceed under the
Charter Agreement since embarking on the SuperCruise would have been inconsistent with the
CDC’s warning against traveling on cruise ships.
104. As Capital Jazz was relieved of its obligations under the Charter Agreement, it is entitled to
a refund of the CruiseFare it paid, guaranteed gratuity amount it advanced and security deposit it
submitted.
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costs as specified in the Agreement, interest and such other relief as this Court deems just and
equitable.
COUNT IV: BREACH OF CHARTER
105. Capital Jazz incorporates by reference, as if fully set forth herein, paragraphs 1-77 inclusive
and 92 of these Counterclaims.
106. Implied as a matter of law in every charter is a warranty of the seaworthiness of the vessel.
The Charter Agreement expressly adopted this warranty in Section 25.1 by specifying that it
shall be governed by the maritime law of the United States.
107. To the extent the parties were not relieved of their obligations under the Charter Agreement,
RCCL breached it obligation to provide a seaworthy vessel in that, upon information and belief,
a. Crew (and previous passengers) on the M/V Independence of the Seas were infected with the
SARS-CoV-2 virus and there was an unacceptable risk that passengers, artists and other
personnel and staff would be infected with a serious, potentially deadly, communicable disease;
b. Boarding and remaining on the ship would present a high risk of infection from crew members
or other guests to a demographic particularly susceptible to serious complications;
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c. Guests risked quarantine if infected regardless of the severity of their symptoms; and/or
d. The cruise could not proceed safely regardless of the precautions taken and/or the ship’s
infection rate as reflected in the cancellation of numerous cruises during the same period.
108. Upon information and belief, including the cancellation of subsequent scheduled
cruises of the M/V Independence of the Seas, the Ship could not have been rendered seaworthy in
time to embark on the date specified in Section 2.2 (as revised in Amendment No. 1) and
transport guests to the ports of call specified in Section 2.1 (as revised in Amendment No. 2).
109. As a direct and proximate result of RCCL’s breach of charter, Capital Jazz was relieved of
all its obligation under the Charter Agreement, including its obligation to pay CruiseFare and
tender a security deposit and guarantee of gratuities in an amount specified in the Charter
Agreement.
110. Capital Jazz is entitled to a refund of the CruiseFare it paid, guaranteed gratuity amount it
advanced and security deposit it submitted.

Caribbean International, in an amount in excess of Four Million, Five Hundred and Sixty
Thousand, Twenty-Two Dollars and Fifty-Five Cents ($4,560,022.54), together with attorneys’
fees and costs as specified in the Agreement, pre- and post-judgment interest and such other
relief as this Court deems just and equitable.
COUNT V: BREACH OF WARRANTY
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111. Capital Jazz incorporates by reference, as if fully set forth herein, paragraphs 1 through 77
inclusive, 92 and 107-108 of these Counterclaims.
112. In Section 12.2 of the Charter Agreement, RCCL warranted that it “

113. Contrary to this warranty, RCCL was not “capable” and/or “qualified” to fulfill
its obligations to provide the accommodations specified in Section 1.1 of the Charter Agreement,
to transport guests to the ports of call specified in Section 2.1 (as revised in Amendment No. 2),
to embark on the date specified in Section 2.2 (as revised in Amendment No. 1), and/or to
provide the services and entertainment specified in Article 7 as a direct and proximate result of
the unseaworthiness of the M/V Independence of the Seas as set forth above and the general
inability to provide a safe environment free of a significant risk of contracting a severe
communicable disease.
RCCL breached the warranty set forth in Section 12.2 of the Charter Agreement.
115. As a direct and proximate result of RCCL’s breach of warranty, Capital Jazz was relieved of
all obligations under the Charter Agreement and is entitled to a refund of the CruiseFare,
guaranteed gratuity amount advanced and security deposit submitted.

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costs as specified in the Agreement, pre- and post-judgment interest, and such other relief as this
COUNT VI: BREACH OF CONTRACT
116. Capital Jazz incorporates by reference, as if fully set forth herein, paragraphs 1 through 77
inclusive and 92 of these Counterclaims.
117. RCCL’s notification that the SuperCruise was cancelled constituted a definitive notice to
guests, including those who remained willing to proceed as scheduled, that the Ship would not
sail and that their tickets would not be honored.
by advising that the Ship would not sail and guest tickets would not be honored, RCCL
anticipatorily breached and repudiated its obligations to provide the accommodations specified in
Section 1.1 of the Charter Agreement, to transport guests to the ports of call specified in Section
2.1 (as revised in Amendment No. 2), to embark on the date specified in Section 2.2 (as revised
in Amendment No. 1), and to provide the services and entertainment specified in Article 7. It
also anticipatory breached and repudiated the rights it granted Capital Jazz to resell tickets under
Section 12.1, to offer merchandise under Section 15.1.2, and to provide entertainment and other
services under Section 15.2 of the Charter Agreement.
119. Even if Capital Jazz had failed to perform any obligations under the Charter Agreement or
otherwise expressed an intention not to proceed, which is expressly denied, RCCL’s cancellation
of the SuperCruise was wrongful and anticipatorily breached and repudiated its obligations under
the Charter Agreement in that it failed to provide Capital Jazz the written notice of default and a
seven day opportunity to cure required in Section 10.1 of the Charter Agreement.
LEGAL\57975674\1
23
120. As a direct and proximate result of RCCL’s breach of contract, Capital Jazz was relieved of
all obligations under the Charter Agreement and is entitled to a refund of the CruiseFare,
guaranteed gratuity amount advance and security deposits.

COUNT VI: BREACH OF CONTRACT
120 Capital Jazz incorporates by reference, as if fully set forth herein, paragraphs 1 through 77
inclusive and 92 of these Counterclaims.
121 Under normal circumstances, close communication between Capital Jazz and RCCL was
necessary to prepare, set-up and execute the SuperCruise. It was even more crucial to adjust and
react to the ever evolving and changing circumstances caused by the surge in SARS-CoV-2
infections and in light of the Travel Health Notice.
122 RCCL’s refusal to respond to Capital Jazz’s inquiries after the Travel Health Notice directly
and proximately deprived it of information necessary to assess whether the SuperCruise would
proceed and/or could proceed safely, to provide up-to-date and accurate information to guests,
artists and staff, and otherwise to respond to their inquiries, to plan for the embarkation and
disembarkation of artists and other performers, and to pursue alternative plans for the
SuperCruise, including using the entertainment normally available on cruises to supplement any
jazz artists who may have remained willing to participate in the SuperCruise.
LEGAL\57975674\1
24
123 RCCL’s refusal to communicate with Capital Jazz after the Travel Health Notice repudiated
its obligations under the Charter Agreement, and breached Section 7 of the Charter Agreement’s
requirement to provide all “meals, entertainment and services normally provided to Guests on a
regular cruise” and Capital Jazz’s rights under Section 12.1 to sell tickets to the SuperCruise and
under Section 15.1.2 to sell merchandise.
124 This conduct also breached RCCL’s obligation “to coordinate with [Capital Jazz] to
facilitate the loading or unloading of Permitted Merchandise” under Section 15.1.2(d) and
facilitate the early loading of necessary equipment, including performance equipment, under
Section 15.3 of the Charter Agreement.
125 Due to the volume and urgency of customer inquiries into the status of the SuperCruise,
Capital Jazz could not further delay responses to those inquiries. As a direct and proximate result
of RCCL’s breaches of contract, Capital Jazz’s response was incomplete and it was unable to
offer any alternative arrangements.
126 To the extent that Capital Jazz’s response violated any of RCCL’s rights under the Charter
Agreement, which is expressly denied, those violations were waived.
127 To the extent Capital Jazz remains bound to the Charter Agreement, which is expressly
denied, RCCL’s prior breaches directly and proximately foreclosed Capital Jazz’s ability to
develop alternative arrangements and minimize its loses.
128 As a direct and proximate result of RCCL’s breach of contract, Capital Jazz is entitled to a
refund of the CruiseFare, guaranteed gratuity amount advance and security deposits.

favor and against Plaintiff/Counterclaim Defendant, Royal Caribbean Cruises, Ltd. d/b/a
LEGAL\57975674\1
25
Royal Caribbean International, in an amount in excess of Seventy-Five Thousand Dollars

($75,000), together with attorneys’ fees and costs as specified in the Agreement, interest and
such other relief as this Court deems just and equitable.
Dated: May 25, 2022
Respectfully submitted,
COZEN O’CONNOR
/s/ Ashley Gomez-Rodon

Ashley Gomez-Rodon
Florida Bar No. 1010237 Agomez-rodon@cozen.com
Southeast Financial Center
200 South Biscayne Boulevard, Suite 3000 Miami, Florida 33131
(305) 358-2996 (Telephone) (305) 704-5955 (Facsimile)
and
Neil Quartaro, Esq.
New York Bar No.: 4155248
3WTC, 175 Greenwich Street, 55th Floor New York, NY 10007
Tel. (212) 453-3934 nquartaro@cozen.com
and
Robert Hayes, Esq. Pennsylvania Bar No.: 33099 1650 Market Street Philadelphia, PA 19103
Tel. (215) 665-2094 rhayes@cozen.com Attorneys for Defendant
CERTIFICATE OF SERVICE
LEGAL\57975674\1
26
I HEREBY CERTIFY that a true and correct copy of the foregoing was filed and served this
25th day of May, 2022 through the Court's CM/ECF on Fausto Sanchez, Esq., David M. Levine,
Esq., Sanchez, Fischer, Levine, LLP, 1200 Brickell Avenue, Suite 750, Miami, Florida 33131.
By: /s/ Ashley Gomez-Rodon Ashley Gomez-Rodon

LEGAL\57975674\1
27

Capital Cruise Countersuit

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Capital Cruise Countersuit

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Case

1:22-cv-20187-DPG Document 47 Entered on FLSD Docket 05/25/2022 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF

ROYAL CARIBBEAN CRUISES, LTD., a ) foreign corporation, doing business as ROYAL )

Plaintiff, ) v. ) CAPITAL JAZZ, INC., a foreign corporation, ) Defendant. )

DEFENDANT/COUNTERCLAIM PLAINTIFF CAPITAL JAZZ, INC.’S AMENDED

PARTIES, JURISDICTION AND VENUE

CASE NO. 22-cv-20187-DPG Jury Trial Demand

Case 1:22-cv-20187-DPG Document 47 Entered on FLSD Docket 05/25/2022 Page 2 of 27

5. RCCL is a corporation that operates a fleet of cruise ships.

Case 1:22-cv-20187-DPG Document 47 Entered on FLSD Docket 05/25/2022 Page 3 of 27

GENERAL ALLEGATIONS A. The Charter Agreement

13. The specified Sail Date was January 16, 2021.

B. The Outbreak of the COVID-19 Global Pandemic

22. In or on about December, 2019, infections in humans by a new strain of corona

virus, identified as SARS-CoV-2, were reported in the People’s Republic of China.

outbreak of the SARS-CoV-2 virus a global pandemic.

Case 1:22-cv-20187-DPG Document 47 Entered on FLSD Docket 05/25/2022 Page 6 of 27

Case 1:22-cv-20187-DPG Document 47 Entered on FLSD Docket 05/25/2022 Page 7 of 27

C. Amendment No. 1 to the Charter Agreement

Case 1:22-cv-20187-DPG Document 47 Entered on FLSD Docket 05/25/2022 Page 8 of 27

D. The Omicron Surge

E. Amendment No. 2 to the Charter Agreement

Agreement and substituted the following:

in Section 28(b) that:

F. The CDC's Travel Health Notice

issued a Travel Health Notice (the "Travel Health Notice").

aboard cruise ships as a reason for the Travel Health Notice.

ships to red, the highest level.

Case 1:22-cv-20187-DPG Document 47 Entered on FLSD Docket 05/25/2022 Page 12 of 27

Case 1:22-cv-20187-DPG Document 47 Entered on FLSD Docket 05/25/2022 Page 13 of 27

Case 1:22-cv-20187-DPG Document 47 Entered on FLSD Docket 05/25/2022 Page 14 of 27

COUNT I: UNJUST ENRICHMENT/RESTITUTION

Case 1:22-cv-20187-DPG Document 47 Entered on FLSD Docket 05/25/2022 Page 15 of 27

Case 1:22-cv-20187-DPG Document 47 Entered on FLSD Docket 05/25/2022 Page 16 of 27

Case 1:22-cv-20187-DPG Document 47 Entered on FLSD Docket 05/25/2022 Page 17 of 27

WHEREFORE, Defendant/Counterclaim Plaintiff, Capital Jazz, Inc., demands judgement in its

COUNT II: UNJUST ENRICHMENT/RESTITUTION

Case 1:22-cv-20187-DPG Document 47 Entered on FLSD Docket 05/25/2022 Page 18 of 27

Case 1:22-cv-20187-DPG Document 47 Entered on FLSD Docket 05/25/2022 Page 19 of 27

WHEREFORE, Defendant/Counterclaim Plaintiff, Capital Jazz, Inc., demands judgement in its

COUNT III: BREACH OF CONTRACT

Case 1:22-cv-20187-DPG Document 47 Entered on FLSD Docket 05/25/2022 Page 20 of 27

WHEREFORE, Defendant/Counterclaim Plaintiff, Capital Jazz, Inc., demands judgement in its

COUNT IV: BREACH OF CHARTER

Case 1:22-cv-20187-DPG Document 47 Entered on FLSD Docket 05/25/2022 Page 21 of 27

WHEREFORE, Defendant/Counterclaim Plaintiff, Capital Jazz, Inc., demands judgement in its

COUNT V: BREACH OF WARRANTY

Case 1:22-cv-20187-DPG Document 47 Entered on FLSD Docket 05/25/2022 Page 22 of 27

112. In Section 12.2 of the Charter Agreement, RCCL warranted that it “

WHEREFORE, Defendant/Counterclaim Plaintiff, Capital Jazz, Inc., demands judgement in its

Case 1:22-cv-20187-DPG Document 47 Entered on FLSD Docket 05/25/2022 Page 23 of 27

COUNT VI: BREACH OF CONTRACT

WHEREFORE, Defendant/Counterclaim Plaintiff, Capital Jazz, Inc., demands judgement in its

COUNT VI: BREACH OF CONTRACT

Case 1:22-cv-20187-DPG Document 47 Entered on FLSD Docket 05/25/2022 Page 25 of 27

WHEREFORE, Defendant/Counterclaim Plaintiff, Capital Jazz, Inc., demands judgement in its

Case 1:22-cv-20187-DPG Document 47 Entered on FLSD Docket 05/25/2022 Page 26 of 27

Royal Caribbean International, in an amount in excess of Seventy-Five Thousand Dollars

Dated: May 25, 2022

/s/ Ashley Gomez-Rodon

(305) 358-2996 (Telephone) (305) 704-5955 (Facsimile)

Case 1:22-cv-20187-DPG Document 47 Entered on FLSD Docket 05/25/2022 Page 27 of 27

By: /s/ Ashley Gomez-Rodon Ashley Gomez-Rodon