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By Tod J. Everage

Going back to 1943, the Supreme Court in De Zon v. Am. President Lines, Ltd., 318 U.S. 660, 669 (1943), ruled that a shipowner could be liable to a Jones Act seaman for harm suffered as the result of any negligence on the part of the ship’s doctor while treating the seaman. The U.S. Supreme Court has never commented on whether De Zon extended those claims to a passenger. In 1988, the 5th Circuit did just that in Barbetta v. S/S Bermuda Star, 848 F.2d 1364 (5th Cir. 1988), limiting the liability of shipowners to only seaman and not passengers.

The “Barbetta Rule” immunizes a shipowner from respondeat superior liability whenever a ship’s employees render negligent medical care to its passengers. As applied, the rule confers this broad immunity no matter how clear the shipowner’s control over its medical staff or the level of claimed negligence by the medical staff. As is expected, the majority of the recent case law on this issue stems from cruise ship industry, as other types of medically-staffed passenger ships are increasingly rare. And, starting in the late 1980’s cruise ships began forcing passenger to sue in the Southern District of Florida, nearly eliminating passenger suits in the 5th Circuit. Thus, Barbetta has not been challenged in the Fifth Circuit, and for the first time recently became the subject of focus within the 11th Circuit.

On November 10, 2014, the 11th Circuit issued a lengthy, and well-reasoned opinion specifically rejecting the Barbetta Rule, and adopted a fact-based agency determination that would allow a shipowner to be held liable for its medical staff’s negligence in their care of a passenger.

In this case, Pasquale Vaglio fell and hit his head on the Royal Caribbean “Explorer of the Seas.” He went to the infirmary for medical treatment. Plaintiffs allege that the treatment from the on-board staff was so negligent that his life could not be saved. In particular, the ship’s nurse purportedly failed to assess his cranial trauma, neglected to conduct any diagnostic scans, and released him without any treatment. The on-board doctor failed to meet with Vaglio for over four hours. Vagio died from his injuries a week later. Vaglio’s heirs filed suit against Royal Caribbean under two theories: actual agency (respondeat superior) or apparent agency. The Southern District of Florida dismissed the complaint under the Barbetta Rule.

As stated, the 11th Circuit rejected Barbetta’s blanket immunity to shipowners. Recognizing its authority to affect general maritime law, the 11th Circuit sought out to establish new precedent on this issue. “We have repeatedly emphasized that vicarious liability raises fact-bound questions, and we can discern no sound reason in law to carve out a special exemption for all acts of on-board medical negligence. Much has changed in the quarter-century since Barbetta. As we see it, the evolution of legal norms, the rise of a complex cruise industry, and the progression of modern technology have erased whatever utility the rule once may have had.”

The 11th Circuit started with the century-old maritime principle of making principals answer for the negligence of their onboard agents. See, e.g. The Kensington, 183 U.S. 263 (1902); The J.P. Donaldson, 167 U.S. 599, 603 (1897). In other factual contexts, the Supreme Court and all federal circuits have generally applied agency rules “across a rich array of maritime cases.” See, e.g. Suzuki of Orange Park, Inc. v. Shubert, 86 F.3d 1060 (11th Cir. 1996); Gibboney v. Wright, 517 F.2d 1054 (5th Cir. 1975); Matheny v. Tenn. Valley Auth., 557 F.3d 311, 315 (6th Cir. 2009); CEH, Inc. v. F/V Seafarer, 70 F.3d 694 (1st Cir. 1995); McDonough v. Royal Caribbean Cruises, Ltd., 48 F.3d 256 (7th Cir. 1995); Jackson Marine Corp. v. Blue Fox, 845 F.2d 1307 (5th Cir. 1988); De Los Santos v. Scindia Steam Navigation Co. Ltd., 598 F.2d 480 (9th Cir. 1979); Pritchett v. Kimberling Cove, Inc., 568 F.2d 570 (8th Cir. 1977); Ira S. Bushey & Sons, Inc. v. U.S., 398 F.2d 167 (2d Cir. 1968). With this backdrop, the Court acknowledged that there are no bright line rules immunizing cruise ship medical employees for their negligent treatment of passengers. And, the Court saw “nothing inherent in onboard medical negligence, when committed by full-time employees acting within the course and scope of their employment, that justifies suspending the accepted principles of agency.”

Next, the Court acknowledged that several federal circuits have “long barred vicarious liability” in this exact context, starting with Barbetta. In Barbetta, a passenger on a cruise ship sued the ship because the ship’s doctor failed to discover that the passenger had diabetes during treatment. By 1988, neither the Supreme Court, the Fifth Circuit, or any district court under the Fifth Circuit had answered the question of whether De Zon extended to passengers. The Barbetta declined to do so, finding a lack of control by the shipowner over the relationship between the passenger and the ship’s doctor. Next, the Court commented that “ships are not floating hospitals,” that shipowners are not in the business of providing medical care to passengers, and shipowners specifically lack the expertise in properly supervising the medical staff. Bottom line, because the shipowner lacked control over the medical staff’s actions, general maritime law did not impose liability under the doctrine of respondeat superior upon a carrier or ship owner for the negligence of a ship’s doctor who treats the ship’s passengers. The Barbetta Rule has been adopted by some courts, see Cummiskey v. Chandris, S.A., 895 F.2d 107 (2d Cir. 1990); Mumford v. Carnival Corp., 7 F.Supp.3d 1243 (S.D. Fla. 2014); Hilliard v. Kloster Cruise, Ltd., 1990 WL 269897 (E.D. Va. 1990); and rejected by others. See Huntley v. Carnival Corp., 307 F.Supp.2d 1372 (S.D. Fla. 2004); Nietes v. Am. President. Lines, Ltd., 188 F. Supp. 219 (N.D. Cal. 1959); Mack v. Royal Caribbean Cruises, Ltd., 838 N.E. 2d 80 (Ill. App. Ct. 2005).

In analyzing Barbetta in the modern day, the 11th Circuit found it more accurate to say that, “absent any statutory mandate to the contrary, the existence of an agency relationship is a question of fact under the general maritime law.” The Court strongly announced its rejection of Barbetta, “because we can no longer discern a sound basis in law for ignoring the facts alleged in individual medical malpractice complaints and wholly discarding the same rules of agency that we have applied so often in other maritime tort cases.” It found that the Barbetta Rule “now seems to prevail more by the strength of inertia than by the strength of its reasoning.” In exercising its broad admiralty jurisdiction, the 11th Circuit was guided by its “experience and new conditions [to] give rise to new conceptions of maritime concerns.” Now, instead of 19th Century steam ships (focus of Barbetta), the courts (and passengers) are confronted with state-of-the-art cruise ships, complete with well-stocked modern infirmaries and urgent care centers. Today, cruise ships actually exert more control over their medical employees. Though it will be unpopular among passenger vessel owners, it is hard to disagree with the 11th Circuit’s reasoning.

The Court went further to find that the case law is overwhelming in its recognition that principles of vicarious liability in the medical industry. And, the court could find no principle from maritime tort law that justifies treating shipowners so differently from ordinary employers. Importantly, the 11th Circuit found control and an agency relationship between the on-board medical providers and Royal Caribbean, their employer. The Court simply refused to adopt a bright line immunity rule for shipowners, repeatedly asserting that the agency relationship is bogged in the specific facts of the case.

This case is presented here for its erosion of a long-standing Fifth Circuit rule. Beyond that, this particular issue seems germane mainly to cruise ships and thus, the 11th Circuit. And, while it may present well-reasoned ammunition to a plaintiff-passenger who might find a way to sue in the 5th Circuit to attack Barbetta, it has no controlling legal effect here yet. Given the significant liability implications to the cruise ship industry in the 11th Circuit, and the now-existing circuit split on the issue, it would seem likely that Royal Caribbean would want to take writs to the Supreme Court. They would likely argue, as they unsuccessfully did to the 11th Circuit that there needs to be uniformity in maritime law – which also happens to be a relevant issue in the maritime punitive damages arena that may make its way to the Supreme Court soon as well. That being said, it seems unlikely that the Supreme Court would accept the invitation to weigh in on this issue, given the 11th Circuit’s well-reasoned and current explanation.