Cruise Ship Operator Not Insulated from Responsibility for Health Care Provider

Trial Court Follows Barbetta

The trial court dismissed all the plaintiff's claims. First, in disposing of Franza's actual agency claim, the court applied the rule set forth most famously in Barbetta v. S/S Bermuda Star, 848 F.2d 1364 (5th Cir. 1988). The so-called “Barbetta rule” has been understood to immunize a shipowner from actual-agency liability whenever a ship's employees render negligent medical care to its passengers; this is so in spite of the fact that the general maritime law of the United States has long applied the principles of agency law to other, non-medical, types of negligent actions taken by ship employees. The Barbetta rule has been held to confer this broad immunity from liability no matter how much control the ship owner has over the medical professionals it employs, leaving those treated negligently while onboard ship without any recourse against ship operating companies. The trial court, applying Barbetta to Franza's actual agency claim, concluded that the claim was “predicated on duties of care which are not recognized under maritime law.”

Second, the district court dismissed plaintiff Franza's apparent agency claim on the basis that she did not plead any facts that would tend to show that her father had ever relied on an implication that the contractor doctor and nurse were agents of the cruise liner.

Analysis of Maritime Law

Quoting the case of The Thomas Barlum , 293 U.S. 21, 43, (1934), the Eleventh Circuit began its appellate analysis in Franza by observing that most of the parameters and development of maritime law have been left in the hands of the courts, not Congress: “[W]e enjoy considerable latitude in maritime cases because, under the constitutional grant, the '[b]oundaries' of maritime law generally 'were to be determined in the exercise of the judicial power.'”

The Eleventh Circuit thus looked to precedent, which over more than a century's time has required maritime principals to accept responsibility for the negligence of their onboard agents. See, e.g., The Kensington, 183 U.S. 263, 268, (1902) (characterizing as “unjust and unreasonable” any attempt by carriers to contract around “responsibility for the negligence of ' their servants”); The J.P. Donaldson , 167 U.S. 599, 603 (1897) (holding the shipowner “responsible for injuries caused to third persons by [the] negligence” of ship's captain). In addition, the court observed that the concept of respondeat superior has been applied in maritime law because it is recognized that “shipowners, like other principals, exercise real control over their agents.” See, e.g., Barrios v. La. Const. Materials Co., 465 F.2d 1157, 1164 (5th Cir. 1972) (detailing the maritime principal's control over the operations, which resulted in the the plaintiff's injury). Based on this and other court precedent, the Eleventh Circuit concluded that there is nothing in maritime law, in general, to preclude holding a shipowner responsible for the tortious conduct of its agents. So, why the exception for medical care provision?

The Origins of Barbetta

Despite the federal courts' willingness to hold shipowners responsible for the negligence of their employees and agents, the Barbetta decision, as well as Second and Ninth Circuit decisions (see, e.g. The Great Northern, 251 F. 826, 832 (9th Cir. 1918); The Korea Maru, 254 F. 397, 399 (9th Cir. 1918)), have held that under no conceivable set of facts may a shipowner ever be held vicariously responsible for the tortious acts of its medical care personnel. The first thing the court therefore had to deal with was to understand why Barbetta was decided as it was, and then determine if that reasoning should be followed by the Eleventh Circuit.

The Franza court explained that the Barbetta rule came about based on three “pillars” of reasoning. The first of these is that the medical profession, by its very nature, is not susceptible to control by a principal: Medical professionals must use their training and expertise to analyze a patient's needs and treat him or her, and no boss can or should intervene. Thus, principals cannot be held responsible for the consequences of a medical professional's medical decisions. But the appellate court in Franza pointed out that this type of thinking has gone by the wayside on dry land ' principals are often held responsible for the negligence of their land-based medical employees ' and it could find no blanket reason why principals employing medical professionals on a ship should be treated any differently.

Another aspect of this first “pillar” of Barbetta is the notion that the patient controls the doctor/patient relationship. The Supreme Judicial Court of Massachusetts explained this concept in the shipboard medical negligence case of O'Brien v. Cunard S.S. Co., 154 Mass. 272 (Mass. 1891)), a case heavily cited by the Barbetta court:

[The passengers] may employ the ship's surgeon, or some other physician or surgeon who happens to be on board, or they may treat themselves if they are sick, or may go without treatment if they prefer; and, if they employ the surgeon, they may determine how far they will submit themselves to his directions, and what of his medicines they will take and what reject, and whether they will submit to a surgical operation or take the risk of going without it. The master or owners of the ship cannot interfere in the treatment of the medical officer when he attends a passenger. He is not their servant, engaged in their business, and subject to their control as to his mode of treatment.

The Franza appeals court found several problems with what it termed “this load-bearing Barbetta principle.” For example, how would an unconscious patient “choose” a doctor or dictate the extent of the care he would accept? And what about those circumstances in which an employer requires an employee to submit to a medical test in order to obtain or retain employment? And, when a passenger is onboard ship, how many meaningful choices of medical care providers has he got? He is more likely to have to take what he can get in the ship's clinic or go without any care whatsoever.

The second pillar of Barbetta is that shipping lines are not in the business of providing medical care, so they cannot be held responsible when the rendering of such care goes awry. But the Eleventh Circuit was not buying this argument, explaining, “It seems to us disingenuous for large cruise lines to disclaim any medical expertise when they routinely provide access to extensive medical care in the infirmaries they have constructed for this very purpose.” The court conceded that, of course, a cruise ship is different from a hospital, but it noted also that “under basic agency principles, the scope of an employer's vicarious liability is not limited to negligence arising from its primary business. Instead, common law courts regularly have imputed liability for actions taken 'in the scope of [the agent's] authority or employment,' Meyer v. Holley, 537 U.S. 280, 285, [ ], without further requiring that any such conduct implicate the principal's core business.” Thus, it should follow that, even if a person is employed to perform medical services and does perform them within the scope of that employment, the application of vicarious liability might be appropriate.

In this context, the court compared cruise lines with universities, both of which are not in the primary business of providing medical care, but both of which generally do provide access to medical care. Universities have been held not necessarily exempt from vicariously responsibility for the medical negligence of their medical clinic and hospital personnel (see, e.g., Emory Univ. v. Porubiansky, 248 Ga. 391, 282 S.E. 2d 903 (Ga. 1981)) ' why should shipowners be treated any differenlty?

With regard to the second pillar of Barbetta, the court also noted that outside the medical context, shipowners have historically been held vicariously liable for the misconduct of employees or non-medical contractors who provide services that are not connected to the primary business of operating a cruise line. Among the examples the court cited was Muratore v. M/S Scotia Prince, 845 F.2d 347, 349-50 (1st Cir. 1988), in which a shipowner was deemed responsible when its subcontractor's photographer-employees tortiously photographed and harassed a passenger.

The third pillar of Barbetta and similar decisions is that ships, being out at sea and in ports in far-flung countries, are out of touch with ship companies; therefore, the thinking goes, those ship companies are not able to exercise control over the medical personnel on-board and should not be held responsible for their negligence. The Eleventh Circuit was not convinced, noting that while such circumstances may exist, there was a “[g]laring problem] with assuming that they did. For instance, a shipowner and the ship (and its staff) might be close-by each other if the ship has not left the port or is not far out to sea. Therefore, the court felt that “to the extent that physical separation vitiates control, the relevant questions are fact-based and ill-suited to resolution by a per se rule of law.” And even if a ship is physically distant from the shipowner at the time medical care is provided, modern communication methods that were nonexistent at the time Barbetta was decided make it possible for shipboard medical personnel to communicate freely with land-based medical personnel and cruise line operators.

Rejecting Blanket Immunity

For the foregoing reasons (and others), the Eleventh Circuit concluded in Franza that it was not going to apply the Barbetta rule, which it termed “an outdated rule that serves no useful purpose in modern maritime law.” Rather, the court declared that “absent any statutory mandate to the contrary, the existence of an agency relationship is a question of fact under the general maritime law.”

Next month we will see how the court interpreted the facts in Franza to determine whether the shipowner defendant could be held vicariously liable under agency principles for the alleged medical negligence of its onboard medical practitioners. We will also see how the court disposed of a question of first impression in U.S. maritime law: whether a passenger may use apparent agency principles to hold a cruise line vicariously liable for the onboard medical negligence of its employees.

Janice G. Inman is Editor-in-Chief of this newsletter.

Breaking with longstanding precedent, the U.S. Court of Appeals for the Eleventh Circuit has declined to follow the Fifth Circuit's decision in Barbetta v. S/S Bermuda Star , 848 F.2d 1364 (5th Cir. 1988), concluding after much analysis that previous case law holding cruise ship operators blameless for the negligence of their onboard medical personnel is based on outdated norms. This decision may have far-reaching consequences for shipboard medical malpractice claimants and their representatives.

The case of Franza v. Royal Caribbean Cruises, LTD, 2014 U.S. App. LEXIS 21375 (11th Cir., 11/10/14), involved an elderly man who was injured when he slipped and fell in Bermuda near the ship on which he was traveling. Unconscious, the man was carried on-board the ship where he was seen by the ship's nurse. She allegedly did almost nothing to treat him, and released him before he was seen by the doctor. The doctor saw the injured passenger four hours after he sustained his injury, but the doctor too allegedly failed to render adequate treatment. The passenger died of his injuries a week later.

The deceased's daughter, Patricia Franza, brought suit in the U.S. District Court for the Southern District of Florida under 28 U.S.C. ' 1333 and the general maritime law against the cruise ship's operator, Royal Caribbean, seeking damages on the theories of respondeat superior (otherwise known as actual agency ' i.e., that the doctor and nurse were employees of the cruise ship line and acting on its behalf) or of apparent agency (i.e., that the cruise line implied that the doctor and nurse were working on its behalf and the deceased relied on that manifestation to his detriment). Franza made no individual claims against any of the medical personnel involved.

Trial Court Follows Barbetta

The trial court dismissed all the plaintiff's claims. First, in disposing of Franza's actual agency claim, the court applied the rule set forth most famously in Barbetta v. S/S Bermuda Star , 848 F.2d 1364 (5th Cir. 1988). The so-called “Barbetta rule” has been understood to immunize a shipowner from actual-agency liability whenever a ship's employees render negligent medical care to its passengers; this is so in spite of the fact that the general maritime law of the United States has long applied the principles of agency law to other, non-medical, types of negligent actions taken by ship employees. The Barbetta rule has been held to confer this broad immunity from liability no matter how much control the ship owner has over the medical professionals it employs, leaving those treated negligently while onboard ship without any recourse against ship operating companies. The trial court, applying Barbetta to Franza's actual agency claim, concluded that the claim was “predicated on duties of care which are not recognized under maritime law.”

Second, the district court dismissed plaintiff Franza's apparent agency claim on the basis that she did not plead any facts that would tend to show that her father had ever relied on an implication that the contractor doctor and nurse were agents of the cruise liner.

Analysis of Maritime Law

Quoting the case of The Thomas Barlum , 293 U.S. 21, 43, (1934), the Eleventh Circuit began its appellate analysis in Franza by observing that most of the parameters and development of maritime law have been left in the hands of the courts, not Congress: “[W]e enjoy considerable latitude in maritime cases because, under the constitutional grant, the '[b]oundaries' of maritime law generally 'were to be determined in the exercise of the judicial power.'”

The Eleventh Circuit thus looked to precedent, which over more than a century's time has required maritime principals to accept responsibility for the negligence of their onboard agents. See, e.g., The Kensington, 183 U.S. 263, 268, (1902) (characterizing as “unjust and unreasonable” any attempt by carriers to contract around “responsibility for the negligence of ' their servants”); The J.P. Donaldson , 167 U.S. 599, 603 (1897) (holding the shipowner “responsible for injuries caused to third persons by [the] negligence” of ship's captain). In addition, the court observed that the concept of respondeat superior has been applied in maritime law because it is recognized that “shipowners, like other principals, exercise real control over their agents.” See, e.g., Barrios v. La. Const. Materials Co. , 465 F.2d 1157, 1164 (5th Cir. 1972) (detailing the maritime principal's control over the operations, which resulted in the the plaintiff's injury). Based on this and other court precedent, the Eleventh Circuit concluded that there is nothing in maritime law, in general, to preclude holding a shipowner responsible for the tortious conduct of its agents. So, why the exception for medical care provision?

The Origins of Barbetta

Despite the federal courts' willingness to hold shipowners responsible for the negligence of their employees and agents, the Barbetta decision, as well as Second and Ninth Circuit decisions (see, e.g. The Great Northern, 251 F. 826, 832 (9th Cir. 1918); The Korea Maru, 254 F. 397, 399 (9th Cir. 1918)), have held that under no conceivable set of facts may a shipowner ever be held vicariously responsible for the tortious acts of its medical care personnel. The first thing the court therefore had to deal with was to understand why Barbetta was decided as it was, and then determine if that reasoning should be followed by the Eleventh Circuit.

The Franza court explained that the Barbetta rule came about based on three “pillars” of reasoning. The first of these is that the medical profession, by its very nature, is not susceptible to control by a principal: Medical professionals must use their training and expertise to analyze a patient's needs and treat him or her, and no boss can or should intervene. Thus, principals cannot be held responsible for the consequences of a medical professional's medical decisions. But the appellate court in Franza pointed out that this type of thinking has gone by the wayside on dry land ' principals are often held responsible for the negligence of their land-based medical employees ' and it could find no blanket reason why principals employing medical professionals on a ship should be treated any differently.

Another aspect of this first “pillar” of Barbetta is the notion that the patient controls the doctor/patient relationship. The Supreme Judicial Court of Massachusetts explained this concept in the shipboard medical negligence case of O ' Brien v. Cunard S.S. Co. , 154 Mass. 272 (Mass. 1891)), a case heavily cited by the Barbetta court:

[The passengers] may employ the ship's surgeon, or some other physician or surgeon who happens to be on board, or they may treat themselves if they are sick, or may go without treatment if they prefer; and, if they employ the surgeon, they may determine how far they will submit themselves to his directions, and what of his medicines they will take and what reject, and whether they will submit to a surgical operation or take the risk of going without it. The master or owners of the ship cannot interfere in the treatment of the medical officer when he attends a passenger. He is not their servant, engaged in their business, and subject to their control as to his mode of treatment.

The Franza appeals court found several problems with what it termed “this load-bearing Barbetta principle.” For example, how would an unconscious patient “choose” a doctor or dictate the extent of the care he would accept? And what about those circumstances in which an employer requires an employee to submit to a medical test in order to obtain or retain employment? And, when a passenger is onboard ship, how many meaningful choices of medical care providers has he got? He is more likely to have to take what he can get in the ship's clinic or go without any care whatsoever.

The second pillar of Barbetta is that shipping lines are not in the business of providing medical care, so they cannot be held responsible when the rendering of such care goes awry. But the Eleventh Circuit was not buying this argument, explaining, “It seems to us disingenuous for large cruise lines to disclaim any medical expertise when they routinely provide access to extensive medical care in the infirmaries they have constructed for this very purpose.” The court conceded that, of course, a cruise ship is different from a hospital, but it noted also that “under basic agency principles, the scope of an employer's vicarious liability is not limited to negligence arising from its primary business. Instead, common law courts regularly have imputed liability for actions taken 'in the scope of [the agent's] authority or employment,' Meyer v. Holley , 537 U.S. 280, 285, [ ], without further requiring that any such conduct implicate the principal's core business.” Thus, it should follow that, even if a person is employed to perform medical services and does perform them within the scope of that employment, the application of vicarious liability might be appropriate.

In this context, the court compared cruise lines with universities, both of which are not in the primary business of providing medical care, but both of which generally do provide access to medical care. Universities have been held not necessarily exempt from vicariously responsibility for the medical negligence of their medical clinic and hospital personnel ( see, e.g., Emory Univ. v. Porubiansky , 248 Ga. 391, 282 S.E. 2d 903 (Ga. 1981)) ' why should shipowners be treated any differenlty?

With regard to the second pillar of Barbetta, the court also noted that outside the medical context, shipowners have historically been held vicariously liable for the misconduct of employees or non-medical contractors who provide services that are not connected to the primary business of operating a cruise line. Among the examples the court cited was Muratore v. M/S Scotia Prince , 845 F.2d 347, 349-50 (1st Cir. 1988), in which a shipowner was deemed responsible when its subcontractor's photographer-employees tortiously photographed and harassed a passenger.

The third pillar of Barbetta and similar decisions is that ships, being out at sea and in ports in far-flung countries, are out of touch with ship companies; therefore, the thinking goes, those ship companies are not able to exercise control over the medical personnel on-board and should not be held responsible for their negligence. The Eleventh Circuit was not convinced, noting that while such circumstances may exist, there was a “[g]laring problem] with assuming that they did. For instance, a shipowner and the ship (and its staff) might be close-by each other if the ship has not left the port or is not far out to sea. Therefore, the court felt that “to the extent that physical separation vitiates control, the relevant questions are fact-based and ill-suited to resolution by a per se rule of law.” And even if a ship is physically distant from the shipowner at the time medical care is provided, modern communication methods that were nonexistent at the time Barbetta was decided make it possible for shipboard medical personnel to communicate freely with land-based medical personnel and cruise line operators.

Rejecting Blanket Immunity

For the foregoing reasons (and others), the Eleventh Circuit concluded in Franza that it was not going to apply the Barbetta rule, which it termed “an outdated rule that serves no useful purpose in modern maritime law.” Rather, the court declared that “absent any statutory mandate to the contrary, the existence of an agency relationship is a question of fact under the general maritime law.”

Next month we will see how the court interpreted the facts in Franza to determine whether the shipowner defendant could be held vicariously liable under agency principles for the alleged medical negligence of its onboard medical practitioners. We will also see how the court disposed of a question of first impression in U.S. maritime law: whether a passenger may use apparent agency principles to hold a cruise line vicariously liable for the onboard medical negligence of its employees.

Janice G. Inman is Editor-in-Chief of this newsletter.