Today, I had the pleasure of being part of a Maritime Panel at my alma mater, St. Thomas University School of Law. Joining me on the Panel were other St. Thomas alumni, Christine M. Dimitriou of Mase Lara Eversole and Kerry A. Nierenberg of Lipcon, Marguiles, Alsina and Winkleman.
The topics discussed were Class Actions against cruise lines, the operational realities of a Costa Concordia tragedy occurring in the U.S., exclusions in marine insurance policies, unseaworthiness and the current status of punitive damages for unseaworthiness and other maritime claims. However the topic which garnered the most lively discussion was the current state of the law regarding ship owner liability for negligence of ships' doctors and medical staff. Under Mascolo v. Costa Crociere, S.p.A., 726 F. Supp. 1285 (S.D. Fla. 1989), a ship operator has no vicarious liability for negligence of a ship's doctor on the ground that it has no control over the physician/patient relationship where the passenger contract of carriage provides that a ship's doctor is not an agent of the carrier and services were to be rendered at the passenger's expense, a passenger carrier is not vicariously liable for the negligence of its ship's doctor or his staff in treating a passenger. Barbetta v. S.S. Bermuda Star, 848 F.2d 1364 (5th Cir. 1988) dictum states that a carrier may have no vicarious liability for the negligence of a ship's doctor irrespective whether the doctor is an employee of the carrier or an independent carrier. Fairley v. Royal Cruise Line, Ltd., 1993 AMC 1633 (S.D. Fla. 1993), expressed criticism of the Barbetta rule and denied summary judgment sought by a carrier.
There has been a tortured progeny post-Barbetta, some courts following Fairley and others following Barbetta, ultimately creating a majority rule in the Southern District of Florida of no vicarious liability for the negligence of an independent ship's doctor. Plaintiff attorneys then attacked this line of cases by alleging passenger reliance on statements that the doctor was held out as an officer and member of the crew of the ship on the grounds of apparent agency. Thus far, this has been rejected on the grounds that it is unreasonable as a matter of law for a passenger to conclude that a ship's medical staff were apparent agents of the carrier.
This is an anomaly where the law relative to negligent treatment of an employee is established by other precedent: in the context of negligent treatment of a seaman, the employer of the doctor and seaman are vicariously liable for the doctor's negligence. See De Zon v. American President Lines, Ltd., 180 U.S. 660 (1943). The panel discussed that the entry into force of the Maritime Labor Convention may ultimately resurrect this anomaly. As the ship owner is required under the MLC to provide treatment to a seaman on board ship similar to what that seaman can receive on land, we queried why paying passengers are not entitled to that same medical treatment? Something to think about...
If you are interested in contacting me, please feel free to write me at mov@chaloslaw.com.
Photo of Carnival Triumph
The topics discussed were Class Actions against cruise lines, the operational realities of a Costa Concordia tragedy occurring in the U.S., exclusions in marine insurance policies, unseaworthiness and the current status of punitive damages for unseaworthiness and other maritime claims. However the topic which garnered the most lively discussion was the current state of the law regarding ship owner liability for negligence of ships' doctors and medical staff. Under Mascolo v. Costa Crociere, S.p.A., 726 F. Supp. 1285 (S.D. Fla. 1989), a ship operator has no vicarious liability for negligence of a ship's doctor on the ground that it has no control over the physician/patient relationship where the passenger contract of carriage provides that a ship's doctor is not an agent of the carrier and services were to be rendered at the passenger's expense, a passenger carrier is not vicariously liable for the negligence of its ship's doctor or his staff in treating a passenger. Barbetta v. S.S. Bermuda Star, 848 F.2d 1364 (5th Cir. 1988) dictum states that a carrier may have no vicarious liability for the negligence of a ship's doctor irrespective whether the doctor is an employee of the carrier or an independent carrier. Fairley v. Royal Cruise Line, Ltd., 1993 AMC 1633 (S.D. Fla. 1993), expressed criticism of the Barbetta rule and denied summary judgment sought by a carrier.
There has been a tortured progeny post-Barbetta, some courts following Fairley and others following Barbetta, ultimately creating a majority rule in the Southern District of Florida of no vicarious liability for the negligence of an independent ship's doctor. Plaintiff attorneys then attacked this line of cases by alleging passenger reliance on statements that the doctor was held out as an officer and member of the crew of the ship on the grounds of apparent agency. Thus far, this has been rejected on the grounds that it is unreasonable as a matter of law for a passenger to conclude that a ship's medical staff were apparent agents of the carrier.
This is an anomaly where the law relative to negligent treatment of an employee is established by other precedent: in the context of negligent treatment of a seaman, the employer of the doctor and seaman are vicariously liable for the doctor's negligence. See De Zon v. American President Lines, Ltd., 180 U.S. 660 (1943). The panel discussed that the entry into force of the Maritime Labor Convention may ultimately resurrect this anomaly. As the ship owner is required under the MLC to provide treatment to a seaman on board ship similar to what that seaman can receive on land, we queried why paying passengers are not entitled to that same medical treatment? Something to think about...
If you are interested in contacting me, please feel free to write me at mov@chaloslaw.com.
VERY TRUE, DEAR MICHELLE, WHY ARE NOT THE PASSENGERS ENTITLED TO THE SAME MEDICAL TREATMENT THAT THE SEAMEN ARE ENTITLED TOO? EVEN WITH MORE REASON IF THE PASSENGERS ARE PAYING A FARE FOR THEIR CRUISE TRIPS/VOYAGES.
ReplyDeletePERHAPS WE SHALL WAIT AND SEE THE RESULTS OF THE INDEPENDENT AND CLASS ACTIONS THAT MAY/WILL ARISE FROM THE ROYAL CARIBBEAN CRUISE LINE "EXPLORER OF THE SEAS" ALLEGED NOROVIRUS GENERAL INFECTION CASE; OR THE RESULTS OF THE "CARNIVAL TRIUMPH" CASE/S BEING KNOWN BY THE FEDERAL JUDGE DONALD GRAHAM, WHOSE DECISION IN THIS REGARD IS ANTICIPATED TO BE RENDERED WITHIN A COUPLE OF MONTHS. PERHAPS HE COULD FIND AND DECIDE THAT THE TERMS OF CONDITIONS AS PRE-PRINTED ON THE CRUISE TICKETS ARE OVERREACHING, AND BECAUSE THE SAME ARE CONTRACTS OF ADHESION (WITH SUCH PRE-SET TERMS & CONDITIONS THAT EVERYONE SUPPOSEDLY TACITLY HAS TO ACCEPT/THAT ARE AUTOMATICALLY IMPOSED TO ALL PASSENGERS WHEN THEY PURCHASE A TICKET), THE SAID JUDGE MAY DECIDE THAT SUCH ARE NOT IMPOSABLE NEITHER MANDATORY TO THE PASSENGERS, AS PRACTICALLY NO ONE EVER READS THE SAME, ALWAYS IN VERY SMALL PRINTING AND AT THE BACK OF THE TICKETS, ESPECIALLY IF HE TAKES INTO CONSIDERATION THAT THE PASSENGERS COULD NOT EVER FORESEE THE REACH AND FULL CONSEQUENCES AND LIMITATIONS OF SUCH TERMS & CONDITION, NEVER PROPERLY AND FULLY MADE KNOWN TO THE PASSENGERS, A PROBLEM LONG SOLVED BY THE FRENCH COURTS AS EVIDENCED IN FRENCH JURISPRUDENCE & DOCTRINE (MAZAUD-TUNC, LOUIS JOSSERAND & OTHERS).
IT WAS INDEED A VERY INTERESTING MARITIME PANEL HELD THAT ONE HELD AT YOUR ALMA MATER, ST. THOMAS UNIVERSITY SCHOOL OF LAW. KEEP THE GOOD WORK!
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