Skip to main content

Maritime Law: Maritime Panel at St. Thomas University School of Law

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.

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.

Comments

  1. 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.
    PERHAPS 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!

    ReplyDelete
  2. Hey what a brilliant post I have come a cross and believe me I have been searching out for this similar kind of post for past a week and hardly came across this.
    excess baggage shipping

    ReplyDelete

Post a Comment

Popular posts from this blog

Maritime Law--Florida's Arbitration Code Is Now Revised

Those of us that practice maritime law regularly must always be on the lookout for the contract that may contain an arbitration clause. Thus, any laws related to arbitration are important to those of us practicing in this sector.       The Florida legislature has revised the Florida Arbitration Code ("FAC") and named it the Revised Florida Arbitration Code (the " Revised Act"). Since 1967, the FAC had gone mostly unchanged. The Revised Act addresses concepts that were not addressed in the old law, such as the ability of arbitrators to issue provision remedies, challenges based on notice, consolidation of separate arbitration proceedings, required conflict disclosures by arbitrators, among other major changes. The Revised Act lays out a detailed framework for international arbitration conducted under Florida law and repeals sections of the FAC. The Revised Act spells out what experienced arbitrators knew the case law to be, but codifies it all in one pl

Maritime Law--U.S. Crewmember Required to Arbitrate Claims Applying Norwegian Law

In Alberts v. Royal Caribbean Cruises, Ltd ., No. 15-14775 (11th Cir. Aug. 23, 2016), the U.S. Court of Appeals for the Eleventh Circuit held that a U.S. citizen, working aboard a Royal Caribbean cruise ship is required to arbitrate his claims against Royal Caribbean. Plaintiff, a United States citizen, worked as the lead trumpeter on a passenger Royal Caribbean cruise ship. The ship is a Bahamian flagged vessel with a home port in Fort Lauderdale, Florida. Royal Caribbean, the operator of the vessel, is a Liberian corporation with its principal place of business in Florida. After plaintiff became ill while working for Royal Caribbean, he filed suit alleging unseaworthiness, negligence, negligence under the Jones Act, maintenance and cure, and seaman’s wages and penalties. Royal Caribbean moved to compel arbitration, and the district court granted the motion. This appeal presented an issue of first impression: Whether a seaman’s work in international waters on a cruise ship

Maritime Law--Jury Hits Royal Caribbean Cruises With $20.3M Verdict for Officer's Hand Injury

In Spearman v. Royal Caribbean Cruises , Case No. 2011-023730-CA-01, a Miami-Dade County, Florida jury has awarded $20.3 million to a former crewmember of Royal Caribbean Cruises, whose hand was crushed while coming to the aid of a fellow worker during an emergency test in 2008. After a three-week trial, the jury found the Miami-based cruise company negligent in operating an unseaworthy ship and 100 percent liable for the injuries suffered by Lisa Spearman, who was working an officer on Royal Caribbean’s Voyager of the Seas . Spearman sued the company in 2011, three years after her right hand was caught in a watertight power door during a fire-safety drill. According to her lawyers, Spearman was trying to prevent the door from closing on the ship’s nurse when her hand was pulled into a recess pocket of the sliding door and crushed.  The nurse allegedly breached the company’s safety protocol when she stumbled through the door, prompting the response from Spearman. Accordin