772 F.3d 1225

United States Court of Appeals,

Eleventh Circuit.

Patricia FRANZA, as Personal Representative of the Estate of Pasquale F. Vaglio, Plaintiff–Appellant,


ROYAL CARIBBEAN CRUISES, LTD., a Liberian corporation, Defendant–Appellee.

No. 13–13067. | Nov. 10, 2014.

PROCEDURAL POSTURE: Estate of cruise ship passenger who allegedly died of injures he sustained when he fell while attempting to get onto trolley at port-of-call brought action against cruise line, alleging negligent medical care and treatment, negligent hiring and training, and other claims. The United States District Court for the Southern District of Florida, dismissed complaint, and estate appealed.

OVERVIEW: In this maritime negligence dispute, an elderly cruise ship passenger fell and bashed his head while the vessel, the “Explorer of the Seas,” was docked at port in Bermuda. The injured traveler, Pasquale Vaglio, was wheeled back onto the ship, where he sought treatment from the onboard medical staff in the ship’s designated medical center. Over the next few hours, Vaglio allegedly received such negligent medical attention 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 with no treatment to speak of. The onboard doctor, for his part, failed even to meet with Vaglio for nearly four hours. Tragically, Vaglio died about a week later. Vaglio’s daughter, appellant Patricia Franza, seeks to hold the cruise line, Royal Caribbean Cruises, Ltd., vicariously liable for the purported negligence of two of its employees, the ship’s doctor and its nurse, under one of two theories: actual agency (also termed respondeat superior) or apparent agency. First, in disposing of Franza’s actual agency claim, the trial court applied a longstanding rule set forth most prominently in Barbetta v. S/S Bermuda Star, 848 F.2d 1364 (5th Cir.1988). Although the general maritime law of the United States has long embraced the principles of agency law, the so-called “Barbetta rule” immunizes a shipowner from respondeat superior liability whenever a ship’s employees render negligent medical care to its passengers. The rule confers this broad immunity no matter how clear the shipowner’s control over its medical staff or how egregious the claimed acts of negligence. Separately, the trial court dismissed Franza’s apparent agency claim as inadequately pled. On appeal, Franza raises two questions of first impression. No binding precedent in this Court or in its predecessor, the former Fifth Circuit Court of Appeals, decided whether a passenger might invoke the principles of actual agency, or those of apparent agency, to impute to a cruise line liability for the medical negligence of its onboard nurse and doctor. After thorough review, the court held that both theories are available in this case. 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 onboard 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 Barbetta rule once may have had. We thus decline to adopt the Barbetta rule, and find that the complaint in this case plausibly establishes a claim against Royal Caribbean under the doctrine of actual agency, as well as a claim under the principles of apparent agency.

OUTCOME: Reversed and remanded for further proceedings consistent with this opinion.



2014 WL 6601147

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United States Court of Appeals,

Eleventh Circuit.

Mallory MOSELEY, Plaintiff–Appellant,


CARNIVAL CORPORATION, a Panamanian corporation, d.b.a. Carnival Cruise Lines, Defendant–Appellee.

No. 14–12928 | Non–Argument Calendar. | Nov. 21, 2014.

PROCEDURAL POSTURE: Mallory Moseley, a passenger on a Carnival Corporation (“Carnival”) cruise ship who was injured at a port of call during the ship’s voyage, appeals the district court’s dismissal with prejudice of her negligence suit against Carnival.

OVERVIEW: On March 20, 2012, Ms. Moseley, a passenger on the Carnival cruise ship Fantasy, visited the bathroom facilities at Freeport Harbour, Bahamas, a port of call that Carnival uses. She sustained severe injuries when a bathroom sink dislodged and fell on her. She filed suit against Carnival on February 4, 2013, alleging in Count I that Carnival was negligent for failure to inspect and maintain the Freeport Harbour bathroom facility, as well as for failure to warn of dangers in the facility. In Count II, she alleged that Carnival was vicariously liable under an agency theory for the negligence of the Freeport Harbour Company (“Freeport”), the operator of the bathroom facilities. Upon Carnival’s motion, the district court dismissed Ms. Moseley’s complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The court concluded that Carnival as a shipowner had no duty to inspect facilities at a port of call1 and that Ms. Moseley had failed to state a claim (1) for negligent failure to warn because she pled no facts showing Carnival knew or should have known of the risk of injury and (2) for vicarious liability because she pled no facts to support Carnival’s alleged agency relationship with Freeport. The court’s first dismissal was without prejudice. Ms. Moseley then filed an amended complaint in which she made few changes to her allegations in Count I. She added factual allegations regarding Carnival’s relationship with Freeport, which she referenced in her amended version of Count II. Her allegations in Count II otherwise remained almost identical to her original complaint. On November 25, 2013, Carnival again moved to dismiss. Ms. Moseley neither timely filed a response nor moved to file a second amended complaint. Four days after Ms. Moseley’s response to the motion to dismiss was due, and after some discovery had been completed, Carnival moved for summary judgment. In her timely response to that motion, Ms. Moseley noted that she also opposed Carnival’s November 25 motion to dismiss. The district court did not immediately rule on either motion, so the parties continued with discovery, pre-trial motions, and trial preparation. And, because the court had previously ordered the parties to mediate their dispute, the court continued to set mediation deadlines. On June 4, 2014, the court granted Carnival’s motion to dismiss and dismissed as moot all pending motions. In so doing, the court noted that Ms. Moseley failed to cure the deficiencies identified in the first dismissal order. On appeal, court agreed with the district court that Ms. Moseley’s amended complaint fails to state a claim upon which relief may be granted. Although it is clear from our case law that Carnival owes Ms. Moseley a duty to warn of dangers at a port of call that Carnival knows or should know to exist, Ms. Moseley failed in her amended complaint to allege any facts that would support Carnival’s actual or constructive notice of danger. Without any factual allegations to support this critical element, Ms. Moseley’s complaint raises no more than a “mere possibility of misconduct,” which is insufficient under Iqbal to withstand a motion to dismiss. Iqbal, 556 U.S. at 678; Chaparro, 639 F.3d at 1336. Similarly, even assuming Carnival could be liable for failure to inspect or maintain the facilities at Freeport Harbour, Ms. Moseley’s claims against Carnival on these bases would fail for the same reason. See id. Accordingly, the district court correctly concluded that the claims Ms. Moseley asserted in Count I fail as a matter of law. Court also agreed with the district court’s conclusion that Ms. Moseley failed to state a claim for relief in Count II, vicarious liability. “[W]e may affirm the district court’s judgment on any ground that appears in the record, whether or not that ground was relied upon or even considered by the court below.” Simpson v. Sanderson Farms, Inc., 744 F.3d 702, 705 (11th Cir.2014) (internal quotation marks omitted). Assuming Ms. Moseley’s amended complaint adequately pled the elements of an agency relationship between Carnival and Freeport, she nevertheless failed to include any facts which, if true, would establish a basis for her allegation that Freeport knew or should have known of the risk by the use of reasonable care and yet failed to correct the problem. Iqbal, 556 U.S. at 678. And, because she has failed adequately to plead the elements of a negligence claim against Freeport, her claim that Carnival is vicariously liable for that negligence must also fail.