Jane Doe as personal representative for the Estate of John Doe v. NCL Bahamas, Ltd.

Lipcon, Margulies, Alsina & Winkleman, P.A

September 21, 2012

Jane Doe as personal representative for the Estate of John Doe v. NCL Bahamas, Ltd.

Response to Motion to Dismiss

When passengers fall ill or are injured on a cruise ship, they often seek treatment from the ship’s onboard medical facility. Unfortunately, that facility can be ill equiped to handle emergencies. The medical staff working on the ship is usually not licensed in the United States, but rather in a foreign jurisdiction with less rigorous standards. What this can lead to is substandard medical care and a worsening of the passengers condition. In this case, a male passenger suffered from a severe allergic reaction after accidentally ingesting nuts during a meal. The ship’s medical team failed to perform a life-saving trachiotomy on the passenger who passed away shortly thereafter. Passengers may be surprised to learn that cruise lines are typically not held responsible for the negligent medical care provided by their doctors. In this case, NCL is seeking to escape liability for their doctor’s failure to perform a life-saving medical procedure. Our experienced maritime lawyers argue on behalf of the passenger that the law should be changed to hold cruise lines accountable for negligent medical care provided by their employees.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 11-cv-23904-COOKE/TURNOFF

JANE DOE, as personal representative of the estate of JOHN DOE, deceased,
Plaintiff,

v.

NCL (Bahamas) LTD., d/b/a NCL,
MARYKE LOUBSER, MD, and
MARTHA BOTHA,
Defendants.
___________________________/

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT NCL (BAHAMAS) LTD.’S MOTION TO DISMISS COUNTS I, II AND III PLAINTIFF’S AMENDED COMPLAINT AND INCORPORATED MEMORANDUM OF LAW

COMES NOW, the Plaintiff, JANE DOE, as personal representative of the estate of JOHN DOE, deceased, and files her response in opposition to Defendant NCL (Bahamas) LTD.’S, d/b/a NCL (“NCL”) Motion to Dismiss Counts I, II and III of Plaintiff’s Amended Complaint [D.E. 80], and for good cause relies on the following memorandum of law:

MEMORANDUM OF LAW

NCL’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT SHOULD BE DENIED ON ALL GROUNDS. FIRST, THE TIME HAS COME TO OVERTURN BARBETTA v. BERMUDA STAR BECAUSE IT IS OUTDATED, DANGEROUS AND UNJUST AND NO LONGER REFLECTS THE REALITIES OF TODAY’S CRUISE INDUSTRY. ROUGHLY 12,000,000 CRUISE SHIP PASSENGERS ARE PUT AT RISK EACH YEAR BECAUSE OF THE SUBSTANDARD MEDICAL CARE THAT BARBETTA PROPAGATES. REMARKABLY, HEREIN THE MEDICAL DEFENDANTS ARE EXPRESSLY REFERRED TO AS “EMPLOYEES” OF NCL, WHICH SUPPORTS THE POSITION THAT THEY ARE SUBJECT TO THE CONTROL OF NCL AND THEREBY EVISCERATES BARBETTA. SECOND, ESTABLISHED PRECEDENT HOLDS THAT NCL CAN BE HELD LIABLE FOR THE ACTS OF THE MEDICAL DEFENDANTS PURSUANT TO THE DOCTRINE OF APPARENT AGENCY. THIRD, THE PLAINTIFF PROPERLY PLED A CLAIM FOR NEGLIGENCE AGAINST NCL. FOURTH, THE DEATH ON THE HIGH SEAS ACT EXPRESSLY ALLOWS FOR NON-PECUNIARY DAMAGES BASED ON FOREIGN LAW.

I. BACKGROUND.

The Plaintiff brought this case on behalf of her husband, decedent JOHN DOE, who suffered a severe anaphylactic shock and died from consuming a cookie at the buffet-style dining room that contained nuts and/or nut products aboard Defendant’s vessel, the Norwegian Spirit. [D.E. 70, 18, 19]. Mr. DOE suffered with a nut allergy and was forbidden from consuming foods with nuts and/or nut products. [D.E. 70, 17]. Prior to consuming the cookie, Mr. DOE asked one of Defendant’s employees if the cookies contained nuts, who represented they did not contain any nuts or nut derivatives. [D.E. 70, 18]. The buffet-area failed to post any warning signs that the subject cookies contained nuts and/or nut products. [D.E. 70, 21, 22]. When Mr. DOE began to go into an anaphylactic shock, it took NCL and/or the Medical Defendants too long to respond to Mrs. DOE calls and cries for help. [D.E. 70, 26(i), 26(k), 36(a), 36(f), 36(h), 47(a), 47(h), 53(a), 53(h)]. Once medical personnel came to the scene, the ship’s doctor and/or nurses failed to adequately perform a tracheotomy to save Mr. DOE. [D.E. 70, 18, 36(i), 43, 47(i), 53(i)].

On August 16, 2012, Plaintiff filed her Amended Complaint against NCL, Dr. Maryke Loubser (ship’s doctor) and Nurse Martha Botha (ship’s nurse) (Dr. Loubser and Nurse Botha hereinafter collectively referred to as “the Medical Defendants”). [D.E. 70]. Plaintiff’s Amended Complaint alleges causes of action sounding in negligence, including negligence based on theories of vicarious liability based on respondeat superior and apparent agency. On August 4, 2012, NCL filed their Motion to Dismiss Counts I, II and III of Plaintiff’s Amended Complaint.[1] [D.E. 80]. As shown below, NCL’s Motion should be denied.

II. STANDARD OF REVIEW.

A motion to dismiss for failure to state a claim merely tests the sufficiency of the complaint; it does not decide the merits of the case. Milburn v. United States, 734 F.2d 762, 765 (11th Cir. 1984). In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept the facts of the complaint as true and view them, and any reasonable inferences that can be drawn from them, in the light most favorable to the non-moving party. Magulata v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004)(quoting Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998)). Only a complaint that states a plausible claim for relief survives a motion to dismiss. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955 (2007)). Determining whether a complaint states a plausible claim for relief is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. Id.

III. COUNT II—VICARIOUS LIABILITY BASED ON RESPONDEAT SUPERIOR. THE TIME HAS COME TO OVERTURN BARBETTA BECAUSE IT IS OUTDATED, DANGEROUS AND UNJUST. AND NCL’S OWN CONTRACTS OF EMPLOYMENT WITH THE MEDICAL DEFENDANTS EXPRESSLY REFER TO THEM AS “EMPLOYEES.”

NCL cites to Barbetta v. S/S Bermuda Star to support their claim that NCL is not liable for the negligence of the Medical Defendants based on the doctrine of respondeat superior. Under the majority rule of Barbetta (neither the United States Supreme Court nor the Eleventh Circuit Court of Appeals has addressed this issue), if a cruise line’s doctor is negligent in treating a passenger, the cruise line cannot be held vicariously liable for the doctor’s negligence. Barbetta v. S/S Bermuda Star, 848 F.2d 1364, 1369 (5th Cir. 1988). The Barbetta court’s rationale was two-fold: (1) the cruise line has a lack of control over the relationship between the passenger and physician and (2) the cruise line has a limited knowledge of medicine and is not in the business of providing medical services to passengers. Id. Until recently, the “lone beacon of dissent” was Nietes v. American President Lines, Ltd., which held:

[W]here a ship’s physician is in the regular employment of a ship, as a salaried member of the crew, subject to the ship’s discipline and the master’s orders, and presumably also under the direction and supervision of the company’s chief surgeon through modern means of communication, he is, for the purposes of respondeat superior at least, in the nature of an employee or servant for whose negligent treatment of a passenger a shipowner may be held liable. Nietes v. American President Lines, Ltd., 188 F. Supp. 219, 220 (N.D. Cal. 1959)

Recently, several courts have adopted the Nietes rationale and rejected Barbetta. See Carlisle v. Carnival Corp., 864 So.2d 1, 5 (Fla. 3d DCA 2003; Huntley v. Carnival Corp., 307 F.Supp.2d 1372, 1374 (S.D. Fla. 2004). In a thorough and well-reasoned opinion, the Carlisle Court rejected Barbetta’s finding that a passenger at sea has any meaningful control over his relationship with the ship’s doctor, finding instead that “a cruise passenger at sea and in medical distress does not have any meaningful choice but to seek treatment from the ship’s doctor.” Id.; see also Fairley v. Royal Cruise Line, LTD., 1993 A.M.C. 1633, 1638 (S.D. Fla. 1993). Moreover, Carlisle rejected the argument that a cruise line is not in the business of providing its passengers with medical care and thus, lacks the necessary expertise to be held vicariously liable for the ship doctor’s negligence. Id. at 6. Instead, the Court reasoned that because a seriously ill or injured passenger is foreseeable and likely to disrupt maritime pursuits, such incidents can be found to be “substantially related to traditional maritime activity.” Id.

Additionally, the Court found that Carnival exercised a certain amount of control over the doctor’s medical services because the cruise line provided the medical supplies, selected the nurses and set the hours of operation for the infirmary. Id. at 7. The Court also noted that “the cruise line is already held vicariously liable for the negligence of the same ship’s doctor in the treatment of hundreds of people—the crew.” Id. The Carlisle Court concluded that “regardless of the contractual status ascribed to the doctor [as an independent contractor], for purposes of fulfilling the cruise line’s duty to exercise reasonable care, the ship’s doctor is an agent of the cruise lie whose negligence should be imputed to the cruise line.Id. (emphasis added).

On review, the Florida Supreme Court expressly recognized the soundness of Nietes in light of the changes of the world in the last century. However, because it was a maritime case, the Florida Supreme Court reversed and found that the court was bound to follow the majority position of Barbetta. Carnival Corp. v. Carlisle, 953 So. 2d 461, 470 (Fla. 2007).

Accordingly, this Honorable Court can either follow the majority rule espoused in Barbetta, which holds that a cruise line cannot be vicariously liable for the medical negligence of its shipboard physician, or to adopt the more well-reasoned view of Nietes and its progeny, which holds that a cruise line is vicariously liable for the medical negligence of its shipboard physician. After examining the legal underpinnings of both views, the extensive criticism of Barbetta by legal scholars and the present-day realities of the cruise industry, this Honorable Court should follow Nietes, not Barbetta. To hold otherwise places nearly 12,000,000 cruise passengers (annually) at a grave risk of substandard medical care with no recourse.

(1) BARBETTA IS BASED ON FLAWED AND OUTMODED ASSUMPTIONS OF THE MODERN-DAY CRUISE SHIP INDUSTRY.

Specifically, this Honorable Court should reject Barbetta in favor of Nietes because it is based on flawed and outmoded assumptions regarding the modern-day cruise ship industry and the provision of shipboard medical services to passengers. The majority of cases upon which Barbetta is based were decided long before the advent of modern-day passenger cruising. See The Korea Maru, 254 F. 397, 399 (9th Cir. 1918); The Great Northern, 251 F. 826 (9th Cir. 1918); Branch v. Compagnie Generale Transatlantique, 11 F. Supp. 832 (S.D.N.Y. 1935); Churchill v. United Fruit Co., 294 F. 400 (D. Mass. 1923); The Napolitan Prince, 134 F. 159 (E.D.N.Y. 1904); O’Brien v. Cunard Steamship Co., 154 Mass. 272, 28 N.E. 266, 267 (1891); Laubheim v. Maatschappy, 107 N.Y. 228, 13 N.E. 781 (1887). Dating back more than a century, these cases are before cruise lines became “floating hotels” offering a various services to passengers, including twenty-four hour medical care. See Bob Dickinson and Andy Vladimir, Sailing the Sea: An Inside Look at the Cruise Industry 210 (Wiley 1996); Costa Crociere v. Family Hotel Serv., Inc., 939 F. Supp 1538, 1557 (S. D. Fla. 1996)(drastic changes have occurred in the maritime industry since the adoption of seamen as wards of admiralty).

Despite the fact that time has rendered Barbetta irrelevant and outmoded, NCL still clings to Barbetta’s justifications: (1) a shipowner does not have the expertise necessary to control a doctor’s treatment of his patients and (2) even if the shipowner had that expertise, the power to interfere in the doctor/patient relationship would still be lacking. [D.E. 80, p. 8].

(2) UNDER TWOMBLY AND IQBAL, IT IS ENTIRELY PLAUSIBLE THAT A SHIPOWNER CONTROLS AND/OR HAS THE RIGHT TO CONTROL ITS SHIPBOARD PHYSICIAN.

The key element in establishing actual agency is the control by the principal over the actions of the agent. Wolicki-Gables v. Arrow Intern., Inc., 641 F.Supp.2d 1270, 1289 (M.D. Fla. 2009); see also Chase Manhattan Mortg. Corp. v. Scott, Royce, Harris, Bryan, Barra & Jorgensen, P.A., 694 So.2d 827, 832 (Fla. 4th DCA 1997). It is the right of control, not actual control or descriptive labels employed by the parties that determines an agency relationship. Parker v. Domino’s Pizza, Inc., 629 So.2d 1026, 1027 (Fla. 4th DCA 1993)(emphasis added).

Significantly, the existence of an agency relationship is a question of fact for the jury, which is not properly decided at the motion to dismiss stage. It is well settled that Federal Maritime Law embraces the principles of agency and that the existence of an agency relationship is a question of fact for the jury.[2] See Doonan v. Carnival Corp., 404 F. Supp. 2d 1367 (2005) (citing Archer v. Trans/American Servs., Ltd., 834 F. 2d 1570 (11th Cir. 1988)); see also Borg-Warner Leasing v. Doyle Elec. Co., 733 F. 2d 833, 836 (11th Cir. 1984). Thus, the shipboard medical staff’s agency status is not properly decided at the motion to dismiss stage.

Notwithstanding the impropriety of making such a factual determination at this stage and technological advances since 1887, case law clarifies that pleadings, which should be accepted as true, control in the complaint and should survive a motion to dismiss if they state a plausible claim for relief. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). As the Court in Carlisle pointed out, cruise lines do in fact exercise an element of control over the doctor-patient relationship.[3]

Further, with the advent of modern technology, cruise line shoreside medical personnel have the ability to monitor and communicate with the ship’s doctor while he is onboard the vessel in a way that they could not back when Barbetta was first pronounced. Nietes, 188 F. Supp. at 220. Put simply, technology such as Face-to-Face Telemedicine now allows for a cruise line’s shore-based chief surgeon or medical department to occupy a position of control over a ship’s physician by putting ship physicians and nurses in real time contact with its Shoreside Medical Department or any land-based hospital of its choosing. Plaintiff’s Complaint alleges that NCL: (1) managed the medical department onboard, (2) maintained the medical equipment in the ship’s medical facility, (3) required the Medical Defendants to participate in medical courses on how to examine and treat patients and (4) required the Medical Defendants to touch base with land based operations and land based medical facilities when making medical decisions with respect to the diagnosis and treatment of crew and passengers. [D.E. 70, 9, 10, 14]. These factual allegations clearly set forth a plausible claim of control, which should survive a motion to dismiss. Thus, NCL should not be allowed to cling to the outdated argument that “they lack the expertise to supervise a physician carried on board a ship” to escape liability for the negligent medical treatment of shipboard doctors.

Additionally, the principle that a non-medical employer could not be expected to exercise control over a skilled physician “no longer provides a realistic basis for the determination of liability.” Id. The Nietes court analogized a ship owner’s vicarious liability for the medical malpractice of its shipboard doctor with a ship owner’s vicarious liability for the negligent operation of the ship by the master. The board of directors of a modern steamship company has as little professional ability to effectively supervise the highly-skilled operations of navigation of a modern ship by its master, as it has to supervise a physician’s treatment of shipboard illness. Id. Yet, the company is held liable for the negligent operation of the ship by the master. So, too, it should be liable for the negligent treatment of a passenger by a physician. Id. at 221.

Moreover, “[e]ven where a shop owner’s business has nothing to do with driving trucks, and even where the derelict conduct has been expressly forbidden, we still hold him vicariously liable for the negligence of his employee out driving the company truck on an assigned errand.” Fairley v. Royal Cruise Line, Ltd., 1993 A.M.C. 1633, 1637-38 (S.D. Fla. 1993). This is done for sound reasons of public policy in that the economic burden of the injury is more easily borne by the employer rather than the plaintiff, and because the employer is in a better position to reduce the risk invoked by the conduct of the agent. Id.

Further to this point, the Medical Defendants’ contracts of employment (attached as Exhibit 1), expressly refer to the Medical Defendants as “employees.” This is bizarre because NCL’s ticket contract says that they are “independent contractors.” Nonetheless, this fact completely undercuts the rationale supporting Barbetta because where NCL expressly refers to its shipboard physician and nurses as “employees,” then it is presumed under the law that they are subject to control and/or the right to control by NCL. As such, the contracts of employment herein should be considered a real game-changer.

(3) THE FALLACY THAT NCL DOES NOT CONTROL THE DOCTOR/PATIENT RELATIONSHIP.

As to the issue of control of the doctor/patient relationship, this fallacy is premised on the Barbetta court’s finding that passengers are free to contract with the ship’s doctor for any medical services they may need. While a passenger is free to decline onboard medical treatment, if he is at sea and in medical distress, he realistically does not have any true alternative other than to seek medical care on the vessel. See Huntley, 307 F. Supp 2d at 1374; Fairley, 1993 AMC at 1638-39 (“if a passenger is ill, and port is distant, the ship’s doctor is the passenger’s only resort, since evacuation by air rescue is expensive, possible and appropriate only for emergencies.”)

Indeed, the notion that ill passengers such as Mr. DOE are free to accept or decline shipboard medical services is as disingenuous as the claim that ship’s doctors are “independent contractors” rather than agents of the cruise line. Ship doctors are no different from any other ship officer. They are subject to ship’s discipline under general maritime law, as well as the lawful commands of the captain. See Norris, The Law of Maritime Personal Injuries 4th ed. § 3:10 (1990). When Mr. DOE began to go into an anaphylactic shock, he only had moments to spare before his unfortunate death—he had no time to resort to anything but the ship’s doctor.

Ship owners can no longer argue that medicine is not their business. While they may not be “floating hospitals” per se, they are, at the very least, floating cities. Ships are no longer a means of transportation, but the destination themselves. The practical realities of the cruise industry and the reasonably anticipated risks of taking a small city of people to sea for days at a time, all but dictate a doctor’s presence. Carlisle, 953 So.2d at 470. Accordingly, providing medical treatment for its passengers should be considered part of a cruise line’s business. See Mack v. Royal Caribbean Cruises, Ltd., 361 Ill. App. 3d 856, 869 (2005)(citation omitted).

(4) The perfect storm for shipowners: all the benefits and none of the burdens.

Barbetta also rests on the false assumption that the ship’s doctor is provided for the convenience of the passengers, rather than as an economical alternative to fulfilling its duty of reasonable care to its passengers. Under maritime law, a cruise line has a duty to provide reasonable medical care to passengers under the circumstances. See Fairley, 1993 AMC at 1639. While fulfillment of this duty does not legally require cruise lines to provide an infirmary or medical staff to passengers, realistically they have no alternative unless they wish to divert their vessels every time a passenger becomes ill and requires medical treatment—something no modern-day cruise line could do and still stay in business. As the court in Carlisle noted:

The fallacy of the notion that the acutely ill passenger at sea has sifted through a series of options and ultimately chosen to use the ship’s doctor underscores the fiction of the familiar incantation that the physician is on board merely for the “convenience of the passenger.” In reality, as has been recognized, the ends of the cruise line are, at the very least, equally served by being able to fulfill its duty to ill or injured passengers without necessarily being required to disrupt the voyage or incur great expense to evacuate the patient every time a medical situation arises.

Carlisle, 864 So. 2d at 4-5; see also Fairley, 1997 AMC at 1639 (“where the cruise line has reaped the benefits of carrying a doctor aboard its vessels, there may be circumstances where it should be required to bear its consequences.”)

In addition, cruise lines also benefit from providing passengers with a shipboard physician, “since the presence of a qualified physician on board, with a well-equipped and well-staffed infirmary, is an enticement to purchase the ticket.” Fairley, 1993 A.M.C. at 1639. To the extent that cruise lines benefit economically from providing medical services to passengers, there is no reason why they should not be held responsible for the human costs of those services.

(5) There is no legitimate justification for the Barbetta rule when a shipowner is vicariously liable for negligence committed on crewmembers.

Furthermore, adopting Barbetta has the anomalous effect of shielding cruise lines from liability for the malpractice of shipboard physicians committed on passengers, while continuing to hold them vicariously liable for negligence committed on crewmembers. See Michael J. Compagno, Malpractice on the Love Boat: Barbetta v S/S Bermuda Star, 14 Tul. Mar. L.J. 381, 390-391 (1990). This result seems absurd where, as here, NCL agrees to indemnify the doctor for all malpractice claims, regardless of who brings them. See DeZon v. Am. President Lines, Ltd., 318 U.S. 660, 665-666 (1943). Accordingly, there is simply no logical justification for allowing a crewmember to recover damages from a shipowner for the malpractice of its physician while leaving a passenger injured by that same physician without any legal recourse. Id.

(6) PUBLIC POLICY CONCERNS WARRANT THE END OF BARBETTA.

Finally, the biggest problem with Barbetta is that in many cases, such as this one, it deprives an injured plaintiff of any viable legal remedy. Although passengers theoretically have an action against cruise line doctors who commit medical malpractice, realistically that action is only as good as their ability to serve those physicians with process and exercise jurisdiction over them. Many ship doctors live abroad and are constantly traveling onboard vessels. See Bob Dickinson and Andy Vladimir, Sailing the Sea: An Inside Look at the Cruise Industry 78, n14 (Wiley 1996). As a result, it is often a practical impossibility to serve them with process within the time required by the Rules of Civil Procedure. Additionally, there is no guarantee that if the doctor is served, a passenger will be able to exercise personal jurisdiction over him or that they will be able to satisfy any judgment ultimately obtained against them. Accordingly, public policy calls for imputing the negligent medical care of a ship’s doctor to the cruise line. The economic burden of the injuries suffered by passengers as a result of negligent medical treatment by a ship’s doctor is far more easily borne by the cruise line rather than the passenger.

Furthermore, Barbetta propagates substandard medical care for cruise ship passengers, estimated to be 12,000,000 persons annually. This is best exemplified by the case of Darce Carlisle, a 14 year old girl, who in March of 1997 was a passenger aboard a Carnival cruise ship. Darce Carlisle was seen several times in the ship’s hospital with abdominal pain and lower back pain. Her burst appendix was misdiagnosed by Carnival’s medical staff, eventually leading to grievous injuries (Darce Carlisle was rendered sterile). Still today, it appears nothing has changed due to the outmoded precedent of Barbetta. Thus, following Nietes and holding a cruise line vicariously liable for the medical malpractice of its onboard doctor will raise the standard of care employed by cruise lines in selecting shipboard doctors and outfitting medical infirmaries.

(7) THIS HONORABLE COURT HAS THE AUTHORITY TO FOLLOW NIETES.

Importantly, this Honorable Court has the authority to follow Nietes instead of Barbetta. While this Court is not free to summarily disregard principles of stare decisis in rendering its decisions, it is not obligated to blindly follow precedent when governing decisions are unworkable or badly reasoned. See Payne v. Tennessee, 501 U.S. 808, 827 (1991); Helvering v. Hallock, 309 U.S. 106, 119, 84 L. Ed 604, 60 S. Ct. 444 (1940)(Stare decisis is not an inexorable command; rather, it is “a principle of policy and not a mechanical formula of adherence to the latest decision.”); Gately v. Commonwealth of Mass., 2 F.3d 1221, 1226 (1st Cir. 1993) (“a decision may be properly overruled if seriously out of keeping with contemporary views or passed by in the development of the law or proved to be unworkable”).

Indeed, both the United States Supreme Court and federal appellate courts have repeatedly overruled existing maritime precedents where they cease to make sense in light of the modern-day realities of maritime commerce. For example, in Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970), the Supreme Court recognized a claim for wrongful death under general maritime law, overruling more than 100 years of precedent in the process. In explaining its decision to depart from the well-settled rule of law established in The Harrisburg, 119 U.S. 199 (1886), which held that there was no claim for wrongful death under general maritime law, the Court noted that The Harrisburg had been criticized as “barbarous” for its unjust result and was based “on a particular set of factors that had, when [it] was decided, long since been thrown into discard even in England and that had never existed in this country at all.” See also Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 576 (1974)(noting that “Moragne reflected dissatisfaction with this state of the law that illogically and unjustifiably deprived the dependents of many maritime death victims of an adequate remedy for their losses”).

(8) LEGAL SCHOLARS UNIFORMLY AGREE THAT BARBETTA IS OUTMODED.

In addition, the majority of legal scholars who have analyzed the Barbetta rule have questioned its viability because of the shaky foundation upon which it rests. Indeed, such scholars have criticized Barbetta for unfairly requiring passengers to ultimately bear the brunt of any negligent behavior of a ship’s physician and have urged courts to adopt the more reasoned principle of liability enunciated in Nietes v. Am. President Lines, Ltd., 188 F. Supp. 219 (N. D. Cal. 1959). See Martin Norris, The Law of Maritime Personal Injuries § 3:10 (4th ed. 1990)(“In light of the modern trends with respect to tort liability, it is probable that the earlier cases holding that in passenger matters the shipowner’s duty is fulfilled by employing a duly qualified and competent surgeon and medical practitioner, and is only liable for negligence in hiring him but not for treatment by him, will not be followed.”).[4]

Other legal scholars advocate for the well-reasoned decision in Nietes. Beth-Ann Erlic Herschaft opines that “it would be in the best interests of the traveling public for admiralty courts to revoke this harsh policy of holding carriers harmless for the torts of physicians engaged by them” and “the judiciary has sufficient reason to resurrect the Nietes opinion so that public policy will be satisfied in admiralty as well as other areas of law.” Beth-Ann Erlic Herschaft, Cruise Ship Medical Malpractice Cases: Must Admiralty Courts Steer by the Star of Stare Decisis, 17 Nova L. Rev. 575, 594 (1992). Herschaft also criticized the validity of Barbetta and aptly stated: “Admiralty courts no longer need to steer by the star of stare decisis in the field of cruise ship medical malpractice cases, because in the long run, both the cruise industry and its passengers will reap the benefits of prudent change.” Id. at 594-595. Further, Thomas Dickerson states that “the antiquity of maritime law was made manifest in Barbetta […] and [w]hile cruising can be a worthwhile and exciting vacation experience, consumers should be aware that the cruise ship’s duties and liabilities are governed not by modern, consumer-oriented common and statutory law, but by nineteenth-century legal principles, the purpose being to insulate cruise lines from the legitimate claims of passengers.” Thomas A. Dickerson, The Cruise Passenger’s Dilemma: Twenty-First-Century Ships, Nineteenth Century Rights, 28 Tul. Mar. L.J. 447, 451-52 (2004).

In sum, as to Count II – Vicarious Liability based on Respondeat Superior, given the serious questions raised by scholars and several courts concerning the viability of Barbetta, this Honorable Court should reject Barbetta in favor of the more reasoned rule of Nietes.

IV. COUNT III—VICARIOUS LIABILITY BASED ON APPARENT AGENCY. APPARENT AGENCY CLAIMS REMAIN ALIVE AND WELL DESPITE BARBETTA.

Next, NCL seeks dismissal of Plaintiff’s Apparent Agency count. NCL’s argument fails because the majority of courts in the Southern District agree that apparent agency can be established despite the majority ruling of Barbetta. See, e.g. Doonan v. Carnival Corp., 404 F. Supp. 2d 1367, 1372 (S.D. Fla. 2005); Lobegeiger v. Celebrity Cruises, Inc., CASE NO. 11-21620-CIV-Altonaga, 2011 U.S. Dist. LEXIS 93933 (August 23, 2011)(therein, the Honorable Judge Cecelia Altonaga ruled that “the application of apparent agency, assuming the necessary elements are satisfied, is consistent with the general maritime tort principles of harmony and uniformity.”)

Apparent agency is established when: (1) the alleged principal makes some sort of manifestation causing a third party to believe that the alleged agent had authority to act for the benefit of the principal, (2) that such belief was reasonable and (3) that the claimant reasonably acted on such belief to his detriment. Id. at 1371. Herein, the Plaintiff’s Amended Complaint alleges that an apparent agency relationship between NCL and the Medical Defendants was established because, among other things, the Medical Defendants wore a ship’s uniform, ate with the ship’s crew, were under the commands of the ship’s officers, were paid a salary by NCL, worked in the ship’s hospital and were represented in NCL’s literature as crewmembers and employees of NCL. [D.E. 70, 40(a)-40(g)]. Additionally, Plaintiff alleges that it was reasonable to believe the Medical Defendants were NCL’s agents because they responded to Mrs. DOE’ emergency call wearing ships uniforms and performed a tracheotomy on the Plaintiff—all of which was done as though they were authorized to do so by NCL. [D.E. 70, 43].

NCL cites to this Honorable Court’s recent Order in Wajnstat, which states: “the ship’s physician’s liability is not imputed to the carrier, whether he be an actual agency, apparent agent, or otherwise.” Wajnstat v. Oceania Cruises, Inc., 2011 WL 465340, *4-5 (S.D. Fla. Feb. 4, 2011). Respectfully, this Honorable Court’s interpretation of Barbetta is incorrect. Barbetta only stands for the position that there can be no claims for vicariously liability of a shipboard physician based on respondent superior. Barbetta says nothing about vicarious liability based on a theory of apparent agency. To be clear, apparent agency and respondeat superior are two separate and distinct concepts. Respondeat superior is predicated on control, whereas apparent agency is predicated on manifestations (that is, whether the cruise line made manifestations/representations to a third party (passengers) that the shipboard physician was an agent of the cruise line). As such, this Honorable Court in Wajnstat gave an overbroad interpretation of Barbetta.

Furthermore, NCL’s reliance on Wajnstat for the argument that the language contained in the passenger ticket contract defeats a claim of apparent agency is also misplaced. This Honorable Court stated in Wajnstat:

The passenger ticket contract between Mr. Wajnstat and Oceania Cruises clearly explains that the ship’s physician and shipboard medical personnel are independent contractors, and that Oceania Cruises was “not responsible” for any actions taken by the onboard medical staff. Despite Mr. Wajnstat’s allegations that Dr. Lidstromer was the apparent agent of Oceania Cruises because he was dressed in a uniform similar to other officers of the crew, was identified as the ship’s doctor, or that the medical staff took notes on Oceania Cruises stationary, Mr. Wajnstat was informed by Oceania Cruises that the cruise line was not responsible for any examination, advice, diagnosis, medication, or treatment that was furnished by the Doctor.

Notably, this very argument was rejected by the Honorable Stanley Marcus in Fairley v. Royal Cruise Line, LTD., 1993 A.M.C. 1633 (S.D. Fla. 1993). As then District Judge Marcus expressly stated: “Plaintiff’s passenger contract, attached to the Third Amended Complaint [which identifies the ship’s doctor as an independent contractor], will not dispose of the issue of whether the ship doctor was an independent contractor on a motion to dismiss.” Id. 1640-41 (emphasis added).

Further to this point, this contractual language which attempts to limit NCL’s liability is void under 46 U.S.C. § 30509, which is a congressional statute which prevents shipowners such as NCL from contractually limiting their liability. Accordingly, NCL’s arguments regarding the effect of their ticket contract are without merit.[5]

Finally, NCL argues based on the poorly reasoned district court order in Hajtman v. NCL, 526 F. Supp. 2d 1324 (S.D. Fla. 2007). In Hajtman, the district court held the Plaintiff’s belief that the shipboard physician was an agent was unreasonable as a matter of law based on the longstanding precedent under Barbetta. Id. at 1328-9. This order invades the province of the jury based on the assumption that the typical cruise ship passenger is aware of the arcane intricacies of Maritime Law. Further, this order flies in the face of the well settled precedent that “[t]he question of agency and/or apparent agency is generally a question of fact which must be determined by a jury.” Sears Roebuck & Co. v. Williams, 877 So.2d 5 (Fla. 3d DCA 2004); see also Jones v. Tallahassee Mem’l Reg’l Healthcare, Inc., 923 So. 2d 1245, 1247 (Fla. 1st DCA 2006)(“Generally, the question of a health care professional’s apparent authority to act as agent is a question of fact best left to the jury”). Accordingly, NCL’s reliance on Hajtman is misplaced.

Further to this point, it was entirely reasonable for Mrs. DOE to believe that the ship’s medical staff was an agent of NCL. The practical realities of the twenty-first century cruise industry has led to the publication of elaborate, colorful brochures touting services aboard vessels, some of which specifically mention that they have medical facilities onboard. Mack, 838 N.E.2d at 91, 361 Ill. App. 3d at 869. In fact, herein, NCL advertises on its website that it has a doctor and nurse onboard its ship in the ‘Frequently Asked Questions’ section. Copy attached as Exhibit 2. Notably, this webpage says nothing about them being independent contractors. Why? Because NCL, like all cruise lines, buries its exculpatory language in the fine print of the passengers ticket contract, while giving the exact opposite appearance everywhere else.

The carrier benefits by advertising the availability of the ship doctor since the presence of a qualified physician on board with a well-equipped and well-staffed infirmary is an enticement to purchase the ticket. Fairley, 1993 A.M.C. at 1639. These tactics employed by cruise lines cause their passengers to believe that the staff of these medical facilities are employees and/or agents of the cruise lines, and reasonably so. It is only logical to believe that services marketed and advertised in a cruise line’s brochure and occurring on the vessel itself are services operated by employees and/or agents of the cruise line. As such, Hajtman’s holding that such a belief is unreasonable as a matter of law because of an antiquated principle such as that of Barbetta does not reflect the modern realities of today’s cruise industry. Our modern system of law has no room for such anachronistic principles.

Stated simply, the factual allegations contained in Count III illustrate the various ways in which NCL manifested to the Plaintiff that the medical personnel onboard the ship were members of the ship’s crew. Plaintiff’s belief that the ship’s medical staff provided their services on behalf of the cruise line and her reliance on this belief was reasonable. As a result of said reliance, Plaintiff was caused to suffer her husband’s wrongful death. Accordingly, Plaintiff’s Complaint sets out a claim for apparent agency sufficient to state a plausible entitlement to relief; and thus, NCL’s Motion to Dismiss Count III of Plaintiff’s Amended Complaint should be denied.

To hold otherwise and dismiss Plaintiff’s Apparent Agency claim is in direct contravention of public policy and the most basic notions of fairness. As set forth above, the biggest problem with Barbetta is that in many cases, such as this one, it deprives an injured plaintiff of any viable legal remedy. Although passengers theoretically have an action against cruise line doctors who commit medical malpractice, realistically that action is only as good as their ability to serve those physicians with process and exercise jurisdiction over them. Herein, the medical defendants, no longer employed by NCL, are from South Africa. Plaintiff is presently attempting to serve process on them through the Secretary of State, but without any claims for the medical malpractice of the shipboard physician against the shipping company, the Plaintiff is yet another victim of the substandard medical care that Barbetta churns out.

V. COUNT I—NEGLIGENCE AGAINST NCL. PLAINTIFF’S NEGLIGENCE COUNT AGAINST NCL IS PLED WITH SUFFICIENT SPECIFICITY.

Lastly, NCL attacks the sufficiency of Plaintiff’s negligence allegations. This argument fails because Plaintiff’s Amended Complaint sufficiently states a cause of action for negligence against NCL. To properly plead a claim of negligence, a plaintiff must allege that: (1) a legal duty on the defendant to protect the plaintiff from particular injuries, (2) the defendant’s breach of that duty, (3) the plaintiff’s injury being actually and proximately caused by the breach and (4) the plaintiff suffering actual harm from the injury. Zivojinovich v. Barner, 525 F.3d 1059, 1067 (11th Cir. 2008). Plaintiff’s Amended Complaint sufficiently pleads all the necessary elements and factual allegations to suggest that the Defendant acted negligently, providing NCL with fair notice of the claim.

NCL claims that the acts and omissions showing NCL’s breach of its duty to provide reasonable care to the Plaintiff fails to state a valid cause of action, since it contains mere conclusory allegations and assumes duties that do not exist as a matter of law. Federal Rule of Civil Procedure 8 asserts that “a pleading that states a claim for relief must contain […] a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(b). The pleading standard does not require “detailed factual allegations,” but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2008)(citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Factual allegations must be enough to raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Complaint sufficiently meets the Rule 8 pleading standard in each of NCL’s acts and omissions sounding in negligence. [D.E. 70, 26(a)-(w), 27, 28, 29], as explained further below.