Jane Doe v. Carnival Corp.

Lipcon, Margulies, Alsina & Winkleman, P.A

October 02, 2013

Jane Doe v. Carnival Corp.

Response in Opposition to Carnival’s Motion to Dismiss

Lipcon, Margulies, Alsina & Winkleman, P.A. vigorously advocates on behalf of injured passengers and crewmembers. In this case, our admiralty lawyers fight on behalf of a woman who suffered a stroke aboard a Carnival cruise ship. She alleges that failures on the part of Carnival and their medical team led to paralysis on the right side of her body.

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 1:13-CV-22604-KMW
JANE DOE
Plaintiff,

v.

CARNIVAL CORPORATION,
Doctor VUSUMZI MBUTHUMA,
Doctor Doe, Nurse Doe.
Defendants.
___________________________/

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT

COMES NOW, the Plaintiff, JANE DOE, by and through undersigned counsel, hereby files her Response in Opposition to Defendant CARNIVAL CORPORATION’S Motion to Dismiss Plaintiff’s Complaint, and as grounds therefore states the following:

MEMORANDUM OF LAW

CARNIVAL’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT SHOULD BE DENIED BECAUSE THE TIME HAS COME TO OVERTURN BARBETTA v. BERMUDA STAR AS IT IS OUTDATED, DANGEROUS, UNJUST, AND NO LONGER REFLECTS THE REALITIES OF TODAY’S CRUISE INDUSTRY.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. AND WHERE CARNIVAL OBTAINS A TREMENDOUS BENEFIT IN AVOIDING ITS DUTY TO DIVERT THE VESSEL BY HAVING A DOCTOR ONBOARD, IT IS ONLY FAIR THAT CARNIVAL BE RESPONSIBLE FOR ITS SHIPBOARD DOCTOR’S MALPRACTICE. FURTHERMORE, THE HONORABLE JUDGE LENARD HAS MADE CLEAR THAT CLAIMS OF APPARENT AGENCY REMAIN A VIABLE CAUSE OF ACTION.

Introduction / Overview

JANE DOE suffered a massive stroke on July 20, 2012 while a passenger aboard the Carnival Liberty. The instant lawsuit alleges that Doe’s condition was grievously worsened due to the negligence of Carnival and/or its shipboard physicians. For instance, Doe’s stroke was diagnosed by the Defendant ship’s doctor, who indicated that although “clot-buster” drugs were onboard, which can dramatically improve the outcome of patients who suffer from strokes if used within the first 4-5 hours, he could not give Jane the drugs because Carnival did not have the proper medical equipment onboard to determine whether her stroke was ischemic or hemmoragic. (CT-scan machines can be used to determine whether a stroke is ischemic or hemmoragic; giving clot-buster drugs to a hemmoragic stroke victim can cause severe bleeding in the brain—and even death).

Because there was no CT-scan machine onboard, Jane had to be evacuated by the U.S. Coast Guard to a hospital in Key West, which was several hundred miles away. In light of the under-equipped medical facility onboard the vessel, Plaintiff also alleges Carnival failed to timely order the evacuation of Doe from the vessel. Although Jane made it to the hospital alive, it was too late to give her the clot-buster drugs because too much time had passed. As a result, massive swelling of her brain occurred, which has ultimately left the entire right side of her body paralyzed.

As the complaint alleges, as a direct result of the negligence of CARNIVAL, the Plaintiff’s condition was not properly and timely diagnosed and treated; and Plaintiff was not timely evacuated from the vessel by helicopter or speed boat, or referred shoreside, substantially aggravating her injuries.

The alleged deplorable medical care given to Jane Doe while aboard the Carnival Liberty exemplifies the emergent need to overturn the dangerous precedent of Barbetta v. Bermuda Star, 848 F.2d 1364, 1372 (5th Cir. 1988). The current state of the law begs the question: how many more passengers must die or be grievously injured as a direct result of the substandard medical care that Barbetta endorses and promotes?

Barbetta generally states that a cruise ship passenger cannot hold a shipowner liable, based on a theory of respondeat superior, for the shipboard physician’s negligence. This rule of law produces unconscionable results, particularly because shipowners like Carnival almost exclusively hire foreign doctors (here the ship’s physician is from South Africa) who often cannot be sued in the U.S. because of a lack of personal jurisdiction. This is the worst nightmare for persons like Plaintiff Jane Doe. Because of Barbetta, she may be left without any redress for her injuries, which Plaintiff alleges could have been prevented. Carnival’s instant motion to dismiss asks this Honorable Court to follow Barbetta, Plaintiff asks this Honorable Court to overturn this outmoded, dangerous precedent.

BARBETTA AND ITS PROGENY: THE TIME HAS COME TO OVERTURN THIS OUTDATED PRECEDENT.

The arguments contained in Carnival’s Motion are based primarily on the position espoused by the Fifth Circuit Court of Appeals in Barbetta v. Bermuda Star, 848 F.2d 1364, 1372 (5th Cir. 1988). But as Plaintiff’s Complaint makes clear, Plaintiff argues in good-faith for the modification of this law for several reasons, including but not limited to, the following:

1. The Barbetta position is based on precedent from a line of cases which stem back to 1887. Times have changed since 1887, and the facts and practical realities applicable 123 years ago are simply irrelevant today. The backbone of the Barbetta position is the premise that a shipowner is not able to control the shipboard physician. In 1887, such control would admittedly have been difficult, if not impossible. In 2010, such control is not only possible, but a practical reality. Most notably, with the advent of “Face to Face Telemedicine” (a multi-billion dollar industry), a shipowner can literally put its passengers face to face with its Shoreside Medical Department or any land-based hospital of its choosing. Consequently, the foundation on which Barbetta is built, is gone.

2. The continued allegiance to Barbetta gives shipowners all the benefits and none of the burdens. The shipowner owes a duty to its passengers to provide reasonable medical care under the circumstances, even if that means changing course and putting in at the nearest port (this ‘duty to divert’ can cost a shipowner millions). And having a doctor onboard can potentially discharge this duty. Thus, the shipowner obtains a tremendous benefit by virtue of having a doctor onboard its ships (yet the Barbetta precedent relies on the misconception that the presence of a shipboard physician is merely for the convenience of the passengers).

3. Furthermore, the shipowner buries fine print in its ticket contract to attempt to avoid liability for the doctor’s negligence (this language is void under 46 USC § 30509). And then hires a foreign doctor (here the ship’s physician is believed to be from South Africa) in an attempt to prevent an injured passenger from obtaining redress against the doctor as well. But the shipowner does not want to scare their passengers because then they would all want to divert the ship, costing them millions; so they do not advise passengers of their right to divert and do not advise passengers that the shipboard physicians are foreign and not licensed in any legitimate jurisdictions. In effect, it is the perform storm for the shipowner: all of the cost savings, with none of the liabilities.

4. Conversely, it is the worst nightmare for persons like Plaintiff Jane Doe. Under Barbetta, the plaintiff cannot hold the shipowner liable based on a theory of respondeat superior for the shipboard physician’s negligence, and the plaintiff typically cannot sue the foreign doctor in the U.S. because of a lack of jurisdiction. This is the injustice that the Barbetta position allows.

5. Barbettapropagates substandard medical care for cruise ship passengers. 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. Darce Carlisle’s burst appendix was misdiagnosed by Carnival’s medical staff leading to grievous injuries (Darce Carlisle was rendered sterile). Over fifteen years after Darce Carlisle’s tragic incident, it appears nothing has changed, due to the outmoded precedent of Barbetta.

6. The Third District Court of Appeal in Carlisle v. Carnival Corp., 864 So. 2d 1, 8 (Fla. 3d DCA 2003) recognized the reality of the changes in the cruise industry since Barbetta and instead followed the minority position espoused in Nietes v. American President Lines, Ltd. 188 F. Supp. 219 (N.D. Cal. 1959), and ultimately held that a ship’s doctor’s negligence should be imputed to the cruise line. The Florida Supreme Court found merit in the Third District Court of Appeal’s reasoning, but because it was a maritime case, found that the court was bound to follow the majority position set forth in Barbetta. Carnival Corp. v. Carlisle, 953 So. 2d 461, 470 (Fla. 2007).

7. Barbetta also propagates substandard medicine aboard ships because it creates no incentive for Carnival to adequately equip its shipboard medical facilities.

8. The time has come to overturn this outmoded precedent.

[DE 1,30-37].

Again, the rule set forth by the Fifth Circuit Barbetta is based on precedent from a line of cases originating in 1887. 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, 848 F.2d at 1369. The purported justifications set forth for this rule are the cruise line’s lack of control over the doctor-patient relationship (Barbetta argues that such relationship “is under the control of the passengers themselves”), and the cruise line’s lack of expertise in providing medical services to its passengers (Barbetta argues that “[a] ship is not a floating hospital”). Id. at 1369-70. For many years, the “lone beacon of dissent” was Nietes v. American President Lines, Ltd., 188 F.Supp. 219 (N.D. Cal. 1959), which held the following:
where 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, 188 F.Supp. at 220. Then, in 2003, the Third District Court of Appeal of Florida rejected Barbetta and chose to follow the minority rule set forth in Nietes. See Carlisle, 864 So.2d at 5.[1] 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 or her 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 AMC 1633, 1638. 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. Carlisle, 864 So.2d 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 Carlisle 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. Also, the court 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. at 7. The Carlisle court thus 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.Carlisle, 864 So.2d at 7 (emphasis added).

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

Accordingly, this Honorable Court is confronted with the decision of whether to follow the majority rule espoused in Barbetta v. S/S Bermuda Star, 848 F.2d 1364 (5th Cir. 1988), 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 v. Am. President Lines, Ltd., 188 F. Supp. 219 (N.D. Cal. 1959), 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.

In short, Barbetta rests on flawed and outmoded assumptions about shipboard medical care that do not accurately reflect the passenger cruise experience of today. Barbetta is based on the assumption that a shipboard physician exists merely for the “convenience of the passenger” and that sick passengers have a meaningful choice as to whether to seek treatment from the ship’s physician. As the Nietes court and virtually every legal scholar who has written about the issue have pointed out, however, neither of these assumptions is accurate.

Moreover, as both Nietes and the Third District Court of Appeal in Carlisle properly recognized, ship’s physicians are no more “independent contractors” than any of the other ship’s officers, particularly where, as is the case here, the cruise line exercises control over various aspects of their work. To the extent that cruise lines are already held vicariously liable for the negligence of shipboard physicians in their treatment of crewmembers, there is no logical reason to preclude passengers from being afforded the same remedies. Nietes, 188 F.Supp. at 220. More importantly, the Nietes court noted that the ship should be liable for its doctor’s negligence because the doctor provided the ship with an economical alternative to fulfilling its duty of reasonable care to its passengers: “[w]here the ship carries no ship’s physicians or nurses, the carrier is under a duty to provide such care and attention as is reasonable and practicable under the circumstances, and this has traditionally required the master to change course and put in at the nearest port, according to the gravity of the illness.” Nietes, 188 F.Supp. at 221[2]

A. Barbetta is Based on Flawed, Outmoded Notions of the Modern Day Cruise Industry

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). A few date back more than a century, long before cruise lines became “floating hotels” offering a wide range of services to passengers, including twenty four hour medical care. SeeBob Dickinson and Andy Vladimir, Selling the Sea: An Inside Look at the Cruise Industry, 210 (John Wiley & Sons); 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 the passage of time has rendered Barbetta outmoded, Carnival nonetheless clings to the often repeated justifications underpinning Barbetta: i) a shipowner does not have the expertise necessary to control a doctor’s treatment of his patients; and ii) even if the shipowner had such expertise, the power to interfere in the doctor/patient relationship would still be lacking. [D.E. 11].

B. Under Twombly and Iqbal it is Entirely Plausible That a Shipowner Controls and 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. See State v. Am. Tobacco Co., 707 So.2d 851, 854 (Fla. 4th DCA 1998); 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).[3]

It is critical to note that 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 the existence of an agency relationship is a question of fact for the jury.[4] See Doonan v. Carnival Corp., 404 F.Supp.2d 1367 (2005) (citing Archer v. Trans/American Servs., Ldt., 834 F.2d 1570 (11th Cir. 1988)); see also Borg-Warner Leasing v. Doyle Elec. Co., 33 F.2d 833, 836 (11th Cir. 1984); Church of Scientology of California v. Blackman, 446 So.2d 190 (Fla. 4th DCA); Bernstein v. Dwork, 320 So.2d 472 (Fla. 3d DCA 1975); Amerven, Inc. v. Abbadie, 238 So.2d 321, 322 (Fla. 3d DCA 1970). 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, case law and the technological advances since 1887 make clear that pleading such control in the Complaint (which is to be taken as true) states a plausible claim for relief and should survive 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)). As the Third District Court of Appeal in Carlisle pointed out, cruise lines do exercise an element of control over the doctor-patient relationship and the doctor’s medical practice, such as the selection of medical personnel, the hours of operation of the infirmary, and the procedures for the operation of the ship’s medical facility. Carlisle, 864 So.2d at 5.

Furthermore, with the advent of modern technology, cruise line shoreside medical personnel have the ability to monitor and communicate with the ship’s physician while he/she is onboard the vessel in a way that was not possible back when the “em>Barbetta rule” was first pronounced. Nietes, 188 F.Supp. at 220; see also Klein at 78 (noting the advent of “telemedical” satellite hook-ups from ship to shore onboard cruise ships). Put simply, Technology 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 sufficiently immediate to warrant equation with the hospital-doctor standard. As stated in Plaintiff’s Complaint, technology such as “Face to Face Telemedicine” (a multi-billion dollar industry) allows a shipowner to exercise supervision and control of its shipboard physicians by putting shipboard physicians and nurses in real time contact with a Shoreside Medical Department or any land-based hospital of its choosing.

As Paragraph 11 of the Complaint states:
At all times material, Carnival had the ability to monitor and control each and every step taken by any person (including the ship’s physician) working in the medical department via telephone, videoconference, Skype or otherwise. This technology is generally referred to as “Face to Face Telemedicine.” Such modern means of communication make the location of the cruise ship effectively irrelevant and allows Defendant Carnival to directly control the medical care on the ship.

[DE 1, 11]

This factual allegation clearly sets forth a plausible claim of control which should survive a motion to dismiss. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). As such, cruise lines should no longer be allowed to cling to the antiquated and outdated argument that “they lack the expertise to supervise a physician carried onboard a ship” as a means of escaping liability for the negligent medical treatment of shipboard doctors.

Additionally, as stated by the court in em>Nietes, the distinction that a non-professional employer could not be expected to exercise control or supervision over a skilled physician “no longer provides a realistic basis for the determination of liability.” Nietes, 188 F.Supp. at 220. The Nietes court analogized a ship owner’s vicarious liability for the medical malpractice of its shipboard physician with a ship owner’s vicarious liability for the negligent operation of the ship by the master. For example: the board of directors of a modern cruise line has as much ability to supervise the highly skilled operations involved in the navigation of a modern cruise ship, as it has to supervise a physician’s treatment of shipboard illness. Id. at 221. Yet, cruise lines are held liable for the negligent operation of their ships by the master. So, too, should they be liable for the negligent treatment of a passenger by onboard physicians. Id.

Furthermore, “[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.

C. The Fallacy That Carnival 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 require. While a passenger is technically free to decline onboard medical treatment, if he is at sea and in medical distress, he realistically does not have any “meaningful” alternative other than to seek medical care onboard the vessel. See Huntley, 307 F.Supp.2d at 1372 (“a cruise passenger at sea and in medical distress does not have any meaningful choice but to seek treatment from the ship’s doctor”); Fairley, 1993 AMC at 1639 (“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 Jane 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’s doctors are no different from any other ship’s officers. 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 they are sick or injured, they are entitled to all of the remedies available to other crewmembers under the Jones Act and maritime law, including maintenance and cure and the warranty of seaworthiness. Id.

Shipowners can no longer argue that medicine is not their business. While they are not exactly “floating hospitals,” 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 competitive 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. See 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., 838 N.E.2d 80, 91, 361 Ill. App. 3d 856, 869 (2005).

D. The Perfect Storm For Shipowners: All The Benefits and None of the Burdens.

Barbetta also rests on the false assumption that the ship’s physician is provided for the convenience of the ship’s 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 shipboard medical staff to passengers, realistically they have no other 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 possibly do if it wished to stay in business. As the district 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; accord, Huntley, 307 F.Supp.2d at 1372 (“where the cruise line has made an economic decision—that it is the most cost-effective for the cruise line and most attractive to prospective passengers for it to employ a shipboard doctor with a well-equipped shipboard infirmary in order to discharge its duty to provide reasonable medical attention under the circumstances—it is not unreasonable to require the cruise line to bear the costs of such decision”); 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.”[5] Fairley, 1993 AMC 1639; Carlisle, 864 So.2d 1. Indeed, while cruise lines are not technically required to provide quality medical care to passengers, in today’s competitive cruise line industry, they need to do so if they wish to remain in business:
While the presence of an onboard physician is not required by law, the practical realities of the competitive cruise industry, and 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, 864 So.2d at 5; see also Dickinson and Andy Vladimir, Selling the Sea: An Inside Look at the Cruise Industry, 78 (“Legally there are no American or international requirements concerning the level of cruise-ship medicine. However, since lines are in the hospitality business, it makes eminent sense to provide necessary and adequate medical care.”). To the extent that cruise lines benefit economically from providing medical services to passengers, there is no reason why they should not be required to assume responsibility for the human costs of those services. See Fairley, 1993 AMC at 1639.

E. There is No Legitimate Justification for the Barbetta Rule When a Shipowner is Vicariously Liable for Negligent Treatment of 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 malpractice committed on crewmembers. See Compagno, Malpractice on the Love Boat: Barbetta v. S/S Bermuda Star, 14 Tul. Mar. L.J. at 390-391. This result seems particularly absurd where, as here, the vessel owner 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, 87 L. Ed. 1065, 63 S. Ct. 814 (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.

F. 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 such as Jane Doe 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. Most ship’s doctors live abroad and are constantly traveling onboard vessels. See Dickinson and Vladimir, Sailing the Sea: An Inside Look at the Cruise Industry at 78, n.14. 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 that 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. This is the exact scenario here as Defendant Doctor Vusumzi Mbuthuma is a resident of South Africa, who has challenged service of process. At present, Plaintiff has no information regarding the whereabouts of Dr. Mbuthuma for purposes of service of process. This is the injustice that the Barbetta position allows. 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 on the part of a ship’s doctor is far more easily borne by the cruise line rather than the passenger. Additionally, cruise lines are in a better position to reduce the risk invoked by the conduct of their onboard physicians.

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. Just like Jane Doe, Darce Carlisle was seen several times in the ship’s medical facility with abdominal pain and lower back pain. And just like Jane Doe, Darce Carlisle’s burst appendix was not properly handled by Carnival’s medical staff leading to grievous injuries (Darce Carlisle was rendered sterile). Sixteen years after Darce Carlisle’s tragic incident, 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 physician will raise the standard of care employed by cruise lines in selecting shipboard physicians and outfitting medical infirmaries.

G. This Honorable Court Has the Authority to Follow Nietes and Disregard Barbetta.

It is important to note that 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, 111 S.Ct. 2597, 115 L. Ed. 2d 720 (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”); State Oil Co. v. Kahn, 522 U.S. 321 118 S.Ct. 275, 285, 139 L. Ed 2d. 199, 213 (1997) (overruling antitrust precedent where “theoretical underpinnings of those decisions are called into serious question”); Gately v. Commonwealth of Mass., 2 F.3d 1221, 1226 n.6 (1st Cir. 1993) (analyzing elements of stare decisis and noting that “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., 389 U.S. 375, 90 S.Ct. 1772, 26 L. Ed. 2d 339 (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 94 S.Ct. 806, 810 39 L. Ed. 2d 9, 16 (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”).

H. Legal Scholars Uniformly Agree That Barbetta is Outdated.

A strong majority of legal scholars who have analyzed the Barbetta rule have questioned its viability because of the shaky foundation upon which it rests. Indeed, scholars who have addressed the issue of a cruise ship’s liability for the negligence of shipboard physicians committed on passengers 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 principles 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.”); as Norris continued:
It is submitted that the ship’s doctor is not an independent contractor but, in fact, a paid employee of the shipowner. He is a staff officer aboard ship; and signs the articles as a member of the ship’s company. He is subject to ship’s discipline under the general maritime law and is subject to the lawful commands of the master. When sick or injured he is entitled to the remedies of maintenance and cure, the Jones Act, and of a seaworthy ship. Like the steward or radio operator, the ship’s doctor is a seaman for purposes of personal injury remedies and for wage relief. The professional standing of a physician is not a valid argument for affording him a special status when a member of the ship’s company. He must, in truth, be regarded as on par with his fellow officers.

Id. at §3:10, 75; see also Michael J. Compagno, Malpractice on the Love Boat: Barbetta v. S/S Bermuda Star, 14 Tul. Mar. L.J. 381 (1990). Compagno’s article characterized the Barbetta opinion as “slavishly followed” and “outmoded.” Id. at 391, n.139. He also stated that the “Fifth Circuit lost an opportunity to properly analyze the special circumstances inherent in the passenger shipowner-ship’s doctor relationship ….” Id.

Next, in Cruise Ship Medical MalpracticeCases: Must Admiralty Courts Steer by the Star of Stare Decisis, 17 Nova L. Rev. 575, 592-94 (1992), Herschaft advocates for the “well-reasoned decision of Nietes” and 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 that “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”). Herschaft’s article 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”).

Similarly, in The Cruise Passenger’s Dilemma: Twenty-First-Century Ships, Nineteenth Century Rights, 28 Tul. Mar. L.J. 447, 451-52 (2004), Dickerson states “[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 … The antiquity of maritime law was made manifest in Barbetta….”.

In sum, given the absence of any controlling precedent and the serious questions raised by scholars and several courts concerning the ongoing viability of Barbetta, this Honorable Court should reject Barbetta in favor of the more reasoned rule of Nietes. This Court should deny Carnival’s Motion to Dismiss insofar as it relies on Barbetta and its progeny.

COUNT III PROPERLY PLEADS A CLAIM OF APPARENT AGENCY, WHICH THE HONORABLE JUDGE LENARD HAS RECENTLY FOUND IS A VIABLE CAUSE OF ACTION.

Carnival seeks dismissal of Plaintiff’s Apparent Agency count, arguing that because it cannot be vicariously liable as a matter of law for the alleged negligence of shipboard medical personnel under theories of respondeat superior or actual agency, it certainly cannot be liable for that negligence under a theory of apparent agency. Carnival’s argument fails because, as courts in the Southern District have routinely held, such as in Doonan v. Carnival Corporation, 404 F.Supp.2d 1367, 1372 (S.D. Fla. 2005), “apparent agency can be established despite the majority ruling of Barbetta. In other words, despite Barbetta, a plaintiff may be able to sustain an apparent agency claim.Id. at n 2.

To this point, the Honorable Judge Lenard has held that even where Barbetta controls, it does not bar claims of apparent agency. See Franza v. Royal Caribbean Cruises, Ltd., 2013 WL 2467983, *3 (S.D. Fla. 2013) (“[w]hile the prevailing conclusion is that a carrier cannot be held vicariously liable for the negligence of its medical staff based on respondeat superior/actual agency, some courts in this District have nonetheless concluded that a carrier may be held vicariously liable on a theory of ‘apparent’ agency”); Farrell v. Royal Caribbean Cruises, Ltd., 2013 WL 178242 (S.D. Fla. 2013).

“Apparent agency will be 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; Warren v. Ajax Navigation Corp., 1995 AMC 2609 (S.D. Fla. 1995); Archer v. Trans/American Servs., Ltd., 834 F.2d 1570, 1573 (11th Cir. 1988).

Plaintiff’s Complaint properly alleges each of the aforementioned elements of an apparent agency claim. Paragraph 56 of the Complaint states that Carnival represented to Plaintiff that the Medical Defendants were “employees and/or agents and/or servants of Defendant, CARNIVAL” through several explicitly alleged representations or manifestations. [DE 1, 56]. Next, Paragraph 58 states “at all material times, Plaintiffs reasonably relied on the representations to their detriment that the Medical Defendants were employees and/or agents and/or servants of Defendant, CARNIVAL.” [DE 1, 58]. Finally, Paragraphs 59-60 further support Plaintiff’s allegation that Plaintiff’s beliefs were indeed reasonable: