John Doe v. Carnival Corp., et al – Part 2

Lipcon, Margulies & Winkleman, P.A

November 15, 2012

John Doe v. Carnival Corp., et al – Part 2

Response in Opposition to Defendant’s Motion To Dismiss

Some dangers on modern cruise ships are not readily apparent to passengers or crewmembers. One such danger is substandard medical care that sick or injured persons can receive from negligent doctors onboard a cruise ship. When a passenger or crewmember becomes sick or injured on a cruise, they often go to the ship’s medical facility. Just as in landbased hospitals, they can receive sub-standard medical care from onboard doctors that can worsen their injury or illness and potentially lead to a life threatening condition. If this happens to a passenger or crewmember it is vital that you contact an experienced maritime attorney who can help you navigate the legal issues surrounding medical mal-practice on cruise ships. In this response in opposition to a motion to dismiss, our experienced maritime attorneys fight to protect the rights of passenger who allegedly received negligent medical care onboard a Carnival vessel.

CASE NO. 12-CV-23345 – UNGARO


BRYAN PATIU, (Ship’s Nurse),


Plaintiff, JOHN DOE, by and through his undersigned counsel and pursuant to the applicable rules of Federal Procedure and Local Rules of the Southern District of Florida, hereby files his Response in Opposition to Defendant Carnival Corporation’s Motion to Dismiss Plaintiff’s complaint and for good cause relies on the following:


I.Background Facts

Plaintiff, JOHN DOE ( hereinafter “DOE”) is a seventy-five year old former passenger aboard the Carnival Miracle. On or about September 30, 2011 while the Miracle was in port in King’s Wharf, Bermuda, Plaintiff slipped and fell in his cabin shower due to an unsafe flooring surface and other defects. [D.E. 1 18 (a)-(n)]. Plaintiff broke his neck and suffered epidural hematomas along with lacerations to his head. [D.E. 1, 15].

Carnival employees brought DOE to the ship’s medical facility where WILLIAM PRETORIUS, JACQUELINE GOBEIL, AND BRYAN PATIU (hereinafter “Medical Defendants”) treated him. Id. In the course of their treatment, the Medical Defendants failed to diagnose DOE’s multiple spinal fractures and epidural hematomas. Instead, the Medical Defendants diagnosed DOE as having only a cut on his head and a sprained neck. Id. Despite Plaintiff’s protests, the Medical Defendants gave him pain medications and sent him back to his cabin without any way to stabilize, immobilize, and/or support his broken neck. Id.

The Miracle stayed in King’s Wharf, Bermuda that evening while DOE spent the night in agonizing pain propped up in his bed by Carnival’s Medical Staff. Exhibit 1.[1] Early the next morning, he again summoned the medical staff for help. DOE was told to come down to the medical facility, but could not get out of bed and requested the Medical Defendants come attend to him in his cabin. At that time, Carnival and the Medical Defendants ordered his evacuation from the Miracle. [D.E. 1, 15]. Once off the Miracle, doctors in Bermuda immediately recognized the severity of DOE’s injury and arranged for an air ambulance to bring him to New York for emergency surgery.

Over a year later and after multiple surgeries, Exhibit 2, the Plaintiff is still healing. Due to the severity of his injury and the negligence of Carnival’s Medical staff, DOE may never fully recover.

II. Introduction

On September 13, 2012, Plaintiff filed suit against Carnival and against the Medical Defendants, alleging causes of action sounding in negligence, including negligence based on theories of respondeat superior, apparent agency, joint venture, and for beach of contract as a third-party beneficiary. [D.E. 1]. On October 19, 2012, Carnival filed its Motion to Dismiss Plaintiff’s Complaint. [D.E. 12]. Therein, Carnival seeks to dismiss Counts I, II, III, IV, V, and XII[2] of Plaintiff’s Complaint.[3]

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), which states that general maritime law does not impose liability under the doctrine of respondeat superior upon a shipowner for the negligence of a ship’s doctor who treats the ship’s passengers. The time has come to overturn this dangerous and archaic law and set this industry on a course aimed at protecting the millions of passengers who travel on cruise ships each year. This Court should hold Carnival responsible for the negligent medical care provided to DOE onboard its vessel because:

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 125 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 fact, as recently as 1988, the year the Barbetta opinion was issued, this control would have been difficult. (In 2012, 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.

The continued allegiance to Barbetta gives shipowners all the benefits and none of the burdens of taking passengers to sea. 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 of dollars in lost time and changes in itinerary). 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 fallacy that the presence of a shipboard physician is merely for the convenience of the passengers). Having a doctor onboard its ship is just another way for Carnival to profit off its passengers while simultaneously abrogating its duty to divert and saving millions of dollars.

As noted in Carnival’s Motion to Dismiss, the shipowner buries fine print in its ticket contract to attempt to avoid liability for the Medical Defendant’s negligence (this language is void under 46 USC § 30509). Thereafter, Carnival hires a foreign doctor (here the ship’s physician is from South Africa) in an attempt to prevent an injured passenger from obtaining redress against the doctor as well. Knowing that public knowledge of this scheme would scare their passengers, thus causing sick or injured passengers to demand that the vessel divert to obtain medical treatment and costing Carnival millions of dollars; Carnival deliberately avoids advising passengers of their right to divert and does not advise passengers that the shipboard physicians are foreign and not licensed in the United States or the Flag state of the vessel. In effect, it is the perfect storm for the shipowner: all of the cost savings, with none of the liabilities.

Conversely, it is the worst nightmare for persons like Plaintiff DOE. Under Barbetta, the Plaintiff cannot hold the shipowner liable based on a theory of respondeat superior for the Medical Defendant’s negligence, and the Plaintiff then faces jurisdictional challenges from the foreign Medical Defendants (as have already been filed in this case once) [D.E. 8, 9, and 10]. This is the injustice that the Barbetta position allows.

Barbetta propagates 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).

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). Tragically, due to the continued provision of substandard medical care condoned by Barbetta, the exact same thing happened to another Carnival passenger in 2010, Nancy Thomas, who ended up in a coma after her burst appendix was misdiagnosed and mistreated. See Nancy Thomas v. Carnival Corp. Case No.: 10-22018 S.D. Fla. 2010. Incidents such as this will continue to happen while Barbetta is the rule of law.

The time has come to overturn this outmoded precedent.

III.Carnival’s Motion to Dismiss Count I of Plaintiff’s complaint should be denied because the Plaintiff pled sufficient factual information to support a cause of action for negligence.

The first Count of Plaintiff’s complaint incorporates by reference the Plaintiff’s Preliminary allegations in paragraphs one through fifteen. Therein, Plaintiff alleges that he slipped and fell on a hidden hazard in his cabin bathroom and sustained serious injury as a result. [D.E. 1 15]. Thereafter, Plaintiff alleges that Carnival owed him a duty of reasonable care under the circumstances, that Carnival beached that duty, and that Carnival’s breach was the cause of Plaintiff’s significant damages. [D.E. 1 16, 17, 18, and 21].

Carnival argues that Plaintiff’s Complaint is somehow devoid of factual detail and that as a result, “Carnival is left to guess at Plaintiff’s theory of liability in this case.” [D.E. 12 pg. 4]. Nothing could be further from the truth. Plaintiff has provided the Defendant with far more than an “unadorned, the Defendant-unlawfully-harmed-me accusation.” Ashscroft v. Iqbal, 129 S.Ct. 1937, 1949 (U.S. 2009). In fact, paragraph eighteen subparts “a” through “n” detail the myriad of facts that Plaintiff has included to inform Carnival of Plaintiff’s theory of liability. [D.E. 1 18(a)-(n). For example, Plaintiff included that Carnival was negligent for: “failure to utilize adequate flooring in the bathroom/shower”, “failure to provide adequate markings and/or warnings of slipping hazards in bathroom/shower”, “failure to provide non-slip mats in cabin bathroom and/or shower”, “failure to provide adequate hand-holds and/or grips in the cabin bathroom and/or shower” and “Failure to provide an adequate shower door to prevent persons from slipping in the shower and then falling out of the shower.” [D.E. 1 18 (b), (d), (h), (j), and (k)].

Simply put, plaintiff has properly pled the requisite elements of a negligence claim against Carnival. Further, this negligence claim contains sufficient factual detail to put the Defendant on notice of the Plaintiff’s claim and the grounds upon which it rests.

IV.Carnival’s attempt to dismiss Counts II, III, and IV of Plaintiff’s complaint should be denied because the time has come to hold cruise lines accountable for the negligent medical care rendered by their employees. Where Carnival derives a tremendous benefit by carrying medical staff aboard its vessels, fairness dictates that it must also shoulder the burdens and responsibilities of providing medical care to sick and injured passengers.

Carnival seeks to Dismiss all of the Plaintiff’s claims attempting to hold Carnival vicariously liable for the acts of the Medical Defendants. The primary argument for the dismissal of these counts is based on the rule set forth by the Fifth Circuit Court of Appeals in the Barbetta case.

a. The underpinnings of Barbetta and the opposing viewpoint.

Barbetta is based on precedent from a line of cases originating in 1887. 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 liners became floating cities offering a wide range of services to passengers, including twenty four hour medical care.

The majority rule of Barbetta as espoused by the Fifth Circuit Court of Appeals (notably neither the United States Supreme Court nor the Eleventh Circuit Court of Appeals has addressed this issue) is that 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. 848 F.2d 1364, 1369 (5th Cir. 1988). Ironically, that same cruise line can be held liable for that same doctors negligence when he treats a cruise line employee.

The purported reasons 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, 220 (N.D. Cal. 1959). which held that:

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.

Then, in 2003, the Third District Court of Appeal of Florida rejected Barbetta and chose to follow the minority rule set forth in Nietes. Carlisle, 864 So.2d at 5.[4] 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.

Disposing with the first myth of Barbetta, 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. 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 line whose negligence should be imputed to the cruise line.864 So.2d at 7 (emphasis added).[5]

Disposing with the second myth of Barbetta, the Court 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. 864 So.2d at 6. As stated by the court in 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. The board of directors of a modern steamship company has as little professional ability to supervise effectively the highly skilled operations involved in the navigation of a modern ocean carrier by its master, as it has to supervise a physician’s treatment of shipboard illness. Id. at 221. Yet, the company is held liable for the negligent operation of the ship by the master. So, too, should it be liable for the negligent treatment of a passenger by a physician. 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.

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. However, because it was a maritime case, the Florida Supreme Court reversed and 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).

b. Since there is no binding precedent, this Court is presented with a choice.

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 line industry, this Honorable Court should follow Nietes, not Barbetta. To hold otherwise, places nearly 16,000,000 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, neither of these assumptions are 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. (“Where 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.” Id. at 221.)[6]

c.In making its choice, this Honorable Court should consider the vast changes that have occurred in the cruise industry since the origin of the jurisprudence Barbetta is founded on.

The line of precedent to which Barbetta owes its heritage shows its age and irrelevance when put into perspective. For example, in 1881 just six years before Laubheim v. Maatschappy, 107 N.Y. 228, 13 N.E. 781 (1887), to which the Barbetta opinion cites, the S.S. Servia became the first passenger liner to offer electricity onboard a vessel.[7] This was a huge advance for the vessel which still carried masts for sails despite having steam powered engines. The S.S. Servia can only be considered a cruise ship in that its purpose was to transport passengers. In reality, the first purpose built cruise ship was not even invented until 1900.[8] Around the same time period, medical science was making vast improvements including the invention of x-ray imaging.[9] Only years before that communication technology took a leap forward when Alexander Graham Bell patented the first practical telephone.[10]

A hundred years after the Laubheim decision, technology and the cruise industry had come a long way. Regardless, Barbetta argued that the shipowner still could exercise no practical control over their doctors at sea. Fast forward another twenty-five years and the situation has completely changed thanks to the invention and widespread use of the internet and wireless communication. When Barbetta was decided, cellular telephones were the size of bricks and the ability to communicate from ship to shore had only been invented fifty years earlier. See Ship to Shore Telephone Service Opened, Popular Science, March 1930 page 34. That service cost the equivalent of roughly $92.50 per minute in 2011 dollars.[11] Today, a passenger, crewmember, or doctor on a cruise ship can have a video conference with a hospital or doctor in the United States or Carnival’s medical department for less than ten cents per minute.[12]

The reality of the cruise industry of today is as follows: sixteen million cruise ship passengers in 2011[13] , fastest growing segment of the travel industry at a growth rate of 2,100% since 1970, onboard amenities including cell phone access, internet cafes, wireless fidelity (Wi-Fi) zones, rock-climbing walls, bowling alleys, surfing pools, ice rinks, multi-room villas, themed restaurants, spas, and fitness facilities.[14] Most importantly, the cruise industry makes billions if not hundreds of billions of dollars world wide each year and accounted for an economic impact in the U.S. in 2010 of roughly $37.85 billion of gross output.

Shipowners have figured out how to accomplish all of this, yet steadfastly claim that they do not possess the ability or expertise to control their own doctors at sea. However, it’s not impossibility that holds back the advancement of medical care onboard cruise ships carrying sixteen million passengers a year, it’s apathy. This apathy has been sanctioned by Courts for far too long. It’s time for Court’s to catch up with the industry and recognize this farce.

V.Plaintiff’s claims based on apparent agency are properly pled and inappropriately decided at the motion to dismiss stage.

Carnival first attempts to dispose of Plaintiff’s apparent agency claims by arguing that it cannot be held vicariously liable for the conduct of its doctors under Barbetta. Carnival reasons that since it cannot be held liable under an agency theory, it also cannot be held liable under an apparent agency theory. This argument fails because apparent agency is a cause of action separate and apart from that of vicarious liability based on a theory of respondeat superior or actual agency. Under apparent agency, it is the manifestation(s) by the cruise ship to the third party that is controlling, whereas under a theory of respondeat superior or actual agency, it is the actual existence of an employer-employee and/or principal-agent relationship that is controlling. See, e.g., Doonan, 404 F. Supp. 2d at 1371-72.

This distinction has been observed by the Southern District of Florida, which has found that while the majority rule under federal maritime law is that a cruise ship cannot be vicariously liable for the conduct of a ship’s doctor under an actual agency theory, a plaintiff can seek to hold a cruise line vicariously liable for the conduct of a ship’s doctor under an apparent agency theory. See Doonan v. Carnival Corp., 404 F. Supp. 2d 1367, 1371 (S.D. Fla. 2005) citing Suter v. Carnival Corp., 2007 WL 4662144, at 4 (S.D. Fla. May 14, 2007).

Indeed, your Honor has found that the rule of Barbetta, “does not prohibit, as a matter of law, such apparent agency claims.” Peterson v. Celebrity Cruises, Inc. 753 F.Supp.2d 1245 (S.D. Fla. 2010)(J.Ungaro). This principle has been more recently reaffirmed by the Honorable J. Altonaga in the matter of Lobegeiger v. Celebrity Cruises, 2011 WL 3703329 (S.D. Fla. Aug. 23 2011) (Altonaga, J.), holding in part:

Notwithstanding the rationale in Barbetta, several courts, including this Court, have found it permissible for a court sitting in admiralty to hear vicarious liability claims premised on shipboard doctors’ negligence under the theory of apparent agency. See Hajtman v. NCL (Bahamas) Ltd., 526 F. Supp. 2d 1324, 1328 (S.D. Fla. 2007); Suter, 2007 WL 4662144, at *6 (Altonaga, J.); Peterson v. Celebrity Cruises, Inc., 753 F. Supp. 2d 1245, 1248 (S.D. Fla. 2010) (“The Court generally agrees that Barbetta does not prohibit, as a matter of law, such apparent agency claims.”). In the instant case, the Court finds that permitting the application of apparent agency, assuming the necessary elements are satisfied, is consistent with the general maritime tort principles of harmony and uniformity.

Id. (emphasis added).

As noted by Carnival, in order to sustain a claim for apparent agency the Plaintiff must allege (1) that the 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 Plaintiff reasonably acted on such belief to his detriment. See Warren, v. Ajax Navigation Corp., 1995 U.S. Dist. LEXIS 19535 *7 (S.D. Fla. 1995). Here, the Plaintiff’s Complaint sets out numerous manifestations made by Carnival, including that the Medical Defendant’s wore ship’s uniforms, ate with the crew, were under the command of the ship’s officers, and were shown in literature as crew members and employees of Carnival. [D.E. 1 39 and 55]. The Complaint further alleges that Plaintiff reasonably relied on these manifestations and was injured as a result. Id at 31 and 41.

All of the required elements along with sufficient factual information are present in Plaintiff’s complaint in Counts III and IV for apparent agency. [D.E. 1 29, 30, 31, 32, 33, 37, 38, 39, 40, 41, 42, 43, and 47]. For example, Carnival argues that the Plaintiff fails to plead any facts to support his claim that he reasonably relied on Carnival’s representations regarding the Medical Defendants and that the reliance was detrimental. However, Plaintiff pled that his reliance caused him to delay seeking medical treatment from a qualified physician shore side in Bermuda. [D.E. 1, 33 and 43].

Carnival claims that due to fine print in the Plaintiff’s passenger ticket contract it was unreasonable for Plaintiff to rely on the manifestations of Carnival and the Medical Defendants. However, a determination of whether Plaintiff’s reliance was reasonable is a question of fact not appropriate for a motion to dismiss. See Suter, 2007 WL 4662144, *6-7. see also Gentry v. Carnival Corp., 11-21580-CIV-Graham/Goodman [D.E. 36, p. 8 – 9]. In fact, the Southern District of Florida has found that “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.” Fairley, 1993 A.M.C. at 1640-41 (emphasis added).

Notwithstanding the fact that Plaintiff’s claim was properly pled, Carnival’s motion to dismiss Count III and IV is inappropriate for decision at a motion to dismiss stage. It is well settled that Federal Maritime Law embraces the principles of agency and further that the existence of an agency relationship is a question of fact for the jury.[15] 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). In a similar case, Nancy Thomas v. Carnival Corp., et al, S.D. Fla. 2010 10-22018, the Honorable Judge Martinez recognized the viability of an apparent agency claim against a cruise line for the acts of its Medical Staff.[16] Thus, the Medical Defendant’s agency status is not properly decided at the Motion to Dismiss stage.

VI.Plaintiff’s Joint Venture claim against Carnival should not be dismissed because it was properly pled and raises questions of fact not properly decided at a motion to dismiss.

Count V of Plaintiff’s Complaint alleges that Carnival and the Medical Defendants engaged in a Joint Venture to operate the ship’s medical facility for passengers for profit. Carnival argues in its motion to dismiss that the joint venture claim fails under Barbetta. [D.E. 12, p. 11]. To support this proposition Carnival cites Hesterly v. Royal Caribbean Cruises, 515 F.Supp. 2d 1278 (S.D. Fla. 2007)(rejecting Plaintiff’s claim of joint venture based on the holding of Barbetta that a carrier does not have a duty to furnish a doctor for its passengers’ use.) What Carnival fails to cite is that since the Hesterly decision, congress has passed 46 U.S.C. § 3507 which expressly requires cruise ships to carry medical staff onboard. Regardless of this fact, Carnival’s reliance on Barbetta falls flat for all of the same reasons that it does with regard to Plaintiff’s Counts II, III, and IV as explained supra.

Carnival also makes the argument that Plaintiff has failed to properly plead his claim relating to the joint venture between Carnival and the Medical Defendants. A joint venture is nothing complicated. As the Florida Supreme Court in Kislack v. Kreedian, 95 So. 2d 510, 515 (Fla. 1957) (emphasis added) stated: “the relationship of joint adventurers is created when two or more persons combine their property or time or a combination thereof in conducting some particular line of trade or for some particular business deal.” Herein, Carnival engaged the doctors and nurses that comprised the medical staff aboard its vessel to carry out a single business enterprise for profit: the operation of a medical facility onboard Carnival’s vessel to provide medical services to passengers for profit. [D.E. 1 50]. As part of the joint venture, Carnival financed and equipped the ship’s medical facility and assisted in running it. Id at 51. The Medical Defendants, in turn, provided labor and/or assisted in running the ship’s medical facility so as to generate charges to passengers which were thereby collected by Carnival. Id. Upon information and belief, the money was then shared by Carnival and the Medical Defendants.

Carnival and the Medical Defendants shared a common purpose: to operate the ship’s medical facility for profit. They also have a joint proprietary or ownership interest in the ship’s medical facility. Id at 53. Carnival has the interest in the money it devoted to setting up the medical facility and the Medical Defendants have a proprietary interest in the time and labor expended in operating the ship’s medical facility. Id at 54. In certain situations, where one party supplies labor and skill (such as the Medical Defendants herein), the other supplies capital (such as Carnival herein), and both agree to share in the profits of the venture, Florida courts have concluded an agreement to share losses exists as a matter of law “since in the event of a loss, the party supplying the know how would have exercised his skill in vain and the party supplying the capital investment would have suffered a diminishment thereof.” Williams v. Obstfeld, 314 F.3d 1270, 1276 (11th Cir. 2002) (quoting Fla. Tomato Packers, Inc. v. Wilson, 296 So.2d 536, 539 (Fla. 3d DCA 1974)).

Furthermore, to the extent this Honorable Court finds any element lacking, binding Eleventh Circuit precedent makes clear that the elements of a Joint Venture “cannot be applied mechanically” and that “[n]o one aspect of the relationship is decisive.” Fulcher’s Point Pride Seafood, Inc. v. M/V “Lady Mary,” 935 F.2d 208, 211 (11th Cir. 1991) citing Sasportes v. M/V Sol de Copacabana, 581 F.2d 1204, 1208 (5th Cir. 1978). And further, the factors are not a checklist, “[t]hey are only signposts, likely indicia, but not prerequisites.” Id. (emphasis added). Accordingly, even if this Honorable Court finds a required element is missing, this Court can still find that Plaintiff’s cause of action for Joint Venture is plausible, and should therefore survive the present Motion to Dismiss.

Finally, it is well settled that questions of an agency relationship, including the existence of a joint venture present a question of fact for the jury. See USA Independence Mobilehome Sales, Inc. v. City of Lake City, 908 So.2d 1151, 1158 (Fla. 1st DCA 2005). Accordingly, this Honorable Court should deny Carnival’s Motion to Dismiss Count IV.

VII.Plaintiff’s third party beneficiary claim against Carnival was properly pled and supported by facts.

Count XII of Plaintiff’s Complaint alleges a cause of action based on third party beneficiary. [D.E. 1, p. 24]. Generally, to maintain a cause of action for breach of a third party beneficiary contract, the party asserting the third party beneficiary status must prove (1) the existence of the contract; (2) clear or manifest intent of the parties that the contract primarily and directly benefits the third party; (3) breach of a contact by a contracting party; and (4) damages to the third-party resulting from the breach. Steadfast Ins. Co. v. Corporate Protection Security, Inc., 554 F. Supp. 2d 1335 (S.D. FL 2008) citing Jenne v. Church & Tower, Inc., 814 So. 2d 522, 524 (Fla. 4th DCA 2002). Herein, all of these elements were sufficiently pled in paragraphs 70, 71, and 72 of the Complaint.

Carnival argues Plaintiff’s count for Third Party Beneficiary fails because Plaintiff failed to give details about the contract between the medical Defendants and Carnival, that Plaintiff alleges he is a third party beneficiary of. Carnival’s argument, however, is devoid of merit. At the pleading stage in the litigation, Plaintiff cannot provide the large amount of detail Carnival is requesting. Information on the signatories of the contract, the types of claims covered, and the form of the contract cannot be provided without the benefit of discovery. See Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (holding that to meet the Rule 8 requirement of providing a “short plain statement of the claim showing that the pleader is entitled to relief,” the factual allegations in the complaint must be sufficient to “raise a right above the speculative level.”) See also Tamayo v. Blagojevich, 526 F. 3d 1074, 1083 (7th Cir. 2007) (interpreting Twombly and asserting that “plaintiff still must provide only enough detail to give Defendant fair notice of what claim is and the grounds on which it rests, and through allegations show that claim is plausible rather than merely speculative”) (emphasis added).

Notwithstanding the fact that the complaint provides the requisite detail to give fair notice of the claims and the grounds thereon – all that is required at the pleading stage – Carnival improperly asserts Plaintiff is not entitled to sue for breach of contract between the medical Defendants and Carnival, unless the contract “expressly” shows an intent to directly benefit the third party. Herein, upon information and belief, discovery will reveal that the contract between Carnival expressly evidences the intent to benefit passengers, such as DOE, because 1) the agreement calls for the provision of medical services to third parties such as DOE, and 2) the agreement contains an indemnification provision, whereby Carnival agrees to pay the Medical Defendants legal expenses in the event of suit. Such information and belief is based on previous litigation involving Carnival, where identical contracts specifically and explicitly mentioned Plaintiff, as a passenger several times as follows:

2…Said Services shall consist of the providing of medical services and treatments to passengers and crew and shall be performed on a seven (7) day-per week basis during regular and on-call vessel infirmary hours and for emergencies.

CONTRACTOR agrees to practice according to the appropriate standard of care, to practice within his/her scope of medical expertise and in the best interests of his/her patient.

See Boney v. Carnival Corp., 09-23154 (S.D. 2009).

Plaintiffs believe that here, as in those cases, discovery will reveal that the plain language of the contract explicitly recognizes passengers, including the Plaintiff, and states, among other things, that the parties agree that the Doctor will exercise medical care in the best interests of his/her patient for passengers.[17] Such language expresses the parties’ intent to directly and primarily confer a benefit on the Plaintiff. Further, upon information and belief, here, as in those cases, Plaintiff anticipates Discovery will reveal the agreement contains an indemnification provision whereby the doctor agrees to indemnify Carnival.[18] It is reasonable to infer that one of the primary purposes of this contract was to protect passengers by having jurisdiction and insurance coverage over the doctors.

Thus, Carnival has a contractual duty to enforce this indemnification provision. Carnival breached this provision by failing to enforce this indemnity agreement. In particular, the Defendant Doctor moved to dismiss Plaintiffs complaint and quash service and Carnival has not opposed this motion. Therefore, this Count is properly directed against Carnival because Plaintiff has the right, as an intended third party beneficiary, to enforce the terms of the agreement.[19]

VIII. Conclusion

For the reasons stated herein, Plaintiff respectfully requests this Honorable Court enter an order denying Carnival’s Motion to Dismiss.

WHEREFORE, Plaintiff asks this Honorable Court to deny Defendant’s Motion to Dismiss Plaintiff’s Complaint or in the alternative grant the Plaintiff leave to amend any deficiencies the Court may find.