John Doe v. Royal Caribbean Cruises, Ltd., Dr. Carlos Jaramillo, Doctor Doe, and Nurse Doe

Lipcon, Margulies, Alsina & Winkleman, P.A

September 10, 2012

John Doe v. Royal Caribbean Cruises, Ltd., Dr. Carlos Jaramillo, Doctor Doe, and Nurse Doe

Response in Opposition to Defendant’s Motion To Dismiss

This brief reflects our firms continued efforts to improve passenger safety and care aboard ships at sea. In this case, a passenger received substandard medical care from a Royal Caribbean physician onboard one of its ships. As a result the passenger lost his finger. Our experienced maritime lawyers filed suit against Royal Caribbean and the doctor onboard its ship.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case No. 12-CV-22635-MARTINEZ/McAliley
JOHN DOE,
Plaintiff,

v.

ROYAL CARIBBEAN CRUISES LTD.,
DOCTOR CARLOS JARAMILLO,
DOCTOR DOE, NURSE DOE
Defendants.

______________________________/

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT ROYAL CARIBBEAN CRUISES LTD.’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT AND INCORPORATED MEMORANDUM OF LAW

COMES NOW, the Plaintiff, JOHN DOE, and files his response in opposition to Defendant ROYAL CARIBBEAN CRUISES LTD.’S (hereinafter “Royal Caribbean[‘s]”) Motion to Dismiss Plaintiff’s Complaint [D.E. 6], and for good cause relies on the following memorandum of law:

MEMORANDUM OF LAW

ROYAL CARIBBEAN’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT SHOULD BE DENIED BECAUSE THE TIME HAS COME TO OVERTURN BARBETTA v. BERMUDA STAR BECAUSE IT IS OUTDATED, DANGEROUS AND UNJUST, AND NO LONGER REFLECTS THE REALITIES OF TODAY’S CRUISE INDUSTRY.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. AND WHERE ROYAL CARIBBEAN OBTAINS A TREMENDOUS BENEFIT IN AVOIDING ITS DUTY TO DIVERT THE VESSEL BY HAVING A DOCTOR ONBOARD ITS VESSEL, IT IS ONLY FAIR THAT ROYAL CARIBBEAN BE RESPONSIBLE FOR ITS SHIPBOARD PHYSICIAN’S MALPRACTICE.

I. OVERVIEW

A. Facts giving rise to the Complaint

This action arises out of the grievous personal injuries sustained to Plaintiff John Doe while a passenger aboard a Royal Caribbean vessel, wherein the Royal Caribbean medical staff failed to properly diagnose and/or treat Plaintiff’s severed right ring finger. As Plaintiff’s complaint succinctly sets forth: On or about September 11, 2011, Plaintiff John Doe and several family members were paying passengers on the Royal Caribbean vessel, Liberty of the Seas. On or about the evening of Saturday, September 11, 2011, a large portion of Doe’s right ring finger was severed by a mechanical door aboard the defendant’s vessel. After the incident, Doe presented to the Medical Department located onboard the Liberty of the Seas. At that time, he was interviewed by Defendant Doctor Carlos Jaramillo who sowed the missing finger portion back on his remaining right ring finger and recommended he be evaluated for plastic surgery and/or hand surgery at the next port on the following day.

The following day, when the ship arrived into port in Italy, Doe visited a hospital that specialized in plastic surgery. Doctors at that hospital notified Doe that it was too late to salvage the missing part of his finger, but had he been promptly evacuated to a surgical hospital at the time of the injuries, the chances of saving the missing portion of his severed finger would have been greatly increased.

When Doe returned home to Beirut, Lebanon, he visited Dr. Imad Kaddoura, a cosmetic and hand surgeon. Dr. Kaddoura noted Doe had dry gangrene of the distal phalanx and was in need of debridement and fasciocutaneous flap coverage of his right ring finger. Since Doe is diabetic and has high blood pressure, the only solution was to amputate his right ring finger fingertip.

B. The Complaint and Royal Caribbean’s Motion to Dismiss.

On July 18, 2012, Plaintiff filed suit against Royal Caribbean and against Defendants Doctor Carlos Jaramillo, Doctor Doe and Nurse Doe (hereinafter referred to as the “Medical Defendants”), alleging causes of action sounding in negligence, including negligence based on theories of respondeat superior, apparent agency, and joint venture. D.E. 1. On August 13, 2011, Royal Caribbean filed its Motion to Dismiss Plaintiff’s Complaint. D.E. 6. Therein, Royal Caribbean seeks to dismiss only Counts II, III and IV of Plaintiff’s Complaint.[1] The arguments contained in Royal Caribbean’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 Plaintiff argues in good faith for the modification of this law for including, but not limited to, the following reasons:

II. MOTION TO DISMISS COUNT II OF PLAINTIFF’S COMPLAINT – VICARIOUS LIABILITY BASED ON RESPONDEAT SUPERIOR.

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 v. Bermuda Star, 848 F. 2d 1364, 1369(5th Cir. 1988). 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 v. Carnival Corp., 864 So. 2d 1, 5 (Fla. 3d DCA 2003).[2] 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.”

Additionally, the Court found that the cruise line 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.Carlisle, 864 So.2d at 7 (emphasis added).[3]

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).

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 line 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. “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.[4]

A. Barbetta is based on flawed and outmoded notions of the modern day cruise line 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. See Bob Dickinson and Andy Vladimir, Selling the Sea: An Inside Look at the Cruise Industry, John Wiley & Sons, Inc., at 210; Costa Crociere v. Family Hotel Serv., Inc., 939 F. Supp 1538, 1557 (S. D. Fla. 1996) (noting “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 irrelevant and outmoded, Royal Caribbean nonetheless clings to the oft 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 that expertise, the power to interfere in the doctor/patient relationship would still be lacking. D.E. 6, p. 5.

i) 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. See 979 So. 2d at 990 (citing 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). And 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).

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.[5] 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. Carlisle v. Carnival Corp., 864 So. 2d 1, 5 (Fla. 3d DCA 2003). In Carlisle’s case, Carnival controlled a number of aspects of Dr. Neri’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 hospital. Id.

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 is on board the vessel in a way that they did not back when the “Barbetta rule” was first pronounced. Nietes v. Am. President Lines, Ltd., 188 F. Supp. 219, 220 (N. D. Cal. 1959). 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 ship owner to exercise supervision and control of its shipboard physicians, not “by the very existence” of a Shoreside Medical Department, but by putting shipboard physicians and nurses in real time contact with its Shoreside Medical Department or any land-based hospital of its choosing.

As Paragraph 9 of the Complaint states:

At all times material hereto, Defendant RCCL 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 RCCL to directly control the medical care on the ship.

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). And 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 on board a ship” as a means of escaping liability for the negligent medical treatment of shipboard doctors.

Additionally, 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 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.

ii) THE FALLACY THAT ROYAL CARIBBEAN 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 v. Carnival Corp., 307 F. Supp. 2d 1372 (S.D. Fla. 2004) (“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 John 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. Carnival Corp. v. Carlisle, 953 So. 2d 461, 470 (Fla. 2007). 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).

iii) 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. v. Carnival Corp., 864 So. 2d 1, 4-5 (Fla. 3d DCA 2003).

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, 1993 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, “We have a minimum of one fully licensed physician, and a minimum of two licensed nurses onboard every ship.”[6] Fairley, at 1993 AMC 1639; Carlisle, 864 So. 2d at 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, at 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 their human costs of those services. See Fairley, 1993 AMC at 1639.

iv) 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 Compagno, Malpractice on the Love Boat: Barbetta v S/S Bermuda Star, 14 Tul. Mar. L.J. 381, 390-391 (1990). 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.

v) 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 John 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. Many 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, n14. 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. At present, Doe has no information regarding the whereabouts of Dr. Jaramillo for purposes of service of process and Royal Caribbean has refused service on his behalf. 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.

vi) THIS HONORABLE COURT HAS THE AUTHORITY TO FOLLOW NIETES

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”).

vii) 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, scholars who have addressed the issue of a cruise ship’s liability for the negligence of shipboard physicians committed on passengers have roundly 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.”); 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, Note, 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.” See note 139, at 391. 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 Malpractice Cases: Must Admiralty Courts Steer by the Star of Stare Decisis, 17 Nova L. Rev. 575, 592, 594 (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.” Id.

Next, 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…” Id.

In sum, as to Count II of Plaintiff’s Complaint – Vicarious Liability based on Respondeat Superior, 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.

III. COUNT III – APPARENT AGENCY. APPARENT AGENCY CLAIMS REMAIN ALIVE AND WELL DESPITE BARBETTA.

Next, Royal Caribbean seeks dismissal of Plaintiff’s Apparent Agency count. Royal Caribbean’s argument fails because, as the Honorable Judge Martinez previously stated in Doonan v. Carnival Corporation that apparent agency can be established despite the majority ruling of Barbetta. Doonan v. Carnival Corporation, 404 F. Supp. 2d 1367, 1372 (S.D. Fla. 2005).

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. Doonan, at 1371. Herein, Plaintiff’s complaint alleges that an apparent agency relationship between Royal Caribbean and the Medical Defendants was established because, amongst other things, the Medical Defendants wore a ship’s uniform, ate with the ship’s crew, were under the command of the ship’s officers, were paid a salary by Royal Caribbean and worked in the ship’s hospital. Notably, the Honorable Judge Martinez held in Doonan that factual allegations virtually identical to those found herein were sufficient to deny a motion to dismiss an apparent agency claim. Id. at 1372.

Royal Caribbean argues that “Plaintiff has not properly pled a claim for apparent agency as he fails to plead facts supporting the element of ‘reasonable reliance.’” D.E. 6, p. 5. This argument fails because Plaintiff’s complaint expressly states:

46. It was reasonable to believe that the Medical Defendants were RCCL’s agents because they wore a ship’s uniform and admitted Plaintiff to the ship’s medical facility. In addition, at all times material hereto, the Medical Defendants spoke and acted as though they were authorized to do so by RCCL.

This reasonable reliance was detrimental because it significantly delayed Plaintiff from receiving the proper medical treatment.

D.E. 1.

These well-plead allegations succinctly set forth the pleadings requirements regarding reasonable reliance.

Finally, Royal Caribbean 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 assumes that your everyday 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. Dist. Ct. App. 2004); see also Jones v. Tallahassee Mem’l Reg’l Healthcare, Inc., 923 So. 2d 1245, 1247 (Fla. Dist. Ct. App. 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, Royal Caribbean’s reliance on Hajtman is misplaced.

Further to this point, it was entirely reasonable for John Doe to believe that the ship’s medical staff was an agent of Royal Caribbean. 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 v. Royal Caribbean Cruises LTD., 838 N.E.2d 80, 91, 361 Ill. App. 3d 856, 869 (2005). 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 AMC 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 on a cruise line’s brochure, and occurring on the cruise vessel itself, are services operated by employees and/or agents of the cruise line. As such, the Hajtman 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.

Herein, the factual allegations contained in Plaintiff’s Complaint illustrate the various ways in which Royal Caribbean manifested to Plaintiff and his fellow passengers 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 his reliance on this belief was reasonable. And as a result of said reliance, Plaintiff was suffered grievous personal injury. Accordingly, Plaintiff’s Complaint sets out a claim for apparent agency sufficient to state a plausible entitlement to relief; and thus, Royal Caribbean’s Motion to Dismiss Count III of Plaintiff’s Complaint should be denied.

IV. COUNT IV – JOINT VENTURE. ROYAL CARIBBEAN AND THE MEDICAL DEFENDANTS ENGAGED IN A JOINT VENTURE TO OPERATE A SHIP’S MEDICAL FACILITY FOR PASSENGERS ONBOARD ROYAL CARIBBEAN’S VESSEL.

Count IV of Plaintiff’s Complaint alleges that Royal Caribbean and the Medical Defendants engaged in a joint venture to operate the ship’s medical facility for passengers for profit. Royal Caribbean argues in its motion to dismiss that because a shipowner cannot control onboard medical treatment, it cannot be liable as a joint venturer. D.E. 6, p. 6. This argument fails for several reasons.

First, 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, Royal Caribbean 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 Royal Caribbean’s vessel to provide medical services to passengers for profit. As part of the joint venture, Royal Caribbean financed and equipped the ship’s medical facility and assisted in running it. 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 Royal Caribbean. Upon information and belief, the money was then shared by Royal Caribbean and the Medical Defendants.

Royal Caribbean 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. Royal Caribbean 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. Further, Plaintiff alleged in his Complaint, upon information and belief, that a contractual arrangement exists between the parties which expressly lays out a profit sharing relationship in which Royal Caribbean and the Medical Defendants share in the profits of the joint venture. In certain situations, where one party supplies labor and skill (such as the Medical Defendants herein), the other supplies capital (such as Royal Caribbean 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)).

Again, Royal Caribbean argues the control element fails as a matter of law. Plaintiff’s complaint alleges that both Royal Caribbean and the Medical Defendants had joint or shared control over aspects of the joint venture. The Medical Defendants had control over the day to day workings of the ship’s medical facility. Royal Caribbean also exercised control over the day to day workings of the ship’s medical facility and, additionally, controlled the billings and collections for the ship’s medical facility. Royal Caribbean and the Medical Defendants, therefore, had joint control over the day to day operations of the medical facility in that the Medical Defendants performed the medical aspects of the joint venture and Royal Caribbean performed the operational aspects of the joint venture.

Furthermore, contrary to Defendant’s argument, Royal Caribbean could also control onboard medical treatment with the use of technology such “Face to Face Telemedicine.” As such, Plaintiff has plead allegations sufficient to demonstrate a joint right of control between the joint venturers.

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