In Franza v. Royal Caribbean Cruises, Ltd., 772 F. 3d 1225 (11th Circuit 2014), the Eleventh Circuit Court of Appeals overturned 140 years of precedent by holding that cruise lines may be sued for the professional negligence of ships’ physicians and nurses. In this landmark case, I successfully represented the Personal Representative of Pasquale Vaglio, who died as a result of the medical negligence of RCCL’s medical staff in attending to a closed head injury sustained while on the cruise. Prior to the Franza decision, cruise passengers had no right to sue cruise lines for even the most egregious negligence on the part of the cruise lines’ physicians, even though the cruise lines employed the physician, and directly profited from the physician’s practice aboard its vessels. In Franza, the Eleventh Circuit, which has jurisdiction over federal maritime cases in Georgia, Alabama and, more importantly, cruise lines, Florida, refused to recognize the immunity defense which cruise lines raised, the roots of which, according to the court, “snaked back into a wholly different world . . . of 19th Century steamships . . . .” Instead, relying upon well-established maritime agency principles, the Eleventh Circuit acknowledged the 21st Century reality of medical care on modern cruise lines. Before addressing the opinion in detail, we will briefly revisit the history of maritime medical malpractice actions.
Beginning in the 1870’s, when physicians made horse and buggy house calls to assist with the delivery of infants in their parents’ homes, Mary O’Brien, an Irish immigrant from County Cork was sailing aboard a Cunard vessel as part of the massive Irish immigration to the United States in the second half of the nineteenth century. Boston, the port of entry, maintained strict quarantine regulations for immigrants to see that they were protected from smallpox by vaccination aboard vessels prior to debarkation. Approximately 200 female passengers were assembled below deck and those without marks on their arm were vaccinated by the ship’s physician. O’Brien claimed that she had previously been vaccinated even though there was no mark, but her claim of prior vaccination was rejected or ignored and she was vaccinated.
She sued the ship’s physician as well as Cunard. After a full bench trial, the court ruled against her on her claim of assault against the physician and also ruled that the steamship operator could not be held vicariously liable. The court held that it would be unreasonable to hold Cunard responsible for all of the particulars of the physician’s treatment of passengers. A few years later, a New York State Court of Appeals ruled in the same fashion, also following a bench trial, based upon the doctrine of charitable immunity with respect to hospitals. Yes, in the 1870’s, hospitals were immune from suit as charitable entities. Likewise, in the early 1900’s, the Ninth US Court of Appeals rejected claims for vicarious liability against ship owners following full bench trials.
As late as 1988, the Fifth Circuit Court of Appeal, which has jurisdiction over federal cases filed in Texas, Louisiana and Mississippi, likewise held that a cruise line could not be held liable under agency principles for the negligence of its shipboard physician. See, Barbetta v. S/S Bermuda Star, 848 F. 2d 1364 (5th Cir. 1988).
Although Barbetta followed some of the same legal principles that had been established 100 years earlier, it represented a stark procedural departure from that established law. Barbetta was decided at the summary judgment stage, rather than after a full trial, yet the Barbetta court stated that – as a matter of law – a passenger could never assert an agency claim against a cruise line for the negligence of its employed physicians. Two years after Barbetta was decided, the United States Supreme Court ruled that Carnival Cruise Line could require all of its passengers, no matter where they resided, to file suit against the cruise line in the cruise line’s home venue, i.e., Miami, Florida. See, Shute v. Carnival Corp.
Accordingly, the overwhelming majority of passenger lawsuits were filed in Florida State Courts. However, beginning in the mid to latter part of the first decade of this century, the cruise lines went a step further: They required their passengers to sue them in Federal District Court in the Southern District of Florida, to the exclusion of Florida’s State Courts. Thus, even though the Florida Supreme Court had followed Barbetta as late as 2007, the herding of all passenger claims into Federal District Court by the cruise lines left the issue of their vicarious liability for negligence of shipboard physicians open to challenge at the Eleventh US Court of Appeals, which had never addressed the issue.
Most of the United States District Court judges (trial level judges in the federal system) in the Southern District of Florida followed the so-called Barbetta Rule both with respect to allegations of actual agency, as well as apparent agency. Many district court judges granted motions to dismiss at the pleading stage. These decisions either were not appealed, or were settled by the cruise lines after notice of appeal was filed.
However, in late 2014, in Franza v. RCCL, the Eleventh Circuit noted that “although the general maritime law of the United States has long embraced the principles of agency law, the so-called “Barbetta Rule” immunizes a ship owner from respondeat superior liability whenever a ship’s employees render negligent medical care to its passengers . . . no matter how clear the ship owner’s control over its medical staff or how egregious the claimed acts of negligence.” 772 F. 3d at 1228. The Eleventh Circuit acknowledged that “Franza raises two questions of first impression.” Relying upon established maritime case law from both the United States Supreme Court and for the Eleventh Circuit the court observed that “[w]e have repeatedly emphasized that vicarious liability raises fact-bound questions, and we can discern no sound reason in law to carve out a special exemption for all acts of on-board medical negligence.” Id. Noting that much has changed in the quarter century since Barbetta, both in terms of the evolution of legal norms, the rise of a complex cruise industry, and the progression of modern technology, the court declined to adopt the Barbetta Rule.
The Eleventh Circuit called upon the United States Supreme Court’s proud tradition of “tak[ing] the lead in formulating flexible and fair remedies in the law maritime, and Congress ha[s] largely left to [the Supreme] Court the responsibility for fashioning the controlling rules of admiralty law.”
Thus, applying well established maritime law principles of agency, the Eleventh Circuit reviewed the complaint which the district court had dismissed, and found that it met federal pleading requirements to assert a claim for actual agency as well as apparent agency. Ultimately, the court concluded that “the Barbetta Rule now seems to prevail more by the strength of inertia than by the strength of its reasoning.”
Now, because of the cruise line’s federal only ticket contracts, the Eleventh Circuit’s ruling will apply to the vast majority of passenger claims filed by passengers on American cruises. Thus, for the cruise lines the Eleventh Circuit’s Franza opinion comes under the heading of “be careful of what you ask for” – or in this case, what you insist upon.