Last fall, the Eleventh Circuit finally overturned 100 years of legal precedent in Franza v. Royal Caribbean Cruises Ltd. The United States Eleventh Circuit Court of Appeals (the last stop before the US Supreme Court) refused to follow a case out of the United States Fifth Circuit Court of Appeals named Barbetta v. S/S Bermuda Star. The Barbetta Rule, as it has since been called, precluded cruise lines from being held vicariously liable for the medical malpractice of their ships’ doctors and nurses. Franza did not overrule Barbetta. This is because the cases are in different circuits. The US Supreme Court would have to decide on this case if appealed in order to make Franza controlling in all circuits throughout the country.
Most of the major cruise lines require all lawsuits to be filed in the Southern District Court in Miami (Royal Caribbean, Norwegian, Silversea, Crystal Cruises, and Carnival). This District Court has for years struck down claims against cruise lines for malpractice based on negligent supervision, inadequate training, having insufficient numbers of medical personnel, not providing medical equipment, and failing to promulgate and enforce medical standards. All this has now changed under Franza.
So, how was the court in Franza able to distinguish and strike down the Barbetta Rule? The maritime attorneys representing the deceased plaintiff thoughtfully crafted an argument using agency principles. While the Barbetta Rule created an exemption for shipboard malpractice claims, the Eleventh Circuit concluded in Franza that:
The rule confers this broad immunity no matter how clear the shipowner’s control over its medical staff or how egregious the claimed acts of negligence…. We 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 onboard medical negligence. Much has changed in the quarter-century since Barbetta. As we see it, the evolution of legal norms, the rise of a complex cruise industry, and the progression of modern technology have erased whatever utility the Barbetta rule once may have had.
The Barbetta decision dealt mostly with respondeat superior, a Latin legal term meaning “let the superior make answer.” It holds an employer liable for the employee’s wrongful acts committed within the scope of the employment or agency. The attorneys in Franza attempted to use other vicarious liability theories like an apparent agency. In order to prove apparent agency, the attorneys had to show that the cruise line’s representations gave rise to the reasonable belief that the doctor was its agent, followed by the passenger’s detrimental reliance on that representation. In the past, it was relatively easy to prove that ship doctors were represented to be agents of the cruise line (they were oftentimes labeled as ship officers). However, the cruise lines have routinely used the cruise ticket to disclaim any medical negligence by these doctors and staff as well as making these doctors and staff independent contractors. The ticket expressly states that the cruise line is not responsible for the medical negligence of their medical staff. The cruise lines used this information to say that the passenger’s reliance was unreasonable.
Germaine to any claim for vicarious liability is the level of control the employer (cruise line) has over the employee (medical staff). The court in Franza only held that it was possible for a passenger to state a claim for vicarious liability. A claimant must still prove control. The Franza Court considered the following factors as significant in allegations against the cruise line:
- Advertised the existence of the medical center to its passengers;
- Retained the right to both hire and fire medical staff;
- Required the nurses and doctors to wear ship’s uniforms and serve under the ship’s officers;
- Paid salaries to the medical staff;
- Stocked the hospital with all supplies, medicines, and equipment; and
- Billed for medical services on the passenger’s shipboard charge card.
The cruise industry has adopted industry standards for medical care while onboard their ships. These were set out in the American College of Emergency Physician’s (ACEP) 1995 Health Care Guidelines for Cruise Ship Medical Facilities. These guidelines require medical staff on cruise lines to set minimum credentialing, training requirements, development of a “medical operations manual,” and criteria for medications and equipment the ship must carry.
When Barbetta was decided, the cruise industry was not technologically as sophisticated as it is today. Barbetta famously held that “ships are not floating hospitals.” This is simply not the case anymore, and the Franza Court saw right through that argument. Cruise ships today are floating cities. They are able to communicate to onshore medical departments instantaneously. Most lines also have contracts with large shore-based hospitals to provide medical guidance.
Time will tell if Franza will succeed at the trial court level. No doubt the cruise industry has taken notice and, at this very minute, is likely seeking out ways to change its procedures so that the medical negligence of their staff cannot be imputed to them.
If you have been injured on a cruise ship and have suffered due to the medical negligence of the staff, call today for a free consultation. The LaBovick Law Group has a team of attorneys that focus their practice on maritime law. Because most suits against the big cruise lines must be filed in Miami, our firm handles claims from clients living all over the country. The cruise industry is a multi-billion dollar business with the resources to fight each and every claim tooth and nail. We know how to battle these giant corporations to get the results our clients deserve. Be careful, the law on land is different from that on the water. Suits against the cruise industry have a statute of limitations of one year, and often require a notice of claim to be filed within six months. Choosing an attorney who knows maritime law will get you the best result for your case. The attorneys at the LaBovick Law Group are well versed in maritime law.
Sorrels v. NCL (Bahamas) Ltd.
In early August, the Eleventh Circuit came out with yet another extremely important case impacting maritime law. The case is called Sorrels v. NCL (Bahamas) Ltd., Nos. 13-15858, 14-14467, WL 4619887 (11th Cir. Aug. 4, 2015). This case involved a slip and fall of a passenger while onboard a Norwegian Sky Cruise. The Distict Court in this matter ruled that the coefficient of friction (COF) testing done by the plaintiff’s expert , Dr. Zollo, was not based on reliable methods. This was due to the fact that Dr. Zollo tested an area of the pool deck that was not traveled by the plaintiff and the testing was done nearly a year and a half after the incident. The District Court also found that Dr. Zollo’s opinion that the ATSM standard of 0.6 was the minimum acceptable COF for the deck only applied to crew members and not to fare-paying passengers. This standard did “not govern cruise-ship passenger decks” because it only discussed general safety standards for “workers aboard ships and did not address the appropriate standards for passenger areas on cruise ships.” D.E. 93 at 11.
Dr. Zollo relied on ASTM F1166-07 for his opinion of the industry COF standard. The 11th Circuit Court of Appeals held that “evidence of custom within a particular industry, group, or organization is admissible as bearing on the standard of care in determining negligence.” Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178, 1180 (5th Cir. 1975). ASTM F1166-07 “provides ergonomic design criteria from a human-machine perspective for the design and construction of maritime vessels and structures.” ASTM F1166-07 at § 1.1. More specifically, ASTM F1166-07 states that “walkways, passageways, decks and all other walking surfaces shall have a nonskid surface sufficient to provide a coefficient of friction of 0.6 or higher measured when the surface is wet.” Id at § 220.127.116.11.
Finally the Eleventh Circuit got it right. They realized that on cruise ships there are numerous areas traversed by both crew members and passengers, including pool decks. The Eleventh also threw out the District Court’s argument that the testing done nearly a year and a half later of an area not traversed by the plaintiff was not “substantially similar.” The Eleventh properly held that delay in viewing or inspecting the place where an accident took place normally goes to weight and not to admissibility.
The Sorrels ruling should now make it much harder for the courts to Daubert a liability expert and then grant summary judgment for lack of evidence. This case also confirms that the standard COF for the cruise line is 0.6 for both passengers and crew alike.