Today, I had the pleasure of being part of a Maritime Panel at my alma mater, St. Thomas University School of Law. Joining me on the Panel were other St. Thomas alumni, Christine M. Dimitriou of Mase Lara Eversole and Kerry A. Nierenberg of Lipcon, Marguiles, Alsina and Winkleman.
Photo of Carnival Triumph
The topics discussed were Class Actions against cruise lines, the operational realities of a Costa Concordia tragedy occurring in the U.S., exclusions in marine insurance policies, unseaworthiness and the current status of punitive damages for unseaworthiness and other maritime claims. However the topic which garnered the most lively discussion was the current state of the law regarding ship owner liability for negligence of ships' doctors and medical staff. Under Mascolo v. Costa Crociere, S.p.A., 726 F. Supp. 1285 (S.D. Fla. 1989), a ship operator has no vicarious liability for negligence of a ship's doctor on the ground that it has no control over the physician/patient relationship where the passenger contract of carriage provides that a ship's doctor is not an agent of the carrier and services were to be rendered at the passenger's expense, a passenger carrier is not vicariously liable for the negligence of its ship's doctor or his staff in treating a passenger. Barbetta v. S.S. Bermuda Star, 848 F.2d 1364 (5th Cir. 1988) dictum states that a carrier may have no vicarious liability for the negligence of a ship's doctor irrespective whether the doctor is an employee of the carrier or an independent carrier. Fairley v. Royal Cruise Line, Ltd., 1993 AMC 1633 (S.D. Fla. 1993), expressed criticism of the Barbetta rule and denied summary judgment sought by a carrier.
There has been a tortured progeny post-Barbetta, some courts following Fairley and others following Barbetta, ultimately creating a majority rule in the Southern District of Florida of no vicarious liability for the negligence of an independent ship's doctor. Plaintiff attorneys then attacked this line of cases by alleging passenger reliance on statements that the doctor was held out as an officer and member of the crew of the ship on the grounds of apparent agency. Thus far, this has been rejected on the grounds that it is unreasonable as a matter of law for a passenger to conclude that a ship's medical staff were apparent agents of the carrier.
This is an anomaly where the law relative to negligent treatment of an employee is established by other precedent: in the context of negligent treatment of a seaman, the employer of the doctor and seaman are vicariously liable for the doctor's negligence. See De Zon v. American President Lines, Ltd., 180 U.S. 660 (1943). The panel discussed that the entry into force of the Maritime Labor Convention may ultimately resurrect this anomaly. As the ship owner is required under the MLC to provide treatment to a seaman on board ship similar to what that seaman can receive on land, we queried why paying passengers are not entitled to that same medical treatment? Something to think about...
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