Opposition Brief — Carlisle v. Carnival Corp (No. 06-1704)

; (2) FILED

No. 06-1704 AUG 15 2097

e

SUPREME COURT US

Bn The

Supreme Court of the Anited States

¢

DARCE CARLISLE,

Petitioner,

v.

CARNIVAL CORPORATION,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The Florida Supreme Court

¢

RESPONDENT?’S BRIEF IN OPPOSITION

°

JEFFREY B. MALTZMAN RODOLFO SORONDO, JR.

DARREN W. FRIEDMAN Counsel of Record

MALTZMAN FOREMAN P.A. ILENE L. PABIAN

One Biscayne Tower HOLLAND & KNIGHT LLP

2 South Biscayne Boulevard 701 Brickell Avenue

Suite 2300 Suite 3000

Miami, FL 33131 Miami, FL 33131

(305) 358-6555 (305) 374-8500

Counsel for Respondent Carnival Corporation

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

RESTATEMENT OF THE

QUESTION PRESENTED

Whether this Court should review the Florida

Supreme Court’s decision that Florida’s Third District

Court of Appeal had no authority to reject settled

maritime law that shipowners are not vicariously liable for

the negligence of shipboard doctors in treating passengers

where the Florida Supreme Court’s decision does not

conflict with a decision of this Court, a federal court of

appeals, or another state court of last resort, and the

decision does not implicate an important, unsettled federal

question.

i

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Respondent

Carnival Corporation states that it does not have a parent

corporation and there is no publicly held company that

owns 10% or more of its stock.

ill

TABLE OF CONTENTS

Page

RESTATEMENT OF THE QUESTION PRESENTED... i

CORPORATE DISCLOSURE STATEMENT ...............:005 ii

DOES CIE BARE CRORE EID wecnssesnccanierpsvasececansnnneerareaesnineses iv

RE PIII rniihshindnaninasaiccateny-eistersmniopeienneieansneieiansnsiens 1

PEP RENET EAI BERS Asie veicenesasceccisenevseoesensnsewvineranaten 2

REASONS FOR DENYING THE PETITION .................. 3

I. The Florida Supreme Court’s Opinion Does

Not Create a Conflict of Authority.................... 4

A. The Florida Supreme Court’s Decision

That the Third District Had No Authority

to Change Settled Federal Maritime Law

Does Not Conflict With Any Other De-

I via icccikaeccscencconsonsnticles Maciientdianscinnalaneaniink 5

B. The Barbetta Rule Is Settled Maritime

SII cis endbGiccconnensendaaaianchahanslenianiesndanskaichneiasiimpaduebbien 7

II. The Florida Supreme Court Did Not Decide an

Important Issue of Federal Maritime Law........ 17

III. The Florida Supreme Court Reached the Right

Decision, and the Barbetta Rule Is Correct ....... 18

Aaa ag RINE IR rates baathisicniinn setiinacrehbkoecdintilanlenmetiswaaieewatannaniings 25

iv

TABLE OF AUTHORITIES

Page

CASES

Allan v. State S.S. Co., 30 N.E. 482 (N.Y. 1892).......... 9, 23

Amdur v. Zim Israel Navigation Co., 310 F. Supp.

SORE GRA, Bx ROP ocinints picts mann wieneiccunnaacanians 9, 10, 11, 22

American Dredging Co. v. Miller, 510 U.S. 4438

DOPE ieaisnisicseusainiaiacewconsesiecantna geocnuntsnunpnauicamiaeie 6, 17,18

American Trucking Ass’ns, Inc. v. Larson, 683 F.2d

Ee is Bani eieiiesniintnanrniestes iceiaetenicsaaadmanidt iia 15

Barbetta v. S/S Bermuda Star, 848 F.2d 1364 (5th

ASI a AD veinaccrnnsicsiesicamnanpscerswaldueeldinethabnielidiiee seamaliaiide passim

Barnett v. Carnival Corp., No. 06-22521-CIV, 2007

WL 1526658 (S.D. Fla. May 23, 2007).................0008 8,13

Barnett v. Carnival Corp., No. 06-22521-CIV, 2007

WL 1746900 (S.D. Fla. June 15, 2007)............... ee 8,13

Benson v. Norwegian Cruise Line Ltd., 859 So. 2d

THAD CER. De TIC, BGI. sesivccsemrverorntnsnneesscenvnsnoninmsaanssvnn 24

Blankenship v. General Motors Corp., 406 S.E.2d

EG ef Se | EEN p rere EU ERER cre irene Maen 17

Bowns v. Royal Viking Lines, Inc., 1977 A.M.C.

Ee Cs Be ee iinccth ieein sh onceniediveninieildidenslibcanicancbainaia’ 9

Branch v. Compagnie Generale Transatlantique, 11

PE. Bre TERA hE. DO critica 9

Bykowski v. Holland America Line-Westours, Inc.,

No. C04-318Z, 2005 WL 2135144 (W.D. Wash.

Ses Se hikass lena cokaiigivasasdlnucncnancbaks heated 8

Cargill, Inc. v. Offshore Logistics, Inc., 615 F.2d 212

CE ann. PID enlecisanaud bea dunticdichiahnnannetnabaeaiesacuaieliamnennmedelle 15

TABLE OF AUTHORITIES -— Continued

Page

Carlisle v. Carnival Corp., 864 So. 2d 1 (Fla. 3d

RR IEIINT Witicie isis diididshanhndinnicaabbashahdubinpdcninmandgiciaiansen passim

Carnival Corp. v. Carlisle, 953 So. 2d 461 (Fla.

SUNN Stilis 1s cde tints Atdah coashbbeinsbaedichgseh snhaplalabaniatbakansebenintens passim

Churchill v. United Fruit Co., 294 F. 400 (D. Mass.

as tities chins cincelanichickdneiaccaaitancenaleeivaabiaigunaissanuseiedncaieans 9, 23

Cimini v. Italia Crociere Int’l S.P.A., 1981 A.M.C.

NTI See EINE Beccfccientnasinsdsvensnussiniadtte sadexontavecsexsvanss 9

Cummiskey v. Chandris, S.A., 895 F.2d 107 (2d Cir.

Ra alle parc alc ai ial badd ch athiccey cals ss buplannelvacustcbihdenemanesierbasins 8

DeRoche v. Commodore Cruise Line, Lid., 46

Cal. Rptr. 2d 468 (Cal. Ct. App. 1994)... eee 9,10

De Zon v. American President Lines, 318 U.S. 660

ST i cabktnthdisstisasabataviedinhincstinnidudksdsdadpasboansnaceauisvsaens’ 9, 24

Di Bonaventure v. Home Lines, Inc., 536 F. Supp.

SA te Ss. LIND siceinndscinsensnsteusosaschishesccnntvees 9, 11,22

Doe v. Celebrity Cruises, 145 F. Supp. 2d 1337 (S.D.

tiki ci cis chun hal silaannabelinhesinadatndrsiicaniah 8,13

Doonan v. Carnival Corp., 404 F.Supp. 2d 1367

I I Bic. a sian a sil adh bint kanebouivesanandniacbanens 8,13

Fairley v. Royal Cruise Line Ltd., 1993 A.M.C. 1633

G:C ro RenR pele nr emery nmeens em passim

Gillmor v. Caribbean Cruise Line, Ltd., 789 F. Supp.

Ts UNNI (ccs sss carengaaqoubanncdssnsnsahghaanabameceacdavede 8, 22

Hilliard v. Kloster Cruise, Ltd., 1991 A.M.C. 314

A I OEY 355) (Ach. auecevda aca vosanacdnoediurtenxacadcanensts ¥, 22

Huntley v. Carnival Corp., 307 F.Supp. 2d 1372

I I MN Disc sk au daceddh wasn wabandednnsibensdighadanousnantas 13, 14

vi

TABLE OF AUTHORITIES — Continued

Jackson v. Carnival Cruise Lines, Inc., 203 F. Supp. 2d

Re ee Fs Bl ssihininistnnanienienstncsceitaibidesiteaieinnbied 8,13

Laubheim v. De Koninglyke Neder Landsche

Stoomboot Maatschappy, 107 N.Y. 228,13 N.E.

FO iii tiesserichin nnacetaeseldniiabanbakasanantsgaiuambbcidiinnibnincs 9

Lee v. Regal Cruises, Ltd., 916 F.Supp. 300

(S.D.N.Y. 1996), affirmed, 116 F.3d 465 (2d Cir.

IE Failed ca piaudistin enchanted ich ieinda hcenalaecabchaaiilinhiven 8

Ludena v. The Santa Luisa, 112 F.Supp. 401

RAs Se Machiviniinsnitessnrcenediniticanchcanein tak bblippneeceseanens 9

Mack v. Royal Caribbean Cruises, Lid., 838 N.E.2d

80 (Ill. App. Ct. 2005), appeal denied, Mack uv.

Royal Caribbean Cruises, Lid., 850 N.E. 2d 808

(Ill. 2006), cert. denied, Royal Caribbean Cruises, 7

Ltd. v. Mack, 127 S.Ct. 350 (2006)...............ceeseseseees 14,15

Madruga v. Superior Court, 346 U.S. 556 (1954)......6, 7, 18

Malmed v. Cunard Line Ltd., No. 91 Civ. 8164

(KMW), 1995 WL 505915 (S.D.N.Y. Aug. 23,

ROPING shied siccxdcsceinsnesccicsesniceisalencbptidnacedinadaseaddupncemeadanaains 8, 10, 22

Mascolo v. Costa Crociere, S.p.A., 726 F. Supp. 1285

Cas ee Se iincccadicantinccaishin tnanscaneebaaianeetbaglatan 9, 13, 22

Meizger v. Italian Line, 1976 A.M.C. 453 (S.D.N.Y.),

affirmed, 535 F.2d 1242 (2d Cir. 1975)..............ssccsesesees 8

Moragne v. States Marine Lines, Inc., 398 U.S. 375

SII ihiccs baicnins acute ietnieschsiccaninicaehdaiestciadaeopstitdssds adasaainbiaileciittibiecian 19

Nanz v. Costa Cruises, Inc., 1991 A.M.C. 48 (S.D.

Fla. 1990), affirmed, 932 F.2d 977 (11th Cir.

I iG sasiansiteas ceadhas iss bes vuascahagsleabniavaiedanaada stale nual 9, 13, 22

Nietes v. American President Lines, Ltd., 188

Sane: SED CE ED. CO, TODD wens cscassmninnnssesesesvecens passim

Vii

TABLE OF AUTHORITIES - Continued

Page

O’Brien v. Cunard S.S. Co., 28 N.E. 266 (Mass.

|_| 8 DIR RPS SRSA DENI STO OM MM Ce eet er tL Aen Nanya 9, 23

Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207

SEM iasninsncchsnncuickabsdageskaeiaianenchcaieitied tae aaminiaaaanaa 7,17, 18

Pota v. Holtz, 852 So. 2d 379 (Fla. 3d DCA 2003)............ 24

Rader v. Johnston, 924 F. Supp. 1540 (D. Neb. 1996) ........ 15

Rana v. Flynn, 823 So. 2d 302 (Fla. 83d DCA 2002).......... 24

Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109

CRIP sssisnsa nunesicaichsbaaduintasaiesipibnedam helena danauminimeitent aint alates 1, 47, 18

Rossa vu. Sills, 493 So. 2d 1137 (Fla. 4th DCA 1986)........ 24

Royal Caribbean Cruises, Lid. v. Mack, No. 05-

1662, 2006 WL 1786665 (U.S. June 27, 2006).............. 16

Roval Caribbean Cruises, Ltd. v. Mack, 127 S.Ct.

See Ca dcicisinnsscmnicmnsascricemneiatanieiaicadiameeaaadias 16

The Catharine, 58 U.S. 170 (1854), overruled by

United States v. Reliable Transfer Co., Inc., 421

Sek SEE BIRD wcnincncousenchvasucagcaansaea naan iaiae 20, 21

The Great Northern, 251 F. 826 (9th Cir. 1918)......8, 10, 23

The Harrisburg, 119 U.S. 199 (1886), overruled by

Moragne v. States Marine Lines, Inc., 398 U.S.

Ee EOE river receennsvenceessurcnciesuanssidiaciaceinisauansiesiweevds dias 19

The Korea Maru, 254 F. 397 (9th Cir. 1918) .........0..0... 8,10

The Napolitan Prince, 134 F. 159 (E.D.N.Y. 1904)............ 9

United States v. Reliable Transfer Co., Inc., 421

Rc: See he COD cine sccaidinxsbuasiuninides aabeeeemtes se haan 19

Walsh v. NCL (Bahamas) Ltd., 466 F. Supp. 2d 1271

Ee: ._\ SERN Beaneet er cane omeee-o ria crleeen Mitty BOT ie 2 8,13

Vili

TABLE OF AUTHORITIES - Continued

| Page

Warren v. Ajax Navigation Corp., No. 91-0230-CIV-

RYSKAMP, 1995 WL 688421 (S.D. Fla. Feb. 3,

Nee iis ssistevncuvesnenneesens 8, 18, 22

Wurtenberger v. Cunard Line Ltd., 370 F. Supp.

aoc. sscvecsscnsnsevssonbvencencocesns 24

RULES

Rule 10, Supreme Court Rules .............s:sssssssessssssseessessen 2

Rule 10(b), Supreme Court Rules............ceccceseseeeeeees 2, 17

Rule 10(c), Supreme Court Rules Oa eed ecscdhaind 2,17

OTHER AUTHORITIES

Beth-Ann Erlic Herschaft, Cruise Ship Medical

Malpractice Cases: Must Admiralty Courts Steer

by the Star of Stare Decisis?, 17 Nova L. Rev. 575

Michael J. Compagno, Malpractice on the Love

Boat: Barbetta v. S/S Bermuda Star, 14 Tul.

ii cessdckcssinicssahsavesustunessesegsenssesuseeses 15

Thomas A. Dickerson, The Cruise Passenger’s

Dilemma: Twenty-First-Century Ships, Nineteenth-

Century Rights, 28 Tul. Mar. L.J. 447 (2004)............... 16

Thomas A. Gionis, Paradox on the High Seas:

Evasive Standards of Medical Care — Duty

Without Standards of Care; a Call for the

International Regulation of Maritime Healthcare

Aboard Ships, 34 J. Marshall L. Rev. 751 (2001)......... 15

INTRODUCTION

In August 2003, Florida’s Third District Court of

Appeal reversed a summary judgment for our client,

Carnival Corporation, and held that a shipowner is vicari-

ously liable for the negligence of a shipboard doctor in

treating passengers. In doing so, the Third District ex-

pressly rejected the established federal maritime rule that

shipowners are not vicariously liable for the negligence of

shipboard physicians, commonly called the Barbetia rule

after the Fifth Circuit’s decision in Barbetta v. S/S Ber-

muda Star, 848 F.2d 1364 (5th Cir. 1988), and adopted

instead the reasoning of a solitary federal district court

case, Nietes v. American President Lines, Lid., 188 F. Supp.

219 (N.D. Cal. 1959). Carlisle v. Carnival Corp., 864 So. 2d

1, 7 (Fla. 83d DCA 2003). On Carnival’s motion, the Third

District certified to the Florida Supreme Court as a matter

of great public importance the question of “whether a

cruise line is vicariously liable for the medical malpractice

of the shipboard doctor, committed on a ship’s passenger.”

864 So. 2d at 8.

In February 2007, the Florida Supreme Court an-

swered the question in the negative, concluding that

Florida's Third District Court of Appeal (“Third District”)

erred when it departed from clearly established and well-

settled maritime law in imposing vicarious liability on

Carnival. Carnival Corp. v. Carlisle, 953 So. 2d 461, 463,

470-71 (Fla. 2007).

The petitioner, Darce Carlisle (“Carlisle”) has pre-

sented no “compelling reasons” for this Court to grant her

petition for a writ of certiorari seeking review of the

2

Florida Supreme Court’s opinion. See Sup. Ct. R. 10.'

Specifically, Carlisle has failed to demonstrate that the

Florida Supreme Court decided an important federal

question that conflicts with a decision of this Court,

another state court of last resort, or a United States court

of appeals, or decided an important federal question that

is unsettled by this Court. See Sup. Ct. R. 10(b), (c).

Therefore, Carlisle’s petition should be denied.

&

vv

STATEMENT OF THE CASE

We refer the Court to the factual and procedural

history set forth in the Florida Supreme Court’s opinion,

Carnival Corp. v. Carlisle, 953 So. 2d 461, 463 (Fla. 2007)

(App. A).”

' Rule 10 of the United States Supreme Court Rules, “Considera-

tions Governing Review of Certiorari,” provides that a petition for writ

of certiorari will be granted “only for compelling reasons.” Sup. Ct. R.

10. Rule 10 “indicate|s] the character of the reasons” that this Court

will consider in granting or denying petitions for certiorari. Among

these considerations is whether there is a conflict between the decisions |

of two federal courts of appeals, a court of appeals and the highest court

of a state, or two state courts of last resort. Additionally, the Court

considers whether a state court or federal court of appeals has decided

an important question of federal law that should be settled by this

Court, or decided a federal question in a way that conflicts with

applicable decisions of this Court. Sup. Ct. R. 10(b), (c).

* We refer to the decisions of the Florida Supreme Court and the

Third District Court of Appeal in this case, which are appended to the

petition for writ of certiorari, by decision page numbers and appendix

page numbers. The petitioner, Darce Carlisle, brought this action on

behalf of her minor daughter, Elizabeth, and we refer to Darce as

“Carlisle.” Carlisle’s petition for writ of certiorari is “Petition.”

3

REASONS FOR DENYING THE PETITION

To invoke this Court’s certiorari jurisdiction, Carlisle

claims that there is a “conflict” or “split of authority”

between “federal and state courts applying general mari-

time law” on the question of whether a shinowner may be

held vicariously liable for the negligence of a shipboard

physician (Petition at 4, 7). In the alternative, she asserts

that this case presents an important question of federal

maritime law affecting “cruise line passengers nationwide”

(Petition at 15). On the merits, Carlisle posits that the

Barbetta rule is antiquated and should be “overrule[d]” by

this Court (Petition at 8).

As we will show, however, this Court should deny

Carlisle’s petition because this case does not present a

conflict of authority or an important question of federal

law requiring this Court’s resolution. First, the Florida

Supreme Court’s decision quashing the Third District’s

underlying opinion does not conflict with a decision of this

Court, a federal court of appeals, or another state court of

last resort. The Florida Supreme Court merely held,

squarely in accord with precedent of this Court, that the

Third District had no authority to deviate from settled

federal maritime law and violate the long-standing princi-

ple of uniformity. Apart from answering the certified

question in the negative, the Florida Supreme Court did

not even address the substantive question of a shipowner'’s

vicarious liability for the medical negligence of a shipboard

physician. Thus, its decision cannot be said to “conflict”

with any precedent of this Court or of any other court on

this issue. And even if it could be said that the Florida

Supreme Court touched on the merits by answering the

certified question in the negative, the notion that there is

4

any conflict here is quickly belied by a brief analysis of the

purportedly conflicting decisions.

In addition, the Florida Supreme Court did not “decide”

an important issue of federal law that is unsettled by this

Court. Again, the decision merely stands for the unremark-

able proposition that a state court — like the Third District in

this case — cannot depart from uniform federal maritime law.

Finally, the Florida Supreme Court reached the right

decision below because the Third District had no authority

to deviate from the settled Barbetta rule on the vicarious

liability of shipowners for the negligence of shipboard

physicians, and the Barbetta rule is correct.

For all of these reasons, the petition should be denied.

I. The Florida Supreme Court’s Opinion Does Not

Create a Conflict of Authority

As the primary basis for attempting to invoke this

Court’s certiorari jurisdiction, Carlisle asserts that the

Florida Supreme Court’s decision in this case “raises an

issue of federal maritime law over which federal and state

courts applying general maritime law are squarely di-

vided” (Petition at 4). According to Carlisle, although a

“majority of courts” have elected to follow the Barbetia

rule, “[al growing number of courts” have rejected Bar-

betta, and “(t)his Court is the only judicial body capable of

resolving the split of authority on this issue.” (Petition at

5

6, 7). As we will show, however, Carlisle’s conflict theory is

pure sophistry.

A. The Florida Supreme Court’s Decision That

the Third District Had No Authority to

Change Settled Federal Maritime Law Does

Not Conflict With Any Other Decisions

The Florida Supreme Court’s opinion does not conflict

with any decision of this Court, a United States court of

appeals, or another state court of last resort. Carlisle tells

this Court that the decision implicates an important

federal maritime question over which the courts are

“squarely divided” — the issue of a shipowners’ vicarious

liability for the medical negligence of a shipboard doctor

(Petition at 4). But, as the Florida Supreme Court astutely

recognized, the issue before it was actually quite different

than the one Carlisle proposes:

This Court must determine whether the Third

District Court of Appeal could follow the holding

in Nietes v. American President Lines, Ltd., 188

F. Supp. 219 (N.D. Cal. 1959), or whether the

Third District was bound to follow the other

vA

* Although Carlisle posits that there are “four different views” on

this legal issue. there are only two possible “views” on this matter — the

“majority of courts” following the Barbetia rule and the so-called

“growing number of courts” rejecting it (Petition at 6). The third “view”

Cariisle discusses — courts following Barbetta with “reservations” -

certuinly falls within the majority category. And the last “view” Carlisle

describes - courts declining to overrule Barbdetia but holding that a

cruise line can be hable for a shipboard physician's negligence on

another legal theory - likewise falls within the ambit of the majority of

courts following Barbetta. ‘

6

precedent as outlined in Barbetta v. S/S Ber-

muda Star, 848 F.2d 1364 (5th Cir. 1988).

The question thus becomes whether the Third

District was bound to follow the rule of law on

this issue as espoused by the majority of such

cases. In other words, the questions that must be

answered are whether there is a uniform federal

position on the issue and whether application of

the Nietes rule would violate the rule of uniform-

ity. -

953 So. 2d at 464-65 (emphasis added) (App. A at 5a, 6a).

Thus, the Florida Supreme Court acknowledged that,

instead of directly ruling on the vicarious liability issue, it

had to examine whether Florida’s Third District was

required to follow the settled maritime rule of Barbetta or

had the authority to discard it.

After thoroughly analyzing the body of case law

addressing this issue dating back to 1887, the Florida

Supreme Court agreed with Carnival that, with the

exception of Nietes, the federal maritime law has been

uniform that a shipowner is not vicariously liable for the

medical negligence of the shipboard physician. 953 So. 2d

at 470 (App. A at 18a). And consistent with well-settled

precedent of this Court, the Florida Supreme Court cor-

rectly held that a state court could not interfere with the

uniformity of maritime law by changing a long-settled

maritime rule. 953 So. 2d at 465, 470 (App. A at 7a-8a,

18a). See also American Dredging Co. v. Miller, 510 US.

443, 447 (1994) (state court may “‘adopt such remedies,

and... attach to them such incidents, as it sees fit’ so long

as it does not attempt to make changes in the ‘substantive

maritime law’”) (emphasis added), quoting Madruga v.

7

Superior Court, 346 U.S. 556, 561 (1954), quoting Red

Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 124 (1924).

Accord Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207,

222 (1986). Thus, because the Third District violated the

prohibition against a state’s changing substantive meri-

time law by rejecting the universally applied Barbetta rule

in favor of the never-before-followed Nietes, the Florida

Supreme Court quashed the Third District’s decision. 953

So. 2d at 465, 470-71 (App. A at 7a-8a, 18a-19a).

Accordingly, contrary to Carlisle’s claim of conflict, the

Florida Supreme Court’s decision does not involve “a

question of federal maritime law over which courts are

presently divided” (Petition at 2). Instead, it reaffirms

principles of uniformity that have governed maritime law

for more than a century. The decision does not even

address the merits of the vicarious liability issue apart

from stating in dicta that “[t]he position espoused by the

Third District has some appeal.” 953 So. 2d at 470 (App. A

at 17a). Because the Florida Supreme Court never directly

addressed the substantive issue of a shipowner’s vicarious

liability, its decision certainly does not create a conflict on

this issue warranting certiorari review. The petition

should be denied.

B. The Barbetta Rule Is Settled Maritime Law

Even if it could be said that the Florida Supreme

Court touched on the substantive issue of a shipowner's

vicarious liability by answering the certified question in

the negative, there is no conflict of authority for this Court

to resolve. For well over a century, the maritime law has

been that a shipowner is not vicariously liable for the

negligence of a ship's physician in treating passengers. “If

8

the doctor is negligent in treating a passenger ... that

negligence will not be imputed to the carrier.” Barbetta v. S/S

Bermuda Star, 848 F.2d 1364, 1369 (5th Cir. 1988). It is

beyond question that the rule articulated in Barbetta is

settled maritime law. In at least thirty-two decisions over

more than a hundred years, courts have adhered to it,

including five from federal circuit courts of appeals, twenty-

three from federal district courts, two from New York’s .

highest court, one from Massachusetts’ highest court, and

one from a California intermediate appellate court. See

Cummiskey v. Chandris, S.A., 895 F.2d 107, 108 (2d Cir.

1990); Barbetta, 848 F.2d at 1369; Metzger v. Italian Line,

1976 A.M.C. 453, 455 (S.D.N.Y.), affirmed, 535 F.2d 1242 (2d

Cir. 1975); The Korea Maru, 254 F. 397, 399 (9th Cir. 1918);

The Great Northern, 251 F. 826, 831-32 (9th Cir. 1918);

Barnett v. Carnival Corp., No. 06-22521-CIV, 2007 WL

1746900, at **3-4 (S.D. Fla. June 15, 2007); Barnett v.

Carnival Corp., No. 06-22521-CIV, 2007 WL 1526658, at **3-

4 (S.D. Fla. May 23, 2007); Walsh v. NCL (Bahamas) Lid.,

466 F. Supp. 2d 1271, 1273-74 (S.D. Fla. 2006); Doonan v.

Carnival Corp., 404 F. Supp. 2d 1367, 1370-71 (S.D. Fla.

2005); Bykowski v. Holland America Line-Westours, Inc., No.

CO4-318Z, 2005 WL 2135144, at *2 (W.D. Wash. Aug. 31,

2005) (unpublished); Jackson v. Carnival Cruise Lines, Inc.,

203 F. Supp. 2d 1367, 1374 (S.D. Fla. 2002); Doe v. Celebrity

Cruises, 145 F. Supp. 2d 1337, 1345-46 (S.D. Fla. 2001); Lee

v. Regal Cruises, Lid., 916 F. Supp. 300, 303 n.3 (S.D.N-Y.

1996), affirmed, 116 F.3d 465 (2d Cir. 1997); Malmed v.

Cunard Line Ltd., No. 91 Civ. 8164 (KMW), 1995 WL

505915, at **1-3 (S.D.N.Y. Aug. 23, 1995) (unpublished);

Warren v. Ajax Navigation Corp., No. 91-0230-CIV-

RYSKAMP, 1995 WL 688421, at *3 (S.D. Fla. Feb. 3, 1995)

(unpublished); Fairley v. Royal Cruise Line Litd., 1993 AM.C.

1633, 1634-35, 1639 (S.D. Fla. 1993); Gillmor v. Caribbean

9

Cruise Line, Ltd., 789 F. Supp. 488, 491-92 (D.P.R. 1992);

Hilliard v. Kloster Cruise, Lid., 1991 A.M.C. 314, 316-17

(E.D. Va. 1990); Nanz v. Costa Cruises, Inc., 1991 A.M.C. 48,

49 (S.D. Fla. 1990), affirmed, 932 F.2d 977 (11th Cir. 1991);

Mascolo v. Costa Crociere, S.p.A., 726 F.Supp. 1285, 1286

(S.D. Fla. 1989); Di Bonaventure v. Home Lines, Inc., 536

F. Supp. 100, 103-04 (E.D. Penn. 1982); Cimini v. Italia

Crociere Intl S.PA., 1981 A.M.C. 2674, 2677 (S.D.N.Y. 1981);

Bowns v. Roval Viking Lines, Inc., 1977 A.M.C. 2159, 2162-63

(S.D.N.Y. 1977); Amdur v. Zim Israel Navigation Co., 310

F. Supp. 1033, 1042-43 (S.D.N.Y. 1969); Ludena v. The Santa

Luisa, 112 F.Supp. 401, 408 (S.D.N.Y. 1953); Branch v.

Compagnie Generale Transatlantique, 11 F. Supp. 832, 832

(S.D.N.Y. 1935); Churchill v. United Fruit Co., 294 F. 400,

401-02 (D. Mass. 1923); The Napolitan Prince, 134 F. 159,

160 (E.D.N.Y. 1904); Allan v. State S.S. Co., 30 N.E. 482, 485

(N.Y. 1892); O’Brien v. Cunard S.S. Co., 28 N.E. 266, 267

(Mass. 1891); Laubheim v. De Koninglyke Neder Landsche

Stoomboot Maatschappy, 107 N.Y. 228, 230, 13 N.E. 781

(1887); DeRoche v. Commodore Cruise Line, Ltd., 46 Cal.

Rptr. 2d 468, 472 (Cal. Ct. App. 1994). These cases all adopt

the principles espoused in Barbetta as the applicable law.

In 1959, a federal district court judge in California

took exception to the rule, and, ignoring the will of his own

* In De Zon v. American President Lines, 318 U.S.460 (1943), this

Court. holding that an employer was liable to seamen for negligence of a

ship's physician, in a footnote observed that “|ljiability to a passenger

injured by the negligence of a ship’s doctor has been denied on this

ground,” id. at 666 n.2 ‘emphasis added}, and discussed and quoted us

“stalements of judges of great learning” the early cases establishing the

rule of non-liability. Though the court in Nietes said it thought this

Court in De Zon did so “with implied criticism,” Nietes, 188 F. Supp. at

220. we have carefully read De Zon and can find no such implication.

)

10

judicial superiors on the Ninth Circuit Court of Appeals,’

and relying not on ship cases but on hospital and corpora-

tion cases, made his own rule:

It is our opinion that, where a ship’s physician is

in the regular employment of a ship, as a sala-

ried member of the crew, subject to the ship’s dis-

cipline and the master’s orders, and presumably

also under the general 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.

Nietes v. American President Lines, Ltd., 188 F. Supp. 219,

220 (N.D. Cal. 1959). Despite a lapse of 44 years, no court

until Florida’s Third District Court of Appeal in this case

followed Nietes to hold a shipowner vicariously liable. As

Judge Marcus vividly put it in Fairley v. Royal Cruise Line

Lid., 1993 A.M.C. 1633 (S.D. Fla. 1993), “the overwhelm-

ing tide of case law on the question holds that a shipowner

may not be held vicariously liable for the torts of the ship’s

doctor,” and “[t]he lone beacon of dissent is Nietes....” Id.

at 1634, 1635. Apart from not being followed, Nietes has

been criticized by several courts. See DeRoche, 46 Cal.

Rptr. 2d at 472 (“Nietes ... appears to stand alone... and

has been criticized roundly for it”). Accord Malmed, 1995

WL 505915, at *1 n.2. In Amdur v. Zim Israel Navigation

Co., 310 F. Supp. at 1042, the court observed that the

Nietes rationale, “while perhaps viable for the specific fact

7

* The Korea Maru, 254 F. 397, 399 (9th Cir. 1918); The Great

Northern, 251 F. 826, 831-32 (9th Cir. 1918).

11

pattern in Nieivs, is not sound as a general rule,” accord

Di Bonaventure, 536 F. Supp. at 103, and that “[t]o pre-

tend, as the Nictes case does, that mere employment of a

physician by a shipping company .. . creates control, is to

create a species of liability without fault which is without

precedent.” Amdur, 310 F. Supp. at 1042-43. The Barbetta

court found Nietes to be “internally contradictory” and

misguided. 848 F.2d at 1370-71.

Again, the Third District here embraced the never-

before-followed Nietes case that would hold shipowners

liable for shipboard doctors’ negligence, “rejectied] the

holding of the Barbetia line of cases,” and “impos[ed] .. .

vicarious liability” on Carnival. 864 So. 2d at 5, 7 (App. B

at 27a, 33a). Although the district court acknowledged

that it was required to apply maritime law, 864 So. 2d at 3

(App. B at 23a), it chose a lone case and general principles

over a huge majority of contrary decisions and the rule

precisely on point. On Carnival’s motion, the Third Dis-

trict certified to the Florida Supreme Court the question

“whether a cruise line is vicariously liable for the medical

malpractice of the shipboard doctor, committed on a ship’s

passenger.” 864 So. 2d at 8.

In February 2007, the Florida Supreme Court

quashed the Third District's decision and answered the

certified question in the negative, correctly recognizing

that, at the time this case was decided by the Third

District, “with the exception of Nietes, the federal mari-

time law uniformly held that a ship owner is not vicari-

ously liable for the medical negligence of the shipboard

12

physician.” 953 So. 2d at 470-71 (App. A at 18a-19a).°

Applying well-established precedent from this Court that

state courts must adhere to federal principles of uniformity

when applying federal maritime law, the Florida Supreme

Court held that the Third District was bound to follow the

uniform maritime precedent articulated in Barbetta and

was not free to deviate from it. 953 So. 2d at 465, 470

(App. A at 7a-8a, 18a).’

Other than the now-reversed decision by the Third

District here, the only other decisions following Nietes to

impose vicarious liability on shipowners are two lower

court decisions ignoring federal precedent. Before the

Florida Supreme Court issued its opinion here, a senior

judge of the United States District Court for the Southern

District of Florida, relying on the Third District’s errone-

ous decision on vicarious liability in this case, and also

allowing that the cruise line could be liable under a theory

* Carlisle had sought to hold Carnival liable on theories of, among

other things, vicarious liability, negligent hiring and apparent agency.

864 So. 2d at 2 (App. B at 21a). As a result of its-decision on vicarious

liability, the Third District did not reach any issues of apparent agency,

and it expressly found no error in that portion of the summary judg-

ment on the claim of negligent hiring. 864 So. 2d at 8 n.5 (App. B at ©

35a-36a n.5). The Florida Supreme Court in this case did not address

these alternative issues. Carlisle recently asked the Third District to

adjudicate the apparent agency issue once this Court has ruled on her

petition for writ of certiorari. After the Florida Supreme Court issued

its mandate and remanded the case to the Third District on April 12,

2007, Carlisle successfully moved to stay the proceedings in the Third

District pending this Court’s review of the Florida Supreme Court’s

decision. Should this Court deny or grant review, Florida’s Third

District will revisit the issue of apparent agency on remand.

” Carlisle's assertion that “the Florida Supreme Court [in this case]

expressly stated that it agreed with the reasoning of Nietes” is inaccu-

rate and misleading (Petition at 5) (emphasis added).

13

of apparent agency, denied a motion to dismiss a complaint

against Carnival for the alleged negligence of the ship-

board doctor in treating a passenger. Huntley v. Carnival

Corp., 307 F. Supp. 2d 1372, 1374-75 (S.D. Fla. 2004). In

doing so, the district court judge ill-advisedly rejected the

precedent of federal circuit courts and his own court to rely

on a state court decision that completely departed from the

established federal maritime law it was bound to follow.

While it is true that the Eleventh Circuit has not ad-

dressed this issue, id. at 1374 n.5, that did not stop the

Southern District in six earlier decisions and four later

decisions, from adhering — as it knew it should in the

interest of maintaining uniformity — to the Barbetta rule.’

Moreover, to the extent Huntley was based on the Third

District’s erroneous decision in Carlisle, Huntley is also

wrong, and its precedential value is negligible at best. See

also Doonan, 404 F. Supp. 2d at 1371 (in dismissing with

prejudice plaintiffs’ claim of vicarious liability against

Carnival for negligence of shipboard physician, declining

to follow Carlisle or Huntley decisions, “which are non-

binding authority”).

* See Barnett v. Carnival Corp., No. 06-22521-CIV, 2007 WL

17146900, at **3-4 (S.D. Fla. June 15, 2007): Barnett v. Carnival Corp.,

No. 06-22521-CIV. 2007 WL 1526658. at **3-4 (S.D. Fla. May 23, 2007);

Walsh v. NCL (Bahamas) Lid., 466 F. Supp. 2d 1271, 1273-74 ‘S.D. Fila.

2006); Doonan v. Carnival Corp., 404 F. Supp. 2d 1367, 1370-71 (S.D.

Fla. 2005;; Jackson v. Carnival Cruise Lines, Inc., 203 F. Supp. 2d 1367,

1374 (S.D. Fla. 2002), Doe vu. Celebrity Cruises, 145 F. Supp. 2d 1337.

1345-46 (S.D. Fla 2001), Warren v. Ajax Navigation Corp., No. 91-0230-

CIV-RYSKAMP, 1995 WL 688421. at *3 (SD. Fla. Feb. 3, 1995:

‘tunpublished), Fairley v. Royal Cruise Line Lid., 1993 A.M.C. 1633,

1634-35, 1639 (S.D. Fla. 1993), Nanz vu. Costa Cruises, Inc., 1991 A.M.C.

48, 49(S.D. Fla. 1990), affirmed, 932 F.2d 977 (11th Cir. 1991); Mascolo

v. Costa Crociere, S p.A., 726 F. Supp. 1285, 1286 (S.D. Fla. 1989).

14

Also before the Florida Supreme Court’s decision in

Carlisle, an Illinois intermediate appellate court relied on

Nietes in upholding the reinstatement of a vicarious

liability claim against Royal Caribbean for the alleged

negligence of a shipboard doctor. Mack v. Royal Caribbean

Cruises, Lid., 838 N.E. 2d 80 (Ill. App. Ct. 2005), appeal

denied, Mack v. Royal Caribbean Cruises, Ltd., 850 N.E.

2d 808 (Ill. 2006), cert. denied, Royal Caribbean Cruises,

Lid. v. Mack, 127 S.Ct. 350 (2006). In that case, fully

acknowledging that its decision was a “departiure] from

the established rule barring [such] vicarious liability

claims,” 838 N.E. 2d at 89, the state appellate court

inconsistently and mistakenly assumed that because

“Nietes and the federal cases that have followed its reason-

ing and holding” demonstrate that the issue of whether a

shipowner may be held vicariously liable for the on-board

doctor’s medical negligence “is not settled at this time,” it

was free to follow Nietes. Id. The assumption was wrong

because the “issue” is settled maritime law, and conse-

quently the state court had no right to address this issue

at all.

Additionally, the Mack court relied extensively on the

flawed reasoning in the now-reversed Carlisle decision and

the atypical decisions of Nietes and Huntley. 838 N.E. 2d at

89-91.° The intermediate appellate court also cited to the

* The Illinois state court also surprisingly cited to Fairley v. Royal

Cruise Line, Ltd., 1993 A.M.C. 1633 (S.D. Fla. 1993), in support of its

decision. Mack, 838 N.E. 2d at 88, 91. Although the Fairley court

expressed its displeasure with the reasoning of Barbetta, it actually

held that the court was bound by the Barbetta rule on vicarious

liability. 1993 A.M.C. at 1638-39. There the plaintiff had alleged

apparent agency and joint venture theories arising out of the alleged

malpractice of the ship’s doctor, and the cruise line moved to dismiss.

The district court, acknowledging that “the majority rule precludes

(Continued on following page)

15

criticism of the Barbetta rule by some legal scholars.” While

a few scholars have sung Nietes’ praises and criticized the

Barbetta rule, courts are bound by controlling decisions

notwithstanding scholarly criticism. American Trucking

Ass’ns, Inc. v. Larson, 683 F.2d 787, 790 (3d Cir. 1982) (“we

are not free to exercise the same license as scholars in

disregarding still binding precedent”); Cargill, Inc. v.

Offshore Logistics, Inc., 615 F.2d 212, 215 (5th Cir. 1980)

(“[t]he Appellant ... cites us to many scholarly criticisms

... , but we are bound by the former decisions of this

court”); Rader v. Johnston, 924 F. Supp. 1540, 1549 n.19

(D. Neb. 1996) (“[aJlthough the majority opinion in Smith

has been harshly criticized by virtually every legal scholar

and commentator addressing the decision ... there is no

question that the Smith decision is valid, binding prece-

dent at this time”).

Most tellingly, last term, this Court declined to review

the Illinois state appellate court’s decision in Mack where

suing the shipowner based on the theory of respondeat superior,”

Fairley, 1993 A.M.C. at 1639, denied the motion to dismiss because it

was unable to say that “there [was] no conceivable set of facts under

which the Plaintiff could prevail on ... for example, an agency-by-

estoppel theory.” Jd. The Fairley court knew it must follow the Barbetta

rule, and simply held that the plaintiff might be able to pursue another

avenue to recovery.

" Mack, 838 N.E. 2d at 88-89, citing Thamas A. Dickerson, The

Cruise Passenger’s Dilemma: Twenty-First-Centdry Ships, Nineteenth-

Century Rights, 28 Tul. Mar L.J. 447 2004); Beth-Ann Erlic Herschaft,

Cruise Ship Medical Malpractice Cases: Must Admiralty Courts Steer by

the Star of Stare Decisis?, 17 Nova L. Rev. 575 (1992), Michael J.

Compagno, Malpractice on the Love Boat: Barbetta v. S/S Bermuda

Star, 14 Tul. Mar. L.J. 361 11990); Thomas A. Gionis, Paradox on the

High Seas: Evasive Standards of Medical Care - Duty Withou: Stan-

dards of Care; a Call for the International Regulation of Maritime

Hea!thcare Aboard Ships, 34 J. Marshall L. Rev. 751 (2001).

16

the petitioner raised nearly the identical theory of conflict

urged by Carlisle in this case. Royal Caribbean Cruises,

Lid. v. Mack, 127 S.Ct. 350 (2006). In the petition for writ

of certiorari filed in this Court, Royal Caribbean argued

that the state court’s decision to impose vicarious liability

on the cruise line for the negligence of the shipboard

physician conflicted with precedent from this Court and “a

century’s worth of decisions of federal circuit courts of

appeal.” Royal Caribbean Cruises, Ltd. v. Mack, No. 05-

1662, 2006 WL 1786665, at *6 (U.S. June 27, 2006) (Peti-

tion for Writ of Certiorari). Notwithstanding this claim of

“conflict” (albeit by the defendant in that case and in a

different legal posture than here), this Court denied

certiorari review. Royal Caribbean Cruises, 127 S.Ct. 350.

And apart from the Florida Supreme Court’s recent

decision to quash the Third District’s aberrant Carlisle

opinion, no significant legal developments have occurred

after this Court denied the petition for writ of certiorari in

Mack that would warrant a different decision here. There

was no conflict then, and there is no conflict now. Accord-

ingly, this Court should similarly decline to review the

Florida Supreme Court’s decision in this case.

In any event, three lower-court cases do not a “split of

authority” make. Here at least thirty-two decisions, includ-

ing five federal circuit court decisions, have adhered to the

Barbetta rule, and only two federal district court decisions

and a single intermediate state appellate court have rejected

it in approximately one hundred and twenty years.

For there to be a “split of authority," ... the rule

urged ... must have been pronounced either by

the highest court of a state or by a federal circuit

court. Neither state intermediate courts of ap-

peals cases nor federal district court cases are

17

sufficiently authoritative to constitute a “split of

authority” unless there are so many of them from

one jurisdiction over such a long period that it

can be reasonably inferred that the highest court

of the state or the federal court of appeals acqui-

esces in the rule.

Blankenship v. General Motors Corp., 406 S.E.2d 781, 786

n.9 (W. Va. 1991).

Because Carlisle has failed to establish that the

Florida Supreme Court’s decision in this case conflicts

with any decision of this Court or another court of appeals,

the Court should deny the petition.

II. The Florida Supreme Court Did Not Decide

an Important Issue of Federal Maritime Law

For the same reasons that it cannot be said that a

conflict exists between the decision of the Florida Supreme

Court here and any other appellate decision, it cannot be

said that the Florida Supreme Court in this case “decided”

an important question of federal maritime law. Sup. Ct. R.

10(b), (c). The Florida Supreme Court did not address the

merits on the question of a shipowner’s vicarious liability;

instead, it merely decided -— squarely in accord with

precedent of this Court" — that the Third District had no

authority to depart from uniform maritime precedent by

changing a firmly established maritime rule. Thus, it

could hardly be said that this decision implicates an

" See, e.g., American Dredging Co. v. Miller, 510 U.S. 443, 447

(1994); Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207. 222 (1986);

Madruga v. Superior Court, 346 U.S. 556, 561 (1954), Red Cross Line v.

Atlantic Fruit Co., 264 U.S. 109, 124 (1924).

18

important issue of federal law that is unsettled by this

Court.

And, as the cases cited in point I.B make clear, the

federal and state appellate and district courts have — for

more than a century — adhered to the settled maritime

rule of Barbetta. Thus, even if it could be said that the

Florida Supreme Court inferentially reached the substan-

tive issue by answering the certified question in the

negative, the decision to apply firmly entrenched maritime

jurisprudence that a shipowner is not vicariously liable for

the negligence of the shipboard doctor in treating passen-

gers was made many years ago — in other cases.

III, The Florida Supreme Court Reached the Right

Decision, and the Barbetta Rule Is Correct

Finally, the Florida Supreme Court reached the right

decision below because the Third District had no right to

deviate from the settled Barbetta rule on the vicarious

liability of a shipowner for the shipboard doctor’s negli-

gence, and the Barbetta rule is correct.

As we have said, the Florida Supreme Court, consis-

tent with well-settled precedent of this Court, correctly

held that the Third District could not interfere with the

uniformity of maritime law by altering a well-settled

maritime rule. Carlisle, 953 So. 2d at 465, 470 (App. A at

7a-8a, 18a). See also American Dredging, 510 U.S. at 447

(state court may “‘adopt such remedies, and ... attach to

them such incidents, as it sees fit’ so long as it does not

attempt to make changes in the ‘substantive maritime

law’”) (emphasis added), quoting Madruga, 346 U.S. at

561, quoting Red Cross Line, 264 U.S. at 124. Accord

Offshore Logistics, 477 U.S. at 222. Consequently, because

19

the Third District violated the prohibition against a state’s

changing substantive maritime law by rejecting the

established Barbetta rule in favor of the never-before-

followed Nietes, the Florida Supreme Court quashed the

Third District's decision. 953 So. 2d at 465, 470-71 (App. A

at 7a-8a, 18a-19a). The Florida Supreme Court’s decision

is entirely correct.

In addition, Carlisle’s argument that this Court

should overrule the Barbetta rule because it has “outlived

its usefulness” is entirely unconvincing (Petition at 8, 15).

Carlisle points to this Court’s decisions in Moragne v.

States Marine Lines, Inc., 398 U.S. 375 (1970), and United

States v. Reliable Transfer Co., Inc., 421 U.S. 397 (1975),

as support for her theory that this Court can overrule

maritime precedent where it is outdated (Petition at 8-10).

But neither of those decisions is helpful to Carlisle because

the Court’s rationales for changing maritime jurispru-

dence in those cases have no application here.

In Moragne, this Court overruled The Harrisburg, 119

U.S. 199 (1886), which had held that general maritime law

offered no wrongful death remedy for tortious deaths

occurring on state territorial waters. 398 U.S. at 375-76,

401, 409. For almost a century pre-dating Moragne, there

was an adequate federal remedy for fatal accidents on the

high seas, but the same accidents nearer shore might vield

more generous awards — or none at all — depending on the

law of the nearest state. These resulting anomalies in

wrongful death recoveries prompted this Court to estab-

lish a maritime wrongful death action consistent with the

“constitutionally based principle that federal admiralty

law shculd be a system of law coextensive with, and

operating uniformly in, the whole country.” Moragne, 398

U.S. at 401-02 (citations and internal quotation marks

20

omitted). Consequently, this Court held that an action

existed for wrongful death in territorial waters “caused by

[the] violation of maritime duties.” 398 U.S. at 409. By

aligning the general maritime law with the policies em-

bodied in the Death on the High Seas Act and the Jones

Act and state statutory schemes, this Court furthered the

twin aims of maritime law, uniformity and special solici-

tude — “[o]ur recognition of a right to recover for wrongful

death under general maritime law will assure uniform

vindication of federal policies, removing the tensions and

discrepancies that have resulted from the necessity to

accommodate state remedial statutes to exclusively

maritime substantive concepts.” 398 U.S. at 401.

Similarly, in Reliable Transfer, the Court overruled the

unquestionably archaic divided-damages rule, set forth in

The Catharine, 58 U.S. 170 (1854), under which damages

were divided equally among concurrent maritime tortfea-

sors without any attempt to determine the parties’ propor-

tional fault. 421 U.S. at 397-98, 410-11. Stating that this

rule “has continued to prevail in this country by sheer

inertia rather than by reason of any intrinsic merit,” this

Court noted that the rule had been “repeatedly criticized

by experienced federal judges who have correctly pointed

out that the result it works has too often been precisely

the opposite of what the Court [has] sought to achieve...

— the ‘just and equitable’ allocation of damages.” 421 U.S.

at 410-11. Recognizing that this goal could be more nearly

realized by a standard that allocated liability for damages

according to comparative fault whenever possible, this

Court established the rule of proportional fault for admi-

ralty collision cases. 421 U.S. at 411.

Thus, this Court has modified established maritime

precedent where it served to promote the aims of maritime

21

law. This Court in Moragne created a wrongful death

remedy under general maritime law in an effort to achieve

uniformity in maritime law and correct the then-existing

anomalies in wrongful death maritime recovery schemes,

while in Reliable Transfer, it sought to modify an undenia-

bly outdated and inequitable rule that had been repeat-

edly critiqued by federal judges. Here, by contrast, the

Barbetta rule is fully consistent with maintaining the

uniformity of maritime jurisprudence and has been rou-

tinely commended and followed by federal judges for over

a century. Unlike in Moragne and Reliable Transfer, there

is no compelling need to alter this well-settled maritime

rule.

Carlisle further claims that Barbetta is “based on

flawed and outmoded assumptions regarding the modern

day cruise ship industry and the provision of shipboard

medical services to passengers” (Petition at 8), specifically

that “passengers are free to contract with the ship’s doctor

for any medical services they may require” (Petition at 11)

and that “the ship’s physician is provided for the conven-

ience of the ship’s passengers” (Petition at 12). But a closer

look at Barbetia and other cases following the rule shows

that although they may recite or quote the “convenience of

the ship’s passengers” and “free[dom] to contract” language,

they are, except for a few very early cases, grounded on the

issue of the shipowners’ ultimate control over the doctor and

the doctor-patient relationship. This is the primary and most

promunent rationale for adherence to the rule. See Barbetta,

848 F.2d at 1369 (two justifications for the rule, both relating

to control: (1) “the nature of the relationship between the

passenger and the physician, and the carrier’s lack of

control over that relationship,” and (2) a shipping com-

pany’s lack of “expertise requisite to supervise a physician

22

or surgeon carried on board a ship”) (citations and internal

quotation marks omitted); Malmed v. Cunard Line Ltd., No.

91 Civ. 8164 (KMW), 1995 WL 505915, at *2 (S.D.N-Y. Aug.

23, 1995) (unpublished) (“[clourts have ... concluded that

although a carrier may control certain aspects of a physi-

cian’s employment — such as hours, wages, and working

conditions — the carrier does not control precisely that aspect

of the physician’s performance at issue in a malpractice or

negligence action, that is, his or her practice of medicine”)

(emphasis added); Warren v. Ajax Navigation Corp., No. 91-

0230-CIV-RYSKAMP, 1995 WL 688421, at *3 (S.D. Fla. Feb.

3, 1995) (unpublished) (“[n}umerous courts have found that

the carrier or shipowner lacks both (1) the expertise to

meaningfully evaluate and, therefore, control a doctor’s

treatment of his patients and (2) the power, even if it had

the knowledge, to intrude into the physician-patient rela-

tionship”); Gillmor v. Caribbean Cruise Line, Ltd., 789

F. Supp. 488, 491 (D.P.R. 1992) (quoting Barbetta expertise

and control language); Hilliard v. Kloster Cruise, Ltd., 1991

A.M.C. 314, 317 (E.D. Va. 1990) (citing Barbetta justifica-

tions — lack of control and expertise); Nanz v. Costa Cruises,

Inc., 1991 A.M.C. 48, 49-50 (S.D. Fla. 1990) (“each court

addressing the issue ... hals] focused on two issues: the

element of contro] existing such that the master/servant

doctrine does or does not apply; and the relationship be-

tween the passenger and the medical personnel and the

level of control, if any, the shipowner/operator has over that

relationship”), affirmed, 932 F.2d 977 (lith Cir. 1991);

Mascolo v. Costa Crociere, S.p.A., 726 F. Supp. 1285, 1286

(S.D. Fla. 1989) (citing Barbetta justifications — lack of

contro] and expertise); Di Bonaventure v. Home Lines, Inc.,

536 F. Supp. 100, 103-04 (E.D. Pa. 1982) (ship’s doctor is an

independent medical expert; “[w]here . . . control is lacking,

there can be no vicarious liability”); Amdur v. Zim Israel

23

Navigation Co., 310 F. Supp. 1033, 1042-43 (S.D.N.Y. 1969)

(shipping company does not possess expertise requisite to

supervise physician and does not occupy a position of

control over a ship’s physician).

Judge Marcus, in Fairley, recognized the control

justification for the rule:

The harshness of the [Barbetta] rule can only be

justified by the notion that meaningful control is

a prerequisite to vicarious hiability and that —

under any conceivable set of facts, and even if he

is a regular crewmember — the carrier has no

meaningful ability to control the ship’s doctor.

1993 A.M.C. at 1637 (emphasis added).

Whether or not one agrees that a cruise ship’s doctor

is there for the convenience of passengers, or that passen-

gers are free to decline the services of a ship’s doctor, the

fact remains ~ and this is key, because it is the basis of

vicarious liability — that a shipowner has neither the control

over the doctor-patient relationship nor the expertise to be

held vicariously liable for a shipboard doctor’s negligence in

treating passengers. It is the courts’ recognition of this

‘ The cases we have not listed here follow the rule without

discussing rationale.

'* Of the four early cases discussing passengers’ freedom to consult

the doctor or not, only Churchill v. United Fruit Co., 294 F. 400, 401-02

(D. Mass. 1923), did not also rely on some aspect of control. See O’Brien

uv. Cunard S.S. Co., 28 N.E. 266, 267 (Mass. 1891) (“[t]he master or

owners of the ship cannot interfere in the treatment of the medical

officer when he attends a passenger”): The Great Northern, 251 F. 826.

831 (9th Cir. 1918) (same); Allan v. State S.S. Co., 30 N.E. 482, 484-85

(N.Y. 1892) (no officer of the ship is competent to supervise the physi-

cian in his treatment of passengers; the responsible person is the

physician, independent of all superior authority).

24

principle that has sustained the Barbetta rule all these

years.

Finally, Carlisle argues that “[t]o 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. ...” (Petition at

14). But shipowners do assume responsibility. They cannot

hire just any doctors, they must hire competent, duly

qualified doctors, or they will be liable. “If the carrier

breaches [this] duty, it is responsible for its own negli-

gence.” Barbetta, 848 F.2d at 1369."

Because a shipowner cannot have the requisite control

over a shipboard doctor to impose vicarious liability, the

Barbetta rule is correct and should remain intact.

¢

‘* Here, the trial court also entered summary judgment for Carnival

on Carlisle’s claim of negligent hiring, and the Third District court

affirmed that ruling. Carlisle, 864 So. 2d at 8 n.5 (App. B at 36a n.5).

‘* Carlisle also says that because Carnival is liable to crew

members it should be liable to passengers (Petition at 14). But control

is not a factor in liability to crew members, which has historically been

based on the special nature of the relationship between a shipowner

and crew members and which is guaranteed regardless of fault. See

Barbetta, 848 F.2d at 1369 n.1, quoting De Zon v. American President

Lines, 318 U.S. 660, 667 (1943). This comparison, therefore, cannot

provide justification for imposing vicarious liability in the case of

passengers. And although Carlisle suggests that a plaintiff has no

remedy against a ship’s doctor (Petition at 15), courts have found

personal jurisdiction against ships’ physicians in similar cases. See

Benson v. Norwegian Cruise Line Lid., 859 So. 2d 1213, 1215 (Fla. 3d

DCA 2003); Rana v. Flynn, 823 So. 2d 302, 303 (Fla. 3d DCA 2002);

Rossa v. Sills, 493 So. 2d 1137, 1138 (Fla. 4th DCA 1986); Wurtenberger

v. Cunard Line Ltd., 370 F. Supp. 342, 344-45 (S.D.N.Y. 1974). See also

Pota v. Holtz, 852 So. 2d 379, 381-82 (Fla. 3d DCA 2003).

25

CONCLUSION

Carlisle has not established any compelling reasons

for this Court to grant the petition for writ of certiorari.

Therefore, Carnival respectfully requests that this Court

deny the petition.

Respectfully submitted,

JEFFREY B. MALTZMAN RODOLFO SORONDO, JR.

DARREN W. FRIEDMAN Counsel of Record

MALTZMAN FOREMAN P.A. ILENE L. PABLAN

One Biscayne Tower HOLLAND & KNIGHT LLP

2 South Biscayne Boulevard 701 Brickell Avenue

Suite 2300 Suite 3000

Miami, FL 33131 Miami, FL 33131

(305) 358-6555 (305) 374-8500

Counsel for Respondent Carnival Corporation