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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1120%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

; (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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1120%3A2. Public record. Not legal advice.