Opposition Brief — Celebrity Cruises, Inc. v. Doe

5

A. Brockett And Jopes Impose Strict Liability Upon

A Common Carrier For Intentional Torts

Committed By Its Servants Against Passengers

In Brockett, a case involving a passenger assault by the

ship’s watchman, this Court addressed for the first time the

issue concerning the proper standard of care to be imposed

upon a common carrier for its servants’ misconduct against

passengers. In holding the shipowner strictly liable for the

crew member’s assault of the passenger, this Court stated:

[A] common carrier is bound, as far as practicable,

to protect its passengers, while being conveyed,

from violence committed by strangers and co-

passengers, and undertakes absolutely to protect

them against the misconduct of its own servants

engaged in executing the contract [for safe

transportation].

121 U.S. at 645-46 (emphasis supplied).”

Four years later, in Jopes, the Court reaffirmed its prior

Brockett holding that a carrier is absolutely bound to ensure

2. In holding that a carrier has a duty “absolutely to protect its

passengers” from the misconduct of its servants and describing that

rule to be “peculiar” between common carriers and their passengers,

this Court did not intend to limit that rule to acts performed within

the servant’s scope of employment. Otherwise, there would be

nothing peculiar about a common carrier’s absolute responsibility if

it were confined by the scope of employment concepts. See, e.g.,

Sutton, 7 F.2d at 580 (relying upon Brockett for proposition that

“scope of employment” is not required for imposition of strict liability

upon common carrier); THE MINNETONKA, 146 F. at 513 (after

quoting Brockett stating that “archaic doctrine that the moment a

servant of a carrier commits a wanton assault upon a passenger he

acts outside of the scope of his authority” had been renounced).

6

that its own servants do not unlawfully assault or injure a

passenger:

While a carrier does not insure his passengers

against every conceivable danger, he is held

absolutely to agree that his own servants engaged

in transporting the passenger shall commit no

wrongful act against him. ... Recent cases state

this liability in the broadest and strongest

language . . . it may be said that the carrier is liable

for every conceivable wrongful act done to a

passenger by its train hands and other employes

while they are engaged in transporting him, no

matter how willful and malicious the act may be,

or how plainly it may be apparent from its nature

that it could not have been done in furtherance of

the carrier's business.

142 U.S. at 26 (citations omitted) (emphasis supplied).

In this Court’s view, the application of this stringent standard

of care was necessary because of the special relationship that

exists between a common carrier and its passenger:

[O]wing to the peculiar circumstances which

surround the carrying of passengers, as stated, a

more stringent rule of liability has been cast upon

the employer; and he has been held liable

although the assault was wanton and willful, and

outside the scope of the employment. Noticeable

instances of this kind are the cases of Craker v.

Chicago & Northwestern Railway, 36 Wisconsin

657, in which, when a conductor had forcibly

kissed a lady passenger, the company was held

responsible for the unlawful assault; and Goddard

v. Grand Trunk Railway, 57 Maine 202, in which,

when a brakeman had committed a gross and

7

offensive assault upon an invalid passenger, the

company was held liable in damages.

~

142 U.S. at 27 (emphasis supplied).

Thus in Brockett and Jopes, this Court articulated the

rule of law that imposes strict liability upon a common carrier,

such as Petitioners, for assaults or other intentional

torts perpetrated by their servants against passengers.

The Brockett-Jopes rule has never been overruled or

modified; certainly not by Kermarec. As the Eleventh Circuit

correctly stated “Brockett and Jopes represent the current

state of the controlling federal law-as to crew member assaults

on passengers.” (App. at 35a-36a; 44a).

Respondent has never suggested that under Brockett and

Jopes acommon carrier is “an absolute insurer” of the safety

of its passengers. Nor has any Circuit Court that has

considered the subject issue ever asserted such. Petitioners’

argument to the contrary raises a false issue. Indeed, Brockett

and Jopes reject the notion that a common carrier is an

“insurer” of the safety of its passengers. See, e.g., Jopes,

142 U.S. at 26 (“While a carrier doesnot insure his passenger

against every conceivable danger, he is held absolutely to

agree that his own servant engaged in transporting the

passenger shall commit no wrongful act against him”)

(emphasis supplied). Rather, under Brockett and Jopes, the

imposition of strict liability upon a common carrier for crew

member misconduct on passengers rests upon the “peculiar”

circumstances that surround the transportation of passengers.

As a result of this special relationship between a common

carrier and its passenger, the carrier is “held absolutely to

agree that his own servants engaged in transporting the

passenger shall commit no wrongful act against him.” /d.

(Emphasis supplied). Accordingly, the strict liability standard

enunciated in Brockett and Jopes, while embracing a broad

8

and sound policy, nevertheless has an extremely narrow

application; it applies in only those situations where a

passenger is injured by the willful misconduct of a common

carrier’s servants during the course of the voyage.

Brockett and Jopes have withstood the test of time,

remaining undisturbed for well over a century and providing

uniformity to admiralty law to this very date. In 1926 and

again in 1993, in two cases involving the imposition of strict

liability upon ocean carriers because of crew member sexual

assaults on passengers brought before the Ninth Circuit, this

Court denied certiorari. Sutton, 269 U.S. 586 (1926);

Morton, 510 U.S. 907 (1993). The instant petition should be

met with the same response this Court provided to the

maritime carriers in Sutton and Morton: it should be denied.

B. The Eleventh Circuit’s Decision Is In Harmony

With The Decisions Of Other Federal Circuits

That Have Squarely Addressed The Issue

Concerning The Proper Standard Of Care To Be

Imposed Upon A Common Carrier For Its

Servants’ Intentional Torts Against Passengers

All Circuit decisions which have directly confronted - -

the instant issue have followed Brockett and Jopes and

applied a strict liability standard against the common carrier

for the misconduct of its servants against passengers.

THE MINNETONKA, 146 F. 509; Willsie, 224 F. 908; Sutton,

7 F.2d 579; Pullman, 46 F.2d 399; Matthews, 157 F.2d 609,

Tullis, 397 F.2d 22; Muratore, 845 F.2d 347; Morton, 984

F.2d 289; Gilstrap, 998 F.2d 559; Doe, 394 F.3d 891. The

Eleventh Circuit, after “navigat[ing} through considerable

precedent about the duty of common carriers to protect and

3. As will be discussed, infra, Petitioners’ suggestion that the

Jopes’ strict liability language is dictum ignores over a century of

precedent in the Circuit Courts following that decision.

9

safely transport their passengers and-common carriers’

corresponding liability for crew member assaults,” rejected

Petitioners’ argument that there was a split in the Circuits on

this issue. (App. at 24a-25a; 35a-36a; 40a-41a). Moreover,

Federal Circuit Court jurisprudence for some one hundred

fifteen years debunks Petitioners’ baseless argument that the

Eleventh Circuit decision in this case and the Ninth Circuit’s

1993 decision in Morton are isolated events, establishing a

“category” of their own. The simple truth is that those

decisions are the most recent reaffirmations of a uniform

principle of maritime law enunciated by this Court in Brockett

and Jopes and recognized for over a century in courts

throughout the nation.

1. First Circuit -

In Muratore, the First Circuit followed the Brockett-

Jopes rule concerning the issue of crew member intentional

torts affecting passengers and the common carrier’s liability

for such misconduct. (See also App. 40a-41a). The First

Circuit, confronting the issue of whether the harassment by

crew photographers of a passenger subjected the cruise line

defendant to liability, ruled that “a maritime carrier has an

unconditional responsibility for the misconduct of its people

toward passengers.” 845 F.2d at 353. The Muratore Court,

relied upon, inter alia, the opinion of the renowned admiralty

scholars Gilmore and Black. /d. These scholars, in turn, cited

this Court’s holding in Brockett for the proposition that

admiralty law recognizes the application of different

standards of care concerning injuries suffered by passengers

in slip and fall cases and those suffered as a result of the

willful misconduct of a ship’s servants:

The subject of liability to passengers for

[personal] injury may be summarily handled here,

as the principles involved differ little from those

10

in use ashore. The liability basis is negligence; there

is no “insurer” relation and no “warranty” .. . (The

only apparent exception is the unconditional

responsibility of the carrier for misconduct of his

people toward the passengers. See New Jersey

Steamboat Co. v. Brockett, 127 U.S. 637 (1887)).

(Emphasis supplied).

G. Gilmore and C.L. Black, The Law of Admiralty, § 1-10 at 23

n.77 (2d ed. The Foundation Press 1975). (See also App. at

4la-42a n.27). The Eleventh Circuit, therefore, correctly

concluded that the First Circuit follows the absolute liability

rule articulated by Brockett and Jopes.* (App. 41a-42a).

2. Second Circuit

The Second Circuit also follows the Brockett-Jopes

continuum of precedent. THE MINNETONKA, 146 F. 509. (See

also App. at 42a-43a). Conspicuously absent from Petitioners’

discussion is THE MINNETONKA decision which is the

controlling Second Circuit precedent on the subject issue.

Therein, the Second Circuit, in a decision issued fifteen years

after Brockett and Jopes, acknowledged that the proper standard

of care applicable to common carriers, as articulated by this

Court, for the intentional misconduct of their servants affecting

passengers was that of strict liability, regardless of whether that

misconduct occurred within the scope of employment. 146 F.

at 513.

In THE MINNETONKA, the shipowner had been found

liable for the theft of a passenger’s jewelry by one of the ship’s

crewmembers. In affirming the lower court’s ruling, and citing

4. Just last year, the United States District Court for the District

of Maine, on the basis of Jopes, Morton and Muratore, held that a

cruise line is “[unconditionally] liable for the intentional torts of its

crew members.” Peterson v. Scotia Prince Cruises, Ltd., 328 F. Supp.

2d 119, 122 (D. Me. 2004).

11

Brockett, the Second Circuit held that, “[t]he liability- of the

vessel for the willful torts of its own servants committed upon

a passenger during the voyage is well established.” 146 F. at

513. The Second Circuit went on to add:

The archaic doctrine that the moment a servant of a

carrier commits a wanton assault upon a passenger

he acts outside of the scope of his authority and thus

releases his employer from liability was long ago

renounced by the great preponderance of authority

... By the defendant’s contract with the plaintiff, it

had undertaken to carry him safely and to treat him

respectfully; and while a common carrier does not

undertake to insure against injury from every

possible danger, he does undertake to protect the

passenger against any injury arising from the

negligence or willful misconduct of its servants while

engaged in performing a duty which the carrier owes

to the passenger.

146 F. at 513 (emphasis supplied).°

- THE MINNETONKA decision has not been overruled, either

expressly or sub silentio, by the Second Circuit. Petitioners’

argument that Compagnie Generale Transatlantique v. Rivers,

211 F 294 (2d Cir.), cert. denied, 232 U.S. 727 (1914),

abandoned the rule that a common carrier is absolutely liable

for crew member assaults on passengers is belied by a careful

analysis of that decision.®

5. Petitioners’ position comes down to the proposition that what

was an “archaic doctrine” in the nineteenth century is now the modern

trend in admiralty jurisprudence.

6. Such analysis is critical, for Petitioners rely heavily on Rivers

for the false proposition that a split of authority exists among the

Circuits. While the District Court in this case shared the flawed

perception of a “split” among the Circuits, Petitioners’ same argument

was properly rejected by the Eleventh Circuit. (App. at 40a-43a).

12

In Rivers, a passenger was attacked at night by the ship’s

watchman. After a jury verdict in favor of the passenger, the

cruise ship defendant appealed. One of the issues on appeal

was whether the district court had given appropriate jury

instructions. The Second Circuit ruled that the district court

had interpreted the issue “most favorably” to the shipowner

by applying a negligence standard. In fact, the Second Circuit

_ acknowledged, citing Jopes and THE MINNETONKA, that

the jury instructions concerning the standard of care

applicable to passenger assault claims had been less stringent

than the applicable precedent indicated. The Second Circuit

affirmed the judgment in Rivers simply because, although

the district court had improperly permitted the application

of a less stringent standard of care, the evidence at trial

demonstrated that the shipowner was still liable to the

passenger even under the lower negligence standard. This

reasoning clearly follows from the fact that the Rivers Court

cited Jopes with approval.

Further, Rivers’ reliance upon THE MINNETONKA,

decided in 1906, which, as discussed, applied a strict liability

standard upon a shipowner for a crew member’s misconduct

against passengers, confirms that the Rivers Court nowhere

approved the application of a negligence standard to

situations where a carrier’s servant perpetrates an intentional

tort against a passenger. As previously noted, THE

MINNETONKA expressly cited Brockett and rejected the

notion that a shipowner could escape responsibility to its

passengers by claiming that the servant’s conduct was outside

his or her scope of employment. /d.

Given that Rivers cited both Jopes and THE

MINNETONKA with approval, it is inconceivable that the

Rivers Court intended to contravene this Court’s express

13

holding.’ The controlling Second Circuit precedent follows

the Brockett-Jopes rule requiring the imposition of strict

liability upon a common carrier for the intentional torts of

its servants against its passengers.

3. Ninth Circuit

The Ninth Circuit first squarely addressed the subject

issue in a 1925 decision. Sutton, 7 F.2d 579. There, the

plaintiff, a fifteen yex: old girl, was raped by two of the

vessel’s crew members. The Ninth Circuit, citing inter alia

Brockett, reiterated the following strict liability standard:

[The carrier] by the act of employment vouched for

his [the crew member’s]} deportment during the

voyage. A carrier owes a duty to every passenger to

protect him from insult and assault. It is a part of the

contract of carriage. * * * As long as respondent was —

a passenger on appellant’s ship, appellant owed him

a duty of absolute protection from the assaults and

aggressions of its servants, and the rule is well nigh

universal that the carrier cannot plead as a defense

7. Petitioners’ reliance upon two decisions from the United

States District Court for the Southern District of New York for the

proposition that Rivers requires application of a negligence standard

in crew member assaults on passengers is misplaced. York v.

Commodore Cruise Line, Ltd., 863 F. Supp. 159 (S.D.N.Y. 1994);

Jaffess v. Home Lines, Inc., No. 85-7365, 1988 U.S. Dist. LEXIS

3481 (S.D.N.Y. April 22, 1988). Those decisions contravene this

Court’s holdings in Brockett and Jopes, and for this reason alone

should be disregarded by this Court. (In fact, neither decision

mentions Brockett or Jopes). Also, those decisions contravene

controlling Second Circuit precedent. (In fact, neither decision

acknowledges THE MINNETONKA). In Morton, the Ninth Circuit

aptly criticized the New York district court’s reliance upon, inter

alia, Rivers to apply a negligence standard in the context of passenger

assaults by the ship’s crew. 984 F.2d at 292. Jaffess and York are the

product of flawed reasoning at the district court level.

14

that the servant acted outside the scope of his

employment.

7 F.2d at 580 (citations omitted).

More recently, the Ninth Circuit had the opportunity to

reaffirm the legal continuum initiated by Brockett and Jopes

concerning the unconditional liability of the common carriers

for the willful misconduct of its servants upon passengers.

Morton, 984 F.2d 289.

In Morton, a passenger was also raped by a crew member

of the cruise ship. The Ninth Circuit forcefully reiterated the

stringent duty of care applicable to common carriers in the

‘context of crewmembers’ wanton assaults against passengers:

Unlike the invitee/licensee distinction [rejecting

an identical Kermarec argument made by the

cruise line], the rule regarding absolute liability

for crew members’ assaults cannot be traced to

obsolete concepts regarding real property and

concepts of feudalism. Rather, it is a widely

adopted rule that common carriers owe such an

absolute duty to their passengers. A leading torts

treatise explains the general rule: Where the

deliberate or willful wrong was not done to further

the master’s business the tendency has been to

deny vicarious liability, but here too there have

been many qualifications. The relationship

between master and plaintiff may be such as to

put on the master a duty of protective care that he

may not delegate. Thus a carrier is liable to its

passengers for assaults by employees prompted

by purely personal motives.

984 F.2d at 292 (emphasis supplied) (citations omitted).

15

Accordingly, the Ninth Circuit has made it explicitly

clear that a common carrier is strictly liable for intentional

torts of its servants against its — in accordance with

the Brockett-Jopes rule.

This Court denied certiorari in both Sutton and Morton.

4. Fifth Circuit

The Fifth Circuit has also addressed the issue of a

common carrier’s strict liability for crew misconduct against

passengers. Tullis, 397 F.2d at 23. In Tullis, the Fifth Circuit

observed that admiralty law recognized two separate

standards of care, namely, negligence and strict liability, and

that strict liability was applicable in adjudicating passenger

claims for crew member torts:

The principles involving liability to passengers

differ little from those in use ashore. The liability

basis is negligence with the only apparent

exception being the unconditional responsibility

of the carrier for the misconduct of the crew

toward the passengers.

Id. (Emphasis supplied). (See also App. at 36a). Accordingly,

the Fifth Circuit has explicitly recognized the Brockett-Jopes

rule as being the applicable standard concerning crew

member misconduct against passengers.®

8. The District Court in this case, while applying the Brockett-

Jopes standard of care, mistakenly discerned a conflict between the

Fifth Circuit and other Circuits concerning the issue of whether the

common carrier servant’s conduct had to be within the scope of

employment before the strict liability standard attached.

This perception was based on the Fifth Circuit’s decision in

Jackson Marine Corp. v. BLUE FOX, 845 F.2d 1307\(5" Cir. 1988);

but the Eleventh Circuit rejected the notion that Jackson Marine

(Cont'd)

16

5. Eighth, Fourth and District of Columbia Circuits

Also illustrating the universal rule that a common carrier is

absolutely liable for intentional torts of its servants against

passengers are the decisions from the Eighth, Fourth and District

of Columbia Circuits. Gilstrap, 998 F.2d 559; Willsie, 224

F. 908; Pullman, 46 F.2d 399; Matthews, 157 F.2d 609.

(See also App. at 30a-31a n.16).

In Gilstrap, an Amtrak passenger alleged that she had been

sexually assaulted by a train en ployee while traveling from

California to North Dakota. Although Gilstrap involved the

interpretation of Washington State law, the Eighth Circuit cited

with approval “maritime common carrier” decisions in

addressing the issue of the correct liability standard to apply.

The Eighth Circuit particularly noted a Washington Supreme

Court decision, Marks v. Alaska Steamship Co., 71 Wash. 167

(1912), imposing strict liability upon a shipowner for a passenger

assault by acrew member. The Marks Court held that a passenger

had the right to claim “absolute protection” from the shipowner

against the assaults and violence of its servants. 71 Wash. at

169.

It is noteworthy that in reaffirming the universal rule of

common carrier liability for assaults of its servants against its

passengers, the Marks court discussed two of the precedents

relied upon by this Court in Jopes, namely, Goddard v. Trunk

Railway, 57 Me. 202 (Me. 1869) and Craker v. Chicago &

N.WR. Co., 36 Wis. 657 (Wis. 1875). The Gilstrap Court also

considered “persuasive authority” the Ninth Circuit’s decisions

in Sutton and Morton discussed above. 998 F.2d at 562.

(Cont'd)

was applicable to a cruise line’s liability for crew member misconduct

against passengers: “Jackson Marine is even more inapposite as it

involved fraud by a salvage boat captain against the owner of a

damaged ship, and in no way involved a common Carrier or a

passenger.” (App. at 41a n.26).

17

See also Willsie, 224 F. at 911 (citing, inter alia, Brockett and

Jopes for proposition that carrier is liable for “willful and

malicious acts of [its] agents, and even though such acts are not

done within the scope of their employment’).

Further, as the Eleventh Circuit noted, the Fourth Circuit

and the District of Columbia Circuit also join with other Circuits

in concluding that a common carrier is strictly liable for the

intentional torts of its servants against passengers. (App. at 30a-

31a n.16, citing the Pullman and Matthews decisions).

In Pullman, the Fourth Circuit observed that in cases involving

the willful misconduct of a carrier’s servants upon passengers,

“there may be recovery of actual damages arising from the

wrongful act of the servant, notwithstanding such act was beyond

the line of duty and the scope of employment and was never

ratified by the master.” 46 F.2d at 399. Similarly, in Matthews,

the District of Columbia Circuit, citing Brockett, remarked that

“({a] common carrier is required to protect its passengers against

assault or interference with the peaceful completion of their

joumey.” 157 F.2d at 610-11.

The foregoing analysis confirms that all Federal Circuits

that have squarely addressed the issue of the proper standard to

apply to intentional torts of common carriers’ servants against

passengers have followed a rule long ago enunciated by this

Court in Brockett and Jopes.

Petitioners have not presented to this Court any authority

in which a Circuit Court has refused to apply a strict liability

standard in the narrow situation involving the willful misconduct

of acommon carrier’s servants against passengers. Indeed, they

cannot. The uninterrupted continuum of authority flowing from

the Brockett and Jopes decisions over the course of some one

hundred fifteen years represents the very essence of uniformity

required by admiralty law. Accordingly, there is no reason for

this Court to review the subject decision which is simply the

latest step in that continuum. The petition should be denied.

18

Il. Kermarec Is Inapplicable And The Circuits That Have

Applied The Kermarec Negligence Standard Have

Done So Only In Slip And Fall Situations Not To

Claims Brought By Passengers For Intentional Torts

Perpetrated By A Common Carrier’s Servants

Petitioners’ reliance upon Kermarec is misplaced and

the Eleventh Circuit properly held that Kermarec, a slip and

fall case not involving a passenger, is inapplicable in the

context of common carrier liability for the intentional

- misconduct of its servants against passengers. (App. at 33a-

34a).

Kermarec does not apply for various reasons: Kermarec

had nothing to do with a passenger (App. at 33a); Kermarec

did not involve an assault upon a passenger by a servant of

the common carrier (App. at 34a); Kermarec was a garden

variety slip and fall case where plaintiff sustained injuries

allegedly due to the condition of the ship (App. at 33a-34a,);

and Kermarec did not discuss either Brockett or Jopes.

As the Eleventh Circuit accurately concluded, “[q]uite

simply, there is no indication in Kermarec that the Supreme

Court intended to eliminate the more stringent rule in Jopes

imposing liability on a common carrier for its employees’

assaults of passengers.” (App. at 34a).

That Kermarec did not change or eliminate absolute

carrier liability for the intentional torts of crew members

against passengers is confirmed by the fact that the precedents

relied upon by this Court in Kermarec were limited to non-

intentional personal injury cases. This was so because the

narrow issue in Kermarec, as stated by this Court, was

“whether admiralty recognizes the same distinctions between

an invitee and licensee as does the common law.” 358 U.S.

at 630. After considering this narrow issue, the Court then

went on to state that admiralty law need not import the land-

19

based common law distinctions between “invitees” and

“licensees” and concluded “that the owner of a ship in

navigable waters owes to all who are on board for purposes

not inimical to his legitimate interests the duty of exercising

reasonable care under the circumstances of each case.”

Id. at 632. (See also App. at 33a-34a). Kermarec merely set

forth a minimum standard of care for maritime personal injury

cases.

Indeed, Kermarec expressly recognized that the

minimum duty of care owed by a shipowner to everyone was

not universal and that greater duties were owed to persons

holding status in various “meaningful categories.” While

rejecting the old common law distinctions between invitee,

licensees and trespasser, this Court observed in a footnote:

This is not to say that concepts of status are not

relevant in the law of maritime torts, but only that

the meaningful categories are quite different.

Membership in the ship’s company, for example,

a Status that confers an absolute right to a

seaworthy ship, is peculiar to the law of the sea.

Such status has now been extended to others

aboard “doing a seaman’s work and incurring

seaman’s hazards.”

358 U.S. at 632 n.9 (citations omitted).

This Court’s reference in Kermarec to the status of a

seamen as an “example” of those “meaningful categories”

persuasively demonstrates that the Court did not intend to

abolish the long-established precedent of Brockett and Jopes

that a common carrier owes a passenger an absolute right of

protection against the misconduct of the carrier’s servants,

whether or not the misconduct took place outside the scope

of employment.

20

The Ninth Circuit and the Eleventh Circuit agree.

The Ninth Circuit in Morton, like the Eleventh Circuit

in this case, explicitly rejected the very same argument

advanced here by Petitioners that Kermarec applies in the

context of crew member assaults on passengers. 984 F.2d at

291-92. The Ninth Circuit, citing footnote 9 in Kermarec,

rejected the notion that Kermarec had imposed a universal

standard of care regardless of the status of the individual

onboard: Z

In that note, the Court makes clear that

“reasonable care under the circumstances” is not

the universal standard of care to be provided

aboard ship. A different standard may apply where

it makes sense under maritime law.

984 F.2d at 291. In Morton, this Court denied certiorari.

All of the Circuit Court cases applying the Kermarec

negligence standard cited in the petition have done so only

in the context of passengers suing for damages sustained from

either slip and fall or garden variety negligence type injuries

rather than in the context of injuries sustained by passengers

3 from the assaults of crew members. Muratore, 845 F.2d 347

(applying Kermarec standard to passenger’s damages for

personal injury due to fall, but affirming “unconditional

responsibility” for that portion of lawsuit involving liability

for separate “misconduct” of crew members); Rainey v.

Paquet Cruises, Inc., 709 F.2d 169 (2d Cir. 1983) (passenger

tripped over stool left on dance floor); Monteleone v.

Bahamas Cruise Line, Inc., 838 F.2d 63 (2d Cir. 1988)

(plaintiff suffered injuries when she fell down a flight of stairs

onboard ship); Pastore v. Taiyo Gyogyo, K.K., 571 F.2d 777

(3d Cir. 1978) (fireman fighting fire onboard vessel injured

when falling off ladder); Beard v. Norwegian Caribbean

21

Lines, 900 F.2d 71 (6th Cir. 1990) (passenger injured while

playing basketball on the ship’s deck); Urian v. Milstead,

473 F.2d 948 (8th Cir. 1973) (passenger injured while

disembarking from yacht); Kornberg v. Carnival Cruise

Lines, Inc., 741 F.2d 1332 (11th Cir. 1984) (passengers sued

for damages sustained when cruise ship’s sanitary system

failed).?

Although Kermarec was handed down over forty-five

years ago, Petitioners cannot point to a single Federal Circuit

Court that has embraced the argument they advance here; an

argument that has been squarely rejected twice in the last

twelve years by the Ninth and Eleventh Circuits. On the

contrary, even after Kermarec, the First (1988), the Fifth

(1968), the Eighth (1993), the Ninth (1993) and the Eleventh

(2004) Circuits have unambiguously recognized that a

common carrier has an unconditional responsibility for

intentional torts perpetrated by their servancs against

passengers. Muratore, 845 F.2d 347; Tullis, 397 F.2d 22;

Gilstrap, 998 F.2d 559; Morton, 984 F.2d 289; Doe, 394 F.3d

891.

9. Petitioners’ reliance on three state cases, which purportedly

represent the “modern trend” in admiralty law, is unavailing. Adams

v. New York City Transit Auth., 88 N.Y.2d 116 (N.Y. 1996); Lowrey

v. Montgomery Kone, Inc., 42 P.3d 621 (Ariz. Ct. App. 2002);

Sebastian v. District of Columbia, 636 A.2d 958, 962 (D.C. 1994).

Lowrey involves personal injuries, not intentional torts; Sebastian,

a case involving a sexual assault by an ambulance attendant, relies

purely on District of Columbia law in refusing to apply common

carrier doctrine while recognizing that many other state jurisdictions

do adhere to that doctrine and apply a strict liability standard; and

Adams, a case involving an assault perpetrated by a token booth

clerk, incorrectly relies on Kermarec Jo justify-applying a negligence

standard. These decisions contravene admiralty law, are clearly

inapposite and/or are the product of flawed reasoning. Viewed

properly in the context of the above discussion, they are aberrations

and certainly do not constitute “modern maritime law.”

22 fa

Brockett-Jopes and their progeny and Kermarec and its

progeny constitute two separate branches of admiralty

authority that govern separate and distinct issues concerning

the duties owed by shipowners to persons onboard their

vessels. On the one hand, there is the branch embodied by

the Brockett-Jopes rule, a strict liability standard for

intentional misconduct by servants of common carriers

against passengers, the standard of care that Federal Circuits

have invariably applied for well over a century. On the other

hand, the Kermarec rule applies a negligence standard to

garden variety maritime personal injury cases, which occur

far more frequently. '° For such negligence cases, which can

involve any person on a vessel, not necessarily a passenger,

and any type of carrier, not necessarily a common carrier, it

is the minimum standard of care (reasonable under the

circumstances) that has been consistently applied. Under the

principle of stare decisis, both branches represent uniformity

in the administration of admiralty law, albeit under separate

continuums of precedent involving very different issues and

types of cases.

Given the inapplicability of Kermarec to the present case

and the existence of the requisite uniformity in cases such as

this one involving intentional torts of common carriers’

servants against passengers, no reason exists for this Court

to review the Eleventh Circuit’s well-reasoned decision.

10. Thus, Petitioners’ recitation of statistics concerning “marine

personal injuries” is simply irrelevant, for the instant case involves

the commission of an intentional tort perpetrated by a crew member

against a passenger.

ae

III. The Public Policy Embodied In Brockett And Jopes

Has Represented Uniformity In Admiralty Law For

Well Over A Century And Requires No Review

The Brockett-Jopes rule is sound as a matter of policy.

The public policy reasoning behind the imposition of the

highest standard of care upon a common carrier is that a

common Carrier assumes an extraordinary undertaking vis-

a-vis its passengers, namely, the safe transportation of a

passenger to destination free of the willful misconduct of

the common carrier’s servants. Brockett, 121 U.S. 637; Jopes,

142 U.S. 18. As the Eleventh Circuit recognized,

the rationale for imposing strict liability on the

common carrier employer is the carrier-passenger

relationship and the corresponding existence of

an implied duty of protection and safe transport

free from assaults by the carrier’s employees

during transit. In terms of tort liability, this

becomes in effect, a special non-delegable duty

owed by the carrier to the passenger.

(App. at 31a) (Emphasis supplied) (App. 31a-33a n.18-20).

See also Morton, 984 F.2d at 291 (“contract of carriage made

it the duty of the carrier to carry safely and to protect its

passenger from violence and insult committed by its own

servants”) (quoting Sutton, 7 F.2d at 580); St. Michelle v.

Catania, 252 Md. 647, 651 (Md. Ct. App. 1969) (“common

Carrier is not an insurer of the safety of its passengers, but it

is bound to employ the highest degree of care for their safety,

consistent with the nature of the undertaking”). (See App. at

28a-29a n. 13).

In the twilight of the twentieth century and at the dawn

of the new millennium, the Ninth and Eleventh Circuits, in

separate cases involving sexual assaults by crew members

24

on passengers, have reaffirmed the vitality of a universal

standard that has remained undisturbed for well over one

hundred fifteen years as well as the public policy that supports

it. Petitioners have provided no reasonable basis which would

warrant a review by this Court. Petitioners can do no better

than to suggest that the policy has become outdated because

certain modes of transportation are “safer” today that they were

in the past, which fails to address the core concer of willful

misconduct of a common carrier’s servants against passengers,

as the plaintiff in this very case can attest.

Indeed, there is an element of trust inherent in the common

carrier-passenger relationship. That trust is violated when a

common Carrier’s servant commits an intentional tort against

its passenger and it is this breach which gives rise to the

imposition of the strict liability standard. It is therefore manifest

that the purpose of the policy embodied by the Brockett-Jopes

tule is not to protect against natural hazards of certain types of

traveling, but rather, to apply an appropriate standard in the

event of a breach of the trust created by the common carrier-

passenger relationship.

The element of trust is particularly compelling under the

facts of the present case. It is clear that Respondent sought the

assistance of a crew member (Aydin) precisely because she

viewed him as part of the crew and trusted him to offer assistance

in her moment of need. As the Eleventh Circuit noted:

Aydin undisputedly had offered to help Doe in her

distress. Aydin even referred to Doe as “his

passenger,” and there is ample evidence in the record

that Doe allowed Aydin to escort her only because

he was trusted as her waiter-crew member on the

ship.

(App. at 46a; see also App. at 13a). Had that element of trust

not existed, Respondent would not have accepted Aydin’s

25

proffered assistance and she would not have become the victim

of his sexual battery. (App. at 46a).

Accordingly, the sound policy which has been universally

applied for over a century in narrow circumstances involving

egregious breaches of trust requires no review by this Court.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

RICHARD M. ZiCCARDI

Counsel of Record

MANUEL A. MOLINA

SKOUFALOS, LLORCA

& Ziccarpi, LLP

11 East 44" Street

New York, NY 10017

(212) 880-0858

Attorneys for Respondent

September 20, 2005

MOTION FILED (!)

SEP 2 12005 No. 05-121

!

In The

Supreme Court of the Anited States

v

CELEBRITY CRUISES, INC., ZENITH SHIPPING

CORP., APOLLO SHIP CHANDLERS, INC., AND

CELEBRITY CATERING SERVICES PARTNERSHIP,

Petitioners,

v.

JANE DCE,

Respondent.

*

Vv

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

e

MOTION OF THE INTERNATIONAL COUNCIL

OF CRUISE LINES FOR LEAVE TO FILE

BRIEF AS AMICUS CURIAE AND BRIEF OF

THE INTERNATIONAL COUNCIL OF CRUISE

LINES AS AMICUS CURIAE IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

¢

DAVID W. MCCREADIE

(Counsel of Record)

MICHAEL H. KESTENBAUM

LAU, LANE, PIEPER, CONLEY &

MCCREADIE, P.A.

100 S. Ashley Drive, Suite 1700

Tampa, Florida 33602

Tel: (813) 229-2121

Fax: (813) 228-7710

Attorneys for Amicus Curiae

The International Council of Cruise Lines

—— ee

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

OR CALL COLLECT (402) 342-2831

1

MOTION OF THE INTERNATIONAL COUNCIL

OF CRUISE LINES FOR LEAVE TO FILE BRIEF

AS AMICUS CURIAE IN SUPPORT OF THE

PETITION FOR WRIT OF CERTIORARI’

Pursuant to Supreme Court Rule 37.2(b), the Interna-

tional Council of Cruise Lines (“ICCL”) respectfully moves

this Court for leave to file the accompanying brief as

amicus curiae in support of the Petition for Writ of Certio-

rari in this case. Petitioner has consented to the filing of

this brief. However, Respondent has withheld consent

necessitating the filing of this motion.

The ICCL is a non-profit trade association comprised

of sixteen major passenger cruise lines and numerous

“associate members” with interests related to the cruise

line industry. In 2004, over eight. million passengers

embarked on cruises originating from United States ports

of call.’ This figure represents an increase of almost one

million people over the number of passengers embarking

in 2003.° The increases are expected and projected to

continue with newly built ships entering the marketplace

to accommodate the growing passenger base. As a unified

voice for the competing lines that comprise this dynamic

and growing industry, the ICCL is intent on fostering

continued economic viability for all of its members and

bringing light to the important issues facing those member

cruise lines.

* This motion for leave to file this brief as amicus curiae is filed

simultaneously with the brief.

* Business Research & Economic Advisors (BREA), “The Contribu-

tion of the North American Cruise Industry to the U.S. Economy in

2004” (August 2005), available at http://Awww.iccl.org/resources/2004_

economic_study.pdf (as of September 15, 2005).

> See id. at 3.

2

As a point of reference, in 2004, the North American

cruise industry generated roughly $30 billion in total

economic benefit for the United States.‘ This $30 billion

economic impact supported the employment of more than

315,000 workers and in excess of $12 billion in paid wages

and salaries throughout the United States." Moreover,

individual state economies benefited from over $14.7

billion worth of direct purchases made in conjunction with

the North American cruise industry.° Corresponding with

their positions as the leading points of embarkation for

U.S. passengers, Florida, California and New York re-

ceived the most economic benefit from the industry.

The ICCL, as an organization driven by the needs of

its members, is an active participant in the regulatory and

policy development process as it relates to, and impacts,

the cruise line industry. The ICCL works directly with

federal agencies and international organizations in an

effort to ensure that the cruise industry is safe, secure,

responsible, and reliable. With respect to domestic policy

regulation and implementation, the ICCL coordinates with

the U.S. Coast Guard, the Centers for Disease Control and

Prevention, the U.S. Department of Agriculture, the U.S.

Environmental Protection Agency and other agencies to

ensure that its members are in compliance with United

States laws, rules and regulations. On a global scale, the

ICCL also works closely with the Internationa! Maritime

Organization and the United Nations to assist its member

* See id. at 32-33.

* See id.

* See id.

3

cruise lines in maintaining compliance with international

treaties, conventions and protocol.

Because the ICCL represents such a large number of

the most traveled cruise lines in the world, it has a direct

interest in any final determination of the standard of care

applied to a cruise line (employer) in the case of an assault

on a passenger by a crewmember (employee). In addition,

the ICCL’s long history of working with domestic and

foreign organizations in all avenues of regulation and

policy-making adds to the unique perspective that the

organization can provide to any debate on this subject. The

ICCL believes that this Court is presented with a signifi-

cant opportunity to resolve a question that currently

confounds the industry. The opportunity presently exists

for this Court to clarify the confusion and the conflict in its

own precedent and the conflict between the Second Circuit

Court of Appeals and both the Ninth and Eleventh Circuit

Courts of Appeals.

_ The relevance of this split among the Circuit Court: of

Appeal is particularly significant for the members of the

ICCL. The current conflict among the appellate circuits

represents increased cost and significant legal uncertainty

to the ICCL’s member cruise lines. The application of

different standards of care in different appellate circuits

encourages forum shopping on the part of potential plain-

tiffs, which is a costly waste of industry and judicial time

and resources.

The ICCL believes that its member cruise lines should

owe the same duty of care to any customer aboard a cruise

vessel, regardiess of where that passenger chooses to file

suit. This is especially true considering that a lynchpin of

the general maritime law, as articulated by this Court on

4

numerous occasions, is its uniformity across all courts,

regardless of location. The unequal treatment of defen-

dants (and plaintiffs) depending solely on where suits are

filed is not justified. The unfair, unequal, and substantial

economic impact on those cruise lines sued in circuits

applying strict liability for assaults on passengers is

further compounded when contrasted with the fact that

their land-based competitors in the hotel, resort and

amusement industries are only held to a standard of

reasonable care.

For the stated reasons, the ICCL respectfully requests

that this Court grant it leave to file the attached brief in

support of the petition for writ of certiorari.

Respectfully submitted,

DAVID W. McCREADIE

(Counsel of Record)

MICHAEL H. KESTENBAUM

LAU, LANE, PIEPER, CONLEY &

McCREADE, P.A.

100 S. Ashley Drive, Suite 1700

Tampa, Florida 33602

Telephone: (813) 229-2121

Facsimile: (813) 228-7710

Attorneys for amicus curiae

International Council of Cruise

Lines

QUESTION PRESENTED

“WHETHER THE STANDARD OF CARE OWED BY A

CRUISE LINE TO A PASSENGER ASSAULTED BY A

CREWMEMBER IS REASONABLE CARE UNDER THE

CIRCUMSTANCES OR STRICT LIABILITY?

TABLE OF CONTENTS

Page

QUBSCION PHESIIIG Fie) i iscvccccsvscivecescecssveavacsvesvcees> i

RED RA COET APE EEE Bie bch bhis vodbwcsnevaranccaevncisadavicnss ii

TABLE OF AUTHORITIEG........................cccese0s eats iii

INTEREST OF AMICUS CURIAE............c.cccccccuceeees 1

REASONS FOR GRANTING THE PETITION FOR

WORE OR CR er oan as oss wkcos Goes einen cescone 2

I. COMMON CARRIER PASSENGER ASSAULT

CASES AT THE SUPREME COURT............. 2

II. IMPORTANCE, UNIFORMITY AND FAIR-

PRN oh vis esos os ee cen bisa 6

III. CONFLICT OR CONFUSION AT THE SU-

FR PIO os di coaicks koe Sass occiee bs patna 11

IV. CONFLICT AMONG THE CIRCUIT COURTS

Pe ee acs aac candies diicacasakuckdsoaovnucsceaus 13

CCE bk kick bac Bin 18

TABLE OF AUTHORITIES

Page

CASES

Adams v. New York City Transit Authority, 88

BE edie BON EG: Ne Be I acs csauisvvivbiih) oientanevakvcdconsesaietasves 3,13

The Admiral Peoples, 295 U.S. 649 (1935) ...............0. 5, 16

American Dredging Co. v. Miller, 510 U.S. 443

CO esos ccs Ca ryan dsurdineeucenderuadvananiecodababaceovuevebenus 6

Beard v. Norwegian Caribbean Lines, 900 F.2d 71

CONE Ae RON Pans akin ccc eeccpaccedsnpunsssacanesiboaecsehaecsusbiosuaies 5, 16

Bradley v.. Guy, 438 So.2d 854 (Fla. Dist. Ct. App.

RID siti ac caces-consuseiiea roe ieee laut seesdelasaeiedss Sika taddedietnmcaneuies 18

In re Catalina Cruises, Inc., 137 F.3d 1422 (9th Cir.

BNE ais cuketieslocceatuccp'cces SeaaiNacs leased agua suc tarkssiain eden pda 5

Commodore Cruise Line, Lid. v. Kormendi, 344

So.2d 896 (Fla. Dist. Ct. App. 1977).............csssssneeseesenes 18

Compagnie Generale Transatlantique v. Rivers, 211

Fe Se IRS RN dics ss cn paccbvstascdaaedestAassimnestras 13, 14, 16

Craker v. The Chicago & Northwestern Railway

Cee, BG WR EE ys Bee CD seis csdesechscscesiccscsecesanesacas 4,7,9

Doe v. Celebrity Cruises Inc., 394 F.3d 891 (11th Cir.

PIE ick adit th acne cetaveusaaeesestouisucunsocahoaies 13, 15, 16, 17

Goddard v. Grand Trunk Railway of Canada, 57

BR Spa shea a thctes is saccsivcn adedy es pcrdocsncazs 4,7,9

Jaffes v. Home Lines, Inc., 1990 AMC 1430

SING, Bo MS sescasce i cet chia cesta eacnucktan cibciavseines 14, 16

Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318

FL LE eRe”: RNC eee aera Pant ne fle Pag MOM ee CRP acer rads 5

iv

TABLE OF AUTHORITIES — Continued

Page

Kermarec v. Compagnie Generale Transatlantique,

SEG YF Siac a sv wivcasctneciies eosstcasassierensees passim

Leathers v. Blessing, 105 U.S. 626 (1881) ciisiescureistoicces 5, 6

The Lottowanna, 88 U.S. 558 (1874)...........cececsceeeeeterees 6

The Max Morris v. Curry, 137 U.S. 1 (1890). Maes conse deans cot 6

Morton v. De Oliveira, 984 F.2d 289 (9th Cir. 1993).. 13, 15, 16

Muratore v. M/S SCOTIA PRINCE, 656 F. Supp.

471 (D. Me. 1987)............ SS a_i ay Spee OE 17

Muratore v. M/S SCOTIA PRINCE, 845 F.2d 347

BPR Sage 5) RR Sete cet en pple in 5, 16, 17

Nadeau v. Costley, 634 So.2d 649 (Fla. Dist. Ct.

BBD. TD sviiicastnsnsiatrinthsinatssaconintsrashoutaesescaststpeneais once 17, 18

New Jersey Steam-Boat Co. v. Brockett, 121 US.

Gt CBB TE irsiecgicictierctssttinns Sika sanvecpaeesvaanennssvacoes¥es passim

New Orleans & N.E.R. Co. v. Jopes, 142 U.S. 18

CRD inciasstcensaneieaddece Aaiaaetacediccoiehoses Letter sstip cane passim

Pacific S.S. Co. v. Sutton, 7 F.2d 579 (9th Cir. 1925) ...14, 15, 16

Rainey v. Paquet Cruises, Inc., 709 F.2d 169 (2d Cir.

x | ier ROE aC acne nek ee 5

Rindfleisch v. Carnival Cruise Lines, Inc., 498

So.2d 488 (Fla. Dist. Ct. App. 1986)...............cccceeecsseeees 18

Smith v. Southern Gulf Marine Company No. 2, 791

Pi Dek 41G (Gta Ce Barone cinco scccedsceccacccsecizcane 5, 16

Spector v. Norwegian Cruise Line, Ltd., 125 S. Ct.

pe hs Ra a Se papers one oe ae 7,8

Stewart v. Brooklyn & Cross-Town Railroad Co., 90

IN Y. SOG CCS, Se caveats caste ccsieescie encase 3, 4, 7,9, 13

TABLE OF AUTHORITIES — Continued

Page

York v. Commodore Cruise Line, 863 F. Supp. 159

EAI: We BEY isctdesie a ssavkaecn a salecsacssateteeasacccbosaioaai 14, 16

Urian v. Milstead, 473 F.2d 948 (8th Cir. 1973)........... 5, 16

STATUTES

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Ee Reh, 1 RP aisnsssica tease cictna eccscusave denies eucbebancmabsuomeaiie 10

OTHER AUTHORITIES

Business Research & Economic Advisors (BREA),

“The Contribution of the North American Cruise

Industry to the U.S. Economy in 2004” (August

2005), available at http://www.iccl.org/resources/

2004 COnOMIC StUGY. DAL on.05.05:cessccevcrcesscessaseseneaveseee 2,8

http://www.iccl.org/whoweare/index.cfm (as of Sep-

I Ee TINS visas snl enial son vnsanonbady ois kakecaubh beopsunwsanineds 2

RESTATEMENT (SECOND) OF TORTS § 344 cmt. b

SI Prac cs scksnccvuebchsuie bud soeiscdincwckasdedocaieihasedaseninicncecs 8, 11

1

INTEREST OF AMICUS CURIAE'

The International Council of Cruise Lines (“ICCL”) is

a non-profit trade association comprised of sixteen major

passenger cruise lines. In addition, the ICCL is comprised

of over ninety “associate members,” including 3M, Ameri-

can Bureau of Shipping (ABS), American International

Group, Inc., Board of Commissioners of the Port of New

Orleans, Canaveral Port Authority, Cargill Food Distribu-

tion Co., The Coca-Cola Company, Halifax Port Authority,

Maine Port Authority, Maryland Port Administration,

Massachusetts Port Authority, Port Everglades, Port of

Galveston, Port of Houston Authority, The Port of Los

Angeles, Port of Miami, The Port of Philadelphia and

Camden, a DRPA of PA & NJ, Port of San Diego, Port of

Seattle, Quebec Port Authority, and Tampa Port Authority.

The ICCL is an active participant in the regulatory

and policy development process as it relates to, and

impacts, the cruise line industry. Most importantly, the

ICCL works closely with domestic and international

authorities to ensure that cruising remains safe, secure,

responsible, and reliable for all parties involved.

Because the ICCL is comprised of the sixteen major

cruise lines accommodating a majority of the approxi-

mately eight million (and rising each year) passengers

embarking annually on ships from U.S. ports of call, the

ICCL has a significant interest in this Court’s determination

* Counsel for a party did not author this brief in whole or in part.

No person or entity, other than the Amicus Curiae, its member cruise

lines, or its counsel] made a monetary contribution to the preparation

and submission of this brief.

2

of the standard of care owed by a cruise line to a passenger

assaulted by the cruise line’s employee.’ Although the

ICCL’s member cruise lines compete in the marketplace

for domestic and foreign leisure travelers, the ICCL acts

as a unified and cohesive organization with respect to

industry issues and policies. The ICCL has successfully

advocated the unified position of its members, while

cooperating with domestic and international governing

authorities, in such significant areas as safety, public

health, environmental responsibility, security, medical

facilities, and passenger protection.”

4

v

REASONS FOR GRANTING THE

PETITION FOR WRIT OF CERTIORARI

I.

Common Carrier Passenger

Assault Cases at the Supreme Court

At a time when passenger vessels served primarily as

a means of transporting people from one destination to

another, this Court issued two decisions that address the

standard of care owed by a “common carrier” to a passen-

ger assaulted by the carrier’s employee (“Passenger

Assault Cases”). New Jersey Steam-Boat Co. v. Brockett,

* Business Research & Economic Advisors (BREA), “The Contribu-

tion of the North American Cruise Industry to the U.S. Economy in

2004” p.7 (August 2005), available at http://Awww.iccl.org/resources/

2004_economic_study.pdf (as of September 15, 2005) (finding that the

ICCL’s member cruise lines “accounted for approximately 62 percent of

the North American industry’s global fleet, 88 percent of the lower

berth capacity and 93 percent of global passengers”).

* http://www.iccl.org/whoweare/index.cfm (as of September 15, 2005).