Medical Negligence on Cruise Ships

By David L. Deehl
Deehl & Carlson, P.A.
Coral Gables, FL
david@deehl.com

Chair, Trial Techniques Committee,
Tort Trial and Insurance Practices Section
of the American Bar Association

Adjunct Professor of Litigation Skills
at the University of Miami School of Law 

Recent decisions of Florida’s Third District Court of Appeal, which serves Miami and the Florida Keys, have shed light on the legal responsibilities for medical care on cruise ships.  This article examines those cases, and gives practical tips for lawyers handling such cases.

 Passengers get sick and injured on ships.  My trial practice is located in Miami-Dade County, Florida the venue chosen by many cruise ship owners.  Claims must be brought in our local courts, under the language of the contracts of carriage.  Many cruise lines have large offices in Miami.  

The Dante B. Fascell Port of Miami is homeport to Carnival Cruise Line, Celebrity Cruises, Norwegian Cruise Line, Royal Caribbean International and Windjammer Barefoot Cruises.  It is the largest passenger cruise port in the world, serving nearly 3.4 million passengers a year.   

Cruise ships have gotten larger over the years.  On March 8, 2003 a new cruise record was set in Miami when eight ships, together over 7,286 feet in length, embarked approximately 19,000 passengers.  These mega ships have thousands of crew members and passengers (some over three thousand passengers), and with weekly or shorter cruises, the annual totals of people on board even one ship could exceed 156,000. 

Beware of time limits on tickets 

Cruise ship contracts with passengers usually have time limits on asserting claims and bringing suit.  These contractual limits are much shorter than the applicable Florida statutes of limitations.  The cruise lines have worked hard to create a mine field for the unwary practitioner.  Attorneys bringing such claims should refer them to Miami Dade County counsel as soon as possible. 

A wide variety of cases come to us here.  A man thrown from his bed when his cruise ship crashed into a cargo container ship in the English Channel resulted in a torn rotator cuff in his shoulder.  Sumo wrestling in the bar injured a police SWAT team member on cruise in the Caribbean, when he broke his ankle when he was thrown off the mat.  The unfortunate police officer’s arm was then broken by crew members who dropped him while getting him out of the huge, padded sumo wrestling outfit he wore for the shipboard competition.  A woman was almost killed and lost much of her hair by a food borne infection, and an elderly passenger died of the same widespread infection.  She was cruising in the waters off California and Mexico when a crew member with diarrhea failed to wash his hands (when he was forced to work while sick) and handled the ice in a shipboard restaurant.  Legionnaire’s disease from a hot tub has infected passengers.  Scuba and snorkeling accidents can result in wrongful deaths.  Shipboard sexual assaults have reached staggering proportions.  Criminal assaults occur during shore excursions.  The Norwalk virus outbreak made headlines and shut down ships for extensive decontamination work.         

Medical negligence cases are also to be expected given the numbers of passengers treated, their age, often elderly and young, and their various activities, including much eating and drinking.  Recent decisions of our appellate courts have highlighted that the cruise lines and the medical service providers may be liable for negligent provision of those services to passengers, as well as crew members. 

Carlisle v. Carnival Corporation 

The recent decision in Carlisle v. Carnival Corporation, ____ So. 2d. ___,  (Fla. 3^rd DCA 2003), 2003 Fla. App. Lexis 12794, case number 3D01-1518, opinion filed August 27^th, 2003, discusses medical negligence aboard ships.   Vicarious liability for medical negligence aboard ships had never been squarely addressed by Florida appeals courts.   In Carlisle, the trial court found on summary judgment that the cruise line was not vicariously liable for the doctor’s negligence under agency and apparent agency law.  The appeals court found the cruise line could be liable under these facts, reversing the trial court. 

Facts of Carlisle 

In March 1997, the Carlisles cruised aboard the Carnival cruise Ecstasy. 14 year old Elizabeth Carlisle felt ill with abdominal pain, lower back pain and diarrhea and was seen several times in the ship's hospital by the ship's physician, Dr. Mauro Neri. For several days Dr. Neri repeatedly advised the Carlisles that Elizabeth had the flu, assured her family it was not appendicitis, and provided antibiotics. The Carlisle family left the ship and returned home to Michigan, where Elizabeth was diagnosed as having a ruptured appendix. Elizabeth had her appendix surgically removed and was rendered sterile by the scarring and other consequences of the infection.

           Her parents sued the doctor alleging he acted negligently in his treatment of Elizabeth and that Carnival should be held vicariously liable for such negligence under theories of agency and apparent agency, and negligent hiring of Dr. Neri.  

The contract between Dr. Neri and Carnival provided:

CONTRACTOR agrees to provide services aboard vessel in the capacity of SHIP'S PHYSICIAN . . .Said services shall consist of the providing of medical services and treatment to passengers and crew in accordance with PURCHASER'S Physician guidelines and shall be performed on a seven (7) day -per-week basis during regular and on-call vessel infirmary hours and for emergencies.
  

The contract further provided Dr. Neri’s weekly salary was his sole source of income during the term of the Agreement, and that Carnival could dismiss Dr. Neri for "violations of the Ship's Articles" or "failure to perform duties to the satisfaction of" Carnival.   Dr. Neri was provided a ship's uniform and agreed his photograph, name and likeness could be used to promote and publicize Carnival's vessels in any and all media. Dr. Neri was considered by Carnival to be an officer of the ship.  

Carnival, in another document, agreed to indemnify Dr. Neri for up to $ 1 million with regard to claims brought against him arising out of any act or omission on his part while acting in the course of his duties as ship's doctor.   Dr. Neri agreed that Carnival, or its insurer, would be permitted to take absolute control over the defense and handling of such claims (in Florida, “absolute control” over the defense by others is questionable under the Rules Regulating the Florida Bar, where it would result in a lawyer’s loyalty being divided in such as way as to prevent the lawyer from acting in the client’s best interests at all times.   See Advisory Opinions of The Florida Bar’s Professional Ethics Committee, Opinion 97-1 (May 1, 1997)  An attorney who has been hired by an insurance company to represent an insured owes his primary duty to the insured. An attorney may not ethically continue the representation of the insured under instructions from the insurance carrier that the lawyer file for summary judgment where the attorney has determined that such a motion would be against the insured's interest, and Opinion 81-5 (March 13, 1981)  A lawyer may not ethically accept or continue the representation of either the insured or both the insurance carrier and the insured under instructions from the insurance carrier that the lawyer is not to express any opinion as to settlement value of the cases to the insured.)         

In attempting to limit liability, the cruise ticket provided:

If the vessel carries a physician, nurse, masseuse, barber, hair dresser or manicurist, it is done solely for the convenience of the guest and any such person in dealing with the guest is not and shall not be considered in any respect whatsoever, as the employee, servant or agent of the carrier and the carrier shall not be liable for any act or omission of such person or those under his order or assisting him with respect to treatment, advice or care of any kind given to any guest.

     The Third District found general maritime law applies to a claim for a ship's doctor's malpractice, and a cruise ship ticket is a maritime contract, governed by maritime law, citing to The Moses Taylor, 71 U.S. (4 Wall.) 411, 427, 18 L. Ed. 397, 32 How. Pr. 460 (1866); Wallis v. Princess Cruises, Inc., 306 F.3d 827, 834 (9th Cir. 2002).  Maritime law places a duty on cruise lines to exercise reasonable care under the circumstances for passengers safety. For obtaining summary judgment, Carnival relied upon the long line of decisions exemplified by Barbetta v. S/S Bermuda Star, 848 F.2d 1364, 1369 (5th Cir.1988), which held:

     When a carrier undertakes to employ a doctor aboard ship for its passengers' convenience, the carrier has a duty to employ a doctor who is competent and duly qualified. If the carrier breaches its duty, it is responsible for its own negligence. If the doctor is negligent in treating a passenger, however, that negligence will not be imputed to the carrier. The rationale in  Barbetta is the lack of the cruise line's ability to control the doctor-patient relationship and lack of expertise to control the doctor in his practice of medicine, in that "a ship is not a floating hospital." Barbetta, 848 F.2d at 1368-1371.

     The Carlisles argued Nietes v. American President Lines, Ltd., 188 F. Supp. 219 (N.D. Cal. 1959)  is a better reasoned decision in light of the relations between ship owners and doctors who work on board in modern cruising. In Nietes, the cruise line was held vicariously liable for the negligence of the ship's doctor who was a member of the crew.

     According to the Third  District, a ship's physician is in the regular employment of a ship, as a salaried member of the crew, subject to the ship's discipline 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.

     The appeals court considered that the board of directors of a modern steamship company has as little professional ability to supervise effectively the highly skilled operations involved in the navigation of a modern ocean carrier by its master as it has to supervise a physician's treatment of shipboard illness. Since the company is held liable for the negligent operation of the ship by the master, it should be liable for the negligent treatment of a passenger by a physician or nurse in the normal scope of their employment, as members of the ship's company, subject to the orders and commands of the master.

     A carrier, normally under no duty to practice medicine, when it undertakes the treatment of illness through medical services provided by it aboard its ship assumes the duty to treat carefully.

     The reasoning for imposing such liability, was analyzed by the Court, because the employment of a doctor aboard ship is a beneficial substitute for the shipowner's otherwise more costly duty to sick passengers. Ships without physicians or nurses are required to change course and put in at the nearest port, according to the seriousness of the illness for both passengers and seamen whose lives may be threatened by illness while on board the ships. The shipowner could be liable under the principle of respondeat superior if the proper care is not given.  Placing a physician aboard ship, avoids his sometimes inconvenient and costly duty to change course for the benefit of an ailing passenger. This gives shipowners competitive advantage in the maritime passenger industry over those sea-going carriers which have not provided the safety of on-board medical service, and which would be forced to make unscheduled stops regularly.
 
    The Florida appeals court cited Fairley v. Royal Cruise Line, Ltd., 1993 AMC 1633 (S.D. Fla. 1993)(which criticized Barbetta and supported Nietes, while recognizing the viability of an apparent agency theory of recovery).  The Florida appeals court also cited 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. 381 (1990).

    Cruise passengers at sea in medical distress do not have any meaningful choice but to seek treatment from aboard the ship.  Barbetta was based on the fiction passengers have some choice in the matter, and that the cruise line lacks control because it cannot interfere in the doctor-patient  relationship,  

    It is foreseeable some cruise passengers at sea will develop major medical problems.    The Third District rejected the Barbetta line of cases and held that the cruise line's duty to exercise reasonable care under the circumstances extends to the actions of the ship's doctor placed on board by the cruise line. For purposes of fulfilling the cruise line's duty to exercise reasonable care, the ship's doctor is an agent of the cruise line whose negligence should be imputed to the cruise line, according to the Third District.  The cruise line is already held vicariously liable for the negligence of the same ship's doctor in the treatment of hundreds of people -- the crew -- under the maritime duty to provide maintenance and cure. citing De Zon v. American President Lines, 318 U.S. 660.63 S. Ct. 814, 87 L. Ed. 1065 (1943); De Centro v. Gulf Fleet Crews, Inc., 798 F.2d 138, 140 (5th Cir. 1986); Fitzgerald v. A.L. Burbank & Co., 451 F.2d 670, 679 (2d Cir. 1971); Gulf Central Steamship Corp. v. Sambula, 405 F.2d 291 (5th Cir. 1968). For seamen, a ship owner is liable for the negligence of the ship's doctor regardless of the degree to which the doctor's medical activities, or the doctor-patient relationship, can be controlled by the ship owner.

       The exculpatory language contained in the passenger ticket was invalidated by the court under 46 App. U.S.C.A. § 183c since the statute invalidates certain purported disclaimers of liability:

It shall be unlawful for the manager, agent, master, or owner of any vessel transporting passengers between ports of the United States or between any such port and a foreign port to insert in any rule, regulation, contract, or agreement any provision or limitation (1) purporting, in the event of loss of life or bodily injury arising from the negligence or fault of such owner or his servants, to relieve such owner, master, or agent from liability, or from liability beyond any stipulated amount, for such loss or injury . . .All such provisions or limitations contained in any such rule, regulation, contract, or agreement are declared to be against public policy and shall be null and void and of no effect.
 

A ticket seeking to limit Carnival's liability for the negligence of its agent, would be invalid under that statute.  The appeal court noted in suits against the ship's doctor individually, the passenger is effectively faced with having to engage in a game of personal jurisdiction and service of process roulette, with the ability to proceed against the doctor depending on various factors such as contacts with the state, whether medical treatment was provided in Florida waters or at sea, and the practical realities of effectuating service of process. See, e.g., Rana v. Flynn, 823 So. 2d 302 (Fla. 3d DCA 2002)(personal jurisdiction present where treatment in Florida waters and there were multiple contacts with state); Elmlund v. Mottershead, 750 So. 2d 736 (Fla. 3d DCA 2000)(no personal jurisdiction over non-resident ship's doctor with insufficient Florida contacts); Rossa v. Sills, 493 So. 2d 1137 (Fla. 4th DCA 1986)(sufficient contacts to support personal jurisdiction).   In the two years after this matter was filed the Carlisles were unable to serve process on Dr. Neri.
 
     The court noted a cruise ship is, “a city afloat with hundreds of temporary citizens, some of whom are passengers and some of whom are the employees and agents of the cruise line who comprise the ship's crew, each of whom, within their particular sphere, owe a duty of reasonable care to the passengers.”  Modern, large cruise ships are floating cities with thousands of temporary residents, and larger ones are in development by the cruise lines.

Benson v. Norwegian Cruise Lines 

        Another interesting recent decision in a case involving allegations of cruise ship physician negligence, found that Florida had jurisdiction to its terrioritorial limits.  In Benson v. Norwegian Cruise Lines, Ltd. and Von Benecke, 834 So. 2d 915 (Fla. 3^rd DCA 2003) the court was confronted with medical negligence allegedly occurring 11.7 miles offshore of Miami.    

The plaintiff’s decedent, Noah Benson, was a thirteen-year-old passenger on the M/S Leeward, a cruise ship owned by defendant-appellee Norwegian Cruise Line Limited ("NCL").  Noah was traveling with his mother, plaintiff-appellant Patricia Hardy-Smith, as well as another family member from Miami to Key West and to return.  Noah ate shellfish and an  allergic reaction occurred. Swelling in the windpipe prevented his breathing.

      Medical treatment provided by the ship's doctor Carla Von Benecke. She attempted to insert a breathing tube several times. Unfortunately, Noah died before intubation could be successfully completed to establish an airway.

     The mother and natural father brought a wrongful death action against NCL and Dr. Von Benecke for medical negligence.  Dr. Von Benecke moved to dismiss for lack of personal jurisdiction, as a South African national who was employed on the NCL cruise ship as a contract employee.

     The plaintiffs stated that the claimed incident of medical malpractice occurred while the ship was within Florida's territorial waters as defined by article II, section 1, of the Florida Constitution. The trial court concluded that the ship was outside of Florida's territorial waters at the relevant times and granted the motion to dismiss as to Dr. Von Benecke. The plaintiffs appealed successfully.  

Dr. Von Benecke is not a resident of Florida, though under Florida's long arm statute, Florida courts may exercise personal jurisdiction over a nonresident where the cause of action arises from the defendant's "committing a tortious act within this state." § 48.193(1)(b), Fla. Stat. (1997).  Medical treatment within Florida's territorial boundaries is sufficient to establish long arm jurisdiction. 

Florida's boundaries are set forth in article II, section 1, of the 1968 Florida Constitution.  Florida's constitutional descriptions of the eastern boundary have varied in each constitution from 1868 to the present. See Fla. Const. Art. I (1868); Fla. Const. Art. I (1885); Id. (as amended 1962); Fla. Const. Art. II, § 1 (1968).  Expert evidence was that this cruise ship located 11.7 nautical miles east of Florida's coastline was at all relevant times within this boundary.  The ship had not yet reached the edge of the Gulf Stream, which was 14 nautical miles east of the relevant portion of Florida's coastline on the day in question. The claimed incident of medical malpractice occurred within Florida's territorial boundaries. 

 Where a Florida-based company is selling cruises which depart from Florida into international waters, returning to Florida, plainly the company is engaged in business in Florida. The same analysis holds true for a ship's physician who, under a contract of employment, sails on such a ship. § 48.193(1)(a), Fla. Stat. and Tidewater Marine, 927 P.2d at 300-01. were cited.

             The appeals court suggested an inquiry should not be necessary, because entering into an employment agreement to serve as the ship's doctor on a cruise liner operating out of Miami clearly amounts to engaging in business in Florida for purposes of the long arm statute. 

Meitus, M.D. et al vs. Carnival Cruise Lines, Inc.