Franza v. Royal Caribbean Cruises: the Eleventh Circuit opens the door for vicarious liability claims in the future.
TABLE OF CONTENTS I. Introduction II. Barbetta v. S/S Bermuda Star--The Long-Lived Standard of Cruise Line Exemption from Vicarious Liability A. Facts and Background B. The Court's Decision III. Franza v. Royal Caribbean--The Eleventh Circuit Refuses to Honor the Barbetta Rule A. Factual and Procedural Background B. The Court of Appeals' Decision 1. Franza's Actual Agency Claim 2. The Court Denounces the Barbetta Rule a. Barbetta's First Pillar--The "Nature" of the Doctor-Patient Relationship i. Barbetta's First Pillar--Part 1 ii. Barbetta's First Pillar---Part 2 b. Barbetta's Second Pillar--Scope and Nature of a Cruise Line's Expertise c. Barbetta's Third Pillar--Lack of "Sufficiently Immediate" Control 3. Franza's Apparent Agency Claim a. Actual vs. Apparent Agency b. The Doctrine of Apparent Agency Applied IV. Potential Measures Cruise Lines May Take in Order to Evade Franza's Grasp--A Change of Venue? V. Looking Forward--Potential Proactive Measures by Cruise Lines in Light of Franza VI. How Far on Land Will Franza Extend? VII. Conclusion
Recently, the United States Court of Appeals for the Eleventh Circuit, in Franza v. Royal Caribbean Cruises, Ltd., (1) opened the door to the possibility of cruise line vicarious liability. The court held that the plaintiff's complaint adequately asserted a claim for vicarious liability for the medical negligence of Royal Caribbean's onboard medical personnel. (2) This holding was squarely at odds with over a century of entrenched precedent, which was best summed up by the United States Court of Appeals for the Fifth Circuit's holding in Barbetta v. S/S Bermuda Star. (3) In that case, the Fifth Circuit stood steadfast with historical jurisprudence and held that cruise ship passengers were precluded from imposing respondeat superior liability upon cruise lines for the medical negligence of an onboard physician as a matter of law. (4) Although the Eleventh Circuit's holding in Franza does not overrule the Fifth Circuit's opinion in Barbetta, the newly created Franza approach will likely become the industry standard due to the fact that a majority of North America's cruise lines are headquartered within the Eleventh Circuit's jurisdiction. (5) Additionally, most cruise line ticket contracts contain a forum selection clause mandating that the proper forum for all litigation is within the Eleventh Circuit. (6)
In light of this recent development of the law, this Article will briefly explain the Barbetta case and its resulting rule, followed by a detailed review of the Eleventh Circuit's opinion in Franza. Furthermore, this Article will explore the potential repercussions of the new Franza standard within the cruise line industry. Lastly, this Article will explore the potential of expanding the Franza rule to shore-side activity, as the relationship between cruise lines and shore-side excursion operators become ever more intertwined.
II. BARBETTA V. S/S BERMUDA STAR--THE LONG-LIVED STANDARD OF CRUISE LINE EXEMPTION FROM VICARIOUS LIABILITY
A. Facts and Background
In Barbetta v. S/S Bermuda Star, Mrs. Barbetta, the plaintiff, fell ill while aboard the cruise ship, S/S BERMUDA STAR, shortly after the voyage began. (7) Mrs. Barbetta consulted the ship's doctor who treated her for several days. (8) During that time, her condition worsened resulting in a severe case of pneumonia and eventually caused her to lapse into a coma. (9) After falling into a comatose state, Mrs. Barbetta was evacuated to a shore-side hospital. (10) Although she was not aware at the time she first fell ill, Mrs. Barbetta was suffering from diabetes. (11) Accordingly, in their complaint, the Barbettas asserted that the vessel, its owner (Billinghurst), and operator/charterer (Bahama Cruise), were vicariously liable for Mrs. Barbetta's damages caused by the doctor's medical negligence in failing to properly diagnose her diabetic condition. (12) Additionally, the Barbettas claimed that the defendants were liable for her damages because they had failed to assure that the vessel was properly staffed with competent medical workers. (13)
B, The Court's Decision
In dismissing the Barbettas' vicarious liability claims, the court reasoned three main justifications for the inapplicability of the doctrine of respondeat superior in the cruise line context. First, the court stated that the nature of the relationship between the passenger and the doctor effectively prevented the principal cruise line from exercising meaningful control over the doctor. (14) Secondly, the Barbetta court reasoned that, in general, cruise lines are not in the business of providing medical services and therefore do not possess the expertise to supervise onboard physicians. (15) Lastly, the court found that a principal cruise line can never exercise "sufficiently immediate" control over its onboard medical personnel to warrant holding the cruise line vicariously liable for such an employee's medical negligence. (16) Thus, the Barbetta court tempered the generally accepted rule that, as a matter of law, cruise ship passengers could not assert negligence claims against cruise lines under the theory of respondeat superior.
III. FRANZ A V. ROYAL CARIBBEAN--THE ELEVENTH CIRCUIT REFUSES TO HONOR THE BARBETTA RULE
In Franza v. Royal Caribbean Cruises, Ltd., (17) the Eleventh Circuit purposefully ignored years of relevant precedent from the Second, Fifth, and Ninth Circuits, and held that a cruise ship passenger could sustain a valid claim against a cruise line under the doctrines of agency or apparent agency based on the medical negligence of the vessel's medical staff. (18) The court held that under actual and/or apparent agency, a plaintiff was entitled to pursue a negligence action against the vessel owner, should the facts and pleadings support such claims. (19) In doing so, the Eleventh Circuit has all but theoretically disposed of the prevailing rule set forth by the Fifth Circuit in Barbetta, (20) which held that cruise lines could not be held vicariously liable for the medical negligence of its onboard physicians. (21) Therefore, as seemingly all future cases involving cruise lines are subject to forum selection clauses that mandate litigation in the Eleventh Circuit, the new Franza ruling will likely become the standard in this area of the law.
A. Factual and Procedural Background
In Franza, Pasquale Vaglio was a passenger aboard the EXPLORER OF THE SEAS, a cruise ship owned and operated by Royal Caribbean. (22) While at a port-of-call in Bermuda, Mr. Vaglio fell while attempting to board a trolley near the dock and suffered a severe blow to the head. (23) Thereafter, at approximately 10:00 a.m., Mr. Vaglio was taken to the ship's infirmary in a wheelchair. (24) Upon his arrival at the infirmary, nurse Garcia, a full-time employee of Royal Caribbean, performed an initial examination of Mr. Vaglio. (25) Although nurse Garcia was made aware of his head injury, she advised Mr. Vaglio and his wife that he was fine to return to his cabin without undergoing any diagnostic scans. (26) With instructions to keep an eye on Mr. Vaglio's condition, the couple returned to their cabin around 10:45 a.m. (27) Approximately ninety minutes later, Mr. Vaglio's condition worsened and his family called 911. (28) It took twenty minutes for someone to arrive to escort Mr. Vaglio back to the ship's infirmary and another forty minutes until Dr. Gonzales, the ship's physician, first examined him. (29) At this time, nearly four hours since he had first visited the ship's infirmary, Dr. Gonzales determined that Mr. Vaglio needed to be transported to a shore-side hospital. (30) After spending the night in a Bermudian hospital, Mr. Vaglio was airlifted to a hospital in Mineola, New York, where he was placed in the intensive care unit. (31) Mr. Vaglio remained in the intensive care unit until he died one week later as a result of his head injury. (32)
In January of 2013, Patricia Franza, Mr. Vaglio's daughter, and the personal representative of his estate, filed suit against Royal Caribbean in the United States District Court for the Southern District of Florida. (33) In the district court, Franza invoked the doctrine of actual agency, alleging that Royal Caribbean was negligent for the acts of its employees or agents. (34) Alternatively, Franza asserted that under the theory of apparent agency, Royal Caribbean was liable because the cruise line manifested to Mr. Vaglio that nurse Garcia and Dr. Gonzales were acting as its employees and/or actual agents. (35) It was further alleged that Mr. Vaglio detrimentally relied on his belief that nurse Garcia and Dr. Gonzales were direct employees or actual agents of Royal Caribbean. (36) Franza's complaint was met by a Rule 12(b)(6) Motion to Dismiss for failure to state a claim from Royal Caribbean, which was granted by the district court. (37) Regarding Franza's actual agency claim, the district court applied the Barbetta rule and concluded the claim was based upon duties of care that are not recognized under maritime law. (38) The district court also dismissed Franza's apparent agency claim for being inadequately pled. (39) Specifically, the court determined that the pleadings failed to plausibly claim that Mr. Vaglio had ever relied on the appearance of an agency relationship. (40) Subsequently, Franza filed a timely appeal to the Eleventh Circuit. (41)
B. The Court of Appeals' Decision
To begin, the court noted that to conduct a proper de novo review of the district court's dismissal based on Royal Caribbean's 12(b)(6) motion, all of Franza's allegations must be examined in a light most favorable to the plaintiff. (42) As such, the plaintiffs complaint should survive only if the facts alleged allow the court to draw a reasonable inference that the defendant is liable for the misconduct claimed by identifying facts that are suggestive enough to render each required element plausible. (43)
1. Franza's Actual Agency Claim
The court first addressed Franza's assertion that the district court erroneously dismissed her actual agency claim. (44) Noting that neither the United States Supreme Court nor the Eleventh Circuit has ever decided whether a passenger may hold a shipowner vicariously liable for the medical negligence of the ship's employees, the court began its own untainted analysis regarding the question. (45) After a brief discussion on the merits of applying the doctrine of respondeat superior in maritime cases, the court found that there was nothing inherently unique about onboard medical negligence, when committed by employees acting within the course and scope of their employment, that justified suspending the accepted doctrines of agency law in this context. (46) To that end, the court stated, "[c]ertainly, nothing in our case law creates--or even suggest--a bright-line zone of immunity for the onboard negligence of a cruise ship's medical employees." (47) Acknowledging that this proposition was undeniably at odds with the Fifth Circuit's holding in Barbetta, the court made it clear that it remained unpersuaded by the Fifth Circuit's sweeping holding. (48) The court found that, in the absence of any statutory mandate to the contrary, the existence of an agency relationship should be viewed as a question of fact under general maritime law. (49) As such, a plaintiff needs only to allege facts sufficient enough to render it facially plausible that an agency relationship existed at the time of the incident in his or her complaint to adequately plead their case. (50) The court then noted that in this case, as in all maritime respondeat superior cases, the essential element of the agency relationship is the principal's control over its agents. (51)
Looking to Franza's pleadings, in conjunction with the elements required to satisfy the existence of an agency relationship, the court found the allegations pled clearly supported the assertion that nurse Garcia and Dr. Gonzales were agents of Royal Caribbean. (52) As to the first two elements of agency, the court first noted that Franza's complaint plausibly established that Royal Caribbean acknowledged that the doctor and nurse would act on their behalf and that each individual accepted the undertaking. (53) Importantly, the complaint specifically claimed that both Dr. Gonzales and nurse Garcia were employed by the cruise line, were therefore its employees or agents, and were acting within the course and scope of their employment at all times regarding the incident. (54) In furtherance of these allegations, it was asserted that Royal Caribbean directly paid the ship's doctor and nurse for their work in the medical center. (55) Next, the complaint justifiably claimed that the ship's infirmary was created, owned and operated by Royal Caribbean by citing to the cruise line's own marketing materials. (56) The cruise line also knowingly provided the medical personnel with Royal Caribbean embossed uniforms that were worn by the doctor and nurse. (57) Lastly, Royal Caribbean allegedly represented to immigration authorities and passengers that Dr. Gonzales and nurse Garcia were crewmembers of the ship and had even introduced Dr. Garcia as an officer of the vessel. (58)
The court also found that Franza's complaint adequately pled the third, "control," element of agency. (59) Noting that control is the fulcrum of any respondeat superior case, the court proclaimed the following considerations to be probative regarding the question of control:
(1) the direct evidence of the principal's right to or actual exercise of control;
(2) the method of payment for an agent's services, whether by time of by the job;
(3) whether or not the equipment necessary to perform the work is furnished by the principal; and
(4) whether the principal had the right to fire the agent. (60)
With these factors in mind, the court determined that the complaint plausibly supported a finding of control under at least three of the above elements. (61)
First, the complaint alleged substantial evidence regarding the cruise line's right to control the medical personnel by virtue of the employer/employee relationship, as well as the facts that the infirmary was owned and operated by Royal Caribbean, the employees were paid directly, considered members of the crew, and were also required to wear Royal Caribbean uniforms. (62) Also, and perhaps most importantly, the complaint stated that the doctor and nurse were under the command of the vessel's superior officers. (63) While these facts had yet to be proven before a trier of fact, at the pleading stage, these assertions offer substantial evidence of Royal Caribbean's control over its medical staff. (64)
Second, in furtherance of the proposition that Royal Caribbean had control over Dr. Gonzales and nurse Garcia, the complaint specifically asserted that the cruise line paid "salaries" to the medical staff. (65) The court concluded that this type of payment structure traditionally suggests an agency relationship because payment is "by time" and not "by the job." (66) Passengers are also purportedly billed directly by Royal Caribbean for medical services rendered while aboard the vessel, as opposed to being charged by the medical professionals themselves. (67) Because the cruise line exercised complete control over the funds that might otherwise have been paid directly from the passengers to the medical staff, it was adequately alleged that Royal Caribbean had complete dominion over Dr. Gonzales and nurse Garcia under the "method of payment" element of control. (68)
Lastly, the court noted that Royal Caribbean allegedly paid to stock the ship's infirmary with supplies, equipment and medicines. (69) This assertion further lends itself to support a finding that the cruise line had control over the ship's infirmary and employees. (70) Although Franza failed to specifically allege that Royal Caribbean had the right to fire its onboard medical staff, the complaint did indicate that Gonzales and Garcia were members of the crew, who were under the command of the vessel's superior officers. (71) Thus, it can be presumed that the cruise line maintained the authority to fire any of its employees, including its onboard physician and nurse. (72)
The court next considered Royal Caribbean's argument that Mr. Vaglio's passenger ticket contract clearly indicated that onboard medical personnel were independent contractors and were therefore neither employees nor agents of the cruise line. (73) In declining to consider the relevance of the ticket contract at this early stage in the proceedings, the court cited three reasons. (74) First, the ticket was not attached to Franza's complaint, and therefore should not be considered in this Rule 12(b)(6) Motion to Dismiss. (75) Second, the complaint did not mention the contract at all. (76) Last, even if the court was inclined to examine the ticket contract, it could not consider Gonzales and Garcia to be independent contractors simply because Royal Caribbean classifies them as such. (77) Accordingly, the court held that Franza's complaint unquestionably established an agency relationship between Royal Caribbean and its full-time medical employees, and further, that the complaint successfully asserted a plausible basis for imputing the medical negligence of Dr. Gonzales and nurse Garcia to Royal Caribbean. (78)
2. The Court Denounces the Barbetta Rule
Next, the court provided a reasoned and comprehensive explanation of why it would be unjust to apply the Barbetta rule to this case. The court stated, "[w]e decline to adopt the rule explicated in Barbetta, because we can longer discern a sound basis in law for ignoring the facts alleged in individual medical malpractice complaints and wholly discarding the same rules of agency that we have applied so often in other maritime tort cases." (79) Even in light of the widely applied rule, the court reiterated that no Supreme Court or Eleventh Circuit jurisprudence has bound it to the structure of Barbetta. (80) To that end, the court stated that the boundless advances in modern technology and cruise ships in general dictate an entirely different analysis than that of Barbetta. (81) Importantly, it has become paramount to acknowledge that cruise ships are akin to floating cities complete with modern medical facilities. (82) In today's world, large corporations, as opposed to independent contractors, commonly employ the medical professionals who work aboard such vessels. (83) Modern cruise ships are able to instantaneously communicate with correspondents onshore, so it can no longer be argued that medical negligence was attributable to a lack of resources or information. (84) In sum, the Barbetta rule rests on three basic arguments that a shipowner cannot exercise control over its medical staff at sea, none of which could withstand thorough scrutiny. (85)
a. Barbetta's First Pillar--The "Nature" of the Doctor-Patient Relationship
The first pillar upon which the Barbetta rule rests is the notion that any doctor-patient relationship precludes vicarious liability by its very "nature." (86) There are two justifications to explain why no third-party principal could exercise meaningful control over the conduct of a medical professional: (1) first, because of the professional's special skills and independent judgment, and (2) secondly, because the doctor-patient relationship is "under the control of the passengers themselves." (87)
i. Barbetta's First Pillar--Part 1
In consideration of the first justification, the court noted that modern common law courts have overwhelmingly deserted the approach. (88) As a fundamental matter, the guidelines for determining an employer's liability in respondeat superior cases are the same regardless of whether the employee is high-ranking or a low-level worker. (89) Courts have generally recognized that there is no distinguishable difference between
specialized medical skill and any other category of expertise that would justify a comprehensive immunization from oversight. (90) If that were the case, virtually every professional who is expected to exercise independent decision-making would be deemed an independent contractor, resulting in immunity for all principals who might employ such individuals. (91) Unlike physicians of the past who were truly independent medical professionals, modern doctors commonly work for major corporations or other large associations. (92) As such, many courts have held that the obligation to maintain independence in medical judgment does not prevent such professionals from becoming employees. (93) For example, hospitals, universities, clinics and corporations of all kinds employ modern healthcare professionals. (94) Powerful principals might restrict the practice of medicine "through hiring criteria, training, formal practice guidelines, hierarchical supervision structures, peer review groups and disciplinary measures." (95) In light of these expansive control-focused systems, it is not surprising that many courts have largely accepted and applied the principles of respondeat superior in the realm of modern-day medicine. (96) The court quickly noted, however, that this view does not mandate that all medical professionals are the agents of a principal. (97) The application of the doctrine of respondeat superior is purely fact-specific, which precludes the adoption and universal application of a bright-line rule. (98) Therefore, the court concluded that,
As a matter of law, we are hard-pressed to see why the principal-agent relationship between a shipowner and a medical professional should be treated any differently--particularly where the shipowner employs a large medical staff, wholly outfits the clinics where its medical employees work, and exercises sufficient control over those personnel. (99)
ii. Barbetta's First Pillar--Part 2
Next, the court contemplated the second justification under the first, "nature" of the relationship pillar, of Barbetta. (100) The argument is that the passenger voluntarily engaged the medical care of the onboard medical staff, and as such, the vessel owner had control over neither the choice to engage the physician nor the extent to which the passenger/patient chose to submit himself to such care. (101) Put another way, the vessel owner had no control over the employee because the patient, not the doctor or the principal, was making the decisions regarding the medical care. (102)
The court rejected this "load-bearing" Barbetta standard, and remained "unimpressed" by the theory that a patient maintains absolute control over the medical relationship as a matter of law. (103) Again, the court emphasized that the specific facts of the case remain critical to the determination of vicarious liability. (104) For example, the court noted it would be unreasonable to suppose that an unconscious trauma patient could effectively choose the emergency medical treatment he receives. (105) Moreover, in the particular context of cruise ships, it would be irrational to think that an onboard passenger has any viable alternatives but to submit to the care of the onboard medical staff. (106) In short, when at sea, or even at berth in a foreign port, a passenger has no other short-term option except to seek the treatment and care that can be provided aboard the vessel. (107)
Looking to Franza's complaint, the court found that the pleadings adequately addressed these problems and even stated that Mr. Vaglio was "required" to go the ship's infirmary following his injuries. (108) The court further noted that even if it were to assume a patient always controls the treatment he receives, such an assumption would not require the court to conclude that a patient maintains exclusive control of the relationship. (109) Citing to other modern courts, the Eleventh Circuit panel declared that even if the principal does not direct its physician's isolated behavior while treating patients, the principal may still significantly control the overall delivery of medical services. (110) Absent the patient's ability to opt in or out of treatment, a principal/employer has a multitude of other ways to influence the employee's medical practices. (111) As previously stated, the principal can accomplish such controls through hiring criteria, training, practice guidelines, supervision, peer reviews, disciplinary measures, scheduling, and even compensation. (112) Again, the court noted that these control measures do not necessarily dictate a finding of vicarious liability. (113) Such control mechanisms, however, should be considered in conjunction with all of the facts, as the question of agency is a factual one. (114) Therefore, the court concluded that the nature of the doctor-patient relationship can no longer, as a matter of law, forbid the application of respondeat superior in the maritime context. (115)
b. Barbetta's Second Pillar--Scope and Nature of a Cruise Line's Expertise
The second principle upon which the Barbetta rule sits is the assertion that the "scope and nature of a cruise line's expertise" precludes its ability to supervise onboard medical professionals. (116) The court admitted, as many courts have, that "[a] ship is not a floating hospital." (117) Accordingly, the argument goes that because a shipowner's primary business is not providing medical treatment to passengers, a cruise line could not possess the required level of expertise to supervise properly the vessel's medical staff and thus, lacks control over such personnel. (118) The court once again remained unpersuaded by such a sweeping principle of immunization. (119)
To begin, the court was not persuaded by the assertion that Royal Caribbean lacks any and all medical expertise when the company regularly furnishes access to extensive medical care within its onboard facilities. (120) The complaint clearly alleged that Royal Caribbean was sufficiently entangled in the business of providing onboard medical care to warrant the possibility of vicarious liability. (121) Evidencing this possibility were the allegations that Royal Caribbean owned and operated the onboard infirmaries, which were stocked with supplies and staffed by employees that were hired, trained, paid, and controlled by the company. (122) In light of these allegations the court was able to fairly presume that the cruise line had at least some level of institutional knowledge of medicine and medical practices. (123)
The court bolstered this presumption by noting that many courts have predicated the medical knowledge of hospitals on the same basis. (124) Although the business of cruise ships is inherently distinct from that of hospitals, the court found no rationalization for limiting the applicability of vicarious liability principles, even when the negligence did not arise from the principal's primary business. (125) To the contrary, many common law courts have imputed liability to a principal for an employee's negligent actions during the course and scope of employment without further requiring that the conduct involve the principal's central business. (126) Accordingly, vicarious liability may be appropriate when an employee, hired to perform medical services, committed medical negligence in the course and scope of employment, even if the principal's business is not primarily medical in nature. (127)
At odds with this reasoning, Barbetta stands for the sweeping notion that a shipowner can never be held vicariously liable because cruise lines, unlike any other employer of medical personnel, lack any and all medical expertise. (128) To combat this sweeping legal proposition the court looked to analogous case law, where courts have entertained the possibility of vicarious liability even where the rendering of medical treatment was merely incidental to the principal's core business. (129) In particular, the court discussed case law involving the vicarious liability of universities whose employees rendered negligent medical care to patients. (130) The court likened university clinics to cruise ship infirmaries by stating that in both cases, the medical facilities offer a limited range of treatment and procedure options in comparison to hospitals or a private physician's office. (131) Additionally, neither universities nor cruise lines are in the primary business of medical care. (132) Further, each entity claims to have created such facilities as an enhancement to its primary business, and not for the sole purpose of providing medical services. (133) The fact that, like universities, cruise lines have engaged in the practice of medicine by offering medical care to passengers is of importance when determining whether an immunity from liability is proper. (134)
The court further noted that there is no existing principle of maritime tort law that justifies treating shipowners differently than other employers. (135) Relevant case law also supports the principle of treating shipowners similarly to other employers. For example, the United States Court of Appeals for the First Circuit, in Muratore u. M/S Scotia Prince, held a shipowner vicariously liable for several subcontracted photographer-employees who tortiously photographed and harassed a passenger. (136) In that case, the First Circuit reasoned that the shipowner was vicariously liable even though its business was not primarily photography. (137) Thus, the Franza court concluded that if a vessel owner could be held liable for the actions of subcontracted photographers, there would be little reason to not assume a shipowner could possibly be held liable for the medical negligence of onboard medical personnel. (138)
Lastly, the court considered the broader policy implications of excluding the applicability of vicarious liability in cases similar to Franza, (139) Generally, carriers have a duty to exercise reasonable care under the circumstances to provide medical aid and assistance to an ailing passenger. (140) As such, when suitable care cannot be rendered to a passenger onboard, a vessel may have to deviate from its planned itinerary, incurring costs and sustaining great inconvenience. (141) To avoid such inconveniences and costs, cruise lines have incorporated infirmaries into their vessels. When a cruise line chooses to invest in medical facilities and hire medical personnel, it knowingly enters into the business of medicine, even if only tangentially to its core business. (142) Accordingly, the court ultimately determined that the justifications under the second pillar of Barbetta were unpersuasive arguments for precluding the applicability of vicarious liability in cases where the facts might warrant such a finding. (143)
c. Barbetta's Third Pillar--Lack of "Sufficiently Immediate" Control
The third and final pillar upon which the Barbetta rule rests is the assumption that a shipowner is unable to exercise "sufficiently immediate" control over its onboard medical staff, and therefore cannot be held vicariously liable for an employee's medical negligence. (144) The court emphasized that this idea presupposes that a shipowner will never be close enough, whether the vessel is geographically near or far, to exercise control over medical personnel. (145) As such, this conclusion is inherently flawed because it assumes facts before the trier of fact can decide them or even be pled by the parties. The court once again stressed that agency is a question of fact, and in some instances, the facts could possibly show that a shipowner was near or even on the vessel at the time the negligent act occurred. (146) Therefore, "[t]o the extent that physical separation vitiates control, the relevant questions are fact-based and ill-suited to resolution by a per se rule of law." (147)
The court also pointed out that physical separation between principals and agents does not necessitate the preclusion of vicarious liability. (148) Again, the facts are of paramount importance when making such a determination. (149) Notably, the court looked to the Restatement of Agency, which states that, "[t]he control or right to control needed to establish the relation of master and servant may be very attenuated." (150) Further, even if physical distance would vitiate liability in some cases, there is no ascertainable reason to adopt a "one size fits all rule," especially in today's world, where sophisticated technology empowers shore-based principals to communicate with medical staff on the vessel. (151) By their own admission, many cruise lines claim to maintain land-based medical divisions with expert medical staff in order to provide further assistance to the medical personnel onboard should it be required. (152) The court noted that these forms of instantaneous communication were nonexistent when Barbetta was decided. (153) As such, the Eleventh Circuit had no qualms in rejecting the third pillar of Barbetta and finding that shipowner could plausibly supervise a vessel's medical staff in places near or far. (154)
Ultimately, the Eleventh Circuit held that the allegations in Franza's complaint adequately established a plausible agency relationship between Royal Caribbean and Dr. Gonzales and nurse Garcia, warranting a dismissal of Royal Caribbean's Rule 12(b)(6) Motion to Dismiss. (155) Rather than following the justifications barring respondeat superior liability set out in Barbetta, the court saw it appropriate to follow its own maritime precedent, which mandates a fact-intensive inquiry into agency questions. (156) Thus, the court was ill-inclined to adopt a principle that would categorically exclude vicarious liability for cruise lines in the medical negligence context. (157)
3. Franza's Apparent Agency Claim
Franza's second contention on appeal was that the district court erroneously dismissed her alternative claim brought under the theory of apparent agency. (158) To begin, the court noted that it was the first court to consider whether it is appropriate for a passenger to use the theory of apparent agency to impute vicarious liability on a cruise line for the onboard medical negligence of its employees. (159) On this novel issue, the Eleventh Circuit held that, "a passenger may sue a shipowner for medical negligence if he can properly plead and prove detrimental, justifiable reliance on the apparent agency of a ship's medical staff-member." (160) Additionally, the court found that Franza had sufficiently alleged all of the elements of apparent agency to overcome Royal Caribbean's motion to dismiss. (161)
a. Actual vs. Apparent Agency
Before delving into the merits of Franza's complaint, the court explained the differences between actual and apparent agency. (162) The doctrine of apparent agency permits a plaintiff to sue a principal for the negligence of an independent contractor who reasonably appeared to be the principal's agent. (163) In contrast with actual agency, which arises from the principal's capacity to control the actions of its agent, apparent agency stems from equitable concerns. (164) Thus, under the theory of apparent agency, a principal may be held liable when his conduct could equitably prevent him from denying the presence of an agency relationship. (165)
The court noted that, because the question of apparent agency does not hinge upon the principal's actual control over the putative agent, the Barbetta rule is inapplicable to an apparent agency determination. (166) Due to the vast number of federal courts which have recognized a plaintiffs ability to sue a shipowner for the apparent authority of third parties, the court was inclined to find that the principles of apparent agency are applicable in the medical negligence context. (167) Put simply, the court determined that medical negligence triggers identical equitable concerns, regardless of whether the negligence arose on land or at sea, and should therefore be applied in this setting. (168)
b. The Doctrine of Apparent Agency Applied
After establishing that apparent agency theory is applicable in this case, the court noted that, like questions of actual agency, the applicability of apparent agency should be dictated by the facts presented. (169) Before the court examined the facts alleged in the complaint, however, it laid out the essential elements required to establish an apparent agency claim. (170) Apparent agency liability requires a finding that: (1) the principal made a representation to the plaintiff, which (2) caused the plaintiff to reasonably believe that the alleged agent was authorized to act for the principal's benefit, and (3) that the plaintiffs reasonable belief induced him to detrimentally and justifiably rely upon the appearance of the agency relationship. (171) Now, considering the factual allegations, the court concluded that Franza plausibly and adequately pled all three elements of apparent agency. (172)
Regarding the first element of apparent agency, the court observed that, according to the complaint, Royal Caribbean made several prominent representations to Mr. Vaglio. (173) Royal Caribbean promoted its medical staff and represented them as employees through its internet advertising, brochures, and aboard the vessel itself. (174) The cruise line also publicly described the medical centers in proprietary language and billed passengers directly for medical treatment aboard the vessel. (175) These facts, in addition to several others alleged, satisfied the court that Franza had met the requirements of the first element under an apparent agency theory. (176)
Under the second requirement of apparent agency, the court concluded that, based on the assertions in Franza's complaint, it was reasonable to assume Mr. Vaglio perceived Dr. Gonzales and nurse Garcia as authorized persons to render medical treatment for Royal Caribbean's benefit. (177) According to the complaint, the cruise line intended for passengers to view the ship's medical staff as the company's agents insofar as such employees are employed, at least in part, as a marketing device to induce potential passengers to buy cruise tickets. (178)
As to the third element of apparent agency, the Eleventh Circuit rejected the district court's dismissal of Franza's complaint because it failed to specify the manner in which Mr. Vaglio detrimentally relied on the supposed agency relationship. (179) Quoting from the complaint itself, the court reported that the pleadings used precisely the terms necessary to allege justifiable and detrimental reliance on Mr. Vaglio's part. (180) Further, the court emphasized the fact that the complaint precisely described how Mr. Vaglio detrimentally relied on the appearance of an agency relationship. (181) Therefore, at this early stage in the proceeding, the court viewed Franza's allegations as sufficiently plausible to sustain a claim under the theory of apparent agency, and reverse the district court's dismissal of the claim. (182)
IV. POTENTIAL MEASURES CRUISE LINES MAY TAKE IN ORDER TO EVADE FRANZA'S GRASP--A CHANGE OF VENUE?
One obvious question that necessarily arises in light of the Eleventh Circuit's holding in Franza is whether cruise lines, like Royal Caribbean, will alter the forum selection clauses within their ticket contracts. Currently, most North American cruise line passenger tickets contain a forum selection clause mandating that all suits brought against the cruise lines must be brought within the Eleventh Circuit. (183) To avoid future vicarious liability litigation from falling under the purview of the Franza rule, cruise lines could conceivably change their forum selection clauses to stipulate that suits be brought within another federal circuit.
Presently, the Barbetta rule appears to be the law in the Second, Fifth, and Ninth Circuits. (184) Given the fact that many cruise lines operate cruises from ports within each of these jurisdictions, it is not inconceivable that disputes arising from such voyages might be litigated in any of those jurisdictions. Before altering forum selection clauses to reflect such a change in venue, however, cruise lines will have to consider the economic and practical realities of doing so. The relevant considerations for cruise lines will be: (1) whether changing forums will result in unnecessary expenses; and (2) secondly, whether litigating in another circuit will be overly inconvenient.
When considering the economic implications of changing forums, a cost-benefit analysis will be useful. Following Franza, litigating in the Eleventh Circuit could result in large awards for plaintiffs if a great number of suits are brought under the theory of vicarious liability. As such, depending on the number and severity of the injury, cruise lines might actually save money by litigating in another circuit. On the other hand, if the number of vicarious liability suits brought against cruise lines is relatively negligible, it would not make economic sense to spend the money altering forum selection clauses and to litigate outside of the Eleventh Circuit.
Even assuming the best decision would be to switch venues, such a change would not guarantee cruise lines the ability to escape the grasp of vicarious liability. Given the sound legal and practical rationale of the Franza court's decision, it is likely that other circuits would quickly adopt its reasoning. As the Franza court put it, the Barbetta rule is "outdated" and "serves no useful purpose in modern maritime law." (185) Accordingly, the persuasive language of Franza could also induce other modern courts to push aside the Barbetta rule in favor of the more contemporary Franza rule, which adequately takes into account the realities of the modern world we live in today. In sum, only time will tell whether changing forum selection clauses will be the economically prudent path for cruise lines to pursue.
The second, and somewhat related, decision that cruise lines will likely face in the near future is whether litigating in another jurisdiction would be overly inconvenient. Should forum selection clauses be altered, cruise lines would be forced to facilitate the resolution of suits in the stipulated forum. This will necessitate the availability of witnesses, evidence, and corporate representatives in a geographic location far away from the cruise line's corporate headquarters. Such accommodations will not only be expensive, but they would also be very disruptive to the day-today business of the company. For example, high-ranking corporate officers who must be present at a trial on the west coast are effectively precluded from performing duties they might otherwise be able to fulfill if they were at, or near, the company's headquarters. Accordingly, while altering forum selection clauses seems like an effective solution to the problem, the reality is that such changes could produce more costs and inconveniences than benefits.
V. LOOKING FORWARD--POTENTIAL PROACTIVE MEASURES BY CRUISE LINES IN LIGHT OF FRANZA
One effort cruise lines could make in order to avoid vicarious liability claims for the medical negligence of its physicians would be to establish shore-based medical advisory centers. Such facilities could have doctors and other staff on call around the clock to help facilitate adequate and thorough medical care aboard the cruise line's vessels. That is, onboard medical personnel could communicate with a shore-side facility that employs physicians with specialty training and house more advanced and specialized medical equipment not practicably placed on every ship. This would result in a sort of centralized medical center, allowing onboard medical staff to obtain a second opinion and/or advanced medical review regarding any certain patient's condition, without having to have such specialized personnel and equipment aboard every vessel in the fleet. Although maintaining and staffing such medical centers would be costly, cruise lines may benefit in the long run by avoiding potential vicarious liability for medical malpractice claims by helping to insure the proper diagnosis and treatment of passengers while aboard.
A possibly prohibitive obstacle to the establishment of shore-side medical centers is the cost of implementing such a program, but modern cruise ships are already equipped with advanced communication technology. Accordingly, it is unlikely that the vessels themselves would have to undergo extensive modifications in order to be properly outfitted. There might, however, be considerable costs associated with the establishment of the shore-side facilities, such as properly maintaining and staffing them. As previously discussed, cruise lines will be faced with the decision of whether or not such expenses would justify the potential of avoiding liability.
The proposed solution of maintaining shore-side advisory medical centers could also be a double-edged sword. While they would serve as a prophylactic mechanism against medical malpractice suits, they would also provide a potential plaintiff with more ammunition for presenting a vicarious liability claim. If a cruise line chooses to exercise an additional level of control over its medical employees, and negligence still results, plaintiffs would have little trouble establishing a strong prima facie case under Franza's application of vicarious liability. As the Franza court stated, "control is the fulcrum of respondeat superior." (186) While a more thorough medical treatment protocol would help to provide proper treatment of passengers, it would also result in an unquestionable exercise of control over medical staff by the cruise line. Thus, it seems as though future plaintiffs would have little trouble pleading a strong prima facie case to support holding a cruise line vicariously liable.
VI. HOW FAR ON LAND WILL FRANZA EXTEND?
Another imminent question, which will undoubtedly be subject to litigation in the near future, is how far future courts will extend the holding of Franza to other areas of cruise ship disputes. For example, it is now conceivable that plaintiffs will seek to impute liability to cruise lines for the negligence of concessionaires and shore-side excursion operators. (187) The fact that many cruise lines endorse and hire such excursions and concessionaires for their passengers could be enough to hold cruise lines vicariously liable for the negligence of such operations, depending on the facts presented. (188) This possibility is especially compelling in light of the Franza holding, which requires courts faced with such claims to utilize a fact-based analysis, and carefully consider the nature of the relationship between the cruise line and the alleged agents. (189)
In addition, courts will be forced to determine whether the nature of the relationship between cruise lines and excursion operators or concessionaries satisfies the requisite level of control necessary to assign liability to the principal. As the Franza court repeatedly echoed, the facts of each individual case will determine whether claims of actual and/or apparent agency will be sustained. (190) Thus, if a passenger is negligently injured while participating in a shore-side excursion or by a concessionaire, courts may be inclined to impose liability against cruise lines if the basic elements of actual or apparent agency are met.
Moving forward into the post-Franza era, it can be definitively stated that, at least within the Eleventh Circuit, the Barbetta rule has been pushed to the wayside. With that said, it is clear that cruise lines will inevitably be exposed to vicarious liability claims for the medical negligence of onboard medical personnel in the near future. Additionally, cruise lines will likely be forced to navigate other vicarious liability claims arising under the new Franza framework. How cruise lines choose to deal with these future possibilities may vary. One thing is clear, however, cruise lines must take some sort of action to mitigate costs and potential litigation while maintaining the ability to provide their passengers with the high level of service many of them have come to expect.
Cruise lines can no longer find solace in their reliance on the obsolete Barbetta rule. As the Franza court put it, "the evolution of legal norms, the rise of a complex cruise industry, and the progression of modern technology have erased whatever utility the Barbetta rule once may have had." (191) As the cruise line industry moves forward, it will be interesting to see the ways in which the business and legal worlds interact as cruise lines, and their lawyers, attempt to remedy the predicament that the Franza holding has thrust them into.
The Eleventh Circuit's holding in Franza will undoubtedly have far-reaching and yet unforeseen ramifications. While Franza has not authoritatively extinguished the Barbetta rule, Franza is likely to become the new standard regarding cruise ship vicarious liability issues. More than anything else, however, the Franza holding represents the judicial recognition that the law must evolve in accordance with, and adapt to, the modern world.
(1.) Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225 (11th Cir. 2014).
(2.) Robert D. Peltz & Carol L. Finklehoffe, Time Has Passed Barbetta By: Washing Away Over 100 Years of Outdated Precedent, 89 Tul. L. Rev. 1207, 1208 (2015).
(3.) Peltz & Finklehoffe, supra note 2, at 1208.
(4.) Barbetta v. S/S Bermuda Star, 848 F.2d 1364, 1374 (5th Cir. 1988).
(5.) Peltz & Finklehoffe, supra note 2, at 1208.
(6.) Id. at 1221.
(7.) Barbetta, 848 F.2d at 1366.
(8.) Id. at 1366.
(10.) Barbetta v. S/S Bermuda Star, 848 F.2d 1364, 1366 (5th Cir. 1988).
(12.) Id. at 1365-66.
(13.) Id. at 1366.
(14.) Id. at 1369.
(15.) Id. at 1369-70.
(16.) Id. at 1371. Each "pillar" of the Barbetta rule was addressed in detail by the Franza court and will be discussed thoroughly in Section III.
(17.) Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225 (11th Cir. 2014).
(18.) Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1254 (11th Cir. 2014).
(20.) Barbetta v. S/S Bermuda Star, 848 F.2d 1364 (5th Cir. 1988).
(21.) Id. at 1374.
(22.) Franza, 772 F.3d at 1228.
(24.) Id. at 1228-29.
(25.) Id. at 1229.
(28.) Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1229 (11th Cir. 2014).
(34.) Id. at 1230.
(40.) Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1230 (11th Cir. 2014).
(43.) Id. at 1230-31.
(44.) Id. at 1231.
(46.) Id. at 1233-35.
(47.) Id. at 1235.
(48.) Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1235 (11th Cir. 2014). "[G]eneral maritime law does not impose liability under the doctrine of respondeat superior upon a carrier or ship owner for the negligence of a ship's doctor who treats the ship's passengers." Barbetta v. SIS Bermuda Star, 848 F.2d 1364, 1372 (5th Cir. 1988). In Franza, the Eleventh Circuit found the Barbetta holding troubling stating, "In effect, these cases stand for the sweeping proposition that no conceivable set of facts could ever justify holding a shipowner vicariously liable when a passenger receives negligent medical care aboard its ship. We remain unpersuaded." Franza, 772 F.3d at 1235.
(49.) Id. at 1235-36.
(50.) Id. at 1236.
(52.) Id. (stating that the elements of agency require: "(1) the principal to acknowledge that the agent will act for it; (2) the agent to manifest an acceptance of the undertaking; and (3) control by the principal over the actions of the agent.").
(56.) Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1236 (11th Cir. 2014).
(59.) Franza, 772 F.3d at 1236.
(60.) Id. at 1236-37.
(61.) Id. at 1237.
(63.) Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1237 (11th Cir. 2014).
(66.) Id. (quoting Langfitt v. Fed. Marine Terminals, Inc., 647 F.3d 1116, 1121 (11th Cir. 2011)).
(69.) Id. at 1237.
(70.) Id. (citing Langfitt, 647 F.3d at 1121).
(72.) Id. (citing Robert D. Peltz, Has Time Passed Barbetta by?, 24 U.S.F. Mar. L.J. 1, 31 (2012)).
(73.) Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1237 (11th Cir. 2014).
(74.) Id. at 1237-38.
(75.) Id. at 1238.
(76.) Id. (citing Bickley v. Caremark Rx, Inc., 461 F.3d 1325, 1329 n. 7 (11th Cir. 2006); Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002); Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007)).
(77.) Id. (citing Cantor v. Cochran, 184 So.2d 173, 174 (Fla. 1966)).
(81.) Id. at 1239.
(82.) Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1239 (11th Cir. 2014).
(86.) Id. (quoting Barbetta v. S/S Bermuda Star, 848 F.2d 1364, 1369 (5th Cir. 1988)).
(87.) Id. at 1239-41 (quoting Barbetta, 848 F.2d at 1369).
(88.) Id. at 1240.
(89.) Id. (citing Restatement (Second) of Agency [section] 220 cmt. a (Am. Law Inst. 1958)).
(90.) Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1240 (11th Cir. 2014).
(91.) Id. (citing McDonald v. Hampton Training Sch. for Nurses, 486 S.E.2d 299, 303 (Va. 2007)).
(92.) Id. (citing Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d 842, 854 (Fla. 2003)).
(93.) Id. (citing Arango v. Reyka, 507 So. 2d 1211, 1214 (Fla. Dist. Ct. App. 1987)).
(95.) Id. at 1240-41 (quoting Harris v. Miller, 438 S.E.2d 731, 737 (N.C. 1994)).
(96.) Id. at 1241 (citing Univ. of Ala. Health Servs. Found., P.C. v. Bush ex rel. Bush, 638 So. 2d 794, 799 (Ala. 1994); Villazon, 843 So. 2d at 854-55; Allrid v. Emory Univ., 285 S.E.2d 521, 525-26 (Ga. 1982); Eads v. Borman, 277 P.3d 503, 511 (Or. 2012)).
(99.) Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1241 (11th Cir. 2014).
(100.) Id. (quoting Barbetta v. S/S Bermuda Star, 848 F.2d 1364, 1369 (5th Cir. 1988)).
(101.) Id. at 1241-42 (citing Barbetta, 848 F.2d at 1369).
(102.) Id. at 1242 (citing Barbetta, 848 F.2d at 1369).
(104.) Id. at 1242.
(106.) Id. (citing Fairley v. Royal Cruise Line Ltd., 1993 A.M.C. 1633, 1638 (S.D. Fla. 1993); Carlisle v. Carnival Corp., 864 So. 2d 1, 5 (Fla. Dist. App. Ct. 2003)).
(108.) Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1242 (11th Cir. 2014).
(110.) Id. at 1242-43 (citing Johns v. Jarrard, 927 F.2d 551, 556 (11th Cir. 1991)).
(111.) Id. at 1243 (citing Harris v. Miller, 438 S.E.2d 731, 737 (N.C. 1994); Hodges v. Doctors Hosp., 234 S.E.2d 116, 118 (Ga. Ct. App. 1977); Newton Cnty. Hosp. v. Nickolson, 207 S.E.2d 659, 661-63 (Ga. Ct. App. 1974).
(112.) Id. (citing Harris, 438 S.E.2d at 737; Hodges, 234 S.E.2d at 118; Newton Cnty. Hosp., 207 S.E.2d at 661-63).
(117.) Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1243 (11th Cir. 2014) (quoting Barbetta v. S/S Bermuda Star, 848 F.2d 1364, 1369 (5th Cir. 1988)).
(118.) Id. (citing Barbetta, 848 F.2d at 1369).
(124.) Id. (citing Bing v. Thunig, 143 N.E.2d 3, 6 (N.Y. 1957)).
(125.) Id. at 1244.
(126.) Id. (citing Meyer v. Holley, 537 U.S. 280, 285 (2003)).
(127.) Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1244 (11th Cir. 2014) (citing Rannard v. Lockheed Aircraft Corp., 157 P.2d 1, 1 (Cal. 1945); Chi. Rock Island & Pac. Ry. Co. v. Britt, 74 S.W.2d 398, 403 (Ark. 1934); Jones v. Tri-State Telephone & Telegraph Co., 136 N.W. 741, 741-42 (Minn. 1912); Mrachek v. Sunshine Biscuit, Inc., 283 A.D. 105, 105 (1953); Ebert v. Emerson Elec. Mfg. Co., 264 S.W. 453, 458 (Mo. Ct. App. 1924)).
(129.) Id. at 1244-45.
(130.) Id. at 1245; see Klienknecht v. Gettysburg College, 989 F.2d 1360, 137475 (3d Cir. 1993); see also Santiago v. Archer, 524 N.Y.S.2d 106 (N.Y. App. Div. 1988).
(131.) Franza, 772 F.3d at 1245; see Emory Univ. v. Porubiansky, 282 S.E.2d 903, 903-04 (1981).
(132.) Franza, 772 F.3d at 1245.
(135.) Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1246 (11th Cir. 2014).
(136.) Id. (citing Muratore v. M/S Scotia Prince, 845 F.2d 347, 349-50 (1st Cir. 1988)).
(141.) Id.; see Nietes v. Am. President Lines Ltd., 188 F. Supp. 219, 221 (N.D. Cal. 1959).
(142.) Franza, 772 F.3d at 1246-47.
(143.) Id. at 1247.
(144.) Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1247 (11th Cir. 2014).
(148.) Id. at 1247-48.
(149.) Id. at 1248.
(150.) Id. (referencing RESTATEMENT (SECOND) OF AGENCY [section] 220 cmt. d (Am. Law Inst.1958) (emphasis in original)).
(152.) Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1248 (11th Cir. 2014).
(158.) Id. at 1249.
(162.) Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1249 (11th Cir. 2014).
(163.) Id. at 1249-50.
(166.) Id. at 1250.
(167.) Id. at 1250-51.
(168.) Id. at 1251.
(169.) Id. at 1251-52.
(170.) Id. at 1252.
(171.) Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1252 (11th Cir. 2014).
(176.) Id. (The court also emphasized the facts that Royal Caribbean required the medical staff to wear cruise line uniforms, held out Dr. Gonzales and nurse Garcia to be members of the ship's crew to passengers and immigration officials, and introduced Dr. Gonzales to the passengers as an officer of the ship).
(179.) Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1252 (11th Cir. 2014).
(180.) Id. (The complaint reads, "[Vaglio] relied to his detriment on his behalf that the physician and nurse were direct employees or actual agents of [Royal Caribbean] in that [Vaglio] followed the advice of the nurse and/or physician who did not seek any further medical testing or evaluation while the ship was in Bermuda, that he relied on the ship's nurse and/or physician, [and] that he did not follow-up with the ship's medical staff as he was told that he did not have any serious injury.").
(181.) Id. at 1253.
(183.) Peltz & Finklehoffe, supra note 2, at n. 7.
(184.) See Franza, 772 F.3d at 1235.
(185.) Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1248 (11th Cir. 2014).
(186.) Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1236 (11th Cir. 2014).
(187.) Peltz & Finklehoffe, supra note 2, at 1241.
(188.) Id. at 1237.
(189.) Id. at 1237.
(190.) See Franza, 772 F.3d at 1235-36 (stating that, "... absent any statutory mandate to the contrary, the existence of an agency relationship is a question of fact under the general maritime law."), at 1236 (observing that, "the facts alleged in Franza's complaint plausibly demonstrate that Royal Caribbean exercised 'control' over the ship's medical personnel.") (emphasis added), at 1241 (stating that, "[t]he application of the doctrine is plainly fact-specific, and no brightline rule could fit every circumstance."), at 1243 (reiterating that, "... agency is a question of fact, and we see no sound reason for refusing to apply its principles in this context."), at 1248 (stating, "[a]gain, the facts are everything"), at 1251-52 (stating that, "[u]nder the doctrine of apparent agency, just as in the case of actual agency, vicarious liability turns on the facts presented.").
(191.) Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1228 (11th Cir. 2014).
Michael T. Amy, LL.M. in Admiralty, with Distinction, 2015, Tulane University Law School; J.D. 2014, Loyola University New Orleans College of Law; B.S., Management, 2011, Louisiana State University. The Author would like to acknowledge and thank Professor Martin J. Davies of Tulane University Law School, under whose guidance this article was written.
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|Author:||Amy, Michael T.|
|Publication:||Loyola Maritime Law Journal|
|Date:||Jan 1, 2016|
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