The case of Carlisle v Carnival Cruise Lines was discussed in an earlier website article: U.S. - Medical Malpractise Law. At that stage, the 3rd District Court of Appeal had held that, in essence, a ship’s doctor is held out as the agent of the owner and the owner can be held liable for his acts. The Florida Supreme Court then reversed that decision on the basis that it went against previous authority. In so ruling the Court recognised the “uniform federal position on the issue” which holds that:
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.
This majority rule comes from Barbetta v S/S Bermuda Star, which provided two policy reasons for its holding:
1. the doctor-patient relationship is under the control of the patient, not the ship’s owner: “The master or owners of the ship cannot interfere in the treatment of the medical officer when he attends a passenger”; and
2. “a shipping company is not in the business of providing medical services to passengers; it does not possess the expertise requisite to supervise a physician or surgeon carried on board a ship as a convenience to passengers.”
Notwithstanding the rule in Barbetta, a number of federal district courts have held that it is possible for cruise lines to be held liable for a shipboard physician’s negligence under the theory of apparent agency. Apparent agency can be established despite the majority ruling of Barbetta.
There are three elements that must be established in order to prevail under a theory of apparent agency:
1. the principal must make “some sort of manifestation causing a third party [the passenger plaintiff] to believe that the alleged agent [the doctor] had authority to act for the benefit of the principal”;
2. the passenger’s belief must have been reasonable;
3. the passenger must have reasonably relied upon that belief to his or her detriment.
The first two elements, related to the plaintiff’s reasonable belief, are generally evaluated by a court simultaneously. These requirements are not satisfied simply by showing that the cruise line advertised the presence of a shipboard doctor. Instead, in order to establish that the cruise line “held out” the doctor as its agent, a plaintiff must prove “additional affirmative acts taken by the cruise line.”
In practice, courts have been unwilling to allow recovery based on a theory of apparent agency in admiralty cases. In Warren v Ajax Navigation Corp, 1995 AMC 2609, 2612-13(S.D. Fla. 1995) the district court granted the defendant’s motion for summary judgment after finding that the plaintiff’s belief in an agency relationship between the cruise line and the doctor was unreasonable in light of the “well settled” nature of Barbetta’s rule. The court stated:
“Despite this clear rule of law, plaintiff claims he nevertheless ‘reasonably’ believed that as the ship physician, Dr. Nodarse was defendants’ agent. Plaintiff’s belief may have been ‘honest,’ however, in view of the established law on this point, it was not reasonable.”
Put another way, Barbetta’s firm holding that a ship’s owner is not generally liable for a shipboard physician’s negligence means that a plaintiff faces a high evidentiary burden in proving the existence of a reasonable belief sufficient to establish the first two elements of apparent agency.
In Warren, the court found that publishing a brochure stating that a doctor would be aboard the cruise ship “did not constitute a true ‘holding out’ or manifestation that agency existed.” Also, because a plaintiff must demonstrate affirmative acts, it is not sufficient to claim that no member of ship personnel advised the plaintiff that “the ship was not responsible for the medical care” provided by the shipboard doctors.
As far as the third element is concerned a plaintiff could argue that he changed his position to his detriment once on board the vessel based upon some manifestation of agency by the shipowner. For example, they may try to argue that they submitted themselves to the ship's physician's care, rather than seeking care in a port of call, because the shipowner affirmatively held the ship's physician out to be its agent and that, as a result, they suffered a loss.
The case law is not well developed in this area and there are very few cases which factually analyse what is sufficient to establish apparent agency. Yet, despite the recent Supreme Court ruling in Carlisle and the heavy burden of proof, it is fairly certain that plaintiffs will nonetheless continue to argue the case for apparent agency.
