Morton v. De Oliveira

• Decision Date: 19 January 1993
• Docket Number: No. 91-55125,91-55125
• Parties: Susan MORTON; William Morton, Plaintiffs-Appellants, v. Joaquin Martins DE OLIVEIRA, and Carnival Cruise Lines, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 289

984 F.2d 289

1993 A.M.C. 843

Susan MORTON; William Morton, Plaintiffs-Appellants, v. Joaquin Martins DE OLIVEIRA, and Carnival Cruise Lines, Inc., Defendants-Appellees.

No. 91-55125.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 6, 1992.

Decided Jan. 19, 1993.

John N. Connell, Anderson & Connell, Bellingham, WA, for plaintiffs-appellants.

William L. Robinson, Lillick & Charles, Long Beach, CA, for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before: BRUNETTI, O'SCANNLAIN, and T.G. NELSON, Circuit Judges.

BRUNETTI, Circuit Judge:

This admiralty case arises from an alleged rape on board a cruise liner. We must decide whether the Supreme Court has implicitly overruled this circuit's law that a ship owner is absolutely liable for a crew member's assault on a passenger.

I

Plaintiffs Susan and William Morton paid to take a cruise in 1989 on the M/V Carnivale, a ship owned and operated by Carnival Cruise Lines, Inc. Crew member Joaquin De Oliveira served as their regular dining room waiter.

One evening, while William Morton was at the ship's casino, Susan Morton was alone in their cabin when, according to her account, De Oliveira appeared at her door with a bottle of wine and two glasses and said he thought the Mortons would like to sample some.

Susan asked him in and they exchanged pleasantries and each had a glass of wine. According to Susan, she began to feel dizzy. She asked De Oliveira to get her husband, but instead De Oliveira pushed her on the bed and raped her. She did not tell her husband immediately about the attack nor did she report it to authorities aboard the ship.

De Oliveira, who no longer works for Carnival and apparently cannot be located, made a statement to a Carnival security official in which he denied raping Susan Morton. He claimed in essence that he was delivering a container of milk when she invited him inside for some wine and then attempted to seduce him. He denied having intercourse with her. Several weeks after the cruise ended, according to her deposition, Susan Morton told her husband she had been assaulted by De Oliveira during the cruise.

The Mortons sued De Oliveira and Carnival Cruise Lines. After a period of discovery, the Mortons conceded that they would be unable to show any negligence by Carnival in hiring or supervising De Oliveira. Instead, their complaint rested on a theory of a ship owner's absolute liability for assaults on passengers by its crew members.

The district judge determined that "those cases relied upon by the plaintiffs in support of a strict liability standard have been superseded or over-ruled" by Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959), overruled on other grounds, 398 U.S. 375 (1970). The district judge concluded: "Therefore, a negligence standard of reasonable care under the circumstances is to be applied in determining the liability, if any, of Carnival Cruise Lines, Inc., in this case." Because the Mortons could present no evidence of any negligence by Carnival, the district judge granted summary judgment for Carnival. The Mortons now appeal.

II

We review summary judgments and questions of law de novo. See Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 496 U.S. 937, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). The parties agree that general maritime law applies. The Mortons claim that the district court erred in concluding that Carnival was not absolutely liable for an assault by a crew member. The Mortons contend that they should be allowed to proceed to trial.

We begin by examining the Ninth Circuit case on point. In Pacific S.S. Co. v. Sutton, 7 F.2d 579 (9th Cir.1925), cert. denied, 269 U.S. 586, 46 S.Ct. 202, 70 L.Ed. 425 (1926), a teenage girl sued a ship owner alleging that two crew members assaulted her during a voyage. She received a judgment against the ship owner and the ship owner appealed.

The court first noted the carrier-passenger relationship and its consequences:

[B]y the sale of the ticket there arose a contractual relationship between the company and the passenger, to which relationship the law by its own force annexed certain implied obligations and duties to be observed and performed by the parties, respectively, toward each other. The 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.

7 F.2d at 580. The court then reviewed several authorities outlining the duties of a carrier before quoting the Washington Supreme Court Appellant by the act of employment vouched for his 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 that the servant acted outside the scope of his employment.

Id. (quoting Marks v. Alaska S.S. Co., 71 Wash. 167, 127 P. 1101 (1912)) (emphasis added; omission in original). This court then concluded: "It therefore follows that the court was right in treating the case as in contract, controlled by the general principles stated." Id. In the present case, there is no dispute that a carrier-passenger relationship existed between Carnival and Susan Morton. Under Pacific, then, Morton would be entitled to recover from Carnival simply by showing that the assault was committed by the crew member during the voyage.

Carnival, however, contends that the Supreme Court implicitly overruled Pacific in Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). In Kermarec, a visitor aboard a ship suffered injury as a result of the ship owner's negligence. The district judge instructed the jury that because the visitor was a licensee, the ship owner could be liable only if it actually knew of the hazardous condition and failed to warn the visitor of the hazard.

The Supreme Court stated the issue as "whether admiralty recognizes the same distinctions between an invitee and a licensee as does the common law." Id. at 630, 79 S.Ct. at 409. The Court found no such distinctions in maritime law: "We hold 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, 79 S.Ct. at 410.

In isolation, this statement might support Carnival's contention and the district court's conclusion. But read in the context of the entire opinion, it does not necessarily reject the principle that a ship owner is absolutely liable for its crew members' assaults upon passengers.

In deciding Kermarec, the Court first noted that it "must be decided in the performance of the Court's function in declaring the general maritime law, free from inappropriate common-law concepts." Id. at 630, 79 S.Ct. at 409. The Court then focused on why the common law concept of the invitee/licensee distinction is inappropriate in admiralty law: "The distinctions which the common law draws between licensee and invitee were inherited from a culture deeply rooted to the land, a culture which traced many of its standards to a heritage of feudalism." Id.

The Court found that such distinctions "originated under a legal system in which status depended almost...