Barbetta v. S/S Bermuda Star

• Decision Date: 29 June 1988
• Docket Number: No. 87-3478,87-3478
• Citation: 848 F.2d 1364
• Parties: Florence L. BARBETTA, and James D. Barbetta, Plaintiffs-Appellants, v. S/S BERMUDA STAR, in rem, her engines, tackle, and machinery, Etc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1364

848 F.2d 1364

1988 A.M.C. 2650

Florence L. BARBETTA, and James D. Barbetta, Plaintiffs-Appellants, v. S/S BERMUDA STAR, in rem, her engines, tackle, and machinery, Etc., et al., Defendants-Appellees.

No. 87-3478.

United States Court of Appeals, Fifth Circuit.

June 29, 1988.

Modified on Rehearing Aug. 18, 1988.

Timothy W. Crooks, Maria I. O'Byrne Stephenson, New Orleans, La., for plaintiffs-appellants.

Thomas J. Wagner, R. Christopher Martin, Wagner & Bagot, New Orleans, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before TIMBERS ^*, KING and HIGGINBOTHAM, Circuit Judges.

KING, Circuit Judge:

Plaintiffs, a married couple who booked a cruise to Mexico in 1986, sued the ship on which they sailed because the ship's doctor, when treating the wife during the cruise, failed to discover that the wife had diabetes. Defendant moved for summary judgment and, after a hearing and time for discovery, the district court granted defendant's motion. According to the district court, to the extent plaintiffs were attempting to impose respondeat superior liability upon defendant, their claim had to fail; as a matter of law, the negligence of the ship's doctor could not be imputed to the ship that hired him. And while the ship could be liable, the court conceded, if it negligently hired an incompetent doctor, the evidence in the record did not raise a fact question on that issue. Having now appealed the district court's decision, plaintiffs ask us to reject both reasons which led that court to its conclusion that summary judgment was appropriate. We, however, are convinced that the district court's conclusions were correct. Therefore, we affirm.

I.

On July 21, 1986, Florence L. Barbetta and James D. Barbetta filed suit in the United States District Court for the Eastern District of Louisiana against the S.S. Bermuda Star ("the Star"), the Star's owner ("Billinghurst"), and the company which chartered and operated the Star from January 25, 1986 until January 31, 1986 ("Bahama Cruise"). In their complaint, the Barbettas alleged that they were ticketed passengers on the Star during a cruise which departed from New Orleans, Louisiana on January 25 and sailed to Key West, Florida, Cozumel, Mexico, and Playa del Carmen, Mexico. Shortly after the cruise began, however, Mrs. Barbetta began to feel ill. On January 26, she consulted the ship's doctor ("the doctor") who treated her until January 31. During the five-day period in which the doctor attended her, the Barbettas alleged, Mrs. Barbetta's condition deteriorated--she developed a severe case of pneumonia, lapsed into a coma, and finally had to be removed from the ship and taken to West Jefferson Hospital for treatment. Both the pneumonia and coma, the Barbettas claimed, were caused by the doctor's failure to properly treat Mrs. Barbetta; unbeknownst to Mrs. Barbetta, the Barbettas alleged, at the time Mrs. Barbetta first sought treatment from the doctor, she was suffering from diabetes--a condition which the doctor never diagnosed. Because of the doctor's "malpractice, neglect, carelessness, and negligence" in treating Mrs. Barbetta, the Barbettas continued, Mrs. Barbetta incurred damages of $700,000 (including medical treatment, pain and suffering, and lost wages) and Mr. Barbetta incurred damages of $300,000 (including loss of consortium and loss of service, society, and support). Defendants were responsible for these damages, the Barbettas concluded, because they failed to assure that the Star was properly staffed with competent medical personnel. In addition, the Barbettas argued, the doctor's negligence was committed during the course and scope of his employment with Bahama Cruise; therefore, Bahama Cruise was also vicariously liable for the doctor's negligence under the doctrine of respondeat superior.

On October 21, Bahama Cruise and Billinghurst ("defendants") answered the Barbettas' complaint by denying liability and asserting several affirmative defenses. Four months later, defendants filed their motion for summary judgment. In it, defendants argued that under general maritime principles, defendants could not be held liable for the alleged malpractice of the shipboard physician. In addition, defendants argued that by purchasing their cruise tickets, the Barbettas entered into a ticket contract with defendants which was controlled by the terms set out in the ticket. One of those terms, defendants pointed out, specifically noted that any physician provided by defendants was

solely for the convenience of the Passenger and services rendered by [the physician] to the Passenger are at the latter's expense. Any such person in dealing with, giving service to, treating or operating upon a Passenger is not the servant or agent of the Carrier, and the Carrier shall not be liable for any omission, negligence or damage done by such person.

Because of this contractual disclaimer--which, defendants argued, is "entirely consistent with general maritime principles"--defendants could not be held responsible for the doctor's negligence. Defendants attached to their motion for summary judgment the affidavit of Julio Del Valle, the president of Bahama Cruise, who confirmed that the doctor was employed as an "independent medical expert[ ]" and that he was not a servant or agent of Bahama Cruise. Attached to Del Valle's affidavit were copies of the resume, references, and other documentation which the doctor had provided Bahama Cruise prior to serving as the Star's physician. On March 2, 1987, the Barbettas responded to defendants' motion. In their response, the Barbettas disputed defendants' argument that general principles of maritime law do not support holding the defendants responsible for the doctor's negligence. The Barbettas also denied that the ticket contract disclaimer to which defendants pointed protected defendants from liability--in this particular case, the Barbettas argued, the employment contract between the doctor and Bahama Cruise showed that, despite the ticket's language, the doctor actually was a "servant or agent" of Bahama Cruise; therefore, because the ticket provision indicated to the contrary, that provision never came into play.

On March 11, 1987, the district court held a hearing at which it ruled on defendants' motion. The court began its discussion of the merits of defendants' motion by noting that neither the Supreme Court nor this circuit has spoken on the issue of whether a shipping company is liable under the doctrine of respondeat superior when the ship's doctor negligently treats a passenger. Several district courts in other jurisdictions, however, have examined the issue and have determined that liability will not lie; the court admitted, however, that one court has held otherwise and, therefore, concluded that--when no disclaimer provision is involved--the general maritime law offers no completely consistent answer. But in this case, the court explained, the defendants intended to limit their liability for the doctor's negligence by including the disclaimer provision in the ticket contract. And even though the provision stated that the doctor was not a "servant or agent" of the carrier, the obvious intent of the clause was to limit defendants' liability regardless of whether the doctor was actually, for other purposes, classified as an independent contractor or an employee. Therefore, the court concluded, the only real question was whether the defendants' attempt to contractually limit their liability in this way was against public policy. In a normal, non-admiralty situation, the court conceded, public policy would nullify the clause defendants included. But the admiralty context, the court concluded, is sufficiently different to change the result here. As the court explained:

[W]hether the doctor is an employee or not, a vessel ought to be able to contract in this context, whereas a typical employer could not because of the unusual nature of the voyage, because of the unusual nature of admiralty, and because I think that it is in the best interest of passengers generally for there to be physicians aboard vessels, and that vessel owners are going to be more likely to have physicians aboard if they can have a contract with the passenger.

Consequently, the court found that defendants' liability could not, in this case, be premised on the doctrine of respondeat superior. The court also pointed out, however, that the defendants had, in their motion, completely ignored the assertion, made in the Barbettas' complaint, that defendants were responsible for the Barbettas' damages because defendants negligently hired an incompetent physician for the Star. The defendants acknowledged that they had not covered the negligent hiring argument in their motion and that summary judgment on that point would be premature; for their part, the Barbettas indicated that they wanted to pursue that issue, although they acknowledged that they had not, to date, done so. Because of the unresolved issue, the district court continued its ruling on the motion for ninety days; according to the court, the continuance was specifically designed to permit the Barbettas time in which to gather evidence to raise a fact issue on the negligent hiring claim. The court and the parties agreed to meet again in June to finally resolve defendants' motion.

On June 18, 1987, the Barbettas filed a new memorandum which addressed the negligent hiring argument. From defendants' responses to interrogatories, the Barbettas had learned the details surrounding the doctor's hiring: they learned that Bahama Cruise asked Pacific Asia Overseas Corporation ("PASCOR") to find a doctor for the Star, that PASCOR provided the doctor who treated Mrs. Barbetta, and that Bahama Cruise hired the doctor after reviewing his qualifications. From defendants' response to a request for document production, the Barbettas learned the...