DeRoche v. Commodore Cruise Line, Ltd.

• Decision Date: 24 June 1994
• Citation: 31 Cal.Rptr.2d 278,26 Cal.App.4th 103
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 26 Cal.App.4th 103 26 Cal.App.4th 103, 1994 A.M.C. 2347 James H. DeROCHE, Plaintiff and Appellant, v. COMMODORE CRUISE LINE, LTD., et al., Defendants and Respondents. A061613.

Page 278

31 Cal.Rptr.2d 278

Previously published at 26 Cal.App.4th 103

26 Cal.App.4th 103, 1994 A.M.C. 2347

James H. DeROCHE, Plaintiff and Appellant, v. COMMODORE CRUISE LINE, LTD., et al., Defendants and Respondents.

A061613.

Court of Appeal, First District, Division 1, California.

June 24, 1994.

Review Granted Sept. 15, 1994.

Review Dismissed and Cause Remanded to the Court of Appeal April 20, 1995.

Richard C. Harper, Oakland, for appellant.

Vogl & Meredith, David R. Vogl, Andrew J. Oglvie, San Francisco, for respondents.

STEIN, Associate Justice.

James H. DeRoche, a San Francisco resident, filed a complaint against Commodore Cruise Line, Ltd. (Commodore) and International Marketing Systems, Inc. (IMS). He appeals from the judgment entered upon the order sustaining the demurrer of each defendant to the complaint without leave to amend, and from the order denying his subsequent motion for reconsideration. We will affirm. ¹

Facts

We state the facts as they appear in DeRoche's second amended complaint, accepting them, and any facts arising by reasonable implication therefrom, as true. (Schwartz v. Regents of University of California (1990) 226 Cal.App.3d 149, 153, 276 Cal.Rptr. 470.) Commodore owns a number of cruise ships, including one known as the Caribe. IMS is a travel agent for Commodore. IMS issued DeRoche a ticket for a cruise on the Caribe, which cruise included a planned stop at Cozumel. DeRoche took the cruise, and disembarked at Cozumel where he rented a motor scooter which he used to explore the area. Late in the evening, DeRoche was injured when the motor scooter crashed after striking a pot hole. Chief among his injuries was a compound fracture of his right leg. DeRoche was given first aid at a small, local clinic, and then transferred to a larger clinic. In the meantime, one of DeRoche's companions contacted the crew of the Caribe, but the crew took no action. The following morning one of DeRoche's companions returned to the ship for the purpose of seeking the aid of the ship's doctor, Stanley Grabowski. Dr. Grabowski, apparently with reluctance, accompanied the companion to the Cozumel medical clinic. Once there he performed no independent examination but, upon being informed that DeRoche's injuries were life threatening, recommended that he undergo certain surgery proposed by the Cozumel clinic. Dr. Grabowski returned to the ship, and later that day the ship left Cozumel, leaving DeRoche behind. DeRoche underwent the surgery which, he alleges, was substandard. He remained in the Cozumel clinic for eight days, finally returning, with difficulty, to San Francisco on February 9. He has since undergone two surgical procedures, which he claims were made necessary by the substandard care in Cozumel. He further alleges that he will suffer the negative effects of that care for the rest of his life.

DeRoche filed suit against Commodore, and against its travel agent, IMS, on the theory that they had breached their duties to:

(a) respond to the information that DeRoche was injured and in need of medical assistance;

(b) maintain and provide adequate emergency medical facilities to treat foreseeable injuries, such as those suffered by DeRoche;

(c) provide medical facilities and treatment which DeRoche was entitled to expect and which they should have known would not be available on Cozumel;

(d) warn DeRoche of dangers and hazards, and of the lack of adequate medical facilities on the cruise; and

(e) otherwise exercise due care towards him.

Discussion

The question on review from an order sustaining a demurrer without leave to amend is whether the complaint, liberally construed, can state a cause of action under any theory, or if there is a reasonable possibility the defect in the complaint can be cured by amendment. (Heckendorn v. City of San Marino (1986) 42 Cal.3d 481, 486, 229 Cal.Rptr. 324, 723 P.2d 64; Schwartz v. Regents of University of California, supra, 226 Cal.App.3d at p. 153, 276 Cal.Rptr. 470.) The question here, then, is whether DeRoche's complaint has, or might, state a cause of action against Commodore and/or IMS for breach of some duty of care.

The duty of care of the owner of an excursion ship is a matter of federal maritime law. (Nash v. Fifth Amendment (1991) 228 Cal.App.3d 1106, 1112, fn. 5, 279 Cal.Rptr. 465; and see Rainey v. Paquet Cruises, Inc. (2d Cir.1983) 709 F.2d 169, 172 and Gibboney v. Wright (5th Cir.1975) 517 F.2d 1054, 1059.) That duty is to exercise reasonable care under the circumstances. (Kermarec v. Compagnie Generale (1959) 358 U.S. 625, 630, 79 S.Ct. 406, 409, 3 L.Ed.2d 550; Nash, supra, 228 Cal.App.3d at p. 1112, 279 Cal.Rptr. 465.) The amount of care required naturally will vary with the circumstances; in some situations a high degree of care will be required, in others it may be something less. (Rainey, supra, at pp. 170-171.) The circumstances existent in the instant case were that DeRoche was not on the Caribe when he was injured, and was not injured by any instrumentality on, or of, that vessel. He was injured on land. He was riding a motor scooter which did not belong to Commodore. At the time he was injured he was not being guided by any Commodore employee or otherwise in the specific care of the ship operator. DeRoche nonetheless contends, in essence, that his relationship with Commodore obligated the ship operator to furnish him with medical treatment or to at least aid him in obtaining medical treatment at some place other than the "primitive" facilities on Cozumel. He argues that Dr. Grabowski acted negligently in refusing to treat or examine him and in failing to inform him that the Cozumel facilities were substandard; and that Commodore should be held vicariously liable for Dr. Grabowski's malpractice. He contends that Commodore's duty of care required it to warn him that the ship's doctor might not be able, or might simply refuse, to treat him for serious injuries and that he might be left in the care of local physicians. Finally, he theorizes that IMS, as a travel agent, had a similar duty to disclose the "hazard" of substandard medical care on Cozumel and to warn him that should he be injured, he would not be aided by the crew or physician of the Caribe. ² Although we sympathize with what must have been DeRoche's feelings when he learned that he was to be left on Cozumel, more or less to fend for himself, we cannot find in the circumstances or the law any obligation by Commodore to do more.

It is settled that a shipowner ordinarily has no duty to insure the health or safety of its passengers. (Kornberg v. Carnival Cruise Lines, Inc. (11th Cir.1984) 741 F.2d 1332, 1334; Marshall v. Westfal-Larsen & Co. (9th Cir.1958) 259 F.2d 575, 577.) An operator is required to use reasonable care to furnish such aid and assistance as an ordinarily prudent person would render under similar circumstances. There is no obligation that a ship carry a doctor (Barbetta v. S/S Bermuda Star, (5th Cir.1988) 848 F.2d 1364, 1371); however, a ship operator owes a passenger, injured on board, the reasonable care an ordinary person would bestow upon the passenger under the circumstances. (Barbetta, supra, at p. 1371; Northern Commercial Co. v. Nestor (9th Cir.1905) 138 Fed. 383, 387.) It has been held that, at least where there is no ship's physician, a ship operator is required, upon request, to obtain a shoreside doctor for an injured passenger upon reaching port. (Boston & Yarmouth S.S. Co. v. Francis (1st Cir.1918) 249 Fed. 450, 452.) We are unaware of any authority requiring a shipowner to ensure that a passenger, injured during a shore excursion, obtain better care than might be obtained locally, or indeed, obtain any care at all. To the contrary, it has been held that a shipowner incurs no liability because it declines to provide medical treatment to a passenger injured during a shore excursion, but leaves the passenger in the care of a local facility. (Metzger, et al. v. Italian Line, 1976 A.M.C. 453, 454-455 (S.D.N.Y.), aff'd. (2d Cir.1975) 535 F.2d 1242.) DeRoche was not in Commodore's care when he was injured. We therefore conclude that, absent some special circumstance, Commodore breached no duty owed to DeRoche by failing to obtain medical treatment for him, or by failing to aid him to obtain better care than that afforded him at the Cozumel facility.

In addition, it has been held that a passenger may not seek compensation from a ship operator for the negligent treatment or advice of the ship's physician; the only negligence which may be imputed to the operator is negligence in the selection of the physician. (Barbetta v. S/S Bermuda Star, supra, 848 F.2d at p. 1369, and see cases cited there.) It is true, as DeRoche points out, that a contrary conclusion was reached by the court in Nietes v. American President Lines, Ltd. (N.D.Cal.1959) 188 F.Supp. 219, passim ) holding that principles of respondeat superior nonetheless justify imposing liability on the ship operator for a physician's negligence. The holding, in part, was based on the "opinion" that a ship's physician is under the general direction and supervision of the company's chief surgeon through modern means of communication, and that it is no more difficult to control or supervise a physician than it is to control or supervise "the highly skilled operations involved in the navigation of a modern ocean carrier by its master." The court reasoned that it made no logical sense to attach liability to the employer for the negligence of the master but not for the negligence of the physician. (Id. at p. 220.) Nietes, however, appears to stand alone in this holding and has been criticized roundly for it. (See Barbetta, supra, at pp. 1370-1371, and cases discussed there.) The weight of the authority, accordingly, mandates against a finding that any negligence which might be imputed to Dr. Grabowski (and we intend no implication that Dr. Grabowski was negligent, or that he had a duty even...