B. Count II: Vicarious Liability for Negligence of Defendant Medical Staff based on Respondeat SuperiorThe prevailing conclusion in this District and the majority of other jurisdictions is that a cruise line cannot be held vicariously liable for the negligence of its ship's doctor in the care and treatment of passengers. Huang v. Carnival Corp., 909 F.Supp.2d 1356, 1360, (S.D.Fla.2012) (citing Barbetta v. S/S Bermuda Star, 848 F.2d 1364, 1372 (5th Cir.1988) ); see also Peterson v. Celebrity Cruises, Inc., 753 F.Supp.2d 1245, 1247 (S.D.Fla.2010) ; Ridley v. NCL (Bahamas) Ltd., 824 F.Supp.2d 1355, 1362 (S.D.Fla.2010) ; Hesterly v. Royal Caribbean Cruises, Ltd., 515 F.Supp.2d 1278, 1284 (S.D.Fla.2007) ; Doonan v. Carnival Corp., 404 F.Supp.2d 1367, 1370–71 (S.D.Fla.2005) ; Mascolo v. Costa Crociere, S.p.A., 726 F.Supp. 1285, 1286 (S.D.Fla.1989). The justifications for this rule are the cruise line's lack of control over the doctor-patient relationship and the cruise line's failure to possess expertise in supervising the doctor in his practice of medicine.
To state a claim for joint venture, Plaintiffs must allege: 1) the parties' intention to create a joint venture; 2) joint control or right to control; 3) joint proprietary interest in the subject matter of the joint venture; 4) right of all venturers to share in the profits; and 5) the duty of both to share in the losses. Huang v. Carnival, 909 F.Supp.2d 1356, 1362 (S.D. Fla. 2012). Under Maritime law, however, these factors act as "signposts, likely indicia, but not prerequisites," establishing that a plaintiff has stated a joint venture claim. Id. (quoting Fulcher's Point Pride Seafood, Inc. v. M/V Theodora Maria, 935 F.2d 208, 211 (11th Cir. 1991).
Plaintiffs have not put forth any evidence that would support an inference of apparent agency. See Hung Kang Huang v. Carnival Corp., 909 F.Supp.2d 1356, 1361 (S.D.Fla.2012) (“Under general maritime law, apparent agency may be established when: (1) the alleged principal makes some sort of manifestation causing a third party to believe that the alleged agent had authority to act for the benefit of the principal, (2) such belief was [ ] reasonable, and (3) the claimant reasonably acted on such belief to his detriment.”) (internal citation omitted).
This is satisfied where a sufficiently detailed factual background of the incident is alleged along with allegations of the purported foreseeable causes of a plaintiff's injuries. SeeHung Kang Huang v. Carnival Corp. , 909 F. Supp. 2d 1356, 1359–60 (S.D. Fla. 2012), abrogated on other grounds byFranza v. Royal Caribbean Cruises, Ltd. , 772 F.3d 1225 (11th Cir. 2014) (denying motion to dismiss maritime negligence claim where "Plaintiff sufficiently pleaded a basis for proximate cause.... The Complaint states that ‘Plaintiff was injured due to the fault and/or negligence of Defendant Carnival ... as follows,’ and then proceeds to list, in fourteen subparagraphs, the alleged failures on Carnival's part that resulted in Plaintiffs injuries.
In order to state a claim for a joint venture the Plaintiff must allege: 1) the intention of the parties to create a joint venture; 2) joint control or right to control; 3) joint proprietary interest in the subject matter of the joint venture; 4) the right of all venturers to a share in the profits; and 5) the duty of both to share in the losses. Huang v. Carnival Corp., 909 F.Supp.2d 1356, 1361 (S.D. Fla. 2012).i. Intention
Accordingly, "[c]ontrary to Carnival's contention, under current general maritime law, the foregoing factors do not quite form a conjunctive test in which every element must be met." Hung Kang Huang v. Carnival Corp., 909 F. Supp. 2d 1356, 1361 (S.D. Fla. 2012), abrogated on other grounds by Franza, 772 F.3d 1225.
A few courts have suggested that, because of Barbetta's prominence, no plaintiff could ever reasonably mistake the agency status of onboard medical personnel “[a]bsent an explicit manifestation by the ship owner countering the settled principle that medical staff [members] are not their agents.” Huang v. Carnival Corp., 909 F.Supp.2d 1356, 1361 (S.D.Fla.2012); see also Hajtman, 526 F.Supp.2d at 1328–29 (holding that Barbetta rule precluded any reasonable belief that medical staff were agents of shipowner); Warren v. Ajax Navigation Corp., 1995 A.M.C. 2609 (S.D.Fla.1995) (same). Whatever its merits, this argument does not survive our departure from the traditional rule.
In addition, as pled, Lannin has simply set forth a division of responsibilities, rather than facts plausibly establishing the existence of a joint venture. See Hung Kang Huang v. Carnival Corp., 909 F. Supp. 2d 1356, 1361-62 (S.D. Fla. 2012) (Ungaro, J.), abrogated on other grounds by Franza, 772 F.3d at 1225; Gittel v. Carnival Corp., No. 14-cv-23234, 2015 WL 3650042, at *4 (S.D. Fla. June 11, 2015) (King, J.).
If the plaintiff wants to hold a cruise ship liable under a third-party beneficiary theory, then the plaintiff must allege that the cruise line, and not just the doctors, breached the contract between them. Id. (dismissing third-part beneficiary claim against cruise ship where plaintiff alleged that doctor breached an agreement, but not that Oceania breached an agreement); see also Hung Kang Huang v. Carnival Corp., 909 F. Supp. 2d 1356, 1362 (S.D. Fla. 2012) (same, involving a third-part beneficiary claim against Carnival); Rinker v. Carnival Corp., 753 F. Supp. 2d 1237, 1244 (S.D. Fla. 2010) (same).
These include (1) the intention of the parties to create a joint venture; (2) joint control or right of control; (3) joint proprietary interest in the subject matter of the joint venture; (4) the right of all venturers to share in the profits; and (5) the duty of both to share in the losses. See Hung Kang Huang v. Carnival Corp. , 909 F.Supp.2d 1356, 1361 (S.D.Fla.2012) (citing Skeen v. Carnival Corp., No. 08–22618–CIV, 2009 WL 1117432, at *3 (S.D.Fla. April 24, 2009) ), abrogated on other grounds, Franza v. Royal Caribbean Cruises, Ltd. , 772 F.3d 1225, 1250 n. 18 (11th Cir.2014). Of these, the Eleventh Circuit in Fulcher noted that "[t]he parties' intentions are important" in determining whether a joint venture exists.