Medical Negligence on Cruise Ships
By David L. Deehl
Deehl & Carlson, P.A.
Coral Gables, FL
Chair, Trial Techniques Committee,
Tort Trial and Insurance Practices Section
of the American Bar Association
Adjunct Professor of Litigation Skills
at the University of Miami School of Law
Recent decisions of Florida’s Third District Court of Appeal, which
serves Miami and the Florida Keys, have shed light on the legal
responsibilities for medical care on cruise ships. This article examines those
cases, and gives practical tips for lawyers handling such cases.
Passengers get sick and injured on ships. My trial practice is located
in Miami-Dade County, Florida the venue chosen by many cruise ship
owners. Claims must be brought in our local courts, under the language of
the contracts of carriage. Many cruise lines have large offices in Miami.
The Dante B. Fascell Port of Miami is homeport to Carnival Cruise
Line, Celebrity Cruises, Norwegian Cruise Line, Royal Caribbean
International and Windjammer Barefoot Cruises. It is the largest passenger
cruise port in the world, serving nearly 3.4 million passengers a year.
Cruise ships have gotten larger over the years. On March 8, 2003 a
new cruise record was set in Miami when eight ships, together over 7,286
feet in length, embarked approximately 19,000 passengers. These mega
ships have thousands of crew members and passengers (some over three
thousand passengers), and with weekly or shorter cruises, the annual totals
of people on board even one ship could exceed 156,000.
Beware of time limits on tickets
Cruise ship contracts with passengers usually have time limits on
asserting claims and bringing suit. These contractual limits are much shorter
than the applicable Florida statutes of limitations. The cruise lines have
worked hard to create a mine field for the unwary practitioner. Attorneys
bringing such claims should refer them to Miami Dade County counsel as
soon as possible.
A wide variety of cases come to us here. A man thrown from his bed
when his cruise ship crashed into a cargo container ship in the English
Channel resulted in a torn rotator cuff in his shoulder. Sumo wrestling in the
bar injured a police SWAT team member on cruise in the Caribbean, when
he broke his ankle when he was thrown off the mat. The unfortunate police
officer’s arm was then broken by crew members who dropped him while
getting him out of the huge, padded sumo wrestling outfit he wore for the
shipboard competition. A woman was almost killed and lost much of her
hair by a food borne infection, and an elderly passenger died of the same
widespread infection. She was cruising in the waters off California and
Mexico when a crew member with diarrhea failed to wash his hands (when
he was forced to work while sick) and handled the ice in a shipboard
restaurant. Legionnaire’s disease from a hot tub has infected passengers.
Scuba and snorkeling accidents can result in wrongful deaths. Shipboard
sexual assaults have reached staggering proportions. Criminal assaults occur
during shore excursions. The Norwalk virus outbreak made headlines and
shut down ships for extensive decontamination work.
Medical negligence cases are also to be expected given the numbers
of passengers treated, their age, often elderly and young, and their various
activities, including much eating and drinking. Recent decisions of our
appellate courts have highlighted that the cruise lines and the medical
service providers may be liable for negligent provision of those services to
passengers, as well as crew members.
Carlisle v. Carnival Corporation
The recent decision in Carlisle v. Carnival Corporation, ____ So. 2d.
___, (Fla. 3rd DCA 2003), 2003 Fla. App. Lexis 12794, case number 3D01-
1518, opinion filed August 27th, 2003, discusses medical negligence aboard
ships. Vicarious liability for medical negligence aboard ships had never
been squarely addressed by Florida appeals courts. In Carlisle, the trial
court found on summary judgment that the cruise line was not vicariously
liable for the doctor’s negligence under agency and apparent agency law.
The appeals court found the cruise line could be liable under these facts,
reversing the trial court.
Facts of Carlisle
In March 1997, the Carlisles cruised aboard the Carnival cruise
Ecstasy. 14 year old Elizabeth Carlisle felt ill with abdominal pain, lower
back pain and diarrhea and was seen several times in the ship's hospital by
the ship's physician, Dr. Mauro Neri. For several days Dr. Neri repeatedly
advised the Carlisles that Elizabeth had the flu, assured her family it was not
appendicitis, and provided antibiotics. The Carlisle family left the ship and
returned home to Michigan, where Elizabeth was diagnosed as having a
ruptured appendix. Elizabeth had her appendix surgically removed and was
rendered sterile by the scarring and other consequences of the infection.
Her parents sued the doctor alleging he acted negligently in his
treatment of Elizabeth and that Carnival should be held vicariously liable for
such negligence under theories of agency and apparent agency, and
negligent hiring of Dr. Neri.
The contract between Dr. Neri and Carnival provided:
CONTRACTOR agrees to provide services aboard vessel in the
capacity of SHIP'S PHYSICIAN . . .Said services shall consist
of the providing of medical services and treatment to
passengers and crew in accordance with PURCHASER'S
Physician guidelines and shall be performed on a seven (7) day
-per-week basis during regular and on-call vessel infirmary
hours and for emergencies.
The contract further provided Dr. Neri’s weekly salary was his sole
source of income during the term of the Agreement, and that Carnival could
dismiss Dr. Neri for quot;violations of the Ship's Articlesquot; or quot;failure to perform
duties to the satisfaction ofquot; Carnival. Dr. Neri was provided a ship's
uniform and agreed his photograph, name and likeness could be used to
promote and publicize Carnival's vessels in any and all media. Dr. Neri was
considered by Carnival to be an officer of the ship.
Carnival, in another document, agreed to indemnify Dr. Neri for up to
$ 1 million with regard to claims brought against him arising out of any act
or omission on his part while acting in the course of his duties as ship's
doctor. Dr. Neri agreed that Carnival, or its insurer, would be permitted to
take absolute control over the defense and handling of such claims (in
Florida, “absolute control” over the defense by others is questionable under
the Rules Regulating the Florida Bar, where it would result in a lawyer’s
loyalty being divided in such as way as to prevent the lawyer from acting in
the client’s best interests at all times. See Advisory Opinions of The Florida
Bar’s Professional Ethics Committee, Opinion 97-1 (May 1, 1997) An
attorney who has been hired by an insurance company to represent an
insured owes his primary duty to the insured. An attorney may not ethically
continue the representation of the insured under instructions from the
insurance carrier that the lawyer file for summary judgment where the
attorney has determined that such a motion would be against the insured's
interest, and Opinion 81-5 (March 13, 1981) A lawyer may not ethically
accept or continue the representation of either the insured or both the
insurance carrier and the insured under instructions from the insurance
carrier that the lawyer is not to express any opinion as to settlement value of
the cases to the insured.)
In attempting to limit liability, the cruise ticket provided:
If the vessel carries a physician, nurse, masseuse, barber, hair dresser or
manicurist, it is done solely for the convenience of the guest and any such
person in dealing with the guest is not and shall not be considered in any
respect whatsoever, as the employee, servant or agent of the carrier and the
carrier shall not be liable for any act or omission of such person or those
under his order or assisting him with respect to treatment, advice or care of
any kind given to any guest.
The Third District found general maritime law applies to a claim for a
ship's doctor's malpractice, and a cruise ship ticket is a maritime contract,
governed by maritime law, citing to The Moses Taylor, 71 U.S. (4 Wall.)
411, 427, 18 L. Ed. 397, 32 How. Pr. 460 (1866); Wallis v. Princess Cruises,
Inc., 306 F.3d 827, 834 (9th Cir. 2002). Maritime law places a duty on
cruise lines to exercise reasonable care under the circumstances for
passengers safety. For obtaining summary judgment, Carnival relied upon
the long line of decisions exemplified by Barbetta v. S/S Bermuda Star, 848
F.2d 1364, 1369 (5th Cir.1988), which held:
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. The
rationale in Barbetta is the lack of the cruise line's ability to control the
doctor-patient relationship and lack of expertise to control the doctor in his
practice of medicine, in that quot;a ship is not a floating hospital.quot; Barbetta, 848
F.2d at 1368-1371.
The Carlisles argued Nietes v. American President Lines, Ltd., 188 F.
Supp. 219 (N.D. Cal. 1959) is a better reasoned decision in light of the
relations between ship owners and doctors who work on board in modern
cruising. In Nietes, the cruise line was held vicariously liable for the
negligence of the ship's doctor who was a member of the crew.
According to the Third District, a ship's physician is in the regular
employment of a ship, as a salaried member of the crew, subject to the ship's
discipline and the master's orders, and presumably also under the general
direction and supervision of the company's chief surgeon through modern
means of communication, he is, for the purposes of respondeat superior at
least, in the nature of an employee or servant for whose negligent treatment
of a passenger a shipowner may be held liable.
The appeals court considered that the board of directors of a modern
steamship company has as little professional ability to supervise effectively
the highly skilled operations involved in the navigation of a modern ocean
carrier by its master as it has to supervise a physician's treatment of
shipboard illness. Since the company is held liable for the negligent
operation of the ship by the master, it should be liable for the negligent
treatment of a passenger by a physician or nurse in the normal scope of their
employment, as members of the ship's company, subject to the orders and
commands of the master.
A carrier, normally under no duty to practice medicine, when it
undertakes the treatment of illness through medical services provided by it
aboard its ship assumes the duty to treat carefully.
The reasoning for imposing such liability, was analyzed by the Court,
because the employment of a doctor aboard ship is a beneficial substitute for
the shipowner's otherwise more costly duty to sick passengers. Ships without
physicians or nurses are required to change course and put in at the nearest
port, according to the seriousness of the illness for both passengers and
seamen whose lives may be threatened by illness while on board the ships.
The shipowner could be liable under the principle of respondeat superior if
the proper care is not given. Placing a physician aboard ship, avoids his
sometimes inconvenient and costly duty to change course for the benefit of
an ailing passenger. This gives shipowners competitive advantage in the
maritime passenger industry over those sea-going carriers which have not
provided the safety of on-board medical service, and which would be forced
to make unscheduled stops regularly.
The Florida appeals court cited Fairley v. Royal Cruise Line, Ltd., 1993
AMC 1633 (S.D. Fla. 1993)(which criticized Barbetta and supported Nietes,
while recognizing the viability of an apparent agency theory of recovery).
The Florida appeals court also cited Beth-Ann Erlic Herschaft, Cruise Ship
Medical Malpractice Cases: Must Admiralty Courts Steer by the Star of
Stare Decisis?, 17 Nova L. Rev. 575 (1992); Michael J. Compagno,
Malpractice on the Love Boat: Barbetta v. S/S Bermuda Star, 14 Tul. Mar.
L. J. 381 (1990).
Cruise passengers at sea in medical distress do not have any meaningful
choice but to seek treatment from aboard the ship. Barbetta was based on
the fiction passengers have some choice in the matter, and that the cruise
line lacks control because it cannot interfere in the doctor-patient
It is foreseeable some cruise passengers at sea will develop major medical
problems. The Third District rejected the Barbetta line of cases and held
that the cruise line's duty to exercise reasonable care under the
circumstances extends to the actions of the ship's doctor placed on board by
the cruise line. For purposes of fulfilling the cruise line's duty to exercise
reasonable care, the ship's doctor is an agent of the cruise line whose
negligence should be imputed to the cruise line, according to the Third
District. The cruise line is already held vicariously liable for the negligence
of the same ship's doctor in the treatment of hundreds of people -- the crew -
- under the maritime duty to provide maintenance and cure. citing De Zon v.
American President Lines, 318 U.S. 660.63 S. Ct. 814, 87 L. Ed. 1065
(1943); De Centro v. Gulf Fleet Crews, Inc., 798 F.2d 138, 140 (5th Cir.
1986); Fitzgerald v. A.L. Burbank & Co., 451 F.2d 670, 679 (2d Cir. 1971);
Gulf Central Steamship Corp. v. Sambula, 405 F.2d 291 (5th Cir. 1968). For
seamen, a ship owner is liable for the negligence of the ship's doctor
regardless of the degree to which the doctor's medical activities, or the
doctor-patient relationship, can be controlled by the ship owner.
The exculpatory language contained in the passenger ticket was
invalidated by the court under 46 App. U.S.C.A. § 183c since the statute
invalidates certain purported disclaimers of liability:
It shall be unlawful for the manager, agent, master, or
owner of any vessel transporting passengers between ports of
the United States or between any such port and a foreign port to
insert in any rule, regulation, contract, or agreement any
provision or limitation (1) purporting, in the event of loss of life
or bodily injury arising from the negligence or fault of such
owner or his servants, to relieve such owner, master, or agent
from liability, or from liability beyond any stipulated amount,
for such loss or injury . . .All such provisions or limitations
contained in any such rule, regulation, contract, or agreement
are declared to be against public policy and shall be null and
void and of no effect.
A ticket seeking to limit Carnival's liability for the negligence of its agent,
would be invalid under that statute. The appeal court noted in suits against
the ship's doctor individually, the passenger is effectively faced with having
to engage in a game of personal jurisdiction and service of process roulette,
with the ability to proceed against the doctor depending on various factors
such as contacts with the state, whether medical treatment was provided in
Florida waters or at sea, and the practical realities of effectuating service of
process. See, e.g., Rana v. Flynn, 823 So. 2d 302 (Fla. 3d DCA
2002)(personal jurisdiction present where treatment in Florida waters and
there were multiple contacts with state); Elmlund v. Mottershead, 750 So. 2d
736 (Fla. 3d DCA 2000)(no personal jurisdiction over non-resident ship's
doctor with insufficient Florida contacts); Rossa v. Sills, 493 So. 2d 1137
(Fla. 4th DCA 1986)(sufficient contacts to support personal jurisdiction). In
the two years after this matter was filed the Carlisles were unable to serve
process on Dr. Neri.
The court noted a cruise ship is, “a city afloat with hundreds of temporary
citizens, some of whom are passengers and some of whom are the
employees and agents of the cruise line who comprise the ship's crew, each
of whom, within their particular sphere, owe a duty of reasonable care to the
passengers.” Modern, large cruise ships are floating cities with thousands of
temporary residents, and larger ones are in development by the cruise lines.
Benson v. Norwegian Cruise Lines
Another interesting recent decision in a case involving allegations of
cruise ship physician negligence, found that Florida had jurisdiction to its
terrioritorial limits. In Benson v. Norwegian Cruise Lines, Ltd. and Von
Benecke, 834 So. 2d 915 (Fla. 3rd DCA 2003) the court was confronted with
medical negligence allegedly occurring 11.7 miles offshore of Miami.
The plaintiff’s decedent, Noah Benson, was a thirteen-year-old
passenger on the M/S Leeward, a cruise ship owned by defendant-appellee
Norwegian Cruise Line Limited (quot;NCLquot;). Noah was traveling with his
mother, plaintiff-appellant Patricia Hardy-Smith, as well as another family
member from Miami to Key West and to return. Noah ate shellfish and an
allergic reaction occurred. Swelling in the windpipe prevented his breathing.
Medical treatment provided by the ship's doctor Carla Von Benecke. She
attempted to insert a breathing tube several times. Unfortunately, Noah died
before intubation could be successfully completed to establish an airway.
The mother and natural father brought a wrongful death action against
NCL and Dr. Von Benecke for medical negligence. Dr. Von Benecke
moved to dismiss for lack of personal jurisdiction, as a South African
national who was employed on the NCL cruise ship as a contract employee.
The plaintiffs stated that the claimed incident of medical malpractice
occurred while the ship was within Florida's territorial waters as defined by
article II, section 1, of the Florida Constitution. The trial court concluded
that the ship was outside of Florida's territorial waters at the relevant times
and granted the motion to dismiss as to Dr. Von Benecke. The plaintiffs
Dr. Von Benecke is not a resident of Florida, though under Florida's
long arm statute, Florida courts may exercise personal jurisdiction over a
nonresident where the cause of action arises from the defendant's
quot;committing a tortious act within this state.quot; § 48.193(1)(b), Fla. Stat.
(1997). Medical treatment within Florida's territorial boundaries is sufficient
to establish long arm jurisdiction.
Florida's boundaries are set forth in article II, section 1, of the 1968
Florida Constitution. Florida's constitutional descriptions of the eastern
boundary have varied in each constitution from 1868 to the present. See Fla.
Const. Art. I (1868); Fla. Const. Art. I (1885); Id. (as amended 1962); Fla.
Const. Art. II, § 1 (1968). Expert evidence was that this cruise ship located
11.7 nautical miles east of Florida's coastline was at all relevant times within
this boundary. The ship had not yet reached the edge of the Gulf Stream,
which was 14 nautical miles east of the relevant portion of Florida's
coastline on the day in question. The claimed incident of medical
malpractice occurred within Florida's territorial boundaries.
Where a Florida-based company is selling cruises which depart from
Florida into international waters, returning to Florida, plainly the company is
engaged in business in Florida. The same analysis holds true for a ship's
physician who, under a contract of employment, sails on such a ship. §
48.193(1)(a), Fla. Stat. and Tidewater Marine, 927 P.2d at 300-01. were
The appeals court suggested an inquiry should not be necessary,
because entering into an employment agreement to serve as the ship's doctor
on a cruise liner operating out of Miami clearly amounts to engaging in
business in Florida for purposes of the long arm statute.
Meitus, M.D. et al vs. Carnival Cruise Lines, Inc.
In Meitus, M.D. et al vs. Carnival Cruise Lines, Inc. 775 So. 2d
965 (Fla. 3rd DCA 2000) doctors and a PA appealed an order granting partial
summary judgment in favor of Carnival Cruise Lines, Inc., concluding that
the doctors were obligated to indemnify Carnival for their breach of
warranty of workmanlike performance.
In 1983, Carnival entered into a contract with Dr. Meitus, Dr.
Schneider, and the PA whereby the doctors became the medical directors of
Carnival and agreed to provide the necessary care to Carnival crew
members. This agreement provided that the doctors would quot;review and
coordinate the physical examination as to employment of each crew
member,quot; and would quot;tend to crew members on the ships with medical
conditions.quot; The doctors' responsibilities included: a) reviewing the
recommendations of the ship doctor with respect to the crew member
medical condition; b) ascertaining if the crew member is fit for continued
employment or whether the crew member should be placed in the hospital in
Miami or treated as an outpatient; c) being the attending physician, or
obtaining a specialist, if necessary; d) notifying the appropriate Carnival
representative that the crew member must sign off the ship due to medical
conditions; e)in the event of a quot;sign off', preparing a letter for the U.S.
Immigration Department; f) estimating the time for treatment and recovery.
This contract provided the fee for this service to be a minimum of $ 75,000
The parties operated under this contract until 1994. On November 10,
1986, Carnival crew member Valerie Campbell became ill while on board a
Carnival ship docked in Nassau. Dr. Certo, the ship's doctor, diagnosed an
infection of the right ear and prescribed medication. Campbell's condition
deteriorated to the point where she had slurred speech and could not stand
unassisted. After Dr. Certo examined her again, on November 13, 1986,
Campbell was transferred to the Princess Margaret Hospital in Nassau.
Dr. Schneider, vacationing in Nassau, went to the Princess Margaret
Hospital on the second or third day of Campbell's hospitalization. Appearing
without previous arrangement with Nassau medical personnel, he was not
permitted to see Campbell's chart. He was also told that the attending
physician, Dr. Knowles, was not immediately available. Dr. Schneider made
no arrangement to meet with Dr. Knowles, however after a fifteen minute
visit with Campbell, Dr. Schneider called Dr. Meitus and told him that
Campbell should be transferred to Mt. Sinai Hospital in Miami as quickly as
possible. Dr. Schneider made no further attempt to see Campbell or contact
Dr. Knowles. However, Dr. Meitus was in touch by telephone with Dr.
Knowles and Carnival.
Dr. Knowles opined that Campbell's condition was such that she could
not yet be transferred. On November 21, 1986, after an eight-day stay at
Princess Margaret Hospital, Campbell was transferred to Mt. Sinai. Drs.
Meitus and Schneider acted as Campbell's attending physicians. They
referred Campbell to Dr. Ratzan and Dr. Dokson, an infectious disease
specialist and neurological specialist, respectively. Campbell was eventually
diagnosed as suffering from viral encephalitis.
Arguing that she had not been given appropriate treatment for this
condition and as a result had suffered serious permanent injury, Campbell
filed suit against Drs. Meitus, Schneider, their PA, and Carnival, as well as
other medical providers. Carnival requested a defense from Mt. Sinai, the
doctors involved in the case, and their PAs, and when none was tendered,
Carnival settled with Campbell. Carnival then filed this suit against
appellants and the other health care providers involved in Campbell's care
seeking to recover the money it had paid to Campbell. The cruise line
claimed breach of warranty, and sought indemnification, subrogation, and
contribution. After settling with all of the other defendants, Carnival filed its
motion for summary judgment as to its indemnity claim against Drs. Meitus
and Schneider and the doctors' PA.
Courts have split on whether a negligent shipowner may obtain Ryan
indemnification for its negligence and breach of the seaworthiness warranty.
Medical negligence on cruise ships is a rapidly evolving area of
liability. In conclusion, medical negligence cases against cruise lines and
the doctors rendering negligent care are currently viable. Given limitations
(including time limits) on tickets, and statutory considerations, lawyers
considering such cases by clients in their areas should rapidly refer them to
lawyers practicing in the jurisdiction when venue is chosen for evaluation.