The earlier article Has Time Passed Barbetta By? raised the proposition that the underpinnings of the long-standing maritime rule shielding cruise ship owners from vicarious liability to their passengers for the medical malpractice of their ship’s physicians were no longer valid in light of advances in technology and changes in the law redefining the role of the ship’s medical staff. Now, the United States Court of Appeals for the Eleventh Circuit has answered the question definitively in its recent opinion in Franza v. Royal Caribbean Cruises, Ltd., wherein it rejected over 100 years of contrary authority and held that cruise lines may be held vicariously liable for the medical malpractice of their ship’s nurses and doctors on the grounds of both actual and apparent agency. Under Franza, the ultimate issue of liability will now turn upon the facts of each case, consistent with the traditional maritime analysis of agency issues.
While a number of cases over the past 100 years have reiterated the principle of nonliability, the seminal opinion that has become most closely associated with it is the United States Court of Appeals for the Fifth Circuit’s 1988 decision in Barbetta v. S/S Bermuda Star. In fact, the association has been so complete that the principle is generally referred to as the “Barbetta rule.” Although the Eleventh Circuit’s opinion does not overrule the Fifth Circuit’s Barbetta decision,5 but merely creates conflict with it, the overwhelming logic of its analysis is extremely compelling and is likely to lead to the abandonment of the prior rule by the other circuits. Nevertheless, regardless of the actions of the other circuits, the Eleventh Circuit’s location as home to the majority of North America’s cruise industry will result in Franza’s supplanting Barbetta as the new majority rule.