District Court of Appeal
of Florida,
Fourth District.
Carol NADEAU, Appellant,
v.
Oscar COSTLEY, Carnival Cruise Lines,
Inc., a Panamanian corporation, and
Captain Angelo Los,
Appellees.
No. 92-2895.
Jan. 12, 1994.
Rehearing and
Certification Denied May 6, 1994.
Passenger brought action against cruise line and its captain alleging
that defendants were vicariously liable for tortious actions of crew member.
The Circuit Court, Palm Beach County, Tom Johnson, J., granted summary judgment
in favor of defendants. Passenger appealed. The District Court of Appeal held
that: (1) passenger could not recover in negligence for purely emotional
injuries, but (2) under both maritime and state law, passenger had cause of
action against cruise line in tort (strict vicarious liability) or contract
(breach of contract of carriage based on intentional assault.)
Affirmed in part, reversed in part and remanded.
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Michael
D. Eriksen, Romano, Eriksen & Cronin, West Palm Beach, for appellant.
John
W. Keller, III, and Ted
L. Shinkle, Keller, Houck & Shinkle, P.A., Miami, for appellees Carnival
Cruise Lines, Inc., and Captain Angelo Los.
PER CURIAM.
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The
instant appeal from a summary final judgment arises out of a lawsuit
filed by appellant Carol Nadeau against appellee Carnival Cruise Lines (a Panamanian corporation),
appellee Angelo Los (captain of the cruise ship "Carnivale"),
and Oscar Costley (crew member of the "Carnivale"). |
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Appellant
alleged that she and a friend, Ms. Johnson, boarded the "Carnivale"
in Port Canaveral on April 5, 1990. They were assigned a small stateroom at a
remote location on one of the lower decks. On the first night of the cruise,
appellant and Johnson returned to their stateroom sometime after midnight,
locked the door, and went to sleep. Later, Johnson awoke when she perceived a
crew member, Costley, kneeling beside her bed and fondling her vagina.
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Johnson
screamed, awakening appellant. Costley ran out of the room and appellant shut the door
behind him. Costley neither touched nor attempted to touch appellant. When appellant
and Johnson attempted to phone for help, they discovered that their stateroom
telephone was inoperable.
Appellant further alleged that she and Johnson decided to remain in the
stateroom for safety until they could join the other passengers leaving their
cabins for breakfast. In the interim, Costley returned to the stateroom and
over the next two or three hours terrorized the two women by repeatedly placing
a key into the lock, turning the doorknob, and making verbal sexual advances.
Appellant believed Costley was capable of making good on his threats to reenter
the stateroom. At deposition, appellant testified that she was "very
afraid" during the initial attack on Johnson and was worried that she and
Johnson would not make it out of the stateroom alive. Costley eventually
departed and the two women left the stateroom when they heard the other
passengers leaving their cabins. Appellant and Johnson immediately reported the
incident to the purser. Appellant alleged that prior to the incident, she had
not had any personal contact with Costley, nor had she said or done anything to
provoke his attack. Appellant was not physically injured by Costley, nor did
she receive any medical treatment or psychological counseling as a result of
the incident.
Appellee Carnival filed numerous motions to dismiss appellant's
pleadings. By the time the trial court entered summary final judgment in favor
of Carnival
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and
Los, appellant had filed her fourth amended complaint. In that complaint,
appellant alleged that Carnival and Los were guilty of various acts of
independent negligence that contributed to the incident. Appellant further alleged
that Carnival was vicariously liable for the actions of its crew member due to
its "contractual common carrier relationship" with appellant and was
guilty of common law misrepresentation and false advertising. The trial court
previously had dismissed count two of appellant's first amended complaint,
alleging that Carnival had "breached the contract with the Plaintiff
wherein the Defendant CARNIVAL CRUISE LINES, INC. ... expressly and/or
impliedly agreed with the Plaintiff to exercise reasonable care for her
safety."
[1]
In their motion for summary final judgment, Carnival and Los argued that under
maritime law, appellant could not "recover compensatory damages where
she was never touched, threatened or physically injured in any way."
At the summary judgment hearing, appellees argued that appellant could not
recover for purely emotional injuries in the absence of some physical injury
or "impact." We agree that this argument precludes recovery against
Carnival and Los under Count III of the fourth amended complaint (setting
forth a cause of *651
action for negligence), [FN2]
the only count involving Los, but this argument fails as to two other issues
being appealed as to Carnival.
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I
Appellant
first contends that the trial court reversibly erred in dismissing her claim
for breach of contract of carriage against Carnival. We agree and conclude
that the trial court erroneously accepted appellees' position that the only
theory of liability available to an injured passenger bringing suit against
a cruise line for the actions of a crew member is negligence. As appellant
asserts, early maritime cases clearly recognize a breach of contract action
against the carrier. See The
Steamship City of Panama v. Phelps, 101 U.S.
453, 463, 25 L.Ed. 1061, 1065 (1880); see also Silverman
v. Bermuda & West Indies S.S. Co., 74
F.2d 683 (2d Cir.1935). These cases are fully in accord with subsequent
Florida decisions recognizing that a passenger may recover damages against
a common carrier for breach of contract of carriage. See Colhoun
v. Greyhound Lines, Inc., 265 So.2d 18 (Fla.1972);
Carlisle
v. Ulysses Line Ltd., S.A., 475 So.2d 248 (Fla. 3d DCA 1985); Butts
v. County of Dade, 178 So.2d 592, 593 (Fla. 3d DCA 1965).
[2][3]
Florida law specifically recognizes a breach of contract action against a
cruise line where, as here, the cause of action is predicated upon a
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wrongful
intentional act by a member of the ship's crew. In Commodore
Cruise Line, Ltd. v. Kormendi, 344 So.2d 896 (Fla. 3d DCA), cert. denied,
352
So.2d 172 (Fla.1977), the plaintiff was allegedly assaulted and battered in
her cabin by a member of the ship's crew during an attempted robbery. The
case proceeded to trial upon the theory of breach of contract of common carriage.
In affirming the jury's verdict on liability, the court acknowledged that
under Florida law, "a contractual duty arises between a passenger and
common carrier obligating the carrier to transport the passenger to his or
her destination, exercising the highest degree of care and vigilance for the
passenger's safety." Id.
at 897-98. This duty extends to the carrier's employees "and any wilful
misconduct by its employees are actionable as against the carrier-employer."
Id.
at 898. A common carrier is liable to a passenger for the wrongful acts of
its employees occurring through the entire contractual period (the time of
embarkation to disembarkation), notwithstanding the fact that said acts are
not within the scope of the employees' employment. Id.
[4][5]
While plaintiffs are free to sue in state courts for damages arising from
maritime torts, maritime law is the substantive law to be applied when the
wrong complained of occurs in navigable waters. Rindfleisch
v. Carnival Cruise Lines, Inc., 498 So.2d 488 (Fla. 3d DCA 1986), rev.
denied, 508
So.2d 15 (Fla.1987). [FN3]
However, this court
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is free to apply Florida law where it neither conflicts
with nor disturbs the uniformity of maritime law. See S.C.
Loveland, Inc. v. East West Towing, Inc.,
608 F.2d 160 (5th Cir.1979); Luby
v. Carnival Cruise Lines, Inc., 633 F.Supp. 40, 41 n. 2 (S.D.Fla.), affirmed,
808
F.2d 60 (11th Cir.1986).
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Without attempting to distinguish the cases cited above, appellees
seemingly maintain that admiralty no longer recognizes a cause of action for
breach of
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contract
of carriage. In support of this proposition, appellees cite Hass
v. Carnival Cruise Lines, Inc., 1986 A.M.C. 1846, 1986 WL 10154 (S.D.Fla.1986),
Hark
v. Antilles Airboats, 355 F.Supp. 683 (D.V.I.1973), and Jaffess
v. *652
Home Lines, Inc., 1990 A.M.C. 1430, 1988
WL 42049 (S.D.N.Y.1988). [FN4]
We disagree with these cases to the extent that they would bar recovery for
breach of contract of carriage under the instant facts.
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II
Appellant
also asserts that the trial court reversibly erred in granting summary final
judgment on Count IV in which appellant alleged that Carnival was vicariously
liable for Costley's intentional infliction
of emotional distress. We find this argument to be meritorious.
[6]
As previously discussed, Florida law holds a common carrier responsible for
the willful misconduct of its employees during the entire contractual period,
notwithstanding the fact that the employee's actions fall outside the scope
of employment. Kormendi.
This same principle has been recognized by federal courts applying admiralty
law. In Muratore
v. M/S Scotia Prince, 656 F.Supp. 471 (D.Me.1987), the plaintiff filed
suit to recover damages for
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physical
injuries and mental pain allegedly suffered while aboard a cruise ship. The
mental pain and suffering arose from the intentional conduct of the ship's
photographers in taking her picture after she expressed her desire that it
not be taken and in attaching a "gorilla face" to cover the back
of her head before the pictures were posted for sale. The plaintiff was forced
to remain in her cabin for hours to avoid the harassing behavior and offensive
comments of the photographers. While appellant sought compensation for both
negligent and intentional infliction of emotional distress, the court found
that her claim for the former was barred under Maine law because the plaintiff
failed to show "either accompanying physical consequences or an independent
underlying tort." Id.
at 482.
The district court did, however, find that the plaintiff was entitled
to recover on her claim for intentional infliction of emotional distress.
In reaching this conclusion, the court noted that "[i]t is a fundamental
principle of maritime law that a carrier has unconditional responsibility
for the misconduct of its people toward the passengers." Id.
at 479. On appeal, the First Circuit affirmed the trial court's finding that
the charterer was responsible for the intentional conduct of a member of the
ship's crew. Muratore
v. M/S Scotia Prince, 845 F.2d 347, 353 (1st Cir.1988). The court reasoned
that because a charterer is looked upon as an owner of a vessel pro hac
vice, the doctrine of respondeat superior applies to hold a carrier
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responsible for the defaults of its crew. Id.
See also Morton
v. De Oliveira, 984 F.2d 289 (9th Cir.),
cert. denied, 510
U.S. 907, 114 S.Ct. 289, 126 L.Ed.2d 238 (1993); Pacific
S.S. Co. v. Sutton, 7 F.2d 579 (9th Cir.1925), cert. denied, 269
U.S. 586, 46 S.Ct. 202, 70 L.Ed. 425 (1926).
Setting forth the same argument specifically rejected by the Ninth Circuit
in Morton,
Carnival argues that a plaintiff seeking to hold a cruise line responsible
for the intentional acts of one of its employees must show that the carrier
was independently negligent. Carnival cites Compagnie
Generale Transatlantique v. Rivers, 211 F. 294, 299 (2d Cir.), cert.
denied, 232
U.S. 727, 34 S.Ct. 603, 58 L.Ed. 817 (1914), where the court indicated, in
dicta, [FN5]
that there could be no recovery for an intentional assault by a crew member
unless "the proofs showed some specific neglect in exercising that degree
of care which reasonable prudence would require of a carrier obligated to
be watchful and vigilant to protect its sleeping passengers."
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did
not have any undue influence on the jury's verdict. |
This court is free to apply Florida law in the absence of controlling
maritime precedent. At best, admiralty courts are split on the question of
whether independent negligence on the part of the shipowner is required to hold
the owner liable for an intentional *653
assault
by a crew member. Therefore, applying Florida law to the instant facts would in
no way alter the uniformity of admiralty decisions. Moreover, in Count III,
which is reincorporated into Count IV, appellant did allege that Carnival had
been independently negligent. Specifically, appellant alleged that Carnival had
negligently hired or retained Costley, had failed to supervise and restrict the
crew, had failed to provide her with "a secure state room and
communications thereto," had failed to warn passengers of such risks, and
had failed to investigate the incident properly.
In the suit brought by Johnson, appellant's travel companion, the trial
court rejected Carnival's argument that it could not be held liable for
Costley's assault absent independent negligence. In entering summary judgment
in the instant case, the trial court apparently believed all of
appellant's claims were barred because she suffered no impact or physical
injury. Contrary to Carnival's position, however, there is no authority for the
proposition that physical injury or trauma is required to hold a carrier
vicariously liable for the intentional actions of its employees. While physical
manifestation may be
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necessary,
as a matter of public policy, to limit subjective emotional trauma claims
in negligence cases, the imposition of vicarious liability in cases involving
common carriers is clearly contractual in nature. Therefore, the issue of
foreseeability does not come into play. Appellees maintain that Muratore
and Morton
are distinguishable from the instant case because each of those plaintiffs
had some physical impact. While the plaintiff in Morton
did suffer some sort of physical impact when she was raped, the plaintiff
in Muratore
suffered no impact in relation to her claim for intentional infliction of
emotional distress. Her slip and fall down a flight of stairs was completely
unrelated to her claims for mental pain and suffering. Just as the Muratore
plaintiff was forced to remain in her cabin to avoid the harassment and abuse
of the ship's photographers, appellant was forced to remain in her cabin for
hours while being threatened and verbally assaulted by a member of the ship's
crew.
In sum, Count IV of appellant's fourth amended complaint sets forth a
valid cause of action. Whether appellant proceeds against Carnival in tort
(strict vicarious liability) or contract (breach of contract of carriage based
on an intentional assault) is of no import. The fact remains that under both
maritime and Florida law, Carnival, as a common carrier, can be held
vicariously liable for the tortious actions of a crew member, even when the
victim suffers no impact or physical manifestation of injury. Although not
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addressed
by the parties in their briefs, we further hold that appellant's claims for
misrepresentation and false advertising are revived by this reversal.
DELL,
C.J., and GLICKSTEIN
and POLEN,
JJ., concur.
Fla.App. 4 Dist.,1994.
Nadeau v. Costley
634 So.2d 649, 1994 A.M.C. 2810, 19 Fla. L. Weekly D112
END OF DOCUMENT