Has Time Passed Barbetta By?

1. THE BASIS OF THE BARBETTA RULE
2. LEGAL OBLIGATIONS TO CARRY SHIP’S DOCTORS
   1. Recent Changes in the Law
   2. Flag State Requirements
   3. Fulfilling the Shipowner’s Regulatory Duties
3. THE ISSUE OF CONTROL IS A QUESTION OF FACT
   1. The Shipowner’s Right of Control
      1. Changes in Industry Standards
      2. Compliance with Administrative Regulations
      3. SMS Policies and Procedures
      4. Changes in Technology
      5. Exercise of Medical Discretion
   2. Method of Payment for Doctor’s Services
   3. Ownership and Supply of Equipment
   4. Right to Terminate Employment
   5. Other Factors
4. CONCLUSION

I. THE BASIS OF THE BARBETTA RULE

Although earlier cases have shielded cruise ship owners from vicarious liability for the medical negligence of ship’s physicians, the Fifth Circuit’s decision in Barbetta v. S/S BERMUDA STAR is recognized as the seminal case that serves as the focal point for all modern discussions on this topic. While other articles and commentators have challenged the underlying validity of that court’s conclusions at the time they were reached, this article will not rehash these arguments. Likewise, this article will not focus upon the various alternative legal theories that have been used to try and circumvent Barbetta. Instead, its purpose is to analyze whether the so-called Barbetta rule is still viable today under its own expressed rationale in light of subsequent changes in maritime law, technology, and the cruise industry itself.

In order to answer this question, one must first return to Barbetta in order to examine its underpinnings. In Barbetta, the Fifth Circuit framed the issue before it by stating:

The first justification emphasizes the nature of the relationship between the passenger and the physician, and the carrier’s lack of control over that relationship.
. . . .
“The work which a physician or a surgeon does . . . is under the control of the passengers themselves. It is their business, not the business of the carrier. . . . The master or owners of the ship cannot interfere in the treatment of the medical officer when he attends a passenger. He is not their servant engaged in their business, and subject to their control as to his mode of treatment.”
. . . .
[Secondly] “[a] ship’s physician is an independent medical expert engaged on the basis of his professional qualifications and carried on board a ship for the convenience of passengers, who are free to contract with him for any medical services they may require.”

It is therefore clear from both Barbetta and its progeny that there are two central principles relied upon in support of the rule of non-liability: (1) that the ship carries the doctor for “the convenience of [its] passengers” and (2) the ship operator has no ability to control the physician in the performance of his medical services. Subsequent developments in law, technology, and the industry itself have invalidated both of these critical foundations to the Barbetta rule, requiring a re-examination of the shipowner’s liability for the medical malpractice of a ship’s physicians and other medical staff.

Article published in the University of San Francisco Maritime Law Journal.