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Note - Man Overboard: the Missing Theory of Liability for Cruise Ship Owners


The current admiralty law regime insulates ship owners from vicarious liability for an onboard physician’s negligence toward passengers. Strict application of this rule in the cruise ship context produces inequitable outcomes and creates different theories of tort liability for different populations aboard the vessel; liability is imputed to the ship owner for negligence in treating crewmembers but not when treating passengers. Courts addressing this issue cite two justifications for maintaining the antiquated rule: the ship owner’s lack of control over the physician-passenger relationship and the ship owner’s lack of expertise to evaluate or supervise the physician’s work. Consistent with agency law principles of vicarious liability, both justifications are grounded in the concept of control. However, in light of current maritime realities in the law and the industry, the rule requires reconsideration. There are a number of deliberate mechanisms in place to prevent passengers from bringing claims against cruise ship enterprises. The law should not be an additional barrier to insulate a massive international industry at the expense of individual consumers. The Supreme Court has previously modified maritime doctrines when they are no longer justifiable and should do so here. In 2010 Congress passed a statute addressing the cruise ship industry because it recognized the danger inherent in the excursion, the consumers’ ignorance of the danger, and the degree to which passengers rely on the ship owner. Congress has shown that it can correct the perpetuation of inequities and should do so here. The issue of vicarious liability for cruise ship owners is ripe for evaluation. A number of courts have recognized the deficiencies in the current regime and attempted to reconcile the rule with contemporary realities. However, because admiralty jurisprudence places a premium on consistency and uniformity, most attempts at change are met with resistance. Thus, action by the Supreme Court or Congress is necessary to achieve a comprehensive change that reconfigures the current rule, which promotes inequitable outcomes and conflicts with other fields of law. Judicial pushback in the lower courts and relevant federal legislation suggest the issue is ripe for the Supreme Court’s input.