[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 22, 2004
No. 03-15321
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 00-02523-CV-JEM
JANE DOE,
Plaintiff-Appellant-Cross Appellee,
versus
CELEBRITY CRUISES, INC., in personam,
ZENITH SHIPPING CORPORATION, in personam,
APOLLO SHIP CHANDLERS, INC., in personam,
CELEBRITY CATERING SERVICES PARTNERSHIP, in personam,
Defendants-Appellees-Cross-Appellants,
BARIS AYDIN, in personam,
M/V ZENITH, her engines,
boilers, tackle, etc., in rem,
Defendants-Appellees.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(December 22, 2004)
Before HULL and MARCUS, Circuit Judges, and MILLS *, District Judge.
HULL, Circuit Judge:
This appeal presents the question of what standard of care governs when a
cruise line’s crew member sexually batters a passenger. In a pre-trial ruling, the
district court determined that a cruise line, as a common carrier, owes a duty of
protection and safe transport to its passengers, and thus is strictly liable for crew
member assaults on passengers. The jury trial focused on whether the plaintiff
consented or was sexually battered by the crew member.
After the verdict and entry of judgment for the plaintiff, the district court sua
sponte raised an entirely new issue regarding which of the four defendants actually
employed the errant crew member and whether that employer was a common
carrier. Soon thereafter, the district court granted a Rule 50(b) judgment as a
matter of law to all defendants, concluding that the plaintiff failed to prove any
single defendant was both a common carrier and the employer of the crew member
*
Honorable Richard Mills, United States District Judge for the Central District of Illinois,
sitting by designation.
2
and therefore that no defendant was liable for the crew member’s assault.
After review and oral argument, we reverse the Rule 50(b) entry of judgment
for the defendants because the district court lacked authority to enter judgment
under Rule 50(b) on a new ground not raised by any party prior to submission of
the case to the jury. We also reinstate and affirm the jury’s verdict for the plaintiff
because we conclude that under federal maritime law, a cruise line is strictly liable
for crew member assaults on passengers during the cruise.
I. PROCEDURAL HISTORY
On July 17, 1999, Plaintiff Jane Doe, as a passenger on the cruise ship M/V
ZENITH, embarked on a one-week round-trip cruise from New York City to
Bermuda. During the cruise, Doe reported to the cruise line’s medical staff that
Baris Aydin, a crew member and Doe’s dinner waiter, raped her. The medical staff
treated Doe, and the cruise line flew her home from Bermuda on July 21, 1999.
A. Original Complaint
On July 14, 2000, Doe filed a nine-count complaint against defendants
Celebrity Cruises, Inc., Zenith Shipping Corporation, Apollo Ship Chandlers, and
against the M/V ZENITH, her engines, boilers, tackle, etc., in rem.1
1
Celebrity Cruises, Inc. is the operator of the M/V ZENITH; Zenith Shipping Corporation
is the owner of the vessel; and Apollo Ship Chandlers provides certain services and personnel to
Celebrity Catering Services Partnership, which in turn provides food and beverage services to
Celebrity Cruises’ vessels. Doe later added Celebrity Catering Services Partnership as the fourth
3
Based on Aydin’s rape of Doe, the complaint alleged one count each of
sexual assault, sexual battery, and negligence, two counts of breach of the contract
of carriage, two counts of intentional infliction of emotional distress, and two
counts of negligent infliction of emotional distress.2
The defendants collectively moved to dismiss the complaint, contending that
they are not liable for Aydin’s intentional misconduct. Defendants argued that
they are liable (1) only for their own breach of reasonable care under the
circumstances and (2) only for their employees’ intentional conduct while acting
within the scope of their employment and in furtherance of the defendants’
business purposes.
Denying defendants’ motion in part, the district court ruled that a cruise line,
as a common carrier, is strictly liable for crew member assaults on passengers. The
district court dismissed without prejudice parts of Doe’s complaint and allowed
Doe to amend her complaint to allege vicarious or strict liability causes of action.3
B. Third Amended Complaint
defendant.
2
The original complaint contained allegations about the negligent treatment Doe received
from the cruise line’s medical staff and security personnel after the rape. These claims are not at
issue in this appeal. As noted later, the district court dismissed parts of Doe’s complaint with
prejudice (including her breach of contract claims), and Doe has not appealed that dismissal.
3
Doe’s complaint also named Baris Aydin, the crew member, as a defendant, but he was
never served with process and was not a defendant at trial.
4
Doe amended her complaint three times. Those amendments (1) added
Celebrity Catering Services Partnership as a defendant, (2) alleged more specific
facts on two theories of negligence, and (3) added four vicarious or strict liability
counts. The third amended complaint alleged five causes of action against all four
defendants: (1) several theories of negligence; (2) vicarious or strict liability for
Aydin’s sexual assault of Doe; (3) vicarious or strict liability for Aydin’s battery of
Doe; (4) vicarious or strict liability for Aydin’s intentional infliction of emotional
distress against Doe; and (4) vicarious or strict liability for Aydin’s negligent
infliction of emotional distress upon Doe.
In each strict liability count, Doe alleged that all defendants “are responsible
and/or are strictly liable for the acts of their respective employees, servants and/or
agents, including defendant Aydin,” as follows:
As a crew member of the M/V ZENITH, Aydin owed a duty to protect
and care for the plaintiff’s safety. He, instead, deliberately,
knowingly and intentionally breached this duty by sexually assaulting,
raping and/or battering the plaintiff. . . . Defendants Celebrity, ZSC,
M/V ZENITH, Apollo and/or Celebrity Catering are responsible for
and/or are strictly or vicariously liable for the acts of their respective
employees, servants and/or agents, including defendant Aydin.
After the ruling on the defendants’ motion to dismiss and the filing of the third
amended complaint, the parties litigated the case as a tort case.
C. Pre-Trial Stipulation and Trial
5
On October 18, 2002, the parties entered into a pre-trial stipulation.
Notably, they stipulated that “[f]or the purposes of the forthcoming trial, the parties
will try only those issues relating to the strict (vicarious) liability standard as
articulated and ordered by [the district court] in [its] Order dated February 26,
2001.” Specifically, the parties’ stipulation stated that these issues of fact
remained to be litigated:
A. As to the issue of rape, sexual assault and battery, whether
or not the Plaintiff consented to the sexual contact with Aydin.
B. As to damages, the precise nature and extent of the damages
claimed.
C. The Plaintiff has a cause of action for Intentional Infliction
of Emotional Distress. The parties disagree whether this cause of
action is subsumed within the strict liability count or whether it should
be presented separately at trial.
No one raised a legal or fact issue about which of the four defendants employed
Aydin or about whether Aydin’s employer was a common carrier. Instead, as to
the strict liability claim, the defendants chose to litigate only whether Doe
consented to the sexual intercourse and the amount of damages.
The case proceeded to trial, and at the close of the plaintiff’s evidence, the
defendants filed three separate written motions for judgment as a matter of law
pursuant to Rule 50(a) of the Federal Rules of Civil Procedure. Specifically,
defendants’ Rule 50(a) motions argued: (1) that as to Doe’s intentional infliction of
emotional distress claims, Doe failed to show an independent tort (other than the
6
alleged rape) rising to the level of “outrageousness” required under Florida law; (2)
that as to the assault and battery claims, Doe failed to provide sufficient evidence
from which a jury could find that Aydin intended to batter or assault Doe; and (3)
that as to the strict liability claims, “notwithstanding [the pre-trial] ruling . . . that
strict liability applies,” the “Defendants renew the arguments put forth in their
Motion(s) to Dismiss.” In other words, the third Rule 50(a) motion renewed their
objections to the strict liability standard insofar as it applied to common carriers at
all. Again, no defendant ever raised any issue relating to the status of Aydin’s
employer as a common carrier. The district court granted the defendants’ motion
for judgment as a matter of law on Doe’s emotional distress claims, but denied the
other two motions.
At the close of all evidence, the defendants orally “renewed all of [their]
previously denied directed verdict motions.” The district court denied the
defendants’ Rule 50(a) motions again and submitted Doe’s sexual assault and
sexual battery claims to the jury.
As to the sexual battery, the district court instructed the jury that the
defendants were strictly liable if Doe proved actual sexual penetration and that
“that act” was done without her consent, as follows:
Sexual Battery
On Plaintiff’s claim for sexual battery, Defendants,
7
CELEBRITY CRUISES, ZENITH SHIPPING CORPORATION,
APOLLO SHIP CHANDLERS, INC., and CELEBRITY CATERING
SERVICES PARTNERSHIP are strictly liable to Plaintiff for sexual
battery if Plaintiff shows, by the greater weight of the evidence, the
following:
That Baris Aydin, with his sexual organ, penetrated or had
union with the vagina of Plaintiff; and
That act was done without the consent of Plaintiff.
(emphasis added). In contrast, as to the sexual assault, the district court instructed
the jury that the defendants were strictly liable if Doe proved Aydin (1) “intended
to commit a sexual battery” and that “the attempted act” was done without Doe’s
consent, or (2) “intended to cause the plaintiff to fear a sexual battery” and that
“the attempted act” was done without her consent, as follows:
Sexual Assault
On Plaintiff’s claim for sexual assault, Defendants . . . are
strictly liable for sexual assault if Plaintiff shows, by the greater
weight of the evidence, either:
a) That Baris Aydin intended to commit a sexual battery on the
person of Plaintiff; and that the attempted act was done without the
consent of Plaintiff; or
b) That Baris Aydin intended to cause Plaintiff to fear an
immediate sexual battery or rape; and that the attempted act was done
without the consent of Plaintiff.
(emphasis added). Thus, as charged, a finding of sexual battery required actual
penetration without Doe’s consent; whereas, a finding of sexual assault required a
specific intent to commit a crime and only an “attempted act” without Doe’s
consent.
8
On November 22, 2002, the jury returned a verdict for Doe on her sexual
battery claim, awarded her $1 million in compensatory damages, and allocated
fault equally among the four defendants. The jury returned a verdict for the
defendants on Doe’s sexual assault claim.
When the jury announced its verdict, the defendants immediately sought re-
submission of the claims and defenses “in light of the seemingly inconsistent
verdict.” After hearing argument and reviewing the memoranda filed by the
parties on this point, the district court denied the defendants’ request to have the
jury revisit its verdict. On November 27, 2002, the district court entered final
judgment on the verdict in favor of Doe and against all defendants.
D. Post-Judgment Motions
On December 12, 2002, the defendants filed three separate motions: (1) for
remittitur of the amount of the jury verdict, (2) for a new trial based on the
allegedly inconsistent verdicts and several allegedly erroneous evidentiary rulings,
and (3) for judgment as a matter of law under Rule 50(b). The defendants’ Rule
50(b) motion renewed their objections to the pre-trial ruling about strict liability
and argued that Aydin’s conduct was outside the scope of his employment and that
defendants were thus not vicariously or strictly liable for his acts.
Alternatively, even if the strict liability standard applied, defendants argued
9
that strict liability requires an intentional tort and that strict liability could not
attach based on Aydin’s sexual battery because the court’s jury instruction on
sexual battery did not include an intent element. According to the defendants, once
the jury found for them on the issue of sexual assault (the only one of the two torts
that contained a specific intent element), defendants were entitled to judgment as a
matter of law.
At the March 18, 2003, hearing on these post-judgment motions, the district
court raised, sua sponte, the issue of whether any one of the four defendants was
both a common carrier and Aydin’s employer, and ordered further briefing on the
issue. It is undisputed that at trial the defendants never moved under Rule 50(a)
for judgment on the basis that Doe had failed to prove which of the four defendants
actually employed Aydin and whether that particular defendant was a common
carrier.
On September 23, 2003, the district court entered an order granting the
defendants’ Rule 50(b) motion for judgment as a matter of law but solely on the
new ground that none of the defendants was both a common carrier and Aydin’s
employer, and that since no defendant met both requirements, no defendant could
be liable. The district court also vacated its November 17, 2002, judgment in favor
10
of Doe and entered an amended final judgment in favor of all defendants.4 The
district court then denied as moot the defendants’ other post-judgment motions for
remittitur and for new trial.
Doe appeals from this amended final judgment and the district court’s
September 23, 2003, order granting judgment as a matter of law to defendants
under Rule 50(b) based on lack of proof that any one defendant was both a
common carrier and Aydin’s employer. Defendants cross-appeal, asserting that the
district court erred in imposing a strict liability standard for crew member assaults
and in denying their Rule 50(a) and 50(b) motions that renewed their objections to
that strict liability standard.
Before examining the issues on appeal, we recount the evidence at trial.
II. TRIAL EVIDENCE
In July of 1999, Baris Aydin lived aboard the cruise ship M/V ZENITH,
and worked as a ship waiter 16 hours a day, seven days a week. Aydin worked
breakfast, lunch, dinner and the midnight buffet, and served the same set of
passengers at dinner every night for the duration of their cruise.
The defendants mainly utilized a “tipping system” for paying Aydin and
4
Shortly before trial, this case was reassigned to a different district court judge. Thus, the
judge who made the pre-trial ruling as to strict liability was different from the judge who
presided over the trial and granted the Rule 50(b) judgment as a matter of law for the defendants.
11
apparently other similarly-situated crew members. Passengers were assigned to the
same dinner table and waiter each night. The guests whom Aydin served at his
tables left money in envelopes or gave it to him personally. He made $800-$1,000
per week in tips. In addition to tipping him, Aydin’s assigned dinner passengers
filled out evaluations at the end of the cruise. These evaluations determined how
many tables/passengers Aydin was assigned, and therefore how much money he
made in tips. Aydin testified that there is a direct relationship between the
satisfaction of his passengers and his income.5
Plaintiff Doe purchased a ticket for a round-trip cruise from New York to
Bermuda aboard the M/V ZENITH. Doe and five of her friends, all in their early
twenties, went on the cruise with four parents. Their group was assigned to a table
in the dining area where Aydin waited on them at dinner each night.
On the third morning of the cruise, the M/V ZENITH arrived in Hamilton,
Bermuda, a scheduled port-of-call. At dinner, one of Doe’s friends asked Aydin
“if he knew of any good places to go out on the island because the crew had been
5
Doe claims that cruise lines, such as the defendants’, largely hire foreign nationals, such
as Aydin, as waiters on their vessels, but that cruise lines do not pay them. Rather, cruise lines
set up a table assignment and tipping system and rely on passengers’ paying the waiters through
that tipping system. Further, the defendants’ waiters work on the ship but live elsewhere, and
thus passengers (who pay directly defendants’ waiters) have little chance of obtaining
jurisdiction in American courts over them or of serving process on them even if jurisdiction
exists. Aydin is a Turkish national, and as noted earlier, Doe herself was unable to locate Aydin
to serve him.
12
there before.” Aydin suggested that they go to the Oasis disco club, which they
did.
Aydin’s suggestion was not surprising because when the M/V ZENITH was
in port at Hamilton, Bermuda, it was customary for the crew and passengers to
mingle off the ship at the Oasis. Indeed, the Oasis is a short, five-to-ten-minute
walk from the ship, and the ship is clearly visible from the club. While the Oasis
closes after 3:00 a.m., Aydin testified that normally crew and passengers stay
outside for awhile after closing time. “There are lots of people who sit down
around and chat and have fun . . . . This is what usually the people do after the
club closes, they stay there and they sit down. They hang out, talk. They chat.”
The ship’s chief security officer testified that “it would be unusual not to see any
passenger or crew” on Front Street near the cruise terminal or the front of the Oasis
at 3:00 or 4:00 in the morning.
When Doe’s group arrived at the Oasis, they found several M/V ZENITH
crew members there, including Aydin whom they recognized as their waiter. The
six women and three male crew members, including Aydin, “pretty much hung out
together . . . basically having a good time, dancing and drinking.”
The Oasis closed sometime after 3:00 a.m. Doe’s group of women and the
three crew members went outside. Two women decided to return to the ship, and
13
Aydin escorted them on the short walk back to the ship. Aydin then returned to the
group outside the Oasis and discovered Doe lying on the ground in need of
assistance.6 Aydin offered to help her find a bathroom, and they attempted to go
back to the Oasis, but found it closed. They then walked back down Front Street in
the direction of the ship.7
Doe thought she was going back to the ship and did not feel any concern on
the walk “[b]ecause I trusted him. He was a crew member and I know [sic] he was
going to take me somewhere to use the bathroom to throw up.” Doe further
testified that “the only reason [she was] willing to even go for a block and a half or
two block walk with [Aydin] was because he worked on the ship.”
Aydin and Doe walked past the ship to a small public park. The ship is
clearly visible throughout the walk, and one need only take “four or five steps out
of the park, stand on Queen Street and the ship [is] right there looking at you.”
The jury found that in the park Aydin committed sexual battery against Doe, which
6
The extent of the plaintiff’s inebriation and her reason for needing help were contested
at trial. Aydin claims that Doe just needed a bathroom, and she appeared “drunk” but “she
seemed very happy.” Doe claims that she was visibly intoxicated to the point of nausea, was
attempting to vomit in the street, could not walk or stand without support and that Aydin said he
would “help [her] find a bathroom to throw up.” In the light most favorable to Doe, we must
consider her as a sick passenger in distress who needed assistance back to the ship.
7
Doe’s best friend and ship roommate had no qualms or reservations about letting Doe
walk off with Aydin “[b]ecause . . . he was a crew member. He was there to–he was going to
help her.” She would not have let her friend walk off with a stranger.
14
the court had charged as sexual penetration without her consent. According to
Doe, Aydin pushed her to the ground, bit her lip, and shoved his fingers in her
mouth to keep her quiet. Doe cried and indicated repeatedly that she wanted him
to stop.
After the sexual encounter, Aydin and Doe walked straight to the ship and
split up, with Aydin walking ahead of her on the gangway. Doe went to her room.
Doe’s friends found her there, distraught, and took her to the infirmary. Doe
reported to the nurse “that I went out with some friends, and that I was just raped
by one of the crew-members.” The ship’s doctor administered a rape kit, and Doe
filed a report with the ship’s security personnel.
After speaking to Bermudian authorities, Doe flew home, along with a friend
and that friend’s parents, on a flight paid for by defendant Celebrity Cruises. She
was examined again at a hospital in Connecticut. All of the medical records were
admitted into evidence. Over the following months, she attended numerous
counseling sessions for “rape survival” and other issues.
Celebrity Cruises’ policy prohibited crew fraternization with passengers
while on the ship, but permitted it when passengers and crew left the ship at ports-
of-call during the cruise. Aydin testified that, while there was no Celebrity policy
that crew members must assist passengers while off the ship and off duty, “[i]f they
15
are my guest, I always have to be polite with them, because I am making my
money from those people, and my ratings, too . . . [I]f it is about the passenger,
then I help them, for if I refuse to help them, then they give me trouble.”
It was Aydin’s understanding that, while on shore, Celebrity Cruises allowed
him not only to socialize with its passengers, but also to have sex with them.8
III. DISCUSSION
This is a maritime case about a crew member’s sexual battery of a passenger.
Before discussing the issues on appeal, we discuss why this case was brought in
district court in Miami, Florida and is within that federal court’s admiralty
jurisdiction.
A. Jurisdictional Issues
As for why Doe chose a Florida venue, Doe’s contract with the defendants
contained a forum selection clause requiring that “all disputes and matters
whatsoever arising under, in connection with or incident to this contract shall be
litigated, if at all, in and before a court located in Miami, Florida, U.S.A.”
Although Doe is a Connecticut resident, and the sexual battery occurred on a
round-trip cruise from New York to Bermuda, she had no choice but to sue in
8
Aydin testified that he had the opportunity to have sex with female passengers on many
occasions, if he had so desired. However, in his three years of working on the M/V ZENITH,
Aydin had sex with passengers on only three occasions, including the incident in question.
16
Miami, Florida.
As for jurisdiction, Doe’s third amended complaint alleged subject matter
jurisdiction based upon both admiralty jurisdiction and diversity of citizenship.
Because Doe is a resident of Connecticut and no defendant resides there, diversity
jurisdiction clearly exists. See 28 U.S.C. § 1332(a); Triggs v. John Crump Toyota,
Inc., 154 F.3d 1284, 1287 (11th Cir. 1998); Great No. Ry. Co. v. Galbreath Cattle
Co., 271 U.S. 99, 102-103, 46 S.Ct. 439, 440 (1926). In the past, this Court
applied admiralty law in a diversity case without specifically deciding whether
admiralty jurisdiction existed. See Shultz v. Florida Keys Dive Center, Inc., 224
F.3d 1269, 1272 (11th Cir. 2000) (explaining “[t]he question here, however, is not
whether subject matter jurisdiction is satisfied, for this case is within the diversity
jurisdiction of the federal court, but whether to apply federal admiralty law or state
law to a case within the court’s jurisdiction”). Furthermore, all parties here
continue to assert that the federal maritime law governs Doe’s claims against the
defendants. Thus, given that diversity jurisdiction exists and the parties’
agreement that admiralty law applies, we historically have gone no further.
However, the Supreme Court’s recent decision in Norfolk Southern Railway
Co. v. Kirby, 125 S. Ct. 385 (2004), suggests that in order for this Court to apply
admiralty law, this Court must have admiralty jurisdiction. Id. at 392-93 (“Indeed,
17
for federal common law to apply in these circumstances, this suit must also be
sustainable under the admiralty jurisdiction. . . . [T]he grant of admiralty
jurisdiction and the power to make admiralty law are mutually dependant . . . .”).
Although defendants never challenged the alleged admiralty jurisdiction, we have
an independent duty to ensure admiralty jurisdiction exists before applying
admiralty law. See Norfolk, 125 S. Ct. at 392-93; See also Steel Co. v. Citizens for
a Better Environment, 523 U.S. 83, 93-102, 118 S. Ct. 1003, 1011-16 (1998).
“[A] party seeking to invoke federal admiralty jurisdiction . . . over a tort
claim must satisfy conditions both of location and of connection with maritime
activity.” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S.
527, 534, 115 S. Ct. 1043, 1048 (1995). Therefore, this Court must determine if
two conditions exist: (1) location and (2) connection with maritime activity. We
address the connection with maritime activity first.
As the Supreme Court stated in Grubart, “[t]he connection test raises two
issues,” which are:
A court, first, must assess the general features of the type of incident
involved to determine whether the incident has a potentially disruptive
impact on maritime commerce. Second, a court must determine
whether the general character of the activity giving rise to the incident
shows a substantial relationship to traditional maritime activity.”
Id. (internal quotation marks and citations omitted).
18
We readily dispense with the first issue of the connection test. As the cruise
line industry is maritime commerce, a crew member’s sexual assault on a
passenger obviously “has a potentially disruptive impact on maritime commerce.”
It is easy to imagine that if rape or other forms of sexual battery became a concern
of passengers, cruise-ship business would necessarily suffer.
As for the second issue of the connection test, the character of the activity
here is the interaction between crew members and passengers during an ongoing
cruise, which clearly bears a “substantial relationship to traditional maritime
activity.” Thus, for example, in this case the errant crew member was assigned to
serve as the victim’s waiter each night while on board the ship, and was permitted
to socialize with passengers on shore. In fact, it was customary for crew members
and passengers to socialize at the Oasis bar during this particular cruise. The night
of the sexual battery, the crew member (at dinner on the ship) directed the victim’s
group to the Oasis, was there when the victim arrived, and later offered to provide
her assistance. The crew member ultimately accompanied Doe back to the ship.
Doe then reported her encounter with the crew member to the ship’s security
personnel and was examined by medical staff aboard the cruise ship. Accordingly,
we conclude that the interaction between Doe and the crew member satisfies the
connection-with-maritime-activity prong.
19
We also must consider the location of the tort. Admiralty jurisdiction
obviously exists where a crew member sexually batters a passenger while the two
are onboard the ship. See Kermarec v. Compagnie Generale Transatlantique, 358
U.S. 625, 628, 79 S. Ct. 406, 408 (1959) (“Kermarec was injured aboard a ship
upon navigable waters. It was there that the conduct of which he complained
occurred. The legal rights and liabilities arising from that conduct were therefore
within the full reach of the admiralty jurisdiction and measurable by the standards
of maritime law.”) (collecting cases).
Although some temptation exists to draw a bright line between a crew
member assault of a passenger that occurs on the ship versus in a port-of-call, “the
situation presented here has a more genuinely salty flavor than that.” Kossick v.
United Fruit Co., 365 U.S. 731, 742, 81 S. Ct. 886, 894 (1961). Furthermore, the
Supreme Court recently has taken an expansive view of admiralty jurisdiction and
stated that in modern maritime commerce “the shore is now an artificial place to
draw a line.” Norfolk, 125 S. Ct. at 388.
Although this case may represent the outer boundaries of admiralty
jurisdiction over torts, we conclude that admiralty jurisdiction extends to the
location of the sexual battery under the peculiar circumstances of this case for
several reasons. First, the stop in Bermuda was a scheduled port-of-call, and was
20
an integral part of the on-going cruise or maritime activity in this case. Ports-of-
call not only add to the enjoyment of a cruise but form an essential function of the
cruise experience. In fact, on this particular cruise, five of the seven nights were to
be spent in Bermudian ports. Plainly, individuals choose cruise ship vacations
because they want to visit unfamiliar places ashore. Cruises to Alaska, the New
England States, Bermuda or the Carribean offer fundamentally different
experiences, not generally because of any material difference between ships, but
often because of where the ships elect to stop. See Isham v. Pacific Far East Line,
Inc., 476 F.2d 835, 837 (9th Cir. 1973) (“Where a passenger or cruise vessel puts
into numerous ports in the course of a cruise, these stopovers are the sine qua non
of the cruise.”). When a passenger selects a particular cruise, ports-of-call or
stopovers provide those passengers with the “cruise experience” for which they are
paying. Simply put, the destinations or ports-of-call are frequently the main
attraction.
Just as ports-of-call serve as an integral part of the maritime cruise, nothing
about the particular facts of this case takes the crew member sexual battery outside
the scope of this Court’s admiralty jurisdiction. The sexual battery occurred very
close to the docked ship, and neither the victim passenger nor the crew member left
the port-of-call or traveled any real distance from the ship. See generally, Duluth
21
Superior Excursions, Inc. v. Makela, 623 F.2d 1251, 1253 n.5 (8th Cir. 1980)
(“Although it might be argued that Makela’s injury is remote from the wrongful
act, the accident occurred some six minutes after the S.S. Flamingo docked, on a
street that adjoins the dock.”). As demonstrated by the facts of this case, when
docked at the port-of-call, the cruise ship allowed passengers to come and go from
the ship as they elected; consequently, there was little practical difference between
the port-of-call and other parts of the ship – they were, at all times, equally
accessible to passengers. Indeed, the ship literally cast a long shadow; it was close
by and visible from the Oasis. It is thus not surprising that passengers and crew
members routinely went back and forth between the Oasis and the ship, and
routinely socialized together at the Oasis.
Moreover, in many ways this particular incident effectively began and ended
aboard the cruise ship. The necessary precursors for this sexual battery occurred
while the ship was on navigable waters; that is, it would not have occurred if the
ship had not assigned Aydin to be Doe’s waiter or if Aydin had not directed Doe’s
group to attend this particular bar within eyeshot of the ship on that fateful night.
And the incident did not end until Aydin and Doe returned to the ship and parted
ways.
More importantly, the purpose behind the exercise of this Court’s admiralty
22
jurisdiction is to provide for the uniform application of general maritime law.
Plainly, the standard of care that governs when a cruise line’s crew member
assaults a passenger should be uniform and not vary from port to port on a single
cruise. Jane Doe was no less a cruise passenger the moment she stepped off the
ship at the port-of-call than she was the moment before she stepped off the ship.
We see no reason that cruise lines’ liability to their passengers while at a regularly-
scheduled port-of-call and in a crew member’s company should vary from port to
port, especially given the potentially disruptive impact on maritime commerce.9
Indeed, a ruling that admiralty jurisdiction did not extend literally beyond the
gangplank in this case would upset the very uniformity that the Supreme Court has
determined is so important for maritime activity. See Norfolk, 125 S. Ct. at 388;
Grubart, 513 U.S. at 532, 115 S. Ct. at 1047-48.
For these reasons, we conclude that this Court has admiralty jurisdiction
over the case. Consequently, we apply federal admiralty law, the law both
requested and argued by the parties, to the events that occurred between crew
member Aydin and passenger Doe.
9
There is nothing inherently local about the cruise line-passenger relationship in this case
that militates against the application of the uniform law of admiralty. In fact, no party has
articulated any Bermudian interests at stake in determining the civil liability between Doe and
the defendants in this case.
23
B. Rule 50(b) Motion
As detailed above, at the close of plaintiff’s evidence, defendants moved for
judgment as a matter of law pursuant to Rule 50(a) of the Federal Rules of Civil
Procedure. At the close of all the evidence, defendants renewed certain Rule 50(a)
motions. After the jury’s verdict, defendants filed post-judgment motions pursuant
to Rule 50(b). None of the defendants’ Rule 50(a) or 50(b) motions, however,
raised the evidentiary issue of whether Doe had proved that any one defendant was
both a common carrier and Aydin’s employer. Nonetheless, after the defendants’
Rule 50(b) motions were filed, the district court sua sponte raised this evidentiary
issue. According to the district court,
[i]n reviewing the post-verdict motions, the Court became concerned
sua sponte with whether Plaintiff had shown the Defendants were
common carriers who employed Aydin, thereby properly imposing
liability for Aydin’s tortious act of sexual battery, as found by the
jury. Although neither party at any time raised this issue, the Court
under Fed.R.Civ. P. 50(b) shall consider it.
(emphasis added). The district court ultimately concluded that “there is no
Defendant in this case who is both a common carrier and Aydin’s employer for this
Court to impose strict liability for the tort the jury found was committed by Aydin
against Doe.” On this sole evidentiary ground, the district court granted all
defendants judgment as a matter of law under Rule 50(b).
We review de novo the district court’s rulings on motions under Rule 50 of
24
the Federal Rules of Civil Procedure, examining the trial evidence in the light most
favorable to the non-moving party. Thosteson v. United States, 331 F.3d 1294,
1298 (11th Cir. 2003).
In making its Rule 50(b) rulings, the district court clearly erred because it
lacked authority to enter judgment under Rule 50(b) for the defendants on a ground
not raised prior to the submission of the case to the jury. Rule 50(b) expressly
provides that, after a jury verdict, a party “may renew its request for judgment as a
matter of law . . . .” (emphasis added). Fed. R. Civ. P. 50(b). A Rule 50(b) motion
is a renewal of a Rule 50(a) motion. See Middlebrooks v. Hillcrest Foods, Inc.,
256 F.3d 1241, 1245 (11th Cir. 2001). This Court repeatedly has made clear that
any renewal of a motion for judgment as a matter of law under Rule 50(b) must be
based upon the same grounds as the original request for judgment as a matter of
law made under Rule 50(a) at the close of the evidence and prior to the case being
submitted to the jury. See e.g., Shannon v. BellSouth Telecomms., Inc., 292 F.3d
712, 717 n.3 (11th Cir. 2002); Middlebrooks, 256 F.3d at 1245 (11th Cir. 2001).10
10
Rule 50(b) provides:
(b) Renewing Motion for Judgment After Trial; Alternative Motion for New
Trial. If, for any reason, the court does not grant a motion for judgment as a
matter of law made at the close of all the evidence, the court is considered to have
submitted the action to the jury subject to the court's later deciding the legal
questions raised by the motion. The movant may renew its request for judgment
as a matter of law by filing a motion no later than 10 days after entry of judgment
-- and may alternatively request a new trial or join a motion for a new trial under
Rule 59. In ruling on a renewed motion, the court may:
25
As this Court stated in Middlebrooks, a Rule 50(a) motion for judgment as a
matter of law “can be renewed after trial under Rule 50(b), but a party cannot
assert grounds in the renewed motion that it did not raise in the earlier motion.”
Middlebrooks, 256 F.3d at 1245 (citation omitted). This rule ensures “that
opposing counsel will not be ‘ambushed’ or ‘sandbagged’ regarding the
sufficiency of the evidence adduced at a point in the trial proceedings when it is
too late to address possible insufficiencies. The purpose of Rule 50(b) . . . [is] ‘to
avoid making a trap’ out of a motion for JNOV.” Crawford v. Andrew Sys., Inc.,
39 F.3d 1151, 1153-54 (11th Cir. 1994) (quoting Sims’ Crane Serv. v. Ideal Steel
Prod., Inc., 800 F.2d 1553, 1557 (11th Cir. 1986)).
Given the purpose and renewal nature of a Rule 50(b) motion, this Court
also has instructed that a district court does not have the authority under Rule 50(b)
to rule sua sponte on issues not raised by the parties. Crawford, 39 F.3d at 1154
(“Just as we would not permit defendants who had made no previous motion to ask
the court to rule on the legal sufficiency of the evidence once a verdict had been
(1) if a verdict was returned:
(A) allow the judgment to stand,
(B) order a new trial, or
(C) direct entry of judgment as a matter of law; or
(2) if no verdict was returned;
(A) order a new trial, or
(B) direct entry of judgment as a matter of law.
Fed. R. Civ. P. 50(b).
26
returned against them, we cannot permit the district court to so rule sua sponte.”).11
In this case, after the jury rendered its verdict, the district court sua
sponte became concerned with an evidentiary issue – whether any one defendant
was both a common carrier and Aydin’s employer – not raised by the parties prior
to submission of the case to the jury. We recognize that the district court did
request and allow further, post-judgment briefing on the issue. Nonetheless, the
district court ultimately granted judgment as a matter of law based upon a lack of
evidence regarding a factual issue never raised by any defendant before the trial,
and never addressed by anyone in any way before submission of the case to the
jury. This is precisely the type of post-verdict “trap” that Rule 50(b) is designed to
avoid.
Accordingly, we conclude that the district court lacked authority to grant a
11
This rule is consistent with those of our sister circuits. See American and Foreign Ins.
Co. v. Bolt, 106 F.3d 155, 160 (6th Cir. 1997) (“The opinion below explicitly states that the
Magistrate found the Garden City decision himself and sua sponte relied on it as a basis for
granting JNOV. This action is in contravention of the dictates of Fed. R. Civ. P. 50(b) and for
that reason must be reversed.”); Murphy v. City of Long Beach, 914 F.2d 183, 185-86 (9th Cir.
1990) (concluding that “[f]or the same reasons a party may not seek a JNOV on grounds not
alleged in their motion for directed verdict, a district court may not enter a JNOV on grounds not
asserted in a party’s motion for directed verdict”); Kutner Buick, Inc. v. American Motors Corp.,
868 F.2d 614, 617 (3rd Cir. 1989) (reversing district court's decision to grant JNOV where that
decision was based on grounds other than those advanced in the party's motion); Mozingo v.
Correct Mfg. Corp., 752 F.2d 168, 171-72 (5th Cir. 1985) (reversing a district court's decision
granting JNOV on a ground not advanced by the party's motion as an abuse of the court's
discretion and a violation of the precepts of Rule 50(b)). As an example of how Rule 50(b)
should be applied, the Advisory Committee’s Notes on Rule 50(b) reference the Third Circuit’s
Kutner Buick decision. See Fed. R. Civ. P. 50(b) advisory committee’s note.
27
Rule 50(b) judgment on a ground not raised by the parties prior to the submission
of the case to the jury. We therefore vacate the district court’s Rule 50(b)
judgment as a matter of law in favor of the defendants and reinstate the jury’s
verdict in favor of the plaintiff Doe.
While this Rule 50(b) issue is easily resolved by our precedent, the next
issue is not. The defendants’ cross-appeal raises the important issue of whether a
cruise line, as a common carrier, is strictly liable for crew member assaults on its
passengers during transit. Accordingly, we must navigate through considerable
precedent about the duty of common carriers to protect and safely transport their
passengers and common carriers’ corresponding liability for crew member assaults.
C. Liability for Crew Member Assaults
1. Supreme Court
As to the issue of common carriers’ special duty to their passengers, there
are only three Supreme Court decisions that bear on the issue. New Jersey Steam-
Boat Co. v. Brockett, 121 U.S. 637, 7 S. Ct. 1039 (1887); New Orleans & N.E.R.
Co. v. Jopes, 142 U.S. 18, 12 S. Ct. 109 (1891); Kermarec v. Compagnie Generale
Transatlantique, 358 U.S. 625, 79 S. Ct. 406 (1959). The parties cite these same
cases but disagree about their import. We thus begin by analyzing these three
decisions.
28
In 1887, the United States Supreme Court first addressed crew member
assaults against ship passengers. In Brockett, the passenger was improperly “abaft
the shaft,” an area of the ship forbidden to “deck passengers.” 121 U.S. at 1040, 7
S. Ct. at 644. A crew member violently removed the passenger from the forbidden
area, dislocated his shoulder, and used unnecessary and excessive force. 121 U.S.
at 1042, 75 S. Ct. at 647. The Supreme Court upheld the jury’s verdict
compensating the passenger for his injuries. The Supreme Court concluded that,
despite the passenger’s presence in a forbidden area, if the passenger’s injuries
“were directly caused by the improper conduct of the carrier’s servants, either
while acting within the scope of their general employment, or when in the
discharge of special duties imposed upon them, [the passenger] is not precluded
from claiming the benefit of the contract for safe transportation.” Brockett, 121
U.S. at 645, 7 S. Ct. at 1041. Rather, the passenger was entitled “to protection
against the misconduct or negligence of the carrier’s servants.” Id.
In Brockett, the Supreme Court further stated that the “misconduct or
negligence” of the carrier’s servants “while transacting the company’s business,
and when acting within the general scope of their employment, is of necessity to be
imputed to the corporation.” Id. “[I]t makes no difference that the master did not
authorize or even know of the servant’s act or neglect, or even if he disapproved or
29
forbade it, he is equally liable if the act be done in the course of his servant’s
employment.” Id. (quotation marks and citation omitted).
This principle, according to the Supreme Court in Brockett, is “peculiarly
applicable as between carriers and passengers; for . . . a common carrier is bound,
as far as practicable, to protect its passengers, while being conveyed, from violence
committed by strangers and co-passengers, and undertakes absolutely to protect
them against the misconduct of its own servants engaged in executing the
contract.” Id. at 645-46, 7 S. Ct. at 1041 (citation omitted) (emphasis added).
In reaching these conclusions in a ship case, the Supreme Court in Brockett
relied exclusively upon prior decisions involving trains, and in effect, treated a ship
as a common carrier similar to a train.12 As shown here and later in this opinion,
the federal maritime law essentially relies upon, and incorporates, the federal
common law governing a common carrier’s liability as its liability standard for
crew member assaults on passengers.
Given Brockett’s reference to a duty of absolute protection against crew
member misconduct, some courts subsequently read Brockett as not allowing a
12
In this case, the parties do not dispute that a cruise ship is considered a common carrier
under federal maritime law. See Shultz v. Florida Keys Dive Center, 224 F.3d 1269, 1273 (11th
Cir. 2000) (describing cruise ships as common carriers); Kornberg v. Carnival Cruise Lines, Inc.,
741 F.2d 1332, 1334 (11th Cir. 1984) (same). Rather, they dispute the standard of care owed by
ship defendants, as common carriers, to their passengers.
30
ship-employer to defend an assault claim on the basis that the crew member was
acting outside the scope of his employment. See, e.g. Pacific S.S. Co. v. Sutton, 7
F.2d 579, 580 (9th Cir. 1925) (citing Brockett for proposition that “scope of
employment” is not required); Forrester v. Southern Pac. Co., 134 P. 753, 774-75
(Nev. 1913) (same). In fact, Brockett is ambiguous on this issue because it
contains conflicting formulations and leaves open to interpretation whether the
wrongful act at issue necessarily must be within the “scope of the employment,” or
merely in the “course of employment.”
In any event, a few years later the Supreme Court applied and clarified
Brockett in another common carrier case, New Orleans & N.E.R. Co. v. Jopes, 142
U.S. 18, 12 S. Ct. 109 (1891). Jopes involved a conductor’s shooting of a train
passenger. The Supreme Court in Jopes appears to have removed any scope-of-
employment requirement and concluded that a common carrier is absolutely liable
for unlawful assaults by its employees against its passengers. In Jopes, the
Supreme Court quoted Brockett’s rule that “a common carrier undertakes
absolutely to protect its passengers against the misconduct or negligence of its own
servants, employed in executing the contract of transportation, and acting within
the general scope of their employment.” 142 U.S. at 25, 12 S. Ct. at 111 (quoting
Brockett, 122 U.S. at 637, 7 S. Ct. At 1039). But after discussing Brockett, the
31
Supreme Court in Jopes noted that “courts hold that the liability of a common
carrier to his passengers for the assaults of his employees is of a most stringent
character, far greater than that of ordinary employers for the actions of their
employes [sic].” Jopes, 142 U.S. at 26, 12 S. Ct. at 112. In Jopes, the Supreme
Court then cited a legal treatise for the proposition that a common carrier is “bound
absolutely to see to it that no unlawful assault or injury is inflicted upon
[passengers] by their own servants.” Id. (citation omitted).
More importantly, in Jopes, the Supreme Court further explained that the
defense most often raised by an employer in a case involving an employee’s
assault upon a passenger was that the employee’s act “was a wanton and willful act
on his part, outside the scope of his employment, and therefore something for
which his employer was not responsible.” Id., 142 U.S. at 27, 12 S. Ct. at 112.
The Supreme Court acknowledged that “if the act was of that character, the general
rule is that the employee alone, and not the employer, is responsible.” Id.
However, the Supreme Court in Jopes continued, “[b]ut owing to the peculiar
circumstances which surround the carrying of passengers, as stated, a more
stringent rule of liability has been cast upon the employer; and he has been held
liable although the assault was wanton and willful, and outside the scope of the
32
employment.” Id. (emphasis added).13
The Supreme Court in Jopes further stated that this liability rule is extremely
broad and encompasses unlawful acts plainly not done “in furtherance of the
carrier’s business” as follows:
Recent cases state this liability in the broadest and strongest language;
and, without going beyond the actual decisions, it may be said that the
carrier is liable for every conceivable wrongful act done to a
passenger by its train hands and other employees while they are
engaged in transporting him, no matter how willful and malicious the
act may be, or how plainly it may be apparent from its nature that it
could not have been done in furtherance of the carrier’s business.
Id., 142 U.S. at 26, 12 S. Ct. at 112 (citation and quotation marks omitted).
In both Brockett and Jopes, the Supreme Court spoke of common carrier
liability in general, and was unconcerned with whether the specific mode of
transport was a ship or a train.14 As noted earlier, Brockett, a ship case, cited and
13
This strict liability of a common carrier for employee assaults on passengers is
premised historically in part upon the entrustment of passengers’ personal safety to the common
carrier. Craker v. Chicago & Northwestern Ry. Co., 36 Wis. 657, 671 (1875) (“passengers of
necessity commit to [the officers of a common carrier] their safety and comfort in transitu”);
Goodard v. Grand Trunk Ry. of Canada, 57 Me. 202, 213-14 (1869) (noting of common carriers
that “[t]o their care and fidelity are intrusted the lives and limbs and comfort and convenience of
the whole traveling public, and it is certainly as important that these servants should be
trustworthy as it is that they be competent” and further that “[t]he carrier’s obligation is to carry
his passengers safely and properly, and to treat him respectfully, and if he intrusts the
performance of this duty to his servants, the law holds him responsible for the manner in which
they execute the trust.”).
14
See discussion on this point in Philip H. Budwick, “Strict Liability or Negligence: What
Standard of Care Applies When Crewmembers Assault Passengers on Cruise Ships?” 19 Tul.
Mar. L.J. 353, 358 (1995) (“Because the Brockett Court cited several railroad cases for authority
and the Jopes Court cited Brockett, it is reasonable to suggest that the rule in Jopes also applies
33
discussed train cases. In turn, Jopes, a train case, cited and discussed Brockett.15
After noting in Jopes that a common carrier is liable for its employee’s
assault on a passenger outside the scope of his employment, the Supreme Court
then dealt with the narrow issue of whether an employee’s conduct must be
unlawful before it triggers this stringent liability imposed on the common carrier
employer. The Supreme Court concluded that if the conductor-employee’s
shooting the passenger was in self-defense and therefore lawful, the employee was
not liable and in turn the common-carrier employer was not liable. Id., 142 U.S. at
27, 12 S. Ct. at 112.16
to passenger ships because both are considered common carriers.”).
15
The Supreme Court continues to shape its federal maritime law from its decisions about
common carriage involving trains. See Norfolk Southern R. Co. v. Kirby, 125 S. Ct. 385, 389
(2004) (deriving rule in maritime case from railroad common carrier case) (citing Great Northern
R. Co. v. O’Connor, 232 U.S. 508, 34 S. Ct. 380 (1914)).
16
After Jopes, numerous courts in both ship cases and train cases have concluded that a
common carrier is strictly liable for assaults by its employees against passengers. See, e.g
Matthews v. Southern Ry. Sys., 157 F.2d 609, 610-11 (D.C. Cir. 1946) (stating that a “common
carrier is required to protect its passengers against assault or interference with the peaceful
completion of their journey.”); Pullman Co. v. Hall, 46 F.2d 399, 404 (4th Cir. 1931) (noting
exception to general liability rule and holding common carrier liable to passenger for a servant’s
assault); Pacific S.S. Co. v. Sutton, 7 F.2d 579, 580 (9th Cir. 1925) (steam ship company has
duty “to carry safely and to protect its passenger from violence and insult committed by its own
servants.”); Kansas City S. Ry. Co. v. Willsie, 224 F. 908, 910 (8th Cir. 1915) (discussing “the
absolute nature of the carrier’s duty to protect the passenger from the assaults and insults of its
own servants during the transit”); Marks v. Alaska S.S. Co., 127 P. 1101, 1101 (Wash. 1912)
(ship owner owed to passenger “a duty of absolute protection from the assaults and aggressions
of it servants, and the rule is well-nigh universal that the carrier cannot plead as a defense that
the servant acted outside the scope of his employment.”); see also The Minnetonka, 146 F. 509,
513 (2nd Cir. 1906) (noting, where a crew member stole a ship passenger’s jewelry, that the
liability of the vessel for the willful torts of its crew is “well established.”).
34
It is noteworthy that Jopes relied upon the carrier-passenger relationship and
the “peculiar circumstances which surround the carrying of passengers.” Id. A
common carrier’s strict liability to a passenger for crew member assaults during
transit rests upon its special implied duty of protection and safe transport that it
owes as a common carrier through its employees to its passengers, and not for the
reason that the act is incident to a duty within the scope of the crew member’s
employment. See, e.g. Kansas City S. Ry. Co. v. Willsie, 224 F. 908, 911 (8th Cir.
1915) (acknowledging “the absolute nature” of the carrier’s duty to protect
passengers from assaults by its employees and stating that “[t]he carrier is liable in
such cases because the act is violative of the duty and a breach of the obligation it
owes through the servant to the passenger, and not upon the idea that the act is
incident to a duty within the scope of the servant's employment”). In other words,
the rationale for imposing strict liability on the common carrier employer is the
carrier-passenger relationship and the corresponding existence of an implied duty
of protection and safe transport free from assault by the carrier’s employees during
transit. In terms of tort liability, this becomes, in effect, a special non-delegable
duty owed by the carrier to the passenger.17
17
Defendants argue that the district court’s dismissal of Doe’s breach-of-contract claims
makes it impossible for her to recover. While it is the contract for safe transportation that creates
an implied duty on the part of the common carrier to protect and safely transport its passengers,
the “breach of the carrier’s duty is a maritime tort.” Kornberg, 741 F.2d at 1334 (11th Cir. 1984)
35
As plaintiff points out, a comment to the Restatement (Second) of Agency
explains how a duty to protect may be imposed by law by virtue of and as incident
to the carrier-passenger relationship, as follows:
A master or other principal may be in such relations to another
that he has a duty to protect, or to see that due care is used to protect,
such other from harm although not caused by an enterprise which has
been initiated by the master or by things owned or possessed by him.
This duty may be created by contract, as where one agrees to protect
another, or may be imposed by law as incident to a relation
voluntarily entered into, as the relation of carrier and passenger, or by
statute . . . . [T]he fact that the one to whom the performance of the
duty is delegated acts for his own purposes and with no intent to
benefit the principal or master is immaterial.
Restatement (Second) of Agency § 214 cmt. e (1958) (emphasis added).18
Further, we reject the defendants’ claim that the Supreme Court abandoned
the Jopes rule in Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625,
79 S. Ct. 406 (1959). In Kermarec, the plaintiff was not a passenger, but was
visiting a crew member. While on board the ship, the plaintiff fell on a staircase
allegedly due to the improper way a runner was attached to the stairs. The plaintiff
(citation and quotation marks omitted); see also Nadeau v. Costley, 634 So. 2d 649, 653 (Fla.
Dist. Ct. App. 1994) (concluding that the breach of a cruise line’s duty to protect its passengers
due to a crew-member assault is actionable “in tort (strict vicarious liability) or contract (breach
of contract of carriage based on an intentional assault)”).
18
In this same comment to the Restatement (Second) of Agency, the American Law
Institute also provided the following illustration: “P, a railroad, employs A, a qualified
conductor, to take charge of a train. A assaults T, a passenger. P is subject to liability to T.”
Restatement (Second) of Agency § 214 cmt. e, illus. 3 (1958).
36
sued for personal injury due to the ship owner’s negligence. Id. at 626-27, 79 S.
Ct. at 407-08. The district court in Kermarec concluded that the ship owed a lower
standard of care to the plaintiff as a “gratuitous licensee” under the laws of New
York. Id. at 629, 79 S. Ct. at 409.
The Supreme Court in Kermarec decided that admiralty law need not import
the land-based common law distinctions between “invitees” and “licensees,” Id. at
631, 79 S. Ct. at 410, and concluded “that the owner of a ship in navigable waters
owes to all who are on board for purposes not inimical to his legitimate interests
the duty of exercising reasonable care under the circumstances of each case.” Id. at
632, 79 S. Ct. at 410. In analyzing the ship’s liability to the visitor, the Supreme
Court in Kermarec also stated that, “[i]t is a settled principle of maritime law that a
shipowner owes a duty of exercising reasonable care towards those lawfully aboard
the vessel who are not members of the crew.” Id. at 630, 79 S. Ct. at 409.
While this reasonable care language in Kermarec is broad, the Supreme
Court was answering only a narrow question of law regarding whether the
distinction between “licensees” and “invitees” imposed a lower standard of care on
ship owners in a slip-and-fall case.
More importantly, Kermarec did not involve an assault or any intentional
tort committed by a crew member on a passenger. Rather, Kermarec was a
37
common, garden variety negligence case no matter how it is characterized. Indeed,
Kermarec addressed the standard of care owed by common carriers in a situation
where a person sustained personal injuries due to the physical condition of the
ship. Further, Kermarec did not cite or discuss Brockett or Jopes. Quite simply,
there is no indication in Kermarec that the Supreme Court intended to eliminate the
more stringent rule in Jopes imposing liability on a common carrier for its
employees’ assaults of passengers.19
19
Earlier we noted that Section 214 of the Restatement (Second) of Agency supports our
conclusion regarding common carrier liability for crew member assaults. Likewise, the tentative
draft of the Restatement (Third) of Agency, in the corresponding section states: “A principal
required by law to protect another cannot avoid liability by delegating performance of the duty to
another, whether or not the delegate is an agent.” Restatement (Third) of Agency § 7.06
(Tentative Draft No. 5, 2004). The relevant comment notes that the section “states the basic
tort-law principle that a principal may be subject to liability to a third person when the principal
is under a duty to protect that person. The principle is often termed one of "nondelegable" duty .
. .” Id. § 7.06, cmt. a. Further, the Reporter’s Notes under this section specifically apply the
same rule as we do to ship owners’ liability for their crew’s misconduct against passengers:
In admiralty cases, it was long assumed that a ship owner was subject to liability
for its employees' misconduct against passengers. See New Jersey Steamboat Co.
v. Brockett, 121 U.S. 637 (1887) (ship owner liable when employee forcibly
removed passenger from area of ship); New Orleans & N.E.R.R. Co. v. Jopes,
142 U.S. 18 (1891) (extending owner's strict liability under Brockett to
circumstances in which employee acted outside scope of employment, as by
shooting passenger). In Kermarec v. Compagnie Generale Transatlantique, 358
U.S. 625, 632 (1959), the Court held that "the owner of a ship in navigable waters
owes to all who are on board for purposes not inimical to his legitimate interests
the duty of exercising reasonable care under the circumstances." Kermarec did
not overrule Brockett or Jopes, however, and involves not an employee's tort
against a passenger but a passenger's fall down a defectively-constructed
staircase.
Id., note b.
38
Although we agree with the defendants that the age of the Brockett and
Jopes decisions and the intervening decision in Kermarec suggest that the Supreme
Court might well reconsider its former rulings were an opportunity to arise, the
defendants fail to persuade us that Kermarec overruled Brockett and Jopes, either
explicitly or implicitly. Instead, we agree with Doe that Brockett and Jopes
represent the current state of the controlling federal law as to crew member assaults
on passengers.20 Our precedent, as well as the decisions of other circuits, support
this conclusion.
2. Eleventh Circuit
While we can locate no post-Kermarec decision in our Circuit involving a
crew member assault on a passenger, there is a slip-and-fall decision that mentions
in dicta “the unconditional responsibility” a common carrier has for its employees’
misconduct. Tullis v. Fid. & Cas. Co. of New York, 397 F.2d 22, 23 (5th Cir.
20
Interestingly, our reading of the rules enunciated in Brockett and Jopes is consistent
with the current congressional direction on the issue before us. In 1996, Congress amended 46
U.S.C. App. § 183c, which forbids a vessel owner or operator from contractually limiting
negligence liability, to include a section allowing the vessel to limit its liability for the infliction
of emotional distress. Pub.L. 104-324, § 1129(b). However, Congress specifically provided that
such contractual limitations on liability could not limit liability for distress “intentionally
inflicted by a crewmember or the manager, agent, master, owner or operator.” 46 U.S.C. App.
§ 183c(b)(1)(C). The statute further provides that “[n]othing in this subsection is intended to
limit the liability of a crewmember or the manager, agent, master, owner, or operator of a vessel
in a case involving sexual harassment, sexual assault, or rape.” 46 U.S.C. App. § 183c(b)(2).
39
1968).21 In Tullis, this Court concluded that negligence was the applicable liability
standard for the slip-and-fall in that case and cited Kermarec. This Court in Tullis,
however, also noted that in an admiralty action involving liability to ship
passengers, “[t]he liability basis is negligence with the only apparent exception
being the unconditional responsibility of the carrier for the misconduct of the crew
toward the passengers.” Id. at 23.
Our other slip-and-fall cases apply the Kermarec standard of reasonable care
under the circumstances. Everett v. Carnival Cruise Lines, 912 F.2d 1355 (11th
Cir. 1990) (passenger tripped over metal threshold cover in a doorway); Keefe v.
Bahama Cruise Lines, Inc., 867 F.2d 1318 (11th Cir. 1989) (passenger slipped and
fell in a cruise ship disco). A fourth decision also involves defects in the ship’s
physical condition and adopts Kermarec’s negligence standard. Kornberg, 741
F.2d at 1334 (11th Cir. 1984) (in case involving failure of cruise ship’s sanitary
system, court stated “[a] carrier by sea . . . is not liable to passengers as an insurer,
but only for its negligence.”) (citing Kermarec).22 None of these four physical-
21
In the case of Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to close of business on September 30, 1981.
22
Defendants’ reliance on Gibboney v. Wright, 517 F.2d 1054 (5th Cir. 1975), is
misplaced. There, the defendant was the private owner of a pleasure craft, not a common carrier
for hire, and the plaintiffs were injured by an improperly secured fuel tank and not by an assault.
At best, Gibboney stands for the proposition acknowledged above that our Circuit applies a
reasonable care standard in cases involving alleged defects in a vessel’s physical condition.
40
condition cases cites Jopes or Brockett, and none involves a crew member assault
on a passenger.
In sum, while our precedent applies Kermarec’s negligence standard in slip-
and-fall and other physical condition cases as did Kermarec itself, our decision in
Tullis acknowledged the “unconditional responsibility” exception for crew member
misconduct toward a passenger.23 Our precedent thus does not, and indeed could
not, alter Jopes’ strict liability rule for such assaults.
3. Other Circuits
Only the Ninth Circuit has squarely answered the question of whether, post-
Kermarec, a cruise line, as a common carrier, remains strictly liable for crew
member assaults on passengers. Morton v. De Oliveira, 984 F.2d 289 (9th Cir.
1993). As explained below, the Ninth Circuit concluded that Kermarec did not
overturn the general maritime rule that a ship, like other common carriers, is
absolutely liable for crew member assaults on its passengers during transit. Id. at
23
The district court in this case and another district court in Florida both concluded that
Kermarec did not overturn the rule in Brockett and Jopes that a common carrier is vicariously
liable for crew member assaults on passengers. See Doe v. Celebrity Cruises, 145 F.Supp. 2d
1337, 1342 (S.D. Fla. 2001) (concluding that the Eleventh Circuit would adopt the “majority
view” that Kermarec did not change the strict or vicarious liability rule for crew member assaults
and stating that “[t]his majority view makes the most sense because it limits Kermarec to its
facts, while implicitly recognizing that Supreme Court cases such as Brockett and Jopes have not
been overruled.”); Stires v. Carnival Corp., 243 F.Supp. 2d 1313, 1318 (M.D. Fla. 2002)
(“Kermarec is distinguishable on its facts and absent binding Eleventh Circuit precedent, the
majority rule is that a common carrier, such as a cruise line, is vicariously liable for the
intentional torts of its employees.”) (citing Doe, 145 F. Supp. at 1341-45).
41
292.
In Morton, the plaintiff was alone in her cabin when a crew member
delivered wine and raped her.24 The plaintiff sued, asserting “absolute liability” on
the part of the cruise line for crew member assaults on passengers. Id. at 290. The
plaintiff conceded that she was “unable to show any negligence by [the defendant
cruise line] in hiring or supervising” its crew member. Id. The district court
determined that the strict liability standard for assaults was “superseded or over-
ruled by Kermarec.” Id.
Reversing, the Ninth Circuit determined that “Kermarec cannot be read to
overrule” the maritime tort principle that a common carrier owes a duty to protect
passengers from assaults by its crew members and is absolutely liable for such
assaults. Id. at 292. The Ninth Circuit noted that this absolute liability rule “for
crew member assaults cannot be traced to obsolete concepts,” but that “it is a
widely adopted rule that common carriers owe such an absolute duty to their
passengers.” Id. at 291-92 (citing St. Michelle v. Catania, 250 A.2d 874, 876-78
(Md. 1969) (carrier vicariously liable for assaults committed by employees even
outside their employment during the contract for transportation); Whittle v.
24
In Morton, as in this case, the main factual dispute was over consent. The defendants
claimed that the crew member was delivering milk and the passenger invited him in for wine and
seduced him. The passenger alleged that the crew member appeared at her door with a bottle of
wine, said he thought she would like to sample some, and raped her. 984 F.2d at 290.
42
Southern Bell Tel. & Tel. Co., 410 S.E.2d 575, 575 (S.C. Ct. App. 1991) (same);
Nazareth v. Herndon Ambulance Serv., Inc., 467 So. 2d 1076, 1078 (Fla. Dist. Ct.
App.) (same), review denied 478 So. 2d 53 (Fla. 1985)).
The Ninth Circuit in Morton also relied upon this observation, by a leading
torts treatise, explaining the non-delegable duty of protective care:
Where the deliberate or willful wrong was not done to further the
master's business the tendency has been to deny vicarious liability, but
here too there have been many qualifications. The relationship
between master and plaintiff may be such as to put on the master a
duty of protective care that he may not delegate. Thus a carrier is
liable to its passengers for assaults by employees prompted by purely
personal motives. 5 Fowler V. Harper, Fleming James, Jr., & Oscar S.
Gray, The Law of Torts § 26.9, at 53 (2d ed. 1986).
Morton, 984 F.2d at 292 (emphasis added).25
The defendants argue that a circuit split is created by the First Circuit’s
decision in Muratore v. M/S Scotia Prince, 845 F.2d 347 (1st Cir. 1988), and the
Second Circuit’s decision in Compagnie Generale Transatlantique v. Rivers, 211 F.
294 (2nd Cir. 1914). We disagree and explain why.26
25
In reaching its conclusions, the Ninth Circuit in Morton also relied heavily upon its own
1925 decision in Pacific S.S. Co. v. Sutton, 7 F.2d 579 (9th Cir. 1925). Morton, 984 F.2d at 290-
91. In Sutton, two crewmen sexually assaulted a female passenger. The Ninth Circuit concluded
that the defendant ship as a common carrier owed to plaintiff “a duty of absolute protection from
the assaults and aggressions of its servants” and stated that “the rule is well nigh universal that
the carrier cannot plead as a defense that the servant acted outside the scope of his employment.”
Sutton, 7 F.2d at 580 (internal quotations and citations omitted).
26
The defendants also rely upon two Fifth Circuit decisions, Jackson Marine Corp. v.
Blue Fox, 845 F.2d 1307 (5th Cir. 1988), and Smith v. S. Gulf Marine Co. No. 2, Inc., 791 F.2d
43
In Muratore, the First Circuit is equivocal, but appears to have followed the
absolute liability rule. There, crew photographers harassed the plaintiff passenger,
disregarded her request not to be photographed, and repeatedly took her picture.
Muratore, 845 F.2d at 349-50. The First Circuit rejected the defendant ship’s
contention that “even if the photographers’ conduct constitutes intentional
infliction of emotional distress, defendant cannot be held legally responsible for
the photographers’ conduct.” Id. at 353. Affirming the ship’s vicarious liability,
the First Circuit concluded, “a maritime carrier has an unconditional responsibility
for the misconduct of its people toward the passengers.” Id. (emphasis added)
(internal quotations and citation omitted).27
416 (5th Cir. 1986). Neither decision, however, involves a crew member assault on a passenger,
and both are otherwise quite different from this case. Indeed, Smith dealt with a slip-and-fall
aboard a vessel chartered specially to transport workers to their work site. Although applying
the Kermarec “reasonableness” standard in Smith, the Fifth Circuit reversed judgment for the
defendant ship-owner, and held it liable to plaintiff as a matter of law. Smith, 791 F.2d at 421.
Jackson Marine is even more inapposite as it involved fraud by a salvage boat captain
against the owner of a damaged ship, and in no way involved a common carrier or a passenger.
In Jackson Marine, the Fifth Circuit concluded that the ship owner was vicariously liable for the
captain’s torts, albeit with the requirement that they be committed “within the scope of the
captains normal duties and employment.” 845 F.2d at 1310. Neither Smith nor Jackson Marine
assist us in determining a cruise line’s liability for crew member assaults on passengers.
27
Despite this clear statement in the liability section, the First Circuit’s Muratore decision
contains a separate section entitled “IV. COMPENSATORY DAMAGES.” In that damages
section, the First Circuit discussed the defendant’s concern “that the lower court made repeated
reference of the carrier’s higher degree of care.” Id. The First Circuit then cited Kermarec and
stated that, “it is axiomatic in maritime law that a carrier owes a duty of exercising reasonable
care towards its passengers under the circumstances.” Id. Later, the First Circuit cited Kermarec
again and stated that the duty of exercising reasonable care under the circumstances is “the
appropriate legal standard.” Id. at 354. The First Circuit concluded that the district court’s use
of the language “special duty” in its jury charge was not prejudicial to the defendant and
44
We also agree with Doe that the Second Circuit in Rivers did not necessarily
adopt a negligence/scope-of-employment rule for crew member assaults on
passengers. In Rivers, a crew member hid in the plaintiff’s cabin, waited for her
return, and attacked her. After a verdict for the plaintiff, the defendant appealed,
claiming error because the district court had charged the jury “that the defendant
was bound to an obligation ‘of the very highest degree of care to protect its
passengers.’” 211 F. at 298. The district court, however, had also instructed the
jury that the defendant was not an absolute insurer against assaults and that a
passenger could not recover unless there was some negligence by the carrier. Id.
The district court also “pointed out the difference between an assault by an
employee when carrying out the orders of his employer and a wanton one,
committed when off duty.” Id.
In affirming the verdict for the plaintiff, the Second Circuit in Rivers cited
Jopes and The Minnetonka, and remarked that the district court had “instructed
more favorably to defendant than some of the authorities indicate.” Rivers, 211 F.
at 298 (emphasis added). The Minnetonka, like Jopes, imposed a strict liability
affirmed the award of compensatory damages. Id. In the end, the First Circuit’s Muratore
decision at worst points in both directions: unconditional responsibility and reasonable care
under the circumstances. We also note that a district court in Maine recently concluded that
under Muratore a cruise line is unconditionally liable for a crew member’s sexual assault of a
passenger. Peterson v. Scotia Prince Cruises, Ltd., 328 F. Supp. 2d 119, 122 (D. Me. 2004).
45
rule. Indeed, the Second Circuit in The Minnetonka stated that “[t]he archaic
doctrine that the moment a servant of a carrier commits a wanton assault upon a
passenger he acts outside the scope of his authority and thus releases his employer
from liability was long ago renounced by the great preponderance of authority.”
146 F. at 513.28 Given Rivers’s reliance on Jopes and The Minnetonka for stating
that the jury charge was more favorable to the defendant than indicated, we do not
read Rivers as necessarily establishing a negligence/scope-of-employment standard
for crew member assaults on passengers.29 At worst, the import of Rivers is
unclear.30
Having canvassed the relevant Supreme Court and circuit precedent, we now
turn to the liability issues on appeal in this case.
28
In The Minnetonka, the Second Circuit affirmed the verdict for the passenger against
the steamship carrier for the value of jewelry stolen by a steward who came into the stateroom,
reached over the passenger in her berth and seized the jewelry bag. 146 F. at 512-13.
29
Post-Kermarec decisions in the Second Circuit, as in this Circuit, adopt a reasonable
care standard for slip-and-fall lawsuits by passengers where no crew member assault is involved.
See e.g., Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63 (2nd Cir. 1988) (plaintiff fell
down a flight of stairs); Rainey v. Paquet Cruises, Inc., 709 F.2d 169 (2nd Cir. 1983) (plaintiff
tripped over a stool in ship disco).
30
We read Rivers as affirming the verdict for the plaintiff primarily because, although the
district court had improperly permitted the jury to apply a less stringent standard of care (i.e.
negligence), the evidence at trial demonstrated the ship owner was still liable to the passenger
even under the lower “negligence” standard of care. However, the district courts in New York
have read Rivers as establishing a negligence standard. York v. Commodore Cruise Line, Ltd.,
863 F.Supp. 159, 162 (S.D.N.Y. 1994); Jaffess v. Home Lines, Inc., 1988 WL 42049, at *5
(S.D.N.Y. April 22, 1988).
46
4. Legal Standard Governing Doe’s Claims
The principal liability issue is which standard governs the defendants’
liability to its passenger Doe for crew member assaults: (1) strict liability or (2)
reasonable care under the circumstances.
For the reasons we have detailed at some length, we conclude that the
defendants owe a non-delegable duty to protect their passengers from crew
member assaults and thereby safely transport their cruise passengers, that the
Supreme Court’s decisions in Brockett and Jopes remain binding precedent, that
Kermarec did not overrule Brockett or Jopes, and thus that the district court did not
err in concluding that the defendants are strictly liable for crew member assaults on
their passengers during the cruise. We add that Kermarec’s reasonable care
standard does not apply to a crew member’s sexual assault on a passenger. Tullis,
397 F.2d at 23.
We turn, then, to the defendants’ alternative argument that even if the strict
liability standard governs crew member assaults on passengers during a cruise, that
standard cannot apply factually to this particular case because (1) the sexual battery
occurred while Aydin was off duty and off the ship and (2) the special carrier-
passenger relationship was severed when Doe and Aydin left the ship’s premises.
5. Carrier-Passenger Relationship Between Doe and Aydin
47
The case precedent establishes that, due to the special carrier-passenger
relationship, the defendants had a non-delegable duty to protect and safely
transport Doe during the cruise, and thus are liable if a crew member assaulted her
during the cruise. There is no dispute that this carrier-passenger relationship has a
temporal limit based on the duration of the cruise. This sexual battery occurred on
July 19, 1999, and undisputedly fell within the seven-day time period of the cruise
from July 17 to July 24, 1999.
The next issue is whether the common carrier-passenger relationship has a
strict spatial limit so that the common carrier-passenger relationship was severed
when Doe and Aydin left the ship’s premises. For the reasons outlined in the
jurisdiction section above, we conclude that the carrier-passenger relationship
continued between the defendants and Doe during her interaction with Aydin in
this scheduled port-of-call.
In this regard the defendants emphasize that Aydin was not only on shore,
but also “off-duty.” This argument ignores the defendants’ “tipping system,” an
integral part of the carrier-passenger relationship that encouraged Aydin to
socialize with and escort his assigned dinner passengers while off-duty in the
ship’s scheduled port-of-call. As discussed above, Doe was assigned to Aydin’s
dinner table each night, and was provided envelopes for tipping Aydin. Aydin’s
48
job thus involved daily interaction with a particular set of passengers. Indeed, the
defendants expressly permit socialization between crew members and passengers
on shore at the Oasis. Aydin admits that his off-duty, on-shore interaction with his
passengers enhances his tips. To some extent, defendants arguably have a
pecuniary interest in off-duty crew members socializing with and escorting
passengers in a port-of-call because it promotes the success of the defendants’
tipping system as a way to pay Aydin for his services to the defendants.
It is further undisputed that on the very night in question Aydin, while on
duty and serving in his role as a crew-member waiter, directed his dinner guest
passengers to his favorite nightspot–the Oasis–within a short walking distance of
the ship, and that Aydin was at the Oasis when Doe arrived. Although off-duty,
Aydin admits escorting one of Doe’s friends back to the ship before coming back
to the Oasis and then escorting Doe ultimately back to the ship. While Aydin and
Doe dispute whether he was taking her ostensibly to a bathroom first or to the park
for sex, Aydin undisputedly had offered to help Doe in her distress. Aydin even
referred to Doe as “his passenger,” and there is ample evidence in the record that
Doe allowed Aydin to escort her only because he was trusted as her waiter-crew
member on the ship.
Accordingly, under all of the circumstances of this case, we cannot conclude
49
that the interaction between Aydin and Doe is outside the scope of the on-going
carrier-passenger relationship or, as explained earlier, the scope of the on-going
cruise. Thus, when crew member Aydin sexually battered passenger Doe, the non-
delegable duty owed by a common carrier to protect its passengers from crew
member assaults during the cruise was breached.
6. Florida Law
While we believe that Jopes and Tullis are the controlling precedent and that
we need not reach Florida law, we recognize that the district court premised its pre-
trial ruling partly on Florida law, which the defendants argue was erroneous. The
defendants further assert that Florida decisions contradict the Kermarec decision,
and therefore the district court should not have relied on them. The district court’s
order is actually unclear because it first seems to apply federal maritime law, but at
the end appears to rely on Florida law for its strict liability ruling.
Nonetheless, to the extent the district court relied on Florida law, we find no
reversible error as Florida law is entirely consistent with federal maritime law and
imposes strict liability on a cruise line for crew member assaults on passengers.
For example, in Nadeau v. Costley, 634 So.2d 649 (Fla. Dist. Ct. App.
1994), the plaintiff passenger sued the crew member Costley and Carnival Cruise
Lines, Inc., for damages from Costley’s sexual assault of the plaintiff in her room.
50
In concluding that the passenger had a cause of action against the defendant cruise
line in tort (strict vicarious liability) and in contract, the Florida appellate court
explained that “Florida 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.” Id. at
652-53.
In reaching this conclusion, the Florida appellate court in Nadeau actually
analyzed the relevant federal precedent, including the First Circuit’s Muratore, the
Ninth Circuit’s Morton, and the Second Circuit’s Rivers. The Florida appellate
court determined that the same strict liability principle “has been recognized by
federal courts applying admiralty law.” Id. at 652 (citing Muratore and Morton).
The Florida appellate court in Nadeau discussed Rivers and determined that the
language in Rivers requiring negligence on the part of the carrier was “dicta” and
was presented as part of a jury instruction that the Second Circuit believed was
“actually favorable” to the defendant common carrier. Id. at 652 & 652 n.5.
In Nadeau, the Florida appellate court ultimately concluded that “[a]t 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 assault
by a crew member.” Id., at 652-53. Therefore, the Florida court in Nadeau
51
determined (1) that it was “free to apply Florida law in the absence of controlling
maritime precedent,” (2) that under Florida law the common carrier was strictly
liable for the assault, and (3) that “applying Florida law to the instant facts would
in no way alter the uniformity of admiralty decisions.” Id.
Other Florida appellate decisions apply the same strict liability rule for
employee assaults in common carrier-passenger cases. See, e.g., Pelot v. Atlantic
Coast R. Co., 53 So. 937, 938 (Fla. 1910) (train case); Nazareth v. Herndon
Ambulance Serv., Inc., 467 So. 2d 1076, 1078-79 (Fla. Dist. Ct. App. 1985)
(ambulance common carrier case); Commodore Cruise Lines, Ltd. v. Kormendi,
344 So.2d 896 (Fla. Dist. Ct. App. 1977) (cruise line case).
Defendants argue that two Florida cases undermine Florida’s strict liability
rule, citing Rindfleisch v. Carnival Cruise Lines, Inc., 498 So. 2d 488 (Fla. Dist.
Ct. App. 1986), and Riddle v. Aero Mayflower Transit Co., 73 So. 2d 71 (Fla.
1954). This argument is unavailing. In Rindfleisch, the parties agreed that federal
maritime law controlled, and thus the Florida appellate court did not apply Florida
law at all. Further, Rindfleisch was a slip-and-fall case, and the Florida appellate
court correctly applied Kermarec’s reasonable care standard. Rindfleisch, 498 So.
2d at 490-91. In addition, the Florida appellate court in Nadeau distinguished
Rindfleisch and applied Florida law and a strict liability standard in a crew member
52
assault case. Nadeau, 634 So. 2d at 651 n.3 & 652. Thus, we conclude that
Nadeau is more directly on point.
As to the second case, while Riddle did involve Florida law, it concerned “a
common carrier in moving household goods,” and the assault occurred in the
plaintiff’s home. 73 So. 2d at 71. Accordingly, Rindfleisch and Riddle do not
alter our conclusion (1) that Florida tort law imposes strict liability on cruise lines
for crew member assaults on their passengers, (2) that as to this issue Florida law is
consistent with federal maritime tort law, and (3) that to the extent the district court
applied Florida law there is no reversible error in this case.
D. Sexual Assault Verdict
As stated above, the district court determined that the defendants were liable
for Jane Doe’s injuries if Aydin committed either a sexual assault or a sexual
battery. Also, as outlined above, the jury concluded that Aydin committed a sexual
battery, but not a sexual assault, on Doe.
To the extent the defendants argue that there is some conflict between the
jury’s verdicts, we conclude that no conflict existed between a finding that, as
instructed, Aydin committed a sexual battery, but not a sexual assault.
As described earlier, the district court instructed the jury that the defendants
were strictly liable if Doe proved sexual battery as follows:
53
Sexual Battery
On Plaintiff’s claim for sexual battery, Defendants . . . are
strictly liable to Plaintiff for sexual battery if Plaintiff shows, by the
greater weight of the evidence, the following:
That Baris Aydin, with his sexual organ, penetrated or had
union with the vagina of Plaintiff; and
That act was done without the consent of Plaintiff.
(emphasis added). Therefore, to prove sexual battery, Doe had to prove only that
Aydin had sexual intercourse with her (a fact that was not in dispute) and that she
did not consent to the sexual intercourse; that is, if Doe did not consent to the
sexual intercourse, Aydin was guilty of sexual battery. See Fla. Stat. ch.
794.011(1)(h) & (5).
In contrast, as to the sexual assault, the district court instructed the jury as
follows:
Sexual Assault
On Plaintiff’s claim for sexual assault, Defendants . . . are
strictly liable for sexual assault if Plaintiff shows, by the greater
weight of the evidence, either:
a) That Baris Aydin intended to commit a sexual battery on the
person of Plaintiff; and that the attempted act was done without the
consent of Plaintiff; or
b) That Baris Aydin intended to cause Plaintiff to fear an
immediate sexual battery or rape; and that the attempted act was done
without the consent of Plaintiff.
(emphasis added). Thus, as charged, a jury would have to conclude that Aydin: (1)
54
intended to commit a sexual battery and that the “attempted act” was done without
Doe’s consent; or (2) intended to cause Doe to fear an immediate sexual battery or
rape and that the “attempted act” was done without Doe’s consent. We readily
conclude that the sexual battery and sexual assault charges, and the jury’s verdict
as to these charges, are in no way inconsistent.
First, a jury could reasonably have concluded that sexual assault charges
were inapplicable because it was undisputed that Aydin had sexual intercourse
with Doe, and, therefore, there was no “attempted act,” only the completed act of
sexual intercourse.31 Furthermore, the jury could have viewed the “attempted act”
language as necessarily related to the “intended acts” immediately preceding in the
charge; that is, Aydin was not guilty of sexual assault because he did not attempt
to: (1) commit a sexual battery (he in fact did commit a sexual battery); or (2)
cause Doe to fear a sexual battery or rape.
Furthermore, the jury charges for sexual battery and sexual assault contain a
simple, obvious difference, and, therefore, are not inconsistent. The sexual battery
charge does not require that Aydin “intended” to engage in criminal conduct,
whereas, the sexual assault charge requires that Aydin have the specific intent to
31
Aydin testified at some length about the sexual encounter. Specifically, he testified
that, “I was still touching her body, vagina, and I went to kiss her again, we were still kissing,
and then I put my penis into her vagina.”
55
engage in criminal conduct.
The defendants seize on this last difference and argue that because sexual
battery does not have, as an element, any specific intent to engage in criminal
conduct it should not be considered an intentional tort. Therefore, according to the
defendants’ argument, strict liability is only for intentional torts and thus they
should not be held strictly liable for Aydin’s actions. The defendants’ argument is
flawed for several reasons.
First, the district court’s sexual battery charge was consistent with Florida’s
criminal statute defining sexual battery and Florida Pattern Jury Instruction 11.4, in
that it required a showing of only (1) sexual penetration and (2) a lack of consent.32
Furthermore, under Florida law, sexual battery is a general intent crime and does
not require that a defendant act with specific intent. See Coler v. State, 418 So.2d
238, 239 (Fla. 1982) (“State of mind is not a material fact in a sexual battery
charge, nor is intent an issue.”); Killian v. State, 730 So.2d 360, 362 (Fla. Dist. Ct.
App. 1999); Jackson v. State, 640 So.2d 1173, 1174 (Fla. Dist. Ct. App. 1994); see
also Askew v. State, 118 So.2d 219, 222 (Fla. 1960). Although the defendants
correctly point out that specific intent is not required under sexual battery, the
32
Under Florida law, there are several types of sexual battery. For the purposes of this
case we are concerned with sexual battery defined as the “oral, anal, or vaginal penetration by, or
union with, the sexual organ of another. . . .” Fla. Stat. ch. 794.011(1)(h), and “without [Doe’s]
consent . . . .” Fla. Stat. ch. 794.011(5).
56
defendants incorrectly conclude that this means that sexual battery is not an
intentional tort.
Florida law equates sexual battery with an intentional tort. See Doe v.
Young, 656 So.2d 569, 570 (Fla. Dist. Ct. App. 1995) (describing plaintiffs’ claims
as “the intentional torts of battery and sexual battery”); see also Doe v. Evans, 814
So.2d 370, 380 (Fla. 2002) (J., Wells, dissenting) (“Importantly, there are no
allegations that the alleged conduct resulted in any physical injury or that an
intentional tort such as sexual battery occurred”); Scott v. Otis Elevator Co., 572
So.2d 902, 903 (Fla. 1990) (“This conclusion is supported by the definition of the
intent necessary to establish an intentional tort. The intent with which tort liability
is concerned is an intent to bring about a result which will invade the interests of
another in a way that the law forbids.”) (internal punctuation and citation omitted)).
Furthermore, an intentional tort is “[a] tort committed by someone acting with
general or specific intent [and] [e]xamples include battery, false imprisonment, and
trespass to land.” Black’s Law Dictionary at 1527 (8th Ed. 1999).
Second, the defendant draws the wrong distinction. The distinction is not
between those torts that have some overt requirement of specific intent and those
torts that do not. Rather, the proper distinction is between intentional torts and
those torts based on negligence. See City of Miami v. Sanders, 672 So.2d 46, 47
57
(Fla. Dist. Ct. App. 1996) (“An assault and battery is not negligence for such action
is intentional, while negligence connotes an unintentional act.”) (quotation marks
omitted); Slawson v. Fast Food Enters., 671 So.2d 255, 258 (Fla. Dist. Ct. App.
1996) (“[T]he kind of harm sought to be avoided was an intentional assault, the
oldest intentional tort.”); see also St. John v. Coisman, 799 So.2d 1110, 1125 n.5
(Fla. Dist. Ct. App. 2001) (Sawaya, J., concurring in part, dissenting in part)
(“Assault and battery are intentional torts as opposed to torts based on
negligence.”). For all the above reasons, it is clear that sexual battery is an
intentional tort.
Finally, even assuming arguendo that sexual battery was not considered an
intentional tort, the defendants’ arguments still lack merit; that is, if a cruise ship
can be held strictly liable for its crew members’ intentional torts, a cruise ship can
certainly be held strictly liable for other, lesser forms of crew member sexual
assaults on passengers. We readily conclude that a sexual battery by a crew
member is within that class of crew member assaults for which a ship, as a
common carrier, is strictly liable to a passenger.33
33
Defendants did not appeal the denial of their motion for remittitur, but do appeal the
denial of their motion for new trial, which was premised on erroneous evidentiary rulings. On
appeal, the defendants acknowledge that the district court denied their motion for new trial as
moot but defendants request that, if we set aside the Rule 50(b) motion granted in their favor, we
then decide whether the evidentiary rulings warrant a new trial. Thus, we will review for an
abuse of discretion the district court’s evidentiary rulings and denial of a motion for a new trial.
Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d 1241, 1247-48 (11th Cir. 2001). The defendants
58
VI. CONCLUSION
For the above reasons, we REVERSE the entry of judgment for the
defendants because the district court lacked authority to enter judgment under Rule
50(b) on a new ground not raised by any party prior to submission of the case to
the jury. We further reinstate and AFFIRM the jury’s verdict for the plaintiff and
REMAND the case to the district court to enter final judgment on the jury’s verdict
for the plaintiff and against the defendants.
argue that they are entitled to a new trial because the district court erred by (1) not permitting the
defendants to “truthfully disclos[e] the judicial position, title and background” of the Bermudian
magistrate who heard the criminal case in Bermuda and appeared as a defense witness at trial;
(2) precluding defendants “from apprizing the jury of the outcome of the Bermuda court
proceedings”; and (3) “allowing Doe to wear her military uniform during trial.” After review,
we conclude that the district court did not abuse its discretion in these rulings during trial, and
defendants are not entitled to a new trial.
59
Jane Doe v. Celebrity Cruises, Inc.
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2004-12-22
Citations: 394 F.3d 891
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