The following article authored by Katie Madison, editor of Lane Powell Spears & Lubersky’s The Admiralty Newsletter Fall 1993, is republished with her consent.
On October 4, 1993, the Supreme Court denied a petition for certiorari by Carnival Cruise Lines, Inc., seeking review of a Ninth Circuit reversal of summary judgement granted against a passenger who was allegedly raped by a crew member. In Morton v. DeOliveira and Carnival Cruise Lines, Inc., 984 F.2d 289 (9th Cir. 1993) the Ninth Circuit adhered to its earlier precedent in Pacific S.S. Co. v. Sutton, 7F.2d U.S. 586 (1925), holding that the common carrier owed its passenger "an absolute duty of protection from the assaults and aggressions of its servants," despite the fact that the servant was acting outside of his employment. Carnival argued that Pacific had been implicitly overruled by the Supreme Court in Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959), imposing only a duty of "reasonable care" to those on board "for purposes not inimical to his legitimate interests." The Court noted that Kermarec clearly excluded unseaworthiness and other "meaningful categories" from its application, holding that the standard of strict liability created by Pacific was the rule in the Ninth Circuit.
The panel acknowledged that a district court in New York in Jaffess v. Saavedra, 1988 W.L. 42049 (S.D.N.Y. 1988) recently held that a shipowner was not liable with regard to an assault upon a passenger by a crewmembver cause the plaintiff was unable to prove negligence of the shipowner. Yet, unless reversed by the Court sitting en banc, or an intervening decision by the Supreme Court, the standard of strict liablility by common carriers to passengers for assaults by crewmembers remains the law in the Ninth Circuit.
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