(A) Plaintiff's Motion for Leave to File Supplemental OpposingStatement of Material Facts
I DENY the plaintiff's motion to file a supplementalstatement of material facts in opposition to the summary judgmentmotion. The plaintiff did not file the motion until after she hadreceived the Magistrate Judge's adverse decision. Even then, shegave no good reason for her earlier flagrant failure (seeMagistrate Judge's Recommended Decision at 2, n. 1) to complywith this court's local rules for summary judgment practice. Theargument that she had a late deposition to deal with isunpersuasive. Fed.R. Civ. P. 56(f) provides a basis for seekingrelief if a summary judgment motion arrives too early in thediscovery process, but the plaintiff did not use it. Moreover,significant parts of her supplemental statement have little to dowith the late deposition, and are clearly simply a late effort todo what she should have done in responding to the initial summaryjudgment motion.
(B) Plaintiff's Objection to the Recommended Decision of theMagistrate Judge
The United States Magistrate Judge filed with the court on June2, 2004, with copies to counsel, his Recommended Decision on thedefendant's Motion for Summary Judgment. The plaintiff filed anobjection to the Recommended Decision on June 21, 2004. I havereviewed and considered the Recommended Decision, together withthe entire record and I have made a de novo determination ofall matters adjudicated by the Recommended Decision. I accept therecommended decision that the defendant receive summary judgmenton Counts VII and VIII and on the punitive damages claim. Ireject the recommended decision on Counts I, III and V, andDENY summary judgment on those counts.
(1) Count VIII and Punitive Damages
The plaintiff has not objected to the recommended decision thatthe defendant receive summary judgment on Count VIII and on herpunitive damages claim. Therefore, I accept the MagistrateJudge's recommended decision in total for those claims.Fed.R.Civ. P. 72(b).
(2) Count VII
The plaintiff has objected to the recommended decision on CountVII. Plaintiff's Objection at 3. (The defendant is incorrect insaying that she did not object. Defendant's Opp. Mem. at 1, n. 3). I agree with thereasoning of the Magistrate Judge and accept his recommendation.(I also observe that even if the plaintiff's Web-based materialswere properly part of the summary judgment record, and they arenot, the conclusion would be the same.)
(3) Counts I, III, and V
For Counts I, III and V (respectively, battery, intentionalinfliction of emotional distress and conversion), the MagistrateJudge reasoned that the plaintiff had not presented admissibleevidence to avoid summary judgment because, in failing to submitan opposition to the defendant's statement of material facts, shehad admitted the defendant's version of events. Local Rule 56(e). The Magistrate Judge therefore concluded that there was noevidence in the summary judgment record that she had been rapedand robbed by a Scotia Prince crew member, the premise of herlawsuit. The defendant Scotia Prince Cruises Ltd., however, nevermoved for summary judgment on that basis and in its statement ofmaterial facts, never asserted that the plaintiff had not beenraped and robbed by a crew member. (Scotia Prince Cruises didassert that it behaved reasonably in its investigation of theincident. It explained why, after investigation, it concludedthat neither of the two crew members whose passport photographsthe plaintiff identified as perhaps depicting her assailant, hadin fact attacked the plaintiff, but that is not the same asdenying that a crew member attacked the plaintiff.) Thus, the plaintiff was under noobligation to provide summary judgment evidence that she had beenraped and robbed by a crew member. Moreover, this is not a casewhere the defendant moved, at the close of discovery, based uponCelotex Corp. v. Catrett, 477 U.S. 317 (1986) or Anderson v.Liberty Lobby, 477 U.S. 242 (1985), claiming that the plaintifflacked sufficient evidence to get to the jury. Instead, ScotiaPrince's argument on these three counts was that the law does notimpose strict liability on an employer for the intentional tortsof an employee.1 The suggestion that the plaintiff hadfailed in her own proof came only in the defendant's ReplyMemorandum. Def.'s Reply Mem. at 3. That was too late in thesummary judgment practice to place upon the plaintiff a burden toproduce evidence.
I turn therefore to the legal issue that the defendant didraise in its summary judgment motion. The plaintiff has accused acrew member of attacking her sexually (battery, Count I),stealing her money (conversion, Count V) and intentionallyinflicting emotional distress upon her (Count III). It isundisputed that these are not activities the crew is hired toperform, and Scotia Prince Cruises argues accordingly that it isnot liable unless it was negligent. It refers to the Restatement (Second) of Agency, § 219, which states that amaster is not liable "for the torts of his servants actingoutside the scope of their employment, unless" one of fourcriteria is satisfied. Unfortunately for Scotia Prince Cruises'argument, one of the four criteria that avoids non-liability isthat "the conduct violated a non-delegable duty of the master." §219(2)(c). Section 214, comment e, identifies "the relation ofcarrier and passenger" as one example that creates such anon-delegable duty and gives as an illustration: "P, a railroad,employs A, a qualified conductor, to take charge of a train. Aassaults T, a passenger. P is subject to liability to T." Id.The Illustration may come from a nineteenth century Supreme Courtcase, New Orleans & N.E.R. Co. v. Jopes, 142 U.S. 18 (1891).There, the Court said: [O]wing to the peculiar circumstances which surround the carrying of passengers, . . . 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 employment.Id. at 27. Some have argued that the force of the SupremeCourt's language in Jopes was overcome by its statement inKermarec v. Compagnie Generale Transatlantique, 358 U.S. 625(1959), that "the owner of a ship in navigable waters owes to allwho are on board for purposes not inimical to his legitimateinterests the duty of exercising reasonable care under thecircumstances of each case." Id. at 632. But Kermarec was a passenger's personalinjury claim for falling down a defective staircase, not a claimbased upon a crew member's intentional tort. The Ninth Circuithas held explicitly that Kermarec has not changed the standardfor crew member's intentional torts. Morton v. De Oliveira,984 F.2d 289 (9th Cir. 1993); accord Doe v. Celebrity Cruises,145 F. Supp. 2d 1337 (S.D. Fla. 2001). A district court in theSecond Circuit disagrees. See York v. Commodore Cruise Line,Ltd., 863 F. Supp. 159 (S.D.N.Y. 1994); Jaffess v. HomeLines,Inc., 1990 AMC 1430 (S.D.N.Y. 1988). I believe that the FirstCircuit agrees with the Ninth Circuit, however, for it stated inMuratore v. M/S Scotia Prince, 845 F.2d 347 (1st Cir. 1988),that "a maritime carrier has an `unconditional responsibility forthe misconduct of its people toward the passengers.' . . . [T]hedoctrine of respondeat superior applies to hold a carrierresponsible for the defaults of its crew." Id. at 353(citations omitted). I conclude, therefore, that contrary to thedefendant's argument, Scotia Prince Cruises may be held liablefor the intentional torts of its crew members. It is not entitledto summary judgment on Counts I, III, and V.
The defendant's motion for summary judgment is thereforeGRANTED as to Counts VII and VIII and punitive damages, andotherwise DENIED.
1. Whether the movant chooses to produce evidence negating thenon-movant's claim or chooses, Celotex-style, to point to thenon-movant's failure to produce evidence essential to its case,the movant has the burden of identifying the deficiencies in thenon-movant's case. Celotex Corp. v. Catrett, 477 U.S. 317,323-325 (1986). Neither Scotia Prince's motion for summaryjudgment nor its statement of material facts challenged whetherthe rape and robbery had, in fact, occurred.