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Legal Report May 2005


Common carrier liability. A federal appeals court has ruled that an off-duty crew member of a cruise line was acting within his scope of employment when he raped a passenger who had gone ashore. The court also determined that the cruise line, as a common carrier, is liable for crew member assaults on passengers.

In July 1999, Jane Doe was a passenger on a cruise ship bound from New York City to Bermuda. Upon reaching Bermuda, Doe and several friends went to a local disco where they met Baris Aydin—their waiter on the cruise ship—and several other crew members. (Waiters are assigned to the same travelers throughout the journey, so Doe and her friends were familiar with Aydin.)

The group stayed together at the disco, and as individual passengers were ready to go back to the ship, the crew members escorted them. While walking Doe back to the vessel, Aydin pushed her into a small park and raped her. He then walked her back to the ship.

Doe went immediately to the infirmary and reported that she had been raped. The cruise line paid to have Doe and her friends flown back to their homes in Connecticut the next day, and Doe received medical attention at a local hospital.

Doe filed a lawsuit against Celebrity Cruises, Inc., the operator of the ship; Zenith Shipping Corporation, the owner of the vessel; Apollo Ship Chandlers, a provider of service and personnel for the ship; and Celebrity Catering Services Partnership, a food and food service provider. Doe alleged that the defendants should be liable for sexual assault, intentional infliction of emotional distress, and negligence.

The defendants requested that the case be dismissed, arguing that they could not be held liable for Aydin’s misconduct because he was acting outside of the scope of his employment when he assaulted Doe. The U.S. District Court for the Southern District of Florida allowed the case to go forward, ruling that the cruise line is a common carrier and is strictly liable for crew member assaults on passengers.

At the subsequent trial, the jury found in favor of the plaintiff and awarded her $1 million in compensatory damages.

Immediately after the trial, the defendants requested a hearing for the judge to determine whether any one of the four defendants was both a common carrier and Aydin’s employer. After the hearing, the district court ruled that because Celebrity Cruises is a common carrier but Apollo Ship Chandlers actually employed Aydin, neither party was both common carrier and Aydin’s employer. Given that none of the defendants could meet both of these requirements, the court determined, none of them could be held liable. The court vacated its earlier decision and the jury verdict. Doe appealed the decision.

The U.S. Court of Appeals for the Eleventh Circuit reversed the district court’s decision and reinstated the jury verdict. The court ruled that the exact employer of Aydin did not matter and that the cruise line could not delegate its responsibility as a common carrier. The court also confirmed that because crew members were allowed to socialize with passengers when off-duty, Aydin was within the scope of his employment when he assaulted Doe. (Jane Doe v. Celebrity Cruises, Inc., U.S. Court of Appeals for the Eleventh Circuit, No. 03-15321, 2004)

ADA. A federal appeals court has ruled that an employer is within its rights in seeking the HIV medical records of an employee. Douglas Gajda, a truck driver for Manhattan and Bronx Surface Transit Operating Authority, filed a lawsuit against his company when it asked Gajda to disclose the results of his HIV tests. Gajda claimed that the request violated the ADA because it was not job-related or consistent with business necessity.

The defendant argued that the test results were necessary to determine whether Gajda could safely perform his duties. Further, the defendant noted that it was seeking the information in response to an application for intermittent leave under the Family and Medical Leave Act. Gajda’s application stated that his serious health condition “renders me unable to perform the functions of my position.”

The application, ruled the U.S. District Court for the Southern District of New York, proves that the company had a legitimate business-related need to see the records and could not respond to Gajda’s request without the information.

Gajda appealed the decision. The U.S. Court of Appeals for the Second Circuit upheld the lower court’s ruling. (Douglas Gajda v. Manhattan and Bronx Surface Transit Operating Authority, U.S. Court of Appeals for the Second Circuit, No. 04-0608-cv, 2005)


Information security. A new rule proposed by the Nuclear Regulatory Commission (NRC) would expand the categories of information considered by the agency to be sensitive. Such data would be added to a special category of sensitive unclassified information, termed safeguards information (SGI), that would be protected from unauthorized disclosure.

Current SGI includes data on power reactors, research and test reactors, and spent-fuel storage installations. Under the new rule, information such as engineering or safety analyses, emergency planning procedures, or scenario training materials relating to facility protection would be considered SGI. Also protected would be information concerning the tactics and capabilities required to defend against attempted radiological sabotage or theft of nuclear material.


Genetic discrimination. A bill (S. 306) introduced by Sen. Olympia Snowe (R-ME) that would prohibit genetic discrimination by employers and insurance providers has been approved by the Senate. The provision has yet to be taken up by the House of Representatives.

The bill would make it illegal for health insurance providers or group health plans to use genetic information as a factor in providing service or establishing premiums. The measure would also prohibit a health insurance provider from requesting or requiring that an individual—or his or her family member—undergo a genetic test.

Similarly, S. 306 would make it illegal for an employer to segregate or classify employees on the basis of genetic information, deprive them of employment opportunities, or otherwise adversely affect them. Under the bill, employers would be prohibited from requesting, requiring, or purchasing an employee’s genetic information. The measure does make exceptions in certain instances, such as when information is required to comply with the Family and Medical Leave Act or when it is necessary for genetic monitoring of the biological effects of the presence of toxic substances in the workplace.

Homeland security. A bill (S. 308) introduced by Rep. Frank Lautenberg (D-NJ) would require that homeland security grants be given out only based on assessments of risk, threat, and vulnerability.

In introducing the bill, Lautenberg noted that the bill is necessary because homeland security funds are being slashed in metropolitan areas where they are most needed and reallocated to low-risk areas as a part of general funding projects.

The bill has one cosponsor and has been referred to the Senate Committee on Homeland Security and Governmental Affairs.

Privacy. Introduced by Sen. Russell Feingold (D-WI), a new bill (S. 317) would protect the privacy of individuals by limiting government access to the records of libraries and booksellers. When requesting access to such records during intelligence or counterterrorism investigations, law enforcement would have to give specific facts to the courts explaining why the government suspects that the person under investigation is an agent of a foreign power.

The bill has been introduced as an amendment to the Patriot Act, which allows law enforcement to conduct such searches without advance explanations. The Patriot Act requires only that an explanation be given within “a reasonable period of time” after agents conduct a search.

The bill has ten cosponsors and has been referred to the Senate Judiciary Committee.



Surveillance. A bill (H.B. 1392) introduced in the Arkansas Legislature would allow nursing home residents to have CCTV cameras installed in their rooms at the discretion of family members. The bill, called the Willie Mae Ryan Act, was named for a murder victim—an 81-year-old nursing home resident who was beaten to death in her room in August 2003. Similar legislation failed to pass in 2001 and 2003.

A nursing home resident may have a camera installed in his or her room under certain conditions. The resident must inform the facility, the camera must have a time and date stamp, all installation costs must be paid for by the resident, and written consent must be obtained from anyone sharing the room.

This column should not be construed as legal or legislative advice.