Ninth Circuit Court of Appeals Affirms Dismissal of Vicarious Liability Claims Against Shipowner
In a recent decision, the Ninth Circuit Court of Appeals affirmed the District Court's award of summary judgment in favor of a shipowner, holding that the shipowner could not be held civily vicariously liable for damages caused by an employee's assault of the Plaintiff/Appellant because the assault was not within the course and scope of the crew member's employment. Ferguson v. Horizon Lines, LLC, Docket No. 12-17748 (9th Cir. 2015)
In Ferguson, the Plaintiff, a security guard at an entry gate facility at the Port of Oakland, brought claims against Horizon Lines LLC ("Horizon") arising from an 2010 assault and sexual harassment by Andrei Tretyak; a seaman working for and employed by Horizon. Ferguson alleged claims against Horizon for, inter alia, vicarious civil liability, negligent hiring, and negligent supervision. The District Court for the Northern District of California granted summary judgment in favor of Horizon on all of Ferguson's claims and Ferguson appealed. In affirming the District Court's grant of summary judgment in favor of Defendant Horizon, the Ninth Circuit first determined that California law governed because the assault took place entirely on land- i.e. - at an entry gate facility at the Port. The Court next determined that to prevail on her vicarious claims against Horizon, Ferguson was required to present evidence proving that her assailant, Tretyak, was acting "within the scope of [his] employment" with Horizon when he assaulted her. The Court noted that under California law, an intentional tort is considered "within the scope of employment" if it has a "casual nexus to the employees work" or was "an immediate outgrowth thereof." Because Tretyak's actions were "the result of only propinquity and lust" and were not "fairly attributable to work-related events or conditions", the Ninth Circuit concluded that the assault was not within the scope of his employment and, as such, Horizon could not be vicariously liable for same.
Although the Ninth Circuit relied on California state law in reaching its decision, the same standard (i.e. – whether the employee was acting within the course and scope of his/her employment) applies in imposing both criminal and civil vicarious liability in federal cases including, inter alia, cases involving alleged violations of the Act to Prevent Pollution from Ships ("APPS") and related statutes. The Ferguson decision confirms that the acts of crew members who violate company policies and/or otherwise act outside of the scope of their employment cannot give rise to civil or criminal vicarious liability on the ship owner and/or operator employing the crew member. This is particularly significant in criminal maritime cases, where the burden of proof is higher and the prosecution must prove all elements of the offense beyond a reasonable doubt.
To read a copy of the Ninth Circuit's decision, click here.
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