The case of the day is Flaherty v. Royal Caribbean Cruises, Ltd. (S.D. Fla. 2016). Kevin Flaherty alleged that he was a passenger on Royal Caribbean’s Oasis of the Seas. While on a shore excursion hiking at Dunn’s River Falls in Jamaica, which he booked through Royal Caribbean, he slipped and fell, breaking his leg. The claim was that a tour guide, who was employed by the Jamaican government, instructed the hikers to hold hands on the hike. Even though the tour guide was a government employee, Flaherty claimed that the guide was Royal Caribbean’s apparent agent, and that it was therefore vicariously liable for the guide’s negligence. Royal Caribbean moved to dismiss the claim of vicarious liability for failure to state a claim on which relief could be granted.

The judge granted the motion. She reasoned that you can’t state a claim against a principal unless you can state a claim against the agent. And she asserted that that Flaherty could not assert a claim against the agent because the agent was the government of Jamaica, and there was no applicable exception to FSIA immunity.

I think the decision is wrongheaded, because it misunderstands what the FSIA does. The FSIA contains a rule of immunity from suit, no more and no less. It involves immunity from the jurisdiction to adjudicate, not the jurisdiction to prescribe. It’s waivable. And so I think the judge simply misunderstood what the FSIA did. Suppose Flaherty had sued in a Jamaican court, and suppose (I don’t know if this is true) that under Jamaican law there was no immunity from suit. Or suppose Jamaica had somehow waived its immunity after the tort. In either of those cases, it seems clear to me that Flaherty would be able to state a claim.

This is not an uncommon mistake. I am arguing an appeal in a few weeks where a state government agency wrongly (I claim) concluded that the state could not require a foreign consulate to obtain worker’s compensation insurance because the foreign consulate had foreign sovereign immunity from suit under the FSIA. Now in fact there was no FSIA immunity in the circumstances of my case, but more to the point, it’s just a mistake to say that a foreign sovereign acting in the United States is free from the United States’ jurisdiction to prescribe just because it may be free from the United States’ jurisdiction to adjudicate:

A state is not immune from the jurisdiction to prescribe of another state.

Restatement (Third) of the Foreign Relations Law of the United States § 461.