Travel law: Accident during airboat tour of Henderson Swamp in Louisiana

In this week’s article we examine a recent case, in re McGee’s Landing Inc., 2015 WL 5056612 (W.D. La. 2015), involving a collision (“allision” in maritime terms) between an airboat and a concrete piling during a high speed tour of Henderson Swamp in Louisiana. This case also raises the issue of whether the defendant boat owner may rely upon the Limitation of Liability Act [see Travel Law at Section 3.02[3][d][iii]].

Travel Law Update

No Jury, Please

In Kendall, Plaintiffs Want Judge, Not Jury, To Decide Uber Class Action, law.com (12/17/2015) it was noted that “After securing a pair of favorable rulings-and in the face of a supercharged media campaign launched by Uber-plaintiffs challenging the company’s business model are seeking to put on their case without a jury. Plaintiff’s lawyer Shannon Liss-Riordan, who won class certification for drivers suing over their status as independent contractors [see O’Conner v. Uber Technologies, Inc., 2015 WL 5138097 (N.D. Cal 2015)] and then got the class significantly expanded, moved on Thursday to dismiss an expense-reimbursement claim in an effort to proceed to a bench trial. The proposal…drew a vigorous objection from Uber”.

Lions Endangered Species

In Goode, After Cecil Furor, U.S. Aims to Protect Lions Through Endangered Species Act, nytimes.com (12/20/2015) it was noted that “Five months after a lion named Cecil was shot and killed in Zimbabwe by a Minnesota dentist, the Obama administration has decided to place lions in Africa under the protection of the Endangered Species Act, an action that will set a higher bar for hunters who want to bring lion trophies into the United States…Lions in southern and East Africa will be classified as threatened, with a special rule that prods countries to regulate sport hunting of lions in ways that promote conservation. Both designations, the agency said, will result in stricter criteria for the import of live lions and lion parts, like heads, paws or skins”.

Hospitality Industry Tax Loophole

In Lipton & Moyer, Hospitality and Gambling Interests Delay Closing of Billion-Dollar Tax Loophole. nytimes.com (12/20/2015) it was noted that “In the span of a mere 11 days this month, $1 billion in future federal tax payments vanished. As congressional leaders were hastily braiding together a tax and spending bill of more than 2,000 pages, lobbyists swooped in to add 54 words that temporarily preserved a loophole sought by the hotel, restaurant and gambling industries, along with billionaire Wall Street investors, that allowed them to put real estate in trusts and avoid taxes”.

Keep A Dozen Travel Apps

In Rosenbloom, 12 Travel Apps Worth Keeping in 2016, nytimes.com (12/21/2015) it was noted that “Recently I deleted dozens of travel apps from my phone…I’ve kept only what I use often. An app didn’t have to be new (most weren’t) to make the cut, but it had to make travel easier or significantly more enjoyable. Below are a dozen that have earned a spot on my smartphone heading into 2016″. The dozen apps are (1) LiveTrekker, (2) Bravolol, (3) Duolingo, (4) Vurb, (5) Apple iBooks, (6) NOAA Radar Pro, (7) Google Maps (8) Google Translate, (9) XE Currency, (10) TripIt, (11) OpenTable ad (12) Uber.

Drone Registration

In French, I registered my drone. Here’s why you should too, marketwatch.com (12/22/2015), it was noted “Registration is intended to force some education upon pilots who may not have malicious intent, but also may not have read the ‘Know Before You Fly’ guidelines included with most drone purchases in the U.S. It also means that government and law enforcement officials will be able to track down reckless drone operators-something that, until now, they haven’t been able to do…I expect that few drone operators will ever register their drones…But there has been a highly charged, negative reaction to registration among drone operators (at least those discussing the FAA rule in online forums and web communities). People really don’t want to register their drones. Given how easy it is, why are people so against it?”. insure.com

Uber Can’t Appeal For Now

In Kendall, Uber Can’t Appeal Class Certification in Driver Suit, The Recorder (11/17/2015) it was noted “For now, the U.S. Court of Appeals for the Ninth Circuit is staying on the sidelines of a legal battle over Uber’s classification of its drivers as independent contractors rather than employees. The court issued a summary order on Tuesday declining to review a September ruling [see O’Conner v. Uber Technologies, Inc., 2015 WL 5138097 (N.D. Cal 2015)] that certified a class of Uber…drivers seeking employee status. Circuit Judges William Fletcher, N. Randy Smith and John Owens cited the court’s 2005 ruling in Chamberlan v. Ford Motor, 402 F. 3d 952 (9th Cir. 2005) …..which held class certification orders should be reviewed only when they sound a ‘death knell’ for the losing party, raise an unsettled issue of law or are manifestly erroneous” [see Dickerson, Class Actions: The Law of 50 States, Law Journal Press, 2015, Chapter 5 (appealability of class certification orders)].

Fly Africa Safety Concerns

In Court exposes serious safety concerns, www.eturbonews.com (11/19/2015) it was noted that “Fly Africa’s management must be in panic mode…Serious safety concerns need to be addressed first before the airline can resume operations, dealing a blow to Fly Africa from which it may not recover. ‘Put Your House In Order’ did Justice Tsanga of the High Court in Harare tell Fly Africa, a sharpish warning that if the safety concerns which were unearthed when the Zimbabwe Civil Aviation Authority took a closer look at the airline, are not addressed immediately they may never get their AOC back…It was apparently also established that Fly Africa was registered in Zimbabwe but effectively controlled from South Africa, again in violation of relevant regulations”.

Utah Hotel Thefts

In Gephardt & St. Clair, Hotels are relatively off the hook when hotel staff rip-off hotel guests, kutv.com/news (11/10/2015) it was noted that “‘When I got back to my room one night, my property was gone…My iPad, my entire bag of makeup, most all of my jewelry and my wedding ring all was missing…’ Jacoy Kiter (hotel employee) was arrested and has been charged with felony theft. The hotel waived the cost of Van Vliet’s stay but she says that’s not good enough. She says Kiter made off with at least $3,000 worth of her property that has not been recovered…Van Vliet says Home2Suites offered her the statutory limit of $250 for her loss…Hotel theft is no small thing in Utah. According to police records, people staying at hotels in Salt Lake City reported a whopping $638,250 being stolen in 2014. In popular tourist spot Park City, police took reports of $8,793.99 being stolen from hotels. In Murray, where Van Vliet was ripped off, police records show hotel guests lost $58,556 in 48 separate thefts”.

Celebrities Only, Please

In Neate, Los Angeles airport to build special terminal just for celebrities, theguadian.com (11/19/2015) it was noted that “Special suite at LAX will let stars and the world’s wealthy glide directly from their limo to their first class seat without having to interact with the public…The airports’ Board of Airport Commissioners unanimously approved LAX’s plan to redevelop a cargo hanger into the US’s first terminal dedicated to the rich and famous. The airport said the Los Angeles Suite which will allow celebrities and diplomats to avoid paparazzi, or protesters, by allowing cars to drop off guests behind closed doors, will be operational at a temporary facility within six months. It will cost $1,500-$1,800 per trip to use the new terminal which will include exclusive lunges, dedicated catering and separate security and border checkpoints. When it’s time to board, guests will be driven directly to their plane. The plans promise that guests using the new terminal will have to walk about 60 steps compared to as many as 2,200 from street to plane seat via the public terminals”.

Uber Safe In Queens For Now

In Enguist, on second look, Queens judge rejects taxi industry again, Crain’s New York Business (11/19/2015) it was noted that “A state judge in Queens has for a second time dismissed a taxi-industry effort to force the city to curb Uber. In light of a federal judge’s ruling in Chicago that favored taxis, state Supreme Court Judge Alan Weiss reconsidered his earlier rejection of a case brought by credit unions that financed taxi-medallion purchases. But he came to the same conclusion: Uber does not infringe on yellow cabs’ exclusive right to respond to street hails…’As to the (U.S.) District Court’s view that there is ‘no material difference between raising your arm to hail a cab on a street corner and putting your location in an app’, this court respectfully disagrees’, the Queens judge added. ‘Street hails serve to benefit passengers in locations where cabs are available. Electronic dispatches via app allow passengers, who have not prearranged for transportation, to secure immediate livery assistance at any location”.

The McGee’s Landing Case

As noted by the Court in McGee’s Landing, supra, “Currently pending before the Court is a motion for partial summary judgment (seeking a ruling that) McGee’s is liable to plaintiffs for the injuries plaintiffs incurred as a result of an allision and (2) McGee’s is not entitled to limitation of its liability…the motion is granted”.

Background

“On August 3, 2013, the Denmans were paying passengers aboard a commercial airboat in the Henderson Swamp operated [by] Perry Allemond, an employee or agent of McGee’s Landing, Inc., which owned the subject airboat and operated the tour boats as a business. David Allemond is the sole shareholders of McGee’s Landing, Inc., and is the general manager. His cousin, Perry Allemond was employed as a driver of airboats on tours. Perry Allemond was paid in cash, and was contract labor”.

The Tunnel Effect

“It was common practice that the airboat tours, after proceeding through Henderson Swamp, would turn beneath Interstate Highway 10, Eastbound, between the pilings that are twenty-one feet apart. There is a wide travel way between the east and westbound lanes of IH-10 that is commonly used by boat traffic, but that is not where the tour is operated. Instead, McGee’s travels the narrow pathway between large concrete pillars because customers like the tunnel effect of being below the interstate and between the pilings. This was a common and accepted practice of McGee’s Landing, Inc.”

The Allision

“The subject allision occurred when Perry Allemond attempted to turn approximately ninety degrees to the right to proceed beneath IH-10 eastbound. In the process of the turn, Mr. Allemond observed debris in his pathway, and attempted to steer back to the left to avoid the debris, but the rudder of the vessel stuck…Mr. Allemond had no control of the vessel and hit a concrete piling with the left bow, causing Mr. And Mrs. Denman to be ejected from their seats to the front of the boat, contacting metal portions of the all metal boat…Mr. Denman suffered knee and back injuries. Mrs. Denman suffered a fractured coccyx, among other injuries”.

Liability

“‘It is settled principal of maritime law that a ship owner owes the duty of exercising reasonable care towards those lawfully aboard the vessel who are not members of the crew’…To prove negligence under general maritime law, ‘The plaintiff must demonstrate that there was a duty owed by the defendant to the plaintiff, breach of that duty, injury sustained by plaintiff, and a casual connection between defendant’s conduct and the plaintiff’s injury’. The Court has reviewed the argument and evidence submitted by plaintiffs…and finds the motion to be well-founded in law and fact…McGee’s (is) liable for the injuries sustained by plaintiffs as a result of the allision.”

Limitation of Liability

“Plaintiffs ‘seek summary judgment on [McGee’s] claim for limitation of liability (to the value of the airboat) on the basis of [McGee’s] knowledge to negligent operation practices by its airboat operators…Plaintiff’s conclude ‘Therefore based on defendant’s admission of knowledge of an unsafe practice of its boat operators…defendant is barred from asserting protection under the Limitation of Liability Act’. As a general matter, the liability of a vessel owner for a personal injury claim arising out of a collision shall not exceed the value of the vessel and pending freight, if the negligent act causing the injury occurred without the vessel owner’s privity or knowledge’”.

The Decision

“Primarily through expert testimony, plaintiffs have shown it was negligent of McGee’s boat captain to operate a commercial airboat between two cement pilings 21 feet apart, particularly when the captain was aware the vessel’s rudder system was malfunctioning, causing it to stick at times. Plaintiffs have further pointed to evidence showing McGee’s…was aware its captains piloted passengers between the concrete pilings, and was aware there was a problem with the rudder system…the motion is granted to the extent it seeks a judgment dismissing McGee’s claim for limitation of liability”. wcpo.com

Justice Dickerson has been writing about travel law for 39 years including his annually updated law books, Travel Law, Law Journal Press (2016) and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. Justice Dickerson is also the author of Class Actions: The Law of 50 States, Law Journal Press (2016). For additional travel law news and developments, especially in the member states of the EU, see IFTTA.org.

This article may not be reproduced without the permission of Thomas A. Dickerson.