Travel law: Student drowns during snorkeling excursion in Cancun

In this week’s article we examine yet another dangerous student tour, the recent case, Chung v. StudentCity.Com, United States District Court (D. Mass)(RZ)(May 17, 2016), that “arose out of a boating accident that occurred during a high school graduation celebration trip to Cancun, Mexico organized by defendant StudentCity.Com, Inc. Lisa Tam Chung and Loren Daily, two recent graduates on the trip, were on a snorkeling excursion organized by defendant when the boat collided with a reef and ultimately sank. Loren nearly drowned, but survived; Lisa was killed”. In this case, the Court discussed what, if any, liability may be imposed upon StudentCity.Com for the wrongful death of Lisa Tam Chung. For discussions of other dangerous student tours see Dangerous student tours: The Chinese tick case, www.eturbonews.com (August 28, 2014); Duke University student drowns during ‘celebratory trip’ in Costa Rica, www.eturbonews.com (11/5/2015); Dickerson & Roman, Providing Student Travel Programs: Risky Business, New York Law Journal, February 19, 2016, p. 4.

Terror Targets Update

Orlando, Florida

In Steinmetz, ISIS claims responsibility on Orlando terror attack killing 50, injuring 53, www.eturbonews.com (6/12/2016) it was noted that “According to Syrian News agency Amaq, ISIS had claimed responsibility for Orlando mass shooting”.

In Santora, Last Call at Pulse Nightclub, and Then Shots Rang Out, nytimes.com (6/12/2016) it was noted that “The music was still pounding but the night was drawing to a close at the Pulse nightclub in Orlando when shots rang out…A man, identified by law enforcement officials as Omar Mateen, had come to the club to kill. And over the course of the next three hours, until he was shot and killed himself, he executed dozens of people. By the time the shooting ended, it would rank as the deadliest mass shooting in American history”.

In Callimachi, Was Orlando Shooter Really Acting for ISIS? For ISIS, It’s All the Same, nytimes.com (6/12/2016) it was noted that “The revelation that the 29-year-old man who opened fire on Sunday in a gay nightclub had dedicated the killing to the Islamic State has prompted a now-familiar question” Was the killer truly acting under orders from the Islamic State, or just seeking publicity and the group’s approval for a personal act of hate? For the terror planners of the Islamic State, the difference is mostly irrelevant. Influencing distant attackers to pledge allegiance to the Islamic State and then carry out mass murder has become a core part of the group’s propaganda over the past two years. It is a purposeful blurring of the line between operations that are planned and carried out by the terror group’s core fighters and those carried out by its sympathizers”.

Tel Aviv, Israel

In Kershner, Israelis Find Rare Moment of Solidarity in Aftermath of Tel Aviv Shootings, nytimes.com (6/9/2016) it was noted that “Israel’s new defense minister…drank a cappuccino Thursday at the popular restaurant where two Palestinian gunmen in black suits and ties had killed four Israeli civilians the night before…These expressions of solidarity…unfolded as the government canceled the work permits of 200 of the attackers’ relatives, closed off the West Bank where they live and canceled more than 80,000 permits for Palestinians to enter Israel during the holy month of Ramadan… After an eight-month wave of Palestinian attacks that have killed about 30 Israelis and two American visitors…Even after dozens of stabbings, car rammings and shooting attacks in Jerusalem, the West Bank and cities around Israel, the assault on Wednesday evening was particularly brazen”.

Istanbul, Turkey

In Steinmetz, Bomb exploded! Istanbul close to University main campus, www.eturbonews.com (6/7/2016) it was noted that “While Turkey remains a safe tourism destination, the security situation and perception for the travel and tourism world remain tough. Today the sad count are 11 people dead”.

Mogadishu, Somalia

In Steinmetz, Deadly attack on Mogadishu Hotel, etorbonews.com (6/1/2016) it was noted that “At least 10 killed, 25 injured in Mogadishu hotel attack. We understand the attack on a Mogadishu hotel started with a car bomb and gunfire followed”.

Brave Tourists?

In Steinmetz, Defiant tourists-One in Five travelers are not put off by terror attacks, www.eturbonews.com (6/10/2016) it was noted that “Despite the recent terrorist attacks in Europe and the ongoing headlines about the attacks planned on the Euro 2016 football tournament, new research undertaken has revealed that the public remain defiant and 79% proudly state they will not let the ongoing terrorist threats affect their travel plans this summer”.

Zika, Zika, Zika

In Fitzsimmons, New York’s Zika Fight Turns to Travel Precautions and Safe Sex, nytimes.com (5/30/2016) it was noted that “At a clinic in Harlem where many of the patients have roots in the Dominican Republic, Dr. Juan Tapia-Mendoza talks to patients about the Zika virus daily…He reminds than that the virus can be transmitted through sex. In New York City, there have been 109 reported cases of Zika, including 17 women who were pregnant when they learned that had the virus, according to city health officials. They all contracted the virus while visiting other countries”.

In Mele, Girl With Zika Virus Is Born at a New Jersey Hospital, nytimes.com (5/31/2016) it was noted that “A baby girl delivered on Tuesday at a New Jersey hospital was born with the Zika virus, the mosquito-borne disease that can cause unusually small heads and brain damage in newborns, a doctor said. The mother, 31, was believed to have contracted the virus in Honduras, her home country”.

In Zika is a challenge for Puerto Rico’s Tourism, but there is good news for MICE business, rurbonews.com (6/7/2016) it was noted that “Zika has presented a massive challenge for Puerto Rico’s Tourism, causing a considerable number of travel cancellations”.

In McNeil, Delay Pregnancy in Areas With Zika, W.H.O. Suggests, nytimes.com (6/9/2016) it was noted that “People living in areas where the Zika virus is circulating should consider delaying pregnancy to avoid having babies with birth defects, the World Health Organization has concluded. The advice affects millions of couples in 46 countries across Latin America and the Caribbean where Zika transmission is occurring or expected. According to a recent study, more than five million babies are born each year in parts of the Western Hemisphere where the mosquitoes known to spread the virus are found”.

Yellow Fever Situation Report

In World Health Organization: Yellow fever situation report, www.eturbonews.com (5/27/2016) it was noted that “A yellow fever outbreak was detected in Luanda, Angola late in December 2015. The first cases confirmed by the National Institute for Communicable Diseases (NICD) in South Africa on 19 January 2016 and by the Institut Pasteur Dakar (IP-D) on 20 January. Subsequently a rapid increase in the number of cases has been observed…Angola: 2536 suspected cases…Democratic Republic of the Congo: 48 Laboratory confirmed cases…Uganda: 60 suspected cases”.

Ebola In Guinea

In Benko, He Survived Ebola. Now He’s Fighting to Keep It From Spreading, nytimes.com (5/26/2016) it was noted that “Even if citizens had trusted the government medical workers enough to seek care, the country’s feeble health care system would have had little to offer them. The government of Guinea devotes only 2 percent of its gross domestic product to health care, amounting to about $12 per person in 2013. That figure would need to be closer to $44 to support a bare minimum of ‘basic lifesaving services’, according to the World Health Organization and the county has among the worst maternal-, infant- and child-mortality rates in the world”.

World Heritage Sites Under Threat

In Steinmetz, Under threat: Statue of Liberty, Yellowstone National Park and Mesa Verde National Park, www.eturbonews.com (5/28/2016) it was noted that “Statue of Liberty, Yellowstone National Park and Mesa Verde National Park, as well as other World Heritage Sites in dozens of countries are under threat. It was documented by a recent UN report. The threat: Increasing temperatures, rising sea levels and intensifying weather”.

Trapped Inside A Cave

In Steinmetz, Kentucky: At least 19 tourists and tour guides trapped inside a cave, www.eturbonews.com (5/26/2016) it was noted that “Kentucky tourism promotes a visitor attraction 2.5 miles away from the campground in downtown Horse Cave, offering Guided Cave Tours and Adventure Cave Tours for ages 10 and up”.

Tourist Attacked By Sea Lion

In Steinmetz, Tourist attacked by shark or sea lion in Newport Beach, California, www.eturbonews.com (5/30/2016) it was noted that “Newport Beach police said they received reports that a woman swimming in the water was bitten at Corona del Mar State Beach…Lifeguards found the woman in distress in the water about 150 yards off shore, and when they pulled her out, she had large bites on her upper torso and shoulder”.

Mediterranean Migrant Crisis

In Yardley & Pianigiani, Three Days, 700 Deaths on Mediterranean as Migrant Crisis Flares, nytimes.com (5/29/2016) it was noted that “The migrant ships kept sinking. First came a battered, blue-decked vessel that flipped over on Wednesday as terrified migrants plunged into the Mediterranean Sea. The next day, a flimsy craft capsized with hundreds of people aboard. And on Friday, still another boat sank into the deceptively placid waters of the Mediterranean. Three days and three sunken ships are again confronting Europe with the horrors of its refugee crisis, as desperate people trying to reach the Continent keep dying at sea”.

Booking Travel By Rebot

In Levere, When a Robot Books Your Airline Ticket, nytimes.com (5/30/2016) it was noted that “Virtual travel assistant services-some from established companies like Facebook, IBM and Expedia and others from new entrants like Pana and HelloGbye are now popping up worldwide, just as major chains like Starwood and Hilton are incorporating robots into their everyday operations. Many of the virtual assistant services are artificial intelligence, a branch of computer science that stimulates intelligent human behavior. Some respond to questions posed by travelers, either in live speech or digitally, while some, like Pana, rely on additional input by humans to provide answers”.

Travel Law Article: The Chung Case

Early in the Chung case the Court “dismissed most of the claims because they were subject to a mandatory arbitration clause in the customer agreement that Lisa and Loren signed. See Docket ## 26, 42″. StudentCity then moved to dismiss or for summary judgement on “Lisa’s parents’ wrongful death claims”.

Marketing Student Tours

“StudentCity is a tour operator that specializes in selling and providing beach destination trips to graduating high school students. Part of StudentCity’s marketing involves providing information to the students’ parents that is designed to make them feel comfortable sending their children on a trip. StudentCity advertises that it has the highest staff to student [ratio] in the industry and emphasizes that it provides training staff at all scheduled events during the trip. Staff is present to ensure that events are run as safely as possible and that travelers receive high-quality service”.

Selecting A Service Provider

“In 2008, StudentCity contracted with Servicios Maritimos y Acuaticos del Caribe SA de C.V. (‘Servicios Maritimos’) to provide snorkeling excursions for its guests in Cancun, Mexico. Student chose Servicios Maritimos at the recommendation of Dario Flota of Viajes del Tropico, a travel organization in Cancun with which it had worked for several years. At some point before June 2008, a StudentCity employee visited Servicios Maritimos where she saw their snorkeling vessel, the Sea Star. When StudentCity contracted with Servicios Maritimos, neither it nor Mr. Flota was aware of any safety or regulatory concern regarding the company or its snorkeling vessel”.

The Sea Star Strikes A Reef

“In 2008, Lisa Chung and Loren Daily purchased a trip to Cancun, Mexico from StudentCity. For an extra fee, they also purchased an activity that included a snorkeling excursion. On June 7, Lisa and Loren, along with a group of about 120 StudentCity tour participants, embarked on the snorkeling trip on Servicios Maritimos; Sea Star. A StudentCity employee was on the boat, although she was not officially on-duty that day. During the sailing, the Sea Star struck a reef and partially sank”.

Overloading And Crew Negligence

“Lisa and Loren put on Life preservers and jumped into the water. At some point, the two young women became trapped beneath the hull of either the Sea Star or another vessel that came to assist. Loren was pulled from the water without serious injury. Lisa was also eventually pulled from the water, but later determined to be brain dead. She was formally pronounced dead at a hospital in Texas a few days later. An investigation by Mexican authorities later found that the accident was caused by an overloading of passengers on the Sea Star and its negligent operation by the crew”.

Analysis

“Lisa’s parents’ remaining claims against StudentCity are for the wrongful death of their daughter…’To prevail on a negligence claim (in Massachusetts), a plaintiff must prove that the defendant owed the plaintiff a duty of reasonable care, that the defendant breached this duty, that damage resulted, and that there was a causal relation between the breach of the duty and the damage’. Plaintiffs have advanced two negligence theories in this case: that StudentCity (1) negligently selected Servicios Maritimos as its snorkeling excursion vendor and (2) breached the duty it voluntarily assumed to ensure the safety of tour participants”.

Negligent Selection

“Plaintiffs’ first theory of liability in that StudentCity breached its duty to investigate the competence of its excursion operators when it selected Servicios Maritimos. In particular, plaintiffs contend that StudentCity did not ‘conduct an inquiry into the competency of the crew and the captain to conduct the excursion’…It is correct that a tour operator has a duty to exercise reasonable care to Avoid selecting dangerous vendors/third party services providers. See Weinberg v. Grand Circle Travel, LLC, 891 F. Supp. 2d 228, 229 (D. Mass. 2012). However, ‘a valid cause of action for negligent selection would require a rather unreasonable set of facts to prevail’…such facts are lacking here….(as noted above StudentCity relied upon seemingly knowledgeable references in selecting Servicios Maritimos as the provider of the snorkeling vessel Sea Star). Before the June 7, 2008 accident, StudentCity did not know and had no reason to know that Servicios Maritimos’ operations may be unsafe”.

No Duty To Ferret Out Hidden Hazards

“There is simply no evidence to suggest that the steps StudentCity took in selecting its snorkeling excursion vendor were unreasonable under the circumstances. A tour operator is not responsible for ferreting out potential hidden hazards with third party service providers, where, as here, there is no reason to suspect danger. See Wilson v. American Trans Air, Inc., 874 F. 2d 386, 390 (7th Cir. 1989). And imposing such an obligation on StudentCity to have evaluated the Sea Star crew’s competence is illogical because it would be tantamount to requiring StudentCity to have become experts in seamanship. This the law does not require…Summary judgment is appropriate as to plaintiffs’ claim to the extent based on a negligent selection theory”.

Assumed Duty

“Plaintiffs also contend that StudentCity is liable because it breached its duty to ensure Lisa’s safety during the snorkeling excursion. In plaintiffs’ view, StudentCity assumed this duty by advertising to parents that tour participant safety is a priority and that staff are on site for all StudentCity-organized events. Here, plaintiffs conflate two duties which, in the court’s view, are distinct: (1) a duty for general supervision of tour participants; and (2) a duty to ensure that no injury can befall a tour participant as a result of a third party’s negligence”.

Duty To Supervise

“As to the first duty, the record is clear that a central part of StudentCity’s marketing strategy was to reassure parents that their children would be supervised ‘to ensure the most reliable level of security possible throughout [the] trip’… Therefore, StudentCity voluntarily assumed a duty to generally supervise tour participants during all StudentCity-organized/scheduled events, including the June 7, 2008 snorkeling excursion…There is a dispute over whether StudentCity breached this duty by failing to have an on-duty staff member on board the Sea Star…only an off-duty staff member was on board. However, this dispute is ultimately of no moment because even assuming a breach, the claim fails on causation. Lisa’s death resulted not from inadequate supervision by StudentCity staff, but rather from the boat accident caused by the overloading of the Sea Star and its negligent operation o Servicios Maritimos”.

Duty To Ensure Safety

“There is no evidence that StudentCity assumed a duty to ensure that no harm would occur to tour participants as a result of the negligence of a third party. Indeed, StudentCity’s explicit rejection of such a duty is confirmed by its Customer Agreement:‘…I understand and agree…that [StudentCity]…shall be liable or responsible for any negligent or willful act or failure to act of any third party’. Nor would it make any sense to impose such a duty on StudentCity which is not an expert in boat operation. Because StudentCity never assumed a duty to ensure absolute safety of tour participants during third-party operated excursion, the plaintiffs’ claims based on such a duty fail”.

Conclusion

“The motion for summary judgment…is allowed. Judgment may be entered for defendant”

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.