In this week’s article, we discuss the recent case of Rodriguez v. Massachusetts Bay Transportation Authority, 2016 WL 1426303 (Mass. Super. 2016) wherein the plaintiff on behalf of a class of purchasers of monthly commuter rail passes “seeks to recover economic damages…suffered when the defendant Massachusetts Bay Transportation Authority (MBTA)…failed to provide ‘timely and reliable commuter service’ during a period beginning near the end of January, 2015 through March, 2015. As anyone living in the MBTA’s service area at that time knows, during those months, the Commonwealth of Massachusetts endured record-breaking snow storms that, at times, paralyzed travel and altered normal patterns of daily life in the region”. This case is reminiscent of several commuter lawsuits brought in the late 1970s in New York State involving delays and discomfort caused by inadequate air conditioning and mechanical breakdowns on the Long Island Railroad in the late 1970’s [see Javeline v. Long Island Railroad, 106 Misc. 2d 814 (N.Y. City Court 1981); Kassel v. Long Island Railroad, 107 Misc. 2d 1967 (Nassau Dist. Ct. 1981)].
Terror Targets Update
ISIS Global Network Of Killers
In Callimachi, How a Secretive Branch of ISIS Built a Global Network of Killers, nytimes.com (8/3/2016) it was noted that “The operatives belonged to an intelligence unit of the Islamic State known in Arabic as the Emmi, which has become a combination of an internal police force and an external operations branch, dedicated to exporting terror abroad, according to thousands of pages of French, Belgium, German and Austrian intelligence and interrogation documents obtained by the Times. The Islamic State’s attacks in Paris on Nov. 13 brought global attention to the group’s external terrorism network, which began sending fighters abroad two years ago”.
In Hadid, Fatah Makes Incendiary Facebook Claim of Killing 11,000 Israelis, nytimes.com (8/4/2016) it was noted that “In an effort to appeal to Palestinians ahead of hotly contested elections, the party of President Mahmoud Abbas listed one of its main achievements as having ‘killed 11,000 Israelis’. The party, Fatah, made the incendiary claim of Tuesday in an Arabic-language post on one of its official Facebook pages. ‘For the argumentative…the ignorant…And for those who do not know history’, begins the Facebook post, ‘The Fatah movement killed 11,000 Israelis’. Fatah also claimed to have ‘offered 170,000 martyrs’ and hundreds of its followers, it said, were in ‘Israeli occupation jails’. By Thursday the post had been shared 30 times and likes 163 times”.
Rio De Janeiro, Brazil
In Romero & Schmidt, As ISIS Posts in Portuguese, U.S. and Brazil Bolster Olympics Security, nytimes.com (8/1/2016) it was noted that “Worried about possible terrorist attacks at the Olympics in Rio de Janeiro, Brazil’s government is working closely with American law enforcement and intelligence services to identify threats and thwart potential disasters at the Games…But jihadists are calling for mayhem at the Olympics, building on a wave of killings in Europe, the United States and elsewhere over the last year, including the massacre of 130 people in Paris and ‘lone wolf’ attacks inspired by the Islamic State, that has raised broad fears about Brazil’s security preparations for the Games”.
In Steinmetz, Secure Hotel for foreigners in Kabul under deadly attack by Taliban, eturbonews.com (7/31/2016) it was noted that “A truck full of explosives exploded near the entrance of Northgate Hotel…Not many tourists are traveling to Kabul, but if they do, the Northgate Hotel may be the place to stay. Taliban says they targeted wealthy foreigners with blast, gunfire at the hotel and claimed responsibility of a terror attack on this property”.
Zika, Zika, Zika
In Steinmetz, Rio Olympics tourism: Avoid sex, mosquito bites and a stark warning, eturbonews.com (8/3/2016) it was noted “Avoiding mosquito bites and safe or no sex is best defense against virus. Travel safety specialist Travelwise has issued a stark warning to travelers heading to the 2016 Olympic Games: slap of the mosquito repellant and practice safe sex or abstain completely if you want to stay safe this summer”.
In Schwartz, Florida’s $82 Billion Tourism Industry Braces for Zika, nytimes.com (8/3/2016) it was noted that “The news grew worse on Monday, when the Centers for Disease Control and Prevention issued the first travel advisory in the United States, cautioning pregnant women to avoid Wynwood. Though the warning comes in August, traditionally a slow season for tourism in Miami, it does coincide with the time that many travelers are looking to make their plans for winter vacations. It has left hoteliers and others in the travel industry nervous that the warning will dampen Florida’s $83 billion tourism industry.
In Belluck, Zika Surge in Miami Neighborhood Prompts Travel Warning, nytimes.com (8/1/2016) it was noted that “Federal health officials on Monday urged pregnant women to stay away from a Miami neighborhood where they have discovered additional cases of Zika infection-apparently the first time the Centers for Disease Control and Prevention has advised people not to travel to a place in the continental United States. Florida officials said the number of Zika cases by local mosquitoes had risen 14 from the four announced on Friday; 12 men and two women. They declined to say whether either women was pregnant. All of the cases have been in one neighborhood”.
In McNeil, Zika Cases in Puerto Rico Are Skyrocketing, nytimes.com (7/30/2016) it was noted that “The Zika epidemic that has spread from Brazil to the rest of Latin America is now raging in Puerto Rico-and the island’s response is in chaos…Infections are skyrocketing: Many residents fail to protect themselves against bites because they believe the threat is exaggerated…There are only about 5,500 confirmed infections on the island, including of 672 pregnant women…In Puerto Rico, officials believe thousands of residents-including up to 50 pregnant women-are infected each day. Most never get tested”
Hot-Air Balloon Explodes
In Montgomery, Astor & Hauser, Hot-Air Balloon Crash in Texas Kills 16, Officials Say, nytimes.com it was noted that “A hot-air balloon carrying 16 people caught fire and crashed in Central Texas on Saturday, officials said…no one had survived…Initial reports from officials said the balloon had plummeted after catching fire in the air, but at least one witness said it might have struck high-tension power lines before hitting the ground and bursting into flames”.
Elephant Kills Girl In Morocco
In Osborne, Elephant kills 7-year girl by launching a rock at her head with its trunk, The Independent (7/28/2016) a.msn/com/r/2/BBv05P7?a=1&m=en-us it was noted that ”A schoolgirl has died after she was hit on the head by a rock launched by an elephant at a zoo in Morocco”.
Thailand’s Tiger Tourism Exposed
In True scale of Thailand’s tiger selfie tourism exposed, eturbonews.com (7/25/2016) it was noted that “In the wake of the recent scandal and closure of Thailand’s Tiger Temple, World Animal Protection exposes the true scale of abuse of captive tigers at the hands of Thailand’s tiger tourism industry, ahead of International Tiger Day (Friday, July 29)…Tiger entertainment venues are increasingly popular attractions where tourists can get up close and personal for a ‘once in a lifetime’ encounter with a wild tiger in captivity. Besides a worrying trend in the growing numbers of captive tigers, the report also evidences the intensity of the cruelty involved in tigers being made submissive enough to entertain tourists”.
“Getaround” In San Francisco
In Taub, Smartphones Bring More Mobility to the Rental Car Business, nytimes.com (8/4/2016) it was noted that “Owning a car in a congested city like New York or San Francisco can mean more hassle than happiness, what with traffic snarls, limited street parking and expensive garages. But Curtis Rogers has figured out a way to turn those psychic costs into a source of profit. The less he drives, the more be potentially makes. Registering his vehicle on the peer-to-peer car rental company Getaround, Mr. Rogers, who lives in San Francisco, rents out his Toyota Prius by the hour or the day, whenever he does not need it. In the last six months, he has earned an average of $750 a month for essentially doing nothing but acting as his own rent-a-car company…Mr. Rogers, whose day job also involves disruptive transportation technology, is an account operations manager for Lyft, the ride-hailing competitor of Uber. Getaround joins companies like Lyft and Uber-and for that matter, Airbnb, that enable owners and customers to make use of valuable assets that might otherwise sit idle much of the time. And it is but one example of how smartphone-based technology continues to upend the traditional car rental business, which was long dominated by Avis, Enterprise, Hertz and their various subsidiaries”.
Drone Testing In Britain
In Kang, Amazon Expands Drone Testing in Britain, nytimes.com (7/25/2016) it was noted that “Amazon has partnered with the British Government to significantly expand drone testing, a move that could allow the devices to deliver packages to British homes far earlier than in the United States. Under the partnership, Britain’s aviation regulator will let Amazon test several aspects of drone technology-such as piloting the machines beyond the line of sight of its operators-that the Federal Aviation Administration in the United States has not permitted…The move puts pressure on the F.A.A. which has recently rebuffed requests by Amazon, Google and other drone makers to advance their delivery plans”.
India Flight Compensation App
In First flight compensation app for air passengers launched in India, eturbonews.com (8/2/2016) it was noted that “A dedicated India mobile phone app and online widget to help air travelers secure compensation for delayed, cancelled and overbooked flights regulated by both India and European Union (EU) passenger rights legislation, was launched today. The refund.me India app is the first to be specifically developed for air passengers travelling to, from and within India-helping enforce the consumer rights of the more than 83 million passengers who take to the skies every year on domestic and international flights operated by India-based airlines”.
Kenya Taxi Price War?
In Taxis declare price war, eturbonews.com (7/27/2016) it was noted that “Transport charges by Uber in Kenya will as of midnight come down along with the charges per minute. The base fare will remain unchanged, although short rides will now cost considerably less…the simple truth of the slashed fares is the sudden sharp rise in competition. A Safaricom-backed company-Safaricom being Kenya’s communications and mobile money giant-by the name of Little Cabs has entered the market recently with a big bang and taken significant enough market share out of the previously Uber-dominated market, prompting a major fare review and what will no doubt become a major price war”.
Raising Kenya Uber Drivers Pay
In Steinmetz, Under pressure UBER agrees to pay drivers better, eturbonews.com (7/31/2016) it was noted that “Information was confirmed overnight that UBER, under pressure from the car owners and drivers contracted by them over the recent radical slashing of fares, has now given in to demands to raise their pay in Kenya. Should drivers on call fail to get rides during peak hours (they will) receive between 450 and 500 Kenya Shillings as a top up from UBER, clearly in response to growing unease by car owners/drivers with obligations to pay off car loans and now faced with drastically slashed fares and sharply increased competition through new web based cab hailing services”.
Uber Surrenders In China
In Mozur & Issac, Uber to Sell to Rival Didi Chuxing and Create New Business In China, nytimes.com (8/1/2016) it was noted that “Despite intense local competition, the market was one of Uber’s largest by total number of rides. A Chinese operation was the personal project of the Uber co-founder Travis Kalanick, who traveled regularly to the country and gave speeches that borrowed the jargon of Chinese Communist Party officials. His interest was backed up by billions of dollars in investment. But on Monday, Uber, the ride-hailing company known globally for competing ruthlessly against all comers, waived the white flag. In a stark signal of how difficult it is for American technology companies to thrive in China, Uber China said it was selling itself to Didi Chuxing, its fiercest rival there. The sale…would end the great ride-hailing battle of China”.
China Defeats The Imperial Armada Again
In Manjoo, Even Uber Couldn’t Bridge the China Divide, nytimes.com (8/1/2016) it was noted that “Over the last couple of decades, Amazon, Facebook, Google and other American technology giants have each followed a similar script for world domination. Like an imperial armada rolling out from North America’s West Coast, these companies would try to establish beachheads on every other continent. But when American giants tried to enter the waters of China, the world’s largest internet market, the armada invariably ran aground”.
Zipcar Settles AG Suit
In Denney, Zipcar Settles AG Suit Over Damage Charges, law.com (7/28/2016) it was noted that “New York Attorney General Eric Schneiderman has reached a settlement with Zipcar, Inc., over vehicle damage fees charged to 5,000 members from 2011 through 2015. Investigators said the Boston-based Zipcar failed to notify consumers before charging fees that ranged up to $1,000. New York General Business Law Section 386 requires companies to give consumers an opportunity to dispute damage fees before they’re assessed…Zipcar agreed to refund damage charges assessed against customers who contested their responsibility, pay $35,000 to the attorney general’s office and comply with New York law”.
Travel Law Articles: The Rodriguez Case
As noted by the Court “The MBTA was created by statute and is charged with providing commuter rail service and subway service…The MBTA is responsible for providing commuter rail service along fourteen rail routes in and around…Boston…On a typical day the MBTA provides commuter rail service to 131,161 people and to approximately 25,703 people and 20,907 people on Saturdays and Sundays, respectively…There are approximately 388 route miles of service and 138 commuter rail stations”.
Commuter Rail Passes
“Each month, the MBTA sells monthly commuter rail passes to thousands of commuters based on ‘zone pricing’. There are ten different zones…Pass prices range from $75.00 to $362.00. In February, 2015, Rodriguez purchased a Zone 1 Pass for $182.00. The commuter rail pass contains the following language: ‘Subject to applicable tariff regulations and conditions of use. Ticket may be confiscated for misuse. Not replaceable if lost or stolen. Non-refundable’. The pass also provides that schedule and fare information is available at ‘617-222-3200 Website: mbta.com’”.
Winter Of 2015
“The winter of 2015 in Massachusetts ‘featured several winter storms from January through February 2015’…There were four snow storms with snow accumulations in the double digits… Rodriguez notes (in her Complaint) ‘that even though the Boston area received ‘historic’ snow fall for the entire winter of 2015, there were at least three to seven days between each double digit snow storm and ‘more than enough time to clear the snow and return to a full commuter rail schedule’”.
Winter Recovery Schedule
“The MTBA…announced a ‘winter recovery schedule’ and continued to provide less than full commuter rail and subway service…Each commuter line ran four to five trains per day; only one or two trains per line ran in the morning on weekdays… train schedules were inconvenient, trains were cancelled and frequently delayed without proper announcements…and ‘service was well short of what Plaintiff and monthly purchasers of monthly commuter rail passes paid for’…On March 11, 2015, the MBTA ‘admitted it failed its ridership’ and offered riders a fifteen percent discount to anyone who purchased a May, 2015 monthly commuter rail pass…The average discount was approximately $37.74″.
Culture Of Indifference
“Rodriguez alleges that years of mismanagement at the MBTA and a culture of indifference (not the weather) are the real reasons that defendants provided substandard service and ‘breached the contracts’ with her and other purchasers of monthly commuter rail passes. [T]he MBTA…lacked the proper equipment to deal with winter storms. The MBTA failed to spend $2.3 billion of its capital budget over the last five years. However, the MBTA spent $66.5 million on salaries for 444 employees, for an average annual salary of approximately $150,000 per employee”.
Governor’s Special Panel
“Governor Baker created a special panel to review the MBTA (which found, inter alia) a. The catastrophic winter breakdowns were symptomatic of structural problems that require fundamental change in virtually all aspects of the MBTA; b. Measured against national benchmarks and other transit system, the [MBTA’s] operating costs are too high and its productivity and performance were too low; c…weak workplace customs and practices; d. Including vacation days, MBTA employees miss an average of 57 working days (11 to 12 weeks) per year”.
Tariffs And Filed Rate Doctrine
The primary claim in the Rodriguez complaint is breach of contract. The Court briefly noted that neither MBTA’s tariff nor the filed rate doctrine [both doctrines being relied upon frequently by transportation providers in disclaiming liability for delays (see Travel Law at Sections_______;); see also Stathakos v. Metropolitan Transit Authority Long Island Railroad, 109 A.D. 3d 979 (2nd Dept. 2013)(‘The tariff schedules specifically acknowledged the possibility that rain service might be delayed or cancelled and clearly and unambiguously stated that no refunds would be given for such delays or cancellations’)] apply to absolve the MBTA of liability because they are ambiguous say “nothing about limiting the MBTA’s liability for a failure to provide service”.
Breach Of Contract
“After a thorough review of the complaint and the arguments of counsel, the court concludes that the breach of contract claim against the MBTA must be dismissed because the complaint fails to allege an essential element of a breach of contract claim; an agreement between the parties on a material term of the contract at issue…While a contract may exist between a monthly commuter rail ass holder and the MBTA to allow passage on the commuter trains that the MBTA runs during the month, there is no contract term requiring the operation of any particular train. Stated differently, the MBTA had no express contractual obligation to provide ‘normal’ or ‘regular’ commuter rail service during and after the record-breaking snow storms in 2015, even though the plaintiff may have expected such rail services (distinguishing Sears v. Eastern Railroad Co., 96 Mass. 433, 436 (1867))…If the contract does not include the posted schedule of all grains as a contract term, where is the implied contract term that defines the MBTA’s obligation, and what is it? The plaintiff is unable to articulate one, as is the court”.
A Political Problem
“This court sympathizes with the plaintiff and the other monthly purchasers of commuter rail passes…For many of these commuters, the absence of public transportation was undoubtedly a significant hardship…Nonetheless, frequently, when government fails to provide services of the quality and consistency that the public expects, recourse must be through political institutions, not through the courts”.
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.