Tourist suffers severe ankle injury while zip-lining in Dominica: Is cruise line liable?
In this week article, we examine the case of Ceithami v. Celebrity Cruises, Inc., 2016 U.S. Dist. LEXIS 126431 (S.D. Fla. 2016) in which Ceithami was a cruise passenger aboard the Celebrity Summit on December 9, 2014 when she purchased from Celebrity a ‘zip-line excursion ride’ in Dominica run by Wacky Rollers Adventure Vacations and Expeditions, Ltd. (‘WRAVE’). She rode the WRAVE zip-line that same day and suffered a compound fracture of her left ankle when she continued past the ride’s landing platform and struck a tree…Seeking redress for her injuries, Ceithami filed this lawsuit…alleging five putative causes of action against Celebrity: (1) direct negligence in choosing and monitoring WRAVE; (2) negligent misrepresentation in its literature, in onboard media, and on its website regarding the safety and quality of the WRAVE zip-line ride; (3) vicarious liability resulting from the negligence of its joint venture partner WRAVE; (4) vicarious liability resulting from the negligence of its apparent agent WRAVE; and (5) vicarious liability resulting from the negligence of its actual agent WRAVE…Celebrity moved to dismiss all counts for failure to state a claim (which the Court granted). For discussion of the liability of cruise lines for shore excursion accidents see Dickerson, Travel Law, Law Journal Press (2017) at 3.02[c]. See also: Dickerson, The Cruise Passenger’s Rights and Remedies 2016, 41 Tulane Maritime Law Journal 141 (Winter 2016).
Terror Targets Update
“Excessive Violence” In Myanmar
In UN admits ‘ethnic cleansing’ taking place in Myanmar, travelwirenews (9/14/2017) it was noted that “The United Nations has finally acknowledged that an ethnic cleansing of Muslims is taking place in Myanmar. UN chief Antonio Guterres on Wednesday called for immediate end to violence in the country’s Rakhine state. Also, the UN Security Council in its first statement on Myanmar over the past nine years condemned what it described as ‘excessive violence’ against Muslims in the country’s Rakhine state”.
In Chan, Kingsley & Yeginsu, London Underground Is Struck by Crude Bomb at Persons Green, nyti.ms/2y2BAeQ (9/15/2017) it was noted that “Britain was hit by a terrorist attack on Friday morning, when a crude device exploded on a crowded London Underground train, injuring commuters, sowing panic, disrupting service and drawing a heavy response from armed police officers and emergency workers. The device exploded at 8:20 a.m. on an eastbound District Line train leaving Parsons Green station in Southwest London”.
In Yeginsu & Farrell, British Police Make ‘Significant Arrest’ in Subway Bombing, nytimes (9/16/2017) it was noted that “The British police said on Saturday that they had arrested an 18-year-old man in connection with the terrorist explosion in a London subway station that injured 30 people and unleashed panic among fleeing passengers…The Islamic State claimed responsibility for the blast on Friday in a statement that said, ‘a detachment’ of its militants had carried out the attack. Britain raised its terror threat level to ‘critical’, the highest level, after the explosion, meaning that another assault was ‘expected imminently’”.
Uber Out In London
In Rao, Uber Loses Its License to Operate in London, nytimes (9/22/2017) it was noted that “London’s transportation agency dealt a huge blow to Uber on Friday, declining to renew the ride-hailing service’s license to operate in its largest European market, The decision is the latest setback for a company that has upended public transportation across much of the world…But along the way, Uber has faced an array of controversies: allegations of sexual harassment, concerns about its use of software to evade the gaze of authorities, and a reputation-fair or not-that it simply does not play by the rules…The agency took direct aim at Uber’s corporate culture, declaring that the company’s approach and conduct demonstrate a lack of corporate responsibility in relation to a number of issues which have potential public safety and security implications…the company has been given 21 days to appeal-it immediately vowed to do so-and will be allowed to continue operating in the city during the appeal process”.
In Picchi, Reeling from its London license loss, Uber rallies customers, Moneywatch, cbs (9/22/2017) it was noted that “Uber isn’t taking the revocation of its London license sitting down. The ride-hailing service, which stands to lose tens of millions in revenue from the ban, is revving up its customer base to pressure London’s authorities to reconsider the decision. Rallying its millions of customers to put pressure on regulators is a well-honed technique at Uber, which tapped its customer base in New York several years ago to protest a potential curb of its service”.
Overbooked? Name Your Price, Please
In Zhang, United Airlines will soon let you name your price for giving up your seat on an overbooked flight, msn (9/23/2017) it was noted that “Among those changes is a pledge by the airline to create an automated system by which passengers on oversold flights who are willing to alter their travel plans can be identified and compensated. On Friday, United confirmed that this automated system will use an auction-based format that will allow passengers to enter bids for much money it will take for them to give up their seats on an oversold flight”.
St. Martin Trying To Survive
In Ahmed, More Than A Week After Irma, St. Martin Is Still Trying to Survive, nyti.ms/2y2HpZo (9/15/2017) it was noted that “The arduous passage to evacuate her broken island was nearly done-through the chaos of a port filled with capsized boats, the traffic-choked drive lined with buildings and homes torn from their foundations, and the desperation of the masses at the airport, hoping to flee the wreckage as armed soldiers kept order…Life, for now, is a fragile thing on St. Martin, one of the Caribbean islands hit hardest by Hurricane Irma…But there is still almost no fuel or electricity, and food delivery, for now, remains erratic. A near total communications blackout throttles the island. Almost all of the schools are destroyed and will be closed for months, at best”.
Orlando Attractions Reopen
In Vora, After Irma, Most Orlando Attractions Have Reopened, nytim.ms/2y1C9Wb (9/14/2017) it was noted that “After Hurricane Irma, tourist attractions and hotels in Orlando and Savannah are once again open for business and welcoming visitors-for the most part, at least. Orlando’s tourism districts sustained minimal damage from the storm…Walt Disney World’s six parks were closed Sunday and Monday, but the four theme parks reopened with regular operating hours by Tuesday…Universal Orlando Resort’s three theme parks-Universal Studios Florida, Universal’s Island of Adventure and Universal’s Volcano Bay-are all open and so is SeaWorld Orlando and its water park, Aquatica”.
Fire In Malaysia
In Goldman, Fire at Malaysian Boarding School Kills 24, Mostly Students, nytimes (9/14/2017) it was noted that “Twenty-four people, most of them children, were killed in a fire on Thursday at an Islamic boarding school in Kuala Lumpur, Malaysia’s capital, when they became trapped by a locked door and barred windows, officials said…’Based on our initial investigations, the position of the victims were found indicated that they tried to escape through windows but were stopped due to the fixed grills on the windows’, Datuk Soiman Jahid, a deputy director general with the fire department, told reporters”.
San Diego Hepatitis Outbreak
In 15 dead in hepatitis outbreak as San Diego starts street washing, travelwirenews (9/12/2017) it was noted that “Sanitary street washing will begin in San Diego where a ‘fecally-contaminated environment’ has led to an outbreak of hepatitis A that has killed 15 people and hospitalized 300 others, mostly from the city’s homeless population”.
Jellyfish With Your Pasta, Anyone?
In Horowitz, Jellyfish Seek Italy’s Warming Seas. Can’t Beat ‘Em? Eat ‘Em. nytimes (9/17/2017) it was noted “While tourists throughout Europe seek out Apulia, in Italy’s southeast, for its Baroque whitewashed cities and crystalline seas, swarms of jellyfish are also thronging to its waters… Jellyfish are still treated, literally, like trash…Convinced that climate change and overfishing will force Italians to adapt, as they once did to other foreign intruders, like the tomato, (the European Commission’s research and innovation branch) has launched the Go Jelly project, which roughly boils down to, if you can’t beat ‘em, eat ‘em”.
Sun Screen And Coral Reefs
In Is your sunscreen destroying coral reefs?, travelwirenews (9/3/2017) it was noted that “[R]ecent studies have shown that a common compound, oxybenzone found in sunscreen is causing mass devastation to coral reefs. The UV-absorbing chemical has been shown to poison coral in several ways. In recent studies, biologists have shown that the compound disrupts reproduction and growth, leaving young corals fatally deformed. Even in minute doses, the researchers found, oxybenzone rapidly bleached coral and slows new growth…It is estimated that 14,000 tons of sunscreen lotions end up in coral reefs each year”.
Rape Accusations In Florence
In Horowitz, Rape Accusations Against Italian Police Dismay Florence, nytimes (9/16/2017) it was noted that “The officers have been suspended; they admitted to prosecutors that they had sex with the young women, aged 21 and 19, after meeting them while on duty and in uniform at a popular nightclub and giving them a lift home in their squad car. The students…told prosecutors they were drunk and were raped. But the officers said that the women were not intoxicated, and that the sex was consensual. The episode has especially touched nerves in a city where American students make up a tenth of the entire student population and help fuel the economy but also can be seen, and heard, drinking on the streets…Here in Florence the accusations have…generated cringeworthy media coverage and conversations about American students behaving badly”.
In Boffey, Amsterdam to increase tourist tax to reclaim city for residents, The Guardian, msn (9/17/2017) it was noted that “Amsterdam is planning to increase taxes on tourists by as much as 10 euros a night, as the authorities attempt to limit stag weekends and visitors to the red-light district and reclaim the city for residents. About 17 million people visited the city of 850,000 residents in 2016, up from 12 million five years earlier, and the trend is expected to accelerate. More than a quarter of visitors stayed in budget hotels, the local council says, bringing limited cash into the municipal coffers”.
South African Ferry Sinks
In South Africa: ‘Technical Problem’ Possibly to Blame for Robben Island Ferry Sinking-Museum, travelwirenews (9/16/2017) it was noted that “The 64 passengers and four crew members aboard the ferry, Thandi, had to be evacuated when the nose of the boat started to sink in rough seas, 3km from the Cape Town waterfront”.
Travel Agent Fraud
In Las Vegas travel agent faces mail fraud charge in New York, travelwirenews (9/16/2017) it was noted that “A Las Vegas travel agent accused of stealing more than $200,000 from Catholic churches is facing federal mail fraud charges in New York”.
TCPA Class Action Settlement Notice
In Charvat v. Resort Marketing Group, Inc., et al., Case No: 1:12-ev-05747 (N.D. Ill.)(Judge Wood) Class Action Settlement Notice (rmgtcpasettlementit was noted that “A settlement has been reached in a class action lawsuit claiming that a travel agency called Resort Marketing Group, Inc., (RMG) made automated telephone calls to consumers to offer a free cruise with Carnival Corporation & PKC (Carnival), Royal Caribbean Cruises, Ltd. (Royal Caribbean) and NCL (Bahamas), Ltd. (Norwegian)(collectively Cruise Defendants)(the Settlement). The lawsuit claims that RMG violated the Telephone Consumer Protection Act (TCPA) and that the Cruise Defendants should be held vicariously liable for RMG’s conduct. RMG and the Cruise Defendants deny the claims and deny they violated the TCPA. The Court has not made a decision as to who is right, rather, the parties resolved the dispute by settlement… Submit a Claim Form…This is the only way you can get a payment from the Settlement”. See RMGTCPASettlement
Hotel Buffets Downsized
In Himelstein, Hotel Buffets, a Culprit of Food Waste, et Downsized, nytimes (9/8/2017) it was noted that “Lawrence Eells, the executive chef at the Hyatt Regency Orlando, in Florida, would like his kitchen, or at least its operations, to be as lean as his roast beef. So, in April, he welcomed a team of researchers looking at ways to reduce food waste, especially around the abundant all-you-can-eat buffets. Experts from Idea (found) that guests ate just over half of the food put out. Perhaps even more striking was that only 10 to 15 percent of the leftovers would be donated or repurposed because of food safety regulations, while the rest ended up in the garbage. The sizable waste generated by coffer, juices and other liquids added to the conundrum…The United States generates 63 million tons of food waste annually, at an estimated cost of $218 billion…Though no good data exists yet about how much hotels or their buffets specifically contribute to the overall waste of food, the thinking is that hotel are an ideal place to raise awareness and change behaviors around sustainability issues”.
A Touch Of Security
In Martin, Passing Through Airport Security With the Touch of a Finger, nyti.ms/2gQzR8R *9/8/2017) it was noted that “Airport terminals are often a maze of lines…Finding solutions to line fatigue has become a priority of the (TSA)-and a business opportunity for others. A company called Clear is using fingerprints and iris scans to spare some passengers the first phase of the T.S.A.’s security airport process-the document verification checkpoint and its line. Clear says it can speed fliers through checkpoints while maintaining tight security. But the rollout process has been slow-Clear is available only in some terminals at 24 domestic airports”.
Swedish Travel Microchips
In 3,000 Swedish commuters using microchips as travel cards, travelwirenews (9/12/2017) it was noted that “When you’re in a rush, it can be easy to forget your travel card on the way out of the house. But for around 3,000 commuters in Sweden, this isn’t something to worry about. The brave commuters have futuristic microchip implants embedded into their hands to pay for their journey…The small implants use Near Field Communication (NFC) technology, the same as in contactless credit cards or mobile payments”.
Retail Websites Are “Public Accommodations”
In a recent legal decision in Andrews v. Blick Art Materials, 17-cv-767 (E.D.N.Y. (8/1/2017) it was held that the Americans With Disabilities Act (ADA) applies to retail websites. In Denney, Retail Websites Are “Public Accommodations’ Subject to ADA, Judge Rules, newyorklawjournal (9/5/2017) it was noted that “As courts remain divided over whether or not websites should be held to the same standard under the Americans with Disabilities Act as brick-and-mortar locations, companies across the country continue to get hit with lawsuits for lack of online accommodations for the disabled. In a recent ruling, U.S. District Judge Jack Weinstein of the Eastern District of New York found that the website Blick Art Materials, where customers can purchase products, is a place of public accommodation and thus subject to the ADA. Weinstein said in his Aug. 1 ruling it would be a ‘cruel irony’ to accept Blick’s argument that a website is not a ‘place’ as described by the ADA and that doing so ‘would render the legislation intended to emancipate the disabled from the bonds of isolation and segregation obsolete when its objective is increasingly within reach”.
In Perkins, Beware: Voucher Gotchas, sun-sentinel (9/5/2017) it was noted that “Unless you’re really unusual, you’ll occasionally face a situation where a cruise line, airline or hotel owes you something in the way of a refund or compensation. In that sort of situation, the supplier almost always tries to settle what you’re owed with a voucher for-or discount on-future travel rather than cutting you a check. If the voucher deal looks really good, accept it. But airlines, cruise lines and other suppliers typically incorporate gotchas into their vouchers that make them worth a lot less than the face value-or the value of any cash you might otherwise have coming. Five gotchas predominate (and include) (1) No Transfer… (2) Limited Validity…(3) One Bite…(4) Limited Price Coverage… (5) Product Limitations”.
In Grubhub claims it’s not a food delivery company to avoid paying drivers more, travelwirenews (9/8/2017) it was noted that “Despite its substantial food delivery operation, Grubhub is claiming it’s not a food delivery company. Grubhub, which describes itself in regulatory filings and marketing copy as the leading platform for restaurant pick-up and delivery orders, is trying its best to convince a courtroom that’s not what it is. In the face of a groundbreaking lawsuit from two former delivery drivers, Grubhub chief operations officer Stan Chia took the stand on Friday to say that actually Grubhub is not a food delivery company; it’s ‘the premiere marketplace connecting diners with restaurants’…At issue in the trial is whether or not the two drivers should be considered more protected W-2 employees or independent contractors”. Uber Technologies, Inc. Has been battling over this issue as well. See Dickerson, Uber: The Turning Of The Tide. law360 (4/24/2017); neworklawjournalnewyorklawjournalnewyorklawjournallaw360Dickerson, Uber On The Brink, law360 (5/8/2017); Dickerson, Uber May Have Met Its Waterloo In Europe, law360 (5/18/2017).
Travel Law Case Of The Week
In the Ceithami case, the Court noted that Ceithami claims that when she purchased the [WRAVE zip-lining] ride, she was relying on Celebrity’s representations that the ride was safe. These representations included Celebrity’s statement on its website and by personnel at the Summit’s onboard ‘excursion desk’, that all Celebrity excursions ‘are planned by insured partners who adhere to the highest safety standards in the industry.’”
Implicit Vouching For Safety
“Ceithami alleges that Celebrity also implicitly vouches for the safety of its excursions because it offers, promotes, markets and otherwise organizes and sells tickets for the excursion; ‘arranges for transportation’ to the excursion site; makes excursions ‘part and parcel’ of the cruise vacation experience by providing passengers with literature; uses its logo to market the excursion; selects its excursion operators; has a joint venture and agency relationship with WRAVE; and ‘received a substantial amount of income from the sale’ of excursions and ‘in fact splits the excursion revenue with the owner of the excursion’”
“Despite these representations, however, Ceithami claims that the WRAVE zip-line was deficient in a number of ways: (1) it had no braking system or emergency brake; (2) the landing platform at the end of the ride was ‘too small for the rider to have adequate space for a landing’; (3) WRAVE failed to train either riders or its employees operating the zip-line and (4) the WRAVE employee assigned to catch her at the zip-line’s endpoint was not paying attention. Ceithami states that these and other deficiencies listed in the Complaint brought the ride well below industry safety standards and were the proximate cause of her injuries”.
Direct Negligence In Choosing & Monitoring
“Ceithami first alleges that Celebrity is liable for ‘direct negligence in choosing and monitoring’ WRAVE as its excursion operator. However, the Complaint alleges no facts supporting Celebrity’s duty of care or failure to warn and instead attempts to impose a heightened duty unsupported by federal maritime law. Moreover, the extent to which (the Complaint) attempts to state a claim for negligent hiring and retention, it fails to do so…Pursuant to federal maritime law, the duty of care that cruise operators owe passengers is ordinary reasonable care under the circumstances, ‘which requires, as a prerequisite to imposing liability, that the carrier have actual or constructive notice of the risk-creating condition’…Without actual or constructive notice, Celebrity contends, there can be no duty of care under federal maritime law and hence no negligence claim based on a failure to warn theory. The Court agrees” (citing Gayou v. Celebrity Cruises, Inc., 2012 U.S. Dist. LEXIS 77536 (S.D. Fla. 2012)(claims of cruise passenger who struck a tree during zip-lining shore excursion in Costa Rica; negligence claim dismissed because no facts “from which it may be inferred that Celebrity either knew or should have known of any dangerous or unsafe condition associated with the zip-lining excursion’)…The claim of negligent hiring or retention…also requires) that the [shipowner] knew or reasonably should have known of the particular incompetence or unfitness (and no such facts are alleged)”.
“Ceithami also alleges that Celebrity negligently misrepresented the safety of the WRAVE’s zip-line ride…(the Plaintiff) does not allege when Celebrity made the representation on its website, nor the time of day that she spoke to Celebrity personnel at the excursion desk…she does not identify the precise statements that Celebrity made to her (claiming merely personnel ‘confirmed’ the statement on Celebrity’s website that the WRAVE zip-line ‘adhere[d] to the highest safety standards in the industry’) and provides no facts about the person at the excursion desk who allegedly made misrepresentations to her”. This Court is dismissed for failure to “satisfy Rule 9(b)” without prejudice.
Joint Venture Claim
“Ceithami’s firth theory of Celebrity’s vicarious liability for WRAVE’s negligence is based on her assertion that Celebrity and Wrave were engaged in a joint venture that is ‘evidenced orally and in writing by agreement and communications’…Celebrity rejects this premise pointing to a provision in its written Tour Operator Agreement with WRAVE (which identifies WRAVE as) independent contractor…Indeed, the Complaint contains no facts suggesting that Celebrity ever intended to enter a joint venture with WRAVE. Thus, Ceithami does not adequately allege negligence under a joint venture theory (citing Zapata v. Royal Caribbean Cruises, Inc., 2013 U.S. Dist. LEXIS 43487 (S.D. Fla. 2013))”.
“Ceithami’s second theory of negligence based on vicarious liability is that Celebrity held out WRAVE as its agent, creating an apparent agency relationship. At the outset, the Court finds that because Ceithami failed to state a plausible negligence claim, her ‘apparent agency’ claim also fails….It should be noted, however, that Ceithami has pleaded sufficient facts to allege an apparent agency relationship between Celebrity and Wrave…These facts include that Celebrity ‘bombarded’ Ceithami with a ‘series of internet, brochure and other media, all of which advertised the availability and safety of various’ excursions; represented on its website that excursions are planned by ‘partners’; maintained a ‘shore excursion desk’ aboard the vessel; never identified WRAVE as the owner and operator of the excursion; offered the excursions through passengers’ accounts with the cruise line; arranged for transportation to the excursion; and integrated excursions into the cruise vacation experience. Several other courts of this district have found similar factual allegations sufficient to support a negligence claim under an apparent agency theory of liability (citing Gayou, supra).
“(The Plaintiff) claims that WRAVE was Celebrity’s actual agent, rendering (Celebrity) vicariously liable for WRAVE’s negligence. However, Ceithami has alleged no facts that support an agency relationship and Celebrity’s Tour Operator Agreement with WRAVE contradicts Ceithami’s conclusory statements to that effect”…However, given Ceithami’s allegations of unspecified ‘oral agreements’ regarding an agency relationship…Ceithami may plead additional details about these agreements”.
Complaint dismissed without prejudice and plaintiff “shall file any amended complaint by October 4, 2016″.
The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 41 years including his annually updated law books, Travel Law, Law Journal Press (2016), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), Class Actions: The Law of 50 States, Law Journal Press (2016) and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org
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