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Death on the “Carnival Dream” cruise ship: Is the cruise line liable?

Death on the “Carnival Dream” cruise ship: Is the cruise line liable?

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In this week’s travel law article, we examine the case of Printiss-Davis v. Carnival Corporation, Civil Action No. 17-24089-Civ-Scola (S.D. Fla. March 23, 2018) wherein the “case arises as a result of the death of Brenda Jackson…on the last day of a roundtrip cruise from New Orleans to the Caribbean on the ‘Carnival Dream’ ship. Ms. Jackson was sixty-eight years old and suffered from a mild form of chronic obstructive pulmonary disease (CPOD). In the early morning hours…Ms. Jackson went to the ship’s medical facility to see a doctor (because of) heavy and shallow breathing (who) directed an assisting nurse to increase oxygen level flow…despite the nurse’s warning against it due to Ms. Jackson’s COPD…Ms. Jackson began to feel lightheaded and requested to remove the oxygen, which request the doctor advised against…Moments later, Ms. Jackson made…an ‘agonized screeching noise’ and she went into cardiac arrest…(and) suffered another heart attack shortly after. The ship doctor determined that Ms. Jackson should be evacuated by helicopter, but allegedly did not in fact call for an evacuation…(Following a third heart attack) the doctor…told (Ms. Jackson’s daughter (the Plaintiff)) that the Coast Guard had been called and was on the way. Ms. Jackson…died approximately three hours after first going to the ship’s medical facility. The Plaintiff alleges that the Coast Guard was not in fact called until almost twelve hours after Ms. Jackson’s death, despite the medical staff’s representations”. Motion to dismiss granted in part and plaintiff may asset a claim for punitive damages.

Terror Targets Update

London, England

In Spate of ‘machine gun’ and stabbing attacks leave 4 injured in London night of terror, travelwirenews (6/1/2018) it was noted that “A spate of violent attacks across the city in only a few hours has left four people seriously injured. There people were found with knife wounds and, according to eyewitnesses, a machine gun was used in the fourth attack… Met Police have now launched at least 60 murder investigations this year, including the fatal stabbing of a man in London’s second wealthiest borough, Kensington and Chelsea, on Wednesday”.

Kuala Lumpur, Malaysia

In Malaysia detains 15 suspected militants, travelwirenews (6/1/2018) it was noted that “Kuala Lumpur, Malaysian Police said on Friday they have detained another 15 suspected militants, including several foreigners, for smuggling firearms and plotting attacks on places of worship (including) six Malaysians, six Filipinos, a Bangladeshi restaurant owner ad a couple from a north African country were detained between March and May”.

Las Vegas, Nevada

In Double murder at the Circus Circus Hotel in Las Vegas, travelwirenews (6/3/2018) it was noted that “The legendary Circus Circus hotel on the famous Las Vegas strip was the scene of a double murder on Friday. Two Vietnamese tourists traveling with a tour group to Sin City were found dead and stabbed at the Circus Circus guest room…both victims were stabbed multiple times”.

Phoenix, Arizona

In Stevens & Haag, Arizona Man Left a Trail of 6 Bodies, Police Believe, Then Added His Own, nytimes (6/4/2018) it was noted that “The killings in Arizona began Thursday afternoon, and they continued with alarming frequency…By Monday morning they felt that had a solid case against Mr. Jones, 56, and they knew where he was…he was discovered dead of a self-inflicted gunshot wound in his room”

Guatemala Volcano Erupts

In Ives, Fuego Volcano Erupts in Guatemala, Killing 25 and Injuring Hundreds, nytimes (6/4/2018) it was noted that “A volcano erupted near Guatemala’s capital on Sunday, killing at least 25 people and leaving many more missing, officials and the local news media reported. Volcan de Fuego exploded on Sunday morning, and volcanic ash was later seen billowing in the area…Reuters quoted officials saying on Sunday that 3,100 people had been evacuated and nearly 300 injured. The capital’s airport was also closed because of the danger that ash posed to aircraft”.

It’s Raining Volcanic Glass In Hawaii

In Fine, volcanic glass called ‘Pele’s hair’ has been raining on Hawaii, travelwirenews (6/1/2018) it was noted that “It’s called Pele’s hair, and they’re light strands of volcanic glass that has been falling downwind from the fissure…Residents have been ‘urged to minimize exposure to these volcanic particles, which can cause skin and eye irritation similar to volcanic ash’. Drivers are also warned to not use their wipers if it falls on their windscreen, as the glass is abrasive”.

India’s Nipah Virus Spreading: No Vaccine, No Cure

In Baumgaertner, Nipah Virus, Dangerous and Little Known, Spreads in India, nytimes (6/4/2018) it was noted that “A rare, brain-damaging virus that experts consider a possible epidemic threat has broken out in the state of Kerala, India, for the first time, infecting at least 18 people and killing 17 of them, according to the World Health Organization. The Nipah virus naturally resides in fruit bats across South and Southeast Asia and can spread to humans through contact with the animal’s bodily fluids. There is no vaccine and no cure. The virus is listed by the W.H.O. as a high priority for research”.

Stay Away From Shillong, India, Please

In Not clear how many tourists are stranded in India due to violence, travelwirenews (6/3/2018) it was noted that “‘We do not know how many tourists are stranded in Shillong…’ The army was asked to be on standby and curfew continued in parts of Meghalaya’s capital Shillong for the third day on Saturday after night-long violence during which a mob burnt a shop, a house and damaged at least five vehicles…At least 500 people have been given shelter in an army cantonment”.

Stay Away From Manali, India, Please

In Japanese Tourist threatened with gang rape in India, travelwirenews (6/3/2018) it was noted that “For a Japanese woman, Kullu Valley in India is horrible and dangerous place to visit. The 30-year-old Japanese visitor to India had flagged down taxi cab in Manali, a resort town in the Himalayan foothills…She was taken instead to an isolated area in a nearby forest. The accused taxi driver…tried to force himself on her inside the cab. The victim told cops that she gave in after his chilling threat as she did not want to suffer the fate of Mirbhaya, the 23-years woman who died 12 days after being gang-raped by six men inside a bus in Delhi on December 16, 2012″.

Stay Away From Shimia, India, Please

In India tourists turned away from hotels, travelwirenews 5/31/2018) it was noted “Hotels that normally accommodate thousands of India tourists and are a key source of income, have had to turn away guests and refund bookings. The Himalayan city of Shimia has been suffering from a severe water shortage for over a week causing some hotels to shut down completely for the time being. Hotels and locals are pleading for tourists to stay away…so ‘the place can breathe for a while’”.

Stay Away From Maya Bay, Thailand, Please

In Thai beach made famous by Hollywood closes to tourism, travelwirenews (5/31/2018) it was noted that “Once a pristine Thai paradise, the secluded bay made famous by the Leonardo DiCaprio movie ‘The Beach’ has been exhausted by mass tourism. Now it’s getting a break. After Friday, the daily influx of boats and thousands of visitors unsuccessfully scrambling for an unspoiled view of Maya Bay’s emerald waters and glistening white sand will end. The attraction is being closed for four months to give its coral reefs and sea life a chance to recover”.

London’s Top-Rated Restaurant

In Trip Advisor number one rated restaurant in London is only a website, travelwirenews (6/1/2018) it was noted that “The only problem was that the restaurant didn’t exist. It’s only a website made up by a blogger. When planning a trip, most people rely on travel review websites such as Trip Advisor to see how tour companies, hotels and restaurants stack up…Trip Advisor even indicates on its site that it does not fact-check reviews, authenticate a reviewer’s name, or verify that a reviewer stayed at the hotel”. See also Rosenberg, ‘The Shed at Dulwich’ was London’s top-rated restaurant. Just one problem: It didn’t exist, washingtonpost (12/8/2018).

Grande Dame Restaurateur Of New Orleans

In Sandomir, Ella Brennan, Grande Dame Restauranteur of New Orleans, Dies at 92, nytimes (6/1/2018) it was noted that “Ella Brennan, the exacting matriarch of a New Orleans restaurant family whose flagship, Commandeer’s Palace, is renowned for serving a blend of Louisiana and nouvelle cuisines with generous, dramatic flair, died on Thursday in New Orleans. She was 92…Miss Brennan helped propel the careers of renowned chefs like Paul Prudhomme, Emeril Lagasse and Jamie Shannon”.

Table For Two At Odette, Please

In Odette is Restaurant Of The Year, travelwirenews (6/4/2018) it was noted that the “French fine-dining restaurant Odette at the National Gallery Singapore received the highest honor of Restaurant Of The Year at the annual G Restaurant Awards. The two-Michelin-starred establishment…is helmed by French chef Julien Royer”. Bravo.

Miami Cracking Down On Airbnb

In Zamost, Miami Beach proposed major crackdown on short-term rental platforms, msn (6/5/2018) it was noted that “Miami Beach, Florida, one of the most popular resort cities for short-term rentals, is cracking down on illegal listings by proposing strict requirements on how properties are advertised…Miami Beach prohibits rentals for less than six months and one day unless the property is in a legally permissible zone, such as most of tourist dense South Beach. Short term rentals are largely illegal in the residential areas of the city. The city already imposes stiff fines for illegal short-term rentals that start at $20,000 for the first violation…The proposed amendment would require each property owner engaging in short-term rentals to ‘conspicuously display the city-issued business tax receipt in every advertisement or listing of any type in connection with the rental of the residential property”.

N.F.L.’s “Non-Cheering” Cheerleaders

In Macur, N.F.L.’s Alternate ‘Cheerleaders’ Don’t Cheer or Dance, nytimes (5/31/2018) it was noted that “Several N.F.L. teams determined cheerleading programs had a scarcity problem on game day. If cheerleaders were on the sideline dancing, none were available to serve as scantily clad hostesses who could mingle with fans high up in the cheap seats or in the luxury suites, where teams catered to big-money customers. To address that shortcoming, some teams created a different kind of cheerleading team-one whose members did not do any cheering or require any dance training. They were hired mainly for their appearance. Their visits with male fans, the teams believed, produced a better game-day experience, akin to the approach of the Hooters restaurant chain. In interviews with a dozen women who have worked for N.F.L. teams as non-cheering cheerleaders… they described minimum-wage jobs in which harassment and groping were common, particularly because the women were required to be on the front lines of partying fans…the women often dressed exactly like the cheerleaders dancing on the field or nearly the same”.

GM Settles Self-Driving Suit

In Shepardson, GM settles lawsuit with motorcyclist hit by self-driving car, reuters (6/1/2018) it was noted that “General Motors Co agreed to settle a lawsuit filed by a motorcyclist involved in a minor crash with one of its self-driving cars in San Francisco late last year…Nilsson’s suit claimed the self-driving GM Cruise ‘suddenly veered back’ into Nilsson’s lane, striking him, and knocking him to the ground”.

Cheaper To Uber Than Own Car

In Price, It’s cheaper to use Uber than to own a car in these cities, msn (6/4/2018) it was noted that “According to Meeker’s report, it’s cheaper to take Uber than to own a car in four out of five largest cities in the United States…it’s cheaper to uber in Chicago, Washington, D.C., New York, and Los Angeles. Dallas, the final city in the nation’s top five, it’s cheaper to own a car…I’d venture to say for most large cities, ride-sharing probably makes more sense than car ownership. When you move somewhere where everyone has their own driveway and parking is easier to find, the reverse is more likely to be true”.

Crushed By Big Rock In A.D. 79

In Joseph, He Fled the Ash That Buried Pompeii, Only to Be Crushed by a Rock, nytimes (5/30/2018) it was noted that “The man, believed to be in his 30’s, was fleeing the spectacular explosion of Mount Vesuvius that buried the Italian city of Pompeii in A.D. 79. He had an infection of the tibia that may have made walking difficult, archeologists say. So, while he fled the first furious explosion, the volcano fully rumbled to life after being dormant for more than 1,500 years, he did not get very far. The man died not in contorted agony, buried in pumice and ash, but by decapitation from a large block of stone that had most likely been propelled through the air by volcanic gases, crushing his thorax and his head”.

Falling Off A Big Rock In Yosemite

In Caron, Two Elite Climbers Fall to Their Deaths Scaling El Capitan in Yosemite, nytimes (6/3/2018) it was noted that “The climbers, Jason Wells, 46, of Boulder, Colorado, and Tim Klein, 42, of Palmdale, Calif., were scaling the Free Blast route on the granite monolith El Capitan when they feel around 8:15 a.m….The climbers were tethered together…El Capitan, a flat-topped cliff that looms more than 3,000 feet above the Yosemite Valley, is a favorite of rock climbers”.

Plastics For Breakfast, Anyone?

In Ives, Whale’s Death in Thailand Points to Global Scourge in Oceans, nytimes (6/4/2018) it was noted that “Hundreds of turtles, dolphins and whales become stranded every year on Thailand’s beaches after plastics impedes their mobility or clogs their insides. Some are lifeless on arrival…But the arrival of a pilot whale that washed ashore in southern Thailand last week, in critical condition and with a belly full of black plastic bags, became a cause celebre for ordinary people. And its death a few days later was a vivid reminder of a staggering global problem: plastics in the oceans and seas”.

Wellness Travel

In Glusac, Your Next Trip Might Change Your Life, nytimes (6/1/2018) it was noted that “The spa has left the building. Industry growth indicates those places that once dispensed pampering are now expanding their reach into adventure trips, hotel design and even cultural programming under the banner of wellness travel…Once confined to the spa silo, wellness has seeped into other areas. The Peninsula Hot Springs near Melbourne, Australia, is adding seven new pools that face an amphitheater, allowing patrons to soak while taking in a concert. Spa directors work with the room divisions of Mandarin Oriental hotels to consult on ways to encourage sleep. It’s even behind the scenes: The spa staff at the Barcelo Gran Faro Los Cabos must attend morning yoga. Creative and cultural programming are joining the wellness fold, too. At the new Amanyangyun near Shanghai, guests learn the meditative crafts of calligraphy and painting. In fall, the spa brand Six Senses will open five small lodges in Bhutan that guests can hike between, exposing them to different aspects of the culture”.

In-Flight Story Writing

In Krueger, You Have Airport Stories. Now, an Airport Will Write a Story for You, nytimes (5/21/2018) it was noted that “Terminal A in New York City’s La Guardia Airport…has its share of surprises. And now, passengers arriving or departing there are greeted with one more: a piece of live, performance art. In a space outside security that used to be a Hudson News kiosk, the writers…Gideon Jacobs and Lexis Smith…have set up a writing nook (where) they are, writing unique, fictional stories for fliers…Those who choose to participate provide their flight number and contact details. The writers than draft a story for them while their flights are in the air, and text it to them before they touch down”.

Want To Own A Castle?

In The Awe Of Castle Living, paidpost.nytimes (6/4/2018) it was noted that “As the saying goes, your castle is your home, but for those who endeavor to own these properties, your castle is, well, your castle. In early centuries, castles were built as fortified residences, providing protection and surveillance”. One of the castles for sale is Knockdrin Castle in Mullingar, County Westmeath, Ireland with a price of $16,703,786, Beds: 12, Baths: 5, Partial Baths: 2, Square Feet 19,375, Acres 1,140. Enjoy.

Travel Law Case Of The Week

In the Jackson-David case, the Court noted that the Complaint “asserts claims of negligence against Carnival as follows: direct negligence (Count 1), negligence for the acts of non-medical personnel based on vicarious liability through actual agency (Count 2), negligence for the acts of medical personnel based on vicarious liability through actual and apparent agency (Counts 3 and 4) and negligent hiring and retention (Count 5)”.

Direct Negligence Against Carnival

“[T]his action is governed by general maritime law (where under) a ship owner ‘owes to all who are on board …the duty of exercising reasonable case under the circumstances”…’[A] shipowner is only liable to its passengers for medical negligence if its conduct beaches the carrier’s more general duty to exercise ‘reasonable case under the circumstances’…In Count, the Plaintiff asserts a direct negligence claim…(1) failure to timely divert the ship or evacuate Ms. Jackson; (2) relying on medical opinions and/or advice of ship doctors and nurses not properly qualified or licensed in the jurisdiction of the flag of the ship; (3) failing to properly consult qualified shore-based personnel to make safe decisions about the treatment and evacuation; (d) failing to adequately train, supervise and instruct crew members to properly respond to medical emergencies and take steps to promptly evacuate a passenger who they were clearly unprepared and unqualified to treat; (e) failing to develop and institute adequate procedures and policies to address (the) medical situation; (f) failing to employ the proper type of doctors and nurses and (g) failing to have or utilize ‘Face to Face Telemedicine”.

Carnival Claims No Such Duties

“Carnival argues that maritime law imposes none of these duties upon it. However, when viewed through the proper lens, these allegations amount to violations of Carnival’s overarching duty to exercise reasonable care…(Franza v. Royal Caribbean Cruises, Ltd., 772 F. 3d 1225, 1233 (11th Cir. 2014)) like the Plaintiff here, alleged a number of violations, including the failure to timely diagnose, the failure to order diagnostic scans and the failure to evacuate…Here, here, as in Franza, the Plaintiff alleges specific enumerated violations of Carnival’s duty to exercise reasonable care under the circumstances, which resulted in her mother’s death…the Plaintiff contends that had her mother received the appropriate care and treatment, or been timely evacuate, she would not have suffered injuries resulting in death”.

Actual & Apparent Agency

“‘The elements of an actual agency relationship are (1) acknowledgment by the principal that the agent will act for him, (2) the agent’s acceptance of the undertaking, and (3) control by the principal over the actions of the agent’…Upon review of the allegations in the Complaint…they are sufficient to state a claim based upon actual agency…The Plaintiff alleges that Carnival non-medical officials and employees had the ability to monitor and participate in potential medical emergencies by communicating with the ship’s crew, and they, in conjunction with the medical personnel, failed to properly care for Ms. Jackson”.

Punitive Damages Allegations

“Carnival also seeks to strike the Plaintiff’s request for punitive damages…First, ‘a plaintiff may recover punitive damages under general maritime aw, consistent with the common-law rule, where the plaintiff’s injury was due to the defendant’s wanton, willful or outrageous conduct’…Second, the Court finds that the alleged facts are sufficient at this stage t plausibly lead to entitlement for punitive damages, notwithstanding that the Plaintiff did not use the terms ‘willful’, ‘wanton’ or ‘outrageous’…For example, the Plaintiff alleges that the doctor ignored the nurse’s warning regarding increased oxygen level for someone with COPD, the doctor stated to the Plaintiff that a helicopter was on the way when none had been called, and the doctor and medical staff told the Plaintiff the Coast Guard had been called, when the Coast Guard was not called until almost twelve hours after Ms. Jackson’s death. As such, the Court denied Carnival’s motion to strike (claims for punitive damages)”.

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 42 years including his annually updated law books, Travel Law, Law Journal Press (2018), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2018), Class Actions: The Law of 50 States, Law Journal Press (2018) and over 500 legal articles. 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.

Read many of Justice Dickerson’s articles here.

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