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Sexual assault during Semester at Sea Spring 2013 Voyage

Sexual assault during Semester at Sea Spring 2013 Voyage

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In this week’s article, we examine the case of Sobel v. Institute For Shipboard Education, 2017 U.S. Dist. LEXIS 10621 (W.D. Va. 2017) wherein the Court noted that “This personal injury action arises from a sexual assault that occurred while the plaintiff, Molly Sobel, was studying abroad through a program offered by the Institute for Shipboard Education (ISE). The case is presently before the court on ISE’s renewed motion for summary judgment and Sobel’s motion for leave to file an amended complaint. For the reasons that follow, ISE’s motion will be granted, and Sobel’s motion will be denied. Additionally, Sobel’s claims against Shailesh Tripathu, the alleged perpetrator of the sexual assault, will be dismissed without prejudice”.

Terror Targets Update

Germany

In Prosecution of terrorism cases in Germany jumped fourfold this year-report, travelwirenews (10/22/2017) it was noted “So far this year, prosecutors have had to deal with over 900 terrorism-related case, around 800 of which involve radical Islamists, the federal prosecutor’s office told Welt am Sonntag newspaper. These cover not only plots to attack Germany but also cases of jihadists leaving the country to fight in Iraq and Syria. According to German intelligence agency BfV, some 950 people have left Germany for war zones in the Middle East. Women and children, including those taken by their families, make up around a quarter of this group, while 150 of those who traveled there have died”.

In Munich police: Several wounded in stabbing spree, travelwirenews (10/21/2017) it was noted that “Several people have been wounded in Munich after an unidentified assailant went on a stabbing spree (injuring) at least four people”.

Maiduguri, Nigeria

In Suicide bomber kills 13 people in northeast Nigerian city-police official, travelwirenews (10/22/2017) it was noted that “A suicide bomber killed 13 people in the northeastern city of Maiduguri on Sunday…The evening attack, which also injured five people, struck the city’s Muna Garage area…The area is home to a camp for those who have fled the conflict with the Boko Haram Islamist insurgency”.

Philippines

In Villamor, ISIS Threat in Philippines Spreads in Remote Battles, nytimes (10/24/2017) it was noted that “The leader of the Islamic State in the Philippines…is dead…But the Islamic State’s influence in the Philippines is far from over and communities on Mindanao are bracing for the next battles…That separatist movement and the sectarian and political resentment that drove it, never went away. It evolved into Muslim militant groups that fought the government for decades and in recent years proved to be fertile ground for the Islamic State ideology…the old and resilient militant cells here are now being strengthened by the brand and resources of the Islamic State’s international network…”

Somalia Attacks 2017 Timeline

In Attacks in Somalia-a 2017 Timeline, travelwirenews (10/21/2017) it was noted that:” Jan 2 Suicide bomb 3 killed, Jan 7 Explosion 3 killed, Jan 28 Car bomb 28 killed, Feb 19 Suicide bomb 39 killed, Mar 13 Car bomb 5 killed, Apr 4 Car bomb 3 killed, Apr 9 Car bomb 15 killed, Apr 7 Mortar attack 3 killed, May 8 Suicide bomb 8 killed, May 25 Bombing 8 killed, June 15 Car bomb 9 killed, June 20 Suicide bomb 15 killed, Jun 22 Car bomb 7 killed, Jul 2 Roadside bomb 2 killed, Jul 30 Car bomb 6 killed, Aug 4 Car bomb 1 killed, Aug 11 Suicide bomb 1 killed, Sep 10 Suicide bomb 6 killed, Sep 28 Car bomb 7 killed, Oct 14 Explosion 358 killed”. And October 22, 2017 a Roadside bomb kills 7 outside Somali capital of Mogadishu, travelwirenews (10/22/2017).

Lights Out In Puerto Rico

In Acosta & Robles, Puerto Ricans Ask: When Will the Lights Come Back On?, nytimes (10/20/2017) it was noted that “Four weeks after Hurricane Maria, packing winds of up to 155 miles an hour, knocked out power to the entire island, 8 percent of Puerto Rico still does not have electricity. Some residents have not had power for 45 days-since Hurricane Irma brushed by after Labor Day. For Mr. Rodriquez, that means using candles for lighting and a gas stove for cooking. He buys ham and cheese sandwiches and coffee for breakfast”. nytimes

New Airline Security Rules

In Shepardson & Freed, Airlines get ready for new U.S. security rules from Thursday, Reuters (10/26/2017) it was noted that “New security measures including stricter passenger screening take effect on Thursday on all U.S.-bound flights…Airlines contacted by Reuters said the new measures could include short security interviews with passengers at check-in or the boarding gate, speaking concerns over flight delays and extended processing time. They will affect 325,000 airline passengers on about 2,100 commercial flights arriving daily in the United States, on 180 airlines from 280 airports”.

Catalonia, You’re Fired!

In Minder & Kingsley, Spain Dismisses Catalonia Government After Region Declares Independence, nytimes (10/27/2017) it was noted that “Spain’s leader fired the government of the rebellious Catalonia region Friday, dissolved the regional parliament and ordered new elections after Catalan lawmakers illegally declared an independent nation. The showdown escalated the biggest political crisis in decades to hit Spain, which is just emerging from a prolonged economic malaise. Catalonia is a critical part of the economy in Spain, the fifth largest in Europe”.

More Flesh-Eating Bacteria

In Hauser, ‘Flesh-Eating Bacteria’ Causes 2nd Death in Texas Since Hurricane Harvey, nytimes (10/26/2017) it was noted that “A 31-year-old man who helped repair houses in Galveston, Tex., after Hurricane Harvey, has died of a rare infection caused by what is commonly known as flesh-eating bacteria…It was the second reported death of a person from the infection since Hurricane Harvey swept through parts of Texas in August”.

Goodbye Puppy Mills & Kitten Factories

In Fortin, California Tells Pet Stores Their Dogs and Cat Must Be Rescues, nytimes (10/17/2017) it was noted that “In a blow to commercial animal breeders and brokers, California pet stores will soon have to get their puppies, kittens and rabbits from shelters and rescue centers only. Individuals can still buy from private breeders. But beginning in January 2019, it will be illegal for stores to do so. Violators will face a fine of $500. The bill…had strong support from several animal welfare organizations, which cheered it as a blow to ‘puppy mills’ and ‘kitten factories’ that mass produce animals for sale, often in inhumane conditions”.

Mountaineers Die In Mongolia

In 10 mountaineers killed, 7 missing in Mongolia’s highest peak avalanche, travelwirenews (10/23/2017) it was noted that “The bodies of 10 people who were caught in an avalanche on Mongolia’s highest peak, Otgontenger, were recovered by rescuers…Seven of the mountaineers remain missing. A group of 30 climbers, aged between 30 and 50, was hit by an avalanche as it was descending from the 4,021-meter peak”.

Hikers Embrace In Death

Caron, Missing Hikers Found Dead of Gunshot Wounds, and Locked in an Embrace, nytimes (10/23/2017) it was noted that “Two hikers whose bodies were discovered last week in a steep canyon in a national park in Southern California died of gunshot wounds…in what appeared to be a murder-suicide. The bodies of the hikers…were found embracing each other under a tree in Joshua Tree National Park. Their lower extremities were covered by clothing. They had no water and seemed to have been rationing their food”.

Baggage Fee Elicits Bomb Threat

In The Latest: Arrest at LaGuardia Airport disrupts travel, travelwirenews (10/15/2017) it was noted that “A 70-year old passenger who was arrested at New York’s LaGuardia Airport after authorities say he threatened a ticket agent pleaded not guilty to making a terrorist threat…Authorities say (Mr. X) became irate when he was told there was a $50 fee to check his bag…Prosecutors say (Mr. X) told the ticket agent at Spirit Airlines there was a bomb in the bag and tried to leave”.

Snake Charmers Needed

In University hires snake charmers following student’s death, travelwirenews (10/23/2017) it was noted that “A Nigerian University has taken the drastic of hiring snake charmers to help rid its campus of a reptile problem following the death of a student who was bitten by a snake earlier this month”.

Kuwait Gets Tough On Traffic Violations

In Kuwait toughens penalties for traffic violations, travelwirenews (10/24/2017) it was noted that Kuwaiti authorities are to toughen penalties against road violations in their latest move to impose a safer driving culture in the country. Drivers caught using mobile (phones) or not wearing seat belts will have their cars impounded for two months”.

Riding The Dunes

In Schwartz, Do the Dunes: Where You Can Ride The Sand, nytimes (10/25/2017) it was noted that “There were only two sand sleds left in the rental rack when I arrived one June morning at the Oasis store near Great Sand Dunes National Park and Preserve in southern Colorado. And then there were none…There were no lift tickets, no lines, no trails and no trees to avoid. There was spectacular scenery and the contented feeling of ruling the sandbox. Sandboard Magazine lists places to ride on the sand in 44 countries on its website, including nearly 90 locations in 25 states”.

Doping Iditarod Dogs

In Branch, Iditarod Doping Mystery: Who Slipped Tramadol to the dogs?, nytimes (10/24/2017) it was noted that “Just when the sports world thought it had heard it all in doping-along comes the Iditarod. A doping scandal has hit the world’s most famous dog-sled race, the 1,000 miles trek through Alaska that ends in Nome each March. Four dogs on a team run by Dallas Seavey, a four-time champion and the most dominant musher in the sport, tested positive last spring for high levels of Tramadol, an opioid pain reliever…There is no proof that Seavey was the one who gave his dogs the drug, and he sternly claimed his innocence…He suggested a likely, if familiar, explanation: sabotage”.

Evacuation Insurance May Be Worth It

In Woman’s freak fall led to 8-day hospital stay in Japan, ‘lessons learned’ about travel insurance, travelwirenews (10/14/2017) it was noted that “It was an expensive trip in more ways than one for (Mrs. X). Just one simple move to the left-a sidestep from a carpeted to polished floor made while taking a picture for a couple on a cruise-landed the 74-year-old…woman in a Japanese hospital for eight days and a costly medical flight home….what made the experience all the more painful, she said, was the fact that had she purchased an additional $99 in travel insurance, she and her husband would not have had to pay ‘out the nose’ to get her back home, where she underwent surgery to repair her damaged leg”.

Move Inland, Please

In Patel, In Antarctica, Two Crucial Glaciers Accelerate Toward the Sea, nytimes (10/26/2017) it was noted “Two of the frozen continent’s fastest moving glaciers are shedding an increasing amount of ice into the Amundsen Sea each year. The Pine Island and Thwaites glaciers are among the most critical in the world. They are currently holding back ice that, if melted, would raise the world’s oceans by nearly four feet over centuries, an amount that would put many coastal cities underwater”.

Uber Appeals In London

In Uber appeals loss of license in London, travelwirenews (10/13/2017) it was noted that “Ride-hailing firm Uber has filed an appeal against the London transport regulator after losing its license to operate in the city. The papers were submitted to Westminster Magistrates’ Court and the appeal should take place in December…’While we have today filed our appeal so that Londoners can continue using our app, we hope to continue having constructive discussions with Transport For London (TFL). As our new CEO has said, we are determined to make things right’, the company’s spokesman said”.

Uber’s Paris Travel Data

In Uber opens up Paris travel data to the public, travelwirenews (10/20/2017) it was noted that “Uber said on Friday it would open up its trove of travel data in Paris to the public to help city officials and urban planners better understand transportation needs, as the company seeks to woo national authorities. The US ride-hailing app collects huge amounts of data from the billions of trips taken by customers which it uses to improve its services and has recently started to make it available for a number of cities including Washington DC, Sydney and Boston”.

New York City’s MetroCard Begone

In Barron, New York to Replace MetroCard With Modern Way to Pay Transit Fares, nytimes (10/24/2017) it was noted that “First there were little paper tickets that cost a nickel. Then there was the nickel itself, because until just after World War II, a nickel was the only thing that made subway turnstiles go around. Then came the dime, followed by the token-the singular currency of New York City. And since the 1990s there had been the Metrocard, recognizable, bendable, losable and not always reliable. Now (the MetroCard) is on the way out…Starting late next year, they can do it the way Londoners already do, by waving cellphones or certain kinds of credit or debit cards at the turnstiles in the subway or the fareboxes on buses”.

Travel Law Case Of The Week

In the Sobel case the Court noted that “ISE is a nonprofit corporation based in Delaware, which has its principal place of business in Charlottesville, Virginia. ISE administers the Semester at Sea study abroad program, which offers students the opportunity to take college courses aboard a passenger cruise ship that travels internationally”.

Applying To Participate

“Sobel, a California resident, participated in the Semester at Sea Spring 2013 Voyage. In order to gain admission to the program, Sobel completed an online application in which she agreed to ‘accept as binding any and all conditions that normally apply to undergraduate admission to Semester at Sea, including those set forth in the Voyager’s Handbook and the ticket contract”.

Notice And Access To Terms

“The referenced ticket contract…and the Voyager’s Handbook were available for review on ISE’s website through Sobel’s MyVoyage page. Upon applying to attend the program, Sobel was given a password that allowed her to access those documents and other program materials. Every time that she logged in to her MyVoyage page, Sobel checked a box stating that she agreed to take electronic delivery of the Voyager’s Handbook, the Ticket Contract and other documentation contained therein. Sobel logged in to the website more than 100 times and had access to the Ticket Contract through the website for more than one year. Before Sobel’s Semester at Sea program began, she was provided a ‘Voyage Preparations’ package and ‘Embarkation Information’. The first page of both documents indicates that the ‘most important thing’ that a student can do to prepare for her voyage is to read the Voyager’s Handbook and the Ticket Contract, which ‘contain extremely important information’”.

Health And Safety Of Students

“”[T]he Voyager’s Handbook emphasizes that ISE is committed to the ‘health and safety’ of its students…In a section pertaining to ‘field trips’, the Voyager’s Handbook states that ‘ISE-sponsored field trips are provided by reliable operators who meet selection criteria, participate in performance evaluations and have long-standing professional ties to the institute’ and that ‘[t]hese tour operators arrange for safe and reliable transportation, select hotels that provide a secure environment[,] and provide knowledgeable guides…’ The Voyager’s Handbook strongly discourages students from participating in field trips that are not sponsored by ISA, since they may not adhere to ISE’s ‘stringent safety standards’”.

Time Limitations To Sue

“The Ticket Contract includes a number of provisions that affect the plaintiff’s legal rights, including a limitation provision applicable to lawsuits for bodily injury or death. The first line of the Ticket Contract emphasizes (inter alia that there are) ‘time limitations to give notice of claims, file and serve suit (Section 15) (which) contains two limitation provisions, one applicable to claims for ‘bodily injury or death’ and another applicable to ‘other claims’…Section 15(a) provides that actions resulting from bodily injury or death must be filed ‘within 1 year from the date of the bodily injury or death’. Section 15(b) states that lawsuits resulting from ‘any damage, delay or other loss of any nature or cause whatsoever other than for death or bodily injury’ must be ‘filed within 6 months from the date the voyage terminated’”.

The Sexual Assault

“Sobel and other students participating in the 2013 Spring Voyage departed on a passenger ship from San Diego, California on January 9, 2013. On March 6, 2013, the ship docked in Cochin, India. Prior to docking, Sobel purchased a ticket for an ISE-sponsored field trip to Agra and Varanasi, which was organized and provided by Abercrombie & Kent India. Shailesh Tripathi, an employee of Abercrombie & Kent, served as the tour guide for Sobel’s group. On the night of March 9, 2013, Sobel went to Tripathi’s hotel room for a palm reading. Tripathi subsequently grabbed Sobel’s genitals and forced her to perform a sexual act on him. He finally released Sobel from his hotel room around 1:00 a.m. on March 10, 2013″.

The Lawsuit

“Nearly two years later, on March 6, 2015, Sobel filed the instant action against ISE, Abercrombie & Kent LLC, Abercrombie & Kent Destination Management and Tripathi in the United States District Court for the Northern District of California (which was transferred without opposition to a federal district court in Virginia) based a forum selection clause in the Ticket Contract. ISE moved for summary judgment on the basis that the plaintiff’s claims are barred by the one-year limitation provision in the Ticket Contract”.

Claims Against Tripathi

“The record reveals that Sobel failed to properly effect service on this defendant…Here, almost two years have elapsed since Sobel filed her complaint and there is no indication that she has attempted to serve Tripathi in the manner required by Rule 4(f). Any perceived ‘difficulty in perfecting service on a foreign defendant is no excuse for plaintiff[‘s] failure to make a proper attempt to do so’”. Claims against Tripathi dismissed without prejudice.

ISE’s One Year Lawsuit Limitation Period

“A ticket contract for an ocean voyage is a maritime contract governed by federal maritime law…By statute, (maritime passenger) ticket contracts may contain a time imitation for filing suit for personal injury or death, provided that the limitation is not ‘less than one year after the date of the injury or death’. Under federal maritime law, a limitation provision is valid and enforceable as long as (1) the provision was reasonably communicated to the plaintiff and (2) it is fundamentally fair”.

Reasonable Communicativeness Test

“Having reviewed the Ticket Contract at issue, the court concludes that it sufficiently alerts passengers to the existence of important terms affecting their legal rights…With respect to Sobel’s ‘purchase and subsequent retention of the ticket/ contract’ the record reveals that Sobel…was given a password that allowed her to log in and access program materials in ISE’s website, including the Ticket Contract (which she accessed more than 100 times (and) [e]ach time she logged in Sobel was required to check a box stating that she agreed to accept electronic delivery of certain documents including the Ticket Contract…the court concludes that the limitation period in the Ticket Contract was reasonably communicated to Sobel”.

Fundamental Fairness

“In determining whether the one-year limitation provision is fundamentally fair, the court must also consider whether ISE obtained Sobel’s ‘accession to the…clause by fraud or overreaching’…In the absence of any evidence that the inclusion of the limitation provision in the Ticket Contract was the product of fraud and overreaching, the court concludes that the provision is fundamentally fair and enforceable”.

Conclusion

“Having concluded that the one-year limitation provision is valid and enforceable, the court must now determine whether the provision applies to the claims asserted…Based on the plain language of the Ticket Contract and consistent with existing case law, the court concludes that the one-year limitation provision applies to all of Sobel’s claims against ISE”.

Tom Dickerson

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

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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