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Travel law: The dangers of holding hands at Dunn’s River Falls in Jamaica

Travel law: The dangers of holding hands at Dunn’s River Falls in Jamaica

In this week’s article, we examine the case of Flaherty v. Royal Caribbean Cruises, Ltd., 2016 WL 1158289 (S.D. Fla. 2016) involving slip and fall injuries sustained by a cruise passenger who participated in shore excursion featuring a walk up Dunn’s River Falls in Jamaica while holding hands with another hiker. This case is instructive of the types of legal theories which may be asserted against the cruise line including (1) negligent failure to warn, (2) strict liability or misleading advertising, (3) negligent selection of a ground operator. (4) vicarious liability and (5) apparent authority. For more on dangerous cruise ship shore excursions see Travel Law at Section. 3.03 and Dickerson, The Cruise Passengers Rights & Remedies 2016 Online and scheduled for publication in Tulane Maritime Law Journal in 2017.

Terror Targets Update

Ohio State University

In Smith, Perez-Pena & Goldman, Suspect Is Killed in Attack at Ohio State University That Injured 11, nytimes.com (11/28/2016) it was noted that “A student at Ohio University intentionally rammed a car into pedestrians on a busy campus sidewalk on Monday morning and then began slashing passers-by with a butcher knife, the authorities said, injuring 11 students and faculty and staff members, and setting off panic at one of the nation’s largest public universities…Investigators were looking into whether the attack was an act of terrorism and were seeking information on the student Abdul Artan, a permanent United States resident from Somalia…The F.B.I. was investigating comments on Facebook indicating that he may have felt Muslims were being persecuted, an investigator said”.


Kosovo

Stanglin, Kosovo thwarts ‘synchronized’ Islamic terror attacks, usatoday.com (11/17/2016) it was noted that

“Police in Kosovo say they have arrested 19 people and thwarted simultaneous Islamic State attacks in Kosovo and neighboring Albania, including a planned assault on the Israeli national soccer team during a match. The suspects, who were planning ‘synchronized terror attacks’ were rounded up over the past 10 days in Albania, Kosova and Macedonia, police said…The suspects were receiving orders from Islamic State member Lavdrim Muhaxheri, the self-declared ‘commander’ of Albanians in Syria and Iran”.

Zika, Zika, Zika

In McNeil & Fernandez, Local Transmission of Zika Virus Is Reported in Texas, nytimes.com (11/28/2016) it was noted that “A probable case of local transmission of the Zika virus has been reported in Texas…making it the second state, after Florida, in which the infection is thought to have been carried from person to person by mosquitoes. The patient is a woman who is not pregnant and lives in Brownsville, on the Gulf Coast near the Mexican border…Medical investigators must now determine whether the infection is spreading and, if so, how many people may have become infected”.

Tourist Boiled To Death In Yellowstone

In Whitcomb, Man killed in boiling Yellowstone pool was looking for hot soak: report, reuters.com (11/17/2016) it was noted that “A 23-year-old man who was scaled to death after falling into a boiling Yellowstone National Park hot spring in June was trying to test the temperature of the bubbling pool for a soak when he slipped in, according to a report of the incident. Colin Nathaniel Scott was seen by his sister, Sable, plunging into the hot spring near Pork Chop Geyser on June 7. His body was never recovered and according to the U.S. Department of the Interior report, likely dissolved in the highly acidic, 212 degrees Fahrenheit water”.

Brazilian Soccer Team Parishes  

In Romero & Casey, Chapecoense Soccer Team’s Plane Crashes, Leaving Brazil Devastated, nytimes.com (11/29/2016) it was noted that “After climbing the ranks of Brazilian soccer, the team was on its way to face one of the biggest tests yet: a chance to win the final of the Copa Sudamericana, an international competition for South American soccer. But over the mountains near Medellin, Columbia, the plane carrying the members of Chapecoense, a soccer team from a scrappy industrial city in southern Brazil, made an emergency call on Monday night after experiencing an electrical failure…Moments later it crashed into the mountains with 77 aboard. Only six people survived the crash”.


$40 Million Penalty For Princess Cruise Lines

In United States Attorney’s Office, Southern District of Florida, Press Release, Princess Cruise Lines To Pay Largest-Ever Criminal Penalty For Deliberate Vessel Pollution (12/1/2016), it was noted that “Princess Cruise Lines Ltd. (Princess) has agreed to plead guilty to seven felony charges stemming from its deliberate pollution of the seas and intentional acts to cover it up. Princess will pay a $40 million penalty-the largest-ever criminal penalty involving deliberate vessel pollution-and plead guilty to charges related to illegal dumping of oil contaminated waste from the Caribbean Princess cruise ship…The U.S. investigation was initiated after information was provided to the U.S. Coast Guard…indicating that a newly hired engineer on the Caribbean Princess reported that a so-called ‘magic pipe’ had been used on Aug. 23, 2013, to illegally discharge oily waste off the coast of England…The chief engineer and senior first engineer ordered a cover-up, including removal of the magic pipe and directing subordinates to lie”.

Tour Guides For Exotic Americans

In Weed, How Tour Guides Abroad Learn to Cater to Exotic Americans, nytimes.com (11/28/2016) it was noted that “Don’t compliment an American’s girth. Answer their children’s questions. Fill your museum tour with fun facts. These are the tips that tour guides in countries as different as Uganda, Russia, Guyana and Italy receive as they train to play host to people from the United States. If you’re an American traveler fascinated by the foreign and exotic, understand this: Your tour guide probably finds you equally strange and otherworldly. Just ask the people who train guides. Because American tourists tend to want a personal connection to the guide, and expect the tour to be interactive and entertaining, guides need special training
(Mr. X), a travel consultant in Seattle who has trained guides in South America and Africa among other places”.

Airbnb Tours And Travel Experiences

In Benner, Airbnb Broadens Its Business With Tours and Travel Experiences, nytimes.com (11/17/2016) it was noted that “Airbnb used to let you just book room rentals. Now you can also use Airbnb to reserve dance parties in Havana, historical tours in Cape Town and stargazing outings in Los Angeles. Airbnb said Thursday that it is expanding beyond its core short-term rental business, which faces pushback from local governments around the world, to become a fuller service travel agency. In a step toward that, the company launched a service called Trips, which will provide tours, tailored activities and other experiences. Trips is starting with 500 experiences that can last a few hour or span days. They are created and provided by locals in the 12 cities where the service is initially being offered”.

Airbnb And European Regulations

In Interian, Up In The Air: Harmonizing The Sharing Economy Through Airbnb Regulations, 39 Boston College International & Comparative Law Review 129 (2016) it was noted in an Abstract.

“Despite marketing itself as a tool to connect people across the world, Airbnb has distanced itself from responsibility to its users and the communities in which it operates. As a leader in the sharing economy, Airbnb should be liable for limited actions of hosts consistent with the externalities generated by transient home sharing. A number of European cities serve as a model for how U.S. jurisdictions can respond effectively to the growing demand for short-term housing through Airbnb while also taking into account the externalities that the platform imposes on the permanent housing market. Moreover, the pervasiveness of Airbnb, and the sharing economy as a whole, exposes deficiencies in the federal laws that govern online behavior, revealing the necessity for such laws to be revisited”.

Drones At Airports

In Armstrong, Drone was just meters from hitting passenger plane over central London in a ‘very near miss, msn.com (11/16/2016) it was noted that “A major air catastrophe over central London was averted ‘by pure luck’ after a drone almost hit a passenger plane. The Airbus A320, with up to 165 passengers aboard, was making a final approach to Heathrow over the famous Shard building when the ‘near-miss’ occurred. The aircraft was just 200m (650ft) east of the 310m (1,016ft) high skyscraper, which is the tallest building in western Europe. The pilot spotted the black drone through the cockpit window. The crew watched as the object, about 50cm (20in) hovered over the right wing and the over the right horizontal stabilizer next to the tail fin. A report said only good luck prevented a collision”.

Cheap Seats Get Only One Carry-On

In Dastin, United to restrict low-fare flyers to one carry-on bag, reuters.com (11/15/2016) it was noted that “United Continental Holdings Inc….took a leaf out of its low-cost competitors’ playbook on Tuesday by unveiling a new low fare that limits customers to one carry-on bag that fits under a seat, part of a broader plan to boost profit over the next four years…United is the first major U.S. carrier to make such a move for carry-ons, which it hopes will attract some new customers and push some of its regular flyers toward higher fares. Combined with better flight connections and revamped pricing algorithms, the airline said at its investor day that it aims to add $4.8 billion to yearly operating income by 2020, excluding the effect of rising wages”.

Flight Cancellations Low

In US DOT: Flight cancellations at all-time low, eturbonews.com (11/15/2016) it was noted that “The U.S. (DOT)’s monthly Air Travel Consumer Report (ATCR) released today states that reporting carriers canceled 0.3 percent of their scheduled domestic flights in September 2016, the lowest of any of the 261 months with comparable records since January 1995, below the previous low of 0.4 percent in September 2015. The cancellation rate in August 2016 was 1.4 percent”.

Flight-Sharing At The Supreme Court

In Coyle, FAA Tells Justices to Pass on Flight-Sharing Startup’s Case, law.com (11/15/2016) it was noted that “The

U.S. Supreme Court should decline to take up a pioneering flight-sharing startup’s battle with federal regulators, the Obama administration told the justices on Monday. Flytnow Inc., is a web-based service in which private pilots fill seats among passengers who want to share the expenses of transportation on pre-planned flights. The plight of the company has captured the attention and support of pro-business groups that view Flytenow’s service as another step in the sharing economy. The government, directed by the Supreme Court to respond to Flytenow’s petition, argued that the (FAA) and the U.S. Court of Appeals for the D.C. Circuit, which ruled for regulators, were correct that pilots who solicit passengers using Flytenow are ‘common carriers’ who must satisfy the more stringent aviation rules”. See our Travel Law article, The travel sharing economy and air transportation, eturbonew.com (1/21/2015) in which we discussed the case of Flytenow, Inc. v. FAA, 808 F. 3d 882 (D.C. Cir. 2016) and the concept of sharing expenses on private aircraft flights and an app to connect pilots and passengers. Stay tuned.

Travel Law Article: The Flaherty Case

In the Flaherty case the Court noted that “In his Second Amended Complaint, Plaintiff now pleads that he was instructed by the tour guides at Dunn’s River Falls (in Jamaica) to hold hands with the other hikers and that his fall was caused when the girl whose hand he was holding slipped. Plaintiff claims that Royal Caribbean either knew about or should have reasonably foreseen the danger associated with having co-hikers hold hands as they climbed the Dunn’s River Falls, and should have warned him of the danger. Royal Caribbean asserts that Plaintiff has… insufficiently pleaded a claim for negligent failure to warn because he never identified what caused the girl whose hand he was holding to fall. Royal Caribbean also argues Plaintiff has failed to state claims for negligent misrepresentation, negligent selection and vicarious liability”.

Theories Of Liability

“Plaintiff…(outlines) why Royal Caribbean is legal responsible for the injuries he sustained during his shore excursion: (1) Royal Caribbean breached its duty to warn Plaintiff of the dangerous practices utilized by local guides at Dunn’s River Fall(s)…(3) Royal Caribbean negligently sold the tour despite knowing the tour guide it selected was incompetent; and (4) Royal Caribbean is vicariously liable for the negligence of its apparent agent-the guides at Dunn’s River Falls”.

Negligent Failure To Warn

“It is clearly established that cruise lines owe their passengers a duty to warn of known or foreseeable dangers on shore that are not open and obvious of which the cruise line had actual or constructive knowledge, and that exist in places where passengers are invited or reasonably expect to visit (citing Lapidus v. NCL, 924 F. Supp. 2d 1352 (S.D. Fla. 2013)). Royal Caribbean argues that it could not warn Plaintiff of the danger he faced, because his fall was caused when the girl holding his hand slipped and it is still unknown what caused the girl to fall”.

Holding Hands Can Be Dangerous

“This argument borders on the nonsensical. What caused the girl whose hand Plaintiff was holding to fall is irrelevant to whether Royal Caribbean had a duty to warn Plaintiff about the local tour guides’ allegedly dangerous practice of telling hikers to hold hands. Plaintiff alleges that he would not have fallen ‘but for’ the tour guides’ instruction to hold hands. The Court rejects any assertion that the dangers associated with the practice of holding hands while climbing Dunn’s River Falls was an open and obvious condition. Without experience and knowledge of safe hiking practices, ordinary tourists would likely be unaware of the dangers associated with holding hands with fellow hikers. Therefore, Royal Caribbean-which allegedly had been made aware of these dangers because of multiple complaints it had received regarding the safety of this excursion-was in a position to warn its passengers of the danger”.

Negligent Selection

“A principal may be subject to liability ‘for physical harm to third persons caused by [its] failure to exercise reasonable care to employ a competent and careful employee/agent/contractor to: (a) do work which will involve a risk of physical harm unless it is skillfully and carefully done, or (b) perform any duty which the employer owes to third persons’ (citing Smolnikar v. Royal Caribbean Cruises, Ltd., 787 F. Supp. 2d 1308 (S.D. Fla. 2011))…To state a claim for negligent hiring or retention against a principal, a plaintiff must prove that ‘(1) the agent/employee/contractor was incompetent or unfit to perform the work; (2) the employer knew or reasonably should have known of the particular incompetence or unfitness; and (3) the incompetence or unfitness was a proximate cause of the plaintiff’s injury’…To satisfy the second element of a negligent hiring or retention claim, a plaintiff must allege facts ‘showing that the employer was put on notice of the harmful propensities of the [agent/employee/contractor]”.

Government Tour Guides

“In his Second Amended Complaint, Plaintiff informs the Court for the first time that the guides at Dunn’s River Falls were not employees of the shore excursion operator hired by Royal Caribbean, but were instead local guides hired by the Government of Jamaica to assist all tourists as they visit Dunn’s River Falls. This revelation presents an insurmountable hurdle for Plaintiff’s negligent selection claim…Royal Caribbean did not hire, retain or select the guides at Dunn’s River Falls. The Government of Jamaica did…Plaintiff has failed to stat a claim against Royal Caribbean for negligent selection/retention”.

Vicarious Liability

“‘Apparent agency exists where the alleged principal makes a manifestation that causes a third party to reasonably believe that the alleged agent had authority to act for the benefit of the principal, and the third party reasonably acts on such belief to his detriment’ (citing Fojtasek v. NCL, 613 F. Supp. 2d 1351 (S.D. Fla. 2009)). To hold a principal liable for the negligence of either an actual or apparent agent, a plaintiff must ‘sufficiently allege the element of agency in addition to the elements of the underlying negligent act of the agent for which the plaintiff seeks to hold the principal liable’”

Foreign Sovereign Immunities Act

“Because the apparent agent is the Government of Jamaica and not the cruise line’s shore excursion provider, Plaintiff can never successfully state an underlying negligence claim against the agent. The Foreign Sovereign Immunities Act of 1976 (FAIA)…governs whether Plaintiff could state an underlying negligence claim against the Government of Jamaica or its employees. Under the FSIA, tort claims against foreign states are permitted only where both the injury and tortuous act have occurred within the territory of the United States…Because Jamaica and its employees’ alleged negligent acts occurred outside the United States, Plaintiff could never state a claim for negligence against Jamaica or its employees (and hence) its claim of various liability against Royal Caribbean also fails as a matter of law”.

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.

Read many of Justice Dickerson’s articles here.

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