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Travel law: Recreational boating accident on Lake Powell, Utah-Arizona border – who’s liable?

Travel law: Recreational boating accident on Lake Powell, Utah-Arizona border – who’s liable?

In this week’s article, we re-examine the case of In re: Aramark Sports and Entertainment Services, LLC, 831 F. 3d 1264 (10th Cir.2016), rev’g 2014 WL 4270941 (D. Utah 2014), a liability limitation action, wherein passengers renting an Aramark powerboat drowned when their boat capsized and sank during a storm on Lake Powell on the Utah-Arizona border. We discussed the Trial Court’s decision [2014 WL 4270941] after trial in Dickerson, Recreational Boating Accidents-duty to warn of bad weather, eturbonews.com (4/23/2015).

Terror Targets Update

Fort Lauderdale, Florida

In Alvarez, Fausset & Goldman, Florida Airport Assailant May Have Heard Voices Urging Violence, Officials Say, nytimes.com (1/6/2017) it was noted that “Federal law enforcement officials said they were investigating whether the gunman who opened fire on Friday at the airport in Fort Lauderdale, Fla., killing five people and wounding eight, was mentally disturbed and heard voices in his head telling him to commit acts of violence”.

In Alvarez, Robles & Perez-Pena, In Year Before Florida Shooting, Suspect’s Problems Multiplied, nytimes.com (1/7/2017) it was noted that “Signs of Esteban Santiago’s unraveling have mounted over the last year. But it was not until early November, when he walked into an F.B.I. office carrying an ammunition clip-leaving a pistol and his infant son in his car-to complain about a C.I.A. plot against him, that his behavior became disturbing enough to earn him a short stay in a psychiatric hospital unit. In the months before, the police were called repeatedly to his home about domestic disturbances and the National Guard kicked him out because of ‘unsatisfactory performance’ after nearly a decade of service”.

In Fernandez, Before Florida Shooting, Guns in Checked Bags Raised Few Concerns, nytimes.com (1/7/2017) it was noted that “The gunman…pulled his weapon out from…his checked baggage…According to the T.S.A., passengers at the nation’s airports are allowed to transport unloaded guns in their checked baggage. The firearms must be kept in a locked ‘hard-sided- container and gun owners must declare firearms and any ammunition to airline representatives when checking the bags at ticket counters…Gun-control supporters said the shooting raised questions about the efforts in some states, including Florida, to allow gun owners to carry firearms inside passenger terminals in airports, but it was unclear if the shooting would lead to calls for the T.S.A. to tighten firearm regulations”.

Berlin, Germany

In Povoledo, Pianigiani & Callimachi, Hunt for Berlin Suspect Ends in Gunfire on an Italian Plaza, nytimes.com (12/23/2016) it was noted that “It was a routine check, the kind Italy has relied on to stem the flow of illegal migration deeper into Europe…He turned out to be perhaps Europe’s most wanted man, Ania Amri, the chief suspect in the deadly terrorist attack on a Christmas market in Berlin that killed 12 people. Asked to show his papers and empty his backpack, he pulled out a gun, shot one officer, and in turn was shot and killed by another. ‘Police bastards’, Mr. Amri…shouted in Italian before dying”.

Istanbul, Turkey

In Mele, Terrorist Attack at Nightclub in Istanbul Kills Dozens, nytimes.com (12/31/2016) it was noted that “At least 39 people were killed and dozens more were wounded when a single gunman attacked a crowded Istanbul nightclub about an hour after midnight on New Year’s Day…Sixteen of the people killed were foreigners…At least 60 people were being treated in hospitals …No one immediately claimed responsibility for the mass shooting”.

In Istanbul New Year Attack: Islamic State proud to have killed foreign Christian tourists, etn.travel (1/1/2017) it was noted that ”The Islamic State (IS, formerly ISIS/ISIL) international terrorist group has claimed responsibility for the New Year’s Eve shooting in a crowded Istanbul nightclub that killed 39 people (and injured nearly 70)…Saudi Arabian, Moroccan, Libyan and Lebanese (Jordanian, Tunisian, Russian) citizens were among those killed in the attack…An American citizen has been injured”.

In Arango, Nightclub Massacre in Istanbul Exposes Turkey’s Deepening Fault Lines, nytimes.com (1/1/2017) it was noted that “When a lone gunman murdered dozens of New Year’s revelers early Sunday, he targeted a symbol of a cosmopolitan Istanbul that is increasingly under threat: a dazzling nightclub where people from around the world could party together, free from the mayhem and violence gripping the region. It was there, at the Reina nightclub on the Bosporus-a hot spot for soap opera stars and professional athletes, Turks and well-healed tourists-that those hoping to move past a particularly troubled year died together”.

In Turkey’s state of emergency extended for three more months, etn.travel (1/3/2017) it was noted that “The Turkish parliament has approved the three-month extension of the country’s state of emergency, which was initially implemented after a failed July coup against President Recep Tayyip Erdogan”.

Greece

In Magra, Greece’s Most-Wanted Terrorist Is Arrested in Athens Suburb, nytimes.com (1/5/2017) it was noted that “She (Panagiota Roupa) was a leader of an anarchist group called Revolutionary Struggle. She helped organize, officials say, a car bombing near the country’s central bank. Later, the authorities say, she rented a helicopter using a fake name and then tried to hijack it in an effort to rescue her imprisoned partner”.

Cairo, Egypt

In EgyptAir crash: Bodies of crew members returned to families, bbc.com (12/31/2016) it was noted that “The bodies of the victims of the EgyptAir plane which crashed in the Mediterranean in May are being returned to their families …Bodies of the 10 crew members were handed over on Saturday. Passengers would follow next week. Investigators say traces of explosives have been found on the victims and a criminal investigation will be held. Flight MS804 from Paris to Cairo plunged into the sea on 19 May killing all 66 people on Board. Among those who died were 40 Egyptians and 15 French nationals”.

Caracas, Venezuela

In Casey, In a Brutal Year in Venezuela, Even Crime Fighters Are Killers, nytimes.com (12/30/2016) it was noted that “Venezuela has long suffered from one of the world’s highest crime rates. But the nation’s economic crisis, which has upended everything from its hospitals to its food supply, has deepened the misery and criminality. Killings have risen to 28,479 this year, the highest number ever recorded in the country…Armed gangs have established a tight grip over neighborhoods, with many Venezuelans turning to crime as inflation shrivels their wages and jobs become harder to find”.

Sochi, Russia

In Nechepurenko, Russia Mounts Search After Plane Crash and Says Terrorism Is Unlikely, nytimes.com (12/26/2016) it was noted that “Russia mounted an expansive search-and-recovery operation in the Black Sea on Monday for the passengers and the fuselage of a military passenger plane that crashed a day earlier, killing all 92 people on board, including dozens of members of a storied army choir”.

Moscow, Russia

In Moscow railway stations evacuated over bomb threat, etn.travel (12/28/2016) it was noted that “Police in the Russian capital of Moscow are evacuating people at three railway stations over an anonymous bomb threat…Some 3,000 people were evacuated from the Kazansky, Leningradsky and Yaroslavsky railway stations in the Russian capital on Monday. The three stations are located on the same square in Moscow”.

Mogadishu, Somalia

In Second New Year’s Terror attack: Twin bombing in Magadishu, etn.travel (1/2/2017) it was noted that “While the world is still coming to terms with the New Year’s Eve attack on a popular venue in Istanbul…two simultaneous bombings in Magadishu have gone almost unnoticed. Targeted by A; Shabab criminals were both the airport and combined UNISOM entrance area and in the second attack a hotel popular with foreign visitors”.

Unruly Airline Passengers: Use Tasers, Please

In Korean Air allows crew to use Tasers to subdue violent passengers, etn.travel (12/27/2016) it was noted that “Korean Air Lines crew members have been given the go-ahead to ‘readily use stun guns’ to subdue violent passengers in a ‘fast and efficient manner’…The carrier said it will hire more male flight attendants, boost staff training, allow use of the device to subdue violent passengers, and ban those with a history of unruly behavior”.

Train Crash In Brooklyn

In Rosenberg & Remnick, L.I.R.R. Crash in Brooklyn Injures More Than 100, nytimes.com (1/4/2017) it was noted “The derailment, which disrupted the morning commute for thousands of riders, was reminiscent of a deadly crash in September in which a New Jersey Transit train plowed through a bumper at the end of a track at Hoboken Terminal, killing a woman and injuring more than 100 people…Inside the train, which was carrying 600 to 700 people from Far Rockaway to Queens, passengers who had begun to stand in the aisles while waiting to get off were sent tumbling by the jolt. One rail of Track No.6, on which the train was traveling, had sliced through the floor of a car, officials said”.

American Airlines Fined

In American Airlines fined $1.6 million for violating tarmac delay rule, eturbonews.com (12/14/2016) it was noted that “The (DOT) today fined American Airlines $1.6 million for violating the Department’s rule prohibiting long tarmac delays. The airline was ordered to cease and desist from future similar violations. This fine represents the highest amount assessed against an airline for violating the tarmac delay rule, matching a similar $1.6 million fine assessed against Southwest Airlines in 2015…An investigation by DOT’s Aviation Enforcement office found that in 2013 and 2015, American Airlines allowed a number of domestic flights to remain on the tarmac for more than three hours without providing passengers an opportunity to deplane”.

Best Hotel Rewards Program

In Comoreanu, Best Hotel Rewards Program, wallethub.com (12/7/2016) it was noted that “Hotel rewards programs are important, both to the travelers who join them and to the chains that run them. Roughly 18% of frequent travelers become loyal to a given hotel brand primarily because of its rewards program. According to Deloitte. And hotel chains reap an average of 50% more revenue from customers who belong to their loyalty programs than those who do not, according to a study from the Center of Hospitality Research at Cornell University…Much ultimately comes down to personal preference and geography, but it is possible to cut through the complexity and compare options on equal footing. So, in the interest of helping consumers make more-informed travel decisions and ultimately maximize their savings, WalletHub did just that. We compared the rewards programs operated by the 12 largest U.S. hotel chains using 21 key metrics, ranging from point values and expiration policies to booking blackout dates and brand exclusions. These metrics collectively speak to each program’s expected value for travelers with three different hotel spending profiles: Light ($487 per year), Moderate ($779 per year) and Heavy ($1,461 per year)”. Tables provided.

Rental Cars Beware Of Uber & Lyft

In Lieber, With Uber and Lyft Nearby, Rental Cars May Be Ripe for a Comeuppance, nytimes.com (12/9/2016) it was noted that “The day before Election Day, even the most frequent of travelers may have missed the bad news about Hertz. After a disappointing earnings release, its stock fell by 23 percent. The trouble seemed to come mostly from too many of its cars losing value too quickly, but revenue fell, too. Which could not be less surprising, given the enormous user experience problem the car rental industry faces. Every time I’ve traveled since Lyft and Uber achieved near ubiquity-whether for work or pleasure, trips long or short-I’ve tried my level best to avoid renting a car. And there’s no better way to explain what then to catalog every negative feeling the industry inspires on any given itinerary.

(Nine rental car annoyances listed). But in an increasing number of areas ad situations, the Lyft and Uber experience for both business and leisure travelers is simply world better than turning to a rental car. It’s superior to taxis, too, since they are generally harder to call or hail than a Lyft or Uber vehicle unless you’re at an airport. Plus, not having a rental car means no parking fees or tickets and no distracted driving while trying to hear Waza spit out directions in unfamiliar environments while you dodge trucks and watch for bikers darting about”.

Uber Returns To Calgary, Canada

In Uber returns to Calgary, eturbonews.com (11/30/2016) it was noted that “Today. Ramit Kar, General Manager of Uber Alberta, issued the following statement following the approval by City Council of changes to its regulations for ridesharing in Calgary.” Over the past months, we engaged with the city of Calgary in the hope that changes would be approved by Council so that Calgarians can benefit from ridesharing”.

Getting Banned From Uber

In Huston, Ride-hailing company releases guidelines of how passengers could get banned from the service, marketwatch.com (12/9/2016) it was noted that “Uber released a set of guidelines Thursday for behavior that could get Uber passengers banned from the service and drivers suspended from the app. Many of these guidelines are common sense principals said Harry Campbell, a driver who blogs about the ride-hailing industry at The RideShare Guy, but drivers are still waiting to see how much of an effect they will have…. Among the guidelines, U.S. passengers are told that they ‘can lose access’ to the service if they damage the car by spilling food or drink, smoking or vomiting. Other violations include breaking local laws, bringing a firearm into the vehicle and inappropriate language, including overly personal questions, as well as abusive language or gestures”.

Ridesharing: Creative Destruction

In Goldfein & Keyle, Creative Destruction, Uber and Antitrust, New York Law Journal (12/12/2016) it was noted that “Sometimes ‘competition takes the form of ‘creative destruction’, whereby an innovator uses a new technology or business model to transform an industry’. For example, [Apple] revolutionized the portable music market and quickly eliminated compact discs from competition. This innovative competition can push markets forward and force companies to adapt to new, challenging problems-all to the benefit of consumers. However, fear or creative destruction can lead existing competitors to oppose the disruptive innovator. Uber is a recent example of this type of response in the vehicle-for-hire industry. Since entering the market in 2009, Uber had run into frequent opposition from taxi associations and local governments, which in turn has spawned several interesting antitrust disputes”. Article discusses Wallen v. St. Louis Metropolitan Cab Commission, 2016 WL 5846825 (E.D. Mo. 2016) and Mayer v. Kalanick, 174 F. Supp. 3d 817 (S.D.N.Y. 2016), reconsideration denied in part, 2016 WL 2659591 (S.D.N.Y. 2016).

Travel Law Article: The Aramark Case

The Tenth Circuit Court of Appeals in the Aramark case noted

that “This suit arose out of a recreational boating accident on Lake Powell that claimed the lives of four adults. The boat had been rented from Aramark Sports and Entertainment Services, LLC. Because the accident occurred on navigable waters, the case falls within federal admiralty jurisdiction…Anticipating that it would be sued for damages, Aramark filed in the United States District Court for the District of Utah a petition under the Limitation of Liability Act…which permits a boat owner to obtain a ruling exonerating it or limiting its liability based on the capacity or value of the boat and freight. The district court denied the petition…Aramark appeals the denial”.

The Background

“Aramark rents boats out of the Wahweap Marina on Lake Powell…In April 2009 three married couples-the Bradys, the Prescotts and the Tarantos-went on vacation to Lake Powell. On Friday…the Bradys and Prescotts went to Aramark’s boat rental office…to procure a boat for the next day. Mr. Powell signed a contract to rent a Baja 202 Islander, which is classified in the owner’s manual as a Design Category C boat based on its limited ‘ability to withstand wind and sea or water conditions’…For Category C boats the manual lists a ‘Maximum wind speed’ of 27 knots (31 miles per hour)”.

Boaters Never Informed

“The manual further states: The wind speed and wave height specified at the upper limit of your category of boat does not mean that you or your passengers can survive if your boat is exposed to these conditions. It is only the most experienced operators and crew that may be able to operate a boat safely under these conditions. You must always be aware of weather conditions and head for port or protected waters in sufficient time to avoid being caught on high winds and rough water. Do not take chances. The boaters were never informed of the Baja’s Category-C Classification”.

Weather Forecast On Friday

“When the contract was signed, the National Weather Service (NWS) forecast for the next day on Lake Powell called for breezes from 15-23 miles per hour and gusts up to 37 miles per hour. That forecast was based on data collected at 3:44 a.m. that morning. Before the boaters left, Aramark rental agent… gave that forecast to Mr. Prescott and told him that he would be given an updated forecast the next morning when they picked up the boat.

Weather Forecast On Saturday

“Early Saturday morning the NWS updated its Lake Powell forecast for noon to 6 p.m. on Saturday to call for sustained winds of 25 to 35 miles per hour and gusts as high as 55 miles per hour. When the three couples arrived on Saturday morning to begin their trip, Aramark’s boat instructor, who told the boaters about the weather channel on the boat’s radio, did not inform them of the updated forecast, nor did they request it. He asked Mr. Brady if he knew how to use the radio and Mr. Brady said he did”.

Dangling Rope Marina

“The group left Wahweap at about 8 a.m. and safely arrived at their planned destination, Rainbow Bridge. On their return trip…they stopped to refuel at Dangling Rope Marina, also operated by Aramark. Aramark employee Scott Bergantz spoke with some of them during the stop (and advised that) because the water was rough he invited the couples to stay at Dangling Rope if they were uncomfortable. This testimony is disputed…”.

Bumpy And Rough Water

“Mr. Brady testified that after his group left Dangling Rope the water was ‘bumpy’ and then ‘got rough’ as they entered a small bay. The boat proceeded through a ‘small opening’ and then into ‘a larger bay, which turned out to be Padre Bay’ at which point ‘the wind came up like unbelievable. It was ruthless’. At one point Mrs. Brady noticed water at her feet inside the boat and then heard her husband issue a mayday call. The boat sank shortly thereafter. The Bradys were able to reach a rock pile from which they were later rescued. The Prescotts and Tarantos lost their lives”.

Aramark’s Duty

“We now turn to Aramark’s duty in this case. As we understand Claimant’s argument, Aramark had a duty not to rent the boat because of the dangers apparent from the weather forecast and the limited capacity of the boat to withstand high winds. Implicit in this argument is the argument that Aramark had a duty to warn the boaters about the weather forecast and the boat’s limited capacity. It is useful to discuss separately the alleged duties to warn of the weather and to warn of the boat’s capacity because different considerations apply to each”.

Duty To Provide Weather Forecast

“In our view, Aramark had no duty to obtain a weather forecast and provide it to the boaters…The question here is whether the defendants must protect the plaintiff against a danger not created by the defendant when the plaintiff could take the same protective steps at least equally easily and well. The rented boat was equipped with a radio for obtaining weather reports. The boaters could obtain the forecast with the same minimal effort that the Aramark representative at the marina could. Also, forecasts are notoriously iffy. The forecasts available on the boat radio during the trip would be more timely than the forecast that could be provided by the representative before the trip began. With all this in mind, it is unsurprising that every reported decision (cited to or found by us) to consider the point has held that there is no duty to acquire a weather forecast and provide it to customers”.

Failure To Warn Of Boat’s Limitations

“But Claimants have not contended that the weather in itself was the sole source of risk when the boat was rented. They claim that what made the forecasted weather particularly dangerous was that the boat was not designed for such weather conditions…. we think that implicit in their claim, is the contention that Aramark had a duty to warn the boaters of this design limitation. Such a duty to warn is quite different from a duty to warn about the weather when the boaters had at least as good access to information as Aramark.

Conclusion

We can think of no reason of policy or principle to excuse Aramark from negligence for failure to warn a renter of a boat’s limitations…But we express no view on whether Aramark failed to exercise such care. Because the relevant facts have not been resolved by the district court, we must remand for further proceedings on the issue”. Stay tuned.

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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