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Volunteer crew member on racing sailboat struck by main sheet

Volunteer crew member on racing sailboat struck by main sheet

In this week’s travel law article, we examine the case of Ray v. Lesniak, No. 2:16-cv-1752-DCN (D.S.C. (2/22/2018) wherein the “Plaintiff Raven Renee Ray (Ray) brought this admiralty action against Defendant Steve A. Lesniak (Lesniak) pursuant to Federal Rule of Civil Procedure 9(h). Ray is suing Lesniak for personal injuries and other damages she sustained as a result of being struck by the main sheet during a sailing race on Lesniak’s boat ‘the Celadon’. The court tried this case without a jury on September 18, 2017 (and) finds that Lesniak was negligent in his captaining of the Celadon, that Ray suffered an injury while an invited guest on the Celadon as a result of Lesniak’s negligence and that as a result of this injury Ray has a permanent traumatic brain injury. It awards $958,758.15 in damages. This award, in the court’s eyes, gives Ray what she deserves-‘just some justice, some recognition and help’”.

Terror Targets Update

Timbuktu, Mali

In Fighters disguised as peacekeepers attack UN base in Mali, travelwirenews (4/15/2018) it was noted that “The UN mission in Mali is one of the most dangerous peacekeeping operations in the world…At least one UN peacekeeper has been killed on a base in the northern Malian town of Timbuktu… Fighters also fired dozens of rockets at the base and engaged troops in gun battle on Saturday afternoon…’MIUNSMA confirms a significant complex attack on its camp in Timbuktu, mortars, exchange of fire, vehicle suicide bomb attack’, the mission tweeted. ‘One blue helmet was killed in the exchange of fire’”.

Sterlitamak, Bashkortostan

In ‘Ready to slaughter people’: What we know about Russian school attacker, travelwirenews (4/18/2018) it was noted that “The teenager who attacked a school teacher and his classmates in a city in Russia’s Urals was reportedly inspired by the Columbine High School Massacre. The teen was planning to slaughter his classmates and then commit suicide…The teenager entered a computer science class and attacked a female student and a teacher with a knife…He then poured out a flammable substance, set it on fire, and tried to commit suicide…’I am ready to slaughter people’, he wrote on one occasion”.

Passenger Nearly Sucked Out Of Window

In Stack, A Southwest Airlines Engine Explodes, Killing a Passenger, nym (4/17/2018) it was noted that “One person was killed on a Southwest Airlines flight from New York to Dallas when an engine exploded in midair on Tuesday, shattering a window that passengers said partially sucked a woman outside of the aircraft. The explosion, which one passenger said happened about a half-hour into the flight, prompted a desperate effort among flight attendants and passengers to save the woman. The plane…lost altitude after the explosion and violently depressurized after shrapnel from the explosion burst through the window…’The top half of her torso was out of the window’… ‘There was a lot of blood because she was hit by some of the shrapnel coming off the engine after it exploded”.

20 Minutes Of Chaos And Terror

In Healy & Hauser, Inside Southwest Flight 1380, 20 Minutes of Chaos and Terror, nytimes (4/18/2018) it was noted that “‘Dear Jesus, send some angels’. Passengers feared they would die as an engine exploded, plunging the plane thousands of feet in a minute. Tens of thousands of feet above the earth, the passengers clasped hands with strangers, prayed together and got ready to die…With no apparent warning, the plane’s left engine exploded after one of its fan blades broke off. A gust of shrapnel blew out a window, partly sucking one passenger in Row 14 headfirst into the sky. Oxygen masks dropped down and the plane plunged thousands of feet in a minute. Over the next 20 minutes, the depressurized cabin air swirled with wind and debris, panic and prayers as the pilot rerouted the plane to Philadelphia for an emergency landing”.

U.S. Safety Record Shattered

In Levin, Death on Southwest Plane Shatters Record U.S. Safety String, msn (4/18/2018) it was noted that “Almost 100 million U.S. operated airline flights, carrying several billion people, had taken off and landed safely in this country over a nine-year span since the last time a passenger died in an accident. That record for avoiding fatalities-which had never been approached in the history of modern aviation-was splintered in an instant Tuesday when an engine on a Southwest Airlines Co. plane exploded mid-air, spewing shrapnel into a window and killing a passenger…The last fatal crash on a U.S.- registered carrier occurred near Buffalo, New York, on Feb 12, 2009, when a commuter plane operated by Colgan Air crashed, killing 49 on board and a man on the ground”.

Don’t Fly Allegiant Air, Please

In Spinks, How Do You Know If A Budget Airline Is Safe To Fly?, quartzy.qz (4/17/2018) it was noted that “Alarm bells rang for travelers when several aviation officials on Sunday’s 60 Minutes report that they refuse to fly on US budget airline Allegiant Air. According to the program, Allegiant had more than 100 serious mechanical incidents-including emergency landings, aborted takeoffs, engine failures and cabins filling with smoke-between January 2016 and October 2017, though no fatal incidents have occurred since the airline was founded”.

In Reed, ‘60 Minutes’ Landed A Haymaker On Allegiant But Bet On The Airline To Win The Bout, forbes (4/17/2018) it was noted that “Allegiant Air executives and the Federal Aviation Administration took it on the chin Sunday night from a blistering report of CBS’ 60 Minutes that detailed how the Las Vegas-based ultra-low carrier is nearly 3-5 times more likely to have an inflight mechanical emergency than any other large U.S. airline. On Monday Allegiant’s share price took it on the chin, too, falling 5% from its Friday closing price in just the first 30 minutes of trading”.

Air France: Get Ready To Pay

In Calder, Air France Braces For Thousands Of Strike Compensation Claims After European Court Ruling, independent.co.uk (4/18/2018) it was noted that “As around 40,000 passengers on Air France find their flights cancelled because of strikes, a new ruling at the European Court of Justice (ECJ) could mean they are entitled to hundreds of euros in compensation. The court was to rule in a case concerning TUIfly, the German airline belonging to the giant TUI travel company… In October 2016, rates of staff absenteeism…soared from around 10 per cent to as much as 89 per cent among pilot and 2 percent for cabin crew. It was regarded as a wildcat strike in protest at restructuring plans at the airline. As a result, dozens of flights were cancelled…Under European passenger’s rights rules, known as EC261/2004, cancellations or long delays trigger compensation payouts between E250 and E650. But TUIfly rejected claims on the grounds that the strike amounted to an ‘extraordinary circumstance’, which allows airlines to avoid paying compensation” The cases went to Court and the ECJ concluded ‘The spontaneous absence of a significant part of the flight crew (‘wildcat strikes’)…which stems from the surprise announcement by an operating air carrier of a restructuring of the undertaking, following a call echoed not by the staff representatives of the company but spontaneously by the workers themselves who placed themselves on sick leave, is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision’. Bott & Co, a Cheshire law firm which specializes es in flight compensation claims, said ‘The ruling that staff strikes should not be classified as extraordinary circumstances is worth tens of millions of pounds in compensation a year to passengers and will be legally binding throughout Europe and will hold precedent in UK cases”.

Lights Out Again In Puerto Rico

In Wagner & Robles, Puerto Rico Is Once Again Hit by an Island-wide Blackout, nytimes (4/18/2018) it was noted that “After seven months and close to $2.5 billion, almost everybody in hurricane-ravaged Puerto Rico had their lights back on-until a freak accident on Wednesday plunged the entire island once again into darkness. The Puerto Rico Electric Power Authority had boasted Wednesday morning less than 3 percent of its customers remained without power…The island of 3.4 million residents was open for business again, government officials said. …It was only a few hours later…a catastrophic failure that could take up to 36 hours to restore”.

The Singing Road

In Karasz & Joseph, Dutch ‘Singing Road’ Silenced After Villagers Complain: ‘I’m Going Nuts’, nytimes (4/12/2018) it was noted that “Instead of putting ‘rumble strips’ on the road in a small Dutch village to warn drivers who veered onto the shoulder, officials installed musical strips. Workers painted the stretch of road near the village, Jelsum, last Friday to ‘play’ music from the regional anthem when tires rumbled along the raised strips. But soon, the biggest rumbling was coming from the village as residents begged the authorities to make it stop”.

Grab Failed To Inform Riders

In Grab PHL admits it did not inform riders of P2 per minute of travel time extra charges, travelwirenews (4/19/2018) it was noted that “Grab Philippines admitted on Wednesday, April 18, that it did not inform its users of the P2 per minute extra charge per travel time it implemented. ‘There was no (communication) to the riders inside the app. In the information card, we’ve updated that, but when we raised the P2 per minute, we did not include that’, Brian Cu, Grab country head said. But Cu was quick to add that there was ‘nothing illegal with failing to update information’”.

Uber Shuts Down In Philippines

In Perlman, Uber Shuts Down In Philippines Despite Merger Review, law360 (4/17/2018) it was noted that “The competition authority for the Philippines said Monday that Uber has shut down its app in the country despite an ongoing review of its deal to sell its Southeast Asia operations to rival ride-hailing service Grab and an order requiring Uber to continue operating until the review is complete”. nytimes

Nut Rage Sister Suspended

In Lee, Korean Air Suspends Nut Rage Sister From Work Over Tantrum, msn (4/16/2018) it was noted that “Korean Air Lines said Monday it has suspended one of its chairman’s daughters from her marketing work after she threw a tantrum at a business meeting, triggering public outrage and a police investigation. The daughter, Cho Hyun-min, also known as Emily Cho, is the younger sister of another Korean Air executive whose onboard ‘nut rage’ outburst delayed a flight in 2014…Cho allegedly hurled a cup of water at an ad agency official during a meeting last month. She later apologized on Facebook, saying the outburst was sparked by her passion for commercials”.

Missing A Friend? Look In Toronto’s Planters

In Hauser, 8th Murder Charge in Case The Rattled Toronto Gay Community, nytimes (4/17/2018) it was noted that “For more than a month, the police in Toronto have been trying to solve a mystery. They had a photograph of an unidentified dead man, and they had discovered human remains in planters where a man suspected of multiple killings had worked as a landscaper. On Monday, the police announced that they had charged the suspect, Bruce McArthur, with first-degree murder in the death of an eighth alleged victim”.

Internet Sales Taxes, Anyone?

In Liptak, Supreme Court Divided on Sales Taxes for Online Purchases, nytimes (4/17/2018) it was noted that “A closely divided Supreme Court struggled on Tuesday to decide whether internet retailers should have to collect sales taxes in states where they have no physical presence. Brick-and-mortar businesses have long complained that they are disadvantaged by having to charge sales taxes while many of their online competitors do not. States have said that they are missing out on tens of billions of dollars in annual revenue under a 1992 Supreme Court ruling that helped spur the rise of internet shopping”.

The Palio di Siena, Anyone?

In Carner, The Palio di Siena: A Survivor’s Guide, nytimes (4/16/2018) it was noted that “‘Hugh outdoor loony bin’ is not the precise description of the Palio di Siena, the thunderous, lawless, bareback, medieval-style horse race held twice each summer in front of tens of thousands of spectators on a track of packed clay laid down in the downtown heart of Siene, in Tuscany. But it will do for the moment. This is a race in which jockeys-they ride for various contrade, or neighborhoods-feel free to bribe one another, out in the open, before the contest begins. Betrayal is common. Guile is prized. There are no rules but one: A rider may not interfere with the reins of another horse. Jockeys whip their horses, and each other, with crops made from cured distended bull’s penises”.

Airbnb’s Office Of Healthy Tourism

In Airbnb launches global office of healthy tourism, travelwirenews (4/18/2018) it was noted that “New Delhi: Airbnb has announced the launch of the ‘Office of Healthy Tourism”, a global initiative to drive local, authentic and sustainable tourism in countries and cities across the globe… In a statement on Wednesday, the company said it will expand its efforts to economically empower communities, drive travel to lesser-known places and support environmentally-friendly travel habits with the Office of Healthy Tourism”.

Holiday Sickness & Dishonesty

In Beeton, Holiday Sickness and Dishonesty: Two More Cases, International & Travel Law Blog, (4/15/2018) it was noted that “This blog post considers two recent cases on holiday sickness and fundamental dishonest. McLean v. Thomas Tour Operations Ltd. (Unreported) 9 August 2017, Worcester County which was touched on briefly by this blog in this post) and Caldwell v. Thomas Cook Tour Operations Ltd (unreported) 25 September 2017, Stockport County Court”. Article available at internationalandtravellawblog/2018/04/holiday-sicknes-and-dishonesty-two-more-cases

No Eggs For Breakfast, Please

In Fortin, More Than 200 Million Eggs Recalled Over Salmonella Fear, nytimes (4/15/2018) it was noted that “A company has recalled more than 200 million eggs after an outbreak of salmonella was traced to one of its farms in North Carolina. The federal Food and Drug Administration reported Friday that eggs from the affected farm were distributed to nine states-Colorado, Florida, New Jersey, New York, North Carolina, Pennsylvania, South Carolina, Virginia and West Virginia-and were likely connected to 22 reported cases of salmonella poisoning… That led them to an egg farm in Hyde County, N.C. owned by Rose Acre Farms of Seymour, Ind.”.

Sustainable Travel Updated

In Glusac, Sustainable Travel: It’s Not Just About the Environment, nytimes (4/13/2018) it was noted that “The term ‘sustainable travel’ has a green glow to it, connoting eco-friendly practices and environmental responsibility. But the human side of sustainability, as defined by the World Tourism Organization, addresses community impact, both social and economic, and is newly gaining traction among travel companies. Social impact travel aims to ensure money spent on a tour or a trip stays in the community. A vital source of income to developing nations, travel is the first or second source of export earnings in 20 of the 48 least developed countries, according to the WTO, yet a 2013 report from the organization noted that just $5 of every $100 spent in a developing country stayed in that destination…Among new developments, the Jordan Tourism Board created the Meaningful Travel Map of Jordan in March, highlighting 12 social enterprises in the country, including a Bedouin camp stay, a women’s weaving group and village tours that support local entrepreneurs”.

British Tourist Still In Prison

In Clarke-Billings, Brit jailed in Egypt for smuggling painkillers seen on camera for first time during prison prayers, msn (4/16/2018) it was noted that “A British woman jailed in Egypt for smuggling painkillers has been filmed taking part in prison prayers. Laura Plummer, from Hull, East Yorkshire, is currently serving a three-year sentence in Cairo’s notorious Al Qanater prison after she was found carrying 290 banned Tramadol pills into the resort of Hurghada in October last year. The 33-year-old told prosecutors the pills-which she claimed she did not know were banned-were for her husband Omar, but she was jailed for possessing the drugs on Boxing Day”.

Lead Less Selfish Lives, Please

In Mays, Prominent Law in Fight for Gay Rights Dies After Setting Himself on Fire in Prospect Park, nytimes (4/14/2018) it was noted that “A lawyer nationally known for being a champion of gay rights died after setting himself on fire in Prospect Park in Brooklyn early Saturday morning and leaving a note extorting people to lead less selfish lives as a way to protect the planet, the police said…”Pollution ravages the planet, oozing inhabitability via air, soil, water and weather’ he wrote in the email sent to The Times. ‘Most humans on the planet now breathe air made unhealthy by fossil fuels and may die early deaths as a result…In his note, which was received by The Times at 5:55 a.m., Mr. Buckel discussed the difficulty of improving the world even for those who make vigorous efforts to do so”. nytimes

Travel Law Case Of The Week

In the Ray case the Court made several findings of fact to include: “Ray was a 29-year-old female working two jobs in the food and beverage industry, volunteering at an acupuncture clinic and simultaneously pursuing advanced degrees in psychology and clinical counseling at The Citadel. Ray had never been on a sailboat before the day of the incident…57-year-old Lesniak was the owner, operator and captain of the sailboat Celadon on which the incident occurred. Lesniak is an experienced captain, who has 35 years of sailing experience-including 25 years of sailing experience in Charleston. He has captained ‘several hundred, maybe a thousand’ sailboat races…Operation of the sailboat during a race requires several crew members. Thirteen crew members and a number of guests were aboard on the day of the incident”.

Invited To Sailboat Race

“(O)n the day the incident…Ray was invited to a sailboat race by Colin Skinner (Skinner) who…was a crew member on the Celadon (and) had been sailing with Lesniak for ‘[r]oughly five years’…Lesniak authorized crew members to perform tasks during the race, including telling guests when and where to move during the course of the race…Ray had never been on a sailboat…She knew nothing about how a sailboat worked. Lesniak did not give safety instructions to any of the guests (nor did he) give any written instructions to guests…he did not have a written safety checklist or conduct a safety and operational briefing…there were no safety placards…stating that there were dangerous places to sit of the boat, such as ‘around any rope, boom’… Ray was late to the start of the boat ace and was given an abbreviated version of the ‘safety talk’ by crew members…Ray was seated on the deck of the Celadon, near the main sheet”.

‘Get More Neighborly’

“Before she was hit, Ray was given instructions by crew members to ‘get more neighborly’…(a) crew member…asked Ray…to ‘move back from the [main] sheet…There was no evidence presented that Ray knew what a ‘main sheet’ was…Crew Member (Becker) further testified that even after these warnings [“move up front, move forward’]. Ray ‘didn’t move’ and ‘the next thing’ Becker knew Ray was ‘down on the gutter’ of the boat”.

The Gybe

“Lesniak made the decision to gybe, which is the action that caused the main sheet to strike Ray. When the captain executes a gybe maneuver, as Lesniak did here, the main sheet moves across the deck of the boat…If Lesniak had waited to gybe or made sure that Ray was in a safe location, Ray would not have been hit by the main sheet, After Lesniak did the gybe maneuver, Ray was hit by the main sheet, the force of which threw her from her seated position over the deck of the boat…The main sheet carries a significant amount of pressure, ‘absolutely’ enough to cause a serious injury…Lesniak saw the main sheet strike Ray (who) was left with an abrasion on her forehead…After Ray was injured, Lesniak did not turn the boat around (but) continued with the boat race”.

Breach of Safety Protocol

“Ray stated that she ‘told where the lines were’ and where to sit…She was not warned that she ‘might get hit in the head with a boom or a rope or anything like that’. There were also no written instructions on the ‘hull or deck of the boat or bow or the stern, starboard side’…There was also no formal verbal safety briefing. Ray did not hear and ‘wouldn’t have understood’ any instructions on whether the boom or main sheet were going to swing during the course of the race”.

Plaintiff’s Expert

“Ray’s expert Captain Ken Wahl (Wahl)…opined that competitive sailboat racing ‘requires a large number of experienced crew to adequately handle the fast-paced activities normally observed during this often dangerous and close quarters style of competitive racing…’[o]nly highly experienced persons should be aboard for these events’…Wahl opined that Lesniak, who had captained hundreds of races, became ‘complacent’ by delegating the ‘safety orientation’ for guests to crew members. Wahl testified that when a boat race begins, ‘[t]ere’s some very dangerous places to be on board the boat…[a]nd it’s certainly not a safe place to be right near the main sheet’…Ray…was in a dangerous position…Simply telling a novice passenger like Ray who had never been on a sailboat to move was insufficient and a breach of safety protocol. Wahl further opined that it was a contravention of boat safety protocol for Lesniak to gybe while Ray was sitting next to the main sheet. Wahl offered suggestions on what safety protocol Lesniak should have followed in that scenario, such as ‘[d]elay the gybe, get somebody to move that person, tell them where to sit, where the safe spot is’ Lesniak did none of these things”.

Traumatic Brain Injury

“Within seven days of the incident, Ray began experiencing different symptoms-namely, debilitating nausea and headaches…Ray was referred to a neurologist who diagnosed Ray with a concussion…(Ray’s medical expert Dr. White) examined Ray and reviewed…medical records (and) testified that Ray has the symptoms of a concussion immediately following the incident…he observed that Ray had ‘heightened levels of anxiety, trepidation, moodiness…All of these symptoms of traumatic brain injury, according to Dr. White, were caused by the head trauma that Ray suffered during the incident…Ray’s traumatic brain injury is ‘permanent’”.

Conclusion Of Law

“Lesniak was negligent in doing a gybe maneuver when he and his crew members knew or should have known that Ray was sitting in front of the main sheet which is a dangerous place to sit. Prior to undertaking the gybe maneuver…Lesniak had a duty to () properly administer safety briefings to Ray that included where the safe places to sit on the boat were during the race; (2) warn Ray that the gybe maneuver was going to be undertaken; (3) not gybe until Ray was no longer sitting in front of the main sheet and (4) not hit Ray with the main sheet rope during the gybe maneuver. A failure to follow safety precautions…was a breach of Lesniak’s duty to Ray…it was completely foreseeable to Lesniak that Ray could be injured by his failure to warn that the gybe maneuver was going to be undertaken…Lesniak’s negligence was a proximate cause of Ray’s injuries, but for this beach of duty, Ray’s injuries would not have occurred”.

Ray’s Award

“Based on the foregoing it is ordered that judgment be entered for Ray against Lesniak in the sum of…$958,758.15 plus prejudgment interest in the amount of…$22,952.44 and post-judgment interest at the legal rate from the date of this order”.

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.

Read the full article: https://www.eturbonews.com/184944/volunteer-crew-member-on-racing-sailboat-struck-by-main-sheet

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