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Minor cruise passenger dies from tainted food: Who is liable?

Minor cruise passenger dies from tainted food: Who is liable?

In this week’s article, we discuss the case of Martins v. Royal Caribbean Cruises, Ltd., 2016 U.S. Dist. LEXIS 152686 (S.D. Fla. 2016). “This matter arises from the death of Briana Martins (‘Briana’), a seventeen-year old resident of New Jersey, aboard the vessel Explorer of the Seas, operated by Defendant Royal Caribbean Cruises, Ltd. (‘RCCL’) in August 2013. Plaintiffs allege that Briana’s death was caused by the ingestion of bacteria-ridden food aboard the Explorer of the Seas, that the shipboard medical staff negligently treated Briana’s illness and that, individually, Maria, Costa, G.E. and Tatiana (the family) suffered extreme emotional distress because of RCCL’s negligence”.

Terror Targets Update

Jerusalem, Israel

In Kershner, Deadly Violence Erupts in Standoff Over Mosque in Jerusalem, (7/21/2017) it was noted that “Six people were killed on Friday in an outbreak of violence that erupted over Israel’s placement of metal detectors at entrances to the sacred Aqsa Mosque compound in Jerusalem and spread to the West Bank. Three Israelis were killed in what appeared to be a terrorist attack in a West Bank settlement, hours after three Palestinians were killed in clashes with Israeli security forces”. Kershner, Israel Agrees to Remove Metal Detectors at Entrances to Aqsa Mosque Compound, (7/24/2017) it was noted that “After days of violent protests, bloodshed and a diplomatic crisis with Jordon over the placement of metal detectors at the entrance of the Aqsa Mosque Compound in Jerusalem’s Old City, the Israeli government said early Tuesday it would remove them”.

Lahore, Pakistan

In Pakistan suicide bomber kills dozens, (7/24/2017) it was noted that “A suicide bomber struck near a police team in the eastern city of Lahore Monday killing at least 26 and wounding another 53, many of them police officers. An outlawed Taliban faction claimed responsibility”.

Schaffhausen, Switzerland

In Armed assailant attacks 5 people in Switzerland, police launch manhunt, (7/24/2017) it was noted that “A manhunt is underway in the Swiss town of Schaffhausen after an armed assailant injured five people, two seriously, in a violent attack”.


In Boko Haram attack on oil exploration team in Nigeria kills over 50: Sources, (7/28/2017) it was noted that “An ambush attack by Boko Haram terrorists in Nigeria against an oil exploration team has killed more than 50 people”

Turkey Losing Its Head

In All those responsible for failed coup will be beheaded: Erdogan, (7/16/2017) it was noted that “Addressing a thousand-strong march on Saturday, Erdogan warned that his government was seriously mulling reintroducing the death penalty. “First of all, we will chop off the heads of those traitors” he said.

Germans Urged To Stay Away From Turkey

In Kingsley & Eddy, Turkey’s Erdogan Refuses to Back Down in Feud With Germany, (7/21/2017) it was noted that “President…Erdogan of Turkey raised the stakes in a long running diplomatic spat with Germany on Friday, dismissing the threat of an informal German economic embargo and rejected calls to release several German citizens held in Turkish jails….The German foreign, finance and justice ministers advised Germans against traveling to or conducting business in Turkey…Germany is Turkey’s main trading partner, and more than 3.3 million German tourists visited Turkey last year”.

Turkish Lira Crumbling

In Segal, Turkey Sees Foes at Work in Gold Mines, Cafes and ‘Smurf Village’, (7/22/2017) it was noted that “a nationwide series of confiscations that began soon after a failed attempt to overthrow the government of President Recap Tayyip Erdogan on July 15 last year. Since then, more than 950 companies have been expropriated…About $11 billion worth of corporate assets-from small chains to large publicly traded conglomerates-have been grabbed by the government…The Turkish lira is crumbling and foreign investment has dropped by half compared with last year. All three of the major rating agencies have downgraded the government’s debt to junk status”

United Learns To Behave

In Stewart, The Boycott That Wasn’t: How United Weathered a Media Firestorm, (7/27/2017) it was noted that “the airline has put in a host of recent, post-Dao changes aimed at customer satisfaction…Besides the free meals and drinks in Economy Plus, United is now offering up to $10,000 in compensation for passengers who give up their seats on overbooked flights. These issues will be resolved before boarding so no one gets dragged off after taking an assigned seat. (United said ‘involuntary denied boardings’ had dropped 88 percent in June from a year earlier). When the airline loses luggage, customers will no longer have to provide receipts to prove the value of what was in it. The airline will provide up to $1,500 in compensation, no questions asked”.

United And A Dead Giant Rabbit

In United Airlines sued over giant rabbit’s death, (7/26/2017) it was noted that “A group of Iowa businessmen filed a lawsuit Wednesday against United Airlines over the death of a giant rabbit after a flight from London to Chicago…the lawsuit (was filed) more than three months after airline workers found the continental rabbit named Simon dead on April 20. The animal had been placed in a United kennel in Chicago’s O’Hare airport awaiting a connecting flight to Kansas City”.

United Airlines Fights Back

In Zumbach, United Airlines wins suit against founder of complaint site, (6/26/2017) it was noted that “United Airlines has won a lawsuit against a Canadian professor who for the past 20 years has cataloged complaints against the airline on A judge in Canada’s Federal Court in Ottawa, Ontario, on Friday found the website violates the Chicago-based airline’s trademarks and copyright and granted United an injunction preventing Jeremy Cooperstock, who runs the website, from using the airline’s intellectual property”.

United At War

In Zhang, IT’S WAR: United Airlines president slams Frontier after $39 ticket announcement and vows ‘United will win’, (7/20/2017) it was noted that “On Wednesday, United Airlines president Scott Kirby weighed in on Frontier Airlines’ plan to double the number of its routes and return to a network business model. (Frontier also included a limited time offer of $39 tickets in its announcement)…Kirby sees Frontier’s move as a sign that its point-to-point model has failed to hold up when exposed to price competition from large network carriers through products like basic economy fares”.

Infrastructure Grants To Airports

In US DOT and FAA announce $290.6 million in infrastructure grants to 105 airports, (7/17/2017) it was noted that “The airport grant program funds various types of airport infrastructure projects, including runways, taxiways, and airport signage, lighting and markings which help to create thousands of jobs. ‘AIP grants will allow airports to complete critical airport infrastructure projects that will help maintain the safety of the nation’s airports’, said FAA Administrator Michael P. Huerta”.

Being Squished Beyond Belief

In Intel, Unbelievable News, Conde Nast Traveler (8/2017) it was noted that “Prepare to be squished beyond belief. American is about to cram seats even closer together in an effort to sell more tickets. The ‘seat pitch’ or distance between a point on one seat and the same on another, will shrink from 31 inches to 29 in some rows of the airline’s new 737 planes (makes you really appreciate JetBlue and its dignified 33 inches). There’s more. The bathrooms on these new jets will be smaller too. Not cool American. Not cool”.

Airlines So Sorry, Indeed

In Vora, Why Your Airline Says Its Sorry, (7/13/2017) it was noted that “Air carriers have become more apologetic in the wake of the viral video spawned by that last episode, but those quick requests have not led to broad systemic change in policy toward customers. Even as customer complaints against them soar, the airlines often respond with a quick refund or voucher, an apology that grabs headlines in a local news outlet, and business as usual. Some compensation policies for bumping passengers are more generous, but the main impact on consumers has been a seemingly never-ending stream of apologies that are a catalog of consumer relations gone awry”.

Train Crash In Barcelona

In At least 48 people injured in Barcelona train crash, (7/28/2017) it was noted that “A train crash in Barcelona’s Francis station has injured 48 people, with no deaths reported…At least 18 of the injured need hospital attention, with five seriously injured”.

Kayak Drowning

In Rojas, Woman Pleads Guilty in Fiancé’s Kayak Death on Hudson River, (7/24/2017), it was noted that “A woman accused of killing her fiancé by tampering with his kayak and then leaving him to drown in the cold and choppy waters of the Hudson River pleaded guilty on Monday to a reduced charge of criminally negligent homicide…Prosecutors described how a seemingly doting partner desperately called 911 for help after her finance disappeared only to tell investigators later that it ‘felt good knowing he was going to die’”.

Fire Ball Accident

In 1 Killed, 7 injured after Ohio State Fair ride malfunctions, (7/27/ 2017) it was noted that “An 18-year man has died and at least seven other people aged 13-41 are injured, some critically, following a disaster aboard the Fire Ball ‘thrill ride’ at the Ohio State Fair”.

Louisville Hotel Hacked

In Louisville hotel notifies guests of ‘payment card cyber security incident’, ( 7/26/2017) it was noted that “Today, the Galt House announced that has addressed an incident involving unauthorized access to its payment card system…its investigation determined that malware had been installed on its payment card processing system that copies some guest’s payment card data, including the cardholder’s names, payment card account numbers, card expiration dates and verification codes”

Hotel Wi-Fi-Be Careful

In Steinmetz, Using Hotel Wi-Fi-think again, (7/25/2017) it was noted that “Staying in Hotels and using complimentary Hotel Internet. The DarkHotel group has been covering its tracks so well that researchers have no idea who they are or what their intentions might truly be. Cyber thieves may be looking to compromise your computer, especially if you’re a high-priority target staying at luxury hotels around the globe…The hackers apparently target specific guests, including CEOs and high-ranking corporate officials”.

Plastics, Anyone?

In Schlossberg, The Immense, Eternal Footprint Humanity Leaves on Earth: Plastics, (7/19/2-17) it was noted that “If human civilization were to be destroyed and its cities wiped off the map, there would be an easy way for future intelligent life-forms to know when the mid-20th century began: plastic. From the 1950s to today, 8.3 billion metric tons of plastics have been produced, with around half of it made since 2004. And since plastic does not naturally degrade, the billions of tons sitting in landfills, floating in the oceans or piling up on city streets will provide a marker if later civilizations ever want to classify our era”.

Disney Employees Underpaid?

Kin Velasco, Disney under fire for pay: Cinderella is homeless, Ariel ‘can’t afford to live on land’. (7/22/2017) it was noted that “‘Disney, we feel, is a contributor to the homeless problem here in Anaheim’, said protest organizer Jeanine Robbins, a longtime local resident. ‘There are Disney employees who live on the street. They live in their cars. They live in unstable housing’…The largest employer in Orange County, Disneyland is located in one of the most expensive metro housing markets in the U.S.”.

Disneyland Applicants Sue

In Simpson, Disneyland Applicants Win Cert. In Background Check Suit, (7/14/2017) it was noted that “A California judge on Thursday certified two classes of prospective Disneyland employees who allege that company violated the Fair Credit Reporting Act by not giving them copies of their background checks before making a decision on their employment, depriving them of an opportunity to contest an inaccurate report”.

Disney Characters Sue

In Simpson, Disney Sued For Unpaid Costume Dress Time, Rounded Hours, (7/20/2017) it was noted that “Walt Disney Parks & Resorts US Inc. failed to pay non-exempt workers for the time they spent getting into their costumes, rounded hourly wages unfairly and didn’t provide employees with accurate wage statements, according to a putative class action removed to California federal court on Thursday”.

Surviving Blockbuster Summer

In Rosenbloom, How To Survive The Blockbuster Summer Travel Season, (6/26/2017) it was noted that “It’s shaping up to be a record-breaking year for summer travel. Airlines for America, an industry trade group, is expecting about 234 million passengers to travel worldwide on United States airlines between June and the end of August, the highest number ever, and up 4 percent over last summer…At the same time, the vacation rental site Airbnb is projecting that this will be the biggest summer to date by a wide margin. Despite recent world events, more Americans than ever plan to go abroad. The State Department is expecting an unprecedented 20 million passport applications this year…a little preparation can make all the difference. Below a guide to what you need to know for (relatively) smooth summer travel, including what local laws about car- and ride-sharing are, if rules about laptops on airplanes have changed, how to get travel and weather alerts, and whether insurance policies cover events such as terrorist attacks”.

Self-Driving Cars In Washington

In Roose, As Self-Driving Cars Near, Washington Plays Catch-Up, (7/21/2017) it was noted that “Self-driving cars are zooming at breakneck speed toward America’s roadways, and Washington is finally reaching for its seatbelt. For years, the race to create fully autonomous vehicles went mostly unnoticed for federal lawmakers, who tended to speak of self-driving cars (if the spoke of them at all) as something out of ‘The Jetsons’. It was an odd blind spot, given how close companies in Silicon Valley and Detroit were to creating mass-market autonomous vehicles and how many important industries-taxi driving, long-haul trucking and shipping among them-stood to be drastically transformed as a result. But now, lawmakers are taking cautious steps toward the driverless future…But self-driving cars have been praised by members of both parties, who see the technology as a way to spur job creation while preventing many of the roughly 40,000 motor vehicle deaths that occur on American roads each year. According to the National Highway Traffic Safety Administration, 94 percent of traffic deaths involve human error, including distracted driving and driving while intoxicated”.”.

Lyft To Develop Self-Driving Car

In Isaac, Lyft to Develop Self-Driving Car Technology in New Silicon Valley Facility, (7/21/2017) it was noted that “Controlling the future of the smartphone was the defining technology battle of the last decade. Now, technology companies are betting that the next 10 years and beyond will be spent battling for control of the self-driving automobile. On Friday, Lyft, the ride-hailing company, announced that it was developing its own self-driving technology, marking yet another company’s gamble that the future of transportation will be marked by self-driving cars”.

Lyft Gets A Big Lift

In Roose, As Uber Stumbles, Lyft Sees an Opening, and Bites Its Tongue, (6/27/2017) it was noted that “John Zimmer, the co-founder and president of Lyft, wants you to know that he is not…happy about the chaos that is enveloping Uber, his fiercest rival in the ride-sharing market…Lyft’s refusal to gloat publicly over the misfortune of the Competitor-Who-Must-Not-Be-Named is a savvy maneuver from a company that has spent years positioning itself as the friendly, laid-back alternative to Uber’s cutthroat corporate ethos. Lyft began cultivating a reputation for kindness years ago, when it affixed quirky pink mustaches to driver’s cars and encouraged them to fist-bump their passengers, and it has continued with feel-good marketing and an emphasis on driver-friendly policies”.

Uber, Please Spy For Us

In Walsh, Dilemma for Uber and Rival: Egypt’s Demand for Data on Riders, (6/10/2017) it was noted that “As Uber sought this year to expand in Egypt, one of the most competitive ride-sharing markets, its executives faced a troubling request from Egyptian ministers: Could they provide access to heaven? ‘Heaven’ is Uber’s term for an internal software that provides live data about customers, drivers and journeys-in effect, it tracks any Uber ride across a giant digital map. That software would a powerful tool in the hands of Egypt’s security services…Uber rejected the Egyptian demand (as did Uber’s chief competitor in Egypt) the Dubai-based Careem, which operates in 55 cities, has similar tracking software and serves three million Egyptians”.

Uber And Disabled Riders

In Hu, Uber Discriminates Against Riders With Disabilities, Suit Says, (7/18/2017) it was noted that “Ms. Joseph is part of a class-action accusing Uber of discriminating against New York City riders with disabilities by providing scant access to wheelchair accessible cars at a time when ride-hailing apps are becoming a common alternative to public transit in the city. The lawsuit was filed on Tuesday in State Supreme Court in Manhattan by Disability Rights Advocates, a nonprofit organization…Today, there are 1,859 yellow taxis and 655 green taxis, which primarily serve northern Manhattan and the other boroughs, that are wheelchair accessible, Last week, the city’s Taxi and Limousine Commission proposed broad new requirements for wheel-chair-accessible service for the entire for-hire industry, which would include Uber and the other ride-hail companies…Alix Anfang, a spokeswoman for Uber, said the company had already voluntarily taken steps to serve rides with disabilities. In 2016, it started a pilot program for wheelchair-accessible cars that has since expanded to nearly 200 vehicles”.

No Paid Pet sitting In Homes, Please

In Nir, Paid Pet sitting in Homes Is Illegal in New York. That’s News to Some Sitters, (7/21/2017) it was noted that “According to long established but little-noticed regulations of the city’s Department of Health and Mental Hygiene, anyone offering pet sitting for pay must be licensed to board animals, and do so in a permitted kennel. Running such a kennel out of a home is not allowed in the city. Though on the books for years, the rules have lingered mostly in obscurity and are heeded by New Yorkers about as much as don’t’ walk signs are. Summonses for breaking the pet sitting rules are rarely issued, according to the health department”.

Ritz-Carlton Launches A Cruise Ship

In Ekstein, Ritz-Carlton launching cruise line in industry-first brand expansion, (6/24/2017) it was noted that “‘You gave to diversify your business’ (said) Ritz-Carlton Chief Executive Herve Humler. After successful expansions into branded residences and six-star resorts…Humler says there were ample data to support a cruise venture. One key statistic he says, is that the cruise sector has expanded by an average of 8.5 percent each year since 1981. For all that rise in demand, there have been few new ships on the ultra-premium spectrum=and many are small=scale operations that hold fewer than 300 passengers. This, combined with company-supplied data claiming that 400,000 Ritz-Carlton guests are cruisers, means there’s both a built-in customer base and a solid marketing opportunity at play”.

UK Crime Rate Soars

In UK crime rate rises at fastest pace in 10 years, (7/21/2017) it was noted that “Nearly five million crimes were reported to police across England and Wales between April 2016 and March 2017, a 10 percent increase, according to data by the Office for National Statistics (ONS). Violent crime rose 18 percent, robbery 16 percent and sex offences 14 percent”.

Pilgrim Bus Crash In India

In 16 Pilgrims killed in India bus crash: police, (7/16/2017) it was noted that “At least 16 Hindu pilgrims were killed and many more injured Sunday after a bus crash in India’s northern Jammu and Kashmir state”.

Time-Share Owners Against Marriott

In Hanson, Time-Share Owners Bash Marriott New-Law ‘Ploy’ To Toss Suit, (6/29/2017) it was noted that “Time-share purchasers accusing Marriott and a title insurance company of duping them into invalid real estate deals have rebuffed the hotelier’s attempt to use a new state-law amendment to toss the suit, telling a Florida federal court Wednesday the measure was pushed through the Legislature specifically as a defense tactic…(The lawsuit is Lennen v. Marriott Ownership Resorts Inc., case number 6:16-cv-00855 (M.D. Fla.)). The Lennen’s suit, filed in May 2016, accuses the Marriott companies…of carrying out a scheme that deceived points-based time-share purchasers into invalid and illusory real estate interests”.

Travel Law Case Of The Week

In granting the summary judgment motion of RCCL, in part, the Court noted that RCCL’s motion asserts the following theories: (1) “RCCL is entitled to summary judgment on Count I because it cannot be held vicariously liable for any negligence committed by the ship’s doctors and nurses because they were not employees or actual agents of RCCL and Plaintiffs cannot prove that Briana’s symptoms and death were caused by Salmonella contracted on the ship; (2) RCCL is entitled to summary on Count II because the doctors and nurses were not acting as apparent agents; (3)RCCL is entitled to summary judgment on both Counts I and II because the Death on the Hugh Seas Act (DOHSA) is inapplicable to Plaintiffs; and (4) RCCL is entitled to summary judgment on Counts IV through VII because Plaintiffs cannot survive the applicable ‘zone of danger’ test used to evaluate a plaintiff who has not sustained a physical impact as a result of defendant’s negligence”.

Independent Contractors Or “Borrowed Servants”

“RCCL contends that the two doctors were independent contractors and that the two nurses, who were RCCL employees, were actually ‘borrowed servants’ of the two doctors. It focuses on the ‘Independent Contractor Senior Physician Agreement’. To be sure, this agreement does in fact designate the two doctors as independent contractors, but the Undersigned concludes that there are other facts a jury may consider that could suggest otherwise. Typically, the issue of whether a person is an employee or independent contractor is a question of fact for the jury.”

The Agreement

“The Agreement contains other provisions which could support a conclusion that the doctors were actually employees. For example, section 1(h) mandates that shipboard physicians be present in medical facility according to the hours established by (RCCL), as well being ‘on call’ 24/7 for any medical emergencies outside those designated clinic hors. Section 1(h) also mandates that either Dr. Hamilton or Del Rosario must be on the vessel at all times. This Section even orders Drs. Hamilton and Del Rosario to request permission of the master before being permitted to go ashore”.

RCCL’s Control Of The Medical Staff

“This right to control is key in determining whether the Doctors are considered employees or independent contractors (citing Franza v. Royal Caribbean Cruises, Ltd., 772 F. 3d 1225 (11th Cir. 2014))…RCCL dictated which of Defendant’s vessels ships Drs. Hamilton and Del Rosario would serve on as the ship’s physicians, the hours that (they) were employed, the uniform that they would wear, and the amount that it charged to passengers for (their) medical services.”

Medical Equipment & Standards

“RCCL also managed the medical equipment in the medical center and every aspect of medical operations in their entire fleet and shore side operations via eSeaCare…Defendant secured and pad for malpractice insurance (for the Doctors)…Defendant mandated compliance by (the Doctors) with Defendant’s SQM, which was a set of governing rules, standards, policies and procedures and protocols for the medical treatment and care provided to passengers and medical evacuations of passengers aboard the Explorer of the Seas. Defendant’s SQM prohibited (the Doctors) from turning away any passenger who needed medical care. Defendant conducted internal audits of the medical center equipment logs to make sure the medical center equipment was properly cleaned and maintained to make sure the supplies that were being purchased were not abused and were used in accordance with what was being billed…the decision to disembark a passenger is made by the vessel’s captain and the shipboard physician”.

Vicarious Liability

“An entity that employs a physician is subject to vicarious liability for that physician-employee’s malpractice if the negligent act was committed in the course and scope of the employment (citing Franza, supra)…The fact that the employer does not control the medical judgment of the physician does not negate the employer’s liability. The fact that the passenger ticket contract may call the physician an ‘independent contractor’ does not negate the employer’s liability since the physician’s status depends upon not on the statements of the panties but upon all the circumstances of their dealings with each other”

Income Taxes

“RCCL notes that it did withhold income taxes, social insurance taxes or any other kind of tax from the compensation of (the Doctors) pursuant to their continuously renewed 6-month contracts. However, in Fair Labor Standards Act (FLSA) cases, courts have held the characterization of someone as an employee or independent contractor for tax purposes is not relevant in determining whether one is an independent contractor or an employee covered by the FLSA…A jury could surely conclude that the doctors were, in fact, independent contractors. But…[a] jury could also conclude that they were employees. So (the Court) rejects this RCCL summary judgment argument”.


“RCCL…contends (that) Plaintiffs have not, and cannot, prove that Briana’s symptoms and death were caused by Salmonella food poisoning contracted on the ship…Plaintiffs begin their opposition on this point with a simple, logical argument: if Briana had food borne salmonella at the time of death, then she had to have contracted it during Defendant’s cruise itinerary …Plaintiffs all testified that during the cruise itinerary Briana ate food provided only by Defendant on the ship…Plaintiffs stress that Briana’s mother placed Brian’s diarrhea-stained underwear in a plastic bag, sealed the bag and later produced it for expert testing. Plaintiffs point to the expert opinion of Dr. Raul Cano, who they say determined within a reasonable degree of scientific probability that the stains in Briana’s underwear contained Salmonella at levels indicating that she likely was infected with Salmonellosis. They also underscore the opinions of Dr. Robert Boorstein, a board-certified pathologist, who opined that the autopsied tissue findings were consistent with an infectious and inflammatory process and further opined that Briana likely had a bacterial infection caused by the Salmonella. Dr. Boorstein also concluded that the Salmonella illness which as causing symptoms in Briana was linked directly to your ingestion of a food borne pathogen in the 12-72 hours before the onset of her symptoms, the time when she was on the cruise”.


While the Court also explored other liability theories such apparent authority, the scope of DOHSA and the adequacy of claimed pecuniary loss and the zone of danger, the Court made it clear that RCCL’s summary judgment motion was denied, in part.

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 For additional travel law news and developments, especially, in the member states of the EU see

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