Zip-lining accident in Costa Rica – Is cruise ship liable?

In this week’s article, we examine the case of Wolf v. Celebrity Cruises, 2017 U.S. App. LEXIS 5348 (11th Cir. 2017) wherein the Court noted that “Brent Wolf sued OCT Enterprises, Ltd., doing business as The Original Canopy Tour, and Celebrity Cruises, Inc., after being injured during an offshore zip-lining excursion. He appeals two district court orders-one dismissing the claims against OCT for lack of personal jurisdiction, and the other granting summary judgment in favor of Celebrity. After a thorough review of the parties’ briefs, the record…we affirm both orders”.

Stay Away From Kashmir, Please

In Violent anti-India protests keeping tourists away from Kashmir, etn.travel (4/29/2017) it was noted that “The violence since last summer, largely in the form of Indian troops firing on civilian crowds with shotguns after protesters throw stones, has left 84 civilians dead and more than 12,000 civilians and security force personnel wounded, Alazeera reported”.

Turkey In Chaos

In Kingsley, Turkey Purges 4,000 More Officials, and Blocks Wikipedia, nytimes.com (4/30/2017) it was noted that “The Turkish government expanded its crackdown on dissent and free expression over the weekend, purging nearly 4,000 more public officials, blocking access to Wikipedia and banning television matchmaking shows…The dismissals mean that an estimated 140,000 people have now been purged from the state and private sectors and more than 1,500 civil groups closed, since a failed coup last year”

Mass Die-Off of Whales

In Schlossberg, Mass Die-Off of Whales in Atlantic Is Being Investigated, nytimes.com (4/27/2017) it was noted that “Humpback whales have been dying in extraordinary numbers along the Eastern Seaboard since the beginning of last year. Marine biologists have a term for it-an ‘unusual mortality event’-but they have no firm ideas why it is happening. Forty-one whales have died in the past 15 months along the Atlantic coast from North Carolina to Maine…10 of the whales are known to have been killed by collisions with ships…Around the world there are an estimated 30,000 to 40,000 humpback whales about a third of its original population”.

Uber Watch Out For Didi Chuxing

In Mozur, With New Funding, Didi Chuxing, an Uber Rival, Looks Beyond China, it was noted that “When Uber pulled out of China last summer, it appeared to be the end of two years of frenzied competition with the local rival Didi Chuxing. Yet with a new funding round that has brought in $5.5 billion, it seems the Chinese firm wants to take the rivalry global. The investment…values the company at about $50 billion…The new financing could bring Didi Chuxing into competition with Uber: Analysts expect the Chinese company to use the funds to push into new markets and to develop autonomous driving technologies”.

The Magic Pipe Nets $1 Million

In Reisinger, Cruise Ship Whistleblower Sails Off With Million-Dollar Reward, dailybusinessreview.com (4/20/2017) it was noted that “Christopher Keays, a native of Scotland, was 27 years old and fresh out of the maritime academy in the summer of 2013 when he got “the chance of a lifetime’ to work on a ship as a junior engineer with the Caribbean Princess. Today he is a millionaire. A federal judge in Miami awarded Keays $1 million Wednesday for blowing the whistle on the Princess Cruise Lines’ illegal dumping of oily waste into the ocean. As part of a plea agreement, U.S. District Judge Patricia Seitz also ordered the company to pay a $40 million penalty-the largest ever levied for crimes involving deliberate vessel pollution…The cruise lines also falsified logs, dismantled evidence and instructed crew members to lie to investigators, according to court documents, including the cruise lines’ admissions to the court in its plea memo…(The Judge) also placed the cruise lines on five years’ probation under a corporate monitor…the company must make extensive environmental and compliance reforms throughout its ships…According to court documents, Keays discovered and videotaped a ‘magic pipe’ that was illegally discharging oily waste water while clean water was being pumped overboard through another mechanism in order to fool the computer and cover up the illegal act”.

The Met: Non-Residents Get Ready To Pay

In Pogrebin, The Met Files a Formal Proposal to Charge Admission to Out-of-State Visitors, nytimes.com (5/5/2017) it was noted that “The Metropolitan Museum of Art has moved one step closer to mandatory admission fees: It filed a formal proposal with the city this week to charge admission to out-of-state visitors…a controversial idea given the Met is in part supported by tax dollars and currently has only ‘suggested’ entrance fee. The suggested fee would be ‘only for residents of the City of New York and New York State’…’For everyone else, the admission would be mandatory’…Facing a deficit that it now about $15 million, the Met has been looking to raise revenue in addition to cutting costs. Money from admission fees would help provide reliable income, though some say it might jeopardize the city’s annual support to the museum which is currently about $26 million. The Met’s current ‘suggested’ admissions fee, $25 for adults, generated about $39 million in the fiscal year 2016, or 13 percent of the museum’s overall revenue. A mandatory fee would be likely to generate tens of millions of dollars more a year”. For more details see our article Metropolitan Museum of Art’s “Pay What You Wish” class action-proposed settlement, www.eturbonews.com (1/4/2017).

Flying Cars, Anyone?

In Markoff, No Longer a Dream: Silicon Valley Takes On The Flying Car, nytimes.com (4/24. 2017) it was noted that “This isn’t science fiction. A number of start-ups as well as big aerospace firms are trying to build personal aircraft you can fly around town…On a recent afternoon, an aerospace engineer working for a small Silicon Valley company called Kitty Hawk piloted a flying car above a scenic lake about 100 miles north of San Francisco. Kitty Hawk’s flying car…was an open-seated, 220-pound contraption with room for one person, powered by eight battery-powered propellers that howled as loudly as a speedboat. The tech industry…is fond of disrupting things, and lately the automakers have been a big target. Cars that use artificial intelligence to drive themselves, for example, have been in development for a few years and can be spotted on roads in a number of cities. And now, coming onto the radar screen, are flying machines that do not exactly look like your father’s Buick with wings”.

Autonomous Vehicle Testing In New York

In Stashenko, Autonomous Vehicle Testing Gets Green Light in NY, therecorder.com (4/24/2017) it was noted that “New York’s new budget waives a law prohibiting driverless vehicles, in a move that Gov. Andrew Cuomo hopes will help power up a new industry in the state. The provisions allow a one-year testing program of self-driving and self-parking vehicle technology on public roadways under direct supervision of the New York State Police. The legislation requires that the autonomous vehicles carry a minimum of $5 million in insurance coverage…Cuomo said he wanted the provision in the budget along with the authorization to expand ride-sharing outside of New York City… because he believes there are certain high-tech, college-based research centers already in the state, such as in Utica and Albany where work on autonomous vehicles could lead to viable commercial development”.

Travelers “Held Hostage” In Cancun

In Jewish travelers claim they were ‘held hostage’ by Cancun hotel in bill dispute, Yucatan Times (4/23/2017) it was noted that “About 550 U.S. travelers who claim they were ‘held hostage’ by a Cancun hotel over allegedly unpaid bills are back from their highly problematic Jewish holiday in Cancun, and they’re creating cyber-support groups on Facebook, What’s App and Jewish community forums such as DansDeals.com. The Jewish Forward newspaper reports they are swapping war stories about what was supposed to be a luxurious Passover trip, run by a travel outfit called Passover Paradise. The final straw was that program guests staying at the Royalton Cancun Hotel & Resort were detained by hotel staff on April 19 as they tried to check out-they were given bills for what was supposed to an entirely pre-paid stay…’The hotel was the best part of this program’ said Mr. X who attended the trip with his family…’The first night Sedar, there was no matzo, no shmura matzo. There was a line of people at the door of the kitchen, fistfights, trying to get three matzos per table’…According to numerous guests, the program co-owner left the hotel at 4 a.m. to avoid paying a large bill, thereby leaving the guests to respond to requests from the hotel for payment…When guests attempted to check out of the Royalton Riviera…they were told they couldn’t leave until they paid tens of thousands of dollars each…A lawyer’s letter convinced the hotel management to let their people go”.

Travel Search Sites

In Peterson, Which Travel Search Site Is Best? It Depends on Your Goals, nytimes.com (4/18/2017) it was noted that “In the beginning you called an airline or travel agent when you wanted to book a trip. But if you’ve done any raveling at all within the last 15 years, you’ve probably come across a fare aggregator or metasearch site. Hundreds of perfectly legitimate ones exist; you’ve undoubtedly heard of Expedia, Priceline and Hotwire, to name three. Does it matter which site you use, or are they all basically the same? These online travel agencies, or OTAs and search sites scrape data from other sources, reorganized it and present it to you, the user. The two proverbial 800-pound gorillas in the travel world are Expedia Inc. And the Priceline Group. Together, they have a hand in most of the major travel booking sites”. Comparison of Travelocity, Kayak and Hipmunk in obtaining information and prices for flights, hotels and packages.

Uber In France

In Griffin, France, Uber Argue Over Definitions of Transport Services, jdjournal.com (4/24/2017) it was noted that “Uber claims they are a digital service. France believes they are a transport service. The U.S. ride-hailing app company went before the top court in Europe after only being in the country five years, trying to explain that they cater to digital users over all else. Uber is also claiming that a French law targets online taxi services. Uber has faced a tough legal battle in their attempt at redefining taxi services to an online service…A French law in 2014 placed limits on taxis and chauffeured services. It is now a criminal offense to organize illegal taxi services, placing restrictions on the ability of using software to find riders in the street. Uber finds the law to be targeted solely against online services…Uber is) banned in several countries and cities throughout Europe after losing lawsuits in Spain, Belgium, Germany and France. Uber also has a case that the court will rule on regarding their classification in Barcelona. The main taxi operator in the country has asked the ECJ to decide if Uber is a digital or transport service”.

Travel Law Case Of The Week

“In October of 2012, Mr. Wolf, his wife, Patricia Cannon, and a friend of their, Beverly Falor, set sail as passengers aboard the Celebrity Infinity. Ms. Cannon purchased cruise tickets for herself and Mr. Wolf through a travel agent. Mr. Wolf received a cruise ticket contract which stated that ’providers, owners and operators’ of shore excursions and tours ‘are independent operators and are not acting as [Celebrity’s] agents or representatives’. Mr. Wolf and Mrs. Falor purchased tickets at the shore excursion desk onboard the Infinity to participate in a zip-lining activity on a private nature reserve in Costa Rica on October 15, 2012. Those tickets stated again that providers of shore excursion and tours ‘are independent contractors and are not acting [Celebrity’s] agents or representatives’. Mr. Wolf signed a liability waiver; provided by OCT, which stated that the zip-line excursion was owned and operated by OCT”.

Smashing Into A Platform

“The zip-lining tour consisted of ten observation platforms and nine horizontal traverses. On one of the traverses, Mr. Wolf failed to stop or otherwise slow down near the end of the zip-line and slammed into a platform. He suffered severe injuries, including an avulsion of his calf muscle on his left leg. Mr. Wolf asserts that he had spun backwards during the traverse and could not see the platform as he approached it. He maintains that he was unaware of how to turn himself around because OCT personnel had not instructed him on how to do so. He also claims that he was unable to slow down because the leather gloves provided by OCT were not thick enough, and that a bumper was missing from the landing platform he crashed into”.

The Complaint

“In the complaint, Mr. Wolf asserted negligence claims against OCT and claims against Celebrity under theories of direct and vicarious liability. He alleged that Celebrity was negligent in failing to warn him of a dangerous condition and negligent in hiring and retaining OCT. He also claimed that Celebrity was liable for OCT’s alleged negligence under theories of actual agency, apparent agency, and joint venture. He further asserted that he was the intended beneficiary of the contract between Celebrity and OCT, and that Celebrity had breached its contractual duties to him”.

General Jurisdiction

“Mr. Wolf asserted that OCT is subject to personal jurisdiction under both the general specific jurisdiction provisions of the Florida long-arm statute…We begin with general jurisdiction…To the extent Mr. Wolf asserts that the Miami address listed on the Tour Operator Agreement would establish general jurisdiction, OCT sufficiently rebutted this contention (in that) this address is merely a mail-forwarding facility used because of the unreliable mail system in Costa Rica…To the extent that Mr. Wolf suggests that The Original Canopy Tour-USA, LLC as a subsidiary or otherwise related entity, would establish jurisdiction, he has made no argument as to how this connection is ‘so substantial’ as to make it one of the ‘exceptional’ cases in which a foreign corporation is ‘at home’ in a forum other than its place of incorporation or principal place of business’”.

Specific Jurisdiction

“Mr. Wolf does not allege that OCT committed a tortious act in Florida and cannot assert specific jurisdiction based on any tort claims related to the incident that occurred in Costa Rica. He instead argues that specific jurisdiction is established through language in the Tour Operator Agreement executed in Miami, Florida between OCT and Celebrity, of which he and other passengers are purportedly direct third-party beneficiaries. As discussed below, however, Mt. Wolf’s claim of breach of contract based on a third-party beneficiary theory fails because the language of the Agreement expressly belies any intent to benefit a third party. Because the alleged tortious activity occurred outside of Florida, and there is no convexity between the Agreement and Mr. Wolf’s cause of action (there is) specific personal jurisdiction over OCT”.

Duty To Warn

“Mr. Wolf first contends that Celebrity owed him a duty to exercise reasonable care to warn him of any dangerous conditions which may have existed with regard to the shore excursion. We hold that, on this record, Celebrity had no notice of a dangerous condition, and, absent notice, held no such duty…A shipowner generally owes to its passengers a duty to exercise ‘reasonable care under the circumstances” (citing Franza v. Royal Caribbean Cruises, Ltd., 772 F. 3d 1225 (11th. 2014)). This includes ‘a duty to warn of known dangers beyond the point of debarkation in places where passengers are invited or reasonably expected to visit’ (citing Chaparro, 693 F. 3d at 1336). But the duty to warn ‘encompasses only dangers of which the carrier knows, or reasonably should have known’. Accordingly, as a prerequisite to imposing liability, a carrier must have had ‘actual or constructive notice of the risk=creating condition’ (citing Keefe v. Bahama Cruise Line, 867 F. 2d 1318 (11th Cir 1989)”.

Due Diligence Performed

“We cannot conclude that Celebrity had actual or constructive notice of any dangerous condition. We do not mean to suggest that a cruise line may shirk its responsibility of reasonable care to its passengers, but here the record demonstrates that Celebrity conducted its due diligence at the front end and had no reason to question the continued safety of OCT’s zip-line operation…OCT is generally regarded as a market leader in canopy tours Ad Celebrity selected is for this reason. The record reveals no evidence that would have placed Celebrity on notice of any dangerous conditions that may have existed and may have required some action on its part”.

No Evidence Of Safety Concerns

“We are surprised that, over a decade’s span, Celebrity received no incident reports-even those occurring through no negligence at all-or passenger safety concerns from OCT for an activity that involves participants of all ages, sizes and fitness and experience levels whizzing through the air on high speed traverses. Skepticism, however, is not a substitute for evidence. This record does not contain an affirmative evidence of safety concerns or reports of injuries caused by safety concerns. To impose a duty under the circumstances would be akin to imposing vicarious strict liability upon Celebrity…(Neither is there sufficient support for a duty to conduct safety inspections of OCT because Mr. Wolf) has not established that, absent notice, Celebrity was required to conduct safety inspections”.

No Industry Standards For Safety Inspections

“Mr. Wolf failed to present sufficient evidence that the ACCT [Association for Challenge Course Technology] regulations reflect industry custom or standards. Mr. Kempfe (founding member of ACCT) described the ACCT as ‘an international organization that serves the zip line challenge course community, writing standards and offering professional workshops throughout the world’…Mr. Kempfe also testified that the ACCT is not a governmental agency, and that there is no statute or av that requires companies to follow regulations issued by the ACCT…These conclusory statements fail to demonstrate industry standards against which a trier of fact could consider in determining whether Celebrity breached a duty to its passengers by not conducting annual inspections, or inspections by an outside professional”.

Duty To Hire Competent Contractor

“Celebrity presented evidence regarding its selection process and reasons for selecting OCT. Specifically, Celebrity’s corporate representative…testified that in selecting tour operators, Celebrity accepts bids from different tour companies and selects the company by visiting the facility and analyzing different factors, such as safety ratings and price…OCT had ‘basically written the book on zip lining’ because they were the first to do it (and) had been operating three years beforehand and the generally have a reputation for being safe…the record is devoid of evidence demonstrating that OCT was incompetent or unfit to perform the shore excursion-mush less that Celebrity knew or should have known of any deficiencies…we cannot say, on this record, that a reasonable jury could conclude that Celebrity was negligent in its hiring or continued retention of OCT as an excursion operator”.

Conclusion

The Court also dismissed plaintiffs’ additional theories of liability including actual agency and apparent agency (“Ticket Contract and the Shore Excursion Ticket-which expressly stated that excursion operators were independent contractors and not agents or representatives of Celebrity as well as the OCT Liability Waiver, which reiterated that the zip-line excursion was owned and operated by OCT”), joint venture (“The Tour Operator Agreement does not create a joint right of control because it vested control exclusively in OCT”) and third party beneficiary (“Tour Operator Agreement does not express an intent to benefit any third party-instead, it expressly states the contrary: ‘this Agreement shall not be deemed to provide third persons with any remedy, claim, right or action of other right”).

The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 41 years including his annually updated law books, Travel Law, Law Journal Press (2016), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), Class Actions: The Law of 50 States, Law Journal Press (2016) and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org

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