Cruise passenger lost at sea: Is cruise line liable?

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In this week’s article we examine the case of Elbaz v. Royal Caribbean Cruises, Ltd., 2017 U.S. Dist. LEXIS 5417 (S.D. Fla. 2017) wherein the Court noted that “This is a maritime wrongful death action brought by Plaintiff on his behalf and on behalf of the decedent, Bernardo Texeira Garcia (Garcia) alleging RCCL’s negligence and/or intentional conduct was the proximate cause of Garcia’s death onboard the Oasis of the Seas…To elaborate, on November 6, 2015, Plaintiff and his husband, Garcia, were subjected to ‘repetitive anti-gay insults’ while passengers onboard the cruise. On their first day onboard, ‘[t]hey were repeatedly called ‘lipstick’ by a bartender’. The couple complained to RCCL’s ‘management about the incidents immediately’. On the evening of November 5, 2015, Garcia was extremely distraught when RCCL’s employees called him ‘a pedophile and other anti-gay slurs’. Garcia returned to his stateroom and told Plaintiff about the insults. Afterward, RCCL’s security officers reported to the couple’s stateroom and ‘engaged in an argument’ with them. ‘A series of events’ ensued, and Garcia fell over the couple’s seventh deck stateroom balcony onto a life boat on deck six. Garcia held on to the life boat for several minutes as RCCL’s crewmembers attempted to rescue him. The crew members grabbed Garcia’s hand but failed to rescue him, and he fell into the ocean. RCCL did not stop the cruise for some time and did not timely deploy rescue boats, despite Plaintiff’s plea to RCCL’s security officers to stop the ship and rescue his husband. After receiving a distress call from the cruise, the United States Coast Guard searched for Garcia but did not find him”.

Terror Targets Update

Las Vegas, Nevada

In Las Vegas Shooting: Coroner Identifies Gunman’s Victims, nytimes (10/6/2017) it was noted that “The coroner’s office in Las Vegas completed the grim task of identifying all 58 people killed by a gunman at a country music festival…four days after the shooting. The victims include 36 women and 22 men. The oldest was 67, the youngest 20. They traveled to Las Vegas from across the United States. They were teachers, police officers, secretaries, retirees. The FBI is still trying to determine a motive, searching the electronic devices…that belonged to Stephen Paddock, the gunman (who) may have scouted other locations before targeting Las Vegas including Fenway Park in Boston, the Loolapalozza show in Chicago and the Life is Beautiful Festival in Las Vegas”.

In Belson, Medina & Perez Pena, A Burst of Gunfire, a Pause, The Carnage in Las Vegas They Would Not Stop, nytimes (10/2/2017) it was noted that “Many of the terrified concertgoers followed their instincts and crouched or lay flat, not realizing that they remained exposed to a gunman lodged high above them…By sunrise on Monday, the staggering toll…at least 59 people killed, the police said, and 527 injured, either by gunfire or in the flight to safety”.

After Las Vegas: Hotel Security Choices

In Hsu, Las Vegas Shooting Underscores Hotel Security Choices, nytimes (10/2/2017) it was noted that “Before a gunman killed more than 50 people in Las Vegas on Sunday, the police said he brought an arsenal of rifles past security and up to his 32nd floor room in the Mandalay Bay hotel. That the shooter…was able to take at least 17 firearms and hundreds of rounds of ammunition up to a room starkly highlights the security priorities of hospitality companies. Wishing to appear inviting to guests, many hotels employ a lighter touch. Security in most hotels instead focuses on limiting theft, corralling unruly drunks and ferreting out people wandering the halls without a room, said Mr. Segal, a security consultant for an executive protection company, AS Solution. Hotels in the United States and Europe have been ‘much slower on the uptake’ regarding the chances of violence, compared in the Middle East and Africa… Explosive scanners and X-ray machines – standard equipment at airport terminals – will continue to be scarce in hotels because of the enormous premium that customers place on their privacy, said Jim Stover, a senior vice president of the real estate and hospitality practice at the Arthur J. Gallagher & Co., an insurance brokerage”“.

Comparing Las Vegas Attack

In Buchanan, Griggs, Lee and Yourish, Comparing the Las Vegas Attack With Daily Gun Deaths in U.S. Cities, nytimes 10/6/2017) it was noted that “On Sunday night in Las Vegas, 58 people were killed in a single mass shooting…How does that compare with the daily gun deaths in cities across the United States? In Chicago, 58 people were killed by guns in a span of 28 days…In Baltimore, there were 58 gun deaths in 68 days. In Houston, it was 118 days”.

Paris, France

In French police find explosive device in Paris, detain ‘radicalized’ person, travelwirenews (10/3/2017) it was noted that “French police arrested a number of people after the discovery of an explosive device outside a residential building in Paris last weekend”.

London, England

In Six injured in acid attack at London station, travelwirenews (9/23/2017) it was noted that “Six people have been injured in an acid attack at Westfield Stratford Shopping Center, next to Stratford Station in East London. Police were called to the scene at about 8 pm on ‘reports of a group of males spraying what is believed to be a noxious substance’…One man has been arrested on suspicion of grievous bodily harm. The incident is not being treated as terror-related, however”.

New Travel Ban Order

In Shear, New Order Indefinitely Bars Almost All Travel From Seven Countries, nytimes (9/24/2017) it was noted that “The new order is more far-reaching than the president’s original travel ban, imposing permanent restrictions on travel, rather than the 90-day suspension that Mr. Trump authorized soon after taking office…Starting (in October) most citizens of Iran, Libya, Syria, Yeman, Somalia, Chad and North Korea will be banned from entering the United States…Citizens of Iraq and some groups of people in Venezuela who seek to visit the United States will face restrictions or heightened scrutiny”.

Flying Out Of Puerto Rico

In Healy & Ferre Sadurni, For Many on Puerto Rico, the Most Coveted Item is a Plane Ticket Out, nytimes (10/5/2017) it was noted that “On a hurricane-battered island where people still wait hours for gasoline, cash and ice, one of the scarcest, most precious commodities has become a plane ticket out. Two weeks after Hurricane Maria, thousands of Puerto Ricans are cramming onto the small number of scheduled flights and charter jets and are fleeing for the mainland United States, rather than endure the months more without power, cellphone service or regular running water”.

Puerto Rico’s Desperate Situation

In Ferre-Sadurni, Robles & Alvarez, “This Is Like in War”: A Scramble to Care for Puerto Rico’s Sick and Injured, nytimes (9/27/2017) it was noted that “For the sick and the elderly, heat can be deadly. Without sufficient power, X-ray machines, CT scans and machines for cardiac catheterization do not function, and generators are not powerful enough to make them work. Only one in five operating rooms is functioning. Diesel is hard to find. And with a shortage of fresh water, another concern looms: a possible public health crisis because of unsanitary conditions…Puerto Rico remains a patchwork of desperate fixes, with 3-4 million people improvising ways to get much-needed medicine, diesel for their generators, food for their shelves and water to either drink or bathe in”.

Bali Volcano Fears

In Bali volcano fears spark exodus of 75,000, travelwirenews (9/26/2017) it was noted that “Indonesia’s disaster agency says more than 75,000 people have fled the Mount Agung volcano on the tourist island of Bali because of fears of an eruption…The volcano’s last alert status was raised to the highest level on Friday, with hundreds of tremors daily indicating magma is moving toward the surface and an eruption is possible. Agung last erupted in 1963, killing about 1,100 people”.

Robot Airline Pilots, Anyone?

In Johnson, Boeing Bets on Robot Pilots, Air Taxis With Aurora Takeover, msn (10/5/2017) it was noted that “Boeing Co. is buying drone pioneer Aurora Flight Services Corp., gaining a portfolio of futuristic technology such as unmanned air taxis that may someday navigate city skies for Uber Technologies. With the acquisition, Boeing is betting that smaller airplanes will dominate flying, with computer algorithms and artificial intelligence playing an increasingly important role in the cockpit”.

Royal Caribbean Class Action

In Berr, Royal Caribbean sued over Hurricane Harvey Cruise, MoneyWatch, cbsnews (10/5/2017) it was noted that “Royal Caribbean (RCL) is being sued for allegedly pressuring passengers booked on a cruise into traveling to Houston even as Hurricane Harvey was set to strike the region, or risk losing the ability to get a refund on their tickets. Royal Caribbean’s ‘Liberty of the Seas’ had a scheduled voyage from Galveston, Texas, to Cozumel, Mexico, from Aug. 27 through Sept. 3. Hurricane Harvey made landfall in Texas on Aug. 25 near Houston which is the nearest major airport to Galveston, home port of the ‘Liberty of the Seas’ cruise ship. The suit alleges the (RCL) made it appear to travelers that the trip would leave as scheduled despite the challenges wrought by Harvey. ‘Consequently, hundreds of passengers were subjected to days of danger, terror and traumas as a result of being forced to travel into the path of a category four hurricane’ said the 20-page lawsuit filed last week in federal court in Florida”.

Chaos In Catalonia

In Minder, King of Spain Forcefully Denounces Catalan ‘Disloyalty’, nytimes (10/3/2017) it was noted that “King Felipe VI of Spain stepped forcefully into the political crises over Catalonia on Tuesday, accusing the region’s separatist leaders of ‘inadmissible disloyalty’ and of creating ‘a situation of extreme gravity’ that threatened the country’s constitution and unity. The monarch’s televised address came at the close of a daylong general strike in Catalonia, as well as road blockades and a mass rally in downtown Barcelona, to protest Sunday’s police crackdown on voters as they took part in an independence referendum that had been declared illegal by Spain’s constitutional court”.

Python Steaks, Anyone?

In Giant Python Attacks Indonesian man before being eaten, travelwirenews (10/4/2017) it was noted that “A giant python attacked an Indonesian man, nearly severing his arm, before hungry villagers chopped up the reptile and ate it, police chief said Wednesday…’The python was 7.8 meters long (25.6 feet); it was unbelievably huge.’”

Rivers Got Rights, Too

In Turkewitz, Corporations Have Rights. Why Shouldn’t Rivers, nytimes (9/26/2017) it was noted that “Denver – Does a river – or a plant, or a forest – have rights? This is the essential question in what attorneys are calling a first-of-its-kind federal lawsuit, in which a Denver lawyer and a far-left environmental group are asking a judge to recognize the Colorado River as a person. If successful, it could upend environmental law, possibly allowing the redwood forests, the Rocky Mountains or the deserts of Nevada to sue individuals, corporations and governments over resource pollution or depletion. Future lawsuits in its mold might seek to block pipelines, golf courses or housing developments and force everyone from agriculture executives to mayors to rethink how they treat the environment”. Stay tuned.

Yoga, Anyone?

In Glusac, New Yoga Trips, From Cambodia to Colorado, nytimes (9/25/2017) it was noted that “Yoga has left the studio as traveling yogis hit the road, guiding practice before more exotic backdrops on rivers, at full moon celebrations and in the great outdoors. During one December departure, the river cruise company Aqua Expeditions will turn its Mekong River ship in Cambodia into a floating fitness studio with classes led by the Singapore-based trainer Alex Salihin…Farmescape Yoga celebrates the seasons on an organic farm in Interlaken, N.Y. in the Finger Lake region with farm-based and barn-based classes held each quarter”.

The Giants Of Trains

In Ewing & Alderman, Siemens and Alstom Form European Train Giant to Beat Chinese Competition, nytimes (9/27/2017) it was noted that “Once, the merger of two iconic European companies might well have been derailed by regional rivalries. But in the case of deal between Siemens and Alstrom, those concerns have receded in the face of a larger threat: China…Siemens, a German electronics and engineering giant, and France’s Alstrom, a maker of the high-speed TGV, said late Tuesday that they will merge their units that make trains, streetcars and signaling systems… In response to intensifying competition from China Railway Rolling Stock Corporation, the state-backed train maker that has been winning contracts in the United States and emerging markets”.

Budget Friendly Sustainable Travel

In Peterson, Sustainable Travel Can Be Budget-Friendly, nytimes (9/27/2017) it was noted that “The term sustainable travel has been inextricably tied to opulent eco-travel. Fueled by a desire for guiltless extravagance and increasing attention paid to climate change, sustainability became a misused, industrywide buzzword associated with far-flung, expensive trips…Here are more practical tips…Check for certifications. There are dozens of different green certification programs…Look to see if the plan is recognized by the G.S.T.C. by checking their website. The group holds recognized certification plans to certain baseline standards, requiring that hotels or tour operators obey local labor laws, promote their services accurately and support local infrastructure and community development…Air travel leaves an enormous carbon footprint – by some accounts, a round-trip flight from New York to Europe can create a warming effect equivalent to two or three tons of carbon dioxide per person. One way to help is to patronize an airline that uses renewable biofuel: There are a number, including United Airlines, Singapore Airlines and Alaska Airlines, which is experimenting with a fuel blend partially powered by leftover branches and stumps from timber harvests”.

Budget Bus Lines Flout Rules

In McGeehan & Hu, Budget Bus Lines Flout the Rules With Little Consequence, nytimes (9/26/2017) it was noted that “Every time a charter bus is involved in a grisly crash like the one that left three people dead in Queens last week, elected officials demand more scrutiny of the thousands of American companies that privately operate buses…Dahlia Group, the company whose bus slammed into a city bus…on Monday…had a checkered past (which) includes two other fatal crashes in the last 14 years, both while ferrying gamblers to casinos…Yep Tour…has been hit with 210 safety violations in just the past two years, 34 of them for unsafe driving…Its history of unsafe driving has ranked it in the bottom 10 percent of all bus companies nationwide for three years running”.

Texting On Delta, Anyone?

In Haselton, Delta will allow passengers to text while in the air, msn (9/27/2017) it was noted that “Delta said Wednesday that customers will be able to send free messages with popular chat platforms while in the air, beginning Oct. 1. Customers will be able to use iMessage, WhatsApp and Facebook Messenger while in the air in a Gogo-equipped flight. Gogo is a popular Wi-Fi platform aboard airlines but customers won’t need to pay for Wi-Fi access in order to send and receive messages”.

Clean Up India’s Garbage Dumps, Please

In India needs to clean its garbage dumps to encourage tourism-Alphons, travelwirenews (9/26/2017) it was noted that “Minister of State for Tourism K.J. Alphons on Tuesday said that India needs to clean its garbage dumps to give a boost to tourism…’Despite India being endowed with magic, we are not able to market India in the global economy, rather India has been singled out as an “unsafe country”’, Alphons said. Describing India as a garbage dump and blaming the majority of the people for dumping garbage, he said that the latter has (to) take responsibility for keeping their neighborhood clean”.

Save The Panda’s Habitat, Please

In Quenqua, Pandas Are No Longer Endangered. But Their Habitat Is In Trouble, nytimes (9/26/2017) it was noted that “One year after giant pandas graduated from endangered to ‘vulnerable’, a welcome designation after 28 years, Chinese scientists have sobering news: the animal’s natural habitat in China is in serious danger. In a study published in Nature Ecology & Evolution on Monday, researchers report that suitable panda habitats have significantly and steadily declined since 1990, the year the International Union for the Conservation of Nature first classified the animals as endangered. That could make any gain in China’s wild panda population a short-lived conservation victory”.

Dockless Bike Sharing In London

In Chinese bike sharing: A business model for London, travelwirenews (9/24/20170 it was noted that “Ofo offers an effective way to utilize shared urban space with dockless bike sharing and geo-fencing. Dockless bikes offer convenience for users, while geo-fencing ensures that riders use the bikes within the designated ‘Home Zone’ which is clearly visible in the app. Ofo is the world’s largest station-free bike share platform and mobile app, ofo provides sustainable, affordable transportation to all. China’s bike sharing company ofo decided to increase the number of its bikes in London’s Hackney following its recent launch in the borough (increasing) the number of its bikes to 750 from an initial 200″.

Chinese Like Cruising, Too

In Chinese like cruising almost as much as Americans, travelwirenews (9/24/2017) it was noted that “China’s middle class is driving growth in the cruise business, making China the world’s second largest cruise market by number of passengers after the United States. Experts and business insiders say a golden age for the cruise industry is coming with more Chinese people willing to pay for ocean views, onboard entertainment and exploration to lands nearby and distant. The number of trips by cruise ship travelers leaving from Chinese home ports reached nearly 4.3 million in 2016, nearly double that of a year ago”.

Uber Says Goodbye To Quebec

In Austen, Uber Says It Will Leave Quebec Rather Than Face New Rules, nytimes (9/27/2017) it was noted that “Uber said on Tuesday that it would stop service in Montreal and the Quebec province next month rather than accept new government rules, the second setback in a week for the ride-hailing service’s international operations. On Friday, the taxi regulator in London announced that it would not renew Uber’s license… Until recently, Uber appeared to have reveled in ignoring local regulations as it shoved its ways into markers…Quebec’s decision to dictate terms [requiring drivers to have minimum training of 35 hours, up from 20 hours. The higher level matches the rule in Montreal for taxi drivers] to Uber is another sign that governments and regulators are less willing to back down when faced by intimidation from the company”.

Czech Taxi Drivers Unite

In Czech taxi drivers block major road to Prague international airport to protest Uber, travelwirenews (10/3/2017) it was noted that “Czech taxi drivers are blocking a major road to Prague’s international airport to protest Uber and other ride hailing services”.

Airbnb’s New York Tour Guides

In Vora, Airbnb Offers Tours With New Yorkers (No Vacation Rental Required), nytimes (9/26/2017) it was noted that “In the grand debate over whether New Yorkers are inherently charming or churlish, Airbnb seems to be placing its bets on the former. The company is bringing Experiences, its service for travelers to book activities with Airbnb hosts, to New York. The city is the company’s 40th destination where travelers can book local tours. Experiences is meant to give travelers a way to delve into authentic culture. There are 150 options on New York’s list, ranging from Bronx street dancing to a culinary tour of Greek spots in Astoria to a session on craft whiskey”. Travelwirenews

Travel Law Case Of The Week

In the Elbaz case the Court noted that “Plaintiff filed this action against RCCL alleging (1) negligence (Count I); (2) intentional infliction of emotional distress (IIED)(Count II); (3) negligent infliction of emotional distress (NIED)(Count III) and (4) damages under Bahamian Law (Count IV)…RCCL moves to dismiss the Complaint”.

DOHSA & Bahamian Law (Counts I & IV)

“RCCL argues the negligence claim in Count I should be dismissed because the DOHSA (Death on the High Seas Act) is plaintiff’s exclusive remedy, since the death occurred on the high seas. RCCL further argues Count IV is improper because it seeks to apply Bahamian law and the DOHSA cannot be supplemented with foreign law…The DOHSA provides a federal cause of action for the death of a person ‘caused by wrongful act, neglect or default occurring on the high seas beyond 3 nautical miles from the shore of the United States’. Under the Act, ‘the personal representative of the decedent may bring a civil action in admiralty against the person or vessel responsible’ for the exclusive benefit of the ‘decedent’s spouse, parent, child or dependent relative’. Whether the DOHSA applies ‘is determined by the location where the negligence occurred’…If the maritime incident occurred on the ‘high seas’…’outside [U.S.] territorial waters’…the Act applies (and) all other remedies are preempted…an exclusive remedy for a wrongful death on the high seas…under the DOHSA plaintiffs are prohibited from recovering non-pecuniary damages..(Since) DOHSA applies and preempts all other forms of wrongful death claims under state or general maritime law” Count I is dismissed. Count IV [damages based on Bahamian law] is dismissed as well because “contrary to Plaintiff’s position, [the DOHSA] does not allow [p]laintiffs ‘to pick and choose among provisions of U.S. and [foreign] law in order to assemble the most favorable package of rights against the defendant’”.

IIED (Count II)

“‘Although maritime law does not explicitly provide a cause of action for emotional distress’…plaintiffs may bring IIED claims under general maritime law…In analyzing an IIED claim, courts may apply state law…Under Florida law, in order to state a cause of action for intentional infliction of emotional distress, a complaint must allege: (1) the defendant acted recklessly or intentionally; (2) the defendant’s conduct was extreme and outrageous; (3) the defendant’s conduct caused the plaintiff’s emotional distress; and (4) the plaintiff’s emotional distress was severe…The court must determine whether the defendant’s conduct was objectively ‘atrocious and utterly intolerable in a civilized community’”.

The IIED Allegations

“Plaintiff alleges Defendant and its crew ‘repeatedly subjected’ Elbaz and Garcia ‘to anti-gay slurs and discrimination’ and ‘literally dropped Mr. Garcia into the ocean as he was holding for his life from the life board davit’. Afterward ‘RCCL failed to deploy rescue boats immediately [and] failed to deploy a beacon to mark the area where [decedent] fell’ Throughout this incident, Plaintiff ‘repeatedly cried and begged’ RCCL officials ‘to help rescue his spouse’, but instead of helping, RCCL employees ‘confined’ Plaintiff ‘against his will’ to isolate him from other passengers. The incident caused Plaintiff to suffer ‘severe emotional distress’ fearing ‘for his spouse’s imminent death’. Accepting these allegations as true, Plaintiff sufficiently pleads an IIED claim…RCCL’s request to dismiss Count II is denied”.

NEID (Count III)

“In Count III, Plaintiff seeks recovery for emotional distress he suffered from witnessing his spouse’s death. RCCL argues Plaintiff cannot maintain this claim because he does not allege he ‘was in the ‘zone of danger’ from the immediate risk of physical harm from RCCL’s negligence’. As Plaintiff see(s) it, he was in the zone of danger because he was ‘within feet of his spouse as he watched [Garcia] being dropped into the ocean by [RCCL’s] staff’…the Court agrees with Defendant (Plaintiff) does not allege sufficient facts to satisfy the zone of danger test…Plaintiff does not allege he sustained any physical impact as a result pf RCCL’s conduct or was threatened with imminent physical impact. Plaintiff cannot state an NEID claim merely by witnessing the traumatic event of his husband’s fall overboard (and therefore Count III is dismissed)”.

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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