In this week’s article we examine the case of Hambrook v. Smith, 2015 WL 3480887 (D. Hawaii 2015) and the liability of an “accrediting and (scuba) diver training organization” [PADI America, Inc. and PADI Worldwide Corporation, both doing business as Professional Association of Diving Instructors (PADI)] for the drowning death of a scuba diver during a “recreational scuba diving excursion departing from Honokohau Harbor, Hawaii”. For another case discussing the liability of accrediting and training organizations see McAleer v. Smith, 860 F. Supp. 914 (D.R.I. 1994) (sail trainees drown after vessel, a 67-year-old tall ship, the auxiliary barque MARQUES, capsizes during race; action against American Sail Training Association (ASTA), among others, for wrongful death).
Travel Law Update
Explosive Shopping In Tokyo
In Tokyo residents: Chinese tourist buses ‘a nuisance’, eturbonews.com (2/11/2016) it was noted that “Complaints have been pouring in about a growing number of large buses carrying foreign tourists…because they park in the street. Those involved have been seeking was to rectify the situation amidst a surge in buying sprees, especially among Chinese tourists known for ‘bakugai’ or ‘explosive shopping’”.
Beware Lithium Battery Risks
In FAA urges airlines to assess lithium battery risks, eturbonews.com (2/9/2016) it was noted that the “Federal Aviation Administration (FAA) today issued a safety alert to US and foreign commercial passenger and cargo airlines, urging them to conduct a safety risk assessment to manage the risks associated with transporting lithium batteries as cargo”.
Gay Passenger Sues Uber
In Kendall, Gay Passenger Sues Uber on Civil Rights Claims, The Recorder (12/3/1025) it was noted that “Uber…faces a new lawsuit, this one by a gay passenger claiming a driver kicked him out of a car for sharing a kiss with his date…When a driver picked up the two men, the complaint says, they shared a ‘brief closed mouth-kiss’ in the back seat. The driver became ‘incensed’ and began yelling obscenities…and ordered (Mr. X) and his date out of the car… (Mr. X) was charged $7.87 for the ride”.
Uber Bike Messengers
In Flamm, Uber is killing the bike messenger, Crane’s New York Business (2/7/2016) it was noted that “(Mr. X) has never worked as a bike messenger before he signed up in September with UberEats, the lunchtime meal-delivery service Uber launched in Manhattan last spring…He pulls in around $600 a week…He also loves being able on his single-speed LaFleur bike, and thinks nothing of riding the 15 miles to Manhattan from his home in Yonkers to make deliveries on weekends. But Santos is risking everything he has with each ride. Uber bike couriers do not receive safety training. Few of them on the cold morning were wearing helmets. And most important, Uber bikers are pretty much on their own if they go flying over their handlebars or get hit by a bus. The company does not provide worker’s compensation for a job that is considered among the most dangerous in New York”.
In McNeil, Romero and Tavernise, How a Medical Mystery in Brazil Led Doctors to Zika, nytimes.com (2/6/2016) it was noted that “A sudden sharp increase in babies with ‘no foreheads and very strange heads’ was baffling doctors in Brazil. That set off a search for answers that led to a little-known pathogen, the Zika virus…Since then, those tiny babies led the World Health Organization to declare a public health emergency. They have prompted warnings to pregnant women to avoid countries where the virus is circulating, even to refrain from unprotected sex with men who have visited those countries, following a report of sexual transmission of the virus in Dallas last week. They have led health ministers of five countries to say something so unthinkable that none have ever uttered it before: Women, please delay having children”.
Profits And Peanuts
In Mouawad, Airlines Reap Record Profits, and Passengers Get Peanuts, nytimes.com (2/6/2016) it was noted that “Helped by falling oil prices, airlines are reporting records profits, but for many passengers this sudden bonanza has meant little more than extra bags of free peanuts and pretzels. The four biggest domestic carriers – American Airlines, Southwest Airlines, Delta Air Lines and United Airlines – together earned about $22 billion in profits last year, a stunning turnaround after a decade of losses, bankruptcies and cutbacks…Days after reporting record profits, for instance, two of the nation’s biggest airlines brought back free snacks in coach. United said it would begin serving complimentary stroopwafels, which it described as ‘Dutch-made toasted waffle treats’ and American said it would offer free meals in economy class on flights between Dallas and Hawaii and free snacks on all domestic flights”.
Uber In Australia
In Steinmetz, Uber and taxis: solutions for a peaceful coexistence, eturbonews.com (2/8/2016) it was noted that “With an anti-Uber show of force from taxi owners in the works for this Wednesday, an MEI Viewpoint published today describes the broad strokes of two reforms put in place recently in Australia…In New South Wales…owners of taxi licenses will be compensated for their financial losses stemming from the regulatory change. Long-time owners could receive an amount of $20,000 per license, whereas compensation could go up to $175,000 for a license purchased in 2015. This compensation will be financed in its entirety by a temporary $1-per-ride tax, applicable to both traditional taxis and services like Uber”.
Restricting Helicopter Flights
In Chaban, Deal Restricts Tourist Helicopter Flights Over New York, nytimes.com (1/31/2016) it was noted that “After decades of complaints about noise and air pollution from the tens of thousands of tourist helicopter flights that circle Manhattan each year, New York City announced a deal on Sunday that would cut their number in half of January 2017. In addition, the helicopters…will not fly on Sundays starting April 1 and will be banned from flying over Governor’s Island and Staten Island. In waterfront parks across the City activists have measured noise readings in excess of 75 decibels, louder than a vacuum cleaner”.
Save The Horse Carriages
In Goodman & Grynbaum, Mayor de Blasio’s Carriage-Horse Plan Falters in City Council, nytimes.com (2/4/2016) it was noted that “Mayor Bill de Blasio’s peculiar and controversial crusade to limit the Manhattan horse-carriage industry abruptly collapsed on Thursday, dealing a blow to his image at the expense of a political pursuit that many of his allies had hoped he would abandon long ago. Despite personal pleas from Mr. De Blasio himself, the New York City Council canceled a vote on his bill to confine the industry’s horses to Central Park, a priority of wealthy donors that the Mayor kept alive, despite scorn from labor unions, parks advocates, pedicab drivers and other groups”.
Bring Back Streetcars
In The Editorial Board, A Streetcar Ride to New York’s Future, nytimes.com (2/5/2016) it was noted that “Mayor Bill de Blasio’s proposal to build a streetcar line connecting 16 miles of neighborhoods along the booming East River waterfront in Brooklyn and Queens presents an eye-catching ambitious exercise in what the Mayor terms ‘equity and innovation’. Equity for local residents who feel marooned from the city’s subway system, and innovation in reviving the street car as a modern feature to serve a fast-growing waterfront”.
Travel Law Article: The Hambrook Case
As noted by the Court “This is an admiralty case arising out of a diving accident (in which the decedent) William Savage dies by drowning. Defendant Jay J. Smith was the dive guide on the scuba excursion and Defendant Dennis McCrea was a co-Captain on the dive vessel…Smith and McCrea were both members of the Professional Association of Diving Instructors (PADI) and were certified PADI divemasters…Defendant Smith has been a professional dive guide on the Big Island since 1997…Defendants Smith and McCrea ran their scuba excursions out of Defendant Hawaiian Scuba Shack (HSS) (which) was an approved PADI Dive Center at the time of the incident”.
What Is PADI?
“PADI is a diving training organization and an association for diving instructors and dive centers that develops and designs training courses and related educational materials for recreational scuba diving. To become a PADI member, an individual must agree to abide by PADI training standards, agree to be subjected to PADI’s quality assurance review, sign the PADI Membership Agreement and pay PADI an annual membership fee. In return, PADI members are entitled to purchase course materials for resale to their customers and to use the PADI logos and trademarks to market their services to the public”.
The Savage Family
“At the time of the accident…Plaintiff and her husband and children were on a two-week vacation in Kana on the Big Island of Hawaii. (Mr. & Mrs. Savage and one of their children) had all previously been PADI certified as open water scuba divers. Plaintiff (and her husband) selected HSS for their recreational diving…because it was a PADI certified shop (and) told Mr. Smith that they were ‘amateur divers’ without much experience, and that they wanted to do supervised, safe, easy dives…Prior to embarking on the dive excursion (each member of the family) executed a document titled ‘Boat Travel and Scuba Diving Voluntary Release, Waiver and Assumption of the Risk (the Release)”.
The Skull Cave Dive
“Defendant Smith took the family on a dive excursion to a dive site known as ‘Skull Cave/Suck ‘Em Up’ (which Mr. Smith) believed…was appropriate based on the weather and water conditions at the time…During the dive…a somewhat larger wave set came through where Mr. Smith and Mr. Savage were diving and Mr. Smith saw Mr. Savage pass over him with a wave. Mr. Smith…surfaced to try to assist Mr. Savage…Plaintiff asserts that Mr. Savage was swept onto some rocks at the shoreline and lost consciousness; however, the autopsy revealed that there were no physical injuries to Mr. Savage other than a small 1-cm laceration on the back of his head…Mr. Smith opined that Mr. Savage drowned because he stopped using his regulator to breath air from his tank. What is clear is that Mr. Savage somehow lost consciousness, after which Mr. Smith brought him back to the vessel (where) McCrea performed CPR to no avail. Mr. Savage died of salt water drowning”.
“Plaintiff filed her First Amended Complaint (FAC)…against Defendants Smith, McCrea, HSS and PADI (alleged) (1) negligence as against all defendants (Count I); (2) gross negligence as against all defendants (Count II); (3) vicarious liability against Defendant PADI for the acts of the other defendants on a theory of apparent authority and agency by estoppel (Count III); and vicarious liability as against Defendant PADI on a theory of maritime joint venture (Count IV)”.
Both PADI and Plaintiff moved for partial summary judgment and the Court initially addressed the enforceability of the Release (which) states…that the signing party releases… Defendants Smith and McCrea, the vessel and PADI ‘from all liability and responsibility for personal injury, property damage or wrongful death, however caused, including, but not limited to, product liability or the negligence of the released parties, whether passive or active’. In addition, the Release contains a paragraph to the effect that the “signing party understand[s] the hazards of scuba diving including those hazards occurring during boat travel to and from the dive site [ including] air expansion injuries, drowning, decompression sickness, slipping or falling while on board, being cut or struck by a boat while in the water, injuries while getting on or off a boat, and other perils of the sea”.
“Plaintiff asserts that the Release is invalid under admiralty law and Hawaii state law.” As for admiralty law as set forth in 46 U.S.C. 30509 (formerly Section 183c) which prohibits disclaimers for bodily injuries or wrongful death arising from the negligence of owners or agents of owners of a vessel, it does not apply since “PADI is not an agent of the vessel or vessel owner such that Section 183c applies to invalidate the Release as to PADI”. As for Hawaiian state law citing Courbet v. Dahana Ranch, 141 P. 3d 427, 437-38 (Haw. Sup. 2006) the Release is also enforceable since PADI is only an accrediting and diver training organization and does not operate any business in Hawaii and has “‘no control over or involvement with [the member] facility’s (HSS) day-to-day operations and activities and bears no responsibility for the same’” …There is simply no evidence that PADI itself is in the business of actually providing (rather than developing and marketing) recreational diving excursions to the public”.
Vicarious Liability Claims
In addition the Court found no basis for Plaintiff’s vicarious liability claims against PADI based upon apparent authority [“the Court finds that the use of the PADI logos by HSS and Smith and the content of the online advertisements simply cannot support a finding that Plaintiff had a good faith, reasonable belief that HSS and Smith were agents of PADI”] or maritime joint venture [“there is simply no evidence that PADI had the type of control over, and profit-sharing relationship with, HSS and Smith required for a finding of a maritime joint venture”]. The Court granted PADI’s motion for summary judgment dismissing Counts I, III and IV of the FAC but Curt II remains as against PADI. Plaintiff’s motion for partial summary judgment was denied as well.
Justice Dickerson has been writing about travel law for 39 years including his annually updated law books, Travel Law, Law Journal Press (2016) and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. Justice Dickerson is also the author of Class Actions: The Law of 50 States, Law Journal Press (2016). For additional travel law news and developments, especially in the member states of the EU, see IFTTA.org.
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