In this week’s article, three cruise law cases were reported in 2015, involving passengers who sustained physical injuries either onboard a cruise ship or during a shore excursion. These cases cover a broad spectrum of legal issues raised in litigation against cruise lines including (1) how, in a medical malpractice action, to properly serve process upon on ship’s doctor residing in Ecuador [Ure v. Oceania Cruises, Inc., 2015 WL 4937344 (S.D. Fla. 2015)]; liability for physical injuries sustained by passengers on board the cruise ship including (2) colliding with a “protruding, pointed edge of a passageway” [Gittel v. Carnival Corporation, 2015 WL 3650042 (S.D. Fla. 2015)] and (3) a slip and fall “on a puddle caused by spilt drink, directly outside of the elevator on the Lido Deck” [Lieberman v. Carnival Cruises Lines, 2015 WL 7069654 (D.N.J. 2015)]. We have previously discussed cruise line liability issues in Travel Law: Ship board medical malpractice: A welcome sea change, eturbonews.com (11/19/2014); Travel Law: Immediate post-accident medical care, eturbonews.com (2/20/2014).
Travel Law Update
Terror Targets Update
In Rubin, Breeden and Raghavan, Strikes Claimed by ISIS Shut Brussels and Shake European Security, nytimes.com (3/22/2016) it was noted that “Bombs packed with nails terrorized Brussels on Tuesday in the deadliest assault on the European heartland since the Islamic State’s attacks on Paris four months ago, hitting the airport and subway station in coordinated attacks that were also claimed by the militant extremist group…At least 30 people were killed by two blasts at the Brussels airport departure area around 8:00AM and one in a subway station shortly after 9. The police found at least one other unexploded bomb in a search of a Brussels house hours later”; Rubin, De-Freytas-Tamura & Breeden, Brothers Among 3 Brussels Suicide Attackers; Another Assailant Is Sought, nytimes.com (3/23/2016) it was noted that “The Brussels suicide bombers included two-Belgium-born brothers with a violent criminal past and suspected links to plotters of the Islamic State’s Paris attacked last November…raising new alarms about Europe’s defenses against a militant organization that has terrorized two European capitals with seeming impunity”.
ISIS Ready To Launch More Attacks
In Steinmetz, ISIS: We did it and are ready to launch more attacks, eturbonews.com (3/22/2016) it was noted that “‘What awaits you will be harder and more bitter, with Allah’s permission’. This is the message from ISIS after today’s attack in Belgium…A message purportedly sent to supporters of the Islamic State over the anonymous messaging app Telegram on Tuesday warned the group’s ‘brothers in Belgium’ to avoid social media, use ‘encryption’ to communicate and to ‘keep [a] low profile until the heat dies down’”.
Uber & Grab Street Fighting In Jakarta
In Steinmetz, Violent massive street fighting in Jakarta over Uber and Grab taxi services, eturbonews.com (3/22/2016) it was noted that “Tourists and business travelers love them; taxi-drivers hate them. They hate them so much, that a demonstration in Jakarta, Indonesia, this morning turned violent and into a massive fighting battle. In the Indonesian capital, a massive demonstration by public transport and taxi drivers against the presence of app-based transportation services, Uber and Grab, has turned violent this morning…Some attacked the vehicles, smashing the windows and mirrors of the taxis”.
Washer/Dryer & Wi-Fi
In Vacation rentals: Wi-Fi and washer/dryer beat location, quality and price, eturbonews.com (3/22/2016) it was noted that “According to a recent rental survey, Wi-Fi and washer/dryer are now the most important vacation rental features of today, beating out location, quality and price”.
Uber Model Doesn’t Translate Well
In Manjoo, The Uber Model, It Turns Out, Doesn’t Translate, nytimes.com (3/23/2016) it was noted that “Here is what we are witnessing”: the end of the on-demand dream. That dream was about price and convenience…many of these companies marketed themselves as clever hacks of the existing orders. They weren’t just less headaches than old-world services, but because they were using phones to eliminate inefficiencies, they argued that they could be cheaper, too-so cheap that as they grew, they could offer luxury-level service at mass-market prices. That just isn’t happening… (a lot of apps) are super convenient, but the convenience comes at a premium, which seems here to stay… After all, paying extra for convenience isn’t really innovative-it is pretty much how the world has always worked. Before we get to why many on-demand apps have struggled to achieve mass-market prices, it is important to remember why anyone ever thought they could: because Uber did it…Investors saw Uber’s success as a template for Ubers for everything…But Uber’s success was in many ways unique. For one thing, it was attacking a vulnerable market. In many cities, the taxi business was a customer-unfriendly protectionist racket that artificially inflated prices and cared little about customer service. The opportunity for Uber to become a regular part of people’s lives was huge. Many people take cars every day, so hook them once and you have repeat customers. Finally, cars are the second-most-expensive things people buy, and the most frequent thing we do with them is park. That monumental inefficiency left Uber ample room to extract a profit even after undercutting what we now pay for cars”.
Travel Law Article: Three Cruise Law Cases
The Ecuadorian Ship’s Doctor
The Ure case highlights one reason why it has traditionally been difficult to prosecute a medical malpractice case against a ship’s doctor who resides in a foreign country over which there may be no jurisdiction and, as in this case, service of process may be problematic. In the Ure case, the Court noted that “Plaintiffs…Ure…brought this action against Defendants Oceania Cruises, Inc. and Fabian Bonilla, M.D. (and) allege that while aboard Oceania’s ship, Dr. Bonilla, the ship physician, evaluated and treated Mrs. Ure for a gastrointestinal illness. After several days (her) condition deteriorated, necessitating emergency medical treatment. Oceania recommended Bay View Hospital in Barbados and arranged for (her) transfer and on-shore treatment. Bay View allegedly mismanaged (her) treatment and/or was unable to adequately provide emergency care. Mrs. Ure suffers permanent injury from her illness”.
Improper Service Of Process
“Dr. Bonilla is a citizen of Ecuador. On June 13, 2014, pursuant to Plaintiff’s request, the (Court) Clerk’s office sent Dr. Bonilla, via federal express, a copy of the Complaint and Summons to his address in Quito, Ecuador…Dr. Bonilla contends that the only accepted method of service in Ecuador in through exhorts or letters rogatory and that therefore…Plaintiffs’ service was improper. In support, Dr. Bonilla provides the affidavit of Dr. Frowel Ugalde…an attorney in Ecuador (who) asserts that the Code of Private International Law Sanchez de Bustamante provides that ‘any judicial proceedings that a contracting State may need to practice in another, shall be effected through exhorts or letters rogatory issued by the diplomatic channels’. The United States, however, is not a signatory…and therefore is not a ‘contracting State’…[According] to Dr. Ugalde, ’foreign service via registered or certifying postal or mail messages, is not permitted within Ecuadorian legislation, being the only accepted proceeding, the exhort or letter of rogatory’…Plaintiffs have not submitted any affidavits contradicting Dr. Ugalde’s assertions… Accordingly, the Court finds, for this action, that Ecuadorian law does not permit service on Dr. Bonilla via federal express, registered mail or certified mail”.
Collision With A Pointed Edge
The Gittle case highlights several common liability theories invoked in negligence cases “arising out of injuries Plaintiff allegedly suffered onboard the cruise ship Carnival Glory”.
In Gittle, the Court noted that “In Count I, plaintiffs allege negligence against Carnival arising out of Plaintiff(‘s) collision with the protruding, pointed edge of a passageway… Plaintiffs have shown (1) a sharp, protruding edge (a risk-creating condition); (2) in a public passageway (permitting the inference that Carnival had actual or constructive notice thereof), (3) which Carnival failed to remedy or about which Carnival failed to warn; and (4) absent the presence of which Anna Gittle would not have suffered the injuries that she did”. Negligence claim stated.
“Plaintiffs allege that ‘the physician and additional medical personnel’, in treating Anna Gittle, either did ‘not solely utilize non-absorbable sutures or fail[ed] to carry out the suturing process appropriately’. These allegations may permit an inference of incompetence or unfitness, and certainly permit an inference that the medical staff acted with negligence. However, the complaint contains only conclusory allegations as to Carnival’s knowledge of any particular incompetence or unfitness…Plaintiffs provide no factual content (and fail) to state a cause of action for negligent hiring or retention”.
“Plaintiffs seek to hold Carnival vicariously liable for negligence of the onboard medical personnel on a theory of apparent authority. In the Eleventh Circuit, ‘a passenger may sue a shipowner for medical negligence if he can properly plead and prove detrimental, justifiable reliance on the apparent agency of a ship’s medical staff-member (citing) Franza v. Royal Caribbean Cruises, Ltd., 772 F. 3d 1225 (11th Cir. 2014) …This Court has already concluded that Plaintiffs’ allegations of improper suturing techniques and Anna’s resulting injuries constitute sufficient allegations of the medical staff’s negligence. Plaintiffs further allege that ‘Carnival held its medical personnel out as agents of Carnival through the use of crew member uniforms, the use of Carnival forms, and the fact that Carnival provided living quarters and medical offices on board the ship to the medical staff. Plaintiffs then take their allegations ‘one step further’ as the Franza court recommended, by alleging that they would not have authorized the ship’s medical personnel to treat Anna if they had known that they were not employees of Carnival….Plaintiffs have adequately stated a cause of action for Carnival’s vicarious negligence of its medical personnel, on a theory of apparent agency”.
Slip & Fall On A Puddle
The Lieberman case highlights a common slip and fall accident and what legal theories may appropriately be asserted against the cruise line. “Tammy and Eric Lieberman…booked passage (on) the Carnival Splendor…Mrs. Lieberman has stage 4 terminal cancer…the (passenger) contract stipulates that passengers with special needs should contact Defendant’s Special Needs Desk to request special accommodations. Defendants maintain that Plaintiffs ‘acknowledged receipt and acceptance of the terms and conditions’ of the contract ‘prior to sailing’ and that Plaintiffs never advised Defendant in writing of any special needs…Plaintiffs further maintain that Defendant’s representative assured Plaintiffs that they would have a ‘handicapped room’ and ‘24-hour medical assistance in the event it was needed’”.
The Injury & The Complaint
“Mrs. Lieberman slipped and fell on a puddle caused by a spilt drink…Mrs. Lieberman…observed that the puddle includes ‘glass’, ‘melted ice’ and ‘skid marks that traveled all the way to the sliding doors’ of a nearby pool, indicating that the spill had been present for quite some time…Plaintiffs returned to New Jersey and Mrs. Lieberman…was eventually diagnosed with a Jones fracture of her left foot…Plaintiffs filed a… complaint asserting (inter alia) negligence…”.
Negligence & Respondent Superior Claims
“Defendant principally argues that it had no notice of the spill and therefore cannot be liable for breaching the duty of reasonable care it owed to Mrs. Lieberman…Defendant contends that Plaintiffs cannot prove that the spill existed for a sufficient length of time for Defendant’s employees to take reasonable actions…In response, Plaintiffs…propose two theories of liability. First, Plaintiffs argue that the spill existed for a sufficient and discoverable length of time (to) establish Defendant’s actual or constructive notice. Second, Plaintiffs argue in the alternative that Defendant’s use of its marble floors, known for their slipperiness, constituted negligence…Here, the record contains sufficient evidence to infer that Defendant had constructive notice. Specifically, the record discloses evidence…of melted ice cubes, visible skid marks and broken glass (citing Cousin v. White Castle Sys., Inc., 2009 WL 1955555 (E.D.N.Y. 2009)). A reasonable juror could find the spill existed for a lengthy period of times based on the melted ice cubes and dirty track marks. Likewise, a reasonable juror could infer that Defendant had constructive notice of the spill because it should have heard the glass breaking on the floor.
Open And Obvious
“Defendant argues that even if it had actual or constructive notice, the spill must have been an open and obvious danger. Generally, obvious dangers will absolve a defendant of negligence in the premises liability context…No evidence exists to show that Plaintiffs should have been aware of the spill or that Defendant posted warning signs about the slippery floors…this Court is cognizant of the fact that courts usually find obvious dangers to be questions for the jury…. According, Defendant’s motion for summary judgment as to the negligence cause of action is denied”.
In a subsequent article we will examine four more cruise law cases reported in 2015 to include (1) slip and fall descending a mid-ship stairway “when her shoe caught on the metal ‘wear strip’ on the nose of top stair” [Holderbaum v. Carnival Corporation, 2015 WL 5006071 (S.D. Fla. 2015)], and (2) a disabled passenger’s scooter tipped over because of a ramp that pulled apart [Cox v. Princess Cruise Lines, Ltd., 2015 WL 5031900 (C.D. Cal. 2015)]; liability for injuries sustained during shore excursions including a (3) trip and fall while visiting St. Maarten and ship’s medical personnel sending the injured passenger to a local hospital ill equipped to “provide necessary care and treatment” [Casorio v. Princess Cruise Lines, Ltd., 2015 WL 4594169 (C.D. Cal. 2015)] and (4) a class action brought by ships’ medical doctors seeking additional “commission(s) on ‘total medical revenues’ generated by sick passengers during a cruise [Celebrity Cruises, Inc. v. Rankin, 175 So. 3e 359 (Fla. App. 2015)]. Stay tuned.
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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