In this week’s article, we discuss the recent case of Wang Xiao Ting v. Tsai Tours & Transportation, Inc., 2015 WL 1811250 (D.M.I. 2015) in which “Ms. Wang Dao, a young Chinese woman vacationing on Saipan, drowned in the shallow waters off Managaha Island in an area without lifeguards. Her representative and father, Mr. Wang Xiao Ting, sued the company that operates the only lifeguard station on the island for negligence, based on its failure to provide lifeguards in the location (where) his daughter died”.
Terror Targets Update
St. Etienne-du-Rouvray, France
In Jacques Hamel, 85, a Beloved French Priest, Killed in His Church, nytimes.com (7/26/2016) it was noted that “Father Hamel was celebrating Mass on Tuesday morning when two men with knives entered the small church and slit his throat, an attack that horrified people across France and the world. The Islamic State claimed responsibility for the attack, saying that the assailants-who were shot dead by the police-were ‘soldiers’ retaliating against the United States-led coalition fighting the group in Iraq and Syria”.
In Rubin & Nossiter, French Ask Whether Priest’s Killer, Listed as a Threat, Could Have Been Stopped, nytimes.com (7/27/2016) it was noted that “The question troubling France on Wednesday in the wake of the attack by a teenager who aspired to go to Syria, but settled instead for cutting the throat of a priest, is whether the crime was a result of failures by the French government and what more could have been done to prevent it. Shock from the attack did not stifle new political accusations, with questions immediately raised about how a perpetrator well known to the authorities was nonetheless left free to kill”.
Germany Wakes Up To Terror
In Eddy, German Mood Is Shaken as Attacks Show Vulnerability to ISIS, nytimes.com (7/26/2016) it was noted that “After a week bookended by terrorist attacks, Germans are now clear that they, too, are targets of the Islamic State, leaving them longing for the sense of order that is their pride and bedrock of success. The attacks started with an ax-wielding teenager on a train on July 18 and ended with a backpack bomber on the terrace of a wine bar on Sunday. In between-unrelated to Islamist terrorism, but no less unsettling-an Iranian-German carried out a mass shooting in a Munich shopping mall, and a recently arrived 21-year-old Syrian refugee killed his girlfriend outside a kebab shop, according to the authorities. The arrival of such violence in normally placid Germany has added to an anxiety-provoking summer in Europe”.
In Schmidt & Schmitt, As ISIS Loosens Grip, U.S. and Iraq Prepare for Grinding Insurgency, nytimes.com (7/26/2016) it was noted that “The Islamic State’s latest suicide attack in Baghdad, which killed nearly 330, foreshadows a long and bloody insurgency, according to American diplomats and commanders, as the group reverts to its guerrilla roots because its territory is shrinking in Iraq and Syria”.
Stopping Terrorism At Foreign Airports
In Nixon, Preclearance at Foreign Airports Seen as a Necessity to Fight Terrorism, nyti.ms/2alF1Vx (7/24/2016) it was noted that “The Department of Homeland Security is pushing to increase the number of American law enforcement personnel stationed at airports abroad to screen passengers before they board planes to the United States, officials say. The effort would be designed to extend the United States’ border security to foreign airports as part of new initiatives to reduce risk of potential terrorists entering the country”.
Rio: Keep Your Mouth Closed, Please
In Jacobs, Keep Your Mouth Closed: Aquatic Olympians Face a Toxic Stew in Rio, nytimes.com (7/26/2016) it was noted that “Health experts in Brazil have a word of advice for the Olympic marathon swimmers, sailors and windsurfers competing in Rio de Janeiro’s picture-postcard waters next month: Keep your mouth closed. Despite the government’s promises seven years ago to stem the waste that fouls Rio’s expansive Guanabara Bay and the city’s fabled ocean beaches, officials acknowledge that their efforts to treat raw sewage and scoop up household garbage have fallen far short. In fact, environmentalists and scientists say Rio’s waters are much more contaminated than previously thought”.
Fish Poisoning In Dominican Republic
In Mueller v. Apple Leisure Corporation, 2016 WL 3448602 (E.D. Wis. 2016) the Court noted that “For their honeymoon, Natasha and Scott Mueller, purchased an all-inclusive vacation from Apple Vacations to Secrets Resorts in Punta Cana, Dominican Republic. Following the trip, Natasha experienced unexplained medical issues, including numbness, nausea, fatigue and paid. Eventually, her doctors landed on the correct diagnosis: Ciguatera poisoning, ‘a foodborne illness caused by eating certain reef fish whose flesh is contaminated with a toxin made by dinoflagellates such as Gambierdiscus toxicus which live in tropical and subtropical waters’. The Muellers sued Apple for breach of warranty, negligence and medical care insurance benefits”; complaint dismissed; Pennsylvania forum selection clause enforced.
Hotels & Airbnb: Let The Battle Begin
In Glusac, Hotels vs. Airbnb: Let the Battle Begin, nytimes.com (7/20/2016) it was noted that “Ever since Airbnb entered the lodging scene in 2008, the hotel industry has cast a wary eye, noting its popularity with young travelers. Despite a strong year for hotels-occupancy and rates broke records in 2015, according to the data from STR-anxiety may be creeping into those corporate suites. Airbnb, the largest home sharing network with over two million listings worldwide, is newly targeting business travelers, the bread-and-butter clientele of hotels. Phocuswright, the travel research firm, noted that one in three leisure travelers in 2015 used private accommodations, up from one in 10 in 2011, and that 31 percent of travelers who used Airbnb in the last two years had used it for business. ‘This is a more challenging event in the history of the lodging industry than almost any other’, said Bjorn Hanson, clinical professor of the Jonathan M. Tisch Center for Hospitality and Tourism at New York University. How-and even whether-hotels are responding to the competition is a matter of debate. Only AccorHotels, the French hotel company whose brands include Sofitel and Raffles, has invested directly in the sharing economy, in its acquisition of Onefineday, a London-based home sharing service that focuses on the high-end market”.
Shaming Airbnb Hosts In Chinatown
In Wong, Most Wanted: San Francisco flyers name and shame Airbnb hosts, theguardian.com (7/22/2016) it was noted that “Posters in the city’s Chinatown claim Airbnb landlords are ‘destroying housing for immigrant, minority and low income families’…In recent weeks, ‘Wanted’ flyers have been posted around the neighborhood featuring the names and photographs of 12 individuals. The crime in question? ‘Airbnb’ing our community’ and ‘destroying affordable housing for immigrant, minority & low income families’…It expresses a growing sentiment and a reality that the community is being exploited by speculators and unscrupulous players in the housing market’, said city supervisor Aaron Peskin who represents the district that includes Chinatown”.
Airbnb Discrimination Lawsuit
In Barber, Airbnb Pushes Arbitration to Shut Down Discrimination Suit in D.C., The National Law Journal (7/21/2016) it was noted that “When Airbnb Inc. announced Wednesday that it had hired former U.S. Attorney General Eric Holder Jr. to devise a stronger anti-discrimination policy, the startup struck a conciliatory-even apologetic-tone in acknowledging racial bias on its home-sharing platform. But, in a lawsuit in Washington alleging discrimination, Airbnb is playing hardball…Airbnb asked a federal judge in Washington to put the case in the hands of an arbitrator. Airbnb…cited an ‘unambiguous and mandatory individual arbitration agreement’-a type of contract clause that has recently drawn regulatory scrutiny for depriving consumers of the chance to bring class actions and have their claims heard in court. Airbnb filed its motion to compel arbitration in a case brought by Gregory Selden, a 25-year-old African-American man who claims he was rejected by a host because of his race”.
Uber Tipping Class Action Settles
In Hancock, Modest Settlement in Uber Tipping Class Action, law.com (7/20/2016) it was noted that “Uber riders who paid a 20 percent premium on their fare and were told it was a tip for the driver will be refunded some of that money under a settlement announced Wednesday. The peace deal which still needs court approval would end a lawsuit brought against Uber…in 2014 by three law firms in Chicago and San Francisco. The suit claims the ride-hail giant misrepresented the premium as a ‘tip’ but then kept roughly half of that money, in violation of California law…Riders shouldn’t expect a big payday. The settlement fund is roughly $344,000 and that will be divided up among the nearly 47,000 class members eligible to receive a payment…Class counsel are requesting about $431,000 in attorney’s fees, the filing says. Caren Ehret, the named plaintiff, would get $10,000.” See Ehret v. Uber Technologies, Inc., 148 F. Supp. 3d 884 (N.D. Cal. 2015) (class certification granted).
Uber Drivers Class Action Moves Forward
In D’Annunzio, Drivers’ Class Action Against Uber Over Wages Gets Green Light, law.com (7/21/2016) it was noted that “A prospective class action in which Uber drivers alleged the company did not pay them wages, overtime and made them cover their own expenses in violation of federal employment law has been allowed to move forward. The dispute revolved around the drivers’ claims that they had been misclassified by Uber as independent contractors when they were, in fact, employees. Uber moved for dismissal of their case and for the Court to compel arbitration. However, in his opinion Thursday, U.S. District Judge Michael Baylson of the Eastern District of Pennsylvania put the brakes on Uber’s request for arbitration, writing that the drivers had exercised their right to opt out of the arbitration provision of their employment agreements by sending a letter to the company….The plaintiff complied with the requirement of the opt-out, Baylson said, by sending ‘formal notice’ in the form of a letter”. See Razak v. Uber Technologies, Inc., 2016 WL 3947086 (E.D. Pa. 2016).
Uber Service In Philadelphia Blocked
In Fair, Breaking: Deal Allowing Uber Service in Philly Blocked By Judge, law360.com (7/12/2016) it was noted that “A Pennsylvania state judge granted a stay on Tuesday afternoon temporarily blocking a deal between the Philadelphia Parking Authority (PPA) and Uber, Inc. that would have ended a bitter impasse between the two entities and allowed the company’s ridesharing service to operate legally in the city…The injunction bid came just days after the PPA and Uber announced they’d struck a deal that would allow the rise-hailing service to operate legally in the city as the Southeastern Pennsylvania Transportation Authority, or SEPTA, deals with a defect found in the a third of its railcars. The defect required that a third of the SEPTA fleet be taken out of commission [See Fitzsimmons & Hurdle, Philadelphia Rail Traffic Disrupted by Cracks in New Trains, nytimes.com (7/5/2016) as discussed in Dickerson, Uber’s new and enforceable driver contract arbitration clauses, eturbonews.com (7/21/2016)]. The PPA said its deal with Uber will resolve any ongoing legal disputes it has with the company about operating in Philadelphia since October 2014, when the agency said it would start enforcing laws that imposed on Uber drivers $1,000 fines and vehicle impoundments. To settle the claims, Uber has agreed to pay $350,000 upon the enactment of statewide legislation formally legalizing ridesharing services. The challengers argued on Tuesday, however, that the compact between PPA and Uber was an improper unilateral exercise of power that sidestepped the Pennsylvania Constitution and state statute”.
Behave Yourself In Madagascar
In Rousseau, Visiting Madagascar? Leave Red Swimsuits (and Lemur Recipes) at Home, nytimes.com (7/18/2016) it was noted that “If you visit a certain beach in northeastern Madagascar, don’t wear red and don’t even think of speaking French. Across most of the island nation, be very careful where you point, lest your finger accidentally find an ancestor’s grave…Behavior in Madagascar is governed by thousands of cultural taboos, or fady…many of which involve food (don’t eat goat or eel), days of the week (no funerals or farming on Tuesday) and objects (don’t use shovels with firm handles to bury the dead) …Breaking a fady invites both social shame and even direr consequences from the ancestors believed to enforce them. The repercussions can be as specific as the taboos: Sing while eating and your teeth will grow uncomfortably long… To outsiders, fady can seem like a long and random list of superstitious rules, some silly (don’t build verandas, and don’t pass an egg directly to another person). Some environmentally beneficial (eating most species of lemurs is fady, as is fishing in certain parts of the sea, to the benefit of coral reefs) and some harmful (among the Antambahoaka, an ethnic group in the southeast, a fady against raising twins led to a practice of abandoning them in the forest, and a fady against eating dried sweet potato has contributed to malnutrition)”.
Travel Law Articles: The Ting Case
As noted by the Court “Tasi Tours & Transportation, Inc. (Tsai Tours), filed a motion to dismiss, arguing that it has no duty to lifeguard the area in which Dao drowned because (1) relevant statutes and regulations preclude such a duty and (2) common law principles of negligence limit liability to those who create risks or land possessors and the company neither created a risk nor possessed Managaha Island or the water in which Dao drowned. Because no statute or regulation bars liability, and because Tsai Tours possesses Managaha Island and the shallow waters immediately surrounding it for purposes of common law negligence, the Court concludes that Tsai Tours owed Dao a duty to exercise reasonable care. The Court will deny the motion to dismiss”.
“On April 16, 2012, Dao and a travel companion visited Managaha Island as part of a snorkeling package they purchased from co-defendant Win Tour…Win Tour took Dao and other customers to an area without lifeguards and provided them with snorkeling equipment, telling them it was ‘safe to snorkel’. Dao entered the water, staying in the ‘very shallow water close to the beach’ while the other tourists ventured out further into chest-deep water. Left alone, there was one present to help Dao when water entered her snorkel and she began to drown”.
Management Of Managaha Island
“Managaha Island is owned by the Commonwealth of the Northern Mariana Islands (CNMI) and administered by the Department of Public Lands (DPL)…To facilitate tourism and public enjoyment of Managaha Island, DPL granted Tsai Tours an exclusive recreational concession (whereby) Tsai Tours has the use of a ‘concession area’ of approximately 11,203 square meters-a significant portion of the small island-containing improvements for food service, ballrooms and showers, gift shops, picnic areas, storage lockers and accompanying infrastructure…Tsai Tours has the exclusive right to sell food and beverages, rent or sell ‘water sports equipment, recreational equipment or beach equipment and related supplies’, conduct tours, sell goods and provide for-profit entertainment”.
Tsai Tour’s Responsibilities
“However, the Concession Agreement tasks Tsai Tours with a number of limitations and responsibilities in exchange for the exclusive concession. Tsai Tours cannot restrict common areas of the concession area to its own paying customers and cannot ‘prohibit the general public from using any beach on Managaha Island’…Tsai Tours is charged with management and maintenance of the entire island, including: cleaning up any trash on a daily basis, providing nighttime security and keeping vegetation trimmed and paths in good repair…the agreement requires Tsai Tours to lifeguard a roped swimming area near the concession”.
Landing And User Fee
“The cost of maintaining and protecting Managaha Island is borne by tourists. Visitors to the island who do not reside with (CNMI) and tour operators are required to pay a ‘landing and user fee’ upon reaching the island. That fee pays for the construction, maintenance, repair and/or upkeep of…Managaha Island’…DPL owns the funds, but Tasi Tours may use them to pay lifeguards, as well as other approved expenses (‘The cost of nighttime security, lifeguards and rangers may be paid from the Landing and User Fee as each provides for public safety’)”.
“[T]he Court (must) determine the scope of Tsai Tours’ duties, not just whether it has any duty to Dao. Plaintiff claims that Tsai Tours breached its duty to exercise reasonable care by providing lifeguarding service to less than 1% of the beach area at Managaha, and for failing to provide lifeguarding services to the most popular and best area for snorkeling”.
Common Law Negligence
After finding the neither the Lifeguard Act of 1998 or DPL Regulations insulate Tsai Tours from liability for Dao’s death by drowning, the Court focused upon the principles of common law negligence. “There is no ‘written law’ in (CNMI) that addresses a landowner’s duty to provide a lifeguard at its beach. Accordingly, the Court must rely on the common law…(as) controlled by the Restatement (Third) of Torts: Liability for Physical and Emotional Harm…The Court finds that Tsai Tours owed Dao a duty of reasonable care because it is a land possessor of Managaha Island for negligence purposes. Because the Court finds that Tsai Tours owed Dao a duty of reasonable care pursuant to negligence rules for land possessors, it is unnecessary to determine whether it alternatively owed Dao a duty of reasonable care based on the alleged risk it created by actively encouraging people to visit Managaha Island to engage in water activities”.
The Land Possessor’s Duties
“The Restatement imposes a duty of reasonable care on land possessors…A land possessor is a ‘person who occupies the land and controls it’…A possessor of land need not be the owner or legal title holder of the land if another exercises occupation and control…In a broad sense, Tsai Tours occupies and controls Managaha Island as a possessor of land. It cleans the entire island on a daily basis, maintains the concession area and ‘other improvements on the island’, provides nighttime security and tends to all vegetation and nature trails”.
Decrease The Probability Of Drowning
“Of course, the most important aspect of Tsai Tours’ control of Managaha Island for this case is its authority and ability to decrease the probability of swimmers drowning by posting lifeguards in popular areas…The Restatement imposes the duty of reasonable care on a land possessor when the possessor can decrease the risk of harm to entrants. As described above, nothing limits Tsai Tours from lifeguarding areas outside the zoned swimming area”.
“To be clear, the issue raised in Tsai Tours’ motion to dismiss is whether Tasi Tours owed a duty of reasonable care to Dao, Based on Tsai Tours’ status as a land possessor, it did. Whether Tsai Tours breached its duty by failing to post lifeguards…is not a matter of duty, but of reasonable care… Whether deploying lifeguards to watch the area in which Dao drowned would have been reasonable based on the Restatement’s factors is a jury question. The Court’s conclusion only addresses the existence of Tsai Tours’ duty owed to Dao”.
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.
This article may not be reproduced without the permission of Thomas A. Dickerson.