Ciguatera fish poisoning during Apple Vacations tour to Secrets Resort in Punta Cana

In this week’s article, we examine the case of Mueller v. Apple Leisure Corp., 2016 U.S. Dist. LEXIS 79817 (E.D. Wis. 2016) wherein “For their honeymoon, Natasha and Scott Mueller purchased an all-inclusive vacation from Apple Vacations to Secrets Resort in Punta Cana, Dominican Republic. Following the trip Natasha experienced unexplained medical issues, including numbness, nausea, fatigue and pain. Eventually, her doctors landed on the correct diagnosis: Ciguatere 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. Apple moves to dismiss on a variety of grounds. This motion is granted”.

Terror Targets Update

Marawi, Philippines

In Villamor, Key ISIS Operative in Philippines ‘Taken’ in Gunfight, President Says, nytimes (10/19/2017) it was noted that “A high-level Islamic State operative who funneled money and foreign fighters to the Philippines, helping militants seize territory there, was ‘taken’ during a gunfight on Thursday, President Rodrigo Duerte announced. The operative, Mahmud Ahmad, 39, a Malaysian former university lecturer, helped finance the siege of the southern city of Marawi, which jihadists stormed in May, killing scores of peoples and sending thousands of residents fleeing. After a fierce battle to retake the city, Mr. Duerte on Tuesday declared Marawi liberated”.

Mogadishu, Somalia

In Mohamed & Freytas-Tamura, Somalia Blasts Expose Security Failings and Possible Shabab Infiltration, nytimes (10/17/2017) it was noted that “Car bombs, grenade attacks, assassinations and abductions by Shabab insurgents shatter the fragile veneer of calm in Somalia with such regularity that barely a week goes by without a deadly assault. Two large explosions occur on average in Mogadishu…every month….But even by Somalia’s standards, the twin truck bombings this past Saturday in Mogadishu that killed more than 270 people, including at least three Somali-Americans were unusual in their scale and brutality”.

Egypt

In Walsh & Youssef, Militants Kill Egyptian Security in Devastating Ambush, nytimes (10/22/2017) it was noted that “Militants carried out a devastating ambush on a convoy of Egyptian police and security officers deep inside the western desert late Friday…At last 59 Egyptian police officers and security officials were killed”.

In 24 ISIS militants, 6 soldiers killed in mass attack in Sinai, Egypt, travelwirenews (10/15/2017) it was noted that “At least six soldiers and 24 ISIS militants have been killed (in) a series of coordinated attacks on checkpoints in the north of Egypt’s Sinai Peninsula…Six outposts…were simultaneously targeted with car bombs and rocket propelled grenades (RPGs) by Islamic State…fighters, which claimed responsibility for the attack”.

London, England

In Barry & Farrell, At Least 11 injured After Driver Crashes Car Into Pedestrians Near London History Museum, nytimes (10/7/2017) it was noted that “The London police arrested a man Saturday after his care jumped the curb and crashed into several pedestrians near the National History Museum, injuring at least 11 people…The crash, which the police said appeared to be a ‘road traffic collision’ and not terrorism, occurred on Exhibition Road in the South Kensington neighborhood”.

Spanish Civil War, Anyone?

In Minder, Spain Will Remove Catalonia Leader, Escalating Secession Crisis, nytimes (10/21/2017) it was noted that ”The escalating confrontation over Catalonia’s independence drive took its most serious turn on Saturday as Prime Minister Mariano Rajoy of Spain announced he would remove the leadership of the restive region and initiate a process of direct rule by the central government in Madrid. It was the first time that Spain’s government had moved to strip the autonomy of one of its 17 regions and the first time that a leader had invoked Article 155 of the Spanish Constitution-a broad tool intended to protect the ‘general interests’ of the nation”.

Myanmar’s Military Accountable

In US: Myanmar’s military accountable for Rohingya crisis, travelwirenews (10/19/2017) it was noted that “The United States holds Myanmar’s military leadership responsible for its harsh crackdown on the Rohingya minority, the US Secretary of state said. Rex Tillerson, however, stopped short of saying… Whether the US would take any action against Myanmar’s military leaders over an offensive that has driven more than 500,000 Rohingya out of the country”.

In Europe, US edge towards punishing Myanmar army leaders, travelwirenews (10/9/2017) it was noted that “The European Union and the United States are considering targeted sanctions against Myanmar military leaders over an offensive that has driven more than 500,000 Rohingya Muslims out of the country…The active discussion of sanctions-not even on the table a month ago-shows how the dramatic exodus of Rohingya Muslims from Myanmar’s northwest is putting pressure on Western policymakers to take action”.

Travel Ban Update

In Q&A: A look at most recent travel ban rulings, travelwirenews (10/19/2017) it was noted that “So far, the third time isn’t the charm for President Donald Trump’s travel ban. As with his previous two attempts to bar travelers from certain predominantly Muslim nations from entering the United States, his Travel Ban 3.0 has run into an immediate buzz saw in the courts. Federal judges in Hawaii and Maryland blocked it in rulings Tuesday and Wednesday, just before it was due to take affect”.

California Burning

In California fires: 40 dead, 5,700 buildings gone, travelwirenews (10/15/2017) it was noted that “California Fire-fighting authorities said Sunday that have turned a corner in battling several of the wildfires that have devastated wine country and other parts of the state over the past week”.

Is Cuba Making Us Sick?

In D’Ambrosio, After State Department Warning, Americans Return From Cuba Sick, travelmarketreport (10/10/2017) it was noted that “Less than two weeks after the United States Department of State warned Americans against traveling to Cuba, officials are telling news organizations that some U.S. private citizens who traveled to Cuba say they have experienced symptoms similar to the mysterious acoustic attacks on American diplomats in Havana…As reported in Travel Market Report, U.S. Investigators have been unable to determine the cause of symptoms experienced by more than 20 U.S. diplomats working in Havana during the last year and they do not know who may be behind the attacks”.

Lyft Exploring I.P.O.

In Isaac & Benner, Lyft Is Said to Explore I.P.O. as It Raises $1 Billion Led by Alphabet, nytimes (10/20/2017) it was noted that “In an escalation of its ride-hailing war against Uber, Lyft has begun to explore going public in 2018 and is trying to strengthen its position by raising more capital, including $1 billion in new financing led by investment arm of Google’s parent company…The funding values Lyft at $10 billion before the introduction of new capital-a significant jump from the company’s last valuation of $6.9 billion”.

Bike Sharing In “Golden Week”

In Bike-sharing becomes greener way to travel in ‘Golden Week’, travelwirenews (10/10/2017) it was noted that “Bike-sharing has become a major form of transport in China over the eight-day National Day holiday, with riders in first-tier cities most active, according to a report by China’s bike-sharing giant Mobike…riders have burned calories equivalent to 4.6 million bowls of rice in ‘Golden Week’ and reduced emissions equivalent to 170,000 cars off the road for eight days”.

China’s Electric Car Future Is Ours

In Bradsher, China Hastens the World Toward an Electric-Car Future, nytimes (10/9/2017) it was noted that “There is a powerful reason that automakers worldwide are speeding up their efforts to develop electric vehicles-and the reason is China. Propelled by vast amounts of government money and visions of dominating next-generation technologies, China has become the world’s biggest supporter of electric cars…Beijing has already called for one out of every five cars sold in China to run on alternative fuel by 2015. Last month, China issued new rules that would require the world’s carmakers to sell more alternative-energy cars here if they wanted to continue selling regular ones. A Chinese official recently said the country would eventually do away with the internal combustion engine in new cars”.

Passenger Draggers Fired

In Salam, Security Officers Fired for United Airlines Dragging Episode, nytimes (10/18/2017) it was noted that “Two airport security officers in Chicago have been fired for their roles in an episode in which a screaming passenger was violently dragged from a United Airline flight in April-an act that was captured on video, sending the airlines into a public relations tailspin”.

Dinosaurs Wake Up, Please

In Nash, Drilling Near Dinosaur National Monument Draws Criticism, nytimes (10/19/2017) it was noted that “Changes loom near remote Dinosaur National Monument in Utah. It’s a rough region of 1,000-foot cliffs and canyons, two wild rivers-the Green and Yampa-ancient rock art and archaeological evidence of 10,000 years of human history…and, most famously, spectacular dinosaur fossils. The Bureau of Management has announced that in December it will auction gas and oil drilling rights on 94,000 acres or 146 square miles, of land, some of it near the park’s entrance road”.

Alaska Open For Business

In The Editorial Board, The White House Sees Only Dollar Signs in the Arctic, nytimes (10/19/2017) it was noted that “Alaska is ‘open for business’. With these words, delivered before an appreciative audience of oil producers in Anchorage in May, Interior Secretary Ryan Zinke reaffirmed the Trump administration’s determination to open Alaska’s fragile environment to commercial exploitation…As early as Thursday, with Mr. Zinke and the rest of the administration cheering from the sidelines, the Senate could vote on opening the Arctic National Wildlife Refuge’s oil-rich coastal plane for drilling. Unlike the rest of the 19.6 million-acre refuge, mostly protected since its creation under President Dwight Eisenhower, the fate of the 1.5 million acre plain-the refuge’s biological heart-is up to Congress”.

Drone Hits Plane

In Passenger plane hit by drone while flying into Quebec airport, travelwirenews (10/15/2017) it was noted that “A Canadian passenger plane hit a drone while descending on Quebec City’s Jean Lesage International Airport…raising concerns about aviation safety. The incident with the Skyjet flight occurred around 3km from the airport at an altitude of 450 meters on October 12″.

Texas Hunting Safari, Anyone?

In Fernandez, Blood and Beauty on a Texas Exotic-Game Ranch, nytimes (10/19/2017) it was noted that “On a ranch at the southwestern edge of the Texas Hill County, a hunting guide spotted her cooling off in the shade: an African reticulated giraffe. Such is the curious state of modern Texas ranching, that a giraffe among the oak and mesquite is an everyday sort of thing. ‘That’s Buttercup’ said the guide…In a place of rare creatures, Buttercup is among the rarest; she is off limits to hunters at the Ox Ranch. Not so the African bongo antelope, one of the world’s heaviest and most striking spiral-horned antelopes, which roams the same countryside as Buttercup. The price to kill a bongo at the Ox Ranch is $35,000″.

The Seas They Are Arising

In Olick, Rising seas threaten nearly $1 trillion worth of US Homes, msn (10/18/2017) it was noted that “Coastal real estate in America is so often depicted in images of sprawling mansions with long lawns leading down to boat slips and sandy beaches…If sea levels were to rise 6 feet, 1.9 million homes, or $916 billion worth of U.S. residential real estate, could be lost, according to a new report from ZillowZG. Zillow looked at what types of homes would be flooded, absent preventative measures, based on the most recent estimates of sea-level increase by the end of the century”.

Booking Cheap Holiday Travel

In Sablich, How to Book the Cheapest Holiday Travel, nytimes (10/9/2017) it was noted that “If you’re looking to save some money this holiday season, data researchers have gotten pretty good at determining the best times to book air travel-as well as when to fly…The following are answers to the questions you should be asking yourself as you look to finalize your holiday travels. (1) How Long Can I Wait Before Prices Rise Significantly?…’Prices will really begin spiking by $10 per day during the final two weeks leading up to Thanksgiving’…If you’re traveling around the Christmas holiday season, the window for the lowest airfare has already closed’…(3) Does It Matter Which Day I Fly? Yes…Regarding Thanksgiving, the most expensive day to depart is the Wednesday before…For Christmas…the cheapest days to depart are Saturday, Dec. 16, or Tuesday, Dec. 10…(5) What Tools Are Out There To Help Me Save Money?… Consider setting up price-change email or mobile alerts from Hopper, Skyscanner, Google Flights or another airfare trackers”.

Love That West-Coast Salmon

In Buhayer, Ugly, fat and hated, East-Coast salmon create a frenzy out west, msn (9/30/2017) it was noted “In giant refrigerated warehouse 90 miles north of Seattle, 43,500 Atlantic salmon were stacked in plastic crates, frozen pariahs in a kingdom where Pacific salmon rule. For weeks, locals used nets to chase down the intruders, not to eat them or sell them, but to get them out of the water. Native fishermen who’ve worked Puget Sound for decades mocked them for looking different. Chefs and foodies refused to so much as lay a boning knife on them. Scientists…say they’re perfectly edible…But nobody is listening”.

India’s Dirtiest City

In Mountains of garbage and despair in India’s dirtiest city, travelwirenews (10/2/2017) it was noted that “Gonda City, India: Flies throng over piles of feces, the drains overflow with sewage and the foul smell in the air is inescapable. Welcome to Awas Vikas: one of the most exclusive parts of Gonda, a city suffering the ignominy of being branded the dirtiest in India. Even in such upmarket areas, garbage trucks are rarely seen, green spaces are littered with rubbish and residents are desperate for their bickering leaders to bring about change”.

Oh! Canada. What Have You Done?

In Austen, Canada to Pay Millions in Indigenous Lawsuit Over Forced Adoptions, nytimes (10/6/2017) it was noted that “For decades, Canadian social workers forcibly separated indigenous children from their families, putting them up for adoption by nonnative families in Canada and around the world. On Friday, the Canadian government took a step to make amends for that adoption program, which began in the 1960s and lasted till the 1980s, by agreeing to pay 750 million dollars in legal settlements. The settlement-affecting as many as 30,000 people-is part of a broader push across Canada in the last few years to grapple with its legacy of injustices against the country’s indigenous populations”.

Want A Private Jet?

In Black, Glut of private jets spur big bargains for aspiring buyers, msn (10/9/2017) it was noted that “Corporate-jet makers are flooding the market, spurring deep discounts for new aircraft and fueling a three-year slide in prices of used planes. Most major manufacturers, including Gulfstream and Bombardier Inc.-which is also contending with rising hurdles in its commercial business-have pared production somewhat in the last couple years as demand for private jets sagged. But that hasn’t been enough to halt declines in aircraft values, say consultants, brokers and analysts in the $18 billion industry”.

Explosion In Ghana

In Iyare & Stevens, Gas Station Explosion in Ghana Kills at Least 7 and injures Over 100, nytimes (10/7/2017) it was noted that “An explosion at a gas station in Ghana’s capital killed at least seven people and injured more than 130 others Saturday…Videos on social media showed giant balls of fire that set the night sky aglow. According to one witness…a fire started at a gas station in the capital, Accra, and then spread to another station nearby…there was an explosion that engulfed at least one tanker”.

Disrepair At Penn Station

In LaForgia, Before Derailments at Penn Station, Competing Priorities Led to Disrepair, nytimes (10/9/2017) it was noted that “Amtrak officials knew for years that they would have to replace large sections of deteriorating track in Pennsylvania Station in New York City. As engineering crews applied short-term fixes to rows of rotten ties, crumbling concrete and eroded steel, some of their managers repeatedly warned of the growing need to address underlying problems…Learning that officials were considering delaying the effort (replacement work on the most decrepit tracks) to give work time to a nearby passenger hall renovation… Mr. Keefe lost his temper. Hitting his hand on a table, he said ‘You’re not going to be happy until you put a train on the ground’. Weeks later, the derailments started”.

Therapy Dogs Travel To Las Vegas

In Therapy Dogs Travel to Help Las Vegas Shooting Victims, travelwirenews (10/9/2017) it was noted that “Local therapy dogs are on their way from South Jersey to Las Vegas. Their mission is to provide comfort and stress relief to the victims of the mass shooting”.

Travel Law Case Of The Week

The Mueller case raises the important issue of the enforceability of a forum selection clause (FSC) and choice of law clause in a travel contract which, typically, provides that all lawsuits brought by injured travelers must be litigated in a specific forum, often where the supplier or tour operator has its headquarters and, further, that the law of the forum must be applied to the resolution of the traveler’s claims [See Dickerson, In Hotel Law, the Best Defense Is an Enforceable Forum Selection Clause, New York Law Journal (5/26/2017); Dickerson, Travel Law, Law Journal Press (2017) at Section 1.03[5][a]; Dickerson, Gould & Chalos, Litigating International Torts in United States Courts, Thomson Reuters (2017) at Chapter 10].

FSCs Gaining Wide Acceptance

Forum selection clauses (FSCs) got their start in the cruise industry [Carnival Cruise Line v. Shutt, 499 U.S. 585, 591 (1991)] and are now used by hotels [Molino v. Sagamore, 105 A.D. 3d 922, 923 (N.Y.A.D. 2013)], ski resorts [Hall v. Ski Shawnee, 2006 WL 2869528 (E.D. Pa. 2006)], tour operators [Heinz v. Grand Circle Travel, 329 F. Sup. 2d 896 (W.D. Ky. 2004)], Internet travel sellers [Caldwell v. CheapCaribbean, 2010 WL 3603778 (E.D. Mich. 2010)], railroads [In re Ski Train Fire in Kaprun, Austria, 2002 U.S. Dist. LEXIS 14929 (S.D.N.Y. 2002)], resort time share facilities [D’Ekia v. Grand Caribbean Co., 2010 WL 1372027 (D.N.J. 2010)], para-gliding companies [Venard v. Jackson Hole Paragliding, 292 P. 3d 165 (Wyo. 2013)] and scuba diving companies [DiRuocco v. Flamingo Beach Hotel & Casino, 163 A.D. 2d 270, 271 (1990)].

The Mueller Case

As noted by the Mueller Court “Apple relies on a forum-selection clause which provides that the ’exclusive forum for the litigation of any claim or dispute arising out of or in any way relation to these terms and conditions or to any injury, damage, incident or event occurring during the course of your trip shall be the Court of Common Pleases of Delaware County, Pennsylvania’. This clause was included in a one-page document appended to the Muellers’ travel vouchers entitled ‘Advice to International Passengers on Limitation of Liability’. It was also included in a one-page document entitled ‘Fair Trade Contract’. This latter document is ‘part of every vacation package compiled by Apple Vacations and made available to travel agents. It is the travel agent’s responsibility to ensure that [it] is provided to every customer who purchases a vacation package compiled by Apple Vacations and sold by a travel agent’. Affidavit of Julia Davidson”.

Forum Non Conveniens

“[T]he appropriate was to enforce a forum-selection clauses is through the doctrine of forum non conveniens (which) is codified at (28 U.S.C. Section) 1404(a), which allows a federal district court to transfer a civil action to ‘any other district or division where it might have been brought or to any district or division to which all parties have consented’. Where, as ere, the clause points to a non-federal forum, courts apply the residual forum non conveniens doctrine instead of Section 1401(a). The only difference is procedural instead of a direct transfer or another court in the federal system, the case is dismissed and (presumably) re-filed in the correct forum”.

FSCs Usually Enforced

“Ultimately, and ‘in all but the most exceptional cases’ this analysis results in the forum selection being enforced [Atlantic Marine Constr. Co. v. U.S. District Court, 34 S. Ct. 568, 583 (2013)(“When parties have contracted in advance to litigate disputes in a particular forum, courts should not unnecessarily disrupt the parties; settled expectations. A forum-selection clause, after all, may have figured centrally in the parties’ negotiations and may have affected how they set monetary and other contractual terms; it may, in fact have been a critical factor in their agreement to do business together in the first place. In all but the most unusual cases, therefore, ‘the interest of justice’ is served by holding parties to their bargain”).

Conclusion

“This is not an exceptional case…The context of the Mueller’s transaction-purchasing a vacation package through a travel agent-is materially indistinguishable. Absent ;fraud, undue influence, or overweening bargaining power’, the clause must be enforced. Moreover, when parties ‘agree to a forum selection clause, they waive the right to challenge the preselected clause as inconvenient or less convenient for themselves of their witnesses, or for their pursuit of the litigation’ (citing Atl. Marine at 582)”.

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

This article may not be reproduced without the permission of Thomas A. Dickerson.

Read many of Justice Dickerson’s articles here.