Torts, Insurance & Compensation Law and Trial Lawyers Sections

NEW YORK STATE BAR ASSOCIATION

Section Chairs: Torts, Insurance & Compensation Law Kenneth A. Krajewski, Esq. Brown & Kelly, LLP Buffalo Trial Lawyers Charles J. Siegel, Esq. Law Offices of Charles J. Siegel New York City

Program Co-Chairs: Torts, Insurance & Compensation Law Terrence Lee Tarver, Esq. Tarver Law Firm, P.C. Garden City Trial Lawyers Thomas P. Valet, Esq. Rheingold, Valet, Rheingold, McCartney & Giuffra, PC New York City NYSBA Torts, Insurance & Compensation Law and Trial Lawyers Sections Joint Fall Meeting The New Orleans Marriott 555 Canal Street, New Orleans, LA October 7 – 10, 2016

Attendance at this meeting offers up to 7.5 MCLE credit hours – including 5.0 in professional practice and 2.5 in skills for all attorneys, both newly admitted and experienced. NEW YORK STATE BAR ASSOCIATION Getting Around New Orleans: Things to Do in the City: NATIONAL WORLD WAR II MUSEUM, 945 Magazine St., (504) 528-1944 Founded by historian/author, Stephen Ambrose, the Museum tells the story of the American Experience in the war that changed the world - why it was fought, how it was won, and what it means today - so that all generations will understand the price of freedom and be inspired by what they learn. A must see. www.nationalww2museum.org MARDI GRAS WORLD MUSEUM, 1380 Port of New Orleans Pl., (504) 361-7821 See what it takes to bring Mardi Gras to life year after year. Learn about the history of this unique tradition, going beyond its reputation for pure revelry to see the true roots of the REAL Mardi Gras in New Orleans. Floats galore. www.mardigrasworld.com PRESERVATION HALL, 726 St. Peter St., (504) 522-2841 Intimate, acoustic New Orleans Jazz concerts 350+ nights a year featuring ensembles from a current collective of 100+ local master practitioners. www.preservationhall.com Hotel: The New Orleans Marriott, 555 Canal Street Tel: 401-851-1234 Fax: 401-851-3201 AUDUBON NATURE INSTITUTE 6500 Magazine St. Visit the Zoo, the Aquarium and /or the Butterfl y Garden and Louis Armstrong International Airport Shuttle: Insectarium. Multiple ticket options available. VIP pass includes To schedule a shuttle, go to a kiosk on the fi rst level throughout water park, zoo tram and carousel. Take the St. Charles Ave. the baggage claim area. An attendant will assist with arranging streetcar though the Garden District which stops in front of your shuttle pick-up and will direct you to the proper shuttle Audubon Park: from there you can catch the Audubon Shuttle from stop. This is the cheapest way for a solo traveler (not using public St. Charles Avenue to the Zoo. Shuttle runs every 15 minutes during transportation) to get from the airport to the French Quarter. Since busy seasons. www.audubonnatureinstitute.org the Airport Shuttle rates are $24 per person ($44 round trip), the JEAN LAFITTE NATIONAL HISTORICAL PARK & PRESERVE price becomes more expensive with more people; children under 6 419 Decatur St., (504) 589-3882 ride free. Visit www.airportshuttleneworleans.com for more The park headquarters and its French Quarter Visitor Center is info. located at Decatur St. There are fi ve other park sites scattered throughout south Louisiana. For info., visit: www.nps.gov/jela Taxi: Quickest, easiest way for couples to get from airport. Fixed, fl at rate is $36 for 1 or 2 people; $15 per person for 3 or more. THE CABILDO, 701 Chartres St., (800) 568-6968 Traveling by taxi in the City, is also an option. Cabs must be called; Standing near St. Louis Cathedral in the French Quarter this elegant you cannot hail cabs in New Orleans. Call United Cabs, 504-522- Spanish colonial building was the site of the Louisiana Purchase 9771 or Nawlins Cab, 504-522-9059 or use their app. transfer in 1803, which fi nalized the US acquisition of the Louisiana Territory. It served as the center of New Orleans government until Car Rental: You will fi nd many Rental Agencies at the Airport. 1853, when it became the headquarters of the Louisiana State Valet Parking at the hotel is $40 per day. Street parking in the city is Supreme Court, where the landmark Plessy v. Ferguson decision hard to fi nd. originated in 1892. SInce 1908 it has been a Louisiana State Museum educating the public about Louisiana history. I t houses UBER: Often comparably priced to taxis and perhaps somewhat many rare artifacts of America’s history including Napoleon’s more reliable (plus easier to use, given the convenience of the app). death mask, one of only four in existence crafted by Dr. Francesco If you use the app on your phone in your home city, it works the Antommarchi, one of Napoleon Bonaparte’s physicians at the time same here. If you don’t, consider downloading it in advance of your of his death. www.louisianastatemuseum.org trip. Uber surge pricing is always in effect from the airport, so cabs THE PRESBYTERE, 751 Chartres St., Jackson Square, (504) tend to be the less expensive option traveling to/from airport. 568-6968 The Presbytere, designed in 1791 to match the Cabildo, alongside RTA Street Cars: 4 lines: St. Charles, Canal Street, Riverfront, St. Louis Cathedral in the French Quarter stands as a beautiful and Loyola Avenue. Don’t forget to have exact change for fare reminder of both Louisiana’s past and present. Originally called (under $2). Or purchase a Jazzy Pass and ride the streetcar as much Casa Curial or “Ecclesiastical House,” it was built on the site of as you desire. Passes are available online at www.norta.com/Fares- the residence, or presbytere, of the Capuchin monks. It was used Passes/Jazzy-Pass.aspx (mail or digital via app), from conductors for commercial purposes until 1834 when it became a courthouse. or at Walgreens and select grocery stores. Insider Tip: St. Charles In 1911, it became part of the Louisiana State Museum. Two Avenue line operates around the clock, but much fewer late at night exhibitions are currently on display: ”Living with Hurricanes: Katrina and in the early morning. After dark, calling a cab is your best bet. and Beyond” tells of rescue, rebuilding and renewal, and “Mardi Gras: It’s Carnival Time in Louisiana” captures the fun and fantasy of the annual celebration. www.louisianastatemuseum.org For additional info. on New Orleans, visit: www.neworleansonline.com or CARNAVAL LATINO: SATURDAY, OCTOBER 8 www.neworleanscvb.com Celebration of Latin Music and the city’s Hispanic heritage and culture. www.carnavalatinola.com 2 SCHEDULE OF EVENTS Friday, October 7 2:30 – 6:00 p.m. Registration - Riverview Pre-Function, 41st Floor 3:00 – 5:00 p.m. Torts, Insurance & Compensation Law Section Executive Committee Meeting - Riverview 1, 41st Floor 3:30 – 5:00 p.m. Trial Lawyers Section Executive Committee Meeting - Lafayette Room, 41st Floor 5:30 – 6:30 p.m. Welcome Reception for Attendees and Non-Resident Members - Riverview Pre-Function Co-Sponsored by LexisNexis Dinner on your own 8:30 – 10:30 p.m. Join us back at the Hotel after Dinner for a Taste of New Orleans! - Napoleon, 41st Floor Local specialties include assorted Beignets with dipping sauces, Swamp Pop sodas, Ice Cream and Italian Ices from Angelo Brocato’s, Louisiana craft beers and cocktails. Sponsored by ABI DOCUMENT SUPPORT SERVICES

Saturday, October 8 7:30 – 8:20 a.m. Torts, Insurance & Compensation Law Section Executive Committee Breakfast Meeting - Riverview 1, 41st Floor 7:30 – 8:20 a.m. Trial Lawyers Section Executive Committee Breakfast Meeting - St. Charles, 41st Floor 7:30 a.m. Registration & Continental Breakfast - Riverview Pre-Function, 41st Floor 8:30 a.m. – 12:15 p.m. GENERAL SESSION - Riverview 2, 41st Floor 8:30 – 8:45 a.m. New York State Bar Association Welcome CLAIRE P. GUTEKUNST, ESQ., PRESIDENT Trial Lawyers Section Welcome Torts, Insurance & Compensation Law CHARLES J. SIEGEL, ESQ. Section Welcome Law Offices of Charles J. Siegel KENNETH A. KRAJEWSKI, ESQ. New York City Brown & Kelly, LLP Buffalo 8:45 – 9:35 a.m. Appellate Practice: What Every Trial Attorney Needs to Know but Was Afraid to Ask Whether you are a seasoned trial attorney or just starting out, the who, what, where and how in perfecting and responding to an appeal. (1.0 credit in Skills) Panelists: MICHAEL KESTAN, ESQ. VINCENT CHIRICO, ESQ. AppealTech Chirico Law Firm New York City Brooklyn 9:35 – 10:50 a.m. How to Protect the Record: A View From the Bench A practical guide for attorneys of all levels of practice on protecting the record for appellate review. (1.5 credits in Professional Practice) Panelists: HONORABLE EUGENE F. PIGOTT, JR. HONORABLE MICHAEL J. GARCIA New York State Court of Appeals New York State Court of Appeals Albany Albany 10:50 – 11:00 a.m. Refreshment Break - Riverview Pre-Function, 41st Floor Sponsored by BROWN & KELLY LLP

3 SCHEDULE OF EVENTS

Saturday, October 8 continued 11:00 a.m. – 12:15 p.m. Emails/Social Media/Texts & Videos: What to Look For, Where to Find It and What to Do with It A view from the bench and trial practitioners as to the means and methods in obtaining and collecting electronic source information, getting it into or keeping it out of evidence. (1.5 credits in Skills) Panelists: HON. ARTHUR M. DIAMOND EILEEN E. BUHOLTZ, ESQ. NYS Supreme Court, Nassau County Connors, Corcoran & Buholtz Mineola Rochester GARY A. CUSANO, ESQ. DAVID P. HOROWITZ, ESQ. Law Offi ce of Gary A. Cusano Geringer, McNamara & Horowitz LLP Yorktown Heights New York City OPTIONAL AFTERNOON EVENTS 12:30 p.m. GOLF: LAKEWOOD GOLF CLUB, 4801 General De Gaulle Dr., New Orleans. Recently updated by Award-winning golf course architect Ron Garl who has preserved the character of the original course, while upgrading the 18-hole, 7,002 yards, par 72 course with modernized fair- ways, tee boxes and greens - new improvements to an old favorite. Garl has added strategy and fun with new fairway contouring and unique bunkering. Soft-spikes ONLY. Directions to course will be provided. Allow 30 minutes travel time. Meet in lobby at 12:30 to car pool or UBER to course. First tee time is 1:15 p.m. Pre-registration required. $105.00 per person includes box lunch, greens fee & golf cart (transportation to course not included; club rentals extra.) Golf Chairs: Daniel G. Ecker, Esq. & James O’Connor, Esq. 1:00 – 4:30 p.m. RACONTOURS’ HISTORY OF NEW ORLEANS THROUGH FOOD & DRINK Among majestic live Oaks and grand, Greek Revival homes lies New Orleans’ Garden District, inspira- tion to such literary greats as Mark Twain, George Washington Cable and Ann Rice. In the heart of the District stands Commander’s Palace Restaurant, winner of fi ve James Beard Awards and the Grand Award from Wine Spectator Magazine; home of haute Creole cooking. Its renowned chefs have included Emeril Lagasse, Paul Prudhomme, Jamie Shannon, and now Tory McPhail. Enjoy a lavish four course brunch, complete with beverages and live music. Discover the rich history of New Orleans through a taste tour of its cuisine at this lauded landmark open since1893! After brunch, we venture out for a short tour of the surrounding Garden District or guests may explore the area on their own. Magazine St., with fabulous boutique shopping, is only 3 blocks away. EVENT IS SOLD OUT. $125 per person includes live jazz brunch with choice of entrees and drinks. Restaurant Dress Code: Jacket preferred, collared shirts, closed-toe shoes required for gentlemen. No jeans, shorts, fl ip- fl ops, t-shirts, sweat shirts or sweat pants. Meet at Commander’s Palace Restaurant, 1403 Washington Avenue, at 12:50 pm. Directions provided. Ages 21+. 1:00 – 3:30 p.m. LE MONDE CREOLE: THE INSIDER’S FRENCH QUARTER, COURTYARDS & CEMETERY TOUR Step into the mysterious, remarkable lives of generations of Creoles in New Orleans; meet the specters of those long dead and the European and African branches of this community through the memoirs of Laura Locoul Gore of Laura Plantation. Learn how their world tragically dissolves through changing society, civil war, the birth of Jazz and the Americanization of the city. Stops on the tour include Locoul family residences, private courtyards, original French Quarter homes and the marvelous New Orleans Pharmacy Museum to explore the townhouse and the garden where herbs were grown for use in apothecary solutions and voodoo potions. The tour also stops at the Locoul family tomb in the stun- ning St. Louis Cemetery #1, where you can also view the tomb of Voodoo priestess Marie Laveau! Preregistration required. $25 per person/children ages 10 - 18, $20. Tour departs from 606 Royal St. at 1:15 p.m. 10 minute walk from Hotel. Directions provided. TOUR IS SOLD OUT. 1:10 – 5:45 p.m. PEARL RIVER ECO-TOUR, HONEY ISLAND SWAMP, SLIDDELL, LA Journey deep into the wetland’s to enjoy the flora and fauna of Louisiana’s crown jewel Honey Island Swamp and learn about its eco-system. See alligators, exotic waterfowl, snakes, turtles, bears, feral pigs and more! Meet in hotel lobby at 1:10 p.m. for bus. Preregistration required. $52 per person; children under 12: $32.50. Price includes transportation. TICKETS STILL AVAILABLE. 4 SCHEDULE OF EVENTS

Saturday, October 8 continued COCKTAILS AND DINNER: 7:00 – 10:00 p.m. K-PAUL’S LOUISANA KITCHEN, 416 Chartres St. Opened in 1979 by celebrated Chef Paul Prudhomme. Current Chef Paul Miller joined him soon thereafter, taking over the reins in the 80s. Miller furthered the restaurant’s use of fresh, local ingredients in the creation of ﬂ avorful, authentic Louisiana cooking. Meet in hotel lobby at 6:45 to walk to K-Paul’s. This dinner is not included in Children’s Registration Fees. Reception Sponsored by MDD FORENSIC ACCOUNTANTS Sunday, October 9 8:15 a.m. Registration & Continental Breakfast - Riverview Pre-Function, 41st Floor 8:45 – 11:55 a.m. GENERAL SESSION - Riverview 2, 41st Floor 8:45 – 8:50 a.m. Concluding Remarks: KENNETH A. KRAJEWSKI, ESQ., Brown & Kelly LLP, Buffalo 8:50 – 9:40 a.m. Louisiana v. New York: The Napoleonic Code and English Common Law A general overview of each state’s civil procedure & practice, from the simple to the sophisticated. (1.0 credit in Professional Practice) Moderator: TERRENCE LEE TARVER, ESQ., Tarver Law Firm, P.C., Garden City Panelists: SHERYL D. STORY, ESQ. MICHAEL C. TROMELLO, ESQ. Law Ofﬁ ces of Sheryl D. Story Tromello, McDonald & Kehoe Metairie, LA Melville ELIA DIAZ-YAEGER, ESQ. RICHARD W. DAWSON, ESQ. Lugenbuhl, Wheaton, Peck, Conway, Farrell, Curtin & Kelly, P.C. Rankin & Hubbard New York City New Orleans, Louisiana HON. TIFFANY GAUTIER CHASE DAVID P. HOROWITZ, ESQ. Orleans Civil District Court Geringer, McNamara & Horowitz LLP New Orleans, Louisiana New York City 9:40 – 9:50 am. Refreshment Break - Riverview Pre-Function, 41st Floor Sponsored by RHEINGOLD, VALET, RHEINGOLD, MCCARTNEY & GIUFFRA, PC 9:50 – 11:05 a.m. Traumatic Brain Injuries: The Medicine Every Attorney Needs to Know A discussion of the latest medicine and science and its admissibility under the law. (1.5 credits in Professional Practice) DR. KISHORE RANADE ROBERT D. BARONE, ESQ. UMC Medical Consultants The Tarantino Law Firm, LLC. Purchase Buffalo 11:05 – 11:55 a.m. Admiralty Law: The Cruise Passengers’ Rights & Remedies 2016 The law & remedies for passengers whether at sea or on the shore. (1.0 credit in Professional Practice) Speaker: Hon. THOMAS A. DICKERSON Appellate Division, Second Department Brooklyn 5 SCHEDULE OF EVENTS

Sunday, October 9 continued OPTIONAL AFTERNOON ACTIVITIES 12:15 p.m. GOLF: TPC LOUISIANA, 11001 Lapalco Blvd, Avondale. Named “the #4 Best Upscale Public Golf Course” by Golf Digest when it debuted in 2004. Consistently included in GolfWeek’s “Best Courses You Can Play.” (Golf Digest Top 100 Public Golf Course). Soft-spikes ONLY. Directions to course will be provided. Allow 45 minutes travel time. Meet in lobby at 12:15 to car pool or UBER to course. First tee time is 1:15 p.m. Pre-registration required. $185.00 per person includes box lunch, greens fee & golf cart (transportation not included; club rentals extra.)

1:00 - 4: 30 p.m. RACONTOURS’ HISTORY OF NEW ORLEANS THROUGH FOOD & DRINK See description on page 4. $125 per person includes live jazz brunch with choice of entrees and cocktails. Meet at Commander’s Palace, 1403 Washington Avenue, no later than 12:50 p.m. Very Limited Availability. Preregistration Required. $125 per person. Ages 21 +. 1:00 – 3:30 p.m. LE MONDE CREOLE: THE INSIDER’S FRENCH QUARTER, COURTYARDS & CEMETERY TOUR See description on page 4. Preregistration Required: $25 per person/children ages 10 - 18, $20. Tour departs from 606 Royal Street at 1:15 pm. Directions to Royal Street will be provided. 2:00 – 4:30 p.m. STEAMBOAT NATCHEZ JAZZ CRUISE & BRUNCH Jump aboard for a two hour cruise from the heart of the French Quarter back to a time when life was as slow and graceful as the current on the Mississippi. Brunch buffet and traditional jazz by the Steamboat Stompers. Boat Boards at 2 p.m. Directions to Launch Provided. Preregistration Required. $40.00 per person; children ages 6 to 12: $23.00; children under 6: $11.00. CRUISE TICKETS SOLD OUT. 7:00 – 8:00 p.m. Cocktail Reception at the Hotel - Riverview Pre-Function, 41st Floor Co-Sponsored by DIETZ COURT REPORTING & VANSON INVESTIGATIONS, INC. Monday, October 10 11:00 a.m. Check Out/Departure

Important Information The New York State Bar Association’s Meetings Department regarding accessibility, please contact Catheryn Teeter at has been certified by the NYS Continuing Legal Education New York State Bar Association, One Elk Street, Albany, New Board as an accredited provider of continuing legal York 12207 or [email protected] at least 21 days prior to education in the State of New York. Under New York’s the start of the meeting. MCLE rule, this program has been approved for a total of 7.5 credit hours; 2.5 in skills and 5.0 in professional DISCOUNTS AND SCHOLARSHIPS: New York State Bar practice for both newly admitted and experienced Association members and non-members may receive attorneys. financial aid to attend this program. Under this policy, anyone who requires financial aid may apply in writing, not ACCOMMODATIONS FOR PERSONS WITH DISABILITIES: later than 21 working days prior to the program, explaining NYSBA welcomes participation by individuals with disabilities. NYSBA is committed to complying with all the basis of his/her hardship, and if approved, may receive a applicable laws that prohibit discrimination against discount or scholarship. Scholarships apply to the individuals on the basis of disability in the full and equal educational portion of the program only. For more details, enjoyment of its goods, services, programs, activities, please contact: [email protected] or Catheryn Teeter, New facilities, privileges, advantages, or accommodations. To York State Bar Association, One Elk Street, Albany, New York request auxiliary aids or services or if you have any questions 12207. (518) 487-5573

6 THE TORTS, INSURANCE & COMPENSATION AND TRIAL LAWYERS SECTIONS THANK THE FOLLOWING SPONSORS:

Medical Evaluations Since 1996 www.umc4ime.com 800-486-2887

Mark Hoorwitz, President

TABLE OF CONTENTS

Saturday Sessions Panel One Appellate Practice: What Every Trial Attorney Needs to Know but Was Afraid to Ask ...... 1 Michael Kestan, Esq...... 3 Vincent Chirico, Esq...... 61

Panel Two How to Protect the Record: A View from the Bench ...... 77 Hon. Eugene F Pigott, Jr. and Hon. Michael J. Garcia ...... 79

Panel Three Emails/Social Media/Texts & Videos: What to Look For, Where to Find It ...... 95 Hon. Arthur M. Diamond ...... 97 Eileen E. Buholtz, Esq...... 115 David P. Horowitz, Esq...... 133

Sunday Sessions Panel Four Louisiana v. New York: The Napoleonic Code and English Common Law ...... 173 David P. Horowitz, Esq...... 175 Sheryl D. Story, Esq...... 209

Panel Five Traumatic Brain Injuries: The Medicine Every Attorney Needs to Know ...... 223

Dr. Kishore Ranade ...... 225 Robert D. Barone, Esq...... 233

Panel Six Admiralty Law: The Cruise Passengers’ Rights & Remedies 2016 ...... 245

Hon. Thomas A. Dickerson ...... 247

Biographies ...... 459

PANEL ONE

APPELLATE PRACTICE: WHAT EVERY TRIAL ATTORNEY NEEDS TO KNOW BUT WAS AFRAID TO ASK

1 2 APPELLATE COURT CHECKLISTS

COURTESY OF: APPEALTECH YOUR APPELLATE PARTNER 7 WEST 36TH STREET  12TH FLOOR NEW YORK, NEW YORK 10018 TEL. 212-213-3222  FAX 212-213-9702 www.appealtech.com

3 4 Appellate Division, First Department Checklists

5 6 APPEALTECH YOUR APPELLATE PARTNER New York Supreme Court Appellate Division, First Department Checklists

Checklist for Record on Appeal on Judgment after Trial

 Table of Contents — §600.10(b)(1)(i)

 Statement Pursuant to CPLR 5531 or Pre-argument Statement — §600.10(b)(1)(ii)

 Notice of Appeal — §600.10(b)(1)(iii)

 Judgment Appealed From — §600.10(b)(1)(iii)

 Order, Memorandum Decision or Opinion, if any, of the Trial Court — §600.10(b)(1)(vi)

 Remainder of the Judgment Roll — including pleadings; any Order necessarily affecting the final Judgment; any earlier determination of Appellate Court — §600.10(b)(1)(iii)

 Settled and Corrected Transcript — §600.10(b)(1)(iii)

 Exhibits Entered into Evidence at Trial — §600.10(b)(1)(iii)

 Stipulation Settling Transcript or Affirmation of Compliance — §600.10(b)(1)(v)

 Stipulation as to Exhibits (if necessary) — §600.10(b)(1)(vii)

 Certification Pursuant to CPLR 2105 or Stipulation Pursuant to CPLR 5532 Waiving Certification or Certificate by Proper Clerk — §600.10(b)(1)(viii)

 Electronic Requirement in addition to Paper Service and Filing — §600.11(b)(2)(3)

APPEALTECH YOUR APPELLATE PARTNER New York Supreme Court Appellate Division, First Department Checklists

Checklist for Record on Appeal on Order Rendered upon Motion Papers

 Table of Contents — §600.10(b)(1)(i)

 Statement Pursuant to CPLR 5531 or Pre-argument Statement — §600.10(b)(1)(ii)

 Notice of Appeal — §600.10(b)(1)(iv)

 Order Appealed From — §600.10(b)(1)(iv)

 Memorandum Decision (if any) — §600.10(b)(1)(vi)

 Notice of Motion or Order to Show Cause, Supporting Affidavits, and any attached exhibits — §600.10(b)(1)(iv)

 Affidavits in Opposition and any attached exhibits — §600.10(b)(1)(iv)

 Reply Affidavits in Further Support and any attached exhibits — §600.10(b)(1)(iv)

 Certification Pursuant to CPLR 2105 or Stipulation Pursuant to CPLR 5532 Waiving Certification or Certificate by proper clerk — §600.10(b)(1)(viii)

 Electronic Requirement in addition to Paper Service and Filing — §600.11(b)(2)(3)

APPEALTECH YOUR APPELLATE PARTNER New York Supreme Court Appellate Division, First Department Checklists

1 Checklist for Appendix

 Table of Contents — §600.10(c)(4)  Statement Pursuant to CPLR 5531 or Pre-argument Statement  Notice of Appeal — §600.10(c)(2)(i)  Judgment or Order Appealed From — §600.10(c)(2)(i)  Memorandum Decision (if any) — §600.10(c)(2)(i)  Pleadings (if their sufficiency, content or form is at issue or material) — §600.10(c)(2)(i)  If appropriate: Notice of Motion or Order to Show Cause and relevant excerpts from motion papers — §600.10(c)(2)(i)  Relevant excerpts from transcript — §600.10(c)(2)(ii)  If appropriate: Findings of Fact, Conclusions of Law, Charge to Jury, Verdict — §600.10(c)(2)(i)  Copies of critical exhibits — §600.10(c)(2)(iii)  If appropriate: Stipulation Settling Transcript or Affirmation of Compliance  Electronic Requirement in addition to Paper Service and Filing — §600.11(b)(2)(3)

1 In the Appellate Division, First Department, per Rule 600.10(c) and CPLR 5528, the Appendix should contain “such parts of the Record on Appeal as are necessary to consider the questions involved, including those parts the Appellant reasonably assumes will be relied upon by the Respondent,” including, where applicable, at least the above indicated items. Attorneys proceeding on the Appendix method are required to submit to the Clerk of the Court of original instance the following: a Subpoena Duces Tecum, along with two copies of the 5531 Statement or Pre-argument statement, two copies of a Statement of Attorney, and a subpoena fee. The lower court clerk will prepare a certificate listing the papers constituting the Record on Appeal or will ask for assistance in preparing the certificate.

APPEALTECH YOUR APPELLATE PARTNER New York Supreme Court Appellate Division, First Department Checklists

Checklist for Appellant’s Brief Content  Table of Contents, including argument point headings — §600.10(d)(2)(i)  Table of Authorities (required in First Department) — §600.10(d)(2)(i)  Statement of Questions Involved — §600.10(d)(2)(ii)  Statement of the Case and of the Facts, with reference to Appendix or Record on Appeal pages — §600.10(d)(2)(iii)  Argument (divided into points by appropriate headings) — §600.10(d)(2)(iv)  Conclusion — §130-1.1a  Signature — §130-1.1a  Printing Specifications Statement — §600.10(d)(1)(v)  Statement Pursuant to CPLR 5531 or Pre-argument Statement — §600.10(d)(2)(v) Format

 Font Size — §600.10(a)(3) (Proportional) 14 pt. text, 12 pt. footnotes, 15 pt. headings (Monospaced) 12 pt. text, 10 pt. footnotes, 14 pt. headings  Typeface — §600.10(a)(3) Clear serifed typeface  Margins — §600.10(a)(4) At least one inch on all sides  Line Spacing — §600.10(a)(4) Text must be double-spaced. Footnotes, headings, and indented quotations may be single-spaced

 Word and Page Limit — §600.10(d)(1)(i) 14,000 words and 70 page maximum

 Electronic Requirement in addition to Paper Service and Filing — §600.11(b)(2)(3)

APPEALTECH YOUR APPELLATE PARTNER New York Supreme Court Appellate Division, First Department Checklists

 Word and Page Limit — §600.10(d)(1)(i) 14,000 words and 70 page maximum

 Electronic Requirement in addition to Paper Service and Filing — §600.11(b)(2)(3)

APPEALTECH YOUR APPELLATE PARTNER New York Supreme Court Appellate Division, First Department Checklists

Checklist for Respondent’s Brief Content  Table of Contents, including point headings of the argument — §600.10(d)(3)(i)  Table of Authorities (required in First Department) — §600.10(d)(3)(i)  Counterstatement of Questions Involved (if Respondent disagrees with statement of Appellant) — §600.10(d)(3)(ii)  Counterstatement of Nature of Case and of Facts (if Respondent disagrees with statement of Appellant) — §600.10(d)(3)(ii)  Argument (divided into points by appropriate headings) — §600.10(d)(3)(iii)  Conclusion — §130-1.1a  Signature — §130-1.1a  Printing Specifications Statement — §600.10(d)(1)(v) Format  Font Size — §600.10(a)(3) (Proportional) 14 pt. text, 12 pt. footnotes, 15 pt. headings (Monospaced) 12 pt. text, 10 pt. footnotes, 14 pt. headings  Typeface — §600.10(a)(3) Clear serifed typeface  Margins — §600.10(a)(4) At least one inch on all sides  Line Spacing — §600.10(a)(4) Text must be double-spaced. Footnotes, headings, and indented quotations may be single-spaced

 Word and Page Limit — §600.10(d)(1)(i) 14,000 words and 70 page maximum

 Electronic Requirement in addition to Paper Service and Filing — §600.11(b)(2)(3)

APPEALTECH YOUR APPELLATE PARTNER New York Supreme Court Appellate Division, First Department Checklists

Checklist for Reply Brief Content  Table of Contents, including the point headings of the argument — §600.10(d)(4)(i)  Table of Authorities (required in First Department) — §600.10(d)(4)(i)  Argument, divided into points by appropriate headings — §600.10(d)(4)(ii)  Conclusion — §130-1.1a  Signature — §130-1.1a  Printing Specifications Statement — §600.10(d)(1)(v) Format  Font Size — §600.10(a)(3) (Proportional) 14 pt. text, 12 pt. footnotes, 15 pt. headings (Monospaced) 12 pt. text, 10 pt. footnotes, 14 pt. headings  Typeface — §600.10(a)(3) Clear serifed typeface  Margins — §600.10(a)(4) At least one inch on all sides  Line Spacing — §600.10(a)(4) Text must be double-spaced. Footnotes, headings, and indented quotations may be single-spaced

 Word and Page Limit — §600.10(d)(1)(i) 7,000 words and 35 page maximum

 Electronic Requirement in addition to Paper Service and Filing — §600.11(b)(2)(3)

14 Appellate Division, Second Department Checklists

15 16 APPEALTECH YOUR APPELLATE PARTNER New York Supreme Court Appellate Division,

Second Department Checklists

New York Supreme Court Appellate Division, Second Department

Checklist for Record on Appeal on Judgment after Trial

 Table of Contents — §670.10.2(b)(3)  Statement Pursuant to CPLR 5531 — §670.10.2(b)(2)  Notice of Appeal — §670.10.2(b)(4)  Judgment Appealed From — §670.10.2(b)(4)  Order, Memorandum Decision or Opinion, if any, of the trial court — §670.10.2(b)(4)  Remainder of the Judgment Roll — including pleadings and any Order necessarily affecting the final judgment — §670.10.2(b)(4)  Settled and corrected transcript — §670.10.2(b)(4)  Exhibits entered into evidence at trial — §670.10.2(b)(4)  Stipulation Settling Transcript, Affirmation of Compliance or Order Settling Transcript — §670.10.2(b)(5)  Stipulation as to Exhibits (if necessary) — §670.10.2(b)(6)  Certification Pursuant to CPLR 2105 or Stipulation Pursuant to CPLR 5532 waiving certification or Certificate by proper clerk — §670.10.2(b)(7) and §670.10.2(f)

APPEALTECH YOUR APPELLATE PARTNER New York Supreme Court Appellate Division,

Second Department Checklists

New York Supreme Court Appellate Division, Second Department

Checklist for Record on Appeal on Order Rendered upon Motion Papers

 Table of Contents — §670.10.2(b)(3)  Statement Pursuant to CPLR 5531 — §670.10.2(b)(2)  Notice of Appeal or Order of Transfer — §670.10.2(b)(2)  Order Appealed From — §670.10.2(b)(2)  Memorandum Decision, if any — §670.10.2(b)(2)  Notice of Motion or Order to Show Cause, supporting Affidavits, and any attached exhibits — CPLR 5526  Affidavits in opposition and any attached exhibits — CPLR 5526  Reply Affidavits in further support and any attached exhibits — CPLR 5526  Certification Pursuant to CPLR 2105 or Stipulation Pursuant to CPLR 5532 waiving certification or Certificate by proper clerk — §670.10.2(b)(7) and §670.10.2(f)

APPEALTECH YOUR APPELLATE PARTNER New York Supreme Court Appellate Division,

Second Department Checklists

New York Supreme Court Appellate Division, Second Department

1 Checklist for Appendix

 Table of Contents — §670.10.2(c)(2)  Statement Pursuant to CPLR 5531 — §670.10.2(c)(2)  Notice of Appeal or Order of Transfer — §670.10.2(c)(1)(i)  Judgment or Order Appealed From — §670.10.2(c)(1)(ii)  Memorandum Decision, if any — §670.10.2(c)(1)(iii)  Pleadings, if their sufficiency, content or form is at issue or material — §670.10.2(c)(1)(iv)  If appropriate: Notice of Motion or Order to Show Cause and relevant excerpts from motion papers — §670.10.2(c)(1)(v)  Relevant excerpts from transcript — §670.10.2(c)(1)(v)  Copies of critical exhibits — §670.10.2(c)(1)(vi)  If appropriate: Stipulation Settling Transcript or Affirmation of Compliance — CPLR 5525  Certification Pursuant to CPLR 2105 or Stipulation Pursuant to CPLR 5532 waiving certification or Certificate by proper clerk — §670.10.2(c)(1)(vii) and §670.10.2(f)

1 In the Appellate Division, Second Department, per Rule 670.10.2(c) and CPLR 5528, the Appendix should contain “such parts of the Record on Appeal as are necessary to consider the questions involved, including those parts the Appellant reasonably assumes will be relied upon by the Respondent,” including, where applicable, at least the above indicated items. Attorneys proceeding on the Appendix method are required to submit to the Clerk of the Court of original instance the following: a Subpoena Duces Tecum, along with the 5531 Statement and a subpoena fee. Several of the Courts of original instance require that the subpoena be “so ordered.” The lower court clerk will prepare a certificate listing the papers constituting the Record on Appeal and will thereafter forward the file to the Appellate Division, Second Department.

APPEALTECH YOUR APPELLATE PARTNER New York Supreme Court Appellate Division,

Second Department Checklists

New York Supreme Court Appellate Division, Second Department

Checklist for Appellant’s Brief

Content  Statement Pursuant to CPLR 5531 — §670.10.3(g)(2)(i)  Table of Contents, including the point headings of the argument — §670.10.3(g)(2)(ii)  Statement of Questions Involved — §670.10.3(g)(2)(iii)  Statement of the Nature of the Action or Proceeding and of the Facts, with reference to Appendix or Record on Appeal pages — §670.10.3(g)(2)(iv)  Argument, divided into points by appropriate headings — §670.10.3(g)(2)(v)  Conclusion  Signature — §130-1.1a  Certificate of Compliance — §670.10.3(f) Format  Font Size — §670.10.3(a)(1), (2) (Proportional, such as Times) 14 pt. text, 12 pt. footnotes (Monospaced, such as Courier) 12 pt. text, 10 pt. footnotes  Typeface — §670.10.3(a) Serifed; no words in bold or all caps, except in headings  Margins — §670.10.3(c) At least one inch on all sides  Line spacing — §670.10.3(c) Double, except single for quotes longer than two lines, headings, and footnotes  Word limit — §670.10.3(a)(3): 14,000 words

APPEALTECH YOUR APPELLATE PARTNER New York Supreme Court Appellate Division,

Second Department Checklists

New York Supreme Court Appellate Division, Second Department

Checklist for Respondent’s Brief

 Table of Contents, including the point headings of the argument — §670.10.3(g)(3)(i)  Counterstatement of Questions Involved, if Respondent disagrees with statement of Appellant — §670.10.3(g)(3)(ii)  Counterstatement of Nature of Case and of Facts, if Respondent disagrees with statement of Appellant — §670.10.3(g)(3)(ii)  Argument, divided into points by appropriate headings — §670.10.3(g)(3)(iii)  Conclusion  Signature — §130-1.1a  Certificate of Compliance — §670.10.3(f) Format  Font Size — §670.10.3(a)(1), (2) (Proportional) 14 pt. text, 12 pt. footnotes (Monospaced) 12 pt. text, 10 pt. footnotes  Typeface — §670.10.3(a) Serifed; no words in bold or all caps, except in headings  Margins — §670.10.3(c) At least one inch on all sides  Line spacing — §670.10.3(c) Double, except single for quotes longer than two lines, headings, and footnotes  Word limit — §670.10.3(a)(3): 14,000 words

APPEALTECH YOUR APPELLATE PARTNER New York Supreme Court Appellate Division,

Second Department Checklists

New York Supreme Court Appellate Division, Second Department

Checklist for Reply Brief

 Table of Contents, including the point headings of the argument — §670.10.3(g)(4)(i)  Argument, divided into points by appropriate headings — §670.10.3(g)(4)(ii)  Conclusion  Signature — §130-1.1a  Certificate of Compliance — §670.10.3(f) Format  Font Size — §670.10.3(a)(1), (2) (Proportional) 14 pt. text, 12 pt. footnotes (Monospaced) 12 pt. text, 10 pt. footnotes  Typeface — §670.10.3(a) Serifed; no words in bold or all caps, except in headings  Margins — §670.10.3(c) At least one inch on all sides  Line spacing — §670.10.3(c) Double, except single for quotes longer than two lines, headings, and footnotes  Word limit — §670.10.3(a)(3): 7,000 words

New York State Court of Appeals Checklists

APPEALTECH YOUR APPELLATE PARTNER New York State Court of Appeals Checklists

New York State Court of Appeals Checklist for Motion for Leave to Appeal

Return Date  Return date is always a Monday or, if Monday is a legal holiday, the first business day of the week — §500.21

• Personal service: must give at least eight days notice — CPLR 2214[b].

• Regular mail service: must give at least 13 days notice — CPLR 2103[b][2].

• Overnight delivery service: must give at least nine days notice — CPLR 2103[b][6]

 Must be filed at the New York State Court of Appeals, with proof of service, no later than noon on the Friday preceding the return date.

Contents of Motion — 22 NYCRR §500.22  Disclosure Statement — §500.1(f)  A notice of motion.  A statement of the procedural history of the case, including a showing of the timeliness of the motion.

• Date movant was served (CPLR 2103 [b]) with the order or judgment sought to be appealed from, with notice of entry.

• If a prior motion for leave to appeal filed at the Appellate Division, demonstrate timeliness by stating:

. the date movant was served with the order or judgment sought to be appealed from, with notice of entry,

. the date movant served the notice of motion addressed to the Appellate Division upon each of the other parties, and

. the date movant was served with the Appellate Division order denying leave to appeal with notice of entry.

APPEALTECH YOUR APPELLATE PARTNER New York State Court of Appeals Checklists

 Jurisdictional statement

• the order or judgment sought to be appealed from is a final determination or a nonfinal order appealable by permission of the Court of Appeals (CPLR 5602[a][2]).

 Questions presented for review and why the questions presented merit review by this Court.

• Movant shall identify the particular portions of the record where the questions sought to be reviewed are raised and preserved.

 A disclosure statement pursuant to section 500.1 of this Part, if required.

 One copy of the record below, or appendix if that method was used in the court below.

 One copy of the briefs filed below by each of the parties.

Format

 Font Size — §500.1(j)(1)(2) (Proportional) 14 pt. text, 12 pt. footnotes (Monospaced) 12 pt. text, 10 pt. footnotes

 Margins — §500.1(L) At least one inch on all sides

 Line spacing — §500.1(L) Text must be double-spaced. Footnotes, headings, and indented quotations may be single-spaced

APPEALTECH YOUR APPELLATE PARTNER New York State Court of Appeals Checklist

Methods of Perfecting — §500.14(a)(b)

The Full Record: 1. The record used at the court below; 2. The notice of appeal or order granting leave to appeal to the NYSCA; 3. The decision and order appealed from; 4. Any other decision and order brought up for review. The Appendix Method: 1. One copy of the reproduced record used at the court below. 2. An appendix containing the following: (1) the notice of appeal or order or certificate granting leave to appeal; (2) the order, judgment or determination appealed from to this Court; (3) any order, judgment or determination which is the subject of the order appealed from, or which is otherwise brought up for review; (4) any decision or opinion relating to the orders; (5) the testimony, affidavits, and written or photographic exhibits useful to the determination of the questions raised on appeal. Court-PASS  Registration with Court-PASS is required.

Electronic Requirement  Appendix or Record must be fully redacted §500.5(d).  Questionnaires regarding Confidentiality and Sensitive Material must be completed prior to digital submissions.

APPEALTECH YOUR APPELLATE PARTNER New York State Court of Appeals Checklist

Brief Format Checklist

 Font Size — §500.1(e)(1) (Proportional) 14 pt. text, 12 pt. footnotes (Monospaced) 12 pt. text, 10 pt. footnotes

 Margins — §500.1(f) At least one inch on all sides

 Line spacing — §500.10(a)(4) Text must be double-spaced. Footnotes, headings, and indented quotations may be single-spaced

 No Word or Page Limit

 Disclosure Statement. Any Corporation or business entity must provide a Disclosure Statement — §500.1(f)

 Electronic Requirement in Addition to Paper Service and Filling — §500.12(h)

28 PERFECTING AN APPEAL 101

WHEN, WHERE AND HOW TO PERFECT YOUR APPEAL IN NEW YORK’S APPELLATE DIVISION, FIRST DEPARTMENT; APPELLATE DIVISION, SECOND DEPARTMENT; AND THE NEW YORK COURT OF APPEALS

Submitted By:

MICHAEL KESTAN, ESQ. AppealTech New York, NY

29 30 TABLE OF CONTENTS

1. Do I have an appealable paper? ...... 1

2. Am I Timely? — Taking the Appeal ...... 3

3. The Notice of Appeal ...... 5

4. Do I have the necessary components to prosecute an appeal? ...... 6

5. Contents of a Record or Appendix — CPLR §5526 ...... 8

6. What does “Perfect the appeal” mean? ...... 9

7. Appeal to Court of Appeals ...... 13

Samples ...... 16

Page | 2 31 32 Appeals To the Appellate Division First and Second Department 1. Do I have an appealable paper? a. CPLR §5501 “The appellate division shall review questions of law and questions of fact on an appeal from a judgment or order of a court of original instance and on an appeal from and order of the supreme court, a county court or an appellate term determining an appeal.” b. Appeal as of Right — Taken by Notice of Appeal i) All Judgments — CPLR §5701(a)(1) ii) Eight orders — CPLR §5701(a)(2)-(3)

§ 5701(a) Appeals as of Right. An appeal may be taken to the appellate division as of right in an action, originating in the supreme court or a county court: (1) from any final or interlocutory judgment except one entered subsequent to an order of the appellate division which disposes of all the issues in the action; or (2) from an order not specified in subdivision (b), where the motion it decided was made upon notice and it: (i) grants, refuses, continues or modifies a provisional remedy; or (ii) settles, grants or refuses an application to resettle a transcript or statement on appeal; or (iii) grants or refuses a new trial; except where specific questions of fact arising upon the issues in an action triable by the court have been tried by a jury, pursuant to an order for that purpose, and the order grants or refuses a new trial upon the merits; or (iv) involves some part of the merits; or (v) affects a substantial right; or (vi) in effect determines the action and prevents a judgment from which an appeal might be taken; or (vii) determines a statutory provision of the state to be unconstitutional, and the determination appears from the reasons given for the decision or is necessarily implied in the decision; or

33 (3) from an order, where the motion it decided was made upon notice, refusing to vacate or modify a prior order, if the prior order would have been appealable as of right under paragraph two had it decided a motion made upon notice.

c. Appeals by Permission — Taken by Motion for Leave to Appeal

i) Any order that may not be appealed as of right — CPLR §5701(b)

§ 5701(c) Appeals by Permission.

An appeal may be taken to the appellate division from any order which is not appealable as of right in an action originating in the supreme court or a county court by permission of a judge who made the order granted before application to a justice of the appellate division; or by permission of a justice of the appellate division in the department to which the appeal could be taken, upon refusal by the judge who made the order or upon direct application.

ii) Three specific types of orders — CPLR 5701(b)

§ 5701(b) Orders not Appealable as of Right.

An order is not appealable to the appellate division as of right where it:

(1) is made in a proceeding against a body or officer pursuant to article 78; or

(2) requires or refuses to require a more definite statement in a pleading; or

(3) orders or refuses to order that scandalous or prejudicial matter be stricken from a pleading.

Application for leave to appeal to the Appellate Division, First and Second Departments, is made by motion on notice pursuant to 22 NYCRR §§600.3 and 670.6, respectively

d. Aggrieved party — A party seeking appellate review must be aggrieved: A “permissible appellant” is defined in § 5511, which reads “An aggrieved party or a person substituted for him may appeal … .” The key here is the word “aggrieved.” A litigant attains the status of an “aggrieved party” upon moving for relief in the lower court and receiving an adverse “order” on the motion.

34 CPLR 5511. Example: a litigant which fails to move for relief in the lower court is not an “aggrieved party” and thus lacks the legal standing of an “appellant” Broadway Equities v. Metropolitan Electric Mfg. Co., 306 A.D.2d 426, 428, 763 N.Y.S.2d 830, 832 (2d Dept. 2003)

e. CPLR 5701(a)(2) Notice Requirement — When an order results from a motion made without notice, it is not appealable. Example Ex Parte Order; Order issued from the bench without notice or telephone order/ in person ruling on proprietary of deposition question that occurs during the deposition.

f. A Decision alone is not appealable—It must be an Order.

g. Orders on motions for reargument, renewal and resettlement.

i) An order denying leave to reargue is not appealable. Maroney v. Hawkins, 50 A.D.2d 862, 855 N.Y.S.2d 667 (2d Dept. 2008); Sabetford v. Smith, 306 A.D.2d 265 (2d Dept. 2003).

ii) An order granting/denying renewal is appealable.

iii) An order denying a motion to resettle a prior order or judgment is not appealable. General Electric Capital Auto Lease, Inc. v. D’Agnese, 281 A.D.2d 514, 721 N.Y.S.2d 833 (2d Dept. 2001); CPLR 5517. “A motion for resettlement is designed not for substantive changes, but to correct errors or omissions in form, for clarification or to make the order conform more accurately to the decision.” Simon v. Mehryari, 16 A.D.3d 664, 666, 792 N.Y.S.2d 543, 545 (2d Dept. 2005). Conversely, an order granting resettlement and substantively changing the prior order appears to be appealable.

2. Am I Timely? — Taking the Appeal:

a. If you served the judgment or order to be appealed

i) Serve and file a Notice of Appeal, or to move for leave to appeal within thirty days from the date of service of the judgment or order with Notice of Entry

b. If you have been served with the judgment or order to be appealed

35 i) Serve and file a Notice of Appeal, or to move for leave to appeal within thirty days from the date of service of judgment or order with Notice of Entry

1. Method of service may extend time — CPLR §2103. c. Court’s service of the order upon all parties

i) Service by the Court of the order or judgment with entry by the County Clerk does not have any effect upon the time to file and serve a Notice of Appeal. CPLR 5513 specifically states: “An appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof.” d. Elapse of time with no service of the order or judgment after entry i) As long as no party has previously served the order or judgment with notice of entry, the time to file a Notice of Appeal has not expired. Despite an elapse of time, any party may serve an order or judgment with notice of entry and thereby begin the 30-day clock for filing of the Notice of Appeal. e. A Party’s Entry of an adverse Judgment as a pre-requisite for the Notice of Appeal

i) In the unusual situation where the successful party in a trial has not entered a judgment, the losing party may enter judgment against itself in order to file a Notice of Appeal. f. Cross Appeals

i) Serve and file Notice of Cross Appeal, or a motion for leave to cross appeal within ten days from the date of service of the Notice of Appeal, or motion for leave to appeal, or within the thirty days available to the appellant, whichever is longer.

1. The method of service used may extend the window of time available — CPLR §2103.

36 3. The Notice of Appeal

a. Key Requirements

i) The caption of the court of original instance. Naming ii) of the party or parties taking the appeal Name of the iii) court to which the appeal is being taken. iv) Description of the order or judgment being appealed, including

the date of entry of the order or judgment appealed from.

v) Date.

vi) Signature pursuant to §130.1-1(a) of the Rules of the Chief Administrator of the Courts.

vii) Identification of counsel for adverse parties.

viii) A copy of the subject order or judgment attached

ix) Notice of Appeal is filed with the lower court, not the Appellate Division.

b. Appeals to the Appellate Division, First Department

i) A pre-argument statement must be filed with the Notice of Appeal.

a. 22 NYCRR §600.17 details content and purpose.

ii) Serve one, File two copies with the clerk of the court from which the appeal is taken together with the original affidavit of service and the required filing fee.

c. Appeals to the Appellate Division — Second Department:

i) A RADI form (Request for Appellate Division Intervention) must be filed with the Notice of Appeal.

ii) Serve one File three copies with the clerk of the court from which the appeal is taken together with the original affidavit of service and the required filing fee.

37 a. Upon receipt by the Second Department, a docket number will be assigned to the appeal, which must appear on each document subsequently filed with the court.

4. Do I have the necessary components to prosecute an appeal?

a. Three alternative methods for getting the Record before the court

i) The full reproduced record — Rule 5526. ii) The appendix — Rules 5528, 5529 iii) On a statement in lieu of a record on appeal — Rule 5527.

iv) Full reproduced record method — CPLR §5526 (method most frequently utilized)

1. The original record remains in the custody of the clerk of the court whose order or judgment is to be appealed

2. Appellant recreates the record on appeal

3. Must be certified per CPLR §2105 or stipulated to per CPLR §5532

v) The appendix method

1. Original record is transferred from the clerk of the court of original instance to the clerk of the Appellate Division via Subpoena Duces Tecum.

2. Only those portions of the record necessary for the Court to consider the questions involved

vi) The Statement in Lieu of a Record CPLR 5527

1. When the questions involved do not require a review of the pleadings and proceedings

b. What about transcripts?

i) When a record of the proceedings is made a transcript must be:

1. Ordered — CPLR §5525(a)

38 2. Settled — CPLR §5525(c)

Court to rule upon accuracy of transcript where parties cannot agree.

When parties cannot agree to the accuracy of a transcript or disagree as to amendment or correction of the transcript, the transcript must be settled before “the judge or referee before whom the proceedings were had....” CPLR 5525(c)(1). See also Rule 600.5(e)(1) of the Appellate Division, First Department.

3. Filed — Appendix Method AD1 — 22 NYCRR §600.5(a)(3) AD2 — 22 NYCRR §670.9(b)(3) c. Exhibits

i) The appellant must account for all exhibits entered into evidence when proceeding on the full record method.

1. Bulky exhibits shall be held in readiness and be delivered to the court on telephone notice; AD1 — 22 NYCRR §600.10(b)(vii)(a); AD2 — 22 NYCRR §670.10.2(b)(6)(i)

2. Irrelevant exhibits may be omitted by stipulation. The stipulation shall identify each exhibit and state that such exhibits will not be relied upon by parties to the appeal ; AD1 — 22 NYCRR §600.10(b)(vii)(b); AD2 — 22 NYCRR §670.10.2(b)(6)(ii)

3. Relevant exhibits may be omitted from printing or reproduction—

a. Appellate Division, First Department — Exhibits omitted from printing must be done by a “So Ordered” stipulation and Exhibits must be filed no later than the Wednesday preceding the first day of the term. — 22 NYCRR §600.10(b)(vii)(a)

b. Appellate Division, Second Department — Exhibits omitted from printing must be done by a “So Ordered” stipulation or upon motion to the Court.Exhibits are filed concurrently with the appellant’s brief.— 22 NYCRR §670.10.2(b)(6)(i)

39 5. Contents of a Record or Appendix — CPLR §5526 a. Appeals from final judgments

i) The notice of appeal

ii) The judgment roll:

Summons, pleadings, admissions, each judgment and each order involving the merits or necessarily affecting the final

judgment.

iii) Any written opinions

iv) Transcripts of testimony

v) Relevant exhibits introduced into evidence in the

court below.

vi) An affirmation, stipulation or order settling the transcript pursuant to CPLR 5525(c)

vii) A stipulation dispensing with the reproduction or filing of relevant and/or irrelevant exhibits.

viii) A certification pursuant to CPLR 2105 or stipulation waiving certification pursuant to CPLR 5532

b. Appeals from interlocutory orders

i) The notice of appeal

ii) The order or judgment appealed from

iii) Any memorandum decision or opinion rendered

iv) The papers upon which the order or judgment was founded.

1. Should not contain papers filed after the notice of appeal, or not considered by the lower court.

v) A certification pursuant to CPLR 2105 or stipulation waiving certification pursuant to CPLR 5532

40 6. What does “Perfect the appeal” mean?

a. An appeal is “perfected” when all components are served and filed with the clerk of the court to which the appeal was taken.

b. Timing

i) In the Appellate Division — First Department:

1. The “thirty-day” rule — 22 NYCRR §600.5 a. Appendix method (i) If there is a transcript

A. the original record must be subpoenaed and “caused to be filed” within 30 days after settlement of the transcript

(ii) If there is no transcript

A. the original record must be subpoenaed and “caused to be filed” within 30 days after filing the notice of appeal — 22 NYCRR §600.5(d)

b. Full reproduced record method

(i) If there is a transcript

A. the record shall be filed within 30 days after settlement of the transcript — 22 NYCRR §600.5(c)

(ii) If there is no transcript

A. the record shall be filed within 30 days after filing the notice of appeal — 22 NYCRR §600.5(d)

2. The “twenty-day” rule — 22 NYCRR §600.11

a. Appellant’s brief (with appendix, if applicable) and Note of Issue must be served and filed within 20 days after filing of the record.

41 3. The “nine-month” rule — 22 NYCRR §600.11(a)(3)

a. An appeal will be considered to be abandoned and dismissed for lack of prosecution if it is not perfected within nine months from the date of the notice of appeal.

Caveat: An appellant may obtain an enlargement of time/extension of time to perfect an appeal. An appellant must make a motion to the Appellate Division for an enlargement of time. Generally, such motions are liberally granted by the Appellate Division and successive motions for enlargement of time may be made. At a certain point, the Appellate Division’s order granting the motion will state that no further enlargements may be obtained by the appellant.

4. On a Cross-Appeal — NYCRR §600.11(d)

a. Must prepare and file a joint record on appeal or joint appendix

(i) Must include both the notice of appeal and notice of cross-appeal

b. The parties are required to consult as to the document contents and share equally in the cost of its preparation and printing, including the cost of preparing the transcript of testimony, if any.

(i) The nine months is calculated from the “earliest” of the dated notices of appeal. ii) In the Appellate Division — Second Department: 1. The “six month” rule — 22 NYCRR §670.8

a. An appeal is “deemed to be abandoned” unless it is perfected within six months of the date of the notice of appeal or order granting leave to appeal.

Caveat: An appellant may obtain an enlargement of time/extension of time to perfect an appeal. As

42 opposed to the requisite motion practice in the First Department, the Second Department entertains requests for an enlargement of appellant’s time by letter or stipulation of the parties. Generally, the Second Department permits 30-60 day extensions of time for perfection of an appeal.

2. Cross-Appeals and Concurrent Appeals — 22 NYCRR §670.2

a. A cross-appeal is taken from an order or judgment where the parties’ interests are adverse.

(i) Must prepare and file a joint record on appeal or joint appendix.

(ii) All notices of appeal and notices of cross-appeal must be included in the titled document

(iii) The parties are required to consult as to the document contents and share equally in the

cost of its preparation and printing.

(iv) The six months is calculated from “earliest” of the dated notices of appeal.

b. A concurrent appeal is taken from the same order or judgment by a party (or parties) whose interests are not adverse.

(i) The joint record on appeal or joint appendix and briefs of concurrent appellants to be filed simultaneously — §670.8(c)(2)

A. The six months is calculated from the concurrent notice of appeal bearing the “latest” date. iii) Dismissal for lack of prosecution and preclusive effect upon successive appeal. The Appellate Division will generally not consider an issue on appeal “which was raised or could have been raised in an earlier appeal which was dismissed for lack

43 of prosecution, although the Court has the inherent jurisdiction to do so.” Maksuta v. Galiastsatos, A.D.3d , 878 N.Y.S.2d 902 (2d Dept. 2009); See also Rubeo v. National Grange Mutual Ins. Co., 93 N.Y.2d 750, 720 N.E.2d 86, 697 N.Y.S.2d 866 (1999). c. Service and Filing

i) The Appellate Division, First Department.

1. File 10, Serve 2 copies of the record and brief on each adverse party.

a) Methods of Service:

(i) Service must be completed prior to filing.

A. When service is by other than personal service must comply with CPLR 2103(b)(2)

2. 2 copies of the Note of Issue

3. A firm check or money order in the amount of $315.00 made to the order of the Clerk of the Appellate Division, First Department.

ii) The Appellate Division, Second Department

1. File 9, Serve 2 copies of the record and brief on each adverse party.

2. Methods of Service:

a) Service may be performed on the filing date. (i) CPLR 2103 have been adopted. 3. 1 copy of CPLR 5531 Statement 22 NYCRR §670.8(a)

4. A firm check or money order in the amount of $315.00 made to the order of the Clerk of the Appellate Division, Second Department.

7. Appeal to Court of Appeals

a. By motion for leave to appeal made directly to the Court of Appeals. CPLR 5602(a).

i) Prerequisites: a final order or judgment of the Appellate Division and a timely motion for leave to appeal as determined by service of the order/judgment with notice of entry. See, CPLR 5602(a)(1) and 5611 as to finality; CPLR 5513 as to timeliness.

ii) The return date of a motion for leave to appeal must be in compliance with scheduling requirements of CPLR 5516.

iii) Leave to appeal is granted upon approval of two judges of the Court of Appeals. CPLR 5602.

iv) Exception to finality rule: CPLR 5602(a)(2) regarding an appeal from an order of the Appellate Division “in a proceeding instituted by or against one or more public officers or a board, commissioner or other body of public officers or a court or tribunal....”

b. By motion for leave to appeal made to the Appellate Division.

i) Pursuant to CPLR 5602(a), a party may move in the Appellate Division, in the first instance, for leave to appeal to the Court of Appeals. Upon “refusal” of the motion, a party can then move for leave directly in the Court of Appeals.

ii) Unlike the Court of Appeals, the Appellate Division is

statutorily authorized to permit an appeal without the necessity for a “final order” determinative of the action. See,

CPLR 5602(b)(1).

iii) Rare instances where an action originated “in a court other than the supreme court, a county court, a surrogate’s court, the family court, the, court of claims or an administrative agency.” CPLR 5602(b)(2).

45 c. As of right upon the dissent of two Justices of the Appellate Division concerning a question of law. CPLR 5601(a). Finality of an order/ judgment is still required. d. As of right under CPLR 5601(b) concerning constitutional issues where:

i) A final order of the Appellate Division which “determines an action where there is directly involved the construction of the constitution of the state or of the United States.”; or

ii) A “judgment of a court of record of original instance which finally determines an action where the only question involved on the appeal is the validity of a statutory provision of the state or of the United States under the constitution of the state or of the United States.” e. As of right under CPLR 5601(c) upon stipulation of judgment absolute. f. As of right under CPLR 5601(d) upon a final order, judgment, arbitral award or determination of an administrative agency which is “necessarily affect[ed]” by an order of the appellate division on a prior appeal in the same action or proceeding. However, the appealable paper at issue must also satisfy the requirements of either a two Justice dissent in the Appellate Division (CPLR 5601(a)) or the constitutional requirements of CPLR 5601(b).

i) Under CPLR 5602(a)(1)(ii), a party can also move for leave to appeal in such instance in the absence of a two Justice dissent or the constitutional requirements of CPLR 5601.

46 Basic Format Requirements of the Appellate Brief

1. Font: Times New Roman 14 point.

2. Page/Word Limit:

a. First Department: 14,000 words or 70 pages in First Department for principal appellate brief; 7,000 words or 35 pages for reply brief. Rule 600.10.

b. Second Department: 14,000 words for principal appellate brief and 7,000 words for reply brief. Rule 670.10.3. Certificate of Compliance required. Rule 670.10.3(f).

3. Request for Oral Argument.

a. First Department: must file a request oral argument or oral argument is waived. See, Rule 600.11(f). Only one attorney from each side (plaintiff/defendant) is permitted to argue; impacts co- defendants represented by separate counsel. Rule 600.11(f)(2).

b. Second Department: request on cover of appellate brief suffices, with notation of allotted time requested and name of attorney arguing the appeal. Rule 670.10.3 (g). Oral argument is waived if not so requested. Rule 670.20. Argument is permitted from each party that filed a brief. Rule 670.20.

47 Example of Notice of Appeal

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ------x

Index No.

NOTICE OF (Caption) APPEAL

------x

PLEASE TAKE NOTICE that the above named (specify Plaintiff(s) or Defendant(s)) hereby appeal(s) to the Appellate Division, (First or Second) Department from an (Order or Judgment) which (describe nature of the order or judgment including amount of damages, if any), entered in the office of the Clerk of the (name court) on (enter date). The appeal is from (each and every part thereof or describe the portion(s) of the order or judgment sought to be reviewed).

Dated:

Yours, etc.

Attorneys for

To: Attorney(s) for each party to the appeal The Clerk of the Court of Original Instance

Attach a copy of the subject order or judgment

48 16

Example of Statement Pursuant to CPLR §5531

STATEMENT PURSUANT TO CPLR 5531

New York Supreme Court Appellate Division – Second Department

 

– against –

1. The index number of the case in the court below is .

2. The full names of the original parties are as above. There have been no changes.

3. The action was commenced in Court, County.

4. The action was commenced on or about , by the filing of a . The Answer was served thereafter.

5. The nature and object of the action is as follows:

6. The appeal is from an (order/judgment) of the Honorable , entered on .

7. This appeal is being perfected on a full reproduced record. Or This appeal is being perfected on the appendix method. Or This appeal is being perfected on the original record. Leave to prosecute the appeal on the original record was granted by permission of the Court or by statute.

49 17

Example of Pre-Argument Statement

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF

, Index No.

, PRE-ARGUMENT STATEMENT – against –

1. The full names of the are as set forth above (or specify). The full names of the are as set forth above (or specify). There has been no change in the parties (if applicable).

2. The attorneys for are (names, addresses, telephone #). The attorneys for are (names, addresses, telephone #).

3. This appeal is taken from a(n) order/judgment/etc. of the Honorable , Supreme Court of the State of New York, County of . The order/judgment/etc. is/are dated .

4. There are no additional appeals pending in this action (or describe).

5. There are no related actions or proceedings pending in this or any other court (or describe).

6. (Object and nature of action)

7. (Describe order/judgment/etc. of court below)

8. (Nature of appeal)

Dated: ______, 200______, New York

______Attorney(s) for 50 (addresses, telephone #) 18

Example of Note of Issue

NOTE OF ISSUE

New York Supreme Court Appellate Division – First Department

 

– against –

1. The Notice of Appeal was served on or about .

2. The Record on Appeal was filed on .

3. The nature of the appeal is for .

4. The action was commenced in Supreme Court, County.

5. The index number of the action is .

6. The (judgment, order, etc.) of the Honorable was entered on .

7. This appeal is noticed for the 2014 term.

8. (ATTORNEYS)

51 19

Example of Notice of Settlement

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION – DEPARTMENT , ) ) ) , ) ) ) NOTICE OF SETTLEMENT – against – ) OF TRANSCRIPT ) ) , ) County Clerk’s ) Index No. ) . ) ) ) ) PLEASE TAKE NOTICE that, pursuant to CPLR 5525(c), within 15 days of receipt of the transcript from the court reporter, a copy of the transcript and proposed amendments of Appellant are hereby served upon you. PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR 5525(c)(2) [and 22 NYCRR 600.5(e)], you are required to serve upon the undersigned attorney for Appellant any proposed amendments and any objections to the proposed amendments of Appellant, or the transcript, with the proposed amendments of Appellant, shall be deemed correct without the necessity of a stipulation by the parties or settlement of the transcript by the judge or referee before whom the proceedings were had.

Dated:

(Attorney for Appellant)

TO: (Attorney for Respondent)

52 20

Example of Affirmation of Compliance

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION – SECOND DEPARTMENT , ) ) ) , ) ) ) AFFIRMATION OF – against – ) COMPLIANCE ) ) , ) County Clerk’s ) Index No. ) . ) ) ) )

I, , attorney of record for the appellant in the above entitled action, do hereby certify and affirm under the penalties of perjury that I have complied with the time limitation and other provisions of CPLR 5525(c)(1) and 22 NYCRR §670.10.2(e) in the service of a copy of the transcript, that I have served upon the respondent herein the notice of settlement required by CPLR 5525(c)(3) and 22 NYCRR §670.10.2(e), and that respondent has failed to propose amendments or objections within the time prescribed by CPLR 5525(c)(1) and 22 NYCRR §670.10.2(e).

Dated:

______(Attorneys for Appellant)

53 21

Example of Stipulation Settling Transcript

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION – DEPARTMENT , ) ) ) , ) ) ) STIPULATION SETTLING – against – ) TRANSCRIPT ) ) , ) County Clerk’s ) Index No. ) . ) ) ) )

IT IS HEREBY STIPULATED AND AGREED by and between the attorneys for the respective parties hereto that the transcript in this matter has been corrected in accordance with proposed amendments and objections, if any, of the Appellant and Respondent, and that certification of the stenographic transcript of the proceedings is hereby made pursuant to CPLR 5525(c).

Dated:

______(Attorneys) (Attorneys)

54 22

Supreme Court of the State of New York Appellate Division : Second Judicial Department Form A — Request for Appellate Division Intervention — Civil See §670.3 of the rules of this court for directions on the use of this form (22 NYCRR 670.3).

Case Title: Set forth the title of the case as it appears on the summons, notice of petition or order to show cause by which the matter was or is to be commenced, or as amended. For Court of Original Instance

Date Notice of Appeal Filed For Appellate Division

Case Type G CPLR Article 78 Proceeding Filing Type G Civil Action G Special Proceeding Other G Appeal G Transferred Proceeding G CPLR Article 75 Arbitration G Habeas Corpus Proceeding G Original Proceeding G CPLR 5704 Review Nature of Suit: Check up to five of the following categories which best reflect the nature of the case. A. Administrative Review D. Domestic Relations F. Prisoners I. Torts G 1 Freedom of Information Law G 1 Adoption G 1 Discipline G 1 Assault, Battery, G 2 Human Rights G 2 Attorney’s Fees G 2 Jail Time Calculation False Imprisonment

G 3 Licenses G 3 Children – Support G 3 Parole G 2 Conversion G 4 Public Employment G 4 Children – Custody/Visitation G 4 Other G 3 Defamation G 5 Social Services G 5 Children – Terminate G 4 Fraud G 6 Other Parental Rights G. Real Property G 5 Intentional Infliction of

G 6 Children – Abuse/Neglect G 1 Condemnation Emotional Distress

B. Business & Other Relationships G 7 Children – JD/PINS G 2 Determine Title G 6 Interference with Contract G 1 Partnership/Joint Venture G 8 Equitable Distribution G 3 Easements G 7 Malicious Prosecution/ G 2 Business G 9 Exclusive Occupancy G 4 Environmental Abuse of Process

G 3 Religious of Residence G 5 Liens G 8 Malpractice

G 4 Not-for-Profit G 10 Expert’s Fees G 6 Mortgages G 9 Negligence G 5 Other G 11 Maintenance/Alimony G 7 Partition G 10 Nuisance G 12 Marital Status G 8 Rent G 11 Products Liability C. Contracts G 13 Paternity G 9 Taxation G 12 Strict Liability G 1 Brokerage G 14 Spousal Support G 10 Zoning G 13 Trespass and/or Waste G 2 Commercial Paper G 15 Other G 11 Other G 14 Other G 3 Construction G 4 Employment E. Miscellaneous H. Statutory J. Wills & Estates G 5 Insurance G 1 Constructive Trust G 1 City of Mount Vernon G 1 Accounting G 6 Real Property G 2 Debtor and Creditor Charter §§120, 127-f, or 129 G 2 Discovery

G 7 Sales G 3 Declaratory Judgment G 2 Eminent Domain Procedure G 3 Probate/Administration G 8 Secured G 4 Election Law Law §207 G 4 Trusts

G 9 Other G 5 Notice of Claim G 3 General Municipal Law G 5 Other §712 G 6 Other G 4 Labor Law §220

G 5 Public Service Law §§128 or 170 G 6 Other

Form A - RADI - Civil Provided as a Courtesy by APPEALTECH Appellate Service Providers (212) 213-3222 55 23

Appeal Paper Appealed From (check one only): G Amended Decree G Determination G Order G Resettled Order G Amended Judgment G Finding G Order and Judgment G Ruling G Amended Order G Interlocutory Decree G Partial Decree G Other (specify): G Decision G Interlocutory Judgment G Resettled Decree G Decree G Judgment G Resettled Judgment Court: County: Dated: Entered: Judge (name in full): Index No.: Stage: G Interlocutory G Final G Post-Final Trial: G Yes G No If Yes: G Jury G Non-Jury Prior Unperfected Appeal Information Are any unperfected appeals pending in this case? G Yes G No. If yes, do you intend to perfect the appeal or appeals covered by the annexed notice of appeal with the prior appeals? G Yes G No. Set forth the Appellate Division Cause Numbers(s) of any prior, pending, unperfected appeals:

Original Proceeding Commenced by: G Order to Show Cause G Notice of Petition G Writ of Habeas Corpus Date Filed: Statute authorizing commencement of proceeding in the Appellate Division: Proceeding Transferred Pursuant to CPLR 7804(g) Court: County: Judge (name in full): Order of Transfer Date: CPLR 5704 Review of Ex Parte Order Court: County: Judge (name in full): Dated: Description of Appeal, Proceeding or Application and Statement of Issues Description: If an appeal, briefly describe the paper appealed from. If the appeal is from an order, specify the relief requested and whether the motion was granted or denied. If an original proceeding commenced in this court or transferred pursuant to CPLR 7804(g), briefly describe the object of the proceeding. If an application under CPLR 5704, briefly describe the nature of the ex parte order to be reviewed.

Amount: If an appeal is from a money judgment, specify the amount awarded. Issues: Specify the issues proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review.

56 24

Issues Continued:

Use Form B for Additional Appeal Information

Party Information

Instructions: Fill in the name of each party to the action or proceeding, one name per line. If this form is to be filed for an appeal, indicate the status of the party in the court of original instance and his, her, or its status in this court, if any. If this form is to be filed for a proceeding commenced in this court, fill in only the party’s name and his, her, or its status in this court. Examples of a party’s original status include: plaintiff, defendant, petitioner, respondent, claimant, defendant/third-party plaintiff, third-party defendant, and intervenor. Examples of a party’s Appellate Division status include: appellant, respondent, appellant-respondent, respondent-appellant, petitioner, and intervenor. No. Party Name Original Status Appellate Division Status 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 57 25

Attorney Information

Instructions: Fill in the names of the attorneys or firms of attorneys for the respective parties. If this form is to be filed with the notice of petition or order to show cause by which a special proceeding is to be commenced in the Appellate Division, only the name of the attorney for the petitioner need be provided. In the event that a litigant represents herself or himself, the box marked “Pro Se” must be checked and the appropriate information for that litigant must be supplied in the spaces provided. Attorney/Firm Name: Address: City: State: Zip: Telephone No.: Attorney Type: G Retained G Assigned G Government G Pro Se G Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above or from Form C): Attorney/Firm Name: Address: City: State: Zip: Telephone No.: Attorney Type: G Retained G Assigned G Government G Pro Se G Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above or from Form C): Attorney/Firm Name: Address: City: State: Zip: Telephone No.: Attorney Type: G Retained G Assigned G Government G Pro Se G Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above or from Form C): Attorney/Firm Name: Address: City: State: Zip: Telephone No.: Attorney Type: G Retained G Assigned G Government G Pro Se G Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above or from Form C): Attorney/Firm Name: Address: City: State: Zip: Telephone No.: Attorney Type: G Retained G Assigned G Government G Pro Se G Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above or from Form C): Use Form C for Additional Party and/or Attorney Information The use of this form is explained in §670.3 of the rules of the Appellate Division, Second Department (22 NYCRR 670.3). If this form is to be filed for an appeal, place the required papers in the following order: (1) the Request for Appellate Division Intervention (Form A, this document), (2) any required Additional Appeal Information Forms (Form B), (3) any required Additional Party and Attorney Information Forms (Form C), (4) the notice of appeal or order granting leave to appeal, (5) a copy of the paper or papers from which the appeal or appeals covered in the notice of appeal or order granting leave to appeal is or are taken, and (6) a copy of the decision or decisions of the court of original instance, if any. 58 26

Supreme Court of the State of New York Appellate Division : Second Judicial Department Form B — Additional Appeal Information

Use this Form for Each Additional Paper Covered by the Notice of Appeal to be Filed with Form A Paper Appealed From (check one only):

G Amended Decree G Determination G Order G Resettled Order G Amended Judgment G Finding G Order and Judgment G Ruling G Amended Order G Interlocutory Decree G Partial Decree G Other (specify): G Decision G Interlocutory Judgment G Resettled Decree G Decree G Judgment G Resettled Judgment

Court: County: Dated: Entered: Judge (name in full): Index No.: Stage: G Interlocutory G Final G Post-Final Trial: G Yes G No If Yes: G Jury G Non-Jury Description of Appeal Description: Briefly describe the paper appealed from. If the appeal is from an order, specify the relief requested and whether the motion was granted or denied.

Amount: If an appeal is from a money judgment, specify the amount awarded. Issues: Specify the issues proposed to be raised on the appeal.

Form B - RADI - Civil Provided as a Courtesy by APPEALTECH Appellate Service Providers (212) 213-3222 59 27

Supreme Court of the State of New York Appellate Division : Second Judicial Department Form C — Additional Party and Attorney Information

Additional Party Information No. Party Name Original Status Appellate Division Status 21 22 23 24 25 26 27 28 29 30 31 32 Additional Attorney Information Attorney/Firm Name: Address: City: State: Zip: Telephone No.: Attorney Type: G Retained G Assigned G Government G Pro Se G Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above or from Form C): Attorney/Firm Name: Address: City: State: Zip: Telephone No.: Attorney Type: G Retained G Assigned G Government G Pro Se G Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above or from Form C): Attorney/Firm Name: Address: City: State: Zip: Telephone No.: Attorney Type: G Retained G Assigned G Government G Pro Se G Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above or from Form C):

Form C - RADI - Civil Provided as a Courtesy by Appellate Service Providers (212) 213-3222 APPEALTE CH 60 28

STRATEGIC CONSIDERATIONS IN NEW YORK APPELLATE PRACTICE

Submitted By:

VINCENT CHIRICO, ESQ. Chirico Law Firm Brooklyn, NY

61 62 STRATEGIC CONSIDERATIONS IN NEW YORK APPELLATE PRACTICE

Vincent Chirico, Esq.*

Two parts to every appeal: The “written word” and the “spoken word”

PART I – THE WRITTEN WORD (Brief Writing)

First and best impression of the merits of your argument - Persuade court that relief you request is the only logical conclusion, and is mandated by . The facts . The law . Public policy

Appellate Briefs inform the court of: - The relief sought; - The facts and procedural history; - The controlling law; - The application of the law to your facts

Be mindful of ethical obligations: Ethics is: o 70% common sense - devised from everyday life . What your mother taught you . The Golden Rule o 30% motive . If you want to be bad, you will be regardless of what the rules are

- Credibility is the life blood of appellate lawyers o It’s good to . Know the facts . Know the law . Know the judge . Get the judge to know you  Via multiple court appearances  Networking

- Ethical obligations applicable to appellate lawyers; o Frivolous appeals (arguments that are barred by recent, controlling authority) o False/misleading . Arguments . Evidence o Misquotes or inaccuracies (of law or fact) . Even unintentional misstatements may lead to sanctions o Failure to reveal directly adverse controlling legal authority . (different from good-faith efforts to distinguish) o Failure to update research

631

Deconstructing Brief Writing: Suggest writing in this order:

- Argument o “The Guts” - Point headings o “The Roadmap” - Questions Presented o “The Issue” - Conclusion o “The End” - Statement of facts o “Necessary” facts o “Supporting” facts - Preliminary Statement o “The Summary”

Properly constructed, each section presents a stand-alone “mini argument” (so that “if court reads nothing else…”)

Intentional/structural reiteration is good

A. The Argument (“The Guts”):

(1) Accuracy produces credibility;

o Concede when you must . But explain why not relevant

(2) Pitch argument at least vulnerable level:

o Arrange in order which maximizes chances of success

. Threshold issues first (may win without even addressing merits!) . Then best substantive argument

 If court is swayed by point 1, may not even consider point 2;  If court is not swayed by point 1, chances are court will be less willing/open to be swayed by point 2

o When the law is against you, argue the facts; o When the facts are against you, argue the law; o When the law and the facts are against you…withdraw the appeal?

. Very different than a trial

642

(3) “Tell ‘em what your gonna say, say it, and tell ‘em what you said”

o Stand-alone statement of issue, law, application, reasoning, conclusion . “If the court reads nothing else…”

o Structure: . Lead  Identifies issue  Persuasively asserts conclusion o Concise o Strong . Avoid making concessions here . Avoid policy statements here o State why it is the “only logical conclusion” o State why your position is fair, reasonable and meritorious . Rule  Explains the law, including the appropriate standard of review, using supporting binding and persuasive authority o Be accurate! o Be persuasive! o Try to “synthesize” a rule from relevant precedent o Be mindful of hierarchy of precedent: . Treaties . US Constitution . Statutes . Precedential case law  New York Court of Appeals  Direct Appellate Division  Other Appellate Divisions  Other “persuasive” authority o New York o Other jurisdictions (including Federal)  Secondary sources o Use supporting law that is (in order of importance) . Binding . Relevant . Factually similar . Otherwise favorable . Similar procedural context . Similar result  Strive for all, ensure presence of at least some  At the very least, use favorable persuasive authority, and distinguish adverse binding authority  If none available, considering withdrawing appeal o Avoid string cites (3 case citations are better than 10)

653

. Application  Apply Rule to facts  Persuade court that facts of your case justify relief requested o analogize favorable law o Distinguish unfavorable law o Relate favorable facts (in detail) o Minimize unfavorable facts (in general) o Pre-empt and rebut adversary’s “anticipated” arguments . Take wind out of adversary’s sails o Policy statements . Conclusion  Reiteration of lead

(4) Constructing a Sound Argument – Logical Devices:

o Cause and effect: A particular condition or event will cause a particular result;

. i.e. – Res Ipsa Loquitur (“The thing speaks for itself”)

o Circumstance: Sometimes, the law excuses acts (or failures to act) because of particular circumstances

. i.e. – contractual impossibility/impracticability (“The house you contracted to paint was destroyed in a fire”)

o Definition: One event belongs to a class of prohibited/permitted/required (depending on your circumstances)

o Similarity: One thing is like another (that is permitted or prohibited);

o Comparison: Your requested relief is warranted even more so than in a prior decision in your side’s favor

o Contraries: Your requested relief is warranted because deciding against your side will lead to adverse consequences

o Authority: “Don’t take it from me – take it from the experts”

3) Attacking Adversary’s Argument – Logical Fallacies: o Begging the Question: Circular reasoning (“The dog could not possibly have bitten the plaintiff because the dog is a friendly dog”)

o Non Sequitur: The conclusion does not follow from the premise . Faulty syllogisms  “All lemons are yellow; this car is a lemon; therefore this car is yellow”

664

o Ad Hominem Arguments: Directed against an adversary’s person/character instead of the argument itself; . “The plaintiff did not fall because the sidewalk was defective, but because he’s a klutz”

o Post hoc, ergo propter hoc (“After this, therefore because of this”): Simply because one thing follows another doesn’t mean the latter was caused by the former (temporality)

B. Point Headings (“The Roadmap”)

- One brief phrase persuasively summarizing the argument for each point;

o The Short answer to Questions Presented (see below)

- Your brief’s “first impression” o Where? In Table of Contents! . “If court reads nothing else…” . If court is interested, can quickly paginate to argument

- Structure: o Issue o Law o Specific necessary facts/reasons o Identify parties (otherwise, at this juncture, court won’t know who players are until it reads the statement of facts) o Incorporate standards of review . All in one sentence!

- Short, complete, persuasive

- Introduce theme(s)

- Where favorable, emphasize: o Standards of review o Burdens of proof o Elements of claims/defenses o If statutory, identify specific statute(s), section(s), term(s) of art

- If complex, consider dividing into sub-headings

675

C. Questions Presented

- The “question” that point heading answers

o Can only draft once you know the answer (point heading)

- Structure:

o Issue o Law o Specific necessary facts

- Can be

o Interrogative o Declarative

- Must be

o Concise o Thorough o Persuasive . “If the Court reads nothing else…”

- Avoid statements that are

o Conclusory (“Did the evidence support the verdict where defendant breached duty?”) o Vague o Broad

- As with point headings, where favorable, emphasize

o Standards of review o Burdens of proof o Elements of claims/defenses o If statutory, identify specific statute(s), section(s), term(s) of art

- As with point headings, good place to “re-introduce” theme

D. Conclusion

- Concise summary of point headings; - Be sure to include specific relief requested

686

E. The Statement of Facts

- Use the facts to tell a compelling story;

o Capture the court’s attention

- Introduce the theme(s) you will repeat throughout the brief

o Is your case about . Fairness? . Justice? . Accountability? . Responsibility?

- Practical tools: o Be accurate o Active voice; o Be descriptive; o Maintain credibility; o Emphasize favorable facts . Beginning and end of a paragraph . Address directly o De-emphasize unfavorable facts . Must be accurate, but  Bury in middle of paragraph  Hedge

F. Preliminary Statement

- Not really “preliminary” (Point Headings in Table of Contents are the real “Preliminary Statement”)

- “If the court reads nothing else…”

- The “thesis” of your argument – must assertively contain

o Legal issues on appeal o Contentions o Outline of argument (point by point) o Conclusion(s)

- Introduces “theme” in a manner which is

o Persuasive (maximize favorable, minimize unfavorable) o Realistic o Concise

697

G. Responsive (and Reply) Briefs

- Respondent’s only opportunity to persuade the appellate court

o Focus:

. Defend logic and wisdom of lower court decision . Identify deficiencies in appellant’s

 Argument  Legal support  Logic  Policy considerations

- Appellants, on the other hand, must persuade appellate judges that their brethren erred

o Thus, appellants get both “first” and “last” word

. The Reply Brief:

 Cannot present new arguments

 Can

o refute adversary’s

. version of the facts . legal support . logic . policy considerations . Reiterate merits of arguments first presented in initial brief

o Re-consider ethical obligations – avoid:

. ad hominem attacks . inaccuracies . mischaracterizations

708

PART II – THE SPOKEN WORD (Oral Argument)

As an appellant, always strive to present an oral argument

- Must take every opportunity to explain why the lower Court erred

o “A picture paints a thousand words” o Leave the court with a last(ing) impression of your argument o Clarify a position in your brief(s) o Discredit adversary’s position

. Leave court with a positive message of your position and not a negative message of your adversary’s

New York appellate courts are “hot benches”

- Judges/law clerk pool attorneys read all briefs

o The “cheat sheet” (bench memos)

- Importance of “knowing the judge”

o Prepare by attending other arguments – get a “feel”

“Success is 90% preparation and 10% perspiration”

- Preparation ought to be time-consuming

(1) Know your case:

o Intimate familiarity of every nuance

. Prepare to answer every question thrown your way  If fully prepared, it’s a fun conversation  You’ll never lose your place

(2) Know the law:

o Know every relevant case, including those in

. your brief(s) . adversary’s brief(s) . other relevant cases not cited  fate will lead you to need to answer questions on cases not cited . including facts, reasoning, factors/considerations in each

719

(3) Organize argument:

o “Tell ‘em what you’re gonna say, say it, tell ‘em what you said”

. Greeting:

 “May it please the Court” – name, client  Issue and conclusion

. Introduction:

 “Tell ‘em what you’re gonna say”

o Be creative – focus the court’s attention o Present:

. Outline main points of your argument  Effective to “number them”

. Main applicable facts  No need to recite all the facts (“hot bench”)

. Introduce your theme  Spend little/no time on adversary’s argument

o “Say it”:

. Bulk of presentation;

 Revert to your theme often (healthy repetition is good)  Recite relevant legal rule  Apply it to your case  Analogize supporting precedent  Distinguish adverse precedent  Rebut adversary’s position  State public policy

o “Tell ‘em what you said”:

. Reiterate

 outline (numbered points)  theme

1072

(4) Practice, PRACTICE, PRACTICE!

o On your own . Use a mirror

o With a colleague . Role play

o Budget time and don’t go over; . prepare a 10-minute argument o How to say it all in 5 minutes? 2? 30 seconds? 10 seconds?

o If unfamiliar with panel, attend other arguments (“get a feel”)

o You’re ready when you don’t need your outline

(5) The Day Before

o Appellate Division, First Department announces panel at 3:00 p.m. the day before

. Potentially most important preparation period:

 Research judge o Update research to fine-tune cases decided by each judge relevant to your issue(s)

. Adjust argument accordingly

o Personal and professional background

. What makes them “tick”? . “personalize” your argument

 Update all law! o Much time passes between briefing and argument o Change in the law? Bring copies to argument

(6) What to bring with you:

o The Record on Appeal/Appendix . Tab specific evidence you’ll recite in argument  “The faintest ink is more powerful than the most retentive memory” o All briefs

. Leave record and brief at your side (on desk)

1173

o At podium, a simple manila folder (no “paper shuffling”): . On the left side, 1-page “security blanket” – to help organize thoughts  Important facts (dates, other details not committed to memory);  Outline of presentation  Relief you’re requesting

o Don’t forget to tell court what you want . Judgment? . Affirmance? . Reversal? . New trial? . Equitable relief?

. On the right side, your authority  Names, citations of cases that may be discussed o 1 sentence of facts o Holding and reasoning o How each supports argument (or how it is distinguishable)

 Do NOT bring script (though ok to practice with) o You will get lost – if you need script, you’re really unprepared o You will not find information when you need it

o Project confidence: . Posture . No “shuffling” . Clear and confident voice  Slower is better than faster . Use simple, everyday language  Impress judges with logic, not legalisms . Eye contact is crucial!

o Show deference to court: . Be respectful . They can interrupt you; don’t interrupt them . Answer questions immediately and directly  Be aware of why the question is being asked – does it seek o Clarification? o Limitation? o Agreement? o Disagreement? o Possible disagreement among the panel?  If you don’t know the answer – admit it (don’t guess)

Are You Finished When The Argument Is Done?

1274

- NO!

o A zealous advocate is a conquering advocate

. The importance of constantly updating

 Continued ethical obligations?  Continued strategic importance

. Some courts frown on post-argument submissions

 Do it anyway, but be sure it’s necessary

1375 76 PANEL TWO

HOW TO PROTECT THE RECORD: A VIEW FROM THE BENCH

77 78 HOW TO PROTECT THE RECORD A VIEW FROM THE BENCH

Submitted By: HON. EUGENE F. PIGOTT, JR. New York State Court of Appeals Albany, NY HON. MICHAEL J GARCIA New York State Court of Appeals Albany, NY

79 80 I. PRESERVE THE ISSUE

A. Relevant Statutory Provision

1. CPLR 5501(a) (1): "An appeal from a final judgment brings up for review: . . . (3) any ruling to which the appellant objected or had no opportunity to object . . . and any charge to the jury, or failure or refusal to charge as requested by the appellant, to which he objected."

a. The Appellate Division may review unpreserved issues in the interest of justice, but the Court of Appeals cannot. Rather than take the risk that the AD will review the issue in the interest of justice, be sure to make a record.

b. Appellant's brief must include "a statement showing that the Court has jurisdiction" to hear the appeal, "with citations to the pages of the record or appendix where such questions have been preserved for the Court's review" (22 NYCRR 500.13 [a]; see 22 NYCRR 500.22 [b] [4] [movant seeking permission to appeal in civil case must "identify the particular portions of the record where the questions sought to be reviewed are raised and preserved"]).

B. Case Law

1. Konstantin v 630 Third Ave. Assoc., 2016 WL 3495179 (June 2016): The Court held that the defendant's challenge to the trial court's consolidation ruling was unpreserved for appellate review. While the defendant initially joined all defendants in opposing plaintiffs' pretrial motion to try all 10 cases jointly, the defendant failed to subsequently reassert its challenge after (i) Supreme Court ordered that seven of the 10 cases could be tried together, and (ii) five of those seven consolidated cases settled. The Court held that "[i]f after five of those seven cases settled, [the defendant] believed that Supreme Court should consider the propriety of a joint trial anew," it was "incumbent upon [the defendant] to object, raise the specific arguments it now asserts with respect to these two [remaining] cases, and ask

81 the court to conduct that analysis in order to preserve its challenge for appellate review."

2. Motelson v Ford Motor Co., 24 NY3d 1025 (November 2014): Plaintiffs' claim that they suffered emotional distress as a result of being placed in a zone of danger where they witnessed the death of their father was not argued to the jury, addressed in Supreme Court's charge, or submitted to the jury on the verdict sheet, even though it was asserted in the complaint. Plaintiffs did not object to the jury charge or to the verdict sheet, and thus Supreme Court could not set aside the verdict on the basis of that unpreserved claim.

3. Hecker v State, 20 NY3d 1087 (March 2013): The majority concluded in a mem that the question whether the area in which a worker suffered injury was a "floor, passageway [or] walkway" under 12 NYCRR 23-1.7 was not preserved in the Court of Claims and therefore reached by the AD in the interest of justice -- which is beyond our power to review. Judges Smith and Pigott concurred in the result, conceding the issue was unreviewable but noting that the "rule" that we are jurisdictionally barred from reviewing unpreserved issues is a "fiction" we "do not adhere to with any consistency." In Hecker, the State failed to preserve the issue and yet the AD reached the unpreserved issue, decided it in the State's favor and thus caused the claimant to lose "because of defendant's neglect."

C. Additional Consideration - Speaking Objections

1. What if a judge prohibits "speaking objections"? Make an effort to make a record anyway. The effort, alone, may be enough, since CPLR 5501(a) (1) permits us to review rulings to which the appellant "had no opportunity to object." Litigants have a heavy burden to show there was "no opportunity," but it can be done.

2. People v Tevaha, 84 NY2d 879 (October 1994): The word "objection" alone was insufficient to preserve the issue when counsel simply

82 made a general objection at the time the challenged testimony was offered but failed to explain the basis for the objection. II. KNOW THE COURT OF APPEALS' REVIEW POWER

A. Review Power

1. Appellate Divisions have "all of the power."

2. Generally, the Court of Appeals can review only issues of law and not fact. An Appellate Division affirmance of a trial court's finding of fact poses no question of law for review, assuming there is evidence in the record to support the finding. The question whether the record sufficiently supports the finding is a question of law the Court can review, and if the findings below have record support, we must affirm.

3. The adequacy, inadequacy, or even over-adequacy, of the record can convert a question of fact into one of law.

For example, a record may point so compellingly to a given fact that a failure to find it can be regarded as an error of law. "It's at the fringes of normalcy, in other words, that the record tips beyond the realm of fact and falls into the category of law: on the one side too deficient to admit the finding and on the other too ample to exclude it" (Siegel, N.Y. Prac. § 529 [5th ed.])

III. GIVE US A COMPLETE RECORD AND CITE TO IT

A. Relevant CPLR Provisions

1. CPLR 5525 (b): "The parties may stipulate that only a portion of the record be transcribed."

2. CPLR 5525 (c): "Settlement of transcript."

3. CPLR 5526: Content and form of record on appeal

83 B. Specific Rules for Each Appellate Department 1. First Department: 22 NYCRR 600.10-600.11

2. Second Department: 22 NYCRR 670.10-a, 670.10-b, 670.10-c

3. Third Department: 22 NYCRR 800.5, 800.8

4. Fourth Department: 22 NYCRR 1000.4

C. Observations of Record Adequacy Based on Court of Appeal Cases

1. Red Zone LLC v Cadwalader, Wickersham & Taft LLP, 27 NY3d 1048 (June 2016): Material triable questions of fact existed regarding whether defendant failed to exercise ordinary reasonable skill and knowledge commonly possessed by members of the legal profession. Affidavit of attorney who represented plaintiff did not flatly contradict prior deposition testimony and should have been considered in opposition to plaintiff's motion. Triable issues of fact also existed regarding the statute of limitations: the record did not contain any clear delineation of the period of legal representation.

2. Konstantin v 630 Third Ave. Assoc., 2016 WL 3495179 (June 2016): The Court declined to hear the defendant's challenge to Supreme Court's pretrial order granting plaintiffs' consolidation motion because the defendant failed to provide any of the papers or exhibits submitted on the motion as required by CPLR 5526. Because the defendant "ha[d] not satisfied its obligation to assemble an appellate record," the Court was unable to meaningfully review that issue.

3. Friends of Thayer Lake LLC v Brown, 27 NY3d 1039 (May 2016): We reversed grant of summary judgment and remitted case for more fact-finding, despite parties' contention that no issues of fact existed and their joint request to decide the case as a matter of law. Rather than present a "stipulated statement of facts, the parties submitted an expansive record containing documents, maps, photographs, letters, articles, guidebooks, video footage, diaries, testimony and affidavits." They disputed the current and

84 historical uses of the waterway in question but sought a determination "as a matter of law" -- although a stipulated statement of facts is not a prerequisite for the issuance of summary judgment, its absence is notable where the parties amass a voluminous and detailed record, and seek a legal resolution of an inherently fact-intensive determination. IV. PRESENT A VIVID PICTURE OF THE CASE

A. Relevant Case Law

1. Chanko v American Broadcasting Companies, Inc, 27 NY3d 46 (March 2016): Parties submitted actual video footage that was the subject of plaintiff's intentional infliction of emotional distress claim -- TV show aired emergency room footage of surgery and doctor subsequently telling his wife off camera that her husband "didn't make it."

2. Friends of Thayer Lake LLC v Brown, 27 NY3d 1039 (May 2016): The lawyers may have painted too vivid of a picture of the lake; extensive evidence in that record led us to send the case back for fact-finding, despite parties' request that we decide the issue as a matter of law.

3. Davis v Boeheim, 24 NY3d 262 (October 2014): Plaintiff in defamation action against Syracuse men's basketball coach Jim Boeheim submitted actual articles and media interviews in which Boeheim made the statements that were allegedly defamatory.

4. Mazella v Beals, 27 NY3d 694 (June 2016): Plaintiff included in record pictures of deceased taken after suicide.

5. Hoover v New Holland N. Am., Inc., 23 NY3d 41 (April 2014): Plaintiff included photographs of post hole digger that injured plaintiff after her clothing was caught and dragged into the rotating driveline, resulting in plaintiff's right arm being severed above the elbow.

V. KNOW THE E-FILING RULES AND PAGE LIMITS

85 A. Recent Developments in E-Filing 1. 2016 Report by Chief Judge DiFiore and Chief Administrative Judge on Electronic Filing in the New York State Courts (116 page .pdf)

2. Memorandum from First Dept Clerk's Office re: Submission of Appellate Briefs and Records Electronically by E-mail

VI. OFF THE RECORD

A. Suggestions

1. "Spend a Buck" - a note about sloppy briefs and record.

2. Rules of the game.

3. Electronic filing.

4. Page limit rule.

86 9/20/2016

How to Preserve the Record New York State Bar Association

Torts, Insurance and Compensation Law Section

Trial Lawyer's Section

I. Preserve The Issue

A. Relevant Statutory Provision

1. CPLR 5501 (a) (1): "An appeal from a final judgment brings up for review: . . . (3) any ruling to which the appellant objected or had no opportunity to object . . . and any charge to the jury, or failure or refusal to charge as requested by the appellant, to which he objected."

1 9/20/2016

(Preservation - Relevant Stat. Prov. Cont.)

2 9/20/2016

(Preservation Cont.)

B. Case Law

1. Konstantin v 630 Third Ave. Assoc., 2016 WL 3495179 (June 2016)

2. Motelson v Ford Motor Co., 24 NY3d 1025 (November 2014)

3. Hecker v State, 20 NY3d 1087 (March 2013)

(Preservation Cont.)

C. Additional Consideration - Speaking Objections

2. People v Tevaha, 84 NY2d 879 (October 1994)

3 9/20/2016

II. KNOW THE COURT OF APPEALS’ REVIEW POWER

A. Review Power

1. Appellate Divisions have “all the power.”

3. The adequacy, inadequacy, or even over-adequacy, of the record can convert a question of fact into one of law.

III. GIVE US A COMPLETE RECORD AND CITE TO IT A. Relevant CPLR Provisions

1. CPLR 5525 (b): "The parties may stipulate that only a portion of the record be transcribed."

2. CPLR 5525 (c): "Settlement of transcript."

3. CPLR 5526: Content and form of record on appeal

4 9/20/2016

(Complete Record Cont.)

B. Specific Rules for Each Appellate Department

1. First Department: 22 NYCRR 600.10-600.11

2. Second Department: 22 NYCRR 670.10-a, 670.10-b, 670.10-c

3. Third Department: 22 NYCRR 800.5, 800.8

4. Fourth Department: 22 NYCRR 1000.4

(Complete Record Cont.)

C. Observations of Record Adequacy Based on Court of Appeal Cases

1. Red Zone LLC v Cadwalader, Wickersham & Taft LLP, 27 NY3d 1048 (June 2016)

2. Konstantin v 630 Third Ave. Assoc., 2016 WL 3495179 (June 2016)

3. Friends of Thayer Lake LLC v Brown, 27 NY3d 1039 (May 2016)

5 9/20/2016

IV. PRESENT A VIVID PICTURE OF THE CASE

A. Relevant Case Law

1. Chanko v American Broadcasting Companies, Inc, 27 NY3d 46 (March 2016)

2. Friends of Thayer Lake LLC v Brown, 27 NY3d 1039 (May 2016)

(Relevant Case Law Cont.)

3. Davis v Boeheim, 24 NY3d 262 (October 2014)

4. Mazella v Beals, 27 NY3d 694 (June 2016)

5. Hoover v New Holland N. Am., Inc., 23 NY3d 41 (April 2014)

6 9/20/2016

V. KNOW THE E-FILING RULES AND PAGE LIMITS

A. Recent Developments in E-Filing

1. 2016 Report by Chief Judge DiFiore and Chief Administrative Judge on Electronic Filing in the New York State Courts

2. Memorandum from First Dept. Clerk's Office re: Submission of Appellate Briefs and Records Electronically by E-mail

VI. OFF THE RECORD

A. Suggestions

1. "Spend a Buck" - a note about sloppy briefs and record.

2. Rules of the game.

7 94 PANEL THREE

EMAILS/SOCIAL MEDIA/TEXTS & VIDEOS: WHAT TO LOOK FOR, WHERE TO FIND IT

95 96 ISSUES IN THE ADMISSIBILITY OF ELECTRONICALLY STORED EVIDENCE (ESI)

Submitted By:

HON. ARTHUR M. DIAMOND NYS Supreme Court Nassau County, Mineola 97 98 9/20/2016

Issues In The Admissibility of Electronically Stored Evidence (ESI)

NY STATE BAR Torts,Insurance & Compensation Trial Lawyers Section October 8, 2016 New Orleans, La.

Hon. Arthur M. Diamond NYS Supreme Court

No One Way To Do The Analysis

• Laying the foundation is the Key-Approach as if any other type of evidence • See CPLR 4518(a)-business record/electric record • Kolchins v. Evolution Markets, 128 AD3d 47(1st 2015) emails qualify as ‘documentary’evidence for CPLR 3211 motions • Start with PRESERVATION!-has moving party properly sought to preserve • Litigation hold is required-no responsibility or sanction without it • Letter suffices-Zubulake v. UBS Warburg 220 FRD 212 (2002)

1 9/20/2016

Voom HD LLC v. EchoStar 93 AD3d 33 (1st 2012) party seeking sanctions must demonstrate: 1)party with control over evidence had obligation to preserve it 2)records destroyed with culpable state of mind 3) that destroyed evidence was relevant to adverse party’s claim MUST always be showing of relevance in application for sanctions regardless of circumstances of destruction

Spoliation

Pegasus Aviation I v. Varig Logistica SA 26 NY3d 543 (2015)

Supreme Court imposed spoliation sanction on defendants finding gross negligence and therefore presumption of relevance of missing ESI Split Appellate Division reversed finding facts did not support conclusion of gross negligence CA remanded holding that failure to institute a litigation alone is not gross negligence but a factor for court to consider; further fact finding necessary here

100

2 9/20/2016

The Family Computer

• Expectation of Privacy? • Email Accounts Shared? Locked? • Cloning of Hard Drive – Etzion v. Etzion 7 Misc. 3d 940 (Sup. Ct. Nass. 2005) – Compare Schreiber v. Schreiber 2010 NY Slip Op 20271 (Sup. Ct. King. 2010) – Business emails-US v. Finazzo 2013 WL 619572 (EDNY)

Lorraine v. Markel Am Ins C. 241 F.R.D. 534 (2007 D Md)

5 Prong Test for Admitted Email

• Relevance - R. 104, 401, 402 • Authentic - R. 901, 902 • H/S? - Offered for truth? R.801- 807 • Original writing R.1001-1008 • Prejudice R. 403

Remember in your cases most of the emails will qualify as admissions against interest

101

3 9/20/2016

Authentication 901 (o) Most familiar methods:

• Testimony of witness with knowledge • Non-expert opinion on handwriting • Comparison by trier or expert witness • Distinctive characteristics • Voice identification

U.S. v. Siddiqui - 235 F. 3d 1318 (11th 2000)

• Email bore sender’s known email • Reply automatically went there • Context - author clearly knew details • Used nickname • Extrinsic Circumstances - recipient talked about contents immediately after

102

4 9/20/2016

Facebook & related issues

AD v. CA NYLJ 1202735606003 (Aug. 15, 2015) Romano v. Steelcase 30 Misc. 3d 426 (Sup.Ct. Suff. 2010) Patterson v. Turner Construction Company, 88 A.D. 3d 617 (1st Dept. 2011) Fawcett v. Altieri, 38 Misc. 3d 1022 (Sup. Ct. Richmond Co. 2013) People v. Lenihan 30 Misc. 2d 289 (Sup. Ct. Queens 2010) People v. Griffin 19 A 3d 415 Most familiar use is impeachment

US v. Vayner, 769 F.3d 125 (2d Cir 2014)

Court held requirements of FRE 901 not satisfied insufficient evidence that item is what proponent claims it to be

103

5 9/20/2016

Subpoena issues and social media

In re 381 Search Warrants v. NY County D.A. 2015 NY Slip Op 06201 (1st July 15, 2015)

104

6 NYSBA Meeting October 8, 2016 New Orleans, La.

Kolchins v. Evolution Markets, 128 AD3d 47, 8 NYS3d 1 (1st Dept, 2015): In a breach of contract action arising out of the extension of an employment agreement, the parties' emails and other correspondence could be viewed as constituting a binding offer and acceptance, notwithstanding that the parties continued to exchange emails and negotiate additional contractual terms, and any impasse on a drastic new change put forth by defendant during the continuing negotiations did not necessarily defeat the original agreement of the parties. An agreement is still binding if a party has a change of heart between the time of agreeing to the terms of the agreement and the time those terms are reduced to writing. Once the renewal agreement was reached, however, it could not be repudiated by either party. Defendant failed to establish, on its motion to dismiss, as a matter of law, that by their emails and other correspondence the parties never entered into a valid employment renewal contract and their aborted negotiation efforts were intended to reach a new agreement. According plaintiff the benefit of every possible favorable inference as required on defendant's motion to dismiss pursuant to CPLR 3211 (a) (1), the emails and other correspondence exchanged between the parties supported an inference that the parties were engaged in attempts to formalize their binding extension agreement in a more formal instrument. Correspondence such as emails may suffice as documentary evidence for purposes of CPLR 3211 (a) (1). There is no blanket rule by which email is to be excluded from consideration as documentary evidence under the statute.

Zubulake v. UBS Warburg, LLC, 220 FRD 212 (SDNY, 2003): In action by female employee under federal, state, and city law for gender discrimination, failure to promote, and retaliation, employee moved for sanctions against employer for its failure to preserve backup tapes containing potentially relevant e-mail correspondence of key employees. A party seeking an adverse inference instruction (or other sanctions) based on the spoliation of evidence must establish the following three elements: (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a “culpable state of mind” and (3) that the destroyed evidence was

105 “relevant” to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. In this circuit, a “culpable state of mind” for purposes of a spoliation inference includes ordinary negligence. When evidence is destroyed in bad faith (i.e., intentionally or willfully), that fact alone is sufficient to demonstrate relevance. By contrast, when the destruction is negligent, relevance must be proven by the party seeking the sanctions.

VOOM HD Holdings, LLC v. EchoStar Satellite, LLC, 93 AD3d 33, 939 NYS2d 321 (1st Dept., 2012): In litigation arising out of a contract dispute, defendant failed to put in place a litigation hold to ensure the preservation of relevant electronic documents once it reasonably anticipated litigation. Defendant should have reasonably anticipated litigation as of the date, some six months prior to the commencement of the action, that it sent a letter to plaintiff threatening termination of their contract, especially as defendant's in-house litigation counsel opined that plaintiff would sue if defendant terminated the contract. Moreover, additional communications between the parties from that date until the action was commenced in which defendant repeatedly broached the subject of terminating the contract should have led defendant to reasonably anticipate litigation. However, defendant did not issue a litigation hold on electronic evidence until after the action commenced, did not take a snapshot of the relevant e-mail accounts until four days after the action was commenced and did not cease the automatic destruction of e-mails until four months after commencement. Additionally, defendant's reliance on its employees to preserve evidence did not meet the standard for a litigation hold. A party seeking sanctions based on the spoliation of evidence must demonstrate that the party with control over the evidence had an obligation to preserve it at the time it was destroyed; that the records were destroyed with a “culpable state of mind”; and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense. A “culpable state of mind” for purposes of a spoliation sanction includes ordinary negligence, and failures which support a finding of gross negligence, when the duty to preserve electronic data has been triggered, include: the failure to issue a written litigation hold, when appropriate; the failure to identify all of the key players and to ensure that their electronic and other records are preserved; and the failure to cease the deletion of e-mail. Accordingly, the intentional or willful destruction of evidence is sufficient to presume

106 relevance, as is destruction that is the result of gross negligence; however, when the destruction of evidence is merely negligent, relevance must be proven by the party seeking spoliation sanctions. Etzion v. Etzion, 7 Misc3d 940, 796 NYS2d 844 (Sup. Ct., Nassau Co., 2005): In a matrimonial action, plaintiff wife was entitled to disclosure of information concerning defendant husband's business holdings contained in defendant's personal and business computers. Defendant was required to notify the court-appointed referee of the locations of computers on which business records were maintained or entered. The hard drives of defendant's computers were to be cloned or copied in the presence of both parties' forensic computer experts and the referee and then examined by the parties. Hard copies of any business records found on the hard drives were to be distributed to the parties' attorneys. Personal records and personal e-mails between defendant and third parties, unrelated to any business matters, and any privileged communications between defendant and his counsel were not discoverable. Plaintiff was required to pay the expenses of her expert and the cost of production of the business records sought, subject to possible reallocation of costs at trial. Plaintiff was not required to post a bond since defendant's computer expert would be able to protect defendant's interests during the cloning process.

Schreiber v. Schreiber, 29 Misc3d 171, 904 NYS2d 886 (Sup. Ct., Kings Co., 2010): Although electronic discovery of information stored on a computer hard disk drive is generally available in a matrimonial action pursuant to CPLR 3101 (a), plaintiff wife's allegations that defendant husband concealed and misrepresented his income and assets were insufficient to justify the unrestricted turnover of defendant's office computer hard disk drive that had been cloned pursuant to a stipulated order. Plaintiff's discovery request was overbroad in that it sought general as well as unlimited access to the entirety of defendant's business and personal data stored on his office computer. Consequently, plaintiff's motion to compel production of the hard disk drive in defendant's office computer was denied with leave to renew with a detailed discovery protocol that would allow for the protection of privileged and private material. Plaintiff's request for costs and disbursements related to her discovery motion was denied without prejudice to submitting a subsequent application for interim attorney's fees pursuant to Domestic Relations Law § 237 (a). Furthermore, plaintiff's motion for an order

107 directing defendant, once the subject hard disk drive or a copy thereof is delivered to the clerk of the court, not to convey any of the assets which may be identified on the subject hard disk drive or a copy thereof was denied as premature.

United States v. Finazzo, 2013 WL 619572 (EDNY, 2013): In the second superseding indictment, filed September 6, 2011, the government charged a “[f]raudulent [s]cheme” in which Finazzo, an executive at the clothing retailer Aéropostale, Inc. (“Aéropostale”), secretly received a portion of the profits from certain transactions between Aéropostale and South Bay Apparel, Inc. (“South Bay”), a clothing vendor controlled by Douglas Dey. The second superseding indictment charges that Finazzo “defrauded” Aéropostale by, “(1) depriving Aéropostale of the opportunity to make informed decisions, thereby preventing Aéropostale from seeking lower prices for merchandise it purchased from South Bay and the opportunity to select other vendors based upon price, quality and timely delivery; and (2) causing Aéropostale to pay higher prices on merchandise it purchased from South Bay than were available from other vendors, thereby increasing South Bay's profits and the amounts Dey paid Finazzo.” The Court denied Defendant’s motion in limine to preclude the government from introducing an email that was an allegedly privileged communication between Defendand and his attorney for the purposes of making a will. The Court found that the email in question was not priviledged, that Defendant had no reasonable expectation of privacy or confidentiality in the email communication made through his Aéropostale account, using a four-part test to make its determination. Although Defendant’s attorney sent the email, the Court found that the email was admissible because the company had a policy that restricts the personal use of the company’s email system, which was disclosed to Defendant and he acknowledged.

Lorraine v. Markel American Ins. Co., 241 FRD 534 (Dist. MD, 2013): Suit was brought to enforce arbitrator's award. Parties moved and cross moved for summary judgment. The District Court held that failure of both parties to observe evidence rules, as they applied to electronically stored information (ESI), precluded any entry of summary judgment.

108 “Whenever ESI is offered as evidence, either at trial or in summary judgment, the following evidence rules must be considered: (1) is the ESI relevant as determined by Rule 401 (does it have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be); (2) if relevant under 401, is it authentic as required by Rule 901(a) (can the proponent show that the ESI is what it purports to be); (3) if the ESI is offered for its substantive truth, is it hearsay as defined by Rule 801, and if so, is it covered by an applicable exception (Rules 803, 804 and 807); (4) is the form of the ESI that is being offered as evidence an original or duplicate under the original writing rule, of if not, is there admissible secondary evidence to prove the content of the ESI (Rules 1001-1008); and (5) is the probative value of the ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403, such that it should be excluded despite its relevance. Preliminarily, the process by which the admissibility of ESI is determined is governed by Rule 104, which addresses the relationship between the judge and the jury with regard to preliminary fact finding associated with the admissibility of evidence. Because Rule 104 governs the very process of determining admissibility of ESI, it must be considered first.”

United States v. Siddiqui, 235 F3d 1318 (11th Circuit, 2000): Defendant was convicted in the United States District Court for the Southern District of Alabama, of fraud, false statements to a federal agency, and obstruction of a federal investigation in connection with his pursuit of a research grant given by the National Science Foundation (NSF). Defendant appealed. The Court of Appeals, District Judge, sitting by designation, held that: (1) defendant's e-mails sent to two individuals he falsely listed as references were properly authenticated; (2) such e-mails were non-hearsay; and (3) admission of foreign depositions from which defendant was absent did not violate Confrontation Clause. Defendant's e-mails sent to two individuals he falsely listed as references on application for research grant to National Science Foundation (NSF), asking them to tell NSF that he had their permission to use their names, were properly authenticated in fraud prosecution; e-mails bore defendant's e-mail address and used defendant's nickname, and defendant followed up with phone calls making same request. These emails were not hearsay, but rather constituted admissions of a party in fraud prosecution.

109 AD v. CA, NYLJ 1202735606003 (August 26, 2015): A Westchester County judge ordered a wife in a custody dispute to turn over four years of Facebook records to determine how much time he had spent with her child, finding that this electronic discovery was relevant and material to the Court’s determination of time spent with the child. However, the judge directed an in camera inspection of the records, including all postings “depicting or describing her whereabouts, outside the New York City area, from the time of the child’s birth through the commencement of the proceeding, whether of her alone or together with the parties’ child.”

Romano v. Steelcase, Inc., 30 Misc3d 426, 907 NYS2d 650 (Sup. Ct., Suffolk Co., 2010): In a personal injury action brought by plaintiff, who alleged that she sustained permanent injuries as a result of the underlying incident and can no longer participate in certain activities or that those injuries have affected her enjoyment of life, defendant was entitled to an order granting it access to plaintiff's current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information. Defendant contended that, contrary to plaintiff's claims of injury, a review of the public portions of plaintiff's MySpace and Facebook pages revealed that plaintiff had an active lifestyle and had traveled to Florida and Pennsylvania during the time period she claimed that her injuries prohibited such activity. There was a reasonable likelihood that the private portions of plaintiff's pages might contain further evidence such as information with regard to her activities and enjoyment of life, all of which were material and relevant to the defense of plaintiff's action. Production of plaintiff's entries on her Facebook and MySpace accounts would not be violative of plaintiff's right to privacy, as plaintiff had no legitimate reasonable expectation of privacy given the nature and purpose of such social networking sites, and any such concerns were outweighed by defendant's need for the information.

Patterson v. Turner Construction Co., 88 AD3d 617, 931 NYS2d 311 (1st Dept., 2011): Plaintiff claimed damages for physical and psychological injuries, including the inability to work, anxiety, posttraumatic stress disorder, and the loss of enjoyment of life. The motion court did an in camera review of Plaintiff’s Facebook records and found that at least some of the discovery sought would result in the disclosure of relevant evidence or is reasonably calculated

110 to lead to the discovery of information bearing on the claims. However, the Appellate Division found that it was possible that not all Facebook communications were related to the events that gave rise to plaintiff's cause of action. Furthermore, the postings on plaintiff's online Facebook account, if relevant, were not shielded from discovery merely because plaintiff used the service's privacy settings to restrict access, similar to relevant matters from a personal diary are discoverable.

Fawcett v. Altieri, 38 Misc3d 1022, 960 NYS2d 592 (Sup. Ct., Richmond Co., 2013): In a personal injury action, the court refused to compel production of plaintiff's social media accounts, which had been made private using the services' privacy settings and were not publically viewable, where defendants failed to set forth a factual predicate providing a good faith basis to believe that plaintiff disclosed information about the subject matter of the litigation on the accounts. Material posted on a social media account is not shielded from discovery in a civil matter merely because the account holder used the service's privacy settings to restrict access to the material. Nevertheless, in order to compel production of a private social media account, the party seeking access must demonstrate a good faith basis for making the request by showing some credible facts that the account holder posted information or photographs that are “material and necessary” in the prosecution or defense of the action under CPLR 3101 (a). Absent such a showing, courts will be burdened with the costly and time-consuming responsibility of reviewing voluminous records that likely are irrelevant to the facts of the case. Here, given the early stage of litigation, it was unclear whether the information contained on plaintiff's private social media accounts would be material and necessary to the issues of liability and damages. Defendants' motions to compel production of the accounts were thus denied with leave to renew after the completion of depositions.

People v. Lenihan, 30 Misc3d 289, 911 NYS2d 588 (Sup. Ct., Queens Co., 2010): In a murder prosecution, defendant was precluded from cross-examining the People's witnesses about their gang affiliation and confronting them with photographs downloaded from a social networking site allegedly showing the witnesses wearing clothing and making hand gestures affiliated with a street gang. In light of the ability to “photoshop” or edit photographs on the computer, defendant could not authenticate the photographs. Defendant was also unable

111 to persuade the court that certain hand gestures and articles of clothing worn by the witnesses in the photographs provided a good faith basis to allow cross-examination about gang affiliation. Moreover, defendant's contention that the witnesses may have had a motive to lie because they may have thought defendant was a member of a rival gang was too remote and speculative to permit that line of inquiry, defendant having denied being a member of that gang. Thus, preclusion of that line of questioning was proper since the photographs alone did not establish a sufficient good faith basis to question the witnesses about gang involvement.

Griffin v. State, 419 Md 343, 19 A3d 415 (2011): Defendant was convicted in the Circuit Court, Cecil County, of second-degree murder, first-degree assault, and use of a handgun in the commission of a felony or crime of violence. The assault conviction merged into the murder conviction. Defendant appealed. The Court of Special Appeals affirmed. Defendant petitioned for a writ of certiorari, and the stated filed a conditional cross petition. Both petitions were granted. The Court of Appeals, held that the state did not sufficiently authenticate pages that allegedly were printed from defendant's girlfriend's profile on a social-networking website and error in trial court's admission of the pages was reversible error. Defendant preserved for appellate review his challenge to the authenticity of pages that allegedly were printed from his girlfriend's profile on a social-networking website, as defendant explicitly objected to the admission of the printed pages. The state did not sufficiently authenticate pages that allegedly were printed from defendant's girlfriend's profile on MySpace, and thus the pages, which allegedly contained a statement by the girlfriend that “snitches get stitches,” were inadmissible at a murder trial, even though the pages contained a picture of the girlfriend, her birth date, and her location. The state did not ask the girlfriend whether the profile was hers and whether its contents were authored by her, and the picture, birth date, and location were not authenticating distinctive characteristics, given the prospect for abuse and manipulation of a social-networking website by someone other than the purported creator or user.

United States v. Vayner, 769 F3d 125 (2nd Circuit, 2014): The Court of Appeals Circuit Judge, held that the government did not provide sufficient basis from which a jury could conclude that proffered printout was defendant's profile page from

112 Russian social networking Internet website, and thus that document was not properly authenticated. In addition, the Court found that the district court's abuse of its discretion in admitting printout of defendant's profile page due to lack of proper authentication was not harmless in prosecution for unlawful transfer of false identification document, since printout was not cumulative, but played important role in government's case. Although defendant's name, photograph, and some details about his life were consistent with testimony about him, there was no evidence that defendant himself had created that page or was responsible for its contents. Even though the proponent of evidence need not rule out all possibilities inconsistent with authenticity, or prove beyond any doubt that the evidence is what it purports to be, there must nonetheless be at least sufficient proof so that a reasonable juror could find in favor of authenticity or identification.

Matter of 381 Search Warrants Directed to Facebook, Inc. v. NY County District Attorney’s Office, 131 AD3d 11, 14 NYS3d 23 (1st Dept., 2015): Petitioner, an online social networking service, could not litigate on its customers' behalf the constitutionality of digital search warrants for customer accounts obtained in connection with a large-scale investigation into the fraudulent filing of Social Security disability claims prior to enforcement. There is no constitutional or statutory right to challenge an alleged defective warrant before it is executed and there was no basis for providing petitioner a greater right than the targets of the warrants are afforded. The sole remedy for challenging the legality of a warrant under the Criminal Procedure Law is by a pretrial suppression motion as there is no mechanism for a motion to quash a search warrant or for taking an appeal from a denial of such a motion. Petitioner's motion to quash the search warrants could not be considered as analogous to a motion to quash a subpoena. While the warrants were issued prior to any pending criminal proceeding, the relief petitioner sought would necessarily impact the subsequent criminal actions. Further, petitioner did not have the right to contest the warrants under the Stored Communications Act (18 USC §§ 2701-2712) (SCA), which provides an Internet Service Provider (ISP) with the right to contest any order or subpoena served upon it. Section 2703 (d) gives the ISP the right to object to court orders and subpoenas issued under section 2703 (b) or (c). The SCA is not a catchall statute designed to protect the privacy of stored Internet communications and it distinguishes disclosure devices under subsections (b) and (c) from

113 warrants which are governed by subsection (a) and require the *12 government to make the traditional and more stringent showing of probable cause. As a finding of probable cause was made by the reviewing judge, the warrants, which required petitioner to disclose electronic content in its electronic storage, were akin to SCA section 2703 (a) warrants.

Hon. Arthur M. Diamond

Ronald Ferraro, Principal Law Clerk

114 ADMISSIBILITY OF SOCIAL MEDIA AND ELECTRONICALLY-STORED INFORMATION

Submitted By:

EILEEN E. BUHOLTZ, ESQ. Connors, Corcoran & Buholtz Rochester, NY

115 116 Admissibility of Social Media and Electronically-Stored Information

Eileen E. Buholtz, Esq. [email protected] October 8, 2016

A. Introduction

Electronically-stored evidence is the electronic equivalent of the physical filing cabinets and boxes of physical records.

Social media in contrast refers to online activities that enable users to share information, opinions, content, interests, and experiences such as  blogs,  forums,  wikis,  social networking sites, and  photo-sharing sites.

Forms of social media generally share the following characteristics: A. Participation—Users of the activity are also contributors. People are no longer content just to be the recipients of content and information; they want to participate in its creation. The line between the media and the audience becomes fuzzy B. Community—Social media allows users to build connections and create a sense of community. Social media sites are often built around common interests and shared experiences. They become an alternate method of communication C. Interaction—Contributions and feedback are encouraged, and collaboration is king. There are generally few barriers to participation. Communications flow in many directions, unlike traditional media, which is a one-way street. Users often can help shape the experience. Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010).

The admissibility of social media involves the same issues as other evidence including  The best evidence rule,  The rule against hearsay, and  Authentication issues of o whether the exhibit is an authentic print-out from the social media site and o whether the posting is attributable to a particular source (i.e., a particular party to a lawsuit).

117 B. Tape-recorded conversations

People v. Ely, 68 N.Y.2d 520 (1986) held that authentication of a tape-recorded conversation requires proof of the accuracy or authenticity of the tape by "clear and convincing evidence" establishing "that the offered evidence is genuine and that there has been no tampering with it", citing People v. McGee, 49 N.Y.2d 48, 59, cert. denied sub nom. Waters v. New York, 446 U.S. 942.

The necessary foundation may be provided in a number of different ways:  Testimony of a participant in the conversation that it is a complete and accurate reproduction of the conversation and has not been altered (People v. McGee, 49 N.Y.2d, at p. 60, supra; People v. Arena, 48 N.Y.2d 944, 945; United States v. Sandoval, 709 F.2d 1553, 1555; United States v. Buzzard, 540 F.2d 1383, cert. denied 429 U.S. 1072).  Testimony of a witness to the conversation or to its recording, such as the machine operator, to the same effect (e.g., United States v. Hassell, 547 F.2d 1048, 1054, cert. denied sub nom. McIntosh v. United States, 430 U.S. 919; United States v. McMillan, 508 F.2d 101, 104-105, cert. denied 421 U.S. 916; Gonzales v. United States, 314 F.2d 750, 752).  Testimony of a participant in the conversation together with proof by an expert witness that after analysis of the tapes for splices or alterations there was, in his or her opinion, no indication of either (United States v. Craig, 573 F.2d 455, 477-478, cert. denied 439 U.S. 820).  Chain of custody, though not a requirement as to tape recordings (People v. McGee, 49 N.Y.2d, at p 60, supra), is also an available method (United States v. Halderman, 559 F.2d 31, 109, cert. denied sub nom. Mitchell v. United States, 431 U.S. 933; United States v. Hughes, 658 F.2d 317, 323; United States v. Blakey, 607 F.2d 779, 787; United States v. Fuentes, 563 F.2d 527, cert. denied sub nom. Sansone v. United States, 434 U.S. 959). Chain of custody requires, in addition to evidence concerning the making of the tapes and identification of the speakers, that within reasonable limits those who have handled the tape from its making to its production in court "identify it and testify to its custody and unchanged condition". (People v. Connelly, 35 N.Y.2d 171, 174).

In federal court criminal cases, voice recordings must meet a seven-part test laid out in United States v. McKeever, 169 F. Supp. 426 (S.D.N.Y. 1958), rev'd on other grounds 271 F.2d 669 (2d Cir. 1959):

(1) the recording device was capable of taking the conversation now offered in evidence; (2) the operator of the device was competent to operate the device; (3) the recording is authentic and correct; (4) changes, additions or deletions have not been made in the recording; (5) the recording has been preserved in a manner that is shown to the court; (6) that the speakers are identified; and (7) the conversation elicited was made voluntarily and in good faith, without any kind of inducement.

118 But in civil cases, the Second Circuit applies a lower standard for authentication requiring only sufficient evidence for a rational juror to conclude that the statement in a recording was made by the party that the proponent contends to have made it. See Ricketts v. City of Hartford, 74 F.3d 1397, 1410-11 (2d Cir. 1996); S.E.C. v. Badian, 822 F. Supp. 2d 352, 364 (S.D.N.Y. 2011). So in In re Doria/Memon Discount Stores Wage & Hour Litigation, No. 14-CV-7990 (S.D.N.Y. Jan. 19, 2016), a tape recording of defendants’ conversation with certain plaintiffs was admissible where the party who recorded the conversations testified as to how he recorded the conversation with defendants and certified that the recording was correct "[b]ecause I listened to it. I recorded it, and everything is like that, 100 percent."

C. Social media postings

Authenticating the print-out of a post. Authenticity of the print-out can be proven when the witness testifies s/he personally printed out the posting, s/he recalls the appearance of the print- out, and s/he recognizes the exhibit as the print-out. A witness can testify to the contents of the profile page if s/he is familiar with the contents. There is no need to call a representative from the social media company to lay this element. California Evidentiary Foundations by Edward J. Imwinkelried and Thomas J. Leach, §4Q (Lexis 4th Ed. 2012).

Attributing the post to a certain person. This prong can be done by

 an expert, e.g., a forensic computer expert who testifies that s/he had recovered copies of the postings sent to the social media site on the hard drive of a computer used only by that person or  (in most cases) a combination of circumstances including o evidence of the user name of the person in question as shown on the profile page; o the person in question had not shared his/her social media password with others; o a photograph of the person in question appears on the profile page; and o the accuracy of personal demographic information on the profile page that pertains to the person in question.

People v. Valdez, 201 Ca. App. 4th 1429, 135 Cal. Rptr. 3d 628 (2011). More cases on this point are discussed below.

D. Text messages

Text messages where no expert or technical proof was required:

People v. Agudelo, 96 A.D.3d 611 (1st Dep’t 2012). The victim testified that a print-out of instant text messages between her and the defendant accurately represented the exchange of messages she received on her cell phone. She testified that she knew the messages were from defendant because his name appeared on her phone when she received the instant messages. The First Department affirmed, explaining that one of the many ways to authenticate a recorded conversation is through the testimony of a participant in the conversation that it is a complete and accurate reproduction of the conversation and has not been altered, and that the credibility of the

119 authenticating witness and any motive s/he may have had to alter the evidence go to the weight to be accorded the evidence, rather than its admissibility. Defendant argued unsuccessfully that authentication required testimony from the internet service provider about the source of the messages. Here, there was no dispute that the victim, who received these messages on her phone and who compiled them into a single document, had first-hand knowledge of their contents and was an appropriate witness to authenticate the compilation.

Miller v Miller, 141 A.D.3d 1117 (4th Dep’t 2016). In a father’s post-divorce application to modify a judgment of divorce, citing People v. Agudelo, the Fourth Department affirmed the trial judge’s requirement that the cell phones themselves be admitted into evidence to prove the content of text messages between the parties, particularly in view of the father's failure to offer an authenticated copy-and-paste document of the text message conversations.

People v. Pierre, 41 A.D.3d 289 (1st Dep’t 2007). Defendant was convicted of murdering Victim who was pregnant with defendant’s baby. Victim had refused to terminate the pregnancy. Defendant appealed his conviction in pertinent part on the ground that the trial court had received into evidence an internet instant message in which defendant told Victim’s cousin that he did not want Victim’s baby. Although the cousin did not save or print the message, and there was no internet service provider evidence or other technical evidence in this regard, the instant message was properly authenticated through circumstantial evidence as emanating from defendant. An accomplice witness who was defendant’s close friend testified to defendant’s screen name. The cousin testified that she sent an instant message to that same screen name and received a reply, the content of which made no sense unless it had come from defendant. Furthermore, there was no evidence that anyone had a motive or opportunity to impersonate defendant by using his screen name.

People v. Moye, 51 Misc.3d 1216(A), 2015 N.Y. Slip Op. 50559(U) (Sup. Ct. Queens Co. Mar. 31, 2016). At a hearing to determine whether defendant prevented the complainant from appearing at trial, thereby warranting the admission of certain out-of-court statements made by complainant, the court held that the complainant’s out-of-court statements were admissible because defendant had arranged for Complainant’s failure to appear for trial and because the two instant messages at issue were sufficiently authenticated as having been sent by defendant. The fifteen-year-old complainant had failed to honor a subpoena to appear for a grand jury against defendant (her much older boyfriend) who was being prosecuted for slashing the complainant’s face at a McDonald’s restaurant in Queens. Thereafter, the complainant had disappeared and had failed to respond to any attempts by the DA to subpoena her for trial. Recorded phone calls from defendant at Riker’s Island where defendant was held pending trial demonstrated that defendant telephoned complainant many times, in violation of an order of protection issued in complainant’s favor upon defendant’s arrest, and had importuned complainant not to appear either at the grand jury or at trial.

In addition to the text messages, there were other out-of-court statements at issue. Immediately after the slashing, complainant had called her mother screaming like a wounded animal and stating that defendant had cut her. Complainant was taken to a hospital whose records confirmed the injuries and noted complainant’s statement that defendant had slashed and stabbed her at a

120 McDonald’s in Queens. Complainant’s mother took complainant home after discharge from the hospital, where Complainant used her mother’s cell phone twice to sign onto Complainant’s Facebook account. Complainant showed the mother several messages from defendant that had been sent to Complainant’s instant-message (private) inbox. Defendant’s picture accompanied the messages. The mother made screen captures of defendant’s messages and sent them to the DA. Defendant’s messages apologized and asked for complainant’s forgiveness.

The court stated that electronically stored information is treated the same as conventional types of evidence. Evidence can be properly authenticated by evidence that shows that the matter in question is what its proponent claims it to be, which can be done circumstantially by appearance, contents, substance, internal patterns or other distinctive characteristics. The court need only find that there is a reasonable likelihood that the evidence is what its proponent claims. The proponent does not have to rule out all possibilities inconsistent with authenticity.

Relying on People v. Pierre, all of the circumstances established a reasonable likelihood that the messages came from defendant. The People did not have to establish by eye witnesses to who exactly who typed the message, because the same uncertainties exist with traditional written documents. Nor was Complainant the only witness qualified to testify about her own Facebook account. Here, Complainant’s mother testified to defendant’s screen name and his photograph, and the contents of the message made no sense unless it came from defendant.

People v. Green, 107 A.D.3d 915 (2d Dep’t 2013). Defendant unsuccessfully appealed his conviction of burglary, rape, unlawful imprisonment, and menacing in pertinent part on the ground that the admission into evidence of text messages from defendant to the complainant. Since the content of the text messages made no sense unless they were sent by defendant, the text messages themselves were sufficient to authenticate that defendant sent them. As for the authenticity of the photographs of the text messages, the complainant's testimony that they were, indeed, "actual photographs of the screen of [her] telephone" and that she saw the detective taking the photographs was sufficient to establish that the text messages had been accurately and fairly reproduced, thereby providing a foundation for admission of the photographs.

Text messages where expert testimony was used:

People v. Clevenstine, 68 A.D.3d 1448 (3d Dep’t 2009). Defendant unsuccessfully appealed a conviction of rape, criminal sexual act, attempted criminal sexual act, sexual abuse, and endangering the welfare of a child. Introduced into evidence was a disc containing electronic communications between defendant and the under-age victims via instant message. Defendant objected to this evidence at trial upon the ground that it had not been properly authenticated. Both victims testified that they had engaged in instant messaging about sexual activities with defendant through the social networking site MySpace. An investigator from the computer crime unit of the State Police testified that he had retrieved such conversations from the hard drive of the computer used by the victims. A legal compliance officer for MySpace explained that the messages on the computer disc had been exchanged by users of accounts created by defendant and the victims. Defendant’s wife recalled the sexually explicit conversations she viewed in defendant’s MySpace account while on their computer. The Third Department held

121 that this testimony provided ample authentication for admission of this evidence. Although, as defendant suggested at trial, it was possible that someone else accessed his MySpace account and sent messages under his user name, the trial court had properly concluded that the likelihood of such a scenario presented a factual issue for the jury.

People v. Hughes, 114 A.D.3d 1021 (3d Dep’t 2014). Photographs of text messages sent from defendant's cell phone to the victim were properly authenticated and properly admitted into evidence. The People produced testimony from a Verizon employee confirming that text messages had been sent between certain phone numbers. The victim identified the phone numbers as belonging to her and to defendant and the victim also identified the photographs as depicting text messages she received from defendant. Defendant's testimony that someone else could have sent the messages from his phone presented a factual issue for the jury and was not a basis for overturning the jury's verdict of guilty.

People v. Hardy, 42 Misc. 3d 211 (County Ct. Clinton County 2013). The evidence of text messages received by a confidential informant from the defendant was inadmissible. The officer testified that he developed a relationship with an unnamed confidential informant on May 23, 2013 and that on May 24, 2013, the officer took two photographs of the informant’s cell phone purporting to show text messages between defendant and the informant. The officer testified that the photographs “truly and accurately depict statements from the Defendant, Jeremy Hardy, via text”. These photographs depict the name “Jeremy Hardy” with what appears to be four separate text messages, and the officer read them to the grand jury. No testimony was offered or elicited establishing that the officer was a participant in the text message conversations or witnessed the exchange of the text messages between the confidential informant and the defendant, or that the officer had any other personal knowledge that the text messages actually came from the defendant. The court held that not only was there insufficient foundation establishing the authenticity of this evidence before the grand jury, but there was no foundation for its admission. The foundation could have been laid before the grand jury by the testimony of the confidential informant who, presumably, would have identified his phone and the contact information on his phone identifying the defendant’s cell phone number. Also held to be inadmissible before the grand jury was the officer’s testimony concerning his interpretations of these text messages, including but not limited to his testimony that in his experience, the term “native” was a slang term for Native American or Native American Indian that was commonly used in the local drug trafficking lingo to mean a contact off the reservation.

People v. Scaringe, 137 A.D.3d 1409 (3d Dep’t March 17, 2016). Defendant was a 61-year-old male who had been hired as the director of the Saranac Lake Youth Center, which provided an after-school gathering place for teenagers. Defendant befriended a thirteen-year-old client of the Youth Center and (unbeknownst to the victim’s family) bought her gifts including a cell phone with pre-paid minutes, which defendant replenished, and exchanged text messages with the victim. One evening, defendant brought the victim to his home, directed her into his bedroom, and had intercourse with her. Several days later, the victim’s mother saw a sexually explicit message from defendant on the victim’s cell phone. The mother confronted the victim about it and called the police. Defendant was convicted of second degree rape and endangering the welfare of a child. On appeal, defendant challenged the admission into evidence of 70 deleted

122 text messages between defendant and victim that a police investigator who was experienced in retrieving data from cell phones had retrieved from defendant’s and victim’s cell phones. Also retrieved was a photo taken in defendant’s office at the Youth Center, when no one else was in the building, of the victim sitting on defendant’s lap with their faces close together. The Third Department held that this admissible evidence amply supported the verdict against defendant.

E. Twitter and standing to challenge a subpoena of one’s Twitter account:

Defendant was held to have no standing to quash district attorney’s subpoena to Twitter to obtain defendant’s email address and tweets posted for a three-month period that included the date of a protest march on the roadway of the Brooklyn Bridge. People v. Harris, 36 Misc. 3d 613 (Crim. Ct. City of New York 2012). Defendant, along with several hundred other protestors, was charged with disorderly conduct. Defendant moved to quash the subpoena in his own right or to intervene in Twitter’s proceedings to quash the subpoena. In denying defendant’s motion, the court relied on Twitter’s Terms and Conditions including its Privacy Policy which defendant agreed to when he set up his Twitter account. Twitter’s privacy policy disclosed that Twitter collects user information, including IP address, physical location, browser type, mobile carrier, and that Tweets can become public information searchable by the use of many search engines. The court analogized the law as to bank records and telephone records in which the customer has no proprietary or possessory interest. Twitter’s privacy policy notifies its users of Twitter’s Privacy Policy, which is that most of the information the user provides is information that the user is asking Twitter to make public including not only Tweets but also the lists the user creates, the people the user follows, the Tweets the user marks as favorites or Retweets, and “many other bits of information".

But compare Crispin v. Christian Audigier, Inc., supra, 717 F. Supp. 2d 965 (C.D. Cal. 2010), which contains a good discussion of plaintiff’s right under the federal Stored Communications Act, 18 U.S.C. §2701 et seq. to quash defendants’ subpoenas served on Black Market Art Company, Facebook, Media Temple, Inc., and Myspace (electronic service providers and/or remote computing service providers) for plaintiff’s private messages. With regard to plaintiff’s public information on those sites, the court remanded for further inquiry into plaintiff’s privacy settings.

Another California court avoided the issue raised in Crispin by directing the Facebook account owner to sign a consent pursuant to the Stored Communications Act authorizing Facebook to provide the Facebook account owner’s posts during a specified time period. Juror Number One v. The Superior Court of Sacramento County, 142 Cal.Rptr.3d 151, 206 Cal.App.4th 854 , 12 Cal. Daily Op. Serv. 5991 , 2012 Daily Journal D.A.R. 7216 , 95 A.L.R.6th 749 (3d App. Dist. 2012). After the criminal defendants (the real parties in interest) had been convicted of assault, the trial court learned that Juror Number One had posted one or more items on his Facebook account about the trial while it was in progress, in violation of an admonition by the trial court. The trial court conducted a hearing at which Juror Number One and several other jurors were examined about this and other claimed instances of misconduct. After the hearing, the trial court found that Juror Number One had committed misconduct but that it was unclear as to whether the misconduct was prejudicial. To determine the extent of prejudice, the trial court issued an

123 order requiring Juror Number One to execute a consent form pursuant to the Stored Communications Act (SCA) (18 U.S.C. § 2701 et seq.) authorizing Facebook to release to the court for an in-camera review of all items that Juror Number One had posted during the trial. Juror Number One filed a petition of prohibition to prevent enforcement of that order. Held: the trial court had the authority to order Juror Number One to disclose the messages he posted to Facebook during the criminal trial as part of the trial court’s inherent power to control the proceedings before it and to assure that the real parties in interest had received a fair trial. Regardless of whether Juror Number One's Facebook postings were protected by the Stored Communications Act, that protection applied only as to attempts to compel Facebook to disclose the requested information. Here, the compulsion was on Juror Number One, not Facebook, for Juror Number One to execute a consent to Facebook to release to the court for in camera inspection of all items Juror Number One posted during a trial.

F. The “Best Evidence” Rule, Photocopies and CPLR 4539 (Reproductions of Originals)

Photocopies of already-existing hard-copy documents are subject to the common-law best evidence rule (the original must be produced) and to CPLR 4539 (reproductions of original documents). Subdivision (a) makes copies of business records admissible as follows:

If any business, institution, or member of a profession or calling, in the regular course of business or activity has made, kept or recorded any writing, entry, print or representation and in the regular course of business has recorded, copied, or reproduced it by any process, including reproduction, which accurately reproduces or forms a durable medium for reproducing the original, such reproduction, when satisfactorily identified, is as admissible in evidence as the original, whether the original is in existence or not, and an enlargement or facsimile of such reproduction is admissible in evidence if the original reproduction is in existence and available for inspection under direction of the court. The introduction of a reproduction does not preclude admission of the original.

Print-outs with metadata that show document changes (so that changes can be detected) are admissible under subdivision (b) as follows:

A reproduction created by any process which stores an image of any writing, entry, print or representation and which does not permit additions, deletions, or changes without leaving a record of such additions, deletions, or changes, when authenticated by competent testimony or affidavit which shall include the manner or method by which tampering or degradation of the reproduction is prevented, shall be as admissible in evidence as the original.

Both subdivisions of CPLR 4539 must be satisfied, and the entire document must be reproduced, however. Citibank (S. Dakota) N.A. v. Improta, 47 Misc. 3d 1202(A) (Civ. Ct. Richmond Co. 2015). In this collection action on a credit card debt, the credit card statements that plaintiff offered into evidence at trial were excluded under CPLR 4539(b). Plaintiff's witness was able to

124 establish only that the monthly statements of defendant's account were kept in the regular course of business and therefore should be admissible under CPLR § 4539(a), but the witness was unable to testify as to how the records are stored and whether plaintiff’s process for doing so prevented “additions, deletions, or changes” as required by CPLR § 4539(b). In addition, the monthly statements were incomplete. They all appeared to be only “page one”. The bottom of every statement referred to the reverse side of the statement for “payment information”. The failure to produce the second page or any other additional pages prevented the court from evaluating the accuracy of the entire bill and whether the statement contained additional information affecting the defendant's rights and obligations.

The term "reproduction," in CPLR 4539(b) does not refer to a document which was originally created electronically and later printed out as a hard copy, but instead refers to the situation where a hard copy of an original paper document is stored electronically and later printed as a "reproduction" of that original hard copy. People v. Rath, 41 Misc. 3d 869 (Dist. Ct. Nassau Co. 2013). Therefore, electronic data that never existed in hard copy is governed by CPLR 4518 and not by 4539.

From the 2002 Recommendations of the Advisory Committee on Civil Practice, we learn that CPLR 4539, which deals with reproductions, such as carbon copies of photocopies, is not an adequate vehicle for providing for the introduction of exhibits derived from electronic records because CPLR 4539 requires that the reproduction itself have been created in the ordinary course of business. CPLR 4539(b), in dealing with optically scanned images (i.e., reproductions through processes which store an image and do not permit alterations, deletions or changes without leaving a record of such additions) does not address database records and could impose technical impediments to admissibility based on difficulty and proof of the protections against undetectable alteration.

CPLR 4539(b) ensures that an electronic image of a document may be introduced into evidence in the same manner as the original document and allows for paper intensive industries to safely dispose of the original hardcopy and archive only optically-scanned images. But CPLR 4539(b) does not deal with technologies that record information other than through an image.

G. Business records and CPLR 4518(a)

The typical litany for authenticating a business record is  it was made in the regular course of any business;  it was the regular course of such business to make it, and  it was made at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.

Where the record is an electronic record (which is defined in State Technology Law §302) used or stored as such a memorandum or record, CPLR 4518(a) imposes an additional requirement for a print-out of electronically stored data that it be a true and accurate representation of the electronic record. As an optional matter, the court may consider the method or manner by which

125 the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record.

All other circumstances of the making of the memorandum or record, including lack of personal knowledge by the maker, may be proved to affect its weight, but they shall not affect its admissibility. The term “business” includes a business, profession, occupation and calling of every kind.

H. Electronic and web-based records:

Business records and CPLR 4518(a): Electronic records are business records for purposes of CPLR 4518(a) (business-records exception to hearsay rule), which applies to criminal cases as well as civil. Crim. Proc. Law §60.10.

Business records and State Tech. Law §306: Electronic records are also admissible under a separate statute: State Tech. Law §306 (formerly §106; beware of hyperlinks in older cases to §106). An electronic record is defined by State. Tech. Law §302 as: a. "Electronic": of or relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. b. "Electronic record": information, evidencing any act, transaction, occurrence, event, or other activity, produced or stored by electronic means and capable of being accurately reproduced in forms perceptible by human sensory capabilities. 1. used or stored as a memorandum or record, is admissible 2. in a tangible exhibit that is a 3. true and accurate representation of such electronic record. a. Court may consider the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record. 4. All other circumstances of the making of the memorandum or record, including lack of personal knowledge by the maker go to weight but not admissibility. 5. “business” includes a business, profession, occupation and calling of every kind.

I. Examples of electronic records and web-based evidence.

Computer print-out of larceny-defendant’s bank account: People v. Stephenson, 202 A.D.2d 280 (1st Dep't), appeal denied, 83 N.Y.2d 915 (1994) (computer print-out of larceny defendant's bank account was admissible under the business records exception to the hearsay rule. There was a proper foundation for the admission of the computer print-out of defendant's account, which was kept in the regular course of business (CPLR 4518).

Electronic entry of luggage loss or damage information by a representative of an international airline is sufficient to constitute written notice of a claim for purposes of the Warsaw Convention, 49 U.S.C. § 40105. D'Arrigo v. Alitalia, 192 Misc. 2d 188 (Civ. Ct. N.Y.C. 2002).

126 Print-out of electronic insurance policy is admissible as evidence in a New York State court proceeding as long as the court finds that such policy is true and accurate representation of electronic record. N.Y. Ins. Dep't Gen Counsel, Opinion No. 08-04-05. 2008 N.Y. Insurance GC Opinions LEXIS 73.

Craigslist and Airbnb postings: Plaintiff tenants sued defendant co-op board for attorneys’ fees that plaintiffs paid, pursuant to an indemnification agreement, to defend the co-op board in administrative proceedings brought by the City of New York against the co-op board in response to the board’s complaints to the Dep’t of Buildings about plaintiffs’ improperly renting their co- op apartment as a hotel room. Defendant co-op board moved for summary judgment to dismiss plaintiffs’ complaint and attached to its motion papers screen captures of Craigslist and Airbnb listings advertising plaintiffs’ apartment for periods as short as a week. Plaintiffs opposed the motion with only an attorney’s affirmation that did not deny the substance of the advertisements. Held: plaintiffs’ failure to controvert the advertisements were deemed an admission to the truth of those advertisements. Osberger v 18 Mercer Equity Inc., 50 Misc. 3d 1208(A) (Civ. Ct. N.Y. Co. 2015).

Roster of gang members downloaded from the internet and photograph of defendant’s girlfriend from defendant’s MySpace page: A roster of gang members that a detective downloaded from a website was inadmissible because the detective who downloaded it did not know who authored the roster, did not explain the basis for his assertion that gang members put it together, and offered no evidence that the person who created it had personal knowledge of the members of the gang. Also, a photograph of defendant’s girlfriend (who was defendant’s alibi witness as to gang involvement) that the detective downloaded from defendant’s Myspace page was inadmissible because no one authenticated it as depicting what it purported to depict. People v. Beckley, 185 Cal. App. 4th 509, 110 Cal. Rptr. 3d 362 (2010), cert. denied 131 S. Ct. 1522 (2011).

Defendants’ website to show alter ego status of all defendants: Defendants proffered copies of their website in connection with defendants’ request for a change of venue (to show jurisdiction over all defendants in the preferred jurisdiction). Cali v. E. Coast Aviation Servs., 178 F. Supp. 2d 276 (E.D.N.Y. 2001).

Teletype print-out obtained by the police: In a first degree robbery and larceny case, a teletype print-out obtained by the police showed that defendant's vehicle was the one bearing the license plate number that the victim wrote down. The print-out was properly admitted under the business record exception to the hearsay rule. People v. Miller, 150 A.D.2d 910 (3d Dep't 1989).

Exhibit compiled from the New York State Office of Real Property Services (ORPS) SalesWeb was admissible under the common-law public record hearsay exception, if authenticated, and was an electronic record, admissible under CPLR 4518(a) and State Tech. Law § 306; witness testified as to the manner in which she downloaded, printed, and copied the electronic record of the ORPS SalesWeb; in so doing, the ORPS SalesWeb was taken from its electronic form and turned into a tangible exhibit. Miriam Osborn Mem. Home Assn. v. Assessor of City of Rye, 9 Misc. 3d 1019 (Sup. Ct. Westchester Co. 2005) (Dickerson, J.).

127 An uncertified print-out of the NYS Department of State Division of Corporations showing the initial date on which plaintiff limited liability company filed its articles of organization was competent evidence of plaintiff’s date of formation. Plaintiff LLC had sued defendant landowner for specific performance of a contract to sell defendant some land. Defendant moved to dismiss for lack of capacity to sue on the ground that plaintiff LLC did not exist on the date of the agreement to sell. Defendant’s motion consisted, in pertinent part, of an affirmation by defendant’s attorney and a print-out of a web page from the NYS Department of State Division of Corporations showing the date that plaintiff’s articles of organization were formed. Held: the web page print-out was competent to establish the initial date that plaintiff filed its articles of incorporation with the Division of Corporations. Montgomery Troy LLC v Vassell, 52 Misc. 3d 1219(A) (Sup. Ct. Kings Co. Aug. 17, 2016).

But an uncertified print-out of NYS Department of State showing the principals of plaintiff professional corporation was inadmissible to prove that the affirming physician was an owner of plaintiff. Plaintiff medical provider (a professional corporation) sued defendant no-fault carrier to recover assigned first-party no-fault benefits. Carrier moved for summary judgment dismissing the complaint on the ground of medical necessity. Plaintiff opposed the motion via an affirmation of the doctor who treated plaintiff. Carrier replied that the treating doctor's affirmation was inadmissible pursuant to CPLR 2106 (which prohibits affirmations from parties to a suit), because the doctor was plaintiff's owner and, thus, a party to the action. Carrier offered a computer print-out from the New York State Department of State website showing the doctor’s ownership interest in plaintiff. Held: the computer print-out submitted by carrier was not in admissible form. Defendant failed to establish that the treating doctor was plaintiff's owner, so its argument as to CPLR 2106 lacked merit. Throgs Neck Multicare, P.C. v Mercury Cas. Co., 52 Misc, 3d 138(A) (App. Term 2d Dep’t July 8, 2016).

Governmental website (in opposition to a motion for summary judgment): In a trip and fall on a public sidewalk, defendant property owner moved for summary judgment. Plaintiff in opposition submitted uncertified print-outs of the Building Department’s website showing substantial construction in the area at the time of plaintiff’s fall. Defendant property owner did not challenge the admissibility or authenticity of the print-outs, so the court accepted them in opposition to defendant’s motion. Bernstein v. City of New York, 14 Misc. 3d 1225(A) (Sup. Ct. King’s Co. 2007).

Governmental website (in opposition to a proceeding for non-payment of a no-fault provider’s bills): In a proceeding by a health care provider against a no-fault carrier for wrongful denial of the provider’s invoices, the carrier asserted the defense that the provider was not entitled to payment because it was not licensed to practice medicine in New York State, and therefore in violation of 11 NYCRR 65-3.16(a)(12). The carrier attached uncertified copies of search results from (1) the New York State Department of State, Division of Corporations, Entity Information website (http://appsext5.dos.state.ny.us/corp_public/corpsearch.entity_search_entry), and (2) the New York State, Education Department, Office of the Professions, On-Line Business Entities Verification website (http://www.op.nysed.gov/opsearches.htm). The court took judicial notice of the records kept and maintained by the State of New York and other states on their official government websites, accepted that information pursuant to CPLR Rule 4518(a) and State

128 Technology Law § 306, and dismissed the provider’s suit. Proscan Radiology of Buffalo v. Progressive Cas. Ins. Co., 12 Misc. 3d 1176(A), 1176A (N.Y. City Ct. 2006).

Governmental website in landlord/tenant court: Court searched the municipality’s website for multiple dwellings registrations, found that plaintiff-landlord’s premises was registered, and dismissed the defendant-tenant’s affirmative defense in that regard. Glorius v. Siegel, 5 Misc. 3d 1015(A) (N.Y. Civ. Ct. 2004); see, also, Nairne v. Perkins, 14 Misc. 3d 1237(A) (N.Y. Civ. Ct. 2007); Parrino v. Russo, 19 Misc. 3d 1127(A) (N.Y. Civ. Ct. 2008). But compare NYC Med. & Neurodiagnostic, P.C. v. Republic W. Ins. Co., 8 Misc. 3d 33, 34-38 (App. Term 2d Dep’t 2004). in which the special term judge improperly sua sponte searched the Department of Insurance website for proof that defendant carrier was registered to write insurance in New York State, vis-à-vis defendant carrier’s motion to dismiss for lack of personal jurisdiction.

New York Secretary of State website regarding proof of incorporation and address for corporation: Plaintiff corporation’s address on file with the Secretary of State was Suffolk County and corroborated defendant’s request for change of venue from Bronx County, in which plaintiff had brought suit and in which neither defendant nor plaintiff had any presence. Scarsini Interiors, Inc. v. Just In Time Furniture Warehouse, Inc., 2009 N.Y. Slip Op 31702(U) (Sup. Ct. N.Y. Co. 2009).

Federal government’s website for diagnosis and procedure codes (judicial notice taken at trial): Pursuant to defendant-carrier’s request, the court took judicial notice of the diagnosis and procedure codes key maintained by the United States Government on its HHS web site. Plaintiff did not contest the accuracy of the codes key. The fact that the code system might not be readily understood by the lay public is of no significance, as the information is proffered for judicial notice not on the basis of being generally understood by the public, but rather, on the basis of its reliable source. Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 61 A.D.3d 13, 20-21 (2d Dep't 2009).

Judges’ individual rules on the NYS Unified Court System website: Finding defendant’s motion for summary judgment as being timely under CPLR 3212(a) (which provides that unless a judge’s individual rules shorten the time, parties have 120 days after the filing of the note of issue to move for summary judgment), the Second Department took judicial notice of the Supreme Court justice’s rules, which were on the NYS Unified Court System public website and which contained no rule shortening the 120-day limit. Boereau v Scott, 140 AD3d 687 (2d Dep’t June 1, 2016). eCourts website: Courts may take judicial notice of the eCourts website. Matter of Cento Props. Co. v. Assessor, 71 A.D.3d 1015 (2d Dep’t 2010); GLM Med., P.C. v Geico Gen. Ins. Co., 50 Misc. 3d 104, (App Term 2d Dep’t 2015). CAVEAT: state-court litigants, however, should not cite to e-filed documents without attaching them. On a commercial airline passenger's motion for renewal or reargument of her motion for class certification in her tort suit against airline, the trial court was not required to consider documents that the passenger had electronically filed with her initial motion to certify the class; rather than resubmitting those documents as exhibit to her later motion, passenger had submitted only attorney affidavit

129 referring to docket entry numbers of previously–submitted documents, thus leaving it for court to expend time locating those documents. Biscone v. JetBlue Airways Corp., 103 A.D.3d 158 (2d Dep't 2012).

NYS Attorney General’s Real Estate Finance Database: Relying on CPLR 4511 and State Tech. Law §§305 and 306, the court took judicial notice that the New York State Attorney General's Office maintains a Real Estate Finance Database which provides online information regarding the details of offering plans including the offering plan for the apartment building in question. The issue was whether the building was subject to rent stabilization. 375 New York HDFC v. Jones, 47 Misc.3d 1206(A) (Civ. Ct. NYC 2015).

J. Compilations and summaries.

Compilation of an electronic print out of data maintained by NYS Office of Real Property: Miriam Osborn Mem. Home Ass’n v. Assessor of City of Rye, 9 Misc. 3d 1029 (Sup. Ct. Westchester Co. 2005) (Dickerson, J.) involved the trial of petitioner’s assessment challenge. Petitioner sought to admit into evidence a compilation of an electronic print-out of data maintained by the NYS Office of Real Property (ORPS) that had been downloaded from the ORPS website. Petitioner offered the evidence as a public record (denied), as a self- authenticating document (denied), under the common-law public record hearsay exception (denied because not authenticated by a public officer), and as a business record (granted based on a witness’s testimony as to the manner in which she downloaded, printed, and copied the electronic record of the ORPS SalesWeb website). This case describes the testimony of the various foundation witnesses to creating the compilation and also discusses the applicability of the doctrine of judicial notice.

Compilations prepared for trial from business data of Medicaid-fraud defendant’s clinic: Computer print-outs generated for trial to establish the extent of defendant’s Medicaid fraud were properly admitted; the original data were made in the regular course of business and entered into the computer at the time of each transaction. The compilations were admissible under the “voluminous records” exception to the “best evidence” rule. The timing of the print- outs (being generated after the criminal proceeding commenced) did not affect their admissibility (citing state and federal precedents). And before trial, the prosecution gave defendants copies of the raw data from defendant’s computer and gave defendants permission to hire a computer expert, at the State's expense, to examine the tapes and the computer print-outs. Therefore, the defendants received a full and fair opportunity of challenging the accuracy of the print-outs by comparing the tapes with the print-outs. People v. Weinberg, 183 A.D.2d 932 (2d Dep't), appeal denied, 80 N.Y.2d 977 (1992).

Compilations as “voluminous writings” exception to the “best evidence” rule: In People v. Case, 114 A.D.3d 1308 (4th Dep't 2014), defendant appealed her conviction of grand larceny by false pretenses for having submitted false time sheets and mileage vouchers to her employer, raising two issues: (1) summaries of data that the prosecution had not disclosed and (2) computer print- outs of data that defendant’s employer maintained. With regard to the summaries, which the prosecution admitted into evidence under the “voluminous documents” exception, the Fourth

130 Department reversed defendant’s conviction in the interest of judgment because (a) the prosecution did not give defendant before trial the data underlying the summaries that were admitted into evidence, (b) the summaries were not based solely on information already in evidence, and (c) defendant’s attorney failed to review the summary exhibits before they were entered into evidence (ineffective assistance of counsel). But with regard to the computer print- outs of data recorded in the database maintained by defendant’s employer, the Fourth Department held that the prosecution had laid a sufficient foundation.

Compilations in federal court: Under FRE 803(6), the elements for admissibility of a compilation are:

1. a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, 2. made at or near the time by, or from information transmitted by, 3. a person with knowledge, 4. if kept in the course of a regularly conducted business activity, and 5. if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, 6. all as shown by the testimony of the custodian or other qualified witness, 7. unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. 8. The term "business" includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

NB: Fed. R. Evid. §803(6) permits exclusion of the proffered record if "the source of information or the method or circumstances of preparation indicates a lack of trustworthiness" (Fed. R. Evid. §803(6)(E), but CPLR 4518(a) provides that the circumstances surrounding the making of the record "may be proved to affect its weight, but they shall not affect its admissibility." Iannielli v.Consolidated Edison, 75 A.D.2d 223 (2d Dep’t 1980); Galanek v. NYCTA, 53 A.D.2d 586, 385 (1st Dep’t), lv den 40 N.Y.2d 807 (1986) (comparing the New York rule with the rule of Palmer v. Hoffman). See also Annot. 61 ALR Fed 359.

K. Bonus cases (miscellany learned while researching this topic)

A foundation for the evidence is still required: The fact that documentary evidence submitted on a motion for summary judgment was exchanged through discovery is no substitute for a proper foundation, and the absence of a proper foundation precludes the Court from considering such evidence. Tougher Industries, Inc. v. Dormitory Authority of State, 130 A.D.3d 1393 (3d Dep’t 2015). The mere fact that the email was originally produced by defendant during discovery does not, as plaintiff contends, alter the requirement that a foundation for the email's admissibility must be laid.

Electronic signatures: In the First Department, physicians may electronically sign their affirmations in compliance with CPLR 2106 (affirmations by physicians), but in the Second

131 Department they may not. Compare Martin v. Portexit Corp., 98 A.D.3d 53 (1st Dep’t 2012) with Vista Surgical Supplies, Inc. v. Travelers Ins. Co., 50 A.D.3d 778 (2d Dep’t 2008).

EUO transcripts: In Charles Deng Acupuncture, P.C. v Titan Ins. Co., 35 N.Y.S.3d 875 (Civ. Ct. Kings Co. 2016), electronically signed transcripts of examinations under oath were submitted on defendant’s motion for summary judgment, but plaintiff did not challenge the electronic signatures. Defendant was a no-fault carrier who had offered certified transcripts of examinations under oath (EUOs), which had been prepared by court reporters hired by defendant’s law firms and some of which the court reporters had electronically signed, to show that the plaintiff medical providers had failed to appear for properly-noticed examinations under oath. The transcripts contained the carrier’s attorney’s statement on the record that the pertinent medical provider had failed to appear for the EUO. Held: the transcripts were admissible at trial under CPLR 4518(a) as business records to establish that the medical providers failed to appear at least two times for scheduled EUOs, since the transcripts were generated in the usual course of insurer's business, and it was in usual course of insurer's business to generate EUOs.

Ownership of domain name: In a trademark dispute in which defendant had been found to own the mark in question, plaintiffs nevertheless owned the domain name and therefore had the right to cut off defendant’s access to (a) defendant’s email account that plaintiffs created under plaintiffs’ domain name and (b) plaintiffs’ data bases. Defendant’s counterclaim under the Stored Communications Act was dismissed because defendant failed to allege how plaintiffs could have "exceeded" their authorization or acted "without authorization" in accessing or restricting defendant’s access to email accounts and databases that plaintiffs owned and controlled. The SCA does not prohibit an entity from controlling access to accounts and databases that it owns. Defendant’s ownership of the trademark did not translate into defendant’s ownership over accounts and databases that plaintiffs had created, maintained and controlled. MDB LLC v. Hussain, 2016 WL 1257793, 2016 U.S. Dist. LEXIS 42329 (S.D.N.Y. Mar. 29, 2016).

132 2016 SOCIAL MEDIA DISCLOSURE

Submitted By: DAVID P. HOROWITZ, ESQ. Geringer, McNamara & Horowitz LLP New York, NY © 2016 David Paul Horowitz, All Rights Reserved. REPRINTED WITH PERMISSION 133 134 New York State Bar Association 2016 TICL/Trial Lawyers Fall Meeting: Social Media Disclosure

“These are not matters of national security or part of a criminal investigation. This is a civil tort matter of a minor assault that should have a good faith basis other than supposition, hope or speculation that some comment was made that may be relevant to the case at hand.”1

1 Justice Joseph J. Maltese, Fawcett v. Altieri, 38 Misc.3d 1022, 960 N.Y.S.2d 592 (Supreme Court, Richmond Cty., 2013)

Table of Contents

I. Foundation Requirements…………………………………………....5 II. Scope Of Social Media Disclosure………………………………….23 III. Privacy Considerations……………………………………………...25 IV. Motion Practice……………………………………………………..27 V. In Camera Reviews…………………………………………………28 VI. Is It Worth The Effort?...... 32 VII. Ethical Considerations………………………………………………34

138 New York State Bar Association 2016 TICL/Trial Lawyers Fall Meeting: Social Media Disclosure

I. Foundation Requirements

How can a party establish the necessary foundation to demonstrate entitlement to

disclosure of social media? Any publicly available social media, along with any other

matter obtained through disclosure or investigation and ask questions of the party or other

witness to establish that relevant social media exists.

Good Faith Basis For Disclosure Of Social Media Required

Fawcett v. Altieri, 38 Misc.3d 1022, 960 N.Y.S.2d 592 (Supreme Court, Richmond Cty., Justice Joseph J. Maltese 2013)

The party requesting the discovery of an adversary's restricted social media accounts should first demonstrate a good faith basis to make the request. Absent some facts that the person disclosed some information about the subject matter of the pending law suit, granting carte blanche discovery of every litigant's social media records is tantamount to a costly, time consuming "fishing expedition," which the courts ought not condone.

* * *

With the volume of cases pending before our courts, simply requesting authorizations for all social media from all or most of the litigants will create an unmanageable volume of documents to be reviewed in the hope that some information directly relevant to the case will be uncovered. More likely, the information obtained would be irrelevant to the actual facts of the case, but may be used in an attempt to discredit the adversary with collateral matters. As a matter of judicial policy, such a fishing expedition is not a sufficient basis to open the flood gates of meandering thoughts or silly postings to be used to impeach a party in a simple assault or negligence action without any good cause to believe that any incriminating statement was ever made and publicized in the social media. These are not matters of national security or part of a criminal investigation.

* * *

This is a civil tort matter of a minor assault that should have a good faith basis other than supposition, hope or speculation that some comment was made that may be relevant to the case at hand.

Therefore, the parties should proceed to discover the facts of the case by way of depositions or other investigatory or surveillance means.

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Public Profile Picture Of Plaintiff Sufficient Foundation

Spearin v. Linmar, L.P., 129 A.D.3d 528, 11 N.Y.S.3d 156 (1st Dep’t 2015)

Defendant established a factual predicate for discovery of relevant information from private portions of plaintiff’s Facebook account by submitting plaintiff’s public profile picture from his Facebook account, uploaded in July 2014, depicting plaintiff sitting in front of a piano, which tends to contradict plaintiff’s testimony that, as a result of getting hit on the head by a piece of falling wood in July 2012, he can longer play the piano (citation omitted).

Motion to Compel Authorization for Facebook Records Properly Denied

Tapp v. New York State Urban Dev. Corp., 102 A.D.3d 620, 958 N.Y.S.3d 392 (1st Dep’t 2013)

In a personal injury action, the trial court denied the defendants' motion to compel

an authorization for plaintiff's Facebook records compiled after the incident alleged in the

complaint, including any records previously deleted or archived, and the First

Department unanimously affirmed:

The motion court correctly determined that plaintiff's mere possession and utilization of a Facebook account is an insufficient basis to compel plaintiff to provide access to the account or to have the court conduct an in camera inspection of the account's usage. To warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff's Facebook account — that is, information that "contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses, and other claims" (citations omitted). Defendants failed to identify relevant information.

Defendants' argument that plaintiff's Facebook postings "may reveal daily activities that contradict or conflict with" plaintiff's claim of disability amounts to nothing more than a request for permission to conduct a "fishing expedition" (citations omitted).

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Disclosure Denied For Failure To Establish Foundation

Abrams v. Pecile, 83 A.D.3d 527, 922 N.Y.S.2d 16 (1st Dep’t 2011)

Care must be taken to establish a proper foundation in order for the matter to be

discoverable, before the issue of admissibility is addressed. Accordingly, the First

Department denied:

[A]ccess to plaintiff's social networking accounts, [where] no showing has been made that "the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims" (citations omitted).

Exchange of Facebook Records Granted Where Foundation Established

Nieves v. 30 Ellwood Realty LLC, 2013 NY Slip Op 23128 (App. Term, 1st Dep’t 2013)

The infant plaintiff claims damages for physical and psychological injuries, including the inability to engage in social activities, anxiety, depression, and posttraumatic stress disorder. Defendant demonstrated that plaintiff's Facebook profile contained photographs that were probative of the issue of the extent of her alleged injuries, and it is reasonable to believe that other portions of her Facebook records may contain further evidence relevant to that issue (citations omitted). In these circumstances, and since "it is possible that not all Facebook communications are related to the events that gave rise to plaintiff's cause of action" (citations omitted), the appropriate course is to remand the matter for an in camera inspection of plaintiff's Facebook records, to determine which of those records, if any, are relevant to plaintiff's alleged injuries. To the extent that a thorough in camera inspection may prove unduly burdensome, the trial court retains broad discretion to set reasonable terms and conditions thereon (citations omitted), including the right to direct plaintiff to conduct an initial review of her own Facebook account, and limit the in camera inspection to items whose discoverability is contested by plaintiff (citation omitted).

Post-Accident Posting Of Photos Showing Plaintiff Skiing Sufficient Showing

Richards v. Hertz, Corp., 100 A.D.3d 728, 953 N.Y.S.2d 654 (2d Dep’t 2012)

Plaintiff alleged that as a result of the automobile accident her ability to play sports

was impaired and pain was present which was exacerbated in cold weather. Court held

defendants, by demonstrating that plaintiff had posted on her personal webpage on

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Facebook pictures of herself skiing which post dated automobile accident, made

sufficient showing that portion of plaintiff’s webpage that was blocked by privacy setting

might contain other evidence relevant to defense of lawsuit, and that allowing defendant

access to this portion of plaintiff’s webpage was reasonably calculated to lead to

discovery of relevant information. However, due to likely presence on that portion of

webpage blocked by privacy setting of material of private nature that was not relevant to

lawsuit, Court held trial court had to conduct an in camera inspection of all status reports,

e-mails, photographs, and videos posted on webpage since date of accident to determine

which of those materials, if any, were relevant to her alleged injuries.

No Factual Predicate For Exchange Of Social Media

Kregg v. Maldonado, 98 A.D.3d 1289, 951 N.Y.S.2d 301 (4th Dep’t 2012)

Court held in this motorcycle accident action that D’s discovery of all social media

account records concerning plaintiff’s son (the injured party) was overbroad. It noted

that request for access to accounts was made without factual predicate with respect to

relevancy of the evidence, as there was no contention that information in accounts

contradicted P’s claims for diminution of enjoyment of life.

No Foundation That Facebook Account Used For Business

Abe v. New York Univ., 140 A.D.3d 557, 32 N.Y.S.3d 506(1st Dep’t 2016)

Plaintiff also failed to make a showing of entitlement to all of the social media sites and private email accounts of certain individual defendants. The mere fact that a Facebook "friend" of defendant Barton, who also worked at defendant New York University, wrote "Hi" on Barton's "wall" does not establish that Barton used her Facebook account for NYU business in general, so as to warrant production of the discovery requested (citation omitted).

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Trial Court Applies Relevant Case Law & Orders Disclosure

Winchell v. Lopiccolo, 2012 NY Slip 22337 (Supreme Court, Orange Cty. 2012)

In a personal injury action, plaintiff alleged in her Bill of Particulars that she

suffered various injuries, including physical injury and "mild traumatic brain injury,"

"blunt facial and head trauma," "persistent ecchymosis in the forehead," "impaired

cognitive functioning," "cerebral dysfunction," "motor organization deficit," "memory

impairments" and "difficulty concentrating." Defendant served disclosure demands for

plaintiff’s social media:

Defendants served Plaintiff with a Notice to Produce, demanding the following: (1) a copy of a film in which Plaintiff appeared; (2) a videotape of a beauty pageant in which Plaintiff participated; (3) authorization for access to Plaintiff's Facebook page; (4) photographs of Plaintiff at her junior prom; (5) photographs of Plaintiff at her boyfriend/fiance's senior prom; (6) all reviews that mention Plaintiff as a performer; (7) the Playbill for the production "Brighton Beach Memoirs" in which Plaintiff performed one of the acting roles; (8) the name and address of the director of "Brighton Beach Memoirs"; and (9) authorization for access to Plaintiff's employment records. Plaintiff objected to these demands and the instant motion followed.

In their motion papers, Defendants narrow the scope of their Request Nos. 4 and 5 to only those photographs that are representative of Plaintiff's appearance at the two proms. Defendants withdraw Request No. 9.

In her opposition papers, Plaintiff provides responses to Request Nos. 1, 2, 6, 7, 8, 9, and 10. With regard to Request Nos. 1 and 2, Plaintiff asserts that she does not have possession or control of the film in which she appeared, and she does not believe that a videotape was made of the beauty pageant. With regard to reviews of her performance sought in Request No. 6, Plaintiff states that she is not aware that any exist. Plaintiff attaches a copy of the Playbill for "Brighton Beach Memoirs" in response to Request Nos. 7 and 9 (which was withdrawn). In response to Request No. 8, Plaintiff provides the information that she is able to recall. Finally, with regard to Request No. 10, Plaintiff asserts that she already provided Defendants with the authorization for her employment records.

In their reply papers, Defendants do not address Plaintiff's responses to the above Requests, focusing instead on Request No. 3, which seeks the Facebook authorization. The Court interprets Defendants' lack of specific objection to any of Plaintiff's responses to Request Nos. 1, 2, and 6 through 10 as a further

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narrowing of the scope of the parties' dispute to only Request No. 3 for the Facebook authorization and Request Nos. 4 and 5 for the prom photographs.

The Court addressed only Requests Nos. 3 through 5:

Defendants request authorization to access Plaintiff's Facebook page for the purpose of discovering what it reveals about Plaintiff's "ability to portray cognitive function." See Notice of Motion, Affirmation of Betsy N. Garrison at ¶ 11. Defendants further clarify their request as follows: "the layout of her Facebook page would demonstrate cognitive function inasmuch as the layout of a Facebook page calls for creativity of some sort as well as thought in providing captions for photographs, narrative posts written by the plaintiff as well as her ability to write and comment. Writings on the page would be direct and circumstantial evidence of her claims. Moreover, lucid and logical writing or a lack thereof, would be useful in the defense and/or assessment of this case."

Id. Defendants attempt to refine the purpose of their Request even further in their reply papers, contending that the manner in which Plaintiff uses her Facebook page, including photo layouts and captions, expressiveness of language and lucidity of her statements will illuminate the nature and extent of her claimed neurological and psychological injury.

Plaintiff strenuously opposes access to her Facebook page and asserts that Defendants have not demonstrated any factual predicate for their request to have "unfettered access" to her personal information. Moreover, Plaintiff contends it is unreasonable to use the contents of her Facebook page as an indicator of her cognitive functioning. She asserts that her cognitive functioning is far more credibly represented by her high school and college transcripts, which have already been provided to Defendants. To the extent that her Facebook page contains photographs of her at the prom, performing in a play, or participating in a beauty pageant and postings related to any of those events, such information is cumulative and unnecessary given her admission that she participated in all of these events.

After discussing the dearth of case law, the court noted “[d]iscovery in this area is

nonetheless governed by the same legal principles that guide more traditional forms of

discovery and, as one court put it, "digital fishing expeditions' are no less objectionable

than their analog antecedents." (Citation omitted).

The party demanding access to social networking accounts must show that the method of discovery will lead to "the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information that bears on the

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claims." (citation omitted). The requesting party must "establish a factual predicate with respect to the relevancy of the evidence." (citation omitted).

The Court is troubled by the breadth of Defendants' Request for authorization for Plaintiff's Facebook page because it seeks unrestricted access. While the Court recognizes Defendants' attempt to establish a factual predicate for their request, the fact is that every bit of information Plaintiff enters onto her Facebook page demonstrates some level of cognitive functioning. This Court's review of reported decisions in this area has not disclosed any instance where such unfettered access was allowed, unless the requesting party first showed that information on the other party's public page contradicted their claims of injury or damages. (Citation and case quote omitted). Defendants have not made that contention here. They hope to discover such information in their search. Defendants cannot point to anything concrete. Instead, they hope to divine the extent of Plaintiff's cognitive injuries from reading every bit of information on her Facebook page. The Court finds that Defendants' Request for unrestricted access to Plaintiff's Facebook page is overbroad. (Citations omitted). In addition to the cases cited, the Court finds persuasive the reasoning of a federal case addressing the same issue of access to a Facebook account in a somewhat analogous situation where the party's claims involved damage to her mental and emotional health. (Citation omitted). As the court there stated, "[a]lthough ... the contours of social communications relevant to a claimant's mental and emotional health are difficult to define, that does not mean that everything must be disclosed." (citation omitted). While "anything that a person says or does might in some theoretical sense be reflective of her emotional state," it does not justify "requiring the production of every thought she may have reduced to writing, or, indeed, the deposition of everyone she may have talked to." (Citation omitted). Similarly, "the contours of social communications relevant to" Plaintiff's cognitive functioning are hard to define but do not justify the blanket disclosure that Defendants request. "[I]t must be the substance of the communication that determines relevance." (Citation omitted).

For example, if Plaintiff posted a message on Facebook saying that she has difficulty formulating the words to express her thoughts, the substance of the message is what should be considered to determine whether the message is relevant. Beyond that, once Plaintiff formulates a message, the message itself may not reflect the effort expended in its formulation if the substance of the message does not contain any reference to that process. Even Plaintiff's use of language and her ideas may be more reflective of her choice of expression rather than her ability. Furthermore, as Plaintiff contends, to the extent that she has provided more reliable indicators of her cognitive abilities, Defendants have made no showing that their request is not cumulative.

Accordingly, the Court denies that portion of Defendants' motion to compel access to Plaintiff's Facebook page, without prejudice to service of a more narrowly-tailored discovery demand.

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The court ordered disclosure of the prom photographs.

In Three To Two Decision, First Department Adheres To Social Media Disclosure Paradigm, While Dissent Urges A Reevaluation

Foreman v. Henkin, 134 A.D.3d 529, 22 N.Y.S.3d 178 (1st Dep’t 2015)

Order, Supreme Court, New York County (Lucy Billings, J.), entered March 19, 2014, which, to the extent appealed from as limited by the briefs, granted defendant’s motion to compel to the extent of directing plaintiff to produce all photographs of plaintiff privately posted on Facebook prior to the accident at issue that she intends to introduce at trial, all photographs of plaintiff privately posted on Facebook after the accident that do not show nudity or romantic encounters, and authorizations for defendant to obtain records from Facebook showing each time plaintiff posted a private message after the accident and the number of characters or words in those messages, modified, on the law and the facts, to vacate those portions of the order directing plaintiff to produce photographs of herself posted to Facebook after the accident that she does not intend to introduce at trial, and authorizations related to plaintiff’s private Facebook messages, and otherwise affirmed, without costs.

In this personal injury action, plaintiff alleges that while riding one of defendant’s horses, the stirrup leather attached to the saddle broke, causing her to lose her balance and fall to the ground. Plaintiff claims that defendant was negligent because, inter alia, he failed to properly prepare the horse for riding, and neglected to maintain and inspect the equipment. Plaintiff alleges that the accident resulted in cognitive and physical injuries that have limited her ability to participate in social and recreational activities. At her deposition, plaintiff testified that she maintained and posted to a Facebook account prior to the accident, but deactivated the account at some point after.

Defendant sought an order compelling plaintiff to provide an unlimited authorization to obtain records from her Facebook account, including all photographs, status updates and instant messages. The motion court granted the motion to the extent of directing plaintiff to produce: (a) all photographs of herself privately posted on Facebook prior to the accident that she intends to introduce at trial; (b) all photographs of herself privately posted on Facebook after the accident that do not show nudity or romantic encounters; and (c) authorizations for Facebook records showing each time plaintiff posted a private message after the accident and the number of characters or words in those messages. Plaintiff now appeals.

CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.” In determining whether the information sought is subject to discovery, “[t]he test is one of usefulness and

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reason” (citation omitted). “ It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims’” (citations omitted). Discovery demands are improper if they are based upon “ hypothetical speculations calculated to justify a fishing expedition’” (citations omitted).

This Court has consistently applied these settled principles in the context of discovery requests seeking a party’s social media information. For example, in Tapp v New York State Urban Dev. Corp. (citation omitted), we denied the defendants’ request for an authorization for the plaintiff’s Facebook records, concluding that the mere fact that the plaintiff used Facebook was an insufficient basis to provide the defendant with access to the account. Likewise, in Pecile v Titan Capital Group, LLC (citation omitted), we concluded that vague and generalized assertions that information in the plaintiff’s social media sites might contradict the plaintiff’s claims of emotional distress were not a proper basis for disclosure (citation and parenthetical omitted).

Other Departments of the Appellate Division, consistent with well-established case law governing disclosure, have required some threshold showing before allowing access to a party’s private social media information (citations and parentheticals omitted). Guided by these principles, we conclude that defendant has failed to establish entitlement to either plaintiff’s private Facebook photographs, or information about the times and length of plaintiff’s private Facebook messages. The fact that plaintiff had previously used Facebook to post pictures of herself or to send messages is insufficient to warrant discovery of this information (citation and parenthetical omitted). Likewise, defendant’s speculation that the requested information might be relevant to rebut plaintiff’s claims of injury or disability is not a proper basis for requiring access to plaintiff’s Facebook account (citations and parentheticals omitted).

However, in accordance with standard pretrial procedures, plaintiff must provide defendant with all photographs of herself posted on Facebook, either before or after the accident, that she intends to use at trial. Plaintiff concedes that she cannot use these photographs at trial without having first disclosed them to defendant. We disagree with the dissent’s position that we should reconsider the well-settled body of case law, from both this Court and other Departments, governing the disclosure of social media information. Both parties here agree with the general legal principles set forth in the existing case law and differ only as to the application of those principles to the specific facts of this case. Neither party asks us to revisit our controlling precedent, and the doctrine of stare decisis requires us to adhere to our prior decisions (citations omitted). Although we agree with the dissent that social media is constantly evolving, there is no reason to alter the existing legal framework simply because the potential exists that new social network practices may surface. Furthermore, there is no dispute that the features of Facebook at issue here (i.e., the ability to post photographs and send messages)

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have been around for many years.

Contrary to the dissent’s view, this Court’s prior decisions do not stand for the proposition that different discovery rules exist for social media information. The discovery standard we have applied in the social media context is the same as in all other situations — a party must be able to demonstrate that the information sought is likely to result in the disclosure of relevant information bearing on the claims (citation omitted). This threshold factual predicate, or “reasoned basis” in the words of the dissent, stands as a check against parties conducting “fishing expeditions” based on mere speculation )citations and parentheticals omitted).

Although we agree with the dissent that the discovery standard is the same regardless of whether the information requested is contained in social media accounts or elsewhere, we disagree with the dissent’s analysis as to how that standard should work in the personal injury context. According to the dissent, “[i]f a plaintiff claims to be physically unable to engage in activities due to the defendant’s alleged negligence, posted information, including photographs and the various forms of communications (such as status updates and messages) that establish or illustrate the plaintiff’s former or current activities or abilities will be discoverable.” This view, however, is contrary to our established precedent holding otherwise (citations omitted). We are bound by principles of stare decisis to follow this prior precedent, particularly here where no party asks us to revisit it, and we believe that this precedent results in the correct outcome here.

Taken to its logical conclusion, the dissent’s position would allow for discovery of all photographs of a personal injury plaintiff after the accident, whether stored on social media, a cell phone or a camera, or located in a photo album or file cabinet. Likewise, it would require production of all communications about the plaintiff’s activities that exist not only on social media, but in diaries, letters, text messages and emails. Allowing the unbridled disclosure of such information, based merely on speculation that some relevant information might be found, is the very type of “fishing expedition” that cannot be countenanced. Contrary to the dissent’s view, there is no analogy between the defense litigation tool of surveillance video and the wholesale discovery of private social media information. The surveillance of a personal injury plaintiff in public places is a far cry from trying to uncover a person’s private social media postings in the absence of any factual predicate.

The question of whether a court should conduct an in camera review of social media information is not presented on this appeal. The court below did not order an in camera review, nor do the parties on appeal request any such relief. Further, the dissent is mistaken that our prior decisions in this area require a court to conduct an in camera review in all circumstances where a sufficient factual predicate is established. The decision whether to order an in camera review rests in the sound discretion of the trial court, or in this Court’s discretion if we choose to exercise it (citations omitted). The cases cited by the dissent in which an in

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camera review was directed stand simply for the proposition that those courts, in their discretion, believed that such review was appropriate.

Finally, plaintiff’s claim that the motion court erred in sua sponte ordering a physical and psychological examination of her is based on a misreading of the court’s decision. As defendant acknowledges, the court did not grant such relief, but merely referenced the previously scheduled examination discussed at oral argument.

The dissenters urged a reevaluation of the social media disclosure paradigm:

A few basic concepts about Facebook must be understood for this discussion (see generally http://www.facebook.com/help [accessed July 21, 2015]). Every person who subscribes to Facebook has a "public page" containing information that the subscriber allows to be viewed by the general public, which may include content such as photographs, status updates, or shared links. Each subscriber may choose to make each piece of posted content publicly available, or may limit the posted content so that it can only be viewed by a more limited group, such as the individuals identified by the subscriber as "friends," or a customized list of people. Subscribers can also use Facebook to send messages to other subscribers in a manner similar to text messaging. Those messages will not be visible to anyone not involved in them.

If a subscriber opts to deactivate his or her Facebook page, that person's page is no longer viewable. However, deactivating one's Facebook page does not erase the information that was previously posted there. Instead that information remains present in Facebook's internal records, so that it can be restored by reactivation of an account, or obtained through a court order.

Over the past few years, as social networking sites have become increasingly ubiquitous, courts across the country have adopted a variety of approaches to discovery of social media accounts (citation omitted). It is clear that "discovery of social networking information is a developing body of jurisprudence"(citation omitted).

The case law that has emerged in this state in the last few years regarding discovery of information posted on personal social networking sites holds that a defendant will be permitted to seek discovery of the nonpublic information a plaintiff posted on social media, if, and only if, the defendant can first unearth some item from the plaintiff's publicly available social media postings that tends to conflict with or contradict the plaintiff's claims. Even if that hurdle is passed, then the trial court must conduct an in camera review of the materials posted by the plaintiff to ensure that the defendant is provided only with relevant materials. The first New York State appellate case considering a demand for the contents of a plaintiff's Facebook account was issued by the Fourth Department in 2010, affirming the denial of the defendant's motion for such an authorization (citation

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omitted). In rejecting the defendant's assertion that the information was relevant to whether the plaintiff had sustained a serious injury in the accident, the Fourth Department observed that the demand was essentially "a fishing expedition" into the plaintiff's Facebook account in the hope of finding relevant evidence (citation omitted). It is worth noting that the demand in McCann was for the entire contents of the plaintiff's Facebook account; the defendant made no effort to tailor the demand to limit it to relevant, discoverable materials contained there.

The Fourth Department elaborated on the point in Kregg v Maldonado (citation omitted). In Kregg, upon learning that family members of the injured party had established Facebook and MySpace accounts for him and had posted material on his behalf in connection with those accounts, the defendants requested the disclosure of the contents of those and any other social media accounts maintained by or on behalf of the injured party. The Court explained that the request was made without "a factual predicate with respect to the relevancy of the evidence" (citation omitted), observing that "there [was] no contention that the information in the social media accounts contradict[ed] plaintiff's claims for the diminution of the injured party's enjoyment of life" (citation omitted). The prerequisite of a "factual predicate" contradicting the plaintiff's claims, imposed in McCann and Kregg, has been incorporated into the decisions that followed on discovery of material posted on social media.

In Tapp v New York State Urban Dev. Corp. (citation omitted), this Court concluded that merely having a Facebook account does not establish a factual predicate for discovery of private material posted to a Facebook page. Tapp used the Kregg concept of requiring a "factual predicate" before allowing a defendant to obtain discovery of information the plaintiff posted on social media: "defendants must establish a factual predicate for their request by identifying relevant information in plaintiff's Facebook account — that is, information that contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses, and other claims'" (citations omitted). Indeed, in Tapp, this Court explicitly rejected the defendant's rationale that "plaintiff's Facebook postings may reveal daily activities that contradict or conflict with' plaintiff's claim of disability," asserting that the argument amounted to a "fishing expedition" (citation omitted).

Even where some factual predicate for the disclosure of information posted on social media is established, this Court has required that an in camera review be performed so that the defendant is not made privy to non-relevant content. This procedure was imposed in Patterson v Turner Constr. and the recent case of Spearin v Linmar, L.P. (citations omitted). In Patterson, where the defendant requested an authorization for all of the plaintiff's Facebook records after the incident, the motion court conducted an in camera review and determined that at least some of the information contained there would "result in the disclosure of relevant evidence" or was "reasonably calculated to lead to the discovery of information bearing on the claims," and consequently ordered the plaintiff to provide the requested authorization. This Court remanded the matter back to the

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motion court for a more specific determination, explaining that "it is possible that not all Facebook communications are related to the events that gave rise to plaintiff's cause of action" (citation omitted).

In Spearin, the plaintiff's public profile picture from his Facebook account, uploaded after his accident, depicted the plaintiff sitting in front of a piano, which tended to contradict his testimony that, as a result of the claimed accident he could longer play the piano (citation omitted). Even so, this Court modified an order that required the plaintiff to provide an authorization for access to his Facebook account; we required, instead, an in camera review of the plaintiff's post-accident Facebook postings for identification of information relevant to the plaintiff's alleged injuries (citation omitted). The Second Department ruled similarly in Richards v Hertz Corp. (citation omitted), where the plaintiff claimed she could no longer ski, yet after the accident a picture was uploaded depicting her on skis. This factual predicate was held to entitle the defendant not to an authorization for all of the material posted to Facebook by the plaintiff, but to an in camera review of those items and a determination of which ones were relevant to the claims (citation omitted).

The procedure created by these cases, by which a defendant may obtain discovery of nonpublic information posted on a social media source in a plaintiff's control only if that defendant has first found an item tending to contradict the plaintiff's claims, at which time the trial court must conduct an in camera review of all the items contained in that social media source, imposes a substantial — and unnecessary — burden on trial courts. As one Suffolk County justice has observed, "[I]n camera inspection in disclosure matters is the exception rather than the rule, and there is no basis to believe that plaintiff's counsel cannot honestly and accurately perform the review function" (citation omitted).

Moreover, as the numbers of people who maintain social networking site accounts increase over time, there will be a commensurate increase in the burden on the trial courts handling personal injury litigation to conduct in camera reviews of litigants' social media postings. Our trial courts are already overburdened; we should think twice about unnecessarily adding to their workload.

Moreover, the extra burden is clearly unnecessary since the procedure we are currently employing stands in marked contrast to the standard discovery procedure in civil litigation generally.

All discovery issues in this state are controlled by CPLR 3101(a), which provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." The term "material and necessary" has long been interpreted liberally in New York, "to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial" (citations omitted). As the Court of Appeals has more recently put it, "New York has long favored open and far-reaching pretrial discovery" (citation omitted).

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It is true that the law does not allow "fishing expeditions," that is, the use of a disclosure demand based solely on "hypothetical speculations" (citation omitted), "merely to see what beneficial things might be inadvertently discovered from the other side" (citation omitted). However, that does not mean that there is a preliminary requirement that the party seeking discovery must be able to prove that the other side has in its possession an item or items answering to the description in the discovery demand. Rather, the "material and necessary" standard only requires a reasoned basis for asserting that the requested category of items "bear[s] on the controversy" (citation omitted), or a showing that it is likely to produce relevant evidence (citation omitted).

Of course, the statute creates exceptions for privileged matter, attorney's work product, and materials prepared in anticipation of litigation (citation omitted); but, beyond such statutory protections, "if nothing unusual can be shown to invoke the court's protective order powers under CPLR 3103(a), as with a showing that the disclosure devices are being used for harassment or delay, the party is entitled to the disclosure" (citation omitted). Finally, a demand may not be overbroad; it must seek only materials relevant to the issues raised in the litigation, and if it fails to distinguish between relevant and irrelevant items, a protective order pursuant to CPLR 3103(a) may be issued.

In accordance with the foregoing, generally, in a personal injury action, a defendant may serve on a plaintiff a notice to produce tangible documents or other items in the plaintiff's possession or control, describing the type of content that is relevant to the claimed event and injuries. Assuming that the demand is sufficiently tailored to the issues, and unless a claim of privilege is made, normally the plaintiff must then search through those items to locate any items that meet the demand, and provide those items. There is not usually a need for the trial court to sift through the contents of the plaintiff's filing cabinets to determine which documents are relevant to the issues raised in the litigation.

One federal magistrate judge provided a cogent analysis of why the rule our courts have adopted regarding discovery from social media accounts should be changed, and a traditional approach used instead:

"Some courts have held that the private section of a Facebook account is only discoverable if the party seeking the information can make a threshold evidentiary showing that the plaintiff's public Facebook profile contains information that undermines the plaintiff's claims. This approach can lead to results that are both too broad and too narrow. On the one hand, a plaintiff should not be required to turn over the private section of his or her Facebook profile (which may or may not contain relevant information) merely because the public section undermines the plaintiff's claims. On the other hand, a plaintiff should be required to review the private section and produce any relevant information, regardless of what

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is reflected in the public section. The Federal Rules of Civil Procedure do not require a party to prove the existence of relevant material before requesting it. Furthermore, this approach improperly shields from discovery the information of Facebook users who do not share any information publicly. For all of the foregoing reasons, the Court will conduct a traditional relevance analysis" [emphasis added].

(Citation omitted).

There is no reason why the traditional discovery process cannot be used equally well where a defendant wants disclosure of information in digital form and under the plaintiff's control, posted on a social networking site. The demand, like any valid discovery demand, would have to be limited to reasonably defined categories of items that are relevant to the issues raised. Upon receipt of an appropriately tailored demand, a plaintiff's obligation would be no different than if the demand concerned hard copies of documents in filing cabinets. A search would be conducted through those documents for responsive relevant documents, and, barring legitimate privilege issues, such responsive relevant documents would be turned over; and if they could not be accessed, an authorization for them would be provided.

There is no particular difficulty in applying our traditional approach to discovery requests for information posted on social networking sites. If a plaintiff claims to be physically unable to engage in activities due to the defendant's alleged negligence, posted information, including photographs and the various forms of communications (such as status updates and messages) that establish or illustrate the plaintiff's former or current activities or abilities will be discoverable. If a plaintiff's claims are for emotional or psychological injury, it may be more difficult to frame a discovery demand, but it can certainly be done without resorting to a blanket demand for everything posted to the account (citations omitted).

Applying Forman, Trial Court Holds Social Media Disclosure Requests Overbroad

Medina v. City of New York, 2015 NY Slip Op 32429(U) (Sup. Ct., New York County 2015)

In this action arising from injuries to plaintiff in the course of his work at the East Side Access Project, defendants move to compel plaintiff to provide authorizations for the release of plaintiff’s social media records from Facebook and Instagram.

BACKGROUND

Plaintiff alleges that he was operating a drill machine on July 31, 2012 around 11:50 a.m., when the drill slipped on unsteady ground and pinned plaintiff against

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the wall, causing plaintiff to sustain permanent injuries. (Def. Opening Affirm. Ex. B [Complaint] at ¶148.) In addition to his physical injuries, plaintiff claims damages for a variety of mental injuries, including Post-traumatic Stress Disorder, “Loss of Social interest,” “Loss of libido and loss of motivation,” “Sadness,” “Pessimism and Failure,” “Loss of energy,” “Concentration impairment,” “Difficulty relaxing,” “Fearing the worst happening.” (Def. Opening Affirm. Ex. B [Verified Bill of Particulars] at 6.) Defendants argue that these claims place plaintiff’s mental condition in controversy, and that they are thus entitled to discovery of any information relevant to these claims.

At his continued deposition on March 13, 2015, plaintiff testified that he has a Facebook page and an Instagram account. (Def. Opening Affirm. Ex. G [Plaintiff’s EBT], at 326-327.) By a demand dated March 23, 2015, defendants sought, among other things, “Duly executed, original authorization[sic] allowing release of the plaintiff’s social media records from Facebook and Instagram.” (Def. Opening Affirm. Ex. D [Disclosure Demand] at ¶ 7.)

DISCUSSION

CPLR 3101 states that there “shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.” It has long been New York law that the words “material and necessary” are “to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.” (citation omitted).

A party’s “mere possession and utilization of a Facebook account is an insufficient basis to compel [that party] to provide access to the account or to have the court conduct an in camera inspection of the account’s usage.” (citation omitted) Rather, the Appellate Division, First Department has held that “[t]o warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff’s Facebook account—that is, information that contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.” (citation omitted) In addition, the party seeking discovery must show “that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims.” (citation omitted).

Here, defendants submit printouts of the profile page of plaintiff’s Facebook account, which is accessible to the general public, which shows thumbnails of some photographs posted to plaintiff’s Facebook account. According to defendants, these photographs “depict the plaintiff wearing a marijuana gas mask, drinking a bottle of Corona while making a profane gesture with his middle finger towards the photographer, dressed in costume, and smiling and laughing in each photograph.” (citation omitted) Defendants argue that not one of the publicly available images on plaintiff’s Facebook profile page “depict a person who

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suffers from post-traumatic stress disorder, irritability, loss of social interests, or any of the other psychiatric conditions” alleged in plaintiff’s bill of particulars. (citation omitted).

The Court agrees with defendants that the thumbnail images from the profile page of plaintiff’s Facebook account could be construed as contradicting or conflicting with plaintiff’s alleged mental injuries; plaintiff does not dispute this. Instead, plaintiff objects to unrestricted access to plaintiff’s social media accounts on the ground that such additional discovery would be cumulative, citing Winchell v Lopiccolo (citation omitted), because plaintiff asserts that defendants’ private investigator has already uncovered at least 10 pages of materials from his Facebook account. (citation omitted) Moreover, plaintiff’s counsel states, “[i]t cannot be overstated, this is not a case where the Plaintiff has a private, restricted access Facebook page warranting a court order for authorization.” (citation omitted) In addition, plaintiff argues that defendants’ requests are overbroad, and that simply because he has alleged damages for mental injuries does not mean that he is required to produce every thought he may have reduced to writing. (citation omitted).

In reply, defendants argue that plaintiff misapplies the law in claiming that production of the private portions of his Facebook account would be cumulative. (citation omitted) Were such a defense of cumulativeness available, defendants contend, movants would never be able to gain discovery of restricted-access social media accounts because supplying the required factual predicate—by pointing to portions of the public account that contradict the claim at issue— would make production of the private portions cumulative. In addition, defendants dispute plaintiff’s counsel’s representation that plaintiff does not have “’a private, restricted access Facebook page,’” noting that plaintiff’s counsel makes this representation “without reference to an affidavit or testimony of anyone with personal knowledge as to plaintiff’s use of privacy settings.” (citation omitted) That there is an invitation at the top of plaintiff’s Facebook profile stating “[t]o see what he [plaintiff] shares with friends, send him friend request” indicates, according defendants, that there is content on plaintiff’s Facebook profile which is viewable to plaintiff’s Facebook friends, but not viewable to defendants and the public. (Citation omitted). Moreover, defendants contend that, if plaintiff’s profile is truly open to public view, “plaintiff would have no objection to providing the subject authorization, because everything would already be visible.” (Citation omitted).

Notwithstanding the factual predicate-shown for the Facebook account, the- blanket authorizations sought for the Facebook and Instagram accounts are unrestricted as to subject matter and time. (citation omitted) Therefore, they are overbroad. (citations and parentheticals omitted)

The Court notes that plaintiff’s attorney’s representations about whether plaintiff has a restricted access Facebook account are hearsay at best and have no

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probative value. It would appear that this remains a proper subject for further discovery.

Defendants have not established any factual predicate for discovery of plaintiff’s Instagram account. This, too, can be addressed in discovery. The Court need not address the parties’ remaining arguments.

CONCLUSION

Accordingly, it is hereby

ORDERED that defendants’ motion to compel discovery of the plaintiff’s social media records from Facebook and Instagram is DENIED.

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II. Scope Of Social Media Disclosure

Pre-Social Media, Order Directing Disclosure Of Unredacted Diary Without In Camera Review Was Abuse Of Discretion

Faragiano v. Town Of Concord, 294 A.D.2d 893, 741 N.Y.S.2d 369 (4th Dep’t 2002)

Faragiano involved disclosure of a written diary, and explained the procedure to

be followed by the trial court in evaluating whether to order its disclosure without

redaction:

[A]bused its discretion in granting that part of plaintiffs' cross motion seeking to compel the Town to disclose the unredacted diary of a former employee of the Town without first reviewing the diary in camera. The court previously had ordered disclosure of the diary, with "any privileged, or personal, non-work related entries that have nothing to do with the occurrence herein to be redacted." A redacted diary was provided and, in now seeking disclosure of the unredacted diary, plaintiffs have raised valid questions concerning the nature of the redactions. We conclude that the court should have reviewed the diary in camera "to determine whether full disclosure is required and to minimize the intrusion into [the] privacy" of the Town's former employee (citation omitted). We therefore modify the order by denying that part of plaintiffs' cross motion seeking to compel the Town to disclose the unredacted diary of a former employee of the Town, and we remit the matter to Supreme Court, Erie County, to determine that part of the cross motion following an in camera review of the diary.

Faragiano was cited by the First Department in Patterson v. Turner Constr. Co.,

88 A.D.3d 617, 931 N.YS.2d 311 (1st Dep’t 2011):

The postings on plaintiff's online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service's privacy settings to restrict access (citation omitted) just as relevant matter from a personal diary is discoverable (citation omitted).

Error For Trial Court To Order Disclosure Of All Postings Based On Finding That Some Postings Were Relevant

Patterson v. Turner Constr. Co., 88 A.D.3d 617, 931 N.YS.2d 311 (1st Dep’t 2011)

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evidence or is reasonably calculated to lead to the discovery of information bearing on the claims" (citation omitted), it is possible that not all Facebook communications are related to the events that gave rise to plaintiff's cause of action (citation omitted). Accordingly, we reverse and remand for a more specific identification of plaintiff's Facebook information that is relevant, in that it contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses, and other claims.

Order Directing Disclosure Of All Post-Accident Facebook Postings Overbroad

Spearin v. Linmar, L.P., 129 A.D.3d 528, 11 N.Y.S.3d 156 (1st Dep’t 2015)

First Department determined foundation established for disclosure from plaintiff’s

Facebook account, but determined that “the direction to plaintiff to provide access to all

of his post-accident Facebook postings is overbroad. We remand for an in camera review

of plaintiff’s post-accident Facebook postings for identification of information relevant to

his alleged injuries (citation omitted).”

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III. Privacy Considerations

Social Media Not Shielded From Disclosure By Virtue Of Privacy Settings

Patterson v. Turner Constr. Co., 88 A.D.3d 617, 931 N.YS.2d 311 (1st Dep’t 2011)

The First Department reviewed, and rejected, plaintiff’s argument that the privacy

settings selected by plaintiff dictated whether or not the Facebook records were

discoverable:

The postings on plaintiff's online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service's privacy settings to restrict access (citation omitted), just as relevant matter from a personal diary is discoverable (citation omitted).

Dissenting Justices Agree Privacy Settings & Deactivation Of Social Media Accounts Irrelevant To Discoverability

Foreman v. Henkin, 134 A.D.3d 529, 22 N.Y.S.3d 178 (1st Dep’t 2015)

Of course, categorizing posted material as "private" does not constitute a legitimate basis for protecting it from discovery. There can be no reasonable expectation of privacy in communications that have reached their intended recipients (citation omitted). As long as the item is relevant and responsive to an appropriate discovery demand, it is discoverable. To the extent disclosure of contents of a social media account could reveal embarrassing information, "that is the inevitable result of alleging these sorts of injuries" (citation omitted).

Nor should it matter that the account was "deactivated," since apparently a deactivated account may easily be "reactivated," thereby giving the subscriber access to the previously posted material (citation omitted). An authorization for the site itself to provide posted content would be necessary only if previously posted materials became inaccessible to the subscriber.

Court Muses About Privacy Issues

Fawcett v. Altieri, 38 Misc.3d 1022, 960 N.Y.S.2d 592 (Supreme Court, Richmond Cty., Justice Joseph J. Maltese 2013)

Electronic discovery issues were once nearly the exclusive province of commercial litigation involving corporate players. However, with the expansion of the use of mobile phones that are connected to the Internet, and the overall ease of access to broadband Internet connections at home, electronic discovery will quickly enter into actions where it was once thought irrelevant. Facebook's Mark

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Zuckerberg is correct that members of society continue to share more of their thoughts, secrets, mundane musings, photos and videos of their personal lives on social media sites. Perhaps this phenomenon is driven by feelings of anonymity in the online environment, where social media giants perpetuate the mantra that "your privacy is important." (Footnote omitted). But, as courts have previously determined this privacy is not absolute. Information posted in open on social media accounts are freely discoverable and do not require court orders to disclose them. However, this court will not go so far as to hold that all social media records are material and necessary based solely on the fact that many people avail themselves to these social media sites. In order to obtain a closed or private social media account by a court order for the subscriber to execute an authorization for their release, the adversary must show with some credible facts that the adversary subscriber has posted information or photographs that are relevant to the facts of the case at hand. The courts should not accommodate blanket searches for any kind of information or photos to impeach a person's character, which may be embarrassing, but are irrelevant to the facts of the case at hand.

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IV. Motion Practice

Unsuccessful Prior Application For Social Media Disclosure Does Not Bar Subsequent Application

McCann v. Harleysville Ins. Co. of New York, 78 A.D.3d 1524, 910 N.Y.S.2d 614 (4th Dep’t 2010)

A party’s failure to establish a proper foundation for the disclosure of social

media matter will not, in and of itself, preclude that party from making a subsequent

application for disclosure, supported by a proper foundation.

Motions For Disclosure Of Social Media Accounts Denied, With Leave To Renew Pending Completion Of Depositions Of Parties

Fawcett v. Altieri, 38 Misc.3d 1022, 960 N.Y.S.2d 592 (Supreme Court, Richmond Cty., Justice Joseph J. Maltese 2013)

After a lengthy analysis of relevant case law, as well as a discussion of Facebook

privacy settings, Justice Maltese denied, with leave to renew, the parties request for social

media disclosure pending completion of the relevant depositions:

In order to obtain a closed or private social media account by a court order for the subscriber to execute an authorization for their release, the adversary must show with some credible facts that the adversary subscriber has posted information or photographs that are relevant to the facts of the case at hand. The courts should not accommodate blanket searches for any kind of information or photos to impeach a person's character, which may be embarrassing, but are irrelevant to the facts of the case at hand.

* * *

Therefore, the parties should proceed to discover the facts of the case by way of depositions or other investigatory or surveillance means.

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V. In Camera Reviews

The paradigm for disputes over social media disclosure has, from the outset,

included in camera review by the trial court. Issues of when, how, and the extent of a

trial court’s in camera review are constant subjects of motion practice.

Remand For In Camera Review Ordered

Patterson v. Turner, 88 A.D.3d 617, 931 N.Y.S.2d 311 (1st Dep’t 2011)

Plaintiff alleged physical and psychological injuries, and defendant sought

disclosure of all Facebook records created by plaintiff after the date of the occurrence,

including deleted and archived records. The First Department remanded for further in

camera review by the trial court:

Plaintiff claims damages for physical and psychological injuries, including the inability to work, anxiety, post-traumatic stress disorder, and the loss of enjoyment of life. Although the motion court's in camera review established that at least some of the discovery sought "will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims" (citation omitted), it is possible that not all Facebook communications are related to the events that gave rise to plaintiff's cause of action (citation omitted). Accordingly, we reverse and remand for a more specific identification of plaintiff's Facebook information that is relevant, in that it contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses, and other claims.

Detailed In Camera Review On Remand

Richards v Hertz Corp., 100 A.D.3d 728, 953 N.Y.S.2d 654 [2d Dep’t 2012])

The Dunn defendants demonstrated that McCarthy's Facebook profile contained a photograph that was probative of the issue of the extent of her alleged injuries, and it is reasonable to believe that other portions of her Facebook profile may contain further evidence relevant to that issue. Thus, with respect to McCarthy's Facebook profile, the Dunn defendants made a showing that at least some of the discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on her claim (Citations omitted).

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While the Supreme Court directed the injured plaintiffs to provide the Dunn defendants with copies of photographs depicting them participating in sporting activities, McCarthy's Facebook profile may also contain other items such as status reports, emails, and videos that are relevant to the extent of her alleged injuries. However, due to the likely presence in McCarthy's Facebook profile of material of a private nature that is not relevant to this action, the Supreme Court should conduct an in camera inspection of all status reports, emails, photographs, and videos posted on McCarthy's Facebook profile since the date of the subject accident to determine which of those materials, if any, are relevant to her alleged injuries (citation omitted). Accordingly, we remit the matter to the Supreme Court, Kings County, to conduct such an in camera inspection, and thereafter for a new determination of that branch of the injured plaintiffs' cross motion which was for a protective order pursuant to CPLR 3103 striking so much of the demand for authorizations dated March 30, 2010, as related to McCarthy.

In this situation, a court could also consider requiring the disclosing party’s

counsel to perform an initial review of the materials, limiting in camera review to those

materials counsel does not consent to revealing to the other party (see Nieves v 30

Ellwood Realty LLC, 39 Misc.3d 63, 966 N.Y.S.2d 808 [App Term,1st Dep’t 2013]).

In Three To Two Decision, First Department Holds The Decision To Conduct An In Camera Review Of Social Media Is Discretionary

Foreman v. Henkin, 134 A.D.3d 529, 22 N.Y.S.3d 178 (1st Dep’t 2015)

In a strongly worded dissent, joined by Justice Acosta, Justice Saxe first urged a

reconsideration of the Court’s social media paradigm:

This appeal, concerning whether defendant is entitled to disclosure of information that plaintiff posted on the nonpublic portion of her Facebook page before she deactivated her account, prompts me to suggest that we reconsider this Court's

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recent decisions on the subject (citations omitted). There are two aspects of these previous rulings that are problematic: first, the showing necessary to obtain discovery of relevant information posted on Facebook or other social networking sites, and second, the procedure requiring that once a threshold showing is made, the trial court must conduct an in camera review of the posted contents in each case to ensure that the defendant's access is limited to relevant information. In view of how recently our initial rulings on the subject were issued, it makes sense to revisit those initial rulings sooner rather than later; in any event, the topic is too new to warrant rigid adherence at this time to our initial rulings under the doctrine of stare decisis.

Court Orders Staged Production Of Social Media For The Court’s Review

A.D. v C.A., 50 A.D.3d 180, 16 N.Y.S.3d 126 (Sup Ct, Westchester Cty. 2015)

The court reviewed disclosure of social media in child custody cases, and ordered

a staged production of matter for the court’s review:

In view of all the foregoing, the court determines within thirty (30) days of service of this Decision & Order with Notice of Entry, defendant will take steps to produce printouts of her Facebook postings depicting or describing her whereabouts, outside the New York City area, from the time of the child's birth through the commencement of the proceeding, whether of her alone, or together with the parties' child. These postings shall be delivered to the court, for in camera review, together with defendant's affidavit describing the printouts in general terms and confirming that what she has provided is the entirety of the postings relevant to her whereabouts during the above time frame. Defendant shall also submit an authorization permitting the court to have access to her Facebook postings during the applicable time frame. In turn, the court sua sponte directs that plaintiff will produce any of defendant's postings he possesses or has access to with an affidavit stating they represent all such Facebook postings possessed by or available to defendant in their entirety during the above time period. All submissions shall be received by the court no later than September 14, 2015.

Court Discusses Onerous Nature Of In Camera Reviews

Fawcett v. Altieri, 2013 NY Slip Op 23010 (Supreme Court, Richmond Cty., Justice Joseph J. Maltese 2013)

After a lengthy analysis of relevant case law, as well as a discussion of Facebook

privacy settings, Justice Maltese denied, with leave to renew, the parties request for social

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media disclosure pending completion of the relevant depositions, but not before making

some observations about in camera review:

Moreover, asking courts to review hundreds of transmissions "in camera" should not be the all purpose solution to protect the rights of litigants. Courts do not have the time or resources to be the researchers for advocates seeking some tidbit of information that may be relevant in a tort claim. While several courts have frequently assigned the "in camera" review to "special masters," the fees to be paid those special masters should be paid by the party seeking such discovery in a tort case, but which may be shared by the parties in a commercial or matrimonial matter.

Special Referee Appointed To Conduct Review Of Social Media

Bianco v. North Fork Bank Corporation, 2012 N.Y. Slip Op. 32611 (Supreme Court New York Cty.) (Ling-Cohan, J.)

Finding a sufficient factual showing that defendant’s were entitled to access to

plaintiff’s Facebook account, Court appointed a Special Referee in accordance with

CPLR 3104 to make an in camera review of the account to determine what, if any, of its

contents should be disclosed.

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VI. Is It Worth The Effort?

In Johnson v. Ingalls, 95 A.D.3d 1398, 944 N.Y.S.2d 654 (3d Dep’t 2012)

plaintiff was injured when she either jumped or fell from a vehicle operated by the

defendant. Plaintiff appealed a verdict for the defendant, contending, inter alia, that the

trial court erred in admitting into evidence photographs obtained form the plaintiff’s

Facebook account, a contention the Third Department rejected:

We further reject plaintiff's contention that certain photographs obtained from her Facebook account were unduly prejudicial and improperly admitted into evidence. After an in camera review, Supreme Court excluded the majority of the photographs that defendants proffered as unduly prejudicial, cumulative or insufficiently probative, but permitted use of approximately 20 photos during plaintiff's cross-examination. Plaintiff claimed that, as a result of her injury, she suffered severe anxiety, vertigo, constant migraines and pain for a period of about two years, that her anxiety prevented her from going out or socializing with friends, and that she required antidepressant medication. The photos admitted were taken over a 1 1/2 -year period beginning shortly after the accident. They depicted plaintiff attending parties, socializing and vacationing with friends, dancing, drinking beer in an inverted position referred to in testimony as a “keg stand,” and otherwise appearing to be active, socially engaged and happy. They further revealed that plaintiff consumed alcohol during this period, contrary to medical advice and her reports to her physicians. The discretion of trial courts in rendering evidentiary rulings is broad (citations omitted). The photographs had probative value with regard to plaintiff's claimed injuries, their evidentiary value was properly balanced against their potential for prejudice, and we find no abuse of discretion (citation omitted).2

When plaintiff took the [keg]stand, the cross-examination must have been

uncomfortable, to say the least. Johnson serves as a useful reminder that the most

damaging wounds in litigation are often those that are self-inflicted. What is surprising is

that plaintiff did not withdraw at least some of the damage claims highlighted by the

appellate court, which might have obviated the relevance of some of the photos

2 Id.

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ultimately admitted, particularly in light of the careful balancing test the trial court

appears to have applied.

Johnson also shows the potential value of social media material for cross-

examination, whether directly addressing a claim or defense, or on a collateral issue.

Social Media In Custody Case

Matter of Melody M v. Robert M., 103 A.D.3d 932, 962 N.Y.S.2d 364 (3d Dep’t 2013)

Father was granted sole legal custody of children, and the court considered, inter

alia, Facebook postings by the mother:

In making its determination, Family Court noted the pattern of inappropriate behavior by the mother and its effect on the parties' oldest child, who has mental health issues and receives counseling. The mother does not participate in the child's counseling because she does not like the therapist or agree with the recommendation that the child needs structure and should follow the same routine in both households. The mother also testified that she frequently calls the father for him to take the oldest child away during her parenting time because she cannot deal with his behavior. The mother admitted that she swears and yells at the oldest child, often resorting to physical means to deal with him. In addition, she utilized Facebook to insult and demean the child, who was then 10 years old, by, among other things, calling him an "asshole." She testified without remorse that she did so because that is what "[h]e is," and she thought it was important for her Facebook friends to know this. Charitably stated, her testimony reflected a lack of insight as to the nature of her conduct toward her oldest child.

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VII. Ethical Considerations

NYCLA Ethics Opinion

ADVISING A CLIENT REGARDING POSTS ON SOCIAL MEDIA SITES, NYCLA ETHICS OPINION 745 (JULY 2, 2013)

TOPIC: What advice is appropriate to give a client with respect to existing or proposed postings on social media sites.

DIGEST: It is the Committee’s opinion that New York attorneys may advise clients as to (1) what they should/should not post on social media, (2) what existing postings they may or may not remove, and (3) the particular implications of social media posts, subject to the same rules, concerns, and principles that apply to giving a client legal advice in other areas including RPC 3.1, 3.3 and 3.4.1

RPC: 4.1, 4.2, 3.1, 3.3, 3.4, 8.4.

NB: This opinion is limited to conduct of attorneys in connection with civil matters. Attorneys involved in criminal cases may have different ethical responsibilities. * * * After a lengthy introduction, the opinion continued:

A number of recent cases have considered the extent to which courts may direct litigants to authorize adverse counsel to access the “private” portions of their social media postings. While a comprehensive review of this evolving body of law is beyond the scope of this opinion, the premise behind such cases is that social media websites may contain materials inconsistent with a party’s litigation posture, and thus may be used for impeachment. The newest cases turn on whether the party seeking such disclosure has laid a sufficient foundation that such impeachment material likely exists or whether the party is engaging in a “fishing expedition” and an invasion of privacy in the hopes of stumbling onto something that may be useful (footnote omitted).

Given the growing volume of litigation regarding social media discovery, the question arises whether an attorney may instruct a client who does not have a social media site not to create one: May an attorney pre-screen what a client posts on a social media site? May an attorney properly instruct a client to “take down” certain materials from an existing social media site?

Preliminarily, we note that an attorney’s obligation to represent clients competently (RPC 1.1) could, in some circumstances, give rise to an obligation to advise clients, within legal and ethical requirements, concerning what steps to take to mitigate any adverse effects on the clients’ position emanating from the

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clients’ use of social media. Thus, an attorney may properly review a client’s social media pages, and advise the client that certain materials posted on a social media page may be used against the client for impeachment or similar purposes. In advising a client, attorneys should be mindful of their ethical responsibilities under RPC 3.4. That rule provides that a lawyer shall not “(a)(1) suppress any evidence that the lawyer or the client has a legal obligation to reveal or produce... [nor] (3) conceal or knowingly fail to disclose that which the lawyer is required by law to reveal.”

Attorneys’ duties not to suppress or conceal evidence involve questions of substantive law and are therefore outside the purview of an ethics opinion. We do note, however, that applicable state or federal law may make it an offense to destroy material for the purpose of defeating its availability in a pending or reasonably foreseeable proceeding, even if no specific request to reveal or produce evidence has been made. Under principles of substantive law, there may be a duty to preserve “potential evidence” in advance of any request for its discovery. VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 93 A.D.3d 33, 939 N.Y.S. 2d 331 (1st Dep’t 2012) (“Once a party reasonably anticipates litigation, it must, at a minimum, institute an appropriate litigation hold to prevent the routine destruction of electronic data.”); QK Healthcare, Inc., v. Forest Laboratories, Inc., 2013 N.Y. Misc. LEXIS 2008; 2013 N.Y. Slip Op. 31028(U) (Sup. Ct. N.Y. Co., May 8, 2013); RPC 3.4, Comment [2]. Under some circumstances, where litigation is anticipated, a duty to preserve evidence may arise under substantive law. But provided that such removal does not violate the substantive law regarding destruction or spoliation of evidence, there is no ethical bar to “taking down” such material from social media publications, or prohibiting a client’s attorney from advising the client to do so, particularly inasmuch as the substance of the posting is generally preserved in cyberspace or on the user’s computer.

An attorney also has an ethical obligation not to “bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.” RPC 3.1(a). Frivolous conduct includes the knowing assertion of “material factual statements that are false.” RPC 3.1(b)(3). Therefore, if a client’s social media posting reveals to an attorney that the client’s lawsuit involves the assertion of material false factual statements, and if proper inquiry of the client does not negate that conclusion, the attorney is ethically prohibited from proffering, supporting or using those false statements. See, also, RPC 3.3; 4.1 (“In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person.”)

Clients are required to testify truthfully at a hearing, deposition, trial, or the like, and a lawyer may not fail to correct a false statement of material fact or offer or use evidence the lawyer knows to be false. RPC 3.3(a)(1); 3.4(a)(4). Thus, a client must answer truthfully (subject to the rules of privilege or other evidentiary objections) if asked whether changes were ever made to a social media site, and

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the client’s lawyer must take prompt remedial action in the case of any known material false testimony on this subject. RPC 3.3 (a)(3).

We further conclude that it is permissible for an attorney to review what a client plans to publish on a social media page in advance of publication, to guide the client appropriately, including formulating a corporate policy on social media usage. Again, the above ethical rules and principles apply: An attorney may not direct or facilitate the client’s publishing of false or misleading information that may be relevant to a claim; an attorney may not participate in the creation or preservation of evidence when the lawyer knows or it is obvious that the evidence is false. RPC 3.4(a)(4).3 However, a lawyer may counsel the witness to publish truthful information favorable to the lawyer’s client; discuss the significance and implications of social media posts (including their content and advisability); advise the client how social media posts may be received and/or presented by the client’s legal adversaries and advise the client to consider the posts in that light; discuss the possibility that the legal adversary may obtain access to “private” social media pages through court orders or compulsory process; review how the factual context of the posts may affect their perception; review the posts that may be published and those that have already been published; and discuss possible lines of cross-examination.

CONCLUSION:

Lawyers should comply with their ethical duties in dealing with clients’ social media posts. The ethical rules and concepts of fairness to opposing counsel and the court, under RPC 3.3 and 3.4, all apply. An attorney may advise clients to keep their social media privacy settings turned on or maximized and may advise clients as to what should or should not be posted on public and/or private pages, consistent with the principles stated above. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, an attorney may offer advice as to what may be kept on “private” social media pages, and what may be “taken down” or removed.

Two other ethics opinions bear review.

The New York State Bar Association’s Committee on Professional Ethics

concluded in Profession Ethics Opinion 843 that an attorney representing a party may

access public pages of another party’s social networking website. A page is “public” if it

is available to all members of a social network. Opinion 843 emphasized such a result

where access does not require preapproval and is viewable by all members. However, the

opinion noted that an attorney who “friend requests” a person represented by counsel in a

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pending matter would run afoul of NY Rule 4.2 (“Communication with Person

Represented by Counsel”) nor could the attorney hire a third-party to do so per Rule

8.4(c) (bars attorneys from engaging in “dishonesty, fraud, deceit or misrepresentation”),

Rule 4.1 (prohibits lawyers from making false statement) and Rule 5.3(b)(1) (attorney is

responsible for employed non-attorneys who violate the rule).

Similarly, a lawyer who creates a fake profile in order to get information may also

run afoul of NY Rules 8.4(c) and 4.1, which provide, respectively, that a lawyer may not

“engage in conduct involving dishonesty, fraud, deceit or misrepresentation and may not

knowingly make a false statement of fact or law to a third person.” Counsel who instructs

a private investigator or other third party to obtain information through such means

would violate NY Rule 5.3(b)(1), which provides that a lawyer “shall be responsible for

conduct of a nonlawyer employed or retained by or associated with the lawyer that would

be a violation of these Rules if engaged by a lawyer if … the lawyer orders or directs the

specific conduct or, with knowledge of the specific conduct, ratifies it.”

The Committee on Professional and Judicial Ethics of the New York City Bar, in

Formal Opinion 2010-2, addressed the use of trickery to gain access to otherwise secure

social networking site of a witness (whether party or non-party) specifically by

“friending” him or her. The opinion noted the importance of informal discovery but

concluded trickery was not appropriate. In particular, the City Bar opinion expressed

concern that the informality of communication combined with the relative ease with

which a friend gains access to significant personal information on a social network site

make the potential ethical pitfalls greater than those in the actual world where “the

witness almost certainly would slam the door shut and perhaps even call the police.”

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Rather than using “trickery,” lawyers may obtain information maintained on social

networking sites by informal discovery, “such as the truthful ‘friending’ of unrepresented

parties, or by using formal discovery devices such as subpoenas directed to non-parties in

possession of information maintained on an individual’s social networking page.” These

legitimate discovery methods make deception of a witness on-line improper in New

York.

LOUISIANA V NEW YORK: THE NAPOLEONIC CODE AND ENGLISH COMMON LAW

173 174 LOUISIANA V. NEW YORK: THE NAPOLEONIC CODE AND ENGLISH COMMON LAW "NEW YORK IS THE LOUISIANA OF CIVIL PRACTICE"

Submitted By:

DAVID P. HOROWITZ, ESQ. Geringer, McNamara & Horowitz LLP New York, NY © 2016 David Paul Horowitz, All Rights Reserved. REPRINTED WITH PERMISSION. 175 176 New York State Bar Association 2016 TICL/Trial Lawyers Fall Meeting: Louisiana v. New York

Table of Contents

I. “New York Is The Louisiana Of Civil Practice”……………………..4

II. Scope of Disclosure…………………………………………………..5

III. Deposition Rules……………………………………………………..6

IV. Expert Disclosure…………………………………………………….9

V. Revision of New York Civil Practice…………………………….…13

VI. The Fiftieth Anniversary Of The CPLR…………………………….14

VII. CPR For The CPLR…………………………………………………15

VIII. DNR For The CPLR………………………………………………...16

178 New York State Bar Association 2016 TICL/Trial Lawyers Fall Meeting: Louisiana v. New York

I. “New York Is The Louisiana Of Civil Practice”

I have taught New York Practice since 2000, and have tried to convey to students

just how different, how much of an outlier, New York’s CPLR is from the codes of civil

procedure in most other states,1 as well as the Federal Rules of Civil Procedure on which

most of those codes are based, and which all law students have studied in the first year of

law school.

To each of the classes I taught, I have offered the following illustration:

“Do you remember how, in the first year of law school, professors would often state that there was the majority rule, the minority rule, and the law in Louisiana for a given scenario? Well, New York is the Louisiana of civil practice.”

I gave this illustration, year after year, confident that I would never have the

occasion to talk about the CPLR to an audience in Louisiana, and accepted the invitation

to participate in a panel discussion in New Orleans on New York law without thinking.

So, let me extend a sincere apology to the honorable State of Louisiana, and my

esteemed colleagues at the bar, for using your fine state as the butt of my little joke.

As partial penance, I decided to compare three sections of the CPLR with their

counterparts in the Louisiana Code. The first sections, dealing with the scope of

disclosure, appear very similar. The second sections, dealing with depositions, are again

similar, though reference must be made to more than just the CPLR in order to

understand the full scope of New York’s rules. Finally, the third sections, dealing with

expert disclosure, reveal that Louisiana’s rules are similar to the Federal Rules, while

New York’s rules best illustrate why, the present venue notwithstanding, New York is the

Louisiana of civil practice.

1 I say “most other states” because I have been too lazy to do a fifty-state survey.

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II. Scope of Disclosure

New York

§ 3101. Scope of disclosure

(a) Generally. There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by: (1) a party, or the officer, director, member, agent or employee of a party; (2) a person who possessed a cause of action or defense asserted in the action; (3) a person about to depart from the state, or without the state, or residing at a greater distance from the place of trial than one hundred miles, or so sick or infirm as to afford reasonable grounds of belief that he or she will not be able to attend the trial, or a person authorized to practice medicine, dentistry or podiatry who has provided medical, dental or podiatric care or diagnosis to the party demanding disclosure, or who has been retained by such party as an expert witness; and (4) any other person, upon notice stating the circumstances or reasons such disclosure is sought or required.

Louisiana

Art. 1422. Scope of discovery; in general

Unless otherwise limited by order of the court in accordance with this Chapter, the scope of discovery is as set forth in this Article and in Articles 1423 through 1425.

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

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III. Deposition Rules

New York

R 3115. Objections to qualification of person taking deposition; competency; questions and answers

(a) Objection when Deposition Offered in Evidence. Subject to the other provisions of this rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. (b) Errors Which Might Be Obviated if Made Known Promptly. Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of persons, and errors of any kind which might be obviated or removed if objection were promptly presented, are waived unless reasonable objection thereto is made at the taking of the deposition. (c) Disqualification of Person Taking Deposition. Objection to the taking of a deposition because of disqualification of the person by whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence. (d) Competency of Witnesses or Admissibility of Testimony. Objections to the competency of a witness or to the admissibility of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if objection had been made at that time. (e) Form of Written Questions. Objections to the form of written questions are waived unless served in writing upon the party propounding the questions within the time allowed for serving succeeding questions or within three days after service.

Uniform Rules of the Trial Courts Uniform Rules for the Conduct of Depositions - 22 NYCRR 221

§ 221.1. Objections at depositions

(a) Objections in general. No objections shall be made at a deposition except those which, pursuant to subdivision (b), (c) or (d) of Rule 3115 of the Civil Practice Law and Rules, would be waived if not interposed and except in compliance with subdivision (e) of such rule. All objections made at a deposition shall be noted by the officer before whom the deposition is taken and the answer shall be given and the deposition shall proceed subject to the objections and to the right of a person to apply for appropriate relief pursuant to Article 31 of the CPLR. (b) Speaking objections restricted. Every objection raised during a deposition shall be stated succinctly and framed so as not to suggest an answer to the deponent and at the

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request of the questioning attorney, shall include a clear statement as to any defect in form or other basis of error or irregularity. Except to the extent permitted by CPLR Rule 3115 or by this rule, during the course of the examination persons in attendance shall not make statements or comments that interfere with the questioning.

§ 221.2. Refusal to answer when objection is made

A deponent shall answer all questions at a deposition, except (i) to preserve a privilege or right of confidentiality, (ii) to enforce a limitation set forth in an order of a court or (iii) when the question is plainly improper and would, if answered, cause significant prejudice to any person. An attorney shall not direct a deponent not to answer except as provided in CPLR Rule 3115 or this subdivision. Any refusal to answer or direction not to answer shall be accompanied by a succinct and clear statement of the basis therefor. If the deponent does not answer a question the examining party shall have the right to complete the remainder of the deposition.

§ 221.3. Communication with the deponent

An attorney shall not interrupt the deposition for the purpose of communicating with the deponent unless all parties consent or the communication is made for the purpose of determining whether the question should not be answered on the grounds set forth in section 221.2 of these rules and, in such event, the reason for the communication shall be stated for the record succinctly and clearly.

Louisiana

Art. 1443. Examination and cross-examination; record of examination; oath; objections

A. Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of the Louisiana Code of Evidence. The officer before whom the deposition is to be taken shall administer an oath or affirmation to the witness and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically or recorded by any other means. If requested by one of the parties, the testimony shall be transcribed. B. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. The officer shall cease or suspend recordation of the testimony, questions, objections, or any other statements only upon agreement of all counsel and parties present at the deposition, or upon termination or suspension of the deposition pursuant to Code of Civil Procedure Article 1444. Any objection during a deposition shall be stated concisely and in a non-argumentative and non-suggestive manner. Evidence objected to shall be taken subject to the objections. Counsel shall cooperate with and be courteous to each other and to the witness and otherwise conduct

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themselves as required in open court and shall be subject to the power of the court to punish for contempt. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition, and he shall transmit them to the officer, or anyone authorized to take oaths, who shall propound them to the witness and record the answers verbatim. C. “Officer” as used in this Article means a certified shorthand reporter currently holding a valid certificate issued by the Board of Examiners of Certified Shorthand Reporters pursuant to the provisions of R.S. 37:2551 et seq., and an official court reporter, and a deputy official court reporter, as defined in R.S. 37:2555(C) and (D). D. Unless otherwise stipulated, or as provided in Article 1455, objections are considered reserved until trial or other use of the deposition. A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence imposed by the court, to prevent harassing or repetitious questions, or to prevent questions which seek information that is neither admissible at trial nor reasonably calculated to lead to the discovery of admissible evidence. E. If the court finds that an objection made during a deposition taken for trial purposes is in violation of this Article, the court shall order the party in violation to pay for the editing or redacting of the transcript or video, along with any other costs or sanctions the court deems appropriate unless good cause is shown.

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IV. Expert Disclosure

New York

§ 3101. Scope of disclosure

(d) Trial preparation. 1. Experts. (i) Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert’s opinion. However, where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert’s testimony at the trial solely on grounds of noncompliance with this paragraph. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just. In an action for medical, dental or podiatric malpractice, a party, in responding to a request, may omit the names of medical, dental or podiatric experts but shall be required to disclose all other information concerning such experts otherwise required by this paragraph. (ii) In an action for medical, dental or podiatric malpractice, any party may, by written offer made to and served upon all other parties and filed with the court, offer to disclose the name of, and to make available for examination upon oral deposition, any person the party making the offer expects to call as an expert witness at trial. Within twenty days of service of the offer, a party shall accept or reject the offer by serving a written reply upon all parties and filing a copy thereof with the court. Failure to serve a reply within twenty days of service of the offer shall be deemed a rejection of the offer. If all parties accept the offer, each party shall be required to produce his or her expert witness for examination upon oral deposition upon receipt of a notice to take oral deposition in accordance with rule thirty-one hundred seven of this chapter. If any party, having made or accepted the offer, fails to make that party’s expert available for oral deposition, that party shall be precluded from offering expert testimony at the trial of the action. (iii) Further disclosure concerning the expected testimony of any expert may be obtained only by court order upon a showing of special circumstances and subject to restrictions as to scope and

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provisions concerning fees and expenses as the court may deem appropriate. However, a party, without court order, may take the testimony of a person authorized to practice medicine, dentistry or podiatry who is the party’s treating or retained expert, as described in paragraph three of subdivision (a) of this section, in which event any other party shall be entitled to the full disclosure authorized by this article with respect to that expert without court order. (iv) [Repealed]

Louisiana

Art. 1425. Experts; pre-trial disclosures; scope of discovery

A. A party may through interrogatories or by deposition require any other party to identify each person who may be used at trial to present evidence under Articles 702 through 705 of the Louisiana Code of Evidence. B. Upon contradictory motion of any party or on the court’s own motion, an order may be entered requiring that each party that has retained or specially employed a person to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony provide a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor and the data or other information considered by the witness in forming the opinions. The parties, upon agreement, or if ordered by the court, shall include in the report any or all of the following: exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. C. If the court orders the disclosures of Paragraph B of this Article, they shall be made at the times and in the sequence directed by the court. In the absence of directions from the court or stipulation by the parties, the disclosures ordered pursuant to Paragraph B of this Article shall be made at least ninety days before the trial date or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Paragraph B of this Article, within thirty days after the disclosure made by the other party. The parties shall supplement these disclosures when required by Article 1428. D. (1) Except as otherwise provided in Paragraph E of this Article, a party may, through interrogatories, deposition, and a request for documents and tangible things, discover facts known or opinions held by any person who has been identified as an expert whose opinions may be presented at trial. If a report from the expert is required under Paragraph B, the deposition shall not be conducted until after the report is provided. (2) A party may, through interrogatories or by deposition, discover facts known by and opinions held by an expert who has been retained or

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specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Article 1465 or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. (3) Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under this Paragraph; and with respect to discovery obtained under Subparagraph (2) of this Paragraph, the court shall also require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert. E. (1) The expert’s drafts of a report required under Paragraph B of this Article, and communications, including notes and electronically stored information or portions thereof that would reveal the mental impressions, opinions, or trial strategy of the attorney for the party who has retained the expert to testify, shall not be discoverable except, in either case, on a showing of exceptional circumstances under which it is impractical for the party seeking discovery to obtain facts or opinions on the same subject by other means. (2) Nothing in this Article shall preclude opposing counsel from obtaining any facts or data the expert is relying on in forming his opinion, including that coming from counsel, or from otherwise inquiring fully of an expert into what facts or data the expert considered, whether the expert considered alternative approaches, or into the validity of the expert’s opinions. F. (1) Any party may file a motion for a pretrial hearing to determine whether a witness qualifies as an expert or whether the methodologies employed by such witness are reliable under Articles 702 through 705 of the Louisiana Code of Evidence. The motion shall be filed not later than sixty days prior to trial and shall set forth sufficient allegations showing the necessity for these determinations by the court. (2) The court shall hold a contradictory hearing and shall rule on the motion not later than thirty days prior to the trial. At the hearing, the court shall consider the qualifications and methodologies of the proposed witness based upon the provisions of Articles 104(A) and 702 through 705 of the Louisiana Code of Evidence. For good cause shown, the court may allow live testimony at the contradictory hearing. (3) If the ruling of the court is made at the conclusion of the hearing, the court shall recite orally its findings of fact, conclusions of law, and reasons for judgment. If the matter is taken under advisement, the court shall render its ruling and provide written findings of fact, conclusions of law, and reasons for judgment not later than five days after the hearing.

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(4) The findings of facts, conclusions of law, and reasons for judgment shall be made part of the record of the proceedings. The findings of facts, conclusions of law, and reasons for judgment shall specifically include and address: (a) The elements required to be satisfied for a person to testify under Articles 702 through 705 of the Louisiana Code of Evidence. (b) The evidence presented at the hearing to satisfy the requirements of Articles 702 through 705 of the Louisiana Code of Evidence at trial. (c) A decision by the judge as to whether or not a person shall be allowed to testify under Articles 702 through 705 of the Louisiana Code of Evidence at trial. (d) The reasons of the judge detailing in law and fact why a person shall be allowed or disallowed to testify under Articles 702 through 705 of the Louisiana Code of Evidence. (5) A ruling of the court pursuant to a hearing held in accordance with the provisions of this Subsection shall be subject to appellate review as provided by law. (6) Notwithstanding the time limitations in Subparagraphs (1), (2), and (3) of this Paragraph, by unanimous consent of the parties, and with approval by the court, a motion under this Subsection may be filed, heard, and ruled upon by the court at any time prior to trial. The ruling by the court on such motion shall include findings of fact, conclusions of law, and reasons for judgment complying with the provisions of Subparagraph (4) of this Paragraph. (7) The provisions of this Paragraph shall not apply to testimony in an action for divorce or annulment of marriage, or to a separation in a covenant marriage, to a property partition, or to an administration of a succession, or to testimony in any incidental or ancillary proceedings or matters arising from such actions. (8) All or a portion of the court costs, including reasonable expert witness fees and costs, incurred when a motion is filed in accordance with this Paragraph may, in the discretion of the court, be assessed to the non- prevailing party as taxable costs at the conclusion of the hearing on the motion.

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188 New York State Bar Association 2016 TICL/Trial Lawyers Fall Meeting: Louisiana v. New York

V. Revision of New York Civil Practice

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190 Jack B. Weinstein, Revision of New York Civil Practice, New York State Bar Bulletin, 30 N.Y. St. B. Bull. 298 1958

We have been too long cowed by the Civil Practice Act, by a monster of complexity created by us and for us, so that no one dares-except on an ad hoc basis-reexamine this creature that controls so much of what we do. Pg. 308

This is a subject on which only we lawyers and judges can and should speak with authority. For, if we have any special competence and responsibility, surely it is in the procedures by which litigation is handled, the practice under which our judicial system vindicates the substantive rights of all the people of the state. Pg. 309

191 192 New York State Bar Association 2016 TICL/Trial Lawyers Fall Meeting: Louisiana v. New York

VI. The Fiftieth Anniversary Of The CPLR

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194 The 50th Anniversary of the CPLR

By David Paul Horowitz

t is with great pleasure that I welcome readers of this 2001. Written by the Dean of New York Practice, Albany month’s Journal to join our celebration of the 50th Law School Professor (now Emeritus) David D. Siegel, Ianniversary of the CPLR. Effective September 1, 1963, the article brings readers from the enactment of the CPLR New York replaced the Civil Practice Act (C.P.A.), which through many of the seismic changes that have occurred had served as New York State’s code of civil procedure throughout the statute’s life, including the switch to since 1921, with a new code titled the Civil Practice Law commencement by filing, expansion of disclosure, and & Rules (hence, CPLR). the rise of arbitration. This anniversary issue contains reprints of previous “The Emergence of ‘E-Service’ Under CPLR 308(5)” Journal articles addressing the CPLR, and new articles by John R. Higgitt, Esq., principal court attorney-referee as well – ranging from a piece on the progress of the to Administrative Judge Douglas E. McKeon, traces the committee that drafted the CPLR to a look at whether evolution of alternate means of service under CPLR the CPLR is still relevant given the changes in technology 308(5), from early experiments with alternative methods and practice in the past half century. of mailing and service upon individuals not expressly We open with an article titled “Revision of New York provided for by CPLR 308(1)–(4), through service by email Civil Practice,” which provided an update on the progress and beyond. A frequent contributor to the Journal, John being made in the process of drafting a new code of civil Higgitt has earned his place alongside the preceding legal procedure. First published in the Journal in 1958 (then the luminaries, and I am fortunate to count him too as a friend. N.Y. State Bar Bulletin), the article was written by then Then, two Burden of Proof columns. One, a reprint Columbia Law School Professor Jack B. Weinstein (now of the January 2010 column titled “CPR for the CPLR,” United States District Court Judge of the Eastern District discusses a number of factors that make the relationship of New York), the captain responsible for steering the between the bench and bar, on the one hand, and the draft code through the dangerous shoals that threatened CPLR, on the other, a complex and often frustrating one. to capsize it. I think it is fair to credit Judge Weinstein as The second, and final piece on this topic, is a new column, the “father” of the CPLR. What is most remarkable to me “DNR for the CPLR?” considering three alternative paths is that this achievement, which would be the pinnacle of forward in the 21st Century: maintaining the status quo, any lawyer’s professional life, came at the beginning of retirement or remodeling. Judge Weinstein’s career; it turned out to be but one of We close the celebration on a lighter note with a many stellar accomplishments. reprint of Professor Siegel’s essay “To Fly, or Not to The second article, “Happy Anniversary to the CPLR,” Fly…,” about how the CPLR got him flying. This piece is written by Pace Law School Professor of Law Jay C. delighted Professor Siegel’s then-current and former Carlisle, one of the leading authorities on, inter alia, New students when it was published in the Journal in 2005, and York Civil Practice (and, on a personal note, my teacher, we hope it brings a smile to your face. mentor, and friend). Professor Carlisle gives us a lively So, whether you pick up this issue with a pre- and informative historical perspective of the long, and at disposition to praise the CPLR or to bury it, I hope you times fraught, process of delivering the CPLR. That the will share my enjoyment in our contributors’ articles. ■ code was ever enacted seems, with the benefit of 20-20 hindsight, remarkable. DAVID PAUL HOROWITZ ([email protected]) writes the “Burden Next is “CPLR Provided Escape From Common Law of Proof” column for the Journal. He is guest editor of this issue. Technicalities,” which first appeared in the Journal in

195 NYSBA Journal | October 2013 | 11 196 New York State Bar Association 2016 TICL/Trial Lawyers Fall Meeting: Louisiana v. New York

VII. CPR For The CPLR

198 BURDEN OF PROOF BY DAVID PAUL HOROWITZ

DAVID PAUL HOROWITZ ([email protected] or [email protected]) practices as a plaintiff’s personal injury lawyer in New York and is the author of New York Civil Disclosure (LexisNexis), the 2008 Supplement to Fisch on New York Evidence (Lond Publications), and the Syracuse Law Review annual surveys on Disclosure and Evidence. Mr. Horowitz teaches New York Practice, Evidence, and Electronic Evidence & Discovery at Brooklyn, New York and St. John’s Law Schools. A member of the Office of Court Administration’s CPLR Advisory Committee, he is a frequent lecturer and writer on these subjects.

CPR for the CPLR

Introduction A.L. Sainer, Esq., titled The Adjective Chief Administrator of the Courts has My breaking point arrived along with Law of New York.3 In a scant 300 pages, become the primary basis for imple- my 2010 New York State Court Rules. Mr. Sainer addressed civil pleadings menting changes in civil practice: Two volumes. Neither containing the and practice forms, evidence, crimi- CPLR. nal procedure, surrogate’s practice, While the CPLR itself cannot Imagine. In order to ascertain the damages, and the Canons of Ethics. be altered except by legislation, rules of practice in our state courts, Disclosure did not warrant a section, there are “Uniform Rules” of three volumes of material must be ref- or even chapter of its own. It was cov- court promulgated by the Chief Administrative Judge for each erenced. That’s three volumes, none of ered in just 10 pages, as a subtopic of court in New York State. These them annotated. Just rules! evidence. rules contain important provisions I have practiced in our state courts The function and goal of the new not covered by the CPLR, govern- for over 20 years and taught New York CPLR was simply and eloquently set ing such matters as engagement of Practice for almost 10 years, yet fre- forth in CPLR 104: “The civil practice counsel, motion practice, notes of quently I find myself saying, when a law and rules shall be liberally con- issue, and compulsory arbitration judge or colleague mentions a particu- strued to secure the just, speedy and of certain disputes. These rules lar rule, “I didn’t know that.” inexpensive determination of every may not be inconsistent with the I used to be thrilled that I could civil judicial proceeding.” CPLR, but can only supplement it. go into any court in the state, from The rules are found at 22 NYCRR Riverhead to Buffalo, confident that What Changed 202 et seq. I knew the general rules of practice In that long ago, simpler time, both the and, with relatively little effort, could Legislature and the New York Judicial In addition, individual judges learn the quirks of a particular court Conference were empowered to make sometimes have their own rules or judge. Now I find myself worry- necessary changes in the CPLR. This is of proceeding for cases assigned to ing when I take the subway two stops no longer the case: them. These rules can be located in from 60 Centre Street in Manhattan a publication such as the New York CPLR 102 provides that all changes Law Journal or from the clerk of to 360 Adams Street in Brooklyn that to the CPLR must be done by the the court in which that judge sits. I no longer know which rules are fol- State Legislature. The CPLR cannot These individual rules also may lowed, modified, superceded, or sim- be changed via rule making author- not conflict with either the CPLR ply ignored. ity, as was the case in the past when or the Uniform Rules. To the extent What happened? the New York Judicial Conference that they do, they are invalid.5 was authorized to enact changes to What It Was civil practice rules. That authority “Not that there’s anything wrong No doubt, the passage of time has was rescinded in 1978. Even the with that,” to quote Jerry Seinfeld, but played a role. The CPLR took effect legislature is limited in its abil- the present system is a response to a on September 1, 1963, replacing the ity to modify or amend the CPLR. problem rather than a solution crafted 1 CPA. John F. Kennedy was president. The legislature may not adopt any to offer the optimal method for making Hawaii had been a state for just over amendment or new provision to necessary changes to civil practice. four years. And the Yankees were the CPLR, which abridges substan- 2 coasting toward the playoffs. Oops, tive rights.4 What It Has Become some things don’t change. An almost impenetrable maze or, to It was a simpler time, illustrated by With the CPLR solely the province borrow Karl Llewellyn’s title, a proce- an early treatise covering the CPA, by of the Legislature, rulemaking by the dural “Bramble Bush.”6 199

22 | January 2010 | NYSBA Journal Some rules are merely hard to find. “emergency” nature of the application. Tinkering around the margins is Suppose, for example, your case is dis- Putting aside the question of whether a likely to increase rather than decrease missed for failure to prosecute pursuant non-emergency order to show cause is confusion, and with such a vast and to CPLR 3216. It might be of interest to an oxymoron, an attorney who doesn’t complex set of rules, the specter of the attorney whose case was just dis- know about the special form and has a the law of unintended consequences missed to know that the judge dismiss- clerk or service submit the order will lurks if changes are made piecemeal. ing your case is required to “set forth on have the papers returned, unreviewed Witness our hapless Note of Issue.8

Like a ﬁ rst-year law student, I can spot the issue, but a solution eludes me.

the record the specific conduct consti- and unsigned, causing unexpected Under the heading “Current Pro- tuting the neglect, which conduct shall delay in what is supposed to be an cesses and Institutions Relevant to demonstrate a general pattern of delay expedited process. Amending CPLR and Improving Civil in proceeding with the litigation.”7 The Some rules are unintelligible. Read Practice,” Weinstein, Korn & Miller set failure of the judge to do so may form CPLR 208. Seriously. Imagine you are forth the current mechanism for effect- the basis for reviving the action (allow- reading it for the first time, are fairly ing changes in the rules: ing the client’s case to be decided on the new to practice, and are trying to cal- The legislature is the first institu- merits, and sparing the attorney a steep culate how much time an infant has tion to look to for amendment and increase in malpractice premiums). to sue for a medical malpractice case improvement of the CPLR. The Where in CPLR 3216 does this (and, to make your task easier, you do Chief Judge of the State of New important mandate appear? Nowhere. not have to consider whether continu- York and the Chief Administrator Is there a reference or cross-citation ous treatment extends the time to sue). of the Courts, however, play an in CPLR 3216 to direct you to this Good luck! increasingly important role in language? No. Instead, you have to Some rules aren’t even rules. For recommending legislation to the know to look in CPLR 205(a) for this years, my colleagues have been describ- legislature and in promulgating language, which was added to that ing the practice in the Commercial rules for the administration of the statute in 2008. Division, which routinely includes the courts. The Chief Judge and the Some rules are impossible to find. exchange of expert reports and depo- Chief Administrator are assisted They lurk, hidden from view, until sitions of experts. This, of course, is in the legislative efforts by their you are confronted with a mistake heresy in traditional New York State Advisory Committee on Civil based upon the violation of the rule. practice. After spending a consider- Practice and by the Law Revision Practitioners statewide know that a able amount of time unsuccessfully Commission. More relevant to the party seeking expedited relief may searching for the Commercial Division upkeep of the CPLR are the Office move by order to show cause. An Rules authorizing this expansion of of Court Administration’s CPLR order to show cause is typically uti- expert disclosure, I was informed by a Advisory Committee and the New lized when the hearing of a notice commercial division judge that there York State Bar Association’s CPLR motion will not take place before the are no such rules. Instead, it is the Committee.9 relief sought is needed or if interim practice in the Commercial Division, relief, such as an order to preserve evi- encouraged by the bench, acquiesced A top-to-bottom overhaul of the dence, is required. However, in at least to by the bar, and accomplished by rules of practice appears impossible one downstate county, there are, in agreement between the parties, “so under our current system. Since the fact, two kinds of orders to show cause: ordered” by the court. There is even CPLR may be amended only by the “regular” orders to show cause and a form stipulation in Robert L. Haig’s Legislature and is not a topic with “emergency” orders to show cause. Commercial Litigation in New York State much of a constituency in good times, The difference? Emergency orders to Courts. let alone the tough economic climate show cause are put to the head of the of 2010, help from this direction is line and are reviewed in an expedited What to Do? unlikely. The ability of the Chief manner. The problem? An emergency I don’t know. Like a first-year law stu- Administrator of the Courts to promul- order to show cause requires a special dent, I can spot the issue, but a solution gate rules of practice to supplement the affidavit or affirmation explaining the eludes me. CPLR, while useful as an interim mea- 200

NYSBA Journal | January 2010 | 23 sure, cannot effect a systemic revision trated by the children’s rhyme that 3. In A Dictionary of Modern Legal Usage, Bryan Garner offers this definition: “[A]djective law is not of the rules governing civil practice. It gave Bramble Bush its title: a set of rules governing words that modify nouns, is, at best, CPR for the CPLR. There was a man in our town but rather the aggregate of rules on procedure.” and he was wondrous wise; 4. Weinstein, Korn & Miller ¶ 102.00. Conclusion he jumped into a bramble bush 5. Id. Change may be unwelcome to those and scratched out both his eyes – 6. Karl N. Llewellyn, The Bramble Bush: On Our Law and Its Study 1930. comfortable with current New York and when he saw that he was blind, with all his might and main 7. The Note of Issue was the subject of the May practice. While I count myself in that he jumped into another one 2009 column, “It’s the Note of Issue, Stupid.” group, I believe change is needed, and scratched them in again.10 8. See CPLR 205(a); see also Siegel, McKinney’s provided it is systemic and is arrived Practice Commentary, NYCPLR 3216 (2008). at in a thoughtful and systematic man- 1. Civil Practice Act, enacted in 1921. 9. Weinstein, Korn & Miller ¶ Intro.02. ner. However it is accomplished, the 2. In that simpler time there was a single round of 10. Karl N. Llewellyn, The Bramble Bush: On Our process will likely be difficult, as illus- league playoffs. Law and Its Study 1930.

ALSO: NYSBA Downloadable Forms Visit www.nysba.org/pubs for a list of all forms by practice area that you can download for instant use

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24 | January 2010 | NYSBA Journal 202 New York State Bar Association 2016 TICL/Trial Lawyers Fall Meeting: Louisiana v. New York

VIII. DNR For The CPLR

203 16

204 BURDEN OF PROOF — 2013 BY DAVID PAUL HOROWITZ

DAVID PAUL HOROWITZ ([email protected]) has represented plaintiffs in personal injury cases for over 25 years and is of counsel to Ressler & Ressler in New York City. He is the author of New York Civil Disclosure and Bender’s New York Evidence (both by LexisNexis), as well as the 2008 and 2013 Supplements to Fisch on New York Evidence (Lond Publications). Mr. Horowitz teaches New York Practice at Columbia Law School, and Professional Responsibility and Electronic Evidence & Disclosure at Brooklyn Law School. In addition to presenting NYSBA’s Annual CPLR Update Program statewide, he serves on the Office of Court Administration’s CPLR Advisory Committee, as Associate Reporter to the New York Pattern Jury Instruction (P.J.I.) Committee, and is a frequent lecturer and writer on these subjects.

DNR for the CPLR?

Introduction Just Live With It York State’s civil courts. So, without In this 50th year of the CPLR, it seems Keeping the existing CPLR and its further comment, let’s dispense with reasonable to ask whether this now- appurtenances (Uniform Rules, Judi- option one. venerable statute has outlived its use- cial District Rules, Individual Judges’ fulness, or at least its useful life. At 50, Rules, to name but a few) “as is,” Demolish It and Rebuild the CPLR has already been in effect is attractive on any number of lev- The second alternative, scrapping the longer than its predecessors, the C.P.A. els. Unfortunately, none, in the end, CPLR and starting over with a new (42 years [1921–1963]), the Throop has anything to do with improving statute drafted from scratch, is not as Code (41 years [1880–1921]) and the the practice of law in New York state easy to dismiss out of hand. Like that Field Code (32 years [1848–1880]). courts. shiny new automobile in the dealer While it is true that 50 may well be the First and foremost, doing nothing1 showroom, with its intoxicating new new 30, the life span of the CPLR has means that none of us have to learn a car smell, a brand new code of civil coincided with earthshaking changes new procedural language. And, make practice, tailored to address the vexing in the practice of law. Has it kept up? no mistake, I am a terrible language legal issues of our day, has a certain Can it keep up? If the answer to one or student. Even a modest re-working of allure. both of these questions is “no,” then the CPLR, with or without amalgamat- Many do support the idea of com- what to do? In short, has the CPLR ing other civil practice rules, will result pletely re-drafting the CPLR. With 50 reached that stage in its life where no in changes, large and small, and an years of experience and 20-20 hind- effort to resuscitate it should be made? inevitable learning curve for all, from sight, we know there are many sections Is it time for a DNR for the CPLR? least to most experienced.2 and rules that need serious attention, For civil litigators practicing in Second, like the old cardigan I keep some that would probably not make it New York state courts, the CPLR is draped over a chair in my office,3 into a new code, and problems and dif- our procedural home, the framework though frayed and somewhat moth- ficulties that we encounter in practice and structure around which we prac- eaten, it accomplishes its task. The today that are not directly addressed titioners build our cases. So, like a sweater keeps me warm. The CPLR by the CPLR. Some of today’s issues homeowner confronted with an anti- works for me. I know it, I am com- could not have been imagined in 1963. quated yet sound, functioning home, fortable with it, and I have invested If we focus on these criticisms, then albeit one that lacks en suite baths for a substantial amount of time learning a wholesale replacement of the CPLR each bedroom, a 12-burner stove in the some of its many nuances, omissions, might seem like the most appropri- kitchen, and LEED-certified fixtures and contradictions. Because the totality ate course. However, there are other and appliances throughout, the bench of New York’s civil practice rules often reasons not to undertake a complete and bar are confronted with three pos- constitutes a trap, the little procedure revision – the inherent complexity of sible paths forward: I have mastered gives me a tactical the CPLR, its interconnectedness with 1. Just live with it. advantage in some cases, and I am other statutes, and the almost inevi- 2. Demolish it and rebuild. loath to give that up. table politicization of the exercise. 3. Remodel. However, as I mentioned at the To understand just how complex a Each of these alternatives will be outset of this section, none of these rea- complete revision of the CPLR would considered, beginning with the easiest, sons serves the commonweal goal of be, consider the time, energy, and “just live with it.” improving the practice of law in New resources, coupled with more than just 205

38 | October 2013 | NYSBA Journal a bit of serendipity, invested in draft- Administration) to revise those items are many avenues available to anyone ing and enacting the CPLR. Remember in the CPLR designated as “Rules” (the willing to make the effort. the article by Judge Weinstein that Legislature had, from the enactment The Office of Court Administration opened this issue? Written in 1958, at of the CPLR, retained sole power to has a number of standing committees, about the mid-point of the drafting revise those items in the CPLR desig- one of which is the Advisory Commit- of the CPLR, one gets a sense of the nated “Sections”). tee on Civil Practice.8 What is the role herculean effort involved. Professor The Legislature has, both before of the Committee? Carlisle’s article, which follows Judge and after the 1978 legislation, enacted The Advisory Committee on Civil Weinstein’s, with its overview of the changes, large and small, to the CPLR. Practice, one of the standing advi- entire drafting and enactment process, However, since 1978, the general con- sory committees established by completes the picture, leaving us with sensus is that reliance on the Legis- the Chief Administrative Judge of the sense that “but for” any number of lature as the sole vehicle for adjust- the Courts pursuant to sections intervening events, the CPLR would ing New York’s civil procedure rules 212(1)(g) and 212(1)(q) of the never have been enacted. to changes in case law, practice, and Judiciary Law, annually recom- Judge Weinstein and the other technology, is not enough. The Office mends to the Chief Administra- principal drafters received significant of Court Administration has stepped tive Judge legislative proposals in assistance from the faculty and staff into the breach, and many rules of the area of civil procedure that at Columbia Law School. The New civil practice, including some that are may be incorporated in the Chief York State Law Revision Commission very significant, are the creation of Administrative Judge’s legislative played a crucial role in drafting the our courts, not the Legislature.6 Going program. The Committee makes CPLR, but today simply does not have forward, it seems reasonable to assume its recommendations on the basis anything approaching the resources it that judicial rulemaking will continue of its own studies, examination of

To understand just how complex a complete revision of the CPLR would be, consider the time, energy, and resources, coupled with more than just a bit of serendipity, invested in drafting and enacting the CPLR.

4 once did. It is not clear what resources as a necessary adjunct to and, at times, decisional law, and recommenda- could be brought to bear today on such the main mechanism for updating tions received from bench and bar. a project. And who would fill the criti- New York’s rules of civil practice. The Committee maintains a liaison cal role played by Judge Weinstein? So, having rejected leaving well with the New York State Judicial For these reasons, and many oth- enough alone and repeal as reason- Conference, committees of judges ers, developing and implementing an able paths forward, what can we, as and committees of bar associa- entirely new code seems far-fetched. members of the bench and bar, do to tions, legislative committees, and equip the CPLR (and appurtenances) such agencies as the Law Revision Remodel to accomplish for the next 50 years Commission. In addition to recom- So, what about remodeling? Actually, the salutary goals set forth in CPLR mending measures for inclusion in the process of revising the CPLR has 104? the Chief Administrative Judge’s legislative program, the Com- been going on since its effective date. The civil practice law and rules mittee reviews and comments on The Court of Appeals illustrates this shall be liberally construed to 5 other pending legislative measures nicely in Chase v. Scavuzzo. There, the secure the just, speedy and inex- concerning civil procedure.9 Court traces the evolution of CPLR pensive determination of every 3216 from its original form in 1963, civil judicial proceeding.7 through its amendment in 1964, its The reference to “recommendations repeal and reenactment in 1967, and its We Can All Have an Impact received from bench and bar” is not further amendment in 1978 when the Clearly, attempting to enact changes lip service, and during the time I have statute attained its present form. The to the CPLR should be the first step. been involved with the Committee changes in CPLR 3216 detailed in Chase If that avenue is foreclosed, input many proposals have had their genesis were all enacted by the Legislature. into formulating court rules directed in letters and emails from judges and Coincidently, 1978 was the year that towards achieving these goals should lawyers. the Legislature repealed the previously be the next. Finally, attorneys often The Law Revision Commission, co-extensive authority of the Judicial have the ability to impact rules through established in 1934, is “the oldest con- Conference (now the Office of Court litigation they are206 engaged in. There tinuous agency in the common-law

NYSBA Journal | October 2013 | 39 world devoted to law reform through While immediate legislative fixes are 8. Spoiler alert: I have been a member of the legislation.”10 Its home page explains often suggested when a problem is first Committee since 2000. it mission: encountered, time and time again our 9. Report of the Advisory Committee on Civil Prac- tice, January 2013. The Purpose of the Commission courts, through that glorious inven- tion, the common law, have, over time, 10. http://www.lawrevision.state.ny.us. The Commission is charged by furnished solutions. And, given the 11. Id. statute with the following duties: complexity of our civil practice rules 12. The 1991 amendment substituted “matter” for “evidence” to comport with the holding of the To examine the common law and in their totality, slow and steady is statutes of the State and current Court of Appeals in its seminal decision on the often the right course, because it is less scope of disclosure, Allen v. Crowell-Collier Publish- judicial decisions for the purpose likely to cause dreaded unintended ing Co., 21 N.Y.2d 403 (1968). of discovering defects and anach- ronisms in the law and recom- consequences. mending needed reforms. I cannot think of a better example of a statute that has proved adaptable to To receive and consider proposed our changing times than CPLR 3101(a), Burden of Proof — 2010 changes in the law recommended Continued from Page 37 by the American Law Institute, the titled the “Scope of Disclosure,” which commissioners for the promotion begins: at in a thoughtful and systematic man- of uniformity of legislation in the (a) Generally. There shall be full ner. However it is accomplished, the United States, any bar association disclosure of all matter material process will likely be difficult, as illus- or other learned bodies. and necessary in the prosecution trated by the children’s rhyme that To receive and consider sugges- or defense of an action, regardless gave Bramble Bush its title: tions from judges, justices, public of the burden of proof . . . There was a man in our town officials, lawyers and the public and he was wondrous wise; generally as to defects and anach- With only a single modification over he jumped into a bramble bush ronisms in the law. the years to its key introductory lan- and scratched out both his eyes – 12 To recommend, from time to time, guage, this one statute has success- and when he saw that he was blind, such changes in the law as it deems fully spanned the period of time when with all his might and main necessary to modify or eliminate lawyers moved from carbon paper to he jumped into another one 10 ■ antiquated and inequitable rules the cloud. This is no small feat. and scratched them in again. of law, and to bring the law of this If the CPLR could speak, it might 1. Civil Practice Act, enacted in 1921. state, civil and criminal, into har- well croak out the line made famous mony with modern conditions.11 2. In that simpler time there was a single round by 1975’s Monty Python and the Holy of league playoffs. As with the Advisory Committee Grail: “I’m not dead yet!” So, no DNR 3. In A Dictionary of Modern Legal Usage, Bryan on Civil Practice, the Law Revision for the CPLR. With some help from Garner offers this definition: “[A]djective law is Commission’s mechanism “[t]o receive all of us, New York’s stalwart CPLR, not a set of rules governing words that modify nouns, but rather the aggregate of rules on proce- and consider suggestions from judges, coupled with our court rules, has suffi- dure.” justices, public officials, lawyers and cient flexibility and resiliency to make 4. Weinstein, Korn & Miller ¶ 102.00. the public generally” is a genuine and its golden anniversary the beginning 5. Id. meaningful one. of a golden age in civil practice. ■ 6. Karl N. Llewellyn, The Bramble Bush: On Our Many bar associations have com- Law and Its Study 1930. mittees, standing or ad hoc, devoted to 1. Anyone who knows me knows that doing nothing is generally the first course of action (sic) I 7. See CPLR 205(a); see also Siegel, McKinney’s civil practice issues. While the ranks of consider when confronted with any issue. Practice Commentary, NYCPLR 3216 (2008). CPLR geeks is larger than one might 2. Of course, this is one of those situations where 8. The Note of Issue was the subject of the May think, these bar association committees a newly minted lawyer has the incredible advan- 2009 column, “It’s the Note of Issue, Stupid.” are generally very welcoming of new tage of imprinting any new or revised rules upon a 9. Weinstein, Korn & Miller ¶ Intro.02. blank slate. members and certainly are receptive 10. Llewellyn, The Bramble Bush, supra note 6. 3. I know, I know, this makes me sound like I am to the submission of comments, and at least a hundred years old. However, it gets cold complaints, from the bench and bar. in my office. Many legislative initiatives have had 4. A good start to learning about the law revision their origins in recommendations rec- commission is John W. MacDonald’s article The New York Law Revision Commission: The Past and the ommended by bar associations. Future, 13 St. Louis U. L.J. 258 (1968–1969). 5. 87 N.Y.2d 228 (1995). Conclusion 6. I leave it for others to weigh in on the long- As the CPLR enters its second half-cen- lived debate on whether this new status quo is tury, there are certainly areas of civil desirable, or even constitutional. www.facebook.com/nysba practice procedure in need of attention. 7. CPLR 104. 207

40 | October 2013 | NYSBA Journal 208 LOUISIANA LAW - TERMS OF ART

Submitted By: SHERYL D. STORY, ESQ. Law Offices of Sheryl D. Story Metairie, LA

209 210 Louisiana Law - Terms of Art • Civil Law - Napoleonic Code – The Louisiana Civil Code is based on the 1804 Code Napoleon from France. It is a set of codified laws. – It is one of 2 prominent legal systems in the Western World influential in Continental Europe, Latin America, Scotland, and Louisiana

Terms of Art continued……. Various Prescriptive Periods

• Delictual Action [Tort] – 1 year (La C.C. Art 3492). – Louisiana’s term for a Tort is delictual action. It is any tort causing PD or BI – The 1 year prescriptive period runs against minors/interdicts from the date of the accident EXCEPT actions involving permanent injuries and brought under the Louisiana Products Liability Act.

211 Duty Risk Analysis (Proximate Cause & Cause in Fact) Statutes create the scope of duties • Did defendant owe any duty to plaintiff? • Did defendant fail to meet that duty? • Was defendant’s failure to meet the duty a cause in fact of the damages/injuries? • Were damages actually sustained?

Terms of Art continued….

• Direct Action (La. R.S. 22:1269) – A plaintiff may sue tort feasor’s insurer directly by naming the insuring company as a defendant. • Pure Comparative Negligence by Statute (LSA-C.C. 2323) – As of 4/16/96 joint tort feasors only liable for their own % of fault – No contribution allowed without an independent basis provided by statute or contract.

212 Terms of Art continued…….

• EXCEPTIONS codified in C.C.P Arts 921 to 934 – Declinatory Art 925 - must be pled prior to or with the answer or the exception is waived (C.C.P. Art 928 A re time of pleading exceptions) – Dilatory Art 926 – must be pled prior to or with the answer or the exception is waived (C.C.P. Art 928 A re time of pleading exceptions) – Peremptory Art 927 – may be pled at any stage of the proceeding prior to trial. (C.C.P. Art 928 B re time of pleading exceptions)

Terms of Art continued……. • Prescription [Statute of Limitations] Raised by Peremptory Exception C.C.P. 927 – The time delay allowed to file suit is “Liberative Prescriptive” in Louisiana. (La. C.C. Art 3447). – If a defendant has an Exception of Prescription, the defendant must plead it. The court cannot supply this exception on its own motion. (La. C.C. Art. 3452). • TORT 1 year (La C.C. Art 3492). • UMBI/PD 2 years by statute • Wrongful Death is 1 year from date of Death • Contract dispute 10 years

213 Terms of Art continued…….

• Peremption – AKA “Statute of Repose” in other states – Different from Prescription (SOL) • Peremption extinguishes a right while Prescription limits the time to exercise a right. • Peremption cannot be renounced, suspended, or interrupted, while Prescription can. – Areas you may encounter Peremption in LA • Product Liability • Real Estate • Construction related matters after 5 years since 2003 • Other areas – malpractice (architects & engineers, medical, legal, accounting, etc.)

Terms of Art continued…….

• Abandonment – In other states often referred to as a Motion For Dismissal – Effective 7/1/98, an action is abandoned when no step is taken in the prosecution or defense of a case for 3 years. Prior to 7/1/98 the period was 5 years. Often we advise NOT to file a formal motion, just to close the matter. If it pops up later, then we file the affirmative defense of abandonment. • Exemplary Damages – In other states referred to as Punitive Damages

214 Time Line for Louisiana Litigation

• Fact Pleading. Petitions must contain allegations of fact – not notice pleading. (La. C.C.P. Art. 891) • Service must be requested within 90 days of filing the Petition (La C.C.P. Art. 1201 B) • Answer/Responsive Pleadings within 15 days (La C.C.P. Art. 1001) – Service on an Insurer must be through the LA Secretary of State by law & date of service is date SOS is served.

Time Line continued…. • Affirmative Defenses must be set forth in the Answer or they are barred. Examples of affirmative defenses are: – Affirmative negligence of any party – Error or mistake – Estoppel – Fraud – Illegality – Injury by a fellow servant (co-worker) – Extinguishment of the obligation (prior settlement)

215 Time Line continued….

• Jury Request – Jury Request must be made in the Answer or be requested within 10 days after either service of the last pleading directed to an issue tried to a jury, or the granting of a motion to withdraw a demand for jury trial by another party. (La. C.C.P. Art. 1733 C). – To be entitled to a trial by jury the amount in controversy must be in excess of $50,000, without considering interest and costs. (La. C.C.P. 1732(1)) – Jury Bond required in an amount and within the time delay set by the court. (La. C.C.P. 1734) These differ from court to court. Some courts require a cash deposit or jury fee in lieu of a bond. (La. C.C.P. 1734.1)

Time Line continued….

• Contradictory Motions - any type of motion requiring a hearing – I.E. an Exception of No Cause of Action, a Motion for Summary Judgment – Summary Judgments must be filed at least 65 days prior to trial date. 966(B)(1) – At least 30 days must elapse between the date of service of the SJ motion on all parties and the hearing date. (La. C.C.P. Art. 966B) – Judge must render decision on the SJ not less than 20 days prior to trial.

216 Time Line continued….

• Discovery can be conducted any time up to the deadline date set by the court. Varies from court to court. • Motion to Set for Trial – May be filed after all issues are joined (all defendants have answered). Some judicial districts also require the attorneys stipulate that all discovery has been completed before assigning a trial date.

Time Line continued…. • Status Conferences – Some courts allow & some require. Used to set deadline dates, et cetera, without the need to file a Pre-Trial Order. • Pre-Trial Conference & Inserts – Pre Trial Orders are based on the Pre-Trial Inserts submitted by the parties. Inserts are required prior to the PTC, at a date set by the judge. The inserts must list all exhibits & witnesses that a party intends to call. – All attorneys must appear to select a trial date and agree to various cut off dates. The final Pre-Trial Order then controls the course of the trial.

217 Time Line continued…. • Trial - generally within 18 – 24 months – If the jury is made up of 12 jurors, each side is allowed 6 Peremptory Challenges; and if the jury is made up of 6 jurors, then each side is allowed 3 Peremptory Challenges (La. C.C.P. Art. 1764) – If trial is by a jury of 12, then nine (9) of the jurors must concur to render a verdict unless the parties stipulate otherwise. (La. C.C.P. 1797 B)

Time Line continued….

– If a jury of 6, then five (5) of the jurors must concur to render a verdict unless the parties stipulate otherwise. (La. C.C.P. 1797 A). – In country parishes (outside the metropolitan areas) where getting 12 jurors is sometimes difficult, a 6 person jury is often used.

218 Time Line continued….

• Suspensive Appeal - actually suspends the judgment – Must be filed within 30 days of the expiration of the expiration of the delay for applying for a new trial (usually a total of 37 days) or within 30 days of the mailing of notice denying a new trial. (La. C.C.P. Art. 2123). – An Appeal bond is then required, in an amount equal to the money judgment plus accrued interest. – Additionally, the Appeal court will estimate the costs of the appeal and will send notice of the payment due. The payment must be made within 20 days. (La. C.C.P. Art. 2126)

Time Line continued….

• Devolutive Appeal – the judgment is paid, but still appealed. – Must be filed within 60 days of the expiration of the delay for applying for a new trial (usually a total of 67 days) or within 60 days of the mailing of the notice denying a new trial. (La. C.C.P. Art. 2087) – No bond required, but a defendant must pay any judgment rendered – Gasquet release – can end duty to defend under certain very specific situations, i.g. where excess carriers are involved.

219 Time Line continued….

• Supervisory Writ – may be applied for at any time during a case on any ruling made by the judge. It can also be taken after trial. – There is no requirement for the reviewing court to accept the writ application. – As a general practice, writs are denied unless there is a compelling overall legal issue.

Time Line concluded.

• A Motion for Annulment – May be filed based on a judgment obtained by fraud or ill practices and must be brought within 1 year of discovery of the fraud or ill practice. Very rare • Pay the judgment…Judicial Interest runs from the date petition was filed & changes during each year a case is pending. – Since 1/1/11 to date the interest rate has been 4.00% – Prior years it was different – rates are announced each year

220 Conclusion

• Louisiana likes written statutes (codes)

• Louisiana reaches similar conclusions as Common Law States, just using different language and via a different path.

• It is not so hard to follow.

221 222 PANEL FIVE

TRAUMATIC BRAIN INJURIES: THE MEDICINE EVERY ATTORNEY NEEDS TO KNOW

223 224 POST-CONCUSSION SYNDROME - A MEDICAL AND LEGAL CONUNDRUM

Submitted By: DR. KISHORE RANADE UMC Medical Consultants Purchase, NY

225 226 Post-Concussion Syndome- A Medical and Legal Conundrum

Kishore Ranade, M.D.

The post-concussion syndrome (PCS) is a common sequelae of traumatic brain injury (TBI), and it is a symptom complex that includes headache, dizziness, neuropsychiatric symptoms, and cognitive impairment. PCS is most often described in the setting of mild TBI, which is common in contact sports, and military injuries but increasingly identified in the workplace especially at construction jobs. Whiplash injuries can also cause PCS. Loss of consciousness does not have to occur for PCS to develop.

PCS is controversial, especially in its persistent form. The symptoms are vague, subjective, and common in the general population. The nature of the injury can be variable and the claimants underlying personality may play a role in the symptoms. Test results may or may not be abnormal; when present, test abnormalities do not follow a consistently defined pattern.

CLINICAL PRESENTATION

Thirty to 80 percent of patients with mild to moderate brain injury will experience some symptoms of post-concussion syndrome (PCS). This wide range of reported incidence reflects variabilities in the patient population studied and the criteria by which a diagnosis of PCS is made, either using individual symptoms or defined clinical criteria. Two clinical criteria, the International Classification of Diseases, ICD-10 and the DSM-IV, are commonly used and give widely different results, even within the same patient population.

MIGRAINES AND DEPRESSION

A number of structural and biochemical changes have been documented in animal models of head injury and in human neuro-pathological studies. Physiologic and functional neuroimaging (SPECT, PET and functional MRI) also document more extensive areas of abnormality than is seen on CT, supporting a role for structural or physiologic brain injury in the production of PCS. However, many of these neuroimaging findings are not specific to head injury and are also noted in patients with migraine and depression.

The most common complaints in post-concussion syndrome (PCS) are headaches, dizziness, fatigue, irritability, anxiety, insomnia, loss of concentration and memory, and noise sensitivity. The relative preponderance of these symptoms varies from study to study depending on the clinical setting, the time since injury, and other variables. As an example, among 118 patients who volunteered for a mild traumatic brain injury (TBI) treatment study, at one month following the injury headaches were reported in 78 percent, dizziness in 59 percent, fatigue in 91 percent, irritability in 62 percent, anxiety in 63 percent, sleep disturbance in 70 percent, forgetfulness in 73 percent, and noise sensitivity in 46 percent1.

227 EMOTIONAL DYSFUNTION

PCS is often associated with emotional dysfunction. The symptom complex of PCS (headache, dizziness, and sleep impairment) is similar to the somatization seen in psychiatric disorders including depression, anxiety, and posttraumatic stress disorder. In addition, anxiety and depression can produce subjective and objective cognitive deficits that are similar to those seen in PCS and that improve with antidepressant treatment.

A number of studies suggest that both psychiatric predispositions (poor coping skills, limited social support and negative perceptions) and psychiatric comorbidity (depression, anxiety and panic, acute and post-traumatic stress disorder) are more prevalent in patients with PCS compared with general population controls and/or with head-injured patients who do not develop persistent PCS.

Chronic pain and PCS — Patients with chronic pain have symptoms of PCS at a rate similar to a comparison group of patients after head injury. Similar patterns of cognitive deficits may be seen in patients with chronic pain and PCS. It is not clear whether this reflects a shared prevalence of psychiatric disorders among sufferers of PCS and chronic pain syndromes, suggests that PCS is a manifestation of a chronic pain syndrome, or reflects the ubiquitous nature of these symptoms.

Litigation and PCS — The idea that pending compensation claims contribute to the presence and duration of PCS symptomatology dates back to original reports in the late nineteenth century. Studies do show a relationship between persistent PCS and potential financial compensation. The association does not clearly imply causation, however. Some patients with pending litigation improve with or without treatment, and PCS occurs in the absence of litigation. On the other hand, failure of patients to recover after claims are settled does not necessarily invalidate this theory, as a financial settlement may in fact reinforce illness behavior. The very low, even absent, rates of post-concussion symptomatology, in some countries and in children, that are sometimes reported suggests a prominent role for sociocultural factors in the pathogenesis of PCS, perhaps because of misattribution or litigation.

DIAGNOSTIC TESTING

Neuropsychological testing — Neuropsychological testing is not helpful in most patients with post- concussion symptoms. Nevertheless, when performed by a knowledgeable and experienced psychologist, neuropsychologic evaluation can be helpful for evaluating selected patients with prominent cognitive or psychologic complaints, providing reassurance as to their mild nature and limited extent.

Follow-up studies of unselected patients after mild traumatic brain injury (TBI) demonstrate small measurable deficits on neuropsychological testing. Cognitive domains that appear particularly vulnerable to the effects of head injury include attention, working memory, processing speed, and reaction time. The deficits are generally mild; gross deficits of intelligence and memory are not

228 associated with mild TBI. Abnormalities are most prominent in the first week after TBI and disappear over time. At three months, patients with mild TBI as a group perform similarly to control.

The observed cognitive deficits are not specific to mild TBI; similar patterns of abnormalities are seen in patients with psychological illness, pain syndromes, and those taking medications.

Neuropsychological testing may demonstrate findings inconsistent with PCS that can be helpful to the physician in pursuing alternative diagnoses. The referring physician should be aware that neuropsychological testing is not well standardized, and findings are easily subject to misinterpretation and over interpretation for a variety of reasons, especially in medico-legal cases.

Neuroimaging — Many patients evaluated for mild TBI will have undergone a CT scan or MRI as part of their acute evaluation. About 10 percent of CT scans in mild TBI are abnormal showing mild subarachnoid hemorrhage, subdural hemorrhage, or contusions. MRI is more sensitive than CT scan showing abnormalities in about 30 percent of patients with normal CT Patient with PCS who have not had an MRI and have disabling complaints should have a brain MRI to exclude more serious pathology that would either identify a worse prognosis or an alternative cause for their symptoms.

Other advanced neuroimaging techniques, including functional MRI, magnetic resonance spectroscopy, and diffusion tensor imaging, are under investigation in the evaluation of patients with TBI.

TREATMENT — Treatment of post-concussion syndrome (PCS) is individualized to the patient's particular complaints. Simple reassurance is often the major treatment, since most patients will improve within three months. A trial of six days of bed rest in 107 patients presenting to the emergency department after a mild head injury reduced complaints of dizziness in the first week after injury but did not alter the severity of post-traumatic complaints at three or six months

One of the most important roles for the physician is education of the patient and family members, other physicians, and, as appropriate, employers, attorneys, and representatives of insurance companies. Many patients are reassured to discover that their symptoms are not unique or crazy but are instead part of a well-described syndrome. Disbelieving family members may become more supportive with education.

PROGNOSIS — The symptoms and disability attributed to post-concussion syndrome (PCS) are greatest within the first seven to 10 days for the majority of patients. At one month, symptoms are improved and in many cases resolve. The vast majority of patients have largely recovered by three months. A minority (10 to 15 percent) have symptoms that persist one year or longer. Because of biased reporting, it is possible that this number is inflated, and the overall prevalence is much lower.

REFERENCES: This article was based on the work of Dr. Randolph Evans from Post-concussion Syndrome in Uptodate, October 10, 2013.

229

1 Paniak C, Reynolds S, Phillips K, et al. Patient complaints within 1 month of mild traumatic brain injury: a controlled study. Arch Clin Neuropsychol 2002; 17:319.

230 REFERENCES FOR TRAUMATIC BRAIN INJURY TALK:

1. Mild Traumatic Brain Injury-Symptom Validity Assessment and Malingering- Dominic Carone, Shane Bush editors 2013 Springer Publishing

2. Textbook of Traumatic Brain Injury, 2nd Edition Silver, MaAllister, Yudofsky 2011 APA

3. Mild Traumatic Injury and Post-Concussion Syndrome Michael McCrea, Oxford Workshop series2008

4. Diffusion Kurtosis Imaging- A. Steven, J. Zhuo, E. Melham; AJR:202, Jan 2014

5. Diffusion Tensor Imaging for Outcome Prediction in Mild Traumatic Brain Injury-A TRACK-TBI study E. Yuh, S. Cooper, P. Mukherjee et al. Journal of Neurotauma 2014 Sept 1;31(17) 1457-1477

6. DTI Imaging in Mild Traumatic Brain Injury Litigation H. Worzel, M. Kraus, C. Filley et al. J Am Acad Psychiatry Law 39:511-23,2011

231

7. Position Statement: Definition of traumatic Brain Injury D. Menon, K. Schwab, D. Wright in Arc Phy Med Rehabil Vol 91, Nov 2010

232 EVIDENTIARY ISSUES IN THE CONTEXT OF TRAUMATIC BRAIN INJURY (TBI) LITIGATION

Submitted By: ROBERT D. BARONE, ESQ. The Tarantino Law Firm, LLC Buffalo, NY

233 234 EVIDENTIARY ISSUES IN THE CONTEXT OF TRAUMATIC BRAIN INJURY (TBI) LITIGATION

Robert D. Barone [email protected] October 9, 2016

A. Introduction

The Brain Injury Association of America defines a traumatic brain injury (TBI) as an alteration in brain function, or other evidence of brain pathology, caused by external force. TBI injuries can range from mild to moderate to severe and ultimately can be the topic of personal injury litigation, whether by way of claims sounding in negligence (eg., auto accidents, construction litigation, slip and fall), products liability, or medical malpractice. Regardless of the mechanism of injury or the theory of liability, the trial of a TBI case requires proof not only of injury but also that a specific event was the cause of the injury. In the case of a severe and obvious trauma to the head, this proof may be relatively simple and straightforward. However, in the case of a mild or mild to moderate traumatic brain injury (mTBI), there may be little or no objective evidence of injury to the brain, and the extent of any such injury will certainly be disputed. It is in the context of the mild to moderate TBI lawsuit where the issue of admissibility of expert testimony and medical testing is most often challenged.

B. Tests for Admissibility of Expert Testimony

1. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) -lie detector testing inadmissible -creates “general acceptance” test for admissibility of novel scientific evidence

“[W]hile courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Id. at 1014 (bold added.)

See also,

Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999) -Daubert applies not only to testimony based on scientific knowledge but to testimony based on technical and other specialized knowledge as well.

-while the court may consider one or more of the specific Daubert factors, the test of reliability is “flexible,” and the Daubert factors do not necessarily or exclusively apply to all experts in all cases.

General Electric Co. v. Joiner, 522 U.S. 136 (1997). -district court’s decision regarding admissibility of expert testimony is to be reviewed on appeal with “abuse of discretion” standard.

For a color-coded map indicating the Frye states and the Daubert states, please see https://jurilytics.com/50-state-overview last updated 7/25/16.

FRE 702

In December 2000, Federal Rule of Evidence 702 codified Daubert and Kumho Tire. FRE 702 currently states:

237 A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(d) the expert has reliably applied the principles methods to the facts of the case.

C. Medical Testing

1. Neuroimaging

CT (Computed Tomography)

MRI (Magnetic Resonance Imaging)

2. Functional Neuroimaging *test description taken from BrainInjury.org

●SPECT (Single-Photon Emission Computed Tomography)

SPECT scanning (single photon emission computed tomography) is similar to PET scanning in that a radioactive chemical is administered intravenously to the patient, but the radioactive chemical remains in the bloodstream and does not enter the brain. As a result, the SPECT scan maps the brain's vascular supply. Because damaged brain tissue normally shuts down its own blood supply, focal vascular defects on a SPECT scan are circumstantial evidence of brain damage. The advantage of a SPECT scan over a PET scan is its ready availability and relatively cheap cost. Recent studies have demonstrated abnormal SPECT scans after head trauma when the CAT and MRI were normal, suggesting that the SPECT scan is more sensitive to brain injury then either CT or MRI scans. Because the radioactive chemicals used in SPECT and PET scans are carried to all parts of the body by vascular tree, SPECT scans and PET scans are used judiciously in patients of reproductive age.*

NY courts: Smith v. Reeves, 96 A.D.3d 1550 (4th Dept. 2012)

238 - SPECT scan within normal limits supported granting of defendant’s motion for summary judgment in personal injury action. (admissible)

Other federal courts Yum v. Carey, 2009 U.S. Dist. LEXIS 120284 (C.D. Cal. 2009) - expert testimony regarding diagnosis of brain trauma and PTSD based on SPECT scan was properly excluded under Frye, as petitioner failed to demonstrate “general acceptance” of SPECT scans to diagnose brain trauma and PTSD. (inadmissible)

Todd v. Baker, 2012 U.S. Dist. LEXIS 77375 (D. Mont. 2012) - expert testimony regarding diagnosis of traumatic brain injury based on SPECT scan was admissible since SPECT methodology as applied by expert was “sufficiently reliable.” Citing Daubert, the court states that this evidence is “shaky but admissible,” and may be explored on cross-examination. (admissible)

●PET Scan (Positron Emission Tomography)

PET scanning (positron emission tomography) is based on the fact that the brain uses glucose for energy. By labeling a glucose molecule with a radioactive "tag," and then inhaling radioactive glucose and placing the patient's head under a large geiger counter, one can identify abnormal areas of the brain that are underutilizing glucose. Because cyclotrons are needed to generate the radioactive gas, PET scanning is not widely available.*

NY courts: LaMasa v. Bachman, 8 Misc. 3d 1001(A) (Sup. Ct. N.Y. Co. 2005) - noting its ruling that PET scans do not pass Frye test. (inadmissible)

Brown v Allerton Assoc., 13 Misc. 3d 1232 (Sup. Ct. Bronx Co. 2006) - use of PET scans to diagnose traumatic brain injury passes Frye “general acceptance” test; court rejects defendant’s use of Daubert standard. (admissible)

Other federal courts: Hose v. Chicago Northwestern Transp. Co., 70 F. Supp. 968 (8th Cir. 1995) - stating “there is no question that the PET scan is scientifically reliable for measuring brain function,” citing Daubert.

Clemons v. Thomas, 2016 U.S. Dist. LEXIS 40104 (N.D. Ala. 2016) - discussing that circuit court properly found PET scan

239 results inadmissible under Frye since results were not shown to be reliable and generally accepted in diagnosing 30-year-old brain injuries.

●DTI (Diffusion Tensor Imaging)

Diffusion Tensor Imaging is a type of MRI which uses special software to view parts of the brain a normal MRI cannot. The interesting premise of this new technology is that it measures the movement of water molecules in relation to the white track fibers of the white matter of the brain. If the fibers are healthy and untorn, then the water molecules will show parallel movement along those tracks as they slide along them. Torn or missing white matter fiber will allow perpendicular movement of the water molecules.*

This new technology allows for visualization of natural damage to the white matter. It is a very impressive technology and will be impressive to jurors and others involved in TBI litigation. Most radiology groups do not have this software, so if you would like to have this test run, try University centers first. DTI will be especially helpful in cases involving high velocity change injury, such as high speed car accidents, falls from a height, and other accidents in which the injury is suspected to be Diffused Axonal Injury (DAI).*

NY courts: Ali v. Connick, 2106 U.S. Dist. LEXIS 67466 (EDNY 2016) - observing that DTI testing has only gained acceptance in recent years; expert witness is needed to establish DTI’s reliability.

Other federal courts: Ruppel v. Kucanin, 2011 U.S. Dist. LEXIS 67503 (N.D. Ind. 2011) - applying Daubert, court finds that DTI is a relatively new technology that is gaining general acceptance as a method for detecting TBI, and that articles support its use for that purpose. (admissible)

White v. Deere & Co., 2016 U.S. Dist. LEXIS 15644 (D. Colo. 2016) - applying Daubert, DTI admissible. (admissible)

●fMRI

Functional MRI (magnetic resonance imaging) is a noninvasive diagnostic test that measures small changes in

240 blood flow as a person performs tasks while in the MRI scanner. Functional MRI detects the brain in action (e.g., speaking or moving). It has an advantage over other imaging studies that focus only on the structure of the brain.

NY courts: Wilson v. Corestaff Servs, L.P., 28 Misc.3d 425 (Sup. Ct. Kings Co. 2007) - a case of first impression; fMRI is not admissible under Frye. (inadmissible)

Other federal courts: United States v. Semrau, 693 F.3d 510 (6th Cir. 2012) - fMRI is not admissible under Daubert. (inadmissible)

●Magnetic Resonance Spectroscopy (MRS)

This is an exciting new tool, used in conjunction with MRI, that detects the intra-cellular relationship of brain metabolites. Studies show that in an injured brain, the relationship between the amount of certain compounds in the brain changes in predictable ways, which can be picked up, non- invasively, by MRS. While MRS is in its early stages, it holds great promise in the "objectivication" of brain injury. THIS DATA CAN AND SHOULD BE CAPTURED ON MRI WITHIN SIX WEEKS OF INJURY.*

●Evoked Potentials

Evoked studies take advantage of the fact that each time a sensory system of the body -- vision, hearing, touch -- is stimulated, an electrical signal is generated in the brain. These electrical signals can be detected with electrical wires on the scalp. Thus, visual evoked recordings (VER) are recorded over the occipital lobes; brainstem auditory evoked recordings (BAER) over the temporal lobes; and somatosensory potentials (SSEP) over the parietal lobes.*

3. Neurological testing *test description taken from BrainInjury.org

●QEEG (Quantitative electroencephalograph)

This test is performed in a way similar to EEG. Brain wave activity varies throughout the day depending on the state of alertness. Each area of the brain normally spends a characteristic amount of time in alpha, beta, theta, and delta

241 activity. Brain mapping computers are now capable of creating a map of the brain's electrical activity depicting how long each area of the brain spends in each of the basic rhythms. By comparing the patient's map with that of a control population, it is possible to localize areas of focal slowing of electrical activity. Alone, a QEEG is insufficient to diagnose brain damage but in conjunction with other neurologic tests, QEEG can be confirmatory.*

New York courts: LaMasa v. Bachman, 8 Misc.3d 1001(A) (Sup. Ct. N.Y. Co. 2005) - noting its ruling that QEEG scan studies do not pass Frye test. (inadmissible)

Other federal courts: United States v. Williams, 2009 U.S. Dist. LEXIS 13472 (D. Hawaii 2009) - noting “the considerable debate” within the literature as to the reliability of both QEEG and fMRI scans, but permitting reference to expert’s failure to administer QEEG and fMRI tests to be considered in weighing the expert’s testimony, as expert admitted such tests would be helpful to diagnosis.

D. Non-Medical Experts (Neuropsychologists: Ph.D. or Psy. D. – not M.D.)

There are a variety of medical professionals who would normally be expected to testify at the trial of a TBI lawsuit, including neurosurgeons, neurologists, psychiatrists, rehabilitation medicine specialists, and radiologists or neuroradiologists, among others. Increasingly, individuals who do not possess a medical degree, namely neuropsychologists, are called as experts in TBI litigation.

According to the American Neuropsychiatric Association, clinical neuropsychology is a subspecialty of clinical psychology that subspecializes in the assessment and treatment of patients with brain injury or disease. This discipline involves the application of standardized measures in the study of brain behavior relationships. Neuropsychologists use neuropsychological tests to assess cognitive deficit and they are involved in the management, treatment and rehabilitation of cognitively impaired patients. Neuropsychologists do not possess a medical degree. They typically have a Ph.D. or a Psy.D. in psychology. Most states will allow testimony by neuropsychologists. However, a minority of states reject neuropsychologists’ competence as to issues of causation and prognosis due to the fact that neuropsychologists do not possess a medical degree. Other states will allow this testimony as long as the expert’s qualifications are sufficiently established and subject to cross-examination.

Johnson v. Guthrie Med. Group, P.C., 125 A.D.3d 1445 (4th Dept. 2015) -neuropsychologist expert could testify at trial as to causation since opinions were provided with a reasonable degree of medical certainty and theory of causation (that

242 Interferon-alpha caused long-term cognitive deficits) was not premised on novel science but was supported by the scientific community.

1. Neurocognitive Tests

Wechsler Adult Intelligence Scale-4th Edition (WAIS-IV) Wechsler Intelligence Scales for Children-4th Edition (WICS-IV) Wechsler Memory Scale-4th Edition (WMS-IV) Minnesota Multiphasic Personality Inventory-2nd Edition (MMPI-2) Thematic Apperception Test (TAP) Rorschach test Wisconsin Card Sorting Test (WCST) Boston Diagnostic Aphasia Examination (BDAE) Clock Drawing Test (CDT) Standardized Mini-Mental State Examination (SMMSE) Dizziness Handicap Inventory (DHI) Scoring Epwroth Sleepiness Scale (ESS) Multidimensional Assessment of Fatigue (MAF) Scale Neurobehavioral Symptom Inventory PTSD Checklist Vineland Adaptive Behavioral Scales (VAB)

Criticisms:

-there are statistical limitations associated with standardized tests

-while these tests may identify areas of neurological impairment, they cannot establish causation.

-interpretation of results is highly subjective

-claimant may intentionally skew responses to in an effort to increase value of case

2. The Fake Bad Scale (FBS)

FBS is a part of the Minnesota Multiphasic Personality Inventory (MMPI-2). It has been renamed the Symptom Validity Scale.

New York courts: Shea v. Long Island RR, 2009 U.S. Dist. LEXIS 43748 (SDNY 2009) - FBS is admissible but cannot be referred to as the “Fake Bad” scale (prejudicial). (admissible)

243 244 PANEL SIX

ADMIRALTY LAW: THE CRUISE PASSENGERS’ RIGHTS & REMEDIES 2016

245 246 ADMIRALTY LAW THE CRUISE PASSENGERS’ RIGHTS & REMEDIES 2016

Submitted By: HON. THOMAS A. DICKERSON Appellate Division, Second Department Brooklyn, NY

247 248 ADMIRALTY LAW

THE CRUISE PASSENGERS’ RIGHTS & REMEDIES 2016

By Thomas A. Dickerson1

Introduction

Thank you for inviting me to present on the Cruise Passengers’ Rights And Remedies 2016. For the last 40 years I have been writing about the travel consumer’s rights and remedies against airlines, cruise lines, rental car companies, taxis and ride sharing companies, hotels and resorts, tour operators, travel agents, informal travel promoters, and destination ground operators providing tours and excursions. My treatise, Travel Law, now 2,000 pages and first published in 1981, has been revised and updated 65 times, now at the rate of every 6 months. I have written over 400 legal articles and my weekly article on Travel Law is available worldwide on www.eturbonews.com

Litigator During this 40 years, I spent 18 years as a consumer advocate specializing in prosecuting individual and class action cases on behalf of injured and victimized

1 Thomas A. Dickerson is an Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court. Justice Dickerson is the author of Travel Law, Law Journal Press, 2016; Class Actions: The Law of 50 States, Law Journal Press, 2016; Article 9 [New York State Class Actions] of Weinstein, Korn & Miller, New York Civil Practice CPLR, Lexis-Nexis (MB), 2016; Consumer Protection Chapter 111 in Commercial Litigation In New York State Courts: Fourth Edition (Robert L. Haig ed.)(West & NYCLA 2016); Dickerson, Gould & Chalos, Litigating Foreign Torts in United States Courts, Thomson-Reuters (West) 2014 and over 400 articles and papers on consumer law, class actions, travel law and tax certiorari and eminent domain issues, many of which are available at www.courts.state.ny.us/courts/ad2/justice_dickerson.shtml www.nycourts.gov/courts/9jd/taxcertatd.shtml www.classactionlitigation.com/library/ca_articles.html

249 travelers and other consumers.

Travel Consumer Philosophy When consumers purchase travel services from suppliers and tour operators such as transportation [as provided by airlines, cruiselines, railroads, bus companies, rental car companies]; accommodations [as provided by hotels and resorts and cruiselines]; food and drink [as provided by the aforesaid and restaurants]; tours of local sights or more strenuous activities at the destination [as provided by destination ground operators often working with or for airlines, cruiselines, hotels and resorts and tour operators], they should receive the purchased travel services as promised and contracted for or which can reasonably by expected. If they don’t receive those services, in whole or in part, then the injured or victimized traveler should be properly compensated in a court of law, preferably in the jurisdiction wherein the services were purchased and/or where the consumer resides and subject to local law.

The Evolution Of Traveler’s Rights When I first started writing about Travel Law in 1976, the rights and remedies available to travelers were few, indeed.

The Independent Contractor Defense The concept that a principal, whether an airline, cruiseline, hotel, resort or tour operator should be able to insulate itself from liability for the tortuous and contractual misconduct of so called independent contractors was universally accepted by the Courts on the land and on the sea, until very recently.

The Barbetta Rule In the context of maritime law the near universal enforcement of the rule in Barbetta v. S/S Bermuda Star (5th Cir. 1988), insulating a cruiseship from liability for the medical malpractice of the ship’s medical staff is a perfect example of this rule. Indeed, a variation of this rule, that contractual disclaimers of liability for the misdeeds of ground service providers were also universally enforced.

250 The Franza Case As noted in my 2004 Tulane Maritime Law Journal articlei, maritime law, as it is related to passengers, was best described as 21st Century cruiseships and 19th Century passenger rights. However, to my surprise and satisfaction, the 11th Circuit Court of Appeals recently, not only agreed with this analysis but decided to dramatically transport passenger rights, at least in part, into the 21st Century. As noted in Franza v. Royal Caribbean Cruises, Ltd. (2014), “We decline to adopt the rule explicated in Barbetta, because we can no longer discern a sound basis in law for ignoring the facts alleged in individual medical malpractice complaints and wholly discarding the same rules of agency that we have applied so often in other maritime tort cases...As Justice Holmes, famously put it, we should not follow a rule of law simply because ‘it was laid down in the time of Henry 4th’, particularly where ‘the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past...Here, the roots of the Barbetta rule snake back into a wholly different world. Instead of nineteenth-century steamships...we now confront state-of-the-art cruise ships that house thousands of people and operate as floating cities...In place of truly independent doctors and nurses, we must now acknowledge that medical professionals routinely work for corporate masters”.

A One-Sided Contractually Defined Relationship Until recently, the relationship between travelers and suppliers, including cruiseships and tour operators was governed by contracts, often printed in nearly invisible print and loaded with self-serving and unconscionable clauses, both substantive and procedural in nature. These contracts, irregardless of whether the traveler saw or agreed to the terms therein, were routinely enforced. Indeed, there were cases which held that promises made in advertising material would not be enforced because they were disclaimed or limited by contractual clauses. In essence, the suppliers or tour operator’s contractual definition of their relationship to the consumer

251 was nearly universally enforced by the Courts.

The Franza Case However, in Franza the Court noted that it is not the contract that should define the relationship between cruiseship and passenger but the facts of each case. “Royal Caribbean urges us to look beyond the complaint, to (the) passenger ticket contract...which purports to limit the ship’s liability for onboard medical services...even if we were to look to the contract at this stage, we would not consider the nurse and doctor to be independent contractors simply because that is what the cruise line calls them”. As noted by Michael Drennen in Captaining The Ship Into Culpability, Tulane Maritime Law Journal “This point strikes an ominous chord for cruise ship companies like Royal Caribbean which-in conjunction with the Barbetta rule-have faithfully relied on contractual limitation of liability clauses like the one in Franza to insulate them from imputed liability”.

Shore Excursions Big Business For Cruise Lines Shore excursions are big business for the cruise lines

[ See e.g., Perrin, What I Learned Moonlighting as a Cruise Ship Trainee www.cntraveler.com/perin-post/2013/04 (“Cardozo works year-round, planning, scheduling and executing shore excursion for demanding passengers...These day trips are big business for the cruise lines: Royal Caribbean expects Navigator of the Seas to earn between $600,000 and $1,100,000 per week in onboard revenue, including tour sales”); Carothers, Cruise Control, Stop Press, Conde Nast Traveler, July 2006, p. 56.( “ Almost half of all cruise passengers-some five million a year-participate in shore excursions ranging from simple bus tours in port cities to more adventurous activities such as scuba diving trips and hot-air balloon rides. Excursions sold by a cruise line are generally the most convenient to book, and therefore are often more crowded-and more expensive-than those purchased independently... Perhaps, the safest bet is to purchase shore excursions through the cruise lines. Serious accidents on these trips are

252 extremely rare although the lines disclaim any liability for mishaps that occur on these excursions, they say that they make every effort to ensure that the businesses they work with are licensed and reputable...” ); Solomon, Voyage to the Great Outdoors, New York Times Travel Section, October 2, 2005 at p. 12.( “ 250 passengers from a Carnival cruise ship had signed up and paid $93 for the experience of floating in inner tubes through a rain forest cave...Cruise lines now offer a buffet of shore excursions for their guests at every port of call...Passengers can attend a race-car academy in Spain, get their scuba diving certificate in the Virgin Islands and even take a spin in a MIG fighter jet in Russia “). Cruise lines actively promote shore excursions [See Perry v. Hal Antillen NV, 2013 WL 2099499 (W.D. Wash. 2013)(shore excursion accident; discussion of relationships between cruiseline, ground tour operator and subcontractor transportation providers; theories of liability); Gayou v. Celebrity Cruises, Inc., 2012 WL 2049431 (S.D. Fla. 2012)(cruise passengers sustained injuries riding zip-line); McLaren v. Celebrity Cruises, Inc., 2012 WL 1792632 (S.D. Fla. 2012)(cruise passenger injured disembarking snorkeling tour boat); Smolnikar v. Royal Caribbean Cruises Ltd., 787 F. Supp. 2d 1308 (S.D. Fla. 2011)(cruise line passenger injured while participating in a “zip line” excursion tour in Montego Bay, Jamaica operated by independent contractor Chukka Caribbean Adventures); Koens v. Royal Caribbean Cruises Ltd., 774 F. Supp. 2d 1215 (S.D. Fla. 2011)(cruise passengers robbed and assaulted in tour of Earth Village)].

Development Of New Duties In an effort, perhaps, to circumvent the independent contractor defense, and faced with cases involving foreign ground providers not subject to U.S. long arm jurisdiction, the Courts a few years ago began applying common law principals to the liability of tour operators for tourist accidents abroad and, more recently, in the maritime context, to cruiselines for shore excursion accidents. In so doing these Courts have recognized several new duties to travelers and passengers.

253 Breach Of Warranty Of Safety A warranty of safety may arise when a travel purveyor promises in a brochure that some or all of the travel services will be delivered in a safe or careful manner and it can be shown that the tourist relied on such representations. For example, terms such as “highly skilled boatmen” [Chan v. Society Expeditions, Inc.,______], “unsinkable boats” [Wolf v. Fico Travel,______], “safe buses” [Rovinsky v. Hispanidad Holidays, Inc.,______], “perfectly safe” canoeing conditions [Glenview Park District v. Melhus, ______], “perfectly safe” catamaran ride [Wolff v. Holland America Lines,______] and describing cliff jumping as “an approved and safe activity” [______], may require the travel purveyor to actually deliver on the warranty.

Negligent Selection Of A Supplier Or Ground Services Provider. In an early case in 1992, Winter v. I.C. Holidays, Inc.,______the Court found a tour operator liable for the negligent selection of a foreign bus company which was not only negligent but was also insolvent, uninsured and otherwise unavailable to satisfy the claim of the injured travelers. Recently, the courts have recognized this duty.

The Zapata Case For example, in Zapata v. Royal Caribbean Cruises, Ltd., 2013 WL 1296298 (S.D. Fla. 2013) the cruise passenger purchased excursion tickets onboard the cruise ship featuring “bell diving” during which decedent was asphyxiated, brought to the surface for oxygen but unfortunately the oxygen tank was empty whereupon decedent became unconscious and died.[claims against cruise line RCCL governed by Death on the High Seas Act (DOHSA) eliminating recovery of non-pecuniary damages; claims for negligent selection or retention of excursion operators and apparent agency or agency by estoppel legally sufficient if appropriate facts repleaded; claims of joint venture and third party beneficiary theory dismissed as expressly disclaimed in Tour Operator Agreement].

254 The Perry Case In Perry v. Hal Antillen NV, 2013 WL 2099499 (W.D. Wash. 2013)the cruise passenger returning from a cruiseship recommended and promoted shore excursion, was run over by shore excursion tour bus. [extensive discussion of liability issues regarding cruiselines which recommended and promoted shore excursion, local ground operator and tour bus that transported cruise passengers to and from shore excursion; liability theories include agency by estoppel, third party beneficiary, failure to disclose, negligent selection, joint venture, warranty of safety, negligent supervision and damages limitation under Washington’s Consumer Protection Statute].

The Gibson Case In Gibson v. NCL (Bahamas) Ltd., 2012 WL 1952667 (S.D. Fla. 2012) the cruise passenger was injured attempting to board “‘Jungle Bus’ to transport her to a zipline tour in the Mexican jungle”. [no causes of action for negligent selection to excursion operator or “Jungle Bus”, failure to warn and negligent supervision; but causes of action stated for apparent authority and joint venture].

The Reming Case In Reming v. Holland America Line, Inc., 2013 WL 594281 (W.D. Wash. 2013) the cruise passenger fell into a sink hole during shore excursion in Mazatlan City. [cruise ship contract clause disclaiming liability for negligent selection of local tour bus company unenforceable thus expanding the scope 26 U.S.C. § 30509 from accidents onboard to shore excursion accidents; cause of action for negligent selection of excursion operator stated; “HAL has failed to provide any evidence or argument regarding HAL’s inquiry into Tropical Tour’s competence and fitness as an excursion provider. Therefore, Plaintiff’s claim regarding HAL’s (negligent) selection and retention of Tropical Tours remains for trial].

255 Duty To Warn Of Dangerous Environments In Chaparro v. Carnival Corporation, 693 F. 3d 1333 (11th Cir. 2012) the passengers took a cruise aboard Carnival’s M/V Victory during which a Carnival employee urged plaintiffs to visit Coki Beach and Coral World which plaintiffs did. “On their way back to the ship from Coki Beach (plaintiffs) rode an open-air bus past a funeral service of a gang member who recently died in a gang-related shooting near Coki Beach...While stuck in traffic, gang-related retaliatory violence erupted at the funeral, shots were fired and Liz Marie was killed by gunfire which she was a passenger on the bus”; motion by Carnival to dismiss denied, claim stated for failure to warn; complaint alleged, inter alia, “Carnival was familiar with Coki Beach because it sold excursion to passengers to Coki Beach; Carnival generally knew of gang violence and public shootings in St. Thomas; Carnival knew of Coki Beach’s reputation for drug sales, theft and gang violence...Carnival failed to warn (passengers) of any of these dangers; Carnival knew or should have known of these dangers because Carnival monitors crime in its ports of call; Carnival’s negligence in encouraging its passengers to visit Coki Beach and in failing to warn disembarking passengers of general or specific incidents of crime in St. Thomas and Coki Beach caused Liz Marie’s death”).

Third Party Beneficiary Theory The Perry Case In Perry v. Hal Antillen NV, 2013 WL 2099499 (W.D. Wash. 2013) the cruise passenger was run over by a tour van hired as a subcontractor by the tour operator Rain Forest Aerial Tram, Ltd.(RFAT). RFAT had entered into a contract with the cruiselines (HAL) and executed a copy of a manual entitled ‘Tour Operator Procedures and Policies”(TOPPS). TOPPS required “a tour operator in the Caribbean to obtain minimum limits of auto and general liability insurance of ‘US$2.0 million/accident or occurrence’... [s]hould the Operator subcontract for services (such as aircraft, rail, tour buses or watercraft), the Tour Operator must provide a list of its subcontractors and evidence of the subcontractor’s insurance”. The cruiseline asserted that RFAT “was

256 ‘required to assure that any subcontractor it used to provide excursion related services had in place the equivalent USD 2,000,000 in auto and general liability coverage”. Here, it was discovered after the accident that the tour van operator only had $85,000 in insurance coverage and the Court held that the plaintiffs were third party beneficiaries of TOPPS and had a claim against RFAT for failing to disclose to HAL that tour van operator was a subcontractor and was only insured up to $85,000).

The Haese Case In Haese v. Celebrity Cruises, Inc., 2012 A.M.C. 1739 (S.D. Fla. 2012) the plaintiff and her mother were parasailing in tandem during shore excursion when “the guide rope supporting them broke and both women fell into the water”. As a result mother died and daughter sustained “catastrophic injuries” [causes of actions based upon third party beneficiary theory and joint venture stated)].

Apparent Agency/Agency By Estoppel On-Board Medical Malpractice

Traditionally, cruise ships have not been held vicariously liable for the medical malpractice of the ship’s doctor or medical staff [Barbetta v. S/S Bermuda Star, 848 F. 2d 1364 ( 5th Cir. 1988 )]. Policy Unfair This policy was unfair and has been criticized by some Courts [ see e.g., Nietes v. American President Lines, Ltd., 188 F. Supp. 219 ( N.D. Cal. 1959 )( cruise ship vicariously liable for medical malpractice of ship’s doctor who was a member of the crew ) and commentators [ See e.g., Herschaft, Cruise Ship Medical Malpractice Cases: Must Admiralty Courts Steer By The Star Of Stare Decisis, 17 Nova L. Rev. 575, 592 ( 1992 ). ( “ It would be in the best interests of the traveling public for admiralty courts to revoke this harsh policy of holding carriers harmless for the torts of physicians engaged by them. However, if admiralty courts continue to exonerate carriers in passenger medical

257 malpractice cases, there are three possible ways to provide better care to travelers: First, the legislature can amend current statutory descriptions of a ship’s staff so that a doctor is specified as an employee of the carrier; second, passengers can invoke the doctrine of agency by estoppel; and third, a shipping company may indemnify itself against potential medical malpractice claims “ )]

The Carlisle Case In Carlisle v. Carnival Corp., 2003 Fla. App. LEXIS 12794 ( Fla. App. 2003 ) a 14 year old female passenger became “ ill with abdominal pain, lower back pain and diarrhea and was seen several times in the ship’s hospital by the ship’s physician “ who misdiagnosed her condition as flu when, in fact, she was suffering from an appendicitis. After several days of mistreatment the she was removed from the cruise ship, underwent surgery after the appendix ruptured and was rendered sterile. In rejecting a long line cases in the 5th Circuit absolving cruise ships for the medical malpractice of a ship’s doctor, the Carlisle Court stated “ The rule of the older cases rested largely upon the view that a non-professional employer could not be expected to exercise control or supervision over a professionally skilled physician. We appreciate the difficulty inherent in such an employment situation, but we think that the distinction no longer provides a realistic basis for the determination of liability in our modern, highly organized industrial society. Surely, the board of directors of a modern steamship company has as little professional ability to supervise effectively the highly skilled operations involved in the navigation of a modern ocean carrier by its master as it has to supervise a physician’s treatment of shipboard illness. Yet, the company is held liable for the negligent operation of the ship by the master. So, too, should it be liable for the negligent treatment of a passenger by a physician or nurse in the normal scope of their employment, as members of the ship’s company, subject to the orders and commands of the master. “. Unfortunately, the Florida Supreme Court reversed this decision in Carlisle v. Carnival Corp., 953 So. 2d 461 (Fla. Sup. 2007).

Pre-Franza Cases

258 Recently, however, a few courts have allowed the victims of medical malpractice to assert a claim against the cruiseline based on apparent agency and negligent or fraudulent misrepresentations [See Lobegeiger v. Celebrity Cruises, Inc., 2911 WL 3703329 (S.D. Fla. 2011)(“Plaintiff alleges Celebrity ‘held out’ Dr. Laubscher as an officer of the ship’s crew ‘through his title, his uniform, his living quarters on board the ship and his offices on board the ship’...Taking these allegations as true, Plaintiff has sufficiently alleged that Celebrity made manifestations which could cause Plaintiff to believe Dr. Laubscher was an agent of Celebrity”; cause of action for fraudulent misrepresentation stated); Lobegeiger v. Celebrity Cruises Inc., 2012 WL 2402785 (S.D. Fla. 2012)(summary judgment for defendant on apparent agency theory of liability for medical malpractice); Hill v. Celebrity Cruises, Inc., 2011 WL 5360247 (S.D. Fla. 2011)(no actual agency; no apparent agency; but misrepresentation that ship would have two doctors but only provided one stated claim for negligent misrepresentation).

The Franza Case In Franza v. Royal Caribbean Cruises, Ltd., 772 F. 3d 1225 (11th Cir. 2014) an elderly cruise passenger, Pasquale Vaglio, fell and bashed his head while on shore. Allegedly due to the “negligent medical attention” that he received from the ship’s Doctor and Nurse his life could not be saved. “In particular the ship’s nurse purportedly failed to assess his cranial trauma, neglected to conduct an diagnostic scans and released with no treatment to speak of. The onboard doctor, for his part, failed to meet with Vaglio for nearly four hours...Vaglio died about a week later”.

Indicia Of Apparent Agency “For starters, Franza’s complaint plausibly established: (1) that Royal Caribbean ‘acknowledged’ that Nurse Garcia and Dr. Gonzalez would act on its behalf and (2) that each ‘accepted’ the undertaking. Most importantly, Franza specifically asserted that both medical professionals were ‘employed by’ Royal Caribbean, were ‘its employees or agents’ and were ‘at all times material acting within the scope and course of [their]

259 employment... Furthermore, the cruise line directly paid the ship’s nurse and doctor for their work in the ship’s medical center. Third, the medical facility was created, owned and operated by Royal Caribbean, whose own marketing materials described the infirmary in proprietary language...Fourth, the cruise line knowingly provided, and its medical personnel knowingly wore, uniforms bearing Royal Caribbean name and logo. And, finally, Royal Caribbean allegedly represented to immigration authorities and passengers that Nurse Garcia and Dr. Gonzalez were ‘members of the ship’s crew’ and even introduced the doctor ‘as one of the ship’s Officers. Taken as true, these allegations are more than enough to satisfy the first two elements of actual agency liability”.

Barbetta Overruled “We decline to adopt the rule explicated in Barbetta because we can no longer discern a sound basis in law for ignoring the facts alleged in individual medical malpractice complaints and wholly discarding the same rules of agency that we have applied so often in other maritime tort cases”

Apparent Agency Applies “We are the first circuit to address whether a passenger may use apparent agency principals to hold a cruise line vicariously liable for the onboard medical negligence of its employees...we conclude that 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...The federal circuits have made only passing references to apparent agency principals in maritime tort cases...Nonetheless, given the broad salience of agency rules in maritime law...and the important role the federal courts play in setting the bounds of maritime torts...we think apparent agency principals apply in this context. Indeed, the equitable foundations of apparent agency are just as important in tort as in contract...Having long applied the principals of apparent agency in maritime cases, we discern no sound basis for allowing

260 a special exception for onboard medical negligence, particularly since we have concluded that actual agency principals ought to be applied in this setting as well”

Additional Cruise Cases Discussing New Liability Theories The Witover Case In Witover v. Celebrity Cruises, Inc., 2016 WL 661065 (S.D. Fla. 2016) a disabled passenger using a scooter disembarking for shore excursion fell to the ground and the scooter fell on top of her. The Court discussed several liability theories including breach of contract, duty to warn of foreseeable danger, negligent retention of tour operator and vicarious liability for tour operator negligence.

The Richards Case In Richards v. Carnival Corporation, 2015 WL 1810622 (S.D. Fla. 2015) the cruise passenger was injured during a shore excursion tour when the ATV he was riding “flipped over throwing the Plaintiff off’”. The Court discussed various liability theories including various alleged negligent acts, apparent agency or agency by estoppel, joint venture between cruiseline and ground operator and negligent misrepresentation.

Assumption Of Duty/Due Diligence Investigations

Some cruiselines make a concerted effort to perform due diligence in the selection of shore excursion operators [See e.g., Smolnikar v. Royal Caribbean Cruises Ltd., 787 F. Supp. 2d 1308 (S.D. Fla. 2011)(cruise line passenger injured while participating in a “zip line” excursion tour in Montego Bay, Jamaica operated by independent contractor Chukka Caribbean Adventures Ltd. (Chukka); Court addressed three theories of liability against the cruiseline one of which was the negligent selection of the zip line operators finding that based on Florida law the cruise line had such a duty which could not be disclaimed (46 U.S.C. 30509); “Under Florida law, a principal may be subject to liability ‘for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor...Where such a duty

261 exists, a plaintiff bringing a claim for negligent hiring or retention of an independent contractor must prove that ‘(1) the contractor was incompetent or unfit to perform the work; (2) the employer knew or reasonably should have known of the particular incompetence or unfitness and (3) the incompetence or unfitness was a proximate cause of the plaintiffs injury’...In determining whether Royal Caribbean knew or reasonably should have known of (Chukka’s) alleged incompetence...the relevant inquiry is whether Royal Caribbean diligently inquired into (Chukka’s) fitness...Royal Caribbean has provided...a multitude of reasons why it found (Chukka) to be a competent and suitable zip line tour operator before and while it was offering the Montego Bay zip line tour. Those reasons include (1) that Royal Caribbean had an incident-free relationship was Chukka dating back 4-5 years before offering the Montego Bay tour, (2) that it had never been made aware of any accidents occurring on any of Chukka’s other tours, (3) the positive feedback received from Royal Caribbean passengers who participated in Chukka’s other tours, (4) Chukka’s reputation as a first class tour operator...(7) that at least two other major cruise lines had been offering the Montego Bay zip line tour for approximately one year, (8) that it had sent representatives to participate on the tour and there was no negative feedback...(12) that it never received any accident reports from Chukka pertaining to the Montego Bay tour. These indicate that Royal Caribbean’s inquiries were diligent and that its decisions (in selecting Chukka) were reasonable”).

Update On Litigation Roadblocks In our 2014 Tulane Maritime Law Journal articleii on cruise passenger rights we enumerated several substantive and procedural litigation roadblocks which make it difficult, if not impossible, to efficiently and fairly prosecute cruise passenger claims.

The Limitation Of Liability Act The Limitation Act, 46 U.S.C. 30501 et al, established in 1851 “is premised on the notion that a vessel owner should not be liable beyond the value of the vessel for

262 incidents that occur outside the owner’s control in the inherently risky business of the sea...The defense recently appeared on the general public’s radar screen again when the ill fated cargo ship EL FARO sank will all hands en route to Puerto Rico in October 2015. On October 30, 2015, attorneys for Tote Maritime, owners of the EL FARO filed a petition for exoneration or limitation of liability in a Florida federal district court...Although the EL FARO is a total loss (with zero value) the limitation fund filed by its owner is $15,309,003-a figure comprised of $2,072,703 for ‘pending freight’ (as the statute requires) and...$20 per gross ton to increase the fund in respect to injury or death claims”iii. “Since its inception, general maritime law (case law) has succeeded in expanding the reach of the Limitation Act to ‘vessels’ outside the realm of commercial shipping, such as yachts, pleasure craft and even jet skis”iv. The Limitation Act should be modified or repealed, especially as it relates to cruise ships and jet skis. In 2010 a bill entitled “Fairness in Admiralty and Maritime Law Act” was introduced in the U.S. House of Representatives calling for the repeal of the Limitation Act. “It was considered by the Senate on July 15, 2010, before being sunk by the Committee on Commerce, Science and Transportation later that year”v.

Time Limitations As noted in 2014 the time limitations for making a claim and filing a lawsuit for physical injuries [six months to file claim, one year to commence a lawsuit] and non-physical injury claims [thirty days to file claim, ninety days to commence a lawsuit] are way out of sync with land based statutes of limitations for commencing similar lawsuits running the spectrum from 2.5 years [physical injury] to 6 years [breach of contract, fraud].

Jurisdiction There has been little change in asserting personal jurisdiction over out of state travel purveyors such as the cruiselines based in the states of Florida, New York and

263 Washington through the marketing efforts of travel agents and Internet travel sellers. The “solicitation plus doctrine” still remains the rule in many jurisdictions.

Forum Selection And Mandatory Arbitration Clauses There has been little change in the enforceability of forum selection clauses including federal forum selection clauses in cruise passenger contracts. Even within the context of often misleading and deceptive Internet marketing, forum selection, choice of law and mandatory arbitration clauses, often lurking in hyper-links, have been enforced with some exceptions. [See our article Dickerson & Berman, Consumers’ Loss of Rights in the Internet Age, New York State Bar Association Journal, ______.]. Although there still may be some dispute over what constitutes adequate notice of such clauses before purchase and before boarding the cruise ship [See Dickerson, Forum Selection Clauses in Travel Contracts: Should Adequate Notice Be Required, New State Bar Association NYLitigator (Spring 2016) Vol. 21, No. 1] they are still routinely enforced. As far as mandatory arbitration clauses coupled with class action and class arbitration waivers [See Gilroy v. Seabourne Cruise Line, Ltd., 2012 WL 1202343 (W.D. Wash. 2012)] are concerned they may or may not be enforceable based upon common defenses of fraud, duress and unconscionability [See Dickerson & Chambers, Challenging ‘Concepcion’ in New York State Courts, New York Law Journal (12/29/2015)].

Disclaimers Of Liability As we noted above disclaimers of liability for the tortuous and contractual misconduct of ship’s medical personnel and of shore excursion ground operators are no longer enforced with rigidity that they once were. New theories of cruiseline liability have rapidly sprouted and been welcomed by many courts.

Athens Protocol

264 The Athens Protocol was approved by the European Union and ten individual countries and went into effect on April 23, 2014. It does not apply to cruiseships that depart from and return to U.S. ports unless a Court decides otherwise if the passenger contract mentions the Athens Convention and the limitation amount [See Wallis v. Princess Cruises, Inc., 306 F. 3d 827 (9th Cir. 2002)]. The impact of this new regime remains to be seen but for the 20% of U.S. citizens that cruise on ships that do not touch U.S. ports, it substantially increases recoverable damages for injury or death claims. The new protocol makes the cruise line liable up to 250,000 SDRs and for more damages the limit is 400,000 SDRs. The new protocol has a two-tier provision for liability. The first is strict liability for personal injury and death caused by a ‘shipping incident’ defined as “shipwreck, capsizing, collision or stranding of the ship, explosion or fire of the ship or a defect in the ship”. A “defect in the ship” is “any malfunction, failure or non-compliance with applicable safety regulations with respect to any part of the ship or its equipment when used for the escape, evacuation, embarkation and disembarkation of passengers, or when used for the propulsion, steering, safe navigation, mooring, anchoring, arriving at or leaving berth or anchorage or damage control after flooding or when used for the launching of life-saving appliances”.

Conclusion Cruise vacations can be wonderful experiences. However, potential cruise passengers are well advised t think carefully about their legal rights should they be dissatisfied, injured, or worse while traveling on a cruise vacation.

ENDNOTES i. Dickerson, The Cruise Passenger’s Dilemma: Twenty-First-Century Ships, Nineteenth-Century Rights, 28 Tul. Mar. L.J. 447 (2004). ii. Dickerson, The Cruise Passenger’s Rights And Remedies 2014: The COSTA CONCORDIA Disaster: One Year After, Many More Incidents Both On Board Megaships And During Risky Shore Excursions, 38 Tul. Mar. L.J. 515 (2014).

265 iii. Mercante, Admiralty’s Arsenal: Limitation of Liability, New York Law Journal (2/24/2016). iv.Id. v. Id.

266 TRAVEL LAW: AVOID DANGEROUS VACATIONS 2016

Submitted By:

HON. THOMAS A. DICKERSON Appellate Division, Second Department Brookyn, NY

267 268 TRAVEL LAW: AVOID DANGEROUS VACATIONS 2016

July 20, 2016

By Thomas A. Dickersoni

[May Not Be Reproduced Without The Permission Of Thomas A. Dickerson]

Planning a vacation? Please consider, among other things, your planned destination and the incidence of criminal activity, terrorism and disease in the local environment as well as the nature and type of accidents which tourists have previously sustained running the spectrum from wrongful death to slip, trips and falls. This is the fourth year that we have posted dangerous destination information collected from news articles and reported law cases.

The Safest Destinations

In D’Ambrosio, Peace Index Rates The Safest Destinations, www.travelmarketreport.com (6/20/2016) it was noted that “Iceland,

Denmark and Austria are the three safest countries in the world. That’s the finding of this year’s Global Peace Index (GPI) published annually by the Institute of Economic and Peace. The study rates 163 countries

269 based on 23 factors, including violent crime, political terror, import/export of weapons, refugee influx and violent demonstrations.

Rounding out the Top Ten peaceful destinations are New Zealand,

Portugal, the Czech Republic, Switzerland, Canada, Japan and

Slovenia”.

Health Issues Abroad

As noted in Tourism: 49 percent of the health problems when traveling related to the destination, www.eturbonews.com (6/25/2015)

“Observatory (TIO) with the support of the World Tourism Organization

49 percent of the health problems affecting tourists and travelers when they visit other countries are related to the county of destination, such as gastrointestinal or respiratory infections. 26 percent of the problems faced by travelers have to do with trauma, especially fractures”.

Organization Of This Treatise

The information in this treatise is categorized by region, types of accidents and by country and includes some discussions about liability theories, personal jurisdiction, forum non conveniens and choice of law. Included in these misadventures is a section on Behaving

270 Yourself while abroad and being arrested for failing to respect local customs and traditions1.

THE CARIBBEAN

The Caribbean is a very popular destination for United States citizens and others arriving by cruise ship or aircraft. There are many tourist accidents in the Caribbean some of which involve criminal activity.

[I] WRONGFUL DEATH

Wrongful death claims have arisen from accidents occurring in

Antigua2, Aruba3, Bahamas4, Bermuda5, British Virgin Islands6, Cuba7,

Dominica8, Dominican Republic9, Great Shrimp Cay10, Jamaica11,

Martinique12, Nassau13, Puerto Rico14, St. Maarten15, St. Thomas16,

Trinidad & Tabago17 and Turks and Caicos Islands18.

[II] ASSAULTS, ROBBERIES & TERRORISM

Robberies and assaults are quite common in the Caribbean19 have taken place in the Bahamas20, Barbados21, Cayman Islands22, Jamaica23,

Puerto Rico24, St. Kitts25, St. Lucia26 and St. Thomas27.

271 [III] RAPES, SEXUAL ASSAULTS & KIDNAPING

Rapes, sexual assaults and child molestations have taken place in Bahamas28, Barbados29, British West Indies30, Cayman Islands31,

Jamaica32, St. Thomas33 and Turks and Caicos34.

[IV] WATER SPORTS

Accidents involving water sports have taken place in Aruba35,

Bahamas36, British Virgin Islands37, Cayman Islands38, Cuba39,

Dominica40, Dominican Republic41, Grenada42, Jamaica43, Netherlands

Antilles44, Puerto Rico45, St. Lucia46, Turks & Caicos47 and U.S. Virgin

Islands48.

[V] SLIP & FALLS & VARIOUS OTHER INJURIES

Slips, trips, falls and various other injuries have taken place in Antigua49, Aruba50, Bahamas51, Barbados52, Bermuda53, British Virgin

Islands54, Dominican Republic55, Haiti56, Jamaica57, Puerto Rico58, St.

Kitts59, St. John60 and St. Thomas61.

[VI] RIDING, VIEWING AND BEING ATTACKED BY ANIMALS

272 Accidents involving animals have taken place in the Bahamas62,

Jamaica63, Nassau64 and Puerto Rico65.

[VII] TRANSPORTATION

Transportation accidents have taken place in the Bahamas66,

Bimini67, Dominica68, Dominican Republic69,Jamaica70 Florida: Tracy v. VRL Operators, Ltd., Case No: 50 2006 CA 005719, Fla. Cir. Ct.

Palm Beach Cty ( Jan. 29, 2008 )( after stay at Hedonism III in Ocho

Rios, Jamaica tourist injured in tour bus accident ), aff’d 985 So.

2d 1101 ( Fla. App. 2008 ))., St. Lucia71, St. Maarten72, St. Thomas73,

Trinidad74 and the U.S. Virgin Islands75.

[VIII] DISEASE, FOOD POISONING & MEDICAL MALPRACTICE

Tourists are well advised not to rely on foreign clinics and medical professionals when a physical injury occurs. The best course of action for an injured tourist is to return to the U.S. as fast as possible for medical care. Medical malpractice and the contraction of disease has taken place in the Bahamas76, Barbados77

Dominican Republic78, Netherlands Antilles79 and Puerto Rico80.

273 CENTRAL & SOUTH AMERICA, CANADA & UNITED STATES

Destinations in Central and South America generate accidents similar to those in the Caribbean. Mexico, in particular, has invested extraordinary sums in developing many beach destinations on both coasts and as a result has the highest number of travel accidents in this region.

[I] WRONGFUL DEATH

Accidents involving wrongful death have taken place in

Argentina81, Belize82, Brazil83, California84, Canada85, Chile86,

Columbia87, Costa Rica88, Florida89, Honduras90, Mexico91, New York92,

Panama93, Philadelphia94, Peru95 and Venezuela96.

[II] ASSAULTS, ROBBERIES & TERRORISM

Assaults and robberies have taken place in California97,

Ecuador98, Florida99, Georgia100, Mexico101, New York102, Peru103 and

Belize104.

[III] RAPES, SEXUAL ASSAULTS & KIDNAPING

Rapes and sexual assaults have taken place in Brazil105, the

Galapagos Islands106 and Mexico107.

274 [IV] WATER SPORTS

Accidents involving water sports have taken place in Canada108,

Costa Rica109( Ill. App. 1998 )( tourist purchased a fishing vacation tour to Costa Rica from travel agent Fish & Game Frontiers with accommodations at Rio Parismina Lodge; tourist joins fishing trip and is injured when his boat is swamped by waves as river empties into ocean ). and Mexico110.

[V] SLIP & FALLS AND VARIOUS OTHER ACCIDENTS

Accidents involving major and minor injuries have taken place in Argentina111, Belize112, Brazil113, Canada114, Costa Rica115,

Ecuador116, Mexico117 and Peru118.

[VI] RIDING, VIEWING & BEING ATTACKED BY ANIMALS

Accidents involving animals have taken place in Brazil119,

Canada120, Florida121, and Mexico122

[VII] TRANSPORTATION

Transportation accidents have taken place in Argentina123,

275 Bolivia124, Canada125, Costa Rica126, Mexico127, Philadelphia128 and

Virgin Islands129.

[VIII] DISEASE, FOOD POISONING & MEDICAL MALPRACTICE

Medical malpractice and the contraction of diseases have taken place in Belize130, Costa Rica131, Mexico132 and New York133

AFRICA, MIDDLE EAST, ASIA & THE PACIFIC

Africa, Asia, The Middle East and the Pacific nations are attracting ever greater numbers of tourists while at the same time attracting terrorists, pirates and very scary diseases like Ebola.

[I] WRONGFUL DEATH

Travel accidents involving wrongful death have taken place in

Afghanistan134, Algeria135, Australia136, Bali137, Bangladesh138,

Botswana139, Cameroon140; Cape Verde Islands141, China142, Congo143, East

Java144, Egypt145, French Polynesia146, Ghana147, Hong Kong148, India149,

Indonesia150, Iraq151, Jordan152, Kenya153, Laos154, Malaysia155,

Maldives156, Mali157, Myanmar158, Nepal159, New Caledonia160, New

Zealand161, Nigeria162, North Korea163; Pakistan164, Philippines165, Red

276 Sea166, Saudi Arabia167 Somalia168, South Africa169, South Korea170,

Sudan171, Taiwan172, Tanzania173, Tibet174, Thailand175, Tunisia176,

Turkey177, Uganda178 and Yemen179.

[II] ASSAULTS, ROBBERIES & TERRORISM

Assaults and robberies have taken place in Afghanistan180,

Algeria181, Australia182, Bali183, Bangladesh184, Cape Verde Islands185,

China186, Dubai187, Egypt188, Ethiopia189, Fiji190, India191, Irag192,

Israel193, Kenya194, Libya195, Malaysia196, Mali197, Mongolia198,

Mozambique199, Nigeria200, Pakistan201, Saudi Arabia202, Somalia203,

South Africa204, Tanzania205, Thailand206, Tunisia207, Turkey208,

Uzbekistan209, Vietnam210, Zaire211, Zanzibar212, Zimbabwe213 and the

Indian Ocean waters off the coast of Somalia214.

[III] RAPES, SEXUAL ASSAULTS, KIDNAPING & PIRACY

Rapes and sexual assaults have taken place in Australia215,

Dubai216, Egypt217, India218, Israel219, Malaysia220, Nepal221 and

Thailand222. Kidnaping and piracy continue to be a problem in this region223.

[IV] WATER SPORTS

277 Accidents involving water sports have taken place in China224,

Fiji225, Gabon226, Guam227, Hong Kong228, Indonesia229, Laos230, Northern

Mariana Islands231, Tahiti232, Taiwan233 and Thailand234.

[V] SLIP & FALLS, FIRES & VARIOUS OTHER ACCIDENTS

Slips, trips and falls and various other injuries have taken place in Australia235, China236, Egypt237, Fiji238, Hong Kong239,

Indonesia240, Israel241, Japan242, Jordan243, Kenya244, Northern Mariana

Islands245, Philippines246, Saudi Arabia247, South Africa248,

Tanzania249, Turkey250 and Wake Island251.

[VI] RIDING, VIEWING AND BEING ATTACKED BY ANIMALS

Accidents involving animals have taken place in Australia252,

Egypt253, Namibia254, New Caledonia255, South Africa256, Sri Lanka257, and Thailand258.

[VII] TRANSPORTATION

Transportation accidents have taken place in, Australia259,

Bali260, Bangladesh261, China262, Congo263, Egypt264, Fiji265, French

278 Polynesia266, Gabon267, Ghana268, India269, Israel, Jordan, Kenya270,

Macau271, Malaysia272, Malawi273, Mali274, Morocco275, Myanmar276,

Nepal277, New Zealand278, Philippines279, South Africa280, South Korea281,

Sudan282, Taiwan283, Tanzania284, Thailand285, Turkey286 and Vietnam287.

[VIII] DISEASE, FOOD POISONING & MEDICAL MALPRACTICE

Incidents of medical malpractice and the contraction of disease have taken place in China288awarded total damages of $41,750,000; disclaimer not enforced)., Dubai289, Fiji290, Guinea291, India292,

Kenya293, Liberia294, Lebanon295, Nigeria296, Saudi Arabia297,Sierra

Leone298, South Korea299, Sudan300 and Uganda301.

ARCTIC, ANTARCTIC, EUROPE, RUSSIA & CENTRAL ASIA

From frozen waste lands to old and traditional venues travel accidents occur here as well.

[I] WRONGFUL DEATH

Wrongful deaths have taken place in Albania302, Austria303,

Belgium304, Britain305, Bulgaria306, France307, Germany308, Greece309,

Hungary310, Iceland311, Italy312, Kazakhstan313, Mallorca314, Malta315,

279 Norway316, Portugal317, Russia318, Spain319, Switzerland320,

Tajikistan321, Turkey322 and Ukraine323.

[II] ASSAULTS, ROBBERIES & TERRORISM

Assaults, robberies and terrorist acts have taken place in

Belgium324, Britain325, Bulgaria326, Dagestan327, France328, Greece329,

Ireland330, Italy331, Poland332, Scotland333, Tajikistan334 and

Ukraine335.

[III] RAPES, SEXUAL ASSAULTS & KIDNAPING

Rapes and sexual assaults have taken place in France336 and kidnapings in Cyprus337 and Pakistan338.

[IV] SLIP & FALLS AND VARIOUS OTHER ACCIDENTS

Slip and falls and other injuries have taken place in Czech

Republic339, England340, France341, Greece342, Hungary343, Ireland344,

Italy345, Russia346 and Spain347.

[V] RIDING. VIEWING & BEING ATTACKED BY ANIMALS

280 Riding accidents have taken place in Greece348, alligators have been reported in Spain349, polar bears attack tourists in Norway350 and seagulls terrorize tourists in Wales351.

[VI] TRANSPORTATION

Transportation accidents have taken place in Antarctica352,

Austria353, England354, France355, Germany356, Greece357, Holland358,

Hungary359 Italy360, Kazakhstan361, Poland362, Portugal363, Rumania364,

Russia365, Scotland366, Spain367 and Ukraine368.

[VII] DISEASE, FOOD POISONING & MEDICAL MALPRACTICE

Medical malpractice and the contraction of disease have taken place in Europe369, Germany370, Greece371, Italy372, Slovakia373 and

Ukraine374.

ENDNOTES

281 i Thomas A. Dickerson is an Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court.http://www.nycourts.gov/courts/9jd/taxcert.shtmlhttp://memb ers.aol.com/judgetad/index.html. Justice Dickerson is the author of Travel Law, Law Journal Press, 2016; Class Actions: The Law of 50 States, Law Journal Press, 2016; ;http://members.aol.com/travellaw/index.html, Article 9 [New York State Class Actions] of Weinstein, Korn & Miller, New York Civil Practice CPLR, Lexis-Nexis (MB), 2016; Consumer Protection Chapter 111 in Commercial Litigation In New York State Courts: Fourth Edition(Robert L. Haig ed.)(West & NYCLA 2016); Dickerson, Gould & Chalos, Litigating Foreign Torts in United States Courts, Thomson-Reuters (West) 2016 http://members.aol.com/class50/index.html,and over 400 articles and papers on consumer law, class actions, travel law and tax certiorari and eminent domain issues, many of which are available at http://www.eturbonews.com; www.courts.state.ny.us/courts/ad2/justice_dickerson.shtml www.nycourts.gov/courts/9jd/taxcertatd.shtml www.classactionlitigation.com/library/ca_articles.html www.eturbonews.com 1. BEHAVE YOURSELF

Travelers not only need to be careful and protect themselves but they need to behave in accordance with the laws and customs of the destination country. For example, “ In Singapore, which places a high value on order, prostitution is legal but careless disposal of chewing gum can invoke fines up to $500...Jaywalking and spitting result in similar fines. On the bright side, Singapore saves canings for more serious offenses, such as vandalism, for which American teenager Michael Fay received a public lashing in 1994. Sensitivity to another country’s values (is important as) Raffi Nernekian, a Lebanese tourist visiting the United Arab Emirates learned...when he was arrested for wearing a skin cancer awareness T-shirt depicting Posh Spice in her birthday suit. Though a strategic pose and lettering kept Mrs. Beckham’s revelations from being explicit, Nerekian spent a month in jail...(and) Ireland, the land of creative invective, just passed a blasphemy law making it 1 25,000-euro ($37,000) offense to say or print anything ‘grossly abusive or insulting’ about any subject held sacred by any religion”(Dougherty, The Informer, Lost in Translation, Conde Nast Traveler, p. 76).

See also: French tourists fines $4000 each for animal cruelty

282 in Australia, www.eturbonews.com (4/17/2015); Cochrane, Indonesia Executes 8, Including 7 Foreigners, Convicted on Drug Charges, www.nytimes.com (4/28/2015); Reckless driver fined $136K in Dubai, www.eturbonews.com (5/5/2015); Chinese teenager first tourist blacklisted for ‘uncivilized behavior’, www.eturbonews.com (5/8/2015); Tourists caught with 12 kilos of meth face life in prison (New Zealand), www.eturbonews.com (5/26/2015); Mallorca tourists warned: No stripping in public, www.eturbonews.com (6/8/2014); British tourists may face imprisonment for stripping on Malaysian mountain, www.eturbonews.com (6/11/2015); Habits of International Travelers: Pee in pool, taking hotel toiletries, cheating, www.eturbonews.com (6/15/2015); Japanese public bathhouses deny entry to tourists with tattoos, \fs24cf3 www.eturbonews.com (6/18/2015); Malaysia state institutes dress code for tourists, www.eturbonews.com (3/2/2015); Tourists behaving badly, www.eturbonews.com (3/11/2015)(“Twitter user ‘Princess Breanna’ posted smiling selfie at the Auschwitz concentration camp”); Lord Buddha with headphones-not a good idea (in Myanmar), www.eturbonews.com (3/17/2015); Chinese tourist fined for washing her feet in public bathroom sink (in Thailand), www.eturbonews.com (3/16/2015); French tourist arrested in Rio for drugs and bribery is a French off duty police officer, www.eturbonews.com (6/23/2014); Turkewitz, A Fight as U.S. Girls Face Genital Cutting Abroad (in Guinea), www.nytimes.com (6/10/2014); Oman: Dress code for tourists, www.eturbonews.com (8/16/2014); Tourist fined E600 for stubbing out cigarette on the beach (in Sardinia), www.eturbonews.com (8/23/2014); Barcelona residents fed up with drunken tourists’ antics, www.eturbonews.com (8/21/2014); Germany and UK wage ‘towel war’ in Spain, www.eturbonews.com (8/16/2014); The charm of Russian tourist starting to wane in Goa, www.eturbonews.com (2/17/2014); Chinese tourists scandalize Taipei restaurant, www.eturbonews.com (10/20/2014); Russian visitor fined 20,000 euros for vandalizing ancient monument (in Italy), www.eturbonews.com (11/24/2014); China to tourists: We may blacklist you for bas behavior. Www.eturbonews.com (4/11/2015); Linda, Drink camel milk instead of alcohol says Sudan Tourism Minister, www.eturbonews.com (3/25/2013) (“Sudan’s Tourism Minister...last week declared the country off limits for tourists expecting to be served alcohol or wanting to dance in a disco...he advised tourists to drink camel milk...hundreds of miles of sandy beaches along the Red Sea are off limits for those wearing bikinis”); Steinmetz, Photo of female tourist posing with Buddha statue irks Thais, www.eturbdonews.com (1/4/2013); Steinmetz, Saudi tourist, prostitute charged with consensual (“sex, illegal drinking inDubai, www.eturbonews.com (12/15/2012) (“Drunk tourist from Saudi Arabia had sex with an Uzbek prostitute at a hotel apartment in Muraqabbat,

283 a court heard today”); Steinmetz, Myanmar warns visitors on child sex tourism, www.eturbonews.com (11/21/2012) (“Since last month, warning signs have been posted in every hotel room in Bagan to let foreigners know that committing child sexual exploitation is a serious crime in Myanmar”)http://www.eturbonews.com; Steinmetz, Despite new regulations drunken tubing goes on in Laos, www.eturbonews.com (9/16/2012)(“After a spate of tourist deaths on the Nam Song River in Vang Vieng, Laos, authorities from the capital have closed more than two dozen of the riverside and late-night island bars that are pit-stops for tubing tourists...floating down the Nam Song River in a large tractor-tyre innertube, stopping at the legion of jerry-built bars on the waterside for free shots of drugs, has become a popular pastime”); Steinmetz, French tourists given jail terms in Sri Lanka for ‘insulting religious feelings’, www.eturbonews.com (8/21/2012)(“Two women and one man were detained in the southerntown of Galle after a photographic laboratory alerted police. The pictures show the travelers posing with Buddha statutes and pretending to kiss one of them... Mistreatment of Buddhist images and artefacts is strictly taboo in the country”); Steinmetz, One Australian visitor dies in Bali every nine days, www.eturbonews.com (8/12/2012)(“Consular officials say alcohol and drugs fuel many of the accidents, while nightclub fights are among the biggest cause of trouble for thousands of Aussies who fly to the tropical island every year. Information release by the Department of Foreign Affairs reveals 39 Australians died in Bali in 2011-12. Another 93 sought consular help after being taken to hospital while 36 were arrested, 18 jailed and eight needed support after being attacked...traffic accidents were the biggest cause of deaths after natural causes”); Steinmetz, Foreign Tourists to be Banned From Getting Thai Religious Tattoos, www.eturbonews.com (June 2, 2011; Steinmetz, www.eturbonews.com (7/5/2012)(“Kashmir has asked tourists visiting the Valley to desist from wearing skimpy clothes and warned them of an angry reaction if they failed to do so. ‘Some tourists, mostly foreigners, are seen wandering in short mini-skirts and other objectionable dresses openly which is against local ethos and culture”); Steinmetz, Abu Dhabi issues tourist flyer withguidelines on ethics and values of UAE, www.eturbonews.com (7/5/2012)http://www.eturbonews.com (Abu Dhabi has issued “flyers (that) provide guidelines to prevent tourist(s) from getting into trouble with the law. As an example, the information makes it clear that possession of drugs and drug usage are illegal in the UAE...other illegal acts such as prostitution, driving while intoxicated, alcohol consumption with license...the flyers provide guidelines on how to behave in public and behaviors that may be tolerable in other countries but considered either illegal or inappropriate in the UAE. It addresses issues such as physical displays of affection, attire,

284 smoking, drinking or eating during Ramadan, respect for religious sites and occasions, attire for beaches, photography of restricted areas”); Steinmetz, Swiss tourist arrested in Zimbabwe for ‘insulting’ Mugabe, www.eturbonews.com (9/18/2012)(“a Swiss tourist was arrested at the border of insulting the President...Insulting Mugabe is an offense under sweeping security laws and prosecutions are common...A Zimbabwean carpenter was arrested in February after he questioned whether Mugabe still had the strength to blow up balloons at his 88th birthday”); Steinmetz, Hindu shrine cops beat up US tourist, www.eturbonews.com (6/25/2012)(“An American tourist was allegedly beaten by Jagannath temple security men while he was trying to climb Jagannath’s chariot on the second day of Rath Yatra on Friday”); Steinmetz, French tourist’s strip dance on Uluru causes Aboriginal outrage, www.eturbonews.com (6/27/2010) (“Aboriginal elders are outraged and are calling for her deportation”); Steinmetz, German tourist jailed in New Zealand for smuggling lizards, www.eturbonews.com (3/3/2010)(“A German tourist was sentenced to jail time Wednesday after he admitted trying to smuggle native New Zealand lizards out of the country...The reptiles had a value of 192,000 New Zealand dollars ($134,000) on the European market”). See also: 10 Super Weird Laws from Around the World, www.smartertravel.com (12/15/2012)(discussing the following laws which tourists should be aware of: Rome, Italy: eating and drinking near landmarks illegal; Dubai: sharing a hotel room outside of marriage illegal; Greece: stiletto heels illegal; Netherlands: soft drugs like marijuana and hash illegal; Doytona Beach, Florida: spitting in public illegal; Thailand: stepping on currency with the King’s face on it illegal; Venice, Italy: feeding the pigeons illegal; Canada: using more than 25 pennies in a transaction illegal; Singapore: chewing gum illegal.

If you find yourself in jail in a foreign country you may wish to contact the U.S. Embassy or Consulate and a U.S. attorney (See International Legal Defense Counsel at www.ildc-law.com).

DANGEROUS DESTINATIONS 2. See Myers & Jainchill, Cruise lines continuing Antigua port calls, Travel Weekly (2/1/2010)(cruise passenger murdered near Pigeon Beach during shore excursion).

3. See Vlasic v. Wyndham International, Inc., 451 F. Supp. 2d 1005 ( C.D. Ill. 2006 )(cruise passenger in lounge chair killed when palm tree fell on him ).

4. See e.g., Eleventh Circuit: Van Hoy v. Sandals Resorts International, 2013

285 WL 1192316 (S.D. Fla. 2013)(resort guest “dies after he was trapped underwater by the suctioning mechanism in the resort’s hot tub”); Walker v. Wedge Hotel, U.S. Dist. Ct. S.D. Fla. No. 01-3564 ( CIV-GOLD, 27 ATLA Law Reporter 127 ( Sept. 3, 2002 )( “ Walker, 27, went parasailing during a trip to the Bahamas. She and a friend were required to ride together [ due to ] inclement weather. During the ride the frayed towrope failed, causing Walker to be dragged through the water for several minutes. Walker drowned...Walker’s mother sued the management company of the hotel located on the stretch of beach on which the vendor operated its parasailing business. Plaintiff alleged the vendor, which had an office in the hotel, was an agent of the hotel. Plaintiff asserted defendant was liable for the vendor’s negligence in failing to maintain the towrope and failing to give Walker instructions on how to unclip herself in the event of an emergency...A jury awarded plaintiff $1.88 million “ ). State Law: Florida: United Shipping Co. v. Winter, 724 So. 2d 722 ( Fla. App. 1999 )( cruise passenger drowns during shore excursion boat tour in the Bahamas ). New York: Smith v. West Rochelle Travel Agency, Inc., 238 A.D. 2d 398, 656 N.Y.S. 2d 340 ( 1997 )( 17 year old on spring break jumps to death from “ booze cruise “ during vacation in the Bahamas; tour operator not liable for actions of hotel in serving liquor to student and then allowing student to go on local booze cruise; student’s act of jumping over cruise ship railing was intervening cause of accident ). 5.5. See Barrett v. Ambient Pressure Diving, Ltd., 2008 WL 4280360 ( D.N.H. 2008 )( diving accident in Bermuda; defective re-breather ). 6. See e.g., Fifth Circuit: Stutzman v. Rainbow Yacht Adventures Limited, 2007 WL 415355 ( N.D. Tex. 2007 )( “ Steven and Susan Means...made reservations...to charter the Arabesque for a sailing and scuba diving trip in the British Virgin Islands. On January 16, 2006 the Means boarded the Arabesque in the BVI...Captain Rose...organized a scuba dive for the Means ( during which ) Susan Means experienced complications with her scuba equipment. After being unable to locate Captain Rose at the dive site, Mr. And Mrs. Means surfaced without his assistance. Upon reaching the surface Susan Means managed to board the Arabesque’s dinghy; however, Steven Means drowned while trying to board “ ). Eleventh Circuit: Zapata v. Royal Caribbean Cruises, Ltd., 2013 WL 1296298 (S.D. Fla. 2013)(cruise passenger drowns while “bell diving” during shore excursion in Bermuda). 7. See Steinmetz, Canadian visitor drowns in Cuba, www.eturbonews.com (3/1/2013)(“A Canadian has died while on vacation in Cuba”).

286 8. See Steinmetz, Six French tourists disappear from a boat in the Caribbean, www.eturbonews.com (10/29/2012)(“The four men and two women had been attending a music festival on Dominica...The boat was traveling to the nearby island of Martinique”).

9. See e.g., Eleventh Circuit: Perez-Lang v. Corporacion De Hoteles, SA, 2008 WL 4181334 ( S.D. Fla. 2008 )( plaintiffs “ purchased a vacation package to Casa de Campo...a resort located in La Romana Dominican Republic. The package...included use of a motorized golf cart as a means of transportation. ( Plaintiffs ) while on the premises of the Resort and operating the golf cart, were struck by an automobile. The accident produced severe and permanent injuries to both Plaintiff...and her daughter...and fatal injuries to her husband “). State Law: California: Hernandez v. Barcelo Hotels & Resotrs, 2005 WL 67112 ( Cal. App. 2005 )( “ The case arises from the fatal drowning of Roberto Hernandez ( which ) occurred...during the Hernandez family vacation at the hotel, located in Punta Cana, Dominican Republic. Appellants allege that Roberto drowned after he was encouraged and allowed to snorkel in a dangerous reef without a life vest “). Massachusetts: Gianocotas v. RIU Hotels, S.A., 2001 WL 758695 ( Mass. Super. 2001 ), judgment reversed 797 N.E. 2d 937 ( Mass. App. 2003 ), on remand 2005 WL 503931 ( Mass. Super. 2005 ) ( insulin-dependent diabetic takes vacation and “ became ill and vomited periodically through the night...A hotel representative put her in touch with Doctor Correa International Touristic Medical Service ( “ the Clinic “ ) which had a contractual relationship with the hotel to provide medical services to its guests...The doctor did not appear to understand the words ‘ diabetic ‘ or ‘ diabetes ‘. The doctor [ said ] that [ patient ] would be fine and that the pharmacy would re-open in the morning...[ She ] was discharged from the Clinic on March 18 but her vomiting and weakness persisted...[ the Doctor at the Clinic who treated the patient ] agreed that her condition was caused by ‘ nervousness ‘...[ She was eventually taken to the hospital ]. According to [ the patient’s mother ] the hospital was filthy and the medical equipment antiquated. Hospital personnel were unresponsive to her inquiries...[ The patient ] was transported to a hospital in Miami where she died one month later as a result of an acute diabetic ketoacidotic come “ ). See also: Gianocostas v. RIU Hotels, SA, 2006 WL 2089772 ( Mass. Super. 2006 )( failure of hotel and local clinic to diagnose and properly treat tour participant with diabetes; negligent misrepresentation claims against tour operator dismissed ) vacated 450 Mass. 715, 2008 WL 483766 ( Mass. Sup. 2008 ). 10. See Balachander v. NCL (Bahamas) Ltd. 800 F. Supp. 2d 1196 (S.D.

287 Fla. 2011)(cruise passenger drowns at resort on Great Shrimp Cay during stopover; Death on the High Seas Act exclusive remedy).

11. See Schmall, Violence Puts a Chill on Jamaica’s Vital Tourism Industry, www.dailyfinance.com (June 5, 2010)(“In Jamaica, where tourism is a $4 billion industry that accounts for around 20% of GDP, more than a week of negative headlines poses a serious risk to the island’s economy...a four day gun battle in Kingston’s Tivoli Gardens erupted last week, leaving dozens of people dead...’I don’t fee safe, it’s as simple as that’”); Myers, Caribe Noire, Travel Weekly, January 11, 2010, p. 18 (“Crime in the Caribbean is the elephant in the room that no one wants to talk about, but several headline-grabbing events in 2009 propelled the issue onto newspapers’ front pages, social media outlets and websites...Though examples of extreme violence remain isolated, a few have also been horrendously alarming: (1) Eighteen cruise passengers were ambushed and robbed in November by armed thugs in a daring daylight attack while they were touring the Earth Village nature attraction during a port call in Nassau, (2) That incident occurred just two weeks after the robbery of another group of cruisers during a tour stop at the Queen’s Staircase, another attraction in Nassau, (3) In separate incidents in October on Tobago, a British couple was wounded in a machete attack and two British women were raped at knife point in their Holiday villa, (4) Honeymooners from Wales were murdered on Antigua in 2008, (5) An Australian yachtsman was shot and killed on Antigua last January, (6) A pregnant U.S. jogger was abducted, raped and murdered in February during a run near Fajardo, Puerto Rico”); Higgins, When Crimes Comes to Paradise, N.Y. Times Online, December 6, 2009 (“Eighteen cruise passengers were robbed at gunpoint on Bahamas tours last month. A retired couple was seriously wounded in a machete attack at their second home in Tobago in August. A pregnant American tourist was abducted and killed during a morning jog in Fajardo, P.R. in February...Crime, in one form or another, is rising in Bermuda, Belize, St. Lucia and Trinidad and Tobago, based on a review of the State Department’s consular information sheets, which provide data on safety and other issues in foreign countries. It continues to be an issue in places like to Dominican Republic, where pickpocketing and mugging are the most common crimes against tourists and in Jamaica, where the United States Embassy has received several reports of sexual assaults against Americans this year, including two at resorts...What is different, though, is how those crimes are handled. ‘Law enforcement, especially in the Caribbean, does not necessarily have the resources or response that you might expect in the U.S....If you’re victimized by a crime you need to be prepared for a slow justice process’”).

12. See Bapte v. West Caribbean Airways, 370 Fed. Appx. 71 (11th Cir.

288 2010)(flight from Jamaica to Martinique crashes in the Venezuela killing all onboard).

13. See Carlisle v. Ulysses Line Ltd., 475 So. 2d 248 ( Fla. App. 1985 )( “ Mr. And Mrs. Carlisle ( and another couple ) were passengers aboard the S.S. Dolphin on a four day cruise to Freeport and Nassau. They were attracted to this particular cruise by promotional brochures advertising the beautiful beaches of Nassau...the two couples rented a jeep and headed for... ‘ Yamacraw Beach ‘. On their return back...they were ambushed by three masked gunmen who opened fire on them with shotguns. All four of them were wounded. Mr. Carlisle later died from a gunshot wound to the head. After the incident, the survivors learned from members of the ship’s crew that other tourists and a member of the ship’s crew had been victims of violent acts perpetrated in various places on the island. Bahamian police reported that the particular beach where plaintiffs were attacked was ‘very bad’“ ). 14. See e.g., U.S. Supreme Court: Yamaha Motor Corp. V. Calhoun, 516 U.S. 199, 116 S. Ct. 619, 133 L. Ed. 2d 578 ( 1996 )( 12 year old infant killed in a collision in territorial waters off of Puerto Rico while riding jet ski ). First Circuit: In re San Juan Dupont Plaza Hotel Fire Litigation, 768 F. Supp. 912 ( D.P.R. 1991 )( attorneys fees ).

15. See e.g., Phillips v. Talty, 555 F. Supp. 2d 265 ( D.N.H. 2008 )( car accident in St. Martin).

See also: Linda, St. Maarten issues statement concerning murders of 2 Americans, www.eturbonews.com (9/24/2012)(“couple found murdered at the Ocean Club in St. Maarten...The woman was tied onto a chair. The man was lying on the floor and partially over another chair. The motive of this horrific crime is yet unclear”). 16. See Chaparro v. Carnival Corporation, 693 F. 3d 1333 (11th Cir. 2012)(plaintiff passengers took a cruise aboard Carnival’s M/V Victory during which a Carnival employee urged plaintiffs to visit Coki Beach and Coral World which plaintiffs did; “On their way back to the ship from Coki Beach (plaintiffs) rode an open-air bus past a funeral service of a gang member who recently died in a gang-related shooting near Coki Beach...While stuck in traffic, gang-related retaliatory violence erupted at the funeral, shots were fired and Liz Marie was killed by gunfire which she was a passenger on the bus”; motion by Carnival to dismiss denied, claim stated for failure to warn; complaint alleged, inter alia, “Carnival was familiar with Coki Beach because it sold excursion to passengers to Coki Beach; Carnival

289 generally knew of gang violence and public shootings in St. Thomas; Carnival knew of Coki Beach’s reputation for drug sales, theft and gang violence...Carnival failed to warn (passengers) of any of these dangers; Carnival knew or should have known of these dangers because Carnival monitors crime in its ports of call; Carnival’s negligence in encouraging its passengers to visit Coki Beach and in failing to warn disembarking passengers of general or specific incidents of crime in St. Thomas and Coki Beach caused Liz Marie’s death”). 17. See Steinmetz, Trinidad & Tabago now murder capital of the Caribbean, www.eturbomews.com (3/6/2012)(“With a steady rise in violent crime including an alarming increase in homicides, Trinidad and Tobago has overtaken Jamaica as the ‘murder capital of the Caribbean’. While homicides increased two percent in Jamaica in 2008, murders were up a staggering 38 percent in Trinidad and Tobago”).

18. See Estate of Fraser v. Smith, 2007 WL 5007084 ( S.D. Fla. 2007 )( “ This action arises out of an incident which took place on December 15, 2002, when an explosion occurred in the Turks and Caicos Islands aboard a small powerboat named the Sundance. As a result of the explosion, several passengers were injured and one passenger-Charles E. Fraser-died. The passengers were residents of South Carolina visiting the Turks and Caicos Islands as tourists “ ). 19. See Linda, Underfunded Belize police challenged by crime, www.eturbonews.com (8/20/2012)(“CNN Go rated Belize City as the tenth most hated city in the world...’consistently rated as the worst destination’ among cruise ship passengers. Between January and June 2012 there were 35 murders in Belize City...In 2011, a Swedish tourist was robbed at gunpoint and her cash and passport stolen...Data combined with the United Nations Information and US Justice Department shows that most of the 5,500 US-bound human trafficking victims are from Central America, via Belize”); Myers, Caribe Noire, Travel Weekly, January 11, 2010, p. 18 (“Crime in the Caribbean is the elephant in the room that no one wants to talk about, but several headline-grabbing events in 2009 propelled the issue onto newspapers’ front pages, social media outlets and websites...Though examples of extreme violence remain isolated, a few have also been horrendously alarming: (1) Eighteen cruise passengers were ambushed and robbed in November by armed thugs in a daring daylight attack while they were touring the Earth Village nature attraction during a port call in Nassau, (2) That incident occurred just two weeks after the robbery of another group of cruisers during a tour stop at the Queen’s Staircase, another attraction in Nassau, (3) In separate incidents in October on Tobago, a British couple was wounded in a machete attack and two British women were raped at knife point in their Holiday villa, (4) Honeymooners from

290 Wales were murdered on Antigua in 2008, (5) An Australian yachtsman was shot and killed on Antigua last January, (6) A pregnant U.S. jogger was abducted, raped and murdered in February during a run near Fajardo, Puerto Rico”); Higgins, When Crimes Comes to Paradise, N.Y. Times Online, December 6, 2009 (“Eighteen cruise passengers were robbed at gunpoint on Bahamas tours last month. A retired couple was seriously wounded in a machete attack at their second home in Tobago in August. A pregnant American tourist was abducted and killed during a morning jog in Fajardo, P.R. in February...Crime, in one form or another, is rising in Bermuda, Belize, St. Lucia and Trinidad and Tobago, based on a review of the State ineDepartment’s consular information sheets, which provide data on safety and other issues in foreign countries. It continues to be an issue in places like to Dominican Republic, where pickpocketing and mugging are the most common crimes against tourists and in Jamaica, where the United States Embassy has received several reports of sexual assaults against Americans this year, including two at resorts...What is different, though, is how those crimes are handled. ‘Law enforcement, especially in the Caribbean, does not necessarily have the resources or response that you might expect in the U.S....If you’re victimized by a crime you need to be prepared for a slow justice process’”). 20. See e.g., Sixth Circuit: Fling v. Hollywood Travel and Tours, 765 F. Supp. 1302 ( N.D. Ohio 1990 )( tourist shot and robbed ). Eleventh Circuit: Larsen v. Kerzner International Hotels Limited, 2009 WL 1759585 ( S.D. Fla. 2009 )( guest at Atlantis Hotel in Nassau assaulted by unidentified man ).

See also: Higgins, When Crime Comes to Paradise, www.nytimes.com (Dec. 6, 2009)(“Eighteen cruise passengers were robbed at gunpoint on Bahamas tours last month. A retired British couple was seriously wounded in a machete attack at their second home in Tobago in August...Crime, in one form or another, is rising in Bermuda, Belize, St. Lucia and Trinidad and Tobago...It continues to be an issue in places like the Dominican Republic where pickpocketing and mugging are the most common crimes against tourists and in Jamaica where the United States Embassy has received several reports of sexual assaults against Americans this year, including two at resorts”). 21. See Steinmetz, UK cruse tourists attacked, shot in Barbados, www.eturbonews.com (March 18, 2013)(two British cruise passengers on a shore excursion were shot by a robber).

22. See Wilson v. American Trans Air, Inc., 874 F. 2d 386 ( 7th Cir. 1989 )( tour participant assaulted at Holiday Inn on Grand Cayman Island when intruders gain entry into room through second story balcony window ).

291 23. See e.g., Third Circuit: Schreiber v. Camm, 1994 WL 131611 ( D.N.J. 1994 )( guests at Jamaican vacation estate, Mockingbird Hill, shot by security guard rendering one of the guests quadriplegic ). Fourth Circuit: Early v. Travel Leisure Concepts, Inc., 669 F. Supp. 130 ( E.D. Va. 1987 )( tourist purchased tour of Jamaica featuring accommodations at Sunflower Villas Hotel where she is assaulted ). Eleventh Circuit: Wagner v. Island Romance Holidays, Inc., 2013 WL 5718969 (S.D. Fla. 2013)(anonymous attack of guest on hotel grounds). State Law: New York: Creteau v. Liberty Travel, inc., 195 A.D. 2d 1012, 600 N.Y.S. 2d 576 ( 1993 )( tourist raped and robbed in Jamaica ). 24. See e.g., Woods-Leber v. Hyatt Hotels of Puerto Rico, 1997 WL 476360 ( 1st Cir. 1997 )(mongoose attacks guest sunbathing at hotel pool ); Gilmore v. Caribbean Cruise Line, 789 F. Supp. 488 ( D.P.R. 1992 )( passengers stabbed and robbed on pier ).

25. See Gabrielle v. Allegro Resorts Hotels, 210 F. Supp. 2d 62 ( D.R.I. 2002 )( guests at Jack Tar Village in St. Kitts robbed and assaulted by intruder who gained entry through open balcony sliding window ).

See also: Linda, Assuring the cruise industry and its ports of call, www.eturbonews.com (3/6/2012)(“cruise ships or cruise passengers have experienced multiple problems (in 2010-2012 to include) (1) Tourists robbed on shore excursion on...St. Kitts (November 2010), (2) Attacks in Matzalan (January 2011) caused cruise ships to drop the city as a port of call, (3) In Puerto Vallarta, some 22 cruise passengers were robbed (February 2012) while on what appears to be a cruise-sponsored shore excursion”). 26. See Steinmetz, Armed bandits rob cruise ship tourists in St. Lucia, www.eturbonews.com (4/16/2013)(“Masked gunmen have held up a tour bus in St. Lucia, robbing 50 sightseers from a cruise ship”).

27. See Manahan v. NWA, Inc., 821 F. Supp. 1105 ( D.V.I. 1992 ), recon. denied 821 F. Supp. 1110 ( D.V.I. 1992 ), aff’d 995 F. 2d 218 ( 3rd Cir. 1993 )( tourist mugged and purse snatched on walk to restaurant from hotel ).

28. See e.g., Third Circuit: Loretti v. Holiday Inns, Inc., 1986 WL 5339 ( E.D. Pa. 1986 )( tourist raped and robbed on beach in the Bahamas

292 ). Eleventh Circuit: Doe v. Sun International Hotels, Ltd., 20 F. Supp. 2d 1328 ( S.D. Fla. 1998 )( guest raped at resort ). 29. Crocker v. Hilton International Barbados, Ltd., 976 F. 2d 797 ( 1st Cir. 1992 )( guest at Hilton International Barbados, Ltd. Hotel in Bridgetown, Barbados raped at knife point ).

30. Shanzer v. Club Med Sales, Inc., New York Law Journal, Sept. 7, 1994, p. 22, col. 5 ( N.Y. Civ. 1994 )( male guest at Club Med facility, Bay Providenciales, in the British West Indies sexually assaulted and wakes up in the morning sitting naked in “ seashore’s shallow waters “ ).

31. See e.g., Wilson v. American Trans Air, Inc., 874 F. 2d 386 ( 7th Cir. 1989 )( intruder entered Mrs. Wilson’s second floor hotel room through the balcony window and attempted to rape and rob her; tour operator not liable for assault at hotel ); Wilson v. Humphreys Cayman Ltd., 916 F. 2d 1239 ( 7th Cir. 1990 )( guest raped at hotel ).

32. See Creteau v. Liberty Travel, Inc., 195 A.D. 2d 1012, 600 N.Y.S. 2d 576 ( 1993 )( tourist raped and robbed in Jamaica ).

33. See Flanagan v. Wyndham International, Inc., 231 F.R.D. 98 ( D.C.D.C. 2005 )( sexual assault by hotel employee of guest’s child; “ In December 2000, Flora Nicholas and Paul Gayter filed suit...on behalf of their minor daughter S.G. against ( hotel and employee who “ worked at the Kids Klub day-care program at the Wyndham Sugar Bay Resort in St. Thomas. The suit sought damages arising out of Hornby’s alleged sexual molestation of S.G. while she was under his care. After the initiation of the civil suit ( employee ) was convicted of sexually molesting S.G. and is currently incarcerated in the Virgin Islands...Approximately two years after Nicholas [ action ] was filed, the plaintiffs in the two underlying actions, Flanagan and James, filed similar suits ( alleging ) that ( employee ) sexually molested the 9-year old Flanagan girl and the 8-year old James girl while they attended the Wyndham Kids Klub “ ); Nicholas v. Wyndham International, Inc., 301 F. Supp. 2d 407 ( D.V.I. 2002 ). See also: “ Who’s Minding The Kids? “, Conde Nast Traveler, August 2005, pp. 61 ( “ More hotels and resorts are opening children’s programs every day, but few parents really know what separates the good ones from the bad...Our outlook changed radically, however, when we learned the story of a nine-year-old girl who was molested by a 22-year-old male counselor while staying with her parents at St. Thomas’s Wyndham Sugar Bay Resort & Spa ( Although the abuse occurred

293 in April 2000, the case gained widespread publicity only last year, after the man was denied an early prison release from his five-year sentence ). Just this past April, the issue of safety at these facilities made headlines again when the Australian press reported allegations that in recent years, two Australian children had been abused at two hotel kids’ clubs in Bali. In one case, a three-year-old girl was diagnosed with gonorrhea after spending time at a hotel kids’ club; in the other a five-year-old boy was molested by a man who entered the child-care facility at the resort where the boy and family were staying “ ). 34. See Grossman v. Club Med Sales, Inc., 273 N.J. Super. 42, 640 A. 2d 1194 ( 1994 )( guest at Club Med facility in Turks and Caicos sexually assaulted by former employee ).

35. See e.g., Third Circuit: Contino v. Blue Melody Tours, 2010 WL 5479608 (D.N.J. 2010)(boating accident in Aruba). Seventh Circuit: Crawley v. Marriott Hotels, Inc., 2006 WL 2331143 ( D. Ill. 2006 )( “ She stayed at the Aruba Marriott Resort & Stellaris Casino( where ) the concierge recommended Crawley take a jeep island tour through ABC Tours...charging the deposit to her hotel room. While on this tour Crawley had a ‘ near drowning incident causing her to sustain serious personal injuries ‘ including permanent lung damage ‘” ). Ninth Circuit: Huang v. Marriott International, Inc., 2012 WL 170166 (E.D. Cal. 2012)(timeshare owners booked “a tour of Aruba with De Palm Tours that included scuba diving at Baby Beach (which) allegedly has a significant undertow that has previously caused fatalities, the Huangs were not warned about the dangerous conditions and were told that the beach was safe and that life jackets were unnecessary. While snorkeling... plaintiffs’ wife and mother [were] pulled by an undertow ad drowned”). 36. See e.g., Sixth Circuit: Matthews v. Kerzner International Limited, 2011 WL 5122641 (N.D. Ohio 2011)(plaintiff “sustained injuries to his left leg and knee upon using an allegedly defective and dangerous water slide (Mayan Temple Waterslides)”). Seventh Circuit: Carris v. Marriott International, Inc., 466 F. 3d 558 ( 7th Cir. 2006 )( hotel patron injured in personal watercraft accident). Eleventh Circuit: Stubbs v. Wyndham Nassau Resort and Crystal Palace Casino, 447 F. 3d 1357 ( 11TH Cir. 2006 )( “ The complaint arises out of a diving accident in which Howard Stubbs...was severely injured when he dove into the shallow end of a swimming pool at the ( Wyndham Nassau Resorts And Crystal Palace Casino ) located in Nassau, Bahamas “ ); Meier v. Sun International Hotels, Ltd., 288 F. 3d 1264

294 ( 11th Cir. 2002 )( hotel guest struck by motorboat while snorkeling; motorboat operated by a Bahamian water-sports concessionaire conducting business at ( another hotel ) which, plaintiff claims, negligently supervised the motorboat operator ); In re Matter of Royal Caribbean Cruises, 2013 WL 425837 (S.D. Fla. 2013)(jet ski accident in the Bahamas); Campbell v. Starwood Hotels & Resorts Worldwide, 2008 WL 2844020 ( S.D. Fla. 2008 )( guest swimming struck motorboat operated by Ocean Motion ); Klima v. Carnival Corporation, 2008 WL 4559231 ( S.D. Fla. 2008 )( “ The case involves a claim...for injuries Plaintiff suffered while taking a catamaran boat tour in the Bahamas...While aboard ( the cruiseship ‘ Sensation ‘ ) the Klimas booked an excursion on the ‘ Thriller Powerboat ‘...Mrs. Klima was injured while aboard the Thriller Powerboat “ ); Miyoung Son v. Kerzner International Resorts, Inc., 2008 WL 4186979 ( S.D. Fla. 2008 )( tourist on excursion “ received severe and extensive injuries as a result of being pulled through the churning propellers of the excursion boat “ ); Mashburn v. Royal Caribbean Cruises, Ltd., 55 F. Supp. 2d 1367 ( S.D. Fla. 1999 ), aff’d 214 F. 3d 1356 ( 11th Cir. 2000 )( cruise passenger disembarks at Coco Cay Island, Bahamas, an island owned by cruiseline; rents a jet ski owned by cruiseline and is injured in an accident ). 37. See e.g., First Circuit: Binder v. McVey, 2007 WL 3391419 (D.V.I. 2007) ( “ While on an around-the-world sailing trip, the McVeys... sailed the Seahorse to Jost Van Dyke, British Virgin Islands...In the early morning on January 1, 2004, while leaving a bar and restaurant on Jost Van Dyke, P. McVey was asked by several individuals, including plaintiff Heidi Binder, for a ride on his dinghy back to their boats...While P. McVey and...Binder were in the dinghy, the dinghy was struck by a motorboat. Binder sustained injuries in the collision “). Second Circuit: Matter of Illusions Holdings, Inc., 78 F. Supp. 2d 238 ( S.D.N.Y. 1999 )( scuba diver sustains injury to shoulder while diving in the British Virgin Islands ). 38. See e.g., Second Circuit: Szollosy v. Hyatt Corporation, 396 F. Supp. 2d 147 ( D. Conn. 2005 )( “ the Szollosys took a day trip to the nearby Rum Point recreation area. Rum Point offered a swimming beach and several restaurants and snack bars. Defendant Red Sail also operated a concession stand at Rum Point where sailboats, paddleboats, windsurfers and wave runners and other equipment were available for rental...The wave runner carried Dean across the Rum Point harbor and crashed directly into a stone jetty or break wall...as a result of the crash; he suffered injuries including come and brain hemorrhage“ ). Eighth Circuit: Lehman v. Humphreys Cayman Ltd., 713 F. 2d 339

295 ( 8th Cir. 1983 )( guest at Grand Caymanian Holiday Inn, owned by defendant Humphreys Cayman, Ltd., a franchisee of defendant, Holidays Inns, Inc., in Cayman Islands rented a 16-foot “ Hobie Cat “ for a sailboat shop, Bob Soto’s Diving, Ltd., located on hotel premises; guest and two companions lost at sea when boat overturned ). State Law: Florida: LeValley v. Carnival Cruise Lines, Inc., 786 So. 2d 18 ( Fla. App. 2001 ( jury verdict for cruise passenger injured during shore excursion scuba dive in Grand Cayman Island reversed for failure of trial court to allow introduction of evidence of diver’s asthmatic condition as a causative factor in accident ). 39. See Steinmetz, Canadian visitor drowns in Cuba, www.eturbonews.com (3/1/2013)(“A Canadian has died while on vacation in Cuba”).

40. See Steinmetz, Six French tourists disappear from a boat in the Caribbean, www.eturbonews.com (10/29/2012)(“The four men and two women had been attending a music festival on Dominica...The boat was traveling to the nearby island of Martinique”).

41. See Calvo v. Sol Melia, 761 So. 2d 461 ( Fla. App. 2000 )( resort guest struck by motorboat in Dominican Republic ). 42. See Healy v. Renaissance Hotel Operating Co., 282 A.D. 2d 363, 724 N.Y.S. 2d 719 ( 2001 )( Irish citizen living in London, England struck by motorboat while snorkeling in Grenada).

43. See e.g., Eleventh Circuit: Torres v. International Hotels ( Jamaica ) Ltd., 2007 WL 2254929 ( S.D. Fla. 2007 )( plaintiff “ seeking relief for injuries sustained while vacationing at the Hedonism II Resort in Jamaica...she was injured while using Hedonism II’s water slide, a tube like structure which opens into a pool...immediately after exiting the slide and landing in the pool, an inebriated hotel guest crashed on top of her while she was still submerged underwater, injuring her head and neck and rendering her unconscious. Plaintiff further alleges that Hedonism II’s life guards made no attempt to aid or rescue her, that she was forced to seek medical attention on her own, and that, due to her injuries, she remained in bed in her hotel room for the next three days “ ). State Law: California: McCollum v. Friendly Hills Travel Center, 217 Cal. Rptr. 919 ( Cal. App. 1985 )( water skiing accident at hotel; “ the driver then made too fast a turn for prevailing water condition which caused ( plaintiff ) to fall hitting ‘ the water hard and twisted [ his ] head ‘...22 days after the accident he suffered a stroke as a result of that fall and is now paralyzed on the left side of his

296 body from the stroke “). 44. See Cutchin v. Habitat Curacao, 1999 WL 33232277 ( S.D. Fla. 1999 )( guest at Habitat Curacao in Netherlands Antilles suffers decompression sickness during scuba dive; complaint asserts that Habitat negligent in failing to properly conduct dive and in failing to administer necessary medical treatment ). 45. See e.g., First Circuit: Santos v. Posadas De Puerto Rico Associates, Inc., 452 F. 3d 59 ( 1st Cir. 2006 )( guest at Wyndham Condado Plaza Hotel and Casino in Puerto Rico injured entering hotel pool; jury verdict for vacationers in the amount of $1,000,000 for injured guest and $250,000 to wife for loss consortium affirmed; “ Knowing that guests used the steps to enter and exit the pool, the Hotel neither made them safe for this readily foreseeable use nor warned of the inherent danger. These failures, the jury plausibly could have found, caused the accident “ ); Fiorentino v. Rio Mar Associates, LP, 381 F. Supp. 2d 43 ( D.P.R. 2005 )( guest at Westin Rio Mar Beach Resort & Casino in Puerto Rico rendered quadriplegic after “ body whomping “ in surf at Rio Mar beach “ when he was suddenly hit by a wave which caused him to topple over and strike his head and neck on the ocean bottom rendering him partly unconscious”); Torres v. National Association of Underwater Instructors, 928 F. Supp. 134 ( D.P.R. 1996 )( scuba accident in Puerto Rico ). Second Circuit: Pollack v. Hyatt Hotels of Puerto Rico, Inc., 85 Civ. 5564 (EW)(S.D.N.Y. 1985 )( hotel guest nearly drowns by falling into underwater hole off of beach). 46. See e.g., Third Circuit: Neely v. Club Med Management Services, Inc., 63 F. 3d 166 ( 3d Cir. 1995 )( U.S. citizen employed as scuba instructor at St. Lucia Club Med resort sucked into propellers of dive boat, Long John ). Eleventh Circuit: Henderson v. Carnival Corp., 125 F. Supp. 2d 1375 ( S.D. Fla. 2000 )( honeymoon couple on cruise purchase tickets for ride on catamaran in St. Lucia which struck coral reef injuring couple ). 47. See Craig v. Sandals Resorts International, 2014 WL 6610342 (E.D.N.Y. 2014)(hotel guest dies after being struck by motorboat while snorkeling; forum non conveniens motion granted); O’Donnell v. Club Mediterranee, S.A., 2008 WL 794975 ( E.D.N.Y. 2008 )( “ At some point during the ( scuba diving ) excursion, plaintiff abandoned the dive and attempted to board the boat by climbing a side ladder, which provided access between the water and the boat...the ladder was slippery and the dive boat did not have a lookout on board to help plaintiff climb on board. Plaintiff slipped as she was trying to board the Bat Ray and suffered an ankle fracture, for which she was treated immediately by a physician in Turks & Caicos “ ); Welch-Rubin v.

297 Sandals Corp., 2004 WL 2472280 ( D. Conn. 2004 )( “ The central issue in this case is whether Defendants-a resort company and a tour operator owned, operated or controlled the Beaches Resort which Plaintiff...injured her shoulder while attempting to board a boat “ ).

48. See Oleksiuk v. Caribbean watersports and Tours, LLC, 2005 WL 1668906 ( D.V.I. 2005 )( guest at Elysian Beach Resort on St. Thomas owned and operated by Equivest broke leg in accident with jet ski provided by concessionaire Caribbean Watersports and Tours LLC ); Wyatt v. Rosewood Hotels and Restorts, LLC, 2005 WL 1706134 ( D.V.I. 2005 )( campground patron went swimming at Cinnamon Bay beach in Virgin Islands National Park on St. John and “ was struck by a breaking wave [ and ] was driven into the sand and suffered a broken neck which left him quadriplegic “); Fabend v. Rosewood Hotels, 181 F. Supp. 2d 439 ( D.V.I. 2002 )( tourist vacationed at Cinnamon Bay Campgrounds and was injured while body surfing in Virgin Islands National Park ).

49. See Feinstein v. Curtain Bluff, 1998 WL 458060 ( S.D.N.Y. 1998 )( guests at Curtain Bluff hotel in Antigua contract ciguatera poisoning after eating fish in hotel restaurant ). 50. See e.g., Second Circuit: Wenzel v. Marriott International, Inc., 2014 WL 6603414 (S.D.N.Y. 2014)(accident at hotel; forum non conveniens motion granted); Clarke v. Marriott International, Inc., 2014 WL 476720 (D.V.I. 2014)(slip and fall in bathtub; summary judgment for hotel); Andrei v. DHC Hotels and Resorts, Inc., 2000 WL 343773 ( S.D.N.Y. 2000 )( guest at Tamarign Aruba Beach Resort takes shower outside of room, enters room and slips and falls onto floor; no personal jurisdiction over hotel ); Passero v. DHC Hotels, 1996 WL 931767 ( D. Conn. 1996 )( tour participant trips over a flotation mat placed near a chair at hotel pool ). Third Circuit: Plinio v. Americana Aruba Beach Resort & Casino, 1998 WL 1286233 ( D.N.J. 1997 )( slip and fall in hotel bathtub ). Eleventh Circuit: Leinhart & Caribbean Hospitality Services, Inc., 426 F. 3d 1337 ( 11th Cir. 2005 )( “ Lienhart was vacationing at the Aruba Grand ( which )is located next to the public beach and it provides lounge chairs and tiki huts on the beach exclusively for use of its guests. Leinhart and a friend were spending the day relaxing and had been led to chairs by an Aruba Grand employee who placed the chairs under a tiki hut for their use...Leinhart was asleep in a lounge chair when...she was struck by a pickup truck and boat trailer operated by an employee of Unique Sports of Aruba. The boat and trailer were

298 backing up along the beach “ ). State Law: Connecticut: Cicchiello v. Reney Tours Plane Brokers, Inc., 1996 WL 278348 ( Conn. Super. 1996 )( tourists purchase tour to Aruba featuring accommodations at the La Cabana; “ The plaintiffs allege that...Emanuel ‘ turned on the gas stove in his room... when suddenly and without warning there was a gas explosion from the gas stove ‘ causing injury”). 51. See e.g., First Circuit: McElheny v. Trans National Travel, Inc., 165 F. Supp. 2d 190 ( D.R.I. 2001 )( on “ the second day of her vacation...she met with a certain representative at the Club Fortuna Beach. Plaintiff asserts that this representative intended to sell Plaintiff vacation-related products, including a time-share. Plaintiff pulled up a chair to sit with the representative, but due to a defect ( Plaintiff alleges that the chair had only three legs ), Plaintiff slip and fell off the chair. As a result, Plaintiff broke her ankle “ ). Eleventh Circuit: Moseley v. Carnival Corporation, 2014 WL 6601147 (11th Cir. 2014)(cruise passenger injured on shore when public bathroom sink dislodges and falls on her; complaint against cruise line dismissed); Pappas v. Kerzner International Bahamas Limited, 585 Fed. Appx. 962 (11th Cir. 2014)(water slide accident at hotel; Bahamas forum selection clause enforced); McArthur v. Kerzner International Bahamas Limited, 2015 WL 1404409 (11th Cir. 2015)(slip and fall at hotel; Bahamas forum selection clause enforced); Barilotti v. Island Hotel Company, Ltd., 2014 WL 1803374 (S.D. Fla. 2014)(slip and fall in puddle of water at Atlantis Resort on Paradise Island). State Law: Florida: Kerzner International Resorts, Inc. v. Raines, 983 So. 2d 750 ( Fla. App. 2008 )( guest injured at resort in the Bahamas ). New York: Meshel v. Resorts International of New York, 160 A.D. 2d 211, 553 N.Y.S. 2D 342 ( 1990 )( guest at Britannia Tower suffers heart attack; complaint alleges that hotel was negligent in providing defective oxygen equipment including spent or inadequate oxygen cylinders ). 52. See e.g., Third Circuit: O’Connor v. Sandy Land Hotel Co., Ltd., 2007 WL 2135274 ( 3rd Cir. 2007 )( “ They booked a five-night stay at Sandy Lane ( in Barbados which ) then mailed the O’Connors a brochure highlighting the many treatments available at the on-site spa...Sandy Land agreed to provide spa treatments at specific dates and times and the O’Connor’s agreed to pay a set price...Mr. O’Connor was due one of his massages. He went to the spa at the appointed time and the staff began to ‘ rejuvenate ‘ his ‘ mind, body and spirit ‘. As

299 part of that process, a Sandy Land employee instructed Mr. O’Connor to step into the shower and wash up. Unfortunately, Mr. O’Connor’s feet were still slick with massage oils, and there were no mats on the shower’s wet floor. As he stepped into the shower, Mr. O’Connor slipped, fell and tore his rotator cuff “ ). Great Britain: Japp v. Virgin Holidays [2013] EWCA Civ (guest at hotel in Barbados walks into balcony glass door which shatters causing lacerations). 53. See See e.g., Second Circuit: Klein v. Marriott International, Inc., 34 F. Supp. 2d 176 ( S.D.N.Y. 1999 )( guests at Marriott Castle Harbor Resort in Bermuda becomes ill from consuming contaminated water). State Law: New York: Amsellem v. Host Marriott Corp., 280 A.D. 2d 357, 721 N.Y.S. 2d 318 ( 2001 )( guest at Marriott Castle Harbour Resort in Tucker’s Town, Bermuda operated by Marriott International Services, Ltd ( MLTD ) became ill from consuming contaminated water; “ Castle Harbour’s water tanks and filtration system are monitored by the Bermuda Ministry of Health ( the Ministry ) pursuant to Bermuda law. On February 13, 1998 the Ministry was summoned to Castle Harbour after a large number of guests reported nausea, vomiting and diarrhea. Ministry officials subsequently advised MLTD personnel that there was nothing unusual in the stool and water samples that they had analyzed and that the outbreak was, they believed, the result of an airborne virus...on February 16, 1998 MLTD was informed by the Ministry that contrary to its earlier pronouncement, additional sample tested by the Ministry indicated that the water supply was contaminated “ ). 54. See Heidle v. The Prospect Reef Resort, Ltd., 364 F. Supp. 2d 312 ( W.D.N.Y. 2005 )( “ Heidle vacationed with her boyfriend...at Prospect Reef’s resort on Tortola in the British Virgin Islands ( and while there she fell into a cistern )” ).

55. See e.g., Third Circuit: Miloseska v. Liberty Travel, Inc., 2013 WL 178065 (D.N.J. 2013)(accident at hotel in Dominican Republic); Callista v. Inversora Internacional Hotelera, S.A., 2009 WL 137332 ( D.N.J. 2009 )( “ Plaintiff...was a guest at the Grand Flamenco Resort...in Punta Cana ( and ) during his stay...he contracted food poisoning “ ).. Sixth Circuit: Viches v. MLT, Inc., 124 F. Supp. 2d 1092 ( E.D. Mich. 2000 )( tour participants injured in Dominican Republic when resort sprayed insecticide on its premises ). 56. See Rams v. Royal Caribbean Cruise Lines, 17 F. 3d 11 ( 1st Cir. 1994 )( cruise passenger on shore excursion in Haiti slips and falls in hotel owned by cruise line ).

300 57. See e.g., First Circuit: Hofer v. The Gap, Inc., 2007 WL 2827380 ( D. Mass. 2007 )( “ She contends that as she turned around to descend the stairs, the thong of her right sandal became detached by pulling through the sole. This caused her to lose her balance, and she fell to her right into the turtle pond. As she fell, she gouged her left leg on the sharp rocks in the pond...It is well settled that travel agents are not generally liable for the negligence or dangerous conditions of third-party hotel or travel operators... Plaintiff contends, however, that this case should fall outside the general rule for three reasons (1) Expedia ‘ controlled ‘ the Turtle Beach Towers resort as a result of inspections it allegedly conducted at the hotel, (2) Expedia as plaintiff’s agent owed her a duty to warn of dangerous hazards of which Expedia was aware through its ‘ inside information ‘ and (3) Expedia voluntarily assumed a duty to warn her of safety hazards “). Eleventh Circuit: Campbell v. Air Jamaica Ltd., 2012 WL 3562126 (S.D. Fla. 2012)(“The above-styles action arises from Defendants’ alleged refusal to allow Plaintiff Campbell to board a flight (departing from Kingston, Jamaica) for which he was ticketed which (allegedly) caused him to suffer a heart attack”; complaint dismissed as failing to come within Article 17 or Article 19 of the Montreal Convention); Smolnikar v. Royal Caribbean Cruises Ltd., 787 F. Supp. 2d 1308 (S.D. Fla. 2011)(“while participating on an offshore ‘zip line’ excursion tour in Montego Bay, Jamaica... (plaintiff) collided at a high speed with a tree and suffered a herniated disk in her neck...(alleges) (1) negligent selection (of) a zip line tour operator and (2) failure to warn of dangerous conditions present in the zip line tour”); Prophet v. International Lifestyles, Inc., 2011 WL 1388576 (S.D. Fla. 2011)(accident at hotel gym (defective power rack)). 58. See e.g., First Circuit: Kaden v. Wyndham Conquistador Resort & Country Club, 2005 WL 1949694 ( D.P.R. 2005 )( guest slips and falls on Jacuzzi platform at Wyndham El Conquistador Resort & Country Club in Puerto Rico); Raybourne v. San Juan Marriott Resort, 2003 WL 1984482 ( D.P.R. 2003 )( guest falls in bathtub; award of $500,000 compensatory damages grossly excessive and award of $150,000 in lost earnings unsupported by evidence ); See In re San Juan Dupont Plaza Hotel Fire Litigation, 768 F. Supp. 912 ( D.P.R. 1991 )( attorneys fees ); In re San Juan Dupont Plaza Hotel Fire Litigation, 117 F.R.D. 30 ( D.P.R. 1987 )( discovery ). Fourth Circuit: Camasso v. Dorado Beach Hotel Corp., 689 F. Supp. 384 ( D. Del. 1988 )( outbreak of salmonella poisoning at Hyatt Regency Cerromar Resort at Dorado Beach, Puerto Rico ). Fifth Circuit: Room v. Caribe Hilton Hotel, 659 F. 2d 5 ( 5th

301 Cir. 1981 )( hotel directory stated “ A registered nurse is on duty, and a qualified physician is available at all times...After hours and Saturday and Sunday call: Telephone operator “; hotel guest felt weak and nauseous and called operator at 7:30PM asking for a doctor and was assured by the operator that a doctor would be obtained. At 11:30PM the guest called again and was assured that a doctor would be called. The telephone operator was unable to get a doctor to come and so advised the guest who took a cab to the local hospital where he was diagnosed with a myocardial infarction and remained in the hospital for a month. The lawsuit asserts, inter alia, that the hotel’s delay in obtaining a doctor and providing promised medical assistance caused the guest permanent brain damage ). State Law: New York: Smith v. Atlas International Tours, 80 A.D. 2d 62, 436 N.Y.S. 2d 722 ( 1981 )( tour operator fails to deliver Glatt Kosher food during Passover holiday at resort hotel in Puerto Rico; Compare: Jaraslawicz v. Prestige Caterers, Inc., 292 A.D. 2d 232, 739 N.Y.S. 2d 670 ( 2002 )( food poisoning at Miami hotel during Passover tour ); Sacks v. Loews Theatres, Inc., 47 Misc. 2d 854, 263 N.Y.S. 2d 253 ( 1965 )( guest slips and falls at Americana Hotel in Puerto Rico). 59. See Clarke v. Marriott International, Inc., 2013 WL 47581999 (D.V.I. 2013)(slip and fall in bathtub in St. Kitts hotel).

60. See Family poisoned at tourist resort: 2 children in comas, www.eturbonews.com (4/8/2015)(family from Delaware stayed “at the Sirenusa Condominium Resort in Cruz Bay, St. John, in the Virgin Islands (and) became seriously ill and it is believed that it was due to exposure to a pesticide known as methyl bromide”).

61. See Tross v. Ritz Carlton Hotel Company, LLC, 928 F. Supp. 2d 498 (D. Conn. 2013)(ceiling tile in bathroom falls on hotel guest’s head).

62. See Tucker v. Whitaker Travel, Ltd., 620 F. Supp. 578 ( E.D. Pa. 1985 ), aff’d Mem. 800 F. 2d 1140 ( 3rd Cir. 1986 ), cert. denied 107 S. Ct. 578 ( 1986 )( horse riding accident ).

63. See Colby v. Norwegian Cruise Lines, Inc., 1996 WL 1752 ( D. Conn. 1996 )( cruise passenger on shore excursion thrown from horse).

64. See Snyder v. Dolphin Encounters Limited, 235 F. Supp. 2d 433 ( E.D. Pa. 2002 )( “ a large dolphin landed on plaintiff’s head and pushed her underwater...The dolphin trapped the plaintiff underwater for several seconds...she suffered permanent partial hearing loss

302 in one ear and cervical injury “; no personal jurisdiction; discussion of jurisdiction and Internet websites ).

65. See Woods-Leber v. Hyatt Hotels of Puerto Rico, 1997 WL 476360 ( 1st Cir. 1997 )( guest at Cerromar Beach Hotel in Dorado Beach, Puerto Rico attacked by mongoose in pool area ).

66. See Ward v. Kerzner International Hotels Limited, 2005 WL 2456191 ( S.D. Fla. 2005 )( guest at Ocean Club on Paradise Island, Bahamas “ used one of the bicycles provided by the Ocean Club’s sports facility, but the bicycle did not have lights and she was not given a helmet...after dark, she hit some unpainted speed bumps in the unlighted driveway, was thrown over the handlebar and was seriously injured “ ).

67. See Spaziano v. Price, 763 So. 2d 1047 ( Fla. App. 1999 )( tourist injured when plane approaching Bimini crash lands with wheels up; legal malpractice action ).

68. See Randolph v. Baron, 2006 WL 2627977 ( D.N.J. 2006 )( cruise passenger injured in tour van accident on the island of Dominica).

69. See Lang v. Corporacion De Hoteles, SA, 2007 WL 3286385 ( D.P.R. 2007 )( “ The complaint alleges that plaintiffs... traveled to the Dominican Republic for a vacation at Casa de Campo resort after purchasing and booking their vacation package through MK Tours (PR), Inc., a travel agency in Puerto Rico. During their stay...the family suffered an accident when their golf cart , which is claimed have been part of the vacation package deal, was struck by a truck in the premises of Casa de Campo resort. As a result Mr Lang died while plaintiffs were seriously“ ). See also Perez-Lang v. Corporacion De Hoteles, SA, 2008 WL 4181334 ( S.D. Fla. 2008 ). 70. See e.g., Eleventh Circuit: Bridgewater v. Carnival Corporation, 2011 WL 4383312 (S.D. Fla. 2011)(“Plaintiff, a passenger on the Carnival Conquest, participated in a catamaran sailing excursion on Montego Bay, Jamaica which was operated by (Jamaican company Rapsody Tours, Charters & Cruise Limited). Lightening struck at or near the catamaran and Plaintiff was injured as a result”; discovery to establish relationship between domestic cruise line and foreign ground service provider). State Law: 71. See e.g., Third Circuit: Santoro v. Unique Vacations, Inc., 2015 WL 179540 (D.N.J. 2015)(vehicle accident in St. Lucia; disclaimer of liability

303 may not be enforceable); Santoro v. Unique Vacations, Inc., 2014 WL 1614861 (D.N.J. 2014)(taxi accident in St. Lucia). Eighth Circuit: DeSirey v. Unique Vacations, inc., 2014 WL 272369 (E.D. Mo. 2014)(dune buggy accident in St. Lucia). 72. See Heyden v. Celebrity Cruises, Inc., 2013 WL 773477 (S.D. Fla. 2013)(Segway accident during cruise shore excursion in St. Maarten); Ash v. Royal Caribbean Cruises, Ltd., 2013 WL 6970900 (S.D. Fla. 2013)(tour bus accident in St. Maarten).

73. See e.g., Second Circuit: Jerome v. Water Sports Adventure Rentals, 2013 WL 692471 (D.V.I. 2013)(jet ski accident in St. Thomas); Stotesbury v. Pirate Duck Adventure, LLC, 2013 WL 3199353 (D.V.I. 2013)(cruise shore excursion accident when Duckaneer crashes after brakes fail); Piche v. Stockdale Holdings, LLC, 2009 WL 799659 ( D.V.I. 2009 )( cruise passenger “ was injured onboard the Ocean Rider ( during snorkeling excursion ) while traveling on navigable water off the coast of St. Thomas “ ); Welch-Rubin v. Sandals Corp., 2004 WL 2472280 ( D. Conn. 2004 )( “ The central issue in this case is whether Defendants-a resort company and a tour operator owned, operated or controlled the Beaches Resort which Plaintiff...injured her shoulder while attempting to board a boat “ ); Lubick v. Travel Services, Inc., 573 F. Supp. 904 ( D.V.I. 1983 )( cruise passenger injured in tour bus accident during shore excursion of St. Thomas ). Fourth Circuit: Poe v. Budget Rent A Car System, Inc., 2006 WL 2161865 ( D. Md. 2006 )( rental car accident in Virgin Islands “ when the brakes on a ( rental ) car...failed” ). State Law: California: Fisher v. Olde Towne Tours, LLC, 2011 WL 3310362 (Cal. App. 2011)(“During the trip to the snorkeling site, Fisher’s dinghy was struck by a large wave. Fisher grabbed the mooring line but it did not provide a secure hand hold. Fisher lost her balance and fell backward against the edge of the bench, striking her back. She sustained a serious injury...that required surgery”). 74. See Taylor v. Costa Lines, Inc., 441 F. Supp. 783 ( E.D. Pa. 1977 )( cruise passenger purchased shore excursion tour of Trinidad aboard cruise ship during which taxi cab struck tree causing severe injuries). 75. See Poe v. Budget Rent A Car System, Inc., 2006 WL 2161865 (D. Md. 2006)(rental car accident).

76. See e.g., Second Circuit: Hoch v. Venture Enterprises, Inc., 473 F. Supp. 541 (D.V.I. 1979)(diners eat poisonous hind fish and contract “typical ciquatera poisoning”). Eleventh Circuit: Howard v. Kerzner International Limited, 2013

304 WL 5353417 (S.D. Fla. 2013)(poisonous fish with ciquatoxins consumed by hotel guest). State Law: New York: Meshel v. Resotrs International of New York, 160 A.D. 2d 211, 553 N.Y.S. 2D 342 ( 1990 )( guest at Britannia Tower suffers heart attack; complaint alleges that hotel was negligent in providing defective oxygen equipment including spent or inadequate oxygen cylinders ). 77. See Ure v. Oceania Cruises, Inc., 2014 WL 5523122 (S.D. Fla. 2014)(cruise ship passenger became ill and disembarked in Barbados and alleged medical malpractice while at Bay View Hospital in Barbados; complaint dismissed).

78. See Gianocotas v. RIU Hotels, S.A., 2001 WL 758695 ( Mass. Super. 2001 ), judgment reversed 797 N.E. 2d 937 ( Mass. App. 2003 ), on remand 2005 WL 503931 ( Mass. Super. 2005 ) ( insulin-dependent diabetic takes vacation and “ became ill and vomited periodically through the night...A hotel representative put her in touch with Doctor Correa International Touristic Medical Service ( “ the Clinic “ ) which had a contractual relationship with the hotel to provide medical services to its guests...The doctor did not appear to understand the words ‘ diabetic ‘ or ‘ diabetes ‘. The doctor [ said ] that [ patient ] would be fine and that the pharmacy would re-open in the morning...[ She ] was discharged from the Clinic on March 18 but her vomiting and weakness persisted...[ the Doctor at the Clinic who treated the patient ] agreed that her condition was caused by ‘ nervousness ‘...[ She was eventually taken to the hospital ]. According to [ the patient’s mother ] the hospital was filthy and the medical equipment antiquated. Hospital personnel were unresponsive to her inquiries...[ The patient ] was transported to a hospital in Miami where she died one month later as a result of an acute diabetic ketoacidotic come “ ). See also: Gianocostas v. RIU Hotels, SA, 2006 WL 2089772 ( Mass. Super. 2006 )( failure of hotel and local clinic to diagnose and properly treat tour participant with diabetes; negligent misrepresentation claims against tour operator dismissed ) vacated 450 Mass. 715, 2008 WL 483766 ( Mass. Sup. 2008 ). 79. See Cutchin v. Habitat Curacao, 1999 WL 33232277 ( S.D. Fla. 1999 )( guest at Habitat Curacao in Netherlands Antilles suffers decompression sickness during scuba dive; complaint asserts that Habitat negligent in failing to properly conduct dive and in failing to administer necessary medical treatment ). 80. See e.g., Second Circuit: Henderson v. Carnival Cruise Lines, Inc., 2001 WL 114401 ( W.D.N.Y. 2001 )( cruise passenger contracts appendicitis, treated initially in ship’s infirmary and removed from cruise ship

305 and placed in shore medical facility in Puerto Rico; claims “ negligence and breach of contract for... failure to ;provide adequate medical facilities and treatment “); Pollack v. Hyatt Hotels of Puerto Rico, Inc., 85 Civ. 5564 (EW)(S.D.N.Y. 1985 )( hotel guest nearly drowns after steeping into hidden hole off of beach). Fifth Circuit: Room v. Caribe Hilton Hotel, 659 F. 2d 5 ( 5th Cir. 1981 )( hotel directory stated “ A registered nurse is on duty, and a qualified physician is available at all times...After hours and Saturday and Sunday call: Telephone operator “; hotel guest felt weak and nauseous and called operator at 7:30PM asking for a doctor and was assured by the operator that a doctor would be obtained. At 11:30PM the guest called again and was assured that a doctor would be called. The telephone operator was unable to get a doctor to come and so advised the guest who took a cab to the local hospital where he was diagnosed with a myocardial infarction and remained in the hospital for a month). 81. See Breeden & Gilbert, 3 French Athletes Are Mourned After Argentine Air Crash, www.nytimes.com (3/10/2015)(“The three French athletes were flying in two helicopters...on their way into a remote gorge in northwestern Argentina for the filing of a new reality show, ‘Dropped’, in which they would be left to fend for themselves and find their way back to civilization. But the two helicopters touched briefly in midair and then fell to the ground”).

82. See Delgado v. Reef Resort Limited, 364 F. 3d 642 ( 5th Cir. 2004 )( scuba diver “ never surfaced during a recreational scuba diving trip off the coast of Belize...organized by Ramon’s Village Resort” ).

83. See e.g., Second Circuit: Darby v. Compagnie Nationale Air France, 13 Fed. Appx. 37 ( 2d Cir. 2001 )( guest of hotel drowns off public beach in Brazil; hotel has no duty to warn of dangerous surf even though it encouraged and facilitated the use of the beach ); In re Air Crash Near Peixoto De Azeveda, Brazil, 2008 WL 4093568 ( E.D.N.Y. 2008 )( Brazilian passengers killed when commercial aircraft “ crashed into the Amazon rainforest” ). State Law: New York: Darby v. Compagnie Nationale Air France, 96 N.Y. 2d 343, 728 N.Y.S. 2d 732, 735 N.E. 2d 160 ( 2001 )( hotel guest drowned while swimming at Copacabana Beach, a public facility in Rio de Janeiro, Brazil. He and his wife were guests at the Meridien Copacabana Hotel, which is separated from the beach by a four-lane public highway. The hotel marketed its proximity to the beach and encouraged guests to use it, even providing them with chairs, umbrellas, towels and

306 a security escort service. It also furnished guests with pamphlets warning about sun exposure and crime on the beach. The pamphlets did not, however, say anything about possibly dangerous surf conditions; Brazilian hotel “ across the road from a public beach, use of which by hotel guests was encouraged and facilitated by the hotel [ had no duty ] to warn of rip tides that caused injury to...[ guest ] swimming off that beach “; hotel had no duty “ to take reasonable care to discover the actual condition of the land under water in the area wherein [ guests ] were invited and permitted to bathe, and...warn them of its dangerous condition...Moreover, that the hotel chose to warn its guests of the risks of sun exposure and crime does not create any duty to warn against hazards of the sea “ ). See also: Not safe for tourism? 42,000 people shot dead in Brazil, www.eturonews.com (5/15/2015). 84. See Nagourney, Masood & Schmidt, Killers Were Long Radicalized, F.B.I. Investigators Say, www.nytimes.com (12/7/2015)(“The couple who carried out the deadly attack that killed 14 people here last week had long been radicalized and had been practicing at a target range days before their murder spree, the Federal Bureau of Investigation said Monday...’As the investigation has progressed, we have learned and believe that both subjects were radicalized and have been for quite some time’, David Bowdich. The F.B.I. assistant director in charge of the Las Angeles field office, said at a news conference here”); Medina, Perez-Pena, Schmidt & Goodstein, F.B.I. Treats San Bernardino Attack as Possible Terrorism Case, www.nytimes.com (12/3/2015)(“The couple who the police say killed 14 people and left 21 wounded here had stockpiled thousands of rounds of ammunition and a dozen homemade pipe bombs on their home...a sign that they might have been planing future attacks. The F.B.I. is treating the Wednesday shooting as a potential terrorist act, though the agency is far from concluding that it was”); Baker, A Nation Wonders When Bloodshed Becomes Terrorism, www.nytimes.com (12/3/2015) it was noted that “The attackers assembled a bristling arsenal of guns and bombs...The authorities were still trying to piece together enough information on Thursday to answer that question, looking at the main gunman’s travels to the Middle East, searching for any contacts with extremist groups, examining his life for evidence of radicalization”). 85. See See also: Tourists on a whale watching boat: 5 dead, 21 rescued, www.eturbonews.com (10/26/2015)(“The British Columbia, Canada, Coroners Service confirms 5 are dead after a whale watching boat capsized near Tofino. 27 people, mostly tourists, were on the vessel”).

See e.g.,

307 Sixth Circuit: Brunner v. Hampson, 441 F. 3d 457 ( 6th Cir. 2006 )( “ Defendant Canada North is an international booking agent and outfitter providing sport hunting excursions...Moore, a resident of Ohio, was contacted by...a ‘ booking agent ‘...regarding a muskox hunt to be offered by Canada North in 2001...Moore then booked the hunt for himself, Brunner and Hampson...Canada North used a cabin in the Ellice River in the Province of Nunavut...On August 26, 2001, Jerry Hampson, while in the cabin placed a pot on a Coleman stove and it caught fire. Hampson then grabbed a container with clear liquid which he threw on the flames. The liquid, however, was naphtha, a highly flammable substance, which caused an explosion. The cabin caught fire...Hampson died and plaintiffs...suffered severe burns. A fire investigation concluded that (1) the hunting party was accommodated in an inadequate hunting camp that was neither inspected nor licensed for commercial operation, (2) camp safety orientation was not provided, (3) portable fire extinguishers were not provided and (4) the Coleman camp stove was operated contrary to the manufacturer’s instructions “; no personal jurisdiction over Canadian defendants ); Rafferty v. Blake’s Wilderness Outpost Camps, 1997 WL 14795 ( E.D. Mich. 1997 )( plane crash during bush tour in Canada ); Goldstein v. D.D.B. Needham, 740 F. Supp. 461 ( S.D. Ohio 1990 )( white water rafting accident in British Columbia ). State Law: California: Van Humbeck v. Robinson Helicopter Company, Inc., 2007 WL 4340996 ( Cal. App. 2007 )( “ The lawsuit arose from the crash in British Columbia, Canada of a helicopter en route to a remote logging camp...plaintiffs are citizens of Canada “). 86. See Parry, Dead, Injured in Chilean Bus Crash Return Home, The Journal News, p. 7B ( March 25, 2006 )(“ 64-member B’nai B’rith group that was traveling aboard the cruise ship Millennium...( who ) had made a side excursion to see the mountains on a tour bus that tumbled more than 300 feet down a mountainside “).

87. See UK tourist found dead in Columbia (ETN (4/25/2014)(“A British teenager has been found dead in Columbia afer taking a hallucinogenic drug in a tribal ritual”).

88. See e.g., Second Circuit: Mayer v. Cornell University, 107 F. 3d 3 ( 2d Cir. 1977 ), cert. denied 1997 WL 336602 ( 1997 )( bird watcher on Cornell University sponsored 28 day tour of Costa Rica drowns while snorkeling off Il DeCano in the Pacific Ocean; defendants owed no duty to drowning victim “ the evidence amply demonstrates that neither Cornell nor Brown was in a position to ensure the safety of the snorkeling activity because neither had any particular ex[pertise

308 in snorkeling...and more significantly neither had any authority over the actions of Marenco or its employees...Indeed, there was no realistic opportunity for Brown or Cornell in particular to control the circumstances of the snorkeling because in planning its sponsorship of the tour, Cornell could not have anticipated Marenco’s unexpected offer for the group to join the del Cano day trip...We see no reason for extending New York law to impose a duty of care on the basis of what appellant characterizes as the ‘ special relationship ‘ between a sponsor and the third party controlling an event or between a sponsor and the event participants “ ). Third Circuit: Wolf v. Fico Travel, 2011 WL 5920918 (D.N.J. 2011)(“members of New Jersey based Cutty Sharks Fishing Club traveled to Costa Rica on a fishing expedition (purchased through defendant Florida travel agent Tico Travel which made arrangements with defendant California booking agent Bob Marriott’s Flyfishing Store d/b/a Travel Center which made arrangements for accommodations with defendant Costa Rican fishing resort Casa Mar Lodge Del Caribe and fishing adventures with defendant Costa Rican Casa Mar Fishing Club, S.A.)...two of the travelers went out on the Don Carlo which capsized “due to turbulent and choppy” waters, one drowned and one swam to shore). State Law: Massachusetts: Tongier v. EF Institute For Cultural Exchange, Mass. Sup. Ct. Civil Action No. 08-01916 Middlesex (April 29, 2012)(three high school students and teacher on student tour to Costa Rica drown in rip tides; defendants summary judgment motion denied; strict liability under Swiss and Costa Rican law); See also: Tongier v. EF Institute, 2011 WL 7090713 (Mass. Super.)(violation of Massachusetts consumer protection statute claim reinstated). See also: American tourist drowns in Costa Rica, www.eturbonews.com (6/29/2015). 89. In Steinmetz, ISIS claims responsibility on Orlando terror attack killing 50, injuring 53, www.eturbonews.com (6/12/2016) it was noted that “According to Syrian News agency Amaq, ISIS had claimed responsibility for Orlando mass shooting”.

In Santora, Last Call at Pulse Nightclub, and Then Shots Rang Out, www.nytimes.com (6/12/2016) it was noted that “The music was still pounding but the night was drawing to a close at the Pulse nightclub in Orlando when shots rang out...A man, identified by law enforcement officials as Omar Mateen, had come to the club to kill. And over the course of the next three hours, until he was shot and killed himself, he executed dozens of people. By the time the shooting ended, it would rank as the deadliest mass shooting in American history”.

309

In Callimachi, Was Orlando Shooter Really Acting for ISIS? For ISIS, It’s All the Same, www.nytimes.com (6/12/2016) it was noted that “The revelation that the 29-year-old man who opened fire on Sunday in a gay nightclub had dedicated the killing to the Islamic State has prompted a now-familiar question” Was the killer truly acting under orders from the Islamic State, or just seeking publicity and the group’s approval for a personal act of hate? For the terror planners of the Islamic State, the difference is mostly irrelevant. Influencing distant attackers to pledge allegiance to the Islamic State and then carry out mass murder has become a core part of the group’s propaganda over the past two years. It is a purposeful blurring of the line between operations that are planned and carried out by the terror group’s core fighters and those carried out by its sympathizers”. See also: In Madigan & Hauser, Divers Find Body of Toddler Snatched by Alligator at Disney Resort, www.nytimes.com (6/15/2016) it was noted that “Lane Graves was doing what any 2-year-old boy would be doing on a hot Florida evening-splashing around in the shallow waters of a lagoon. His parents and sister, Nebraskans all, were nearby on the beach at a Disney resort here, relaxing, carefree. Suddenly, an alligator sprang from the water and clamped its jaws around the boy. Lane’s father, Matt Graves, bounded into the lagoon to wrestle his son from the animal’s steel-trap grasp, but lost the battle...The alligator made off with the boy and an intense search for him yielded nothing in the wide, murky expanse of water until more than 16 hours later...when divers found him about six feet below the surface and only 10 to 15 feet from where he had last been seen...’His body was completely intact’ Sheriff Demings said...Alligators are a common sight in Florida ponds, lakes, lagoons and canals. The sheriff said five alligators were taken from the lagoon after the boy went under. They have been euthanized to determine if any of the them killed the boy...Thomas Scolaro, a partner at the Miami law firm Leesfield Scolaro, which has represented families after alligator attacks elsewhere, said that in this case, ‘the facts look horrible for Disney’.’While this is a tragedy, it was entirely preventable had Disney acted reasonably and not left }softlineunwitting tourists at the mercy of dangerous and wild animals that roam its resorts’...Wildlife experts estimate that there are 1.3 million alligators in Florida, and that they can be found in all 67 counties”. 90. See Fojtasek v. NCL, 613 F. Supp. 2d 1351 ( S.D. Fla. 2009 )( during shore excursion in Honduras cruise passenger falls to death from zip-line ).

91. See e.g., Second Circuit: Barker v. Goldberg, 1987 WL 10820 ( E.D.N.Y. 1987 )( tourist drowned during white water river rafting expedition

310 on the Rio Grande River in Mexico ). Fifth Circuit: Gardemal v. Westin Hotel Company, 186 F. 3d 588 ( 5th Cir. 1999 )( “ Gardemal and her husband John..., a physician, traveled to Cabo San Lucas, Baja California Sur, Mexico at attend a medical seminar at the Westin Regina Resort Los Cabo...According to Gardemal, the concierge at the Westin Regina directed the group to ‘ Lovers Beach ‘ which, unbeknownst to the group, was notorious for its rough surf and strong undercurrents. While climbing the beach’s rocky shore, five men in the group were swept into te Pacific Ocean by a rogue wave and thrown against the rock. Two of the men, including John Gardemal drowned “ ); Snaza v. Howard Johnson Franchise Systems, Inc., 2008 WL 5383155 ( N.D. Tex. 2008 )( “ This is a wrongful death action brought by the parents of Duane Snaza...who in March 2005 fatally fell from his balcony on the tenth floor of a Howard Johnson hotel in Mazatlan, Mexico “ ); Sacks v. Four Seasons Hotel Limited, 2006 WL 783441 ( E.D. Tex. 2006 )( guest dies at Mexican hotel ). Seventh Circuit: Wozniak v. Wyndham Hotels and Resorts, LLC, 2009 WL 901134 ( N.D. Ill. 2009 )( “ While walking in the Wyndham CZM lobby...Jim Wozniak slipped and fell over the side of a stairwell. Mr. Wozniak died later that day from injuries sustained from the fall “ ); Simmelroth v. American Airlines, 448 F. Supp. 730 ( E.D. Ill. 1978 )( travel agent on Fam trip murdered by bandits ). Ninth Circuit: Loya v. Starwood Hotels & resorts, 2007 WL 1991163( W.D. Wash. 2007 )( guest at Club Regina Los Cabos in Baja California Sur, Mexico dies during scuba dive ). Eleventh Circuit: Joseph v. Carnival Corporation, 2011 WL 3022555 (S.D. Fla. 2011)(cruise passengers during shore excursion in Cozumel, Mexico dies while para-sailing; Death on the High Seas Act; liability theories). State Law: Arizona: Knoell v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 394, 891 P. 2d 861 ( 1995 )( student on a student tour to Mazatlan, Mexico spent three days drinking alcoholic beverages and then decided to jump from the balcony of his hotel and was killed); Meurer v. Cervenik-Anderson Travel, Inc., 181 Ariz. 294, 890 P. 2d 69 ( 1994 )( student falls to death under steel wheels of party train to Matzalan ). California: Princess Hotels v. Superior Court, 33 Cal. App. 4th 645, 39 Cal. Rptr. 457 ( 1995 )( guest at Mexican hotel drowns off public beach adjacent to hotel where guest registered ). New York: Hernandez v. Quality Inns, inc., New York Law Journal, March 23, 1993, p. 21, col. 6 ( N.Y. Sup. ) ( a tourist was fatally injured while using the parasailing equipment rented for a local Mexican company having no legal connection to the hotel where the tourist was a guest. To establish the liability of the hotel the

311 complaint sought “ to hold Quality Inns vicariously liable for Hotel Calinda’s failure to hire a competent parasailing concessionaire with sufficient training in parasailing and/or life saving, for advertising parasailing on its grounds and creating an illusion of safety without first checking on the competency of the operators of the parasailing concessionaire, and for failing to properly supervise and observe the parasailing activity. The record indicates Hotel Calinda contracted with the parasailing concessionaire ‘ Deportee Aquaticos ‘, received a monthly fee pursuant to the contract, and that employees of the hotel were responsible for regularly inspecting the activity and equipment of the parasailing concessionaire. The parasailing activity was conducted along the Hotel Calinda beach and signs were posted on the grounds of the hotel directing guests to the parasailing facility...In fact, plaintiff’s husband was instructed by a clerk of the hotel’s front desk to go the beach area to sign-up for parasailing “ ). See also: Steinmetz, Bus crash killed 21 tourists on way to the beach, www.eturbonews.com (7/23/2012)(“The bus full of tourists heading to the beach in the resort torn of Rincon de Guayabitos, Mexico crashed and killed at least 21");“ Nineteen Die on HAL Tour Excursion “, Travel Weekly, p. 56 ( September 17, 2001 )( “ Sixteen passengers from Holland America Line’s Maasdam, along with two pilots and one tour escort were killed Sept. 12 when their sightseeing plane crashed in a jungle near Mexico’s Yucatan Peninsula “ ). 92. See Hu, Brisk Business at Bronx Hotel, Center of Legionnaires’ Outbreak, www.nytimes.com (8/27, 2015)(“The Opera House Hotel had to turn off its air-conditioning one hot day this month so that a cleaning crew could scrub away the Legionella bacteria lurking in the cooling tower on its roof...Not much else has changed at the hotel at the center of the worst outbreak of Legionnaires’ disease in the city’s history. Business has been, if anything a little brisker. Occupancy rates have hovered between 90 and 95 percent for the past two months, slightly higher than a year ago, the management said...The Opera House Hotel...remained open throughout the outbreak, which claimed 12 lives and sickened more than 120 people, including two hotel guests, before city health officials declared it officially over last week. City health officials identified the hotel’s cooling tower as the source of the outbreak. Legionnaire’s disease, often described as a severe form of pneumonia, is contracted by inhaling contaminated mist from water sources harboring Legionella bacteria...But for the most part, the Opera House Hotel seems to have escaped the notoriety and stigma that kept guests away from the Philadelphia hotel that was the site of the first outbreak of Legionnaires’ disease in July 1976...In contrast, many guests staying at the Opera House Hotel this summer have shown no hesitation in wheeling their suitcases past its rooftop cooling tower, and the

312 journalists camped out front. ‘I think the hotel is more popular than before’, said (Mr. X), who owns a CD shop next to the hotel. ‘Now everybody knows about the Opera House. People are not afraid. They come no matter what’”).

93. See Panamanian authorities resume search for tourists missing since March (ETN (5/27/2014)(“A search for female Dutch tourists who went missing in Panama almost two months ago is resuming”).

94. See Amtrak Train Derailment; Pennsylvania. See In Flegenheimer, McGeehan, Mouawad & Stolberg, Amtrak Crash Illuminates Obstacles to Plan for Controlling Train Speeds, www.nytimes.com (5/18/2015) it was noted that “Nearly seven years after Congress instructed the nation’s railroads to install an automatic speed control system by the end of 2015, the crash of a speeding Amtrak train last week has laid bare the industry hurdles, regional rivalries and often dismal economies of rail safety. Miles of track on Southern California’s commuter lines still lack the system years after 1 2008 crash that killed 25 people there, fueling the drive to install the technology, known as positive train controls. Chicago’s commuter rails are not likely to have the safety system for years, while comparatively sleepy train service on Amtrak’s Michigan line already has it...Rail safety experts have noted that far less costly upgrades, including an older braking system found on tracks opposite the site of last week’s crash in Philadelphia, would have prevented high-speed derailments like this one. And they say that even with positive rain control, not all accidents can be avoided”; D’Annunzio, ‘Indescribable Horror’ of Amtrak Derailment Prompts Suits, www.law.com (5/18/2015) it was noted that “A cluster of lawsuits against Amtrak stemming from last week’sderailment that injured over 200 people and killed eight has been filed in filed in Philadelphia”; In Stolberg, Mouawad & Fitzsimmons, Amtrak Train Derailed Going 106 M.P.H. on Sharp Curve; at Least 7 killed, www.nytimes.com (5/13/2015) it was noted that “An engineer jammed on the emergency brakes just seconds before Tuesday’s fatal Amtrak derailment, but the train-traveling at 106 miles an hour, more than twice the speed limit-slowed only slightly, federal authorities said, before hurtling off its tracks, killing at least seven people and injuring more than 200. Survivors who emerged battered and bloodied described a chaotic scene, with passengers thrown against walls, furniture and one another, and luggage and other items and falling on terrified riders”. In Passarella, Valuing Damages in Amtrak Crash Made Trickier by $200M Cap, www.law.com (5/14/2015) it was noted that “Lingering over the liability claims expected to be raised by victims of the Amtrak 188 derailment is a 1997 federal law that creates a $200 million damages cap to be paid out for any

313 single railroad accident”. In Shear and Mouawad, Amtrak Says Shortfalls and Rules Delayed Its Safety System, www.nytimes.com (5/14/2015) it was noted “The Amtrak train that derailed in Philadelphia on Tuesday night was equipped with an automatic speed control system that officials say could have prevented the wreck, which killed eight passengers and injured hundreds. But the system, which was tantalizingly close to being operational, was delayed by budgetary shortfalls, technical hurdles and bureaucratic rules, officials said Thursday”.

95. See Vivas v. The Boeing Company, 2009 WL 1686539 ( Ill. App. 2009 )( plane crash in Peru ). See also: Steinmetz, Peruvian police: No survivors in helicopter crash, www.eturbonews.com (6/11/2012)(12 tourists including South Korean, Dutch, Swiss, Czech and Peruvian passengers killed in crash).

96. See Bapte v. West Caribbean Airways, 370 Fed. Appx. 71 (11th Cir. 2010)(flight from Jamaica to Martinique crashes in the Venezuela killing all onboard).

97. See Nagourney, Masood & Schmidt, Killers Were Long Radicalized, F.B.I. Investigators Say, www.nytimes.com (12/7/2015)(“The couple who carried out the deadly attack that killed 14 people here last week had long been radicalized and had been practicing at a target range days before their murder spree, the Federal Bureau of Investigation said Monday...’As the investigation has progressed, we have learned and believe that both subjects were radicalized and have been for quite some time’, David Bowdich. The F.B.I. assistant director in charge of the Las Angeles field office, said at a news conference here”); Medina, Perez-Pena, Schmidt & Goodstein, F.B.I. Treats San Bernardino Attack as Possible Terrorism Case, www.nytimes.com (12/3/2015)(“The couple who the police say killed 14 people and left 21 wounded here had stockpiled thousands of rounds of ammunition and a dozen homemade pipe bombs on their home...a sign that they might have been planing future attacks. The F.B.I. is treating the Wednesday shooting as a potential terrorist act, though the agency is far from concluding that it was”); Baker, A Nation Wonders When Bloodshed Becomes Terrorism, www.nytimes.com (12/3/2015) it was noted that “The attackers assembled a bristling arsenal of guns and bombs...The authorities were still trying to piece together enough information on Thursday to answer that question, looking at the main gunman’s travels to the Middle East, searching for any contacts with extremist groups, examining his life for evidence of radicalization”).

98. See Steinmetz, Kidnaped tourists freed in Ecuador,

314 www.eturbonews.com (9/30/2012)(“Two female tourists Kidnaped in the north-eastern Ecuador, near the border with Columbia, have been freed...They had been traveling in a canoe while visiting a remote nature reserve in the Amazon jungle”).

99. In Steinmetz, ISIS claims responsibility on Orlando terror attack killing 50, injuring 53, www.eturbonews.com (6/12/2016) it was noted that “According to Syrian News agency Amaq, ISIS had claimed responsibility for Orlando mass shooting”.

315

101. See Linda, Assuring the cruise industry and its ports of call, www.eturbonews.com (3/6/2012)(“cruise ships or cruise passengers have experienced multiple problems (in 2010-2012 to include) (1) Tourists robbed on shore excursion on...St. Kitts (November 2010), (2) Attacks in Matzalan (January 2011) caused cruise ships to drop the city as a port of call, (3) In Puerto Vallarta, some 22 cruise passengers were robbed (February 2012) while on what appears to be a cruise-sponsored shore excursion”).

102. See Clifford, Trial Stemming From Lufthansa Heist Provides a Flashback to Another Mob Era, http://nyti.ms/1RT7Wg3 (10/19/2015) (“The Mafia of another era was on display Monday, as a trial began in Brooklyn in a case stemming from the spectacular-and long-unsolved-1978 heist from a Lufthansa terminal at Kennedy International Airport...The testimony on Monday gave a flavor of what was to come, including references to reputed mobsters with old-timey nicknames like ‘Johnny One-Arm’, ‘Skinny Don’ and ‘Good-Looking Sal’, along with referenced to goodfellas (members of the mob) and nods to ‘Goodfellas’ (the movie, which depicted some of the events and men discussed at trial)....Ms. Gerdes (one of the prosecutors) said that Mr. Asaro and his friend James Burke-a Lucchese associate known as Jimmy the Gent-planned the heist, picking the robbery crew and scoping out the terminal ahead of time. (In ‘Goodfellas’, Robert De Niro plays a character based on Mr. Burke)”).

103. See Billard, Pink Dolphins and Sunsets Along the Amazon, www.nytimes (April 11, 2014)(“In 2009, the luxury Aqua Expeditions cruise ship had been boarded by armed pirates, who robbed the passengers of cameras, cash and jewelry. Ever since then, the Aqua and its sister ship, te Aria, have been accompanied by three armed guards”); Baran, Peru steps up security after two Amazon river ship attacks, Travel Weekly (8/17/2009, p. 36.).

104. See Linda, Underfunded Belize police challenged by crime, www.eturbonews.com (8/20/2012)(“CNN Go rated Belize City as the tenth most hated city in the world...’consistently rated as the worst destination’ among cruise ship passengers. Between January and June 2012 there were 35 murders in Belize City...In 2011, a Swedish tourist was robbed at gunpoint and her cash and passport stolen...Data combined with the United Nations Information and US Justice Department shows that most of the 5,500 US-bound human trafficking victims are from Central America, via Belize”).

105. See Romero, American Woman Gang-Raped and Beaten on Brazilian Transit Van, www.nytimes.com (4/4/2013)(“The attackers pummeled the

316 woman’s face and tied up her male companion, a French citizen, then beta him with a metal bar as he witnessed the harrowing assault”).

106. See Doe v. Abercrombie & Kent, Inc., 2010 WL 286640 (S.D.N.Y. 2010)(sexual assault in Equador during tour of Galapagos Islands; lack of jurisdiction); O'Keefe v. Inca Floats, Inc., 1997 WL 703784 ( N.D. Cal. 1997 )( tourist purchases package tour featuring travel to and accommodations in Peru and a cruise to the Galapagos Islands operated by Ecuadorian company Quasar Nautical S.A. during which crew member attempts to rape and sexually assault Ms. O’Keefe ).

107. See e.g., Eleventh Circuit: Burdeaux v. Royal Caribbean Cruises, Ltd., 2012 WL 3202948 (S.D. Fla. 2012)(during shore excursion in Cozumel, Mexico passenger relied on ship’s recommended list of shops which provided a “sixty-day ‘Buyers Guarantee’ for repairs and returns”; during shopping passenger decided to shop at a jewelry store not recommended and was pushed down “a hallway and into a restroom...he forced her to perform oral sex on him. Following this, Burdeaux was forced to have oral and vaginal sex with four additional unknown local men (then) the men let go”; complaint dismissed; no duty owed; “the issue of foreseeability hinges on evidence of sexual assault in the Cozumel shopping district at issue...Burdeaux presents no record evidence of this risk”); State Law: Massachusetts: Deacy v. Studentcity.Com, Inc., 916 N.E. 2d 422 (Mass. App. 2009)(“The plaintiff...purchased a Cancun, Mexico tour package from the defendant...This spring break vacation to Cancun was advertised as ‘the ultimate student spot’ and ‘hassle free’ with ‘non-stop partying’, ‘loaded with fund’...Also advertised were certain ‘side tours’ or events with emphasis on alcohol and sex (After attending such a side tour) billed as a ‘Booze Cruise’...consuming a minimum of seven to eight alcoholic beverages...she returned to the hotel in the Early morning hours...went down to pool” and was raped in the pool”).

See also: Women Alert To Travel’s Darker Side, www.nytimes.com (5/23/2014)(“An Italian tourist was reportedly raped by police officers in Mexico”). 108. See Goldstein v. D.D.B. Needham, supra, at N. 23 ( five passengers killed during white Water rafting accident in British Columbia ).

109. See e.g., Second Circuit: Mayer v. Cornell University, supra, at N. 39 ( bird watcher on Cornell University sponsored 28 day tour of Costa Rica drowns while snorkeling off Il DeCano in the Pacific Ocean ).

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Eleventh Circuit: McLane v. Marriott International, Inc., 2013 WL 1810649 (S.D. Fla. 2013)(back injury sustained during fishing excursion in Costa Rica). State Law: Illinois: Stein v. Rio Parismina Lodge, 695 N.E. 2d 518

110. See e.g. Third Circuit: Yurchak v. Atkinson & Mullen Travel, Inc., 2006 WL 3076675 ( 3rd Cir. 2006 )( tourist injured on personal watercraft in Mexico; “ The Yurchaks allege that in December 2002 they received an advertisement...soliciting them to purchase a vacation package. The advertisement included a picture of a jet ski in use. Before purchasing the package the Yurchaks asked about their safety while vacationing in Mexico but they were given no warnings...beyond a general assurance that travel to the country was safe. They were not told of a Consular Information Sheet from the United States Department of State that included a warning about jet skiing in Mexico...The Yurchaks’s claims of misrepresentations-both negligent and fraudulent-are similarly faulty...Even assuming that the...general assurances of safety in Mexico could have been understood as an assurance that jet skiing there would be safe, such a statement would not have been material to the transaction between these parties. The rental and use of a jet ski was not part of the vacation package the Yurchaks purchased...it is not tenable based on the alleged facts that their decision to purchase the vacation package...turned on whether or not they believed it would be safe to jet ski on their vacation “ ); Colvin v. Van Wormer Resorts, Inc., 2008 WL 5245987 ( D.N.J. 2008 )( fishing accident at Hotel Punta Colorado; “ while boarding a boat via a movable dock, Mary Colvin alleges that she stepped into a hole in the dock with her right foot. Her leg plunged through the break in the dock, up to her groin. Since only one leg broke through the dock, she fell into a painful split. Her body twisted and rusty nails punctured her leg in several spots “ ). Fourth Circuit: Dunham v. Hotelera Canco, S.A., 1996 WL 421844 ( E.D. Va. 1996 )( guest sustains injuries after ingesting water during snorkeling trip off the coast of Mexico ). Sixth Circuit: Sova v. Apple Vacations, 984 F. Supp. 1136 ( S.D. Ohio 1997 )( “ she went on a vacation trip to Cancun, Mexico ( and once there ) she considered the information provided in the travel guide and elected to go on the Isla Mujeres snorkeling excursion. Plaintiff states that there was no ladder at the side of the boat, and that at the conclusion of the snorkeling portion of the tour, the tour participants were pulled from the water by their arms by the tour guides. Plaintiff asserts that as she was being pulled from the water by her arms, her body was forced against the aside of the boat, resulting in severe and permanent injury to her back “ ).

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Seventh Circuit: Elayyan v. Sol Melia, SA, 571 F. Supp. 2d 886 ( N.D. Ind. 2008 )( “ the Plaintiffs...who are Indiana residents, stayed at the hotel Melia Puerto Vallarta, located in Puerto Vallarta, Mexico...Plaintiffs Ayah Elayyan was injured while in the hotel’s outdoor swimming pool “ ). Eleventh Circuit: Belik v. Carlson Travel Group, 2012 WL 4511236 (S.D. Fla. 2012) “a port-of-call excursion in Cozumel, Mexico known as the ‘Cozumel Beach Party’. The event was at the ½ Senor Frogs Restaurant in the port of Cozumel...(and plaintiff alleges that Carnival and SinglesCruise) knew the passengers attending...would be drinking and partying and would be encouraged to slide, jump and dive into the waters from seawall adjacent to the ½ Senor Frogs Restaurant (which plaintiff did) hit(ing) his head on the ocean floor resulting in tetraplegia”). State Law: California: Schneider v. Suntrips, Inc., 2003 WL 21153476 ( Cal. App. 2003 )( guest at Bahia Condo Hotel in Cabo San Lucas, Mexico dives into pool at another hotel and is rendered quadriplegic ). Michigan: Chimenti v. Apple Vacations, Inc., 2000 Mich. App. LEXIS 452 ( Mich. At. App. 2000 )( tourist purchased a package tour featuring accommodations at the Sol Caribe Hotel on the island of Cozumel, Mexico, rented jet ski at resort and spent two says in the ocean after jet ski stalled and was swept away by strong currents ). New Jersey: Mastondrea v. Occidental Hotels Management S.A., 918 A. 2d 27 ( N.Y.A.D. 2007 )( plaintiff purchased “ a vacation package for accommodations at an all inclusive resort known as Royal Hideaway Playacar located in Quintana Roo, Mexico...while at the resort, plaintiff slip and fell on a wet exterior staircase, breaking her ankle “ ). 111. See Morag v. Quark Expeditions, Inc., 2008 WL 3166066 ( D. Conn. 2008 )( “ Plaintiff...who is a citizen and resident of Israel...were passengers aboard a cruise ship traveling from Antarctica to Argentina...During the ship’s two-day crossing of the Drake Passage, M. Morag fell and suffered extensive spinal and other injuries which have rendered him quadriplegic “).

112. See e.g., Eleventh Circuit: Isbell v. Carnival Corp., 462 F. Supp. 2d 1232 ( S.D. Fla. 2006 )( “ The excursion consisted of floating down a river in the rain forest in Belize, in and out of caves, while on an inner tube...During the course of the excursion, Plaintiff began to feel ill. Plaintiff’s husband removed her life vest and notice two small puncture wounds on her left upper arm...it was determined that

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Plaintiff had been bitten by a snake...On October 29, 2004 Plaintiff allegedly suffered a heart attack. Subsequently Plaintiff underwent a successful cardiac surgery... Plaintiff alleges that the snake bite and the treatment that she received as a result thereof have caused a ‘ myriad of long term physical and psychological effects that are compensable in this action ‘”). State Law: California: Fiduccia v. Princess Cruise Lines, Ltd., 2007 WL 2181888 ( Cal. App. 2007 )( cruise passenger “ alleged that while onboard, ( he ) purchased a ticket for an onshore excursion to the Crooked Tree Wildlife Sanctuary near Belize City; during the excursion, ( he ) fell through a rotten, broken and defective boardwalk, causing him to suffer serious personal injuries “ ). 113. See Stevenson v. Four Winds Travel, Inc., 462 F. 2d 899 ( 5th Cir. 1972 )( tour participant slips and falls on slimy pier in Amazon jungle ).

114. See Cohen v. Heritage Motor Tours, inc., 205 A.D. 2d 105, 618 N.Y.S. 2d 387 ( 1994 )( tour participant slips and falls on slippery rocks crossing stream in Canadian Rockies ).

115. See e.g., Third Circuit: Gilbertson v. Hilton Worldwide, Inc., 2013 WL 13522146 (D.N.J. 2013)(slip and fall in hotel in Costa Rica). Eleventh Circuit: Oldfield v. Pueblo De Bahia Lora, S.A., 558 F. 3d 1210 ( 11th Cir. 2009 )( “ Richard Oldfield...while searching the internet at his home ( in Florida )...came across the website for Parrot Bay Village. The website, whose text was entirely in English, described the resort as both a ‘ full service resort ‘ and a ‘ unique sport fishing and rainforest eco-lodge ‘...He made arrangements with a charter service for a one-day fishing trip( during which he was injured )”’ ); Gayou v. Celebrity Cruises, Inc., 2012 WL 2049431 (S.D. Fla. 2012)(cruise passenger injured in Costa Rica while participating in “Jungle Breezes Canopy Tour” zip-lining excursion; claims against cruise line for negligence, misleading advertising, negligent misrepresentation, actual agency and breach of third-party beneficiary theory dismissed; claim for apparent authority sustained). 116. See Caplan v. Boyce, 2003 WL 22495836 ( Cal. App. 2003 ) ( tourist participating in boat tour of Galapagos Islands falls off cliff in Ecuador during soccer game; tour boat owners not liable ). 117. See e.g., Second Circuit: Squires v. Atkinson & Muller Travel, Inc., 1997 WL 1068659 ( S.D.N.Y. 1997 )( guest at Hotel Solymar in Cancun, Mexico slips and falls on damp sloping sidewalk and breaks ankle ). Third Circuit: Wilson v. RIU Hotels & Resorts (Riusa II, S.A.),

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2011 WL 3241386 (E.D. Pa. 2011)(guest at resort in Cabo San Lucas, Mexico slips and falls in bathtub/shower in her hotel room; no personal jurisdiction over foreign hotel; guest did not visit hotel’s website; guest “booked her vacation at Riu Palace through the (tour operator/travel agent) Apple Vacations website... Plaintiff needs to demonstrate that Riusa II specifically targeted this forum, which she has not done”); Colvin v. Van Wormer Resorts, 2008 WL 5245987 ( D.N.J. 2008 )( “ Plaintiffs arrived at Hotel Punta Colorado...The fishing camp. Two days later, while boarding a boat via a movable dock, Mary Colvin alleges that she stepped into a hotel in the dock with her right foot. Her leg plunged through the break in the dock, up to her groin. Since only one leg broke through the dock, she fell into a painful split. Her body twisted and rusty nails punctured her leg in several spots...Following the accident Mary Colvin received treatment from a local Mexican clinic...Her legs swelled and she needed a tetanus shot to treat the puncture wounds. Since that time, she alleges that she has required continued care “ ); Inzillo v. The Continental Plaza, 2000 WL 1752121 ( M.D. Pa. 2000 )( guest slips and falls on footbridge at the Continental Plaza in Cancun, Mexico ); Hurley v. Cancun Playa Oasis, 1999 WL 718556 ( E.D. Pa. 1999 )( guest slips and falls at Reserve Hotel in Cancun, Mexico ). Sixth Circuit: Conley v. MLT, Inc., 2012 WL 1893509 (E.D. Mich. 2012)(plaintiff purchases MLT tour through Michigan travel agent featuring accommodations at Mexican resort and was seriously injured “when one of the support poles of the hammock upon which she was laying broke, causing him to fall and suffer serious head injuries. J.C. fractured his skull and was subsequently airlifted from Cozumel, Mexico to Broward County, Florida where he underwent emergency surgery”; defendants included Massachusetts tour operator, MLT, Mexican resorts, Diamond Hotels Cozumel and Holiday Village White Sands, Dutch management companies, Occidental Hotels Management B.V and Occidental Hoteles Management S.L., and a Florida based marketing company, Allegro, owned by the Occidental companies; motion by Occidental companies to dismiss for lack of jurisdiction denied based upon alter ego theory of personal jurisdiction based upon their relationship with Allegro). Seventh Circuit: Breschia v. Paradise Vacation Club, inc., 2003 WL 22872128 ( N.D. Ill. 2003 )( guest at Paradise Village Beach Resort and Spa in Mexico slips and falls on uneven floor ). Ninth Circuit: Focht v. Sol Meklia, S.A., 2012 WL 162564 (N.D. Cal. 2012)(resort guest injured “after falling from a zip line at the Hotel Melia Puerto Valarta (in Mexico)”). Eleventh Circuit: Focht v. Sol Melia, S.A., 2012 WL 162564 (N.D. Cal. 2012)(hotel guest injured falling from zip-line); Manning v. Carnival Corporation, 2012 WL 3962997 (S.D. Fla. 2012)(“Manning’s son, Tyler, is terminally ill and it was his wish to swim with the

321 dolphins. After discussions with Carnival regarding selection of the tour operator, Manning selected the Control adora Dolphin SA de CV as the tour operator for the dolphin encounter at Cozumel, Mexico. After the dolphin encounter...Plaintiff walked down an unreasonably dangerous stairway to get to the beach and lost her footing, falling and fracturing her left ankle”; McLaren v. Celebrity Cruises, Inc., 2012 WL 1792632 (S.D. Fla. 2012)(cruise passenger severely injured disembarking from tour boat to dock); Gibson v. NCL (Bahamas) Ltd., 2012 WL 1952667 (S.D. Fla. 2012)(cruise passenger injured when tour bus employee “without warning roughly grabbed her in an attempt to heave her unto the ‘Jungle Bus’”). State Law: Arizona: Wendelken v. Superior Court, 671 P. 2d 896 ( Ariz. Sup. 1983 )( Arizona resident attends “ Arizona Singles Who’s Who “ weekend party at private residence in Senora, Mexico and skips and falls and breaks hip ). 118. See Kalter v. Grand Circle Travel, 2009 WL 1916242 ( C.D. Cal. 2009 )( “ Jill Kalter purchased a Grand Circle ‘ Amazon River Cruise & Rain Forest ‘ tour along with an optional post-trip extension to visit the Inca ruins at Machu Picchu... Approximately one hour after venturing out on her own, Kalter became lost and disoriented and was concerned about connecting with her group so that she would not miss the train...In an effort to het a better view of where she was, Kalter stepped up onto the bottom two floating steps of a vertical wall...Kalter did not think this was a dangerous act...As a result Kalter fell and suffered serious injuries and is now a quadriplegic “ ).

119. See Steinmetz, Flesh-eating piranhas invade Brazilian beach popular with tourists, www.eturbonews.com (11/18/2011)(“‘I saw that I had lost the tip of my toe. I took off running out of the water afraid that I would be further attacked because of the blood. I am not going back in for a long time”).

120. See Rawlins v. Clipper Cruise Line, 1998 A.M.C. 1260 ( E.D. Mo. 1996 )( accident during whale-watching excursion in waters off Victoria Harbor, British Columbia, Canada ). 121. In Madigan & Hauser, Divers Find Body of Toddler Snatched by Alligator at Disney Resort, www.nytimes.com (6/15/2016) it was noted that “Lane Graves was doing what any 2-year-old boy would be doing on a hot Florida evening-splashing around in the shallow waters of a lagoon. His parents and sister, Nebraskans all, were nearby on the beach at a Disney resort here, relaxing, carefree. Suddenly, an alligator sprang from the water and clamped its jaws around the boy. Lane’s father, Matt Graves, bounded into the lagoon to wrestle his

322 son from the animal’s steel-trap grasp, but lost the battle...The alligator made off with the boy and an intense search for him yielded nothing in the wide, murky expanse of water until more than 16 hours later...when divers found him about six feet below the surface and only 10 to 15 feet from where he had last been seen...’His body was completely intact’ Sheriff Demings said...Alligators are a common sight in Florida ponds, lakes, lagoons and canals. The sheriff said five alligators were taken from the lagoon after the boy went under. They have been euthanized to determine if any of the them killed the boy...Thomas Scolaro, a partner at the Miami law firm Leesfield Scolaro, which has represented families after alligator attacks elsewhere, said that in this case, ‘the facts look horrible for Disney’.’While this is a tragedy, it was entirely preventable had Disney acted reasonably and not left unwitting tourists at the mercy of dangerous and wild animals that roam its resorts’...Wildlife experts estimate that there are 1.3 million alligators in Florida, and that they can be found in all 67 counties”.

122. See e.g., Second Circuit: Valad v. Club Mediterranee, S.A., 84-CIV-1980 (LBS)( S.D.N.Y. 1980 )( horse riding accident alleging failure to give proper riding instructions and failure to render proper medical care; complaint alleged, inter alia, a breach of warranty claim based on the following representation in the tour operator’s brochure “ Very special people staff our villages...They’re eager to offer you expert instruction in a wide variety of sports..and not only do we supply first-rate equipment, we supply first-rate instruction...We teach sports seriously at our villages and with safety our foremost consideration. All sports are conducted under the supervision of our trained and certified instructors “ ). Third Circuit: May v. Club Med Sales, inc., 832 F. Supp. 937 ( E.D. Pa. 1993 )( “ Plaintiff hade a reservation at the Sonora Bay Resort. As part of her activities, Plaintiff went horseback riding. Plaintiff claims that while she was horseback riding, the saddle slipped because it was improperly adjusted, causing her to fall and sustain various injuries ); Tucker v. Whitaker Travel, Ltd., 620 F. Supp. 578 ( E.D. Pa. 1985 ), aff’d mem. 800 F. 2d 1140 ( 3rd. Cir. ), cert. denied 107 S. Ct. 578 ( 1986 )( horse riding accident in the Bahamas). Fourth Circuit: Honeycutt v. Tour Carriage, Inc., 997 F. Supp. 694 ( 1996 )( tourist on package tour to Copper Canyon in Mexico thrown from horse and breaks ankle; tour operator not liable; “ Because Plaintiff was in a far better situation to assess the situation she was in [ steep terrain and unfit horses during horseback riding excursion ] than GOGO Tours and Mann Travelers, they had no duty to warn her of a danger she could have observed but about which they

323 knew nothing “ ). State Law: New York: Barber v. Princess Hotels International, Inc., 134 A.D. 2d 312, 520 N.Y.S. 2d 789 ( 1987 )( guest of Acapulco Princess Hotel thrown from horse and seriously injured for which hotel not liable because horse riding incident “ arranged by local Mexican residents having no affiliation with the hotel and since the accident occurred on property owned by the Mexican government defendants owed no duty to plaintiff “ ). See also: Drunk tourist attacked by crocodiles, www.eturbonews.com (7/19/2015)(in Cancun Mexico at resort hotel). 123. See Breeden & Gilbert, 3 French Athletes Are Mourned After Argentine Air Crash, www.nytimes.com (3/10/2015)(“The three French athletes were flying in two helicopters...on their way into a remote gorge in northwestern Argentina for the filing of a new reality show, ‘Dropped’, in which they would be left to fend for themselves and find their way back to civilization. But the two helicopters touched briefly in midair and then fell to the ground”).

124. See Philippe v. Lloyd’s Aero Boliviano, 589 So. 2d 536 ( La. App. 1992 ), rev’d 710 So. 2d 807 ( La. App. 1998 )( tour participant suffered bilateral cerebral hemorrhages, rupture of blood vessels in the brain and edema resulting from exposure to inadequate oxygen levels at high altitude and rapid decompression during flight in Bolivia ).

125. See Tourists on a whale watching boat: 5 dead, 21 rescued, www.eturbonews.com (10/26/2015)(“The British Columbia, Canada, Coroners Service confirms 5 are dead after a whale watching boat capsized near Tofino. 27 people, mostly tourists, were on the vessel”).

See also: King v. Car Rentals, Inc., 29 A.D. 3d 205, 813 N.Y.S. 2d 448 ( 2006 )( car rental accident in Quebec, Canada ); Lowy v. Heimann’s Bus Tours, Inc., 240 A.D. 2d 548, 658 N.Y.S. 2d 452 ( 1997 )( accident during bus tour in Quebec, Canada; U.S. based tour operator not liable ). 126. See e.g., Third Circuit: Wolf v. Fico Travel, 2011 WL 5920918 (D.N.J. 2011)(members of Cutty Sharks Fishing Club traveled to Costa Rica on a fishing expedition...two of the travelers went out on the Don Carlo which capsized “due to turbulent and choppy” waters, one drowned and one swam to shore). Eleventh Circuit: McLane v. Marriott International, Inc., 2013 WL 1810649 (S.D. Fla. 2013)(back injury sustained during fishing

324 excursion in Costa Rica). State Law: Illinois: Stein v. Rio Parismina Lodge, 695 N.E. 2d 518 ( Ill. App. 1998 )( tourist purchased a fishing vacation tour to Costa Rica from travel agent Fish & Game Frontiers with accommodations at Rio Parismina Lodge; tourist joins fishing trip and is injured when his boat is swamped by waves as river empties into ocean). 127. See e.g., Third Circuit: Hunt v. Global Incentive & Meeting Management, SA, 2010 WL 3740808 (D.N.J. 2010)(same accident involving the Caldwells in Cancun; wrongful death of both plaintiffs; “The van, driven by...Castro and carrying the Hunts along with (the Caldwells) left the airport. Castro did not have a license to drive a motor vehicle...lost control of the van”). Sixth Circuit: Caldwell v. CheapCaribbean.Com, Inc., 2010 WL 3603778 (E.D. Mich. 2010)(tourists being transported from “Cancun, Mexico airport to their hotel rooms in Cancun when a car collision took the lives”). Ninth Circuit: Rockard v. Mexicoach, 680 F. 2d 1257 ( 9th Cir. 1982 )( bus accident in Tijuana, Mexico ); Velasco v. Americanos USA, LLC, 2014 WL 266803 (C.D. Cal. 2014)(tour bus accident in Mexico); Dubret v. Holland America Line Westours, Inc., 25 F. Supp. 2d 1151 ( W.D. Wash. 1998 )( cruise passengers purchased a shore excursion in Acapulco and while being transported by tour bus were severely injured in accident; bus chaperones having identified themselves as cruiseline’s “ representatives “ was “ insufficient to establish apparent authority “ ). Eleventh Circuit: Carnival Corporation v. Operadora Aviomar S.A., 2012 WL 3260310 (S.D. Fla. 2012)(employee of Carnival injured during an ATV shore excursion in Acapulco, Mexico owned and operated by Operadora Aviomar S.A.; motion to dismiss for lack of subject matter jurisdiction granted; contract between parties allowing Aviomar “a provider of land-based excursion at ports-of-call, to sell shore excursions to the passengers of plaintiff” is not a maritime contract which would invoke admiralty subject matter jurisdiction under 28 U.S.C. 1333). District of Columbia Circuit: Stromberg v. Marriott International, Inc., 2007 WL 4165428 ( D.C. Cir. 2007 )( “ Appellant is a Norwegian citizen alleging claims arising from a taxi cab accident that occurred in Mexico while riding in a cab driven by a Mexican national and owned by a Mexican company ); Chung v. Chrysler Corp., 1995 WL 669183 ( D.C.D.C. 1995 )( students killed in rental car crash in Mexico ). State Law: Arizona: Mauer v. Cerkvenik-Anderson Travel, inc., 181 Ariz.

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294, 890 P. 2d 60 ( 1994 )( student falls to death under steel wheels of party train to Mazatlan, Mexico ). California: DeRoche v. Commodore Cruise Line, Ltd., 31 Cal. Rptr. 2d 278 ( Cal. App. 1994 )( cruise passenger on shore excursion injured in motor scooter accident in Cozumel, Mexico ); Pena v. Sita World Travel, Inc., 88 Cal. App. 3d 642, 152 Cal. Rptr. 17 ( 1978 )( tour participant injured in Mexico when tour bas overturns ). Connecticut: Davies v. General Tours, Inc., 774 A. 2d 1063 ( Conn. App. 2001 )( tour participant broke ankle alighting from tour bus in Mexico ). Florida: Varey v. Canadian Helicopters Limited, Case Co: 95-13755-18 ( Fla. Cir. Ct. Broward County )( cruise passengers drowned when helicopter crashes on return to Cozumel, Mexico from tour of ruins at Chichen Itza ). New York: Glasser v. Liberty Travel Service, inc., New York Law Journal, Sept. 6, 1991, p. 21, col. 5 ( N.Y. Sup. 1991 ), aff’d 190 A.D. 2d 616, 593 N/Y/S/ 2d 820 ( 1993 )( tour bus accident in Mexico ); Blue v. General Tours, Inc., 15 CCH Aviation Cases 17,660 ( N.Y. Sup. 1979 )( tour bus accident in Mexico ). Texas: Hudson v. Continental Bus Systems, Inc., 317 S.W. 2d 584 ( Tex. Civ. App. 1958 )( bus accident in Mexico; discussion of liability theories ); Casey v. Sanborns Inc. of Texas, 478 S.W. 2d 234 ( Tex. App. 1972 )( rental car accident in Mexico; Texas tour operator held itself out as being in charge and in control of Mexican service provider ). Wisconsin: Griffin v. Mark Travel Corp., 296 Wis. 2d 642, 742 N.W. 2d 900 ( 2006 )( plaintiffs “ claim that they were injured when a van in which they were riding from the Cancun, Mexico airport to their hotel crashed). 128. See Amtrak Train Derailment; Pennsylvania. See In Flegenheimer, McGeehan, Mouawad & Stolberg, Amtrak Crash Illuminates Obstacles to Plan for Controlling Train Speeds, www.nytimes.com (5/18/2015) it was noted that “Nearly seven years after Congress instructed the nation’s railroads to install an automatic speed control system by the end of 2015, the crash of a speeding Amtrak train last week has laid bare the industry hurdles, regional rivalries and often dismal economies of rail safety. Miles of track on Southern California’s commuter lines still lack the system years after 1 2008 crash that killed 25 people there, fueling the drive to install the technology, known as positive train controls. Chicago’s commuter rails are not likely to have the safety system for years, while comparatively sleepy train service on Amtrak’s Michigan line already has it...Rail safety experts have noted that far less costly upgrades, including an older braking system found on tracks opposite the site of last week’s crash in Philadelphia, would have prevented high-speed derailments like this one. And they say that even with positive rain control, not all

326 accidents can be avoided”; D’Annunzio, ‘Indescribable Horror’ of Amtrak Derailment Prompts Suits, www.law.com (5/18/2015) it was noted that “A cluster of lawsuits against Amtrak stemming from last week’sderailment that injured over 200 people and killed eight has been filed in filed in Philadelphia”; In Stolberg, Mouawad & Fitzsimmons, Amtrak Train Derailed Going 106 M.P.H. on Sharp Curve; at Least 7 killed, www.nytimes.com (5/13/2015) it was noted that “An engineer jammed on the emergency brakes just seconds before Tuesday’s fatal Amtrak derailment, but the train-traveling at 106 miles an hour, more than twice the speed limit-slowed only slightly, federal authorities said, before hurtling off its tracks, killing at least seven people and injuring more than 200. Survivors who emerged battered and bloodied described a chaotic scene, with passengers thrown against walls, furniture and one another, and luggage and other items and falling on terrified riders”. In Passarella, Valuing Damages in Amtrak Crash Made Trickier by $200M Cap, www.law.com (5/14/2015) it was noted that “Lingering over the liability claims expected to be raised by victims of the Amtrak 188 derailment is a 1997 federal law that creates a $200 million damages cap to be paid out for any single railroad accident”. In Shear and Mouawad, Amtrak Says Shortfalls and Rules Delayed Its Safety System, www.nytimes.com (5/14/2015) it was noted “The Amtrak train that derailed in Philadelphia on Tuesday night was equipped with an automatic speed control system that officials say could have prevented the wreck, which killed eight passengers and injured hundreds. But the system, which was tantalizingly close to being operational, was delayed by budgetary shortfalls, technical hurdles and bureaucratic rules, officials said Thursday”.

129. See Harvey v. Sav-U Car Rental, 2010 WL 2949570 (D.V.I. 2010)(rental car accident in Virgin Islands); Banks v. International Rental And Leasing Corp., 2008 WL 2149380 (D.V.I. 2008)(rental ca accident in Virgin Islands).

130. See Isbell v. Carnival Corp., 462 F. Supp. 2d 1232 ( S.D. Fla. 2006 )( “ The excursion consisted of floating down a river in the rain forest in Belize, in and out of caves, while on an inner tube...During the course of the excursion, Plaintiff began to feel ill. Plaintiff’s husband removed her life vest and notice two small puncture wounds on her left upper arm...it was determined that Plaintiff had been bitten by a snake...On October 29, 2004 Plaintiff allegedly suffered a heart attack. Subsequently Plaintiff underwent a successful cardiac surgery...Plaintiff alleges that the snake bite and the treatment that she received as a result thereof have caused a ‘ myriad of long term physical and psychological effects that are compensable in this action ‘” ).

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131. See Mayer v. Cornell University, 107 F. 3d 3 (2d Cir. 1977), cert. denied 1997 WL 336602 ( 1997 )( bird watcher on Cornell University sponsored 28 day tour of Costa Rica drowns while snorkeling off Il DeCano in the Pacific Ocean; plaintiffs alleged that defendants were negligent, inter alia, in failing to have personnel trained in CPR and life-saving techniques available to assist after the drowning and failing to make available and timely provide emergency medical care “ ).

132. See e.g., Second Circuit: Valad v. Club Mediterranee, S.A., 84-CIV-1980 (LBS)( S.D.N.Y. 1980 )( horse riding accident alleging failure to give proper riding instructions and failure to render proper medical care ). State Law: California: DeRoche v. Commodore Cruise Line, Ltd., 31 Cal. Rptr. 2d 278 ( Cal. App. 1994 )( a cruise ship passenger who was injured during a shore excursion in Mexico was treated and underwent surgery at a local Mexican clinic which the cruiseship doctor recommended. The treatment was substandard and upon returning to San Francisco, the passenger underwent additional surgery to correct the malpractice performed on him in Mexico). 133. See Hu, Brisk Business at Bronx Hotel, Center of Legionnaires’ Outbreak, www.nytimes.com (8/27, 2015)(“The Opera House Hotel had to turn off its air-conditioning one hot day this month so that a cleaning crew could scrub away the Legionella bacteria lurking in the cooling tower on its roof...Not much else has changed at the hotel at the center of the worst outbreak of Legionnaires’ disease in the city’s history. Business has been, if anything a little brisker. Occupancy rates have hovered between 90 and 95 percent for the past two months, slightly higher than a year ago, the management said...The Opera House Hotel...remained open throughout the outbreak, which claimed 12 lives and sickened more than 120 people, including two hotel guests, before city health officials declared it officially over last week. City health officials identified the hotel’s cooling tower as the source of the outbreak. Legionnaire’s disease, often described as a severe form of pneumonia, is contracted by inhaling contaminated mist from water sources harboring Legionella bacteria...But for the most part, the Opera House Hotel seems to have escaped the notoriety and stigma that kept guests away from the Philadelphia hotel that was the site of the first outbreak of Legionnaires’ disease in July 1976...In contrast, many guests staying at the Opera House Hotel this summer have shown no hesitation in wheeling their suitcases past its rooftop cooling tower, and the journalists camped out front. }softline‘I think the hotel is more popular than before’, said (Mr. X), who owns a CD shop next to the

328 hotel. ‘Now everybody knows about the Opera House. People are not afraid. They come no matter what’”).

134. See Terrorists execute group of tourists in central Afghanistan, ETN (7/25/2014); Ahmed & Rosenberg, Deadly Attack at Kabul Restaurant Hints at Changing Climate for Foreigners, www.nytimes.com (1/18/2014); Nordland & Rosenberg, Suicide Bomber Strikes Vehicles Carrying Foreigners in Kabul, www.nytimes.com (9/18/2012) (“Fourteen people, 10 of them foreigners, were killed by a suicide bomber on Tuesday, bringing to at least 28 the number of deaths attributed to unrest sweeping the Muslim world as a result of an amateurish video parodying the Prophet Muhammad”).

135. See Air Algerie planes cashes in “high risk” flight zone, ETN (7/24/2014); Nossiter, Militants Seize Americans and Other Hostages in Algeria, www.nytimes.com (1/16/2013)(“Algerian officials said at least two people, including a Briton, were killed in the assaults which began with a predawn ambush on a bus”); Steinmetz, Report warns of new al-Qaeda hub in North African ‘Arc of Instability’, www.eturbonews.com (3/1/2013)(“A new report on terrorism in North Africa warns of a new al-qaeda hub for jihadi recruits and a potential launching pad for terrorist attacks...The report say al-Qaeda-led extremists attempted seizure of Mali’s capital and their deadly attack on Algeria killed 37 foreign hostages resulted from a regional terrorism threat”).

136. See See Tourist falls to his death while scaling crane in Brisbane, www.eturbonews.com (6/30/2015); Steinmetz, Deadly shark attacks killing tourism in Western Australia, www.eturbonews.com (7/19/2012).

137. See Steinmetz, Singaporean visitor dies while climbing Mount Batur, www.etubonews.com (12/23/2012)(“A Singaporean tourist died suddenly while climbing Mount Batur on the resort island of Bali”); Steinmetz, One Australian visitor dies in Bali every nine days, www.eturbonews.com (8/12/2012)(“Consular officials say alcohol and drugs fuel many of the accidents, while nightclub fights are among the biggest cause of trouble for thousands of Aussies who fly to the tropical island every year. Information release by the Department of Foreign Affairs reveals 39 Australians died in Bali in 2011-12. Another 93 sought consular help after being taken to hospital while 36 were arrested, 18 jailed and eight needed support after being attacked...traffic accidents were the biggest cause of deaths after natural causes”).

138. In Manik, Anand & Barry, Bangladesh Attack Is New Evidence That

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ISIS Has Shifted Its Focus Beyond the Mideast, www.nytimes.com (7/2/2016) it was noted that “Friday night’s assault on the Holey Artisan Bakery in the diplomatic district of Dhaka, in which at least 20 hostages and two police officers were killed, marks a scaling up of ambition and capacity for Bangladesh’s Islamist militancy...Among the dead...were nine Italians, seven Japanese, two Bangladeshis, one American and One Indian”.

See also: Passenger train crashes into a tour bus leaving 9 dead, 50 injured, ETN (8/1/2014). 139. See Shea v. Global Travel Marketing, Inc., 2003 WL 1916874 ( Fla. App. 2003 )( “ The child, age eleven, was killed while on safari with his mother in Botswana. He was sleeping alone in a tent at a campsite when he was dragged from his tent and mauled by hyenas “ ) reversed and remanded 908 So. 2d 392 (Fla. Sup. 2005).

See also: Steinmetz, Pilot, seven tourists die in Botswana charter plane crash, www.eturbonews.com (10/18/2011). 140. See Petitt v. Boeing Co., 2010 WL 3861066 (N.D. Ill. 2010) (Kenya Airways aircraft crashes in Cameroon killing all 114 passengers onboard). 141. In Steinmetz, Terror in Cape Verde Islands: Airport closed, 10 dead, www.eturbonews.com (4/26/2016) it was noted that “Media reports in the Cape Verde islands off West Africa say Cape Verde’s main airport and country’s airspace have been closed after 8 solders and 3 civilians were found dead at army barracks on Tuesday. The website of local newspaper A Semana says two of the dead civilians are from Spain”.

142. See In Wong, Hundreds Missing After Chinese Cruise Ship Sinks on Yangtze, www.nytimes.com (6/1/2015) it was noted that “Most of the 458 people aboard a chartered cruise ship in China were still missing on Tuesday morning, more than a dozen hours after the vessel sank during a torrential rainstorm along the central Yangtze River...Just 13 people had been rescued, local news media reported, making this perhaps the worst passenger maritime disaster in East Asia since the sinking of the South Korean ferry Sewol last year. The water where the boat sank is about 50 feet deep. Rescuers could hear the sounds of people trapped inside...Most of the passengers were 50 to 80 years old and had been traveling on a group tour...The ship capsized, with part of the hull above the surface of the water”.

See e.g., Second Circuit: Barkanic v. General Administrator of Civil Aviation, 923 F. 2d 957 ( 2d Cir. 1991 )( “ On January 18, 1985, Peter Barkanic and Donald Fox, citizens of the District of Columbia and New Hampshire, respectively, were killed in the crash of a Chinese

330 plane en route from Nanking to Beijing, China... (liability limited to $20,000 applying Chinese law; Warsaw and Montreal Conventions do not apply to intra-country air transportation). Foreign Law: Great Britain: Wong Mee Wan v. Kwan Kin Travel Services Ltd., 4 All. ER 745 ( 1995 )( Hong Kong tourist drowns as a result of speedboat accident crossing a lake in China ). See also: Canadian tourist kills Chinese woman on the Great Wall, www.eturbonews.com (4/10/2015); Shenzhen airport car crash: Five dead, www.eturbonews.com (3/1/2015)(“At least five people died and 24 were injured when a red Mercedes-Benz sedan ploughed into a group of people on an overpass leading into Shenzhen Baoan International Airport”); Steinmetz, US and Taiwanese tourists killed in China’s Hunan province, www.eturbonews.com (4/30/2013)(“tour bus “turned over and fell from a cliff in China’s Hunan province”); www.eturbonews.com (11/5/2012)(three Japanese tourists dead after being stranded overnight on the Great Wall); Santora, Two Americans Are Buried a Year After a Train Crash in China, www.nytimes.com (9/1/2012)(“A year ago Cao Erxing and his wife, Chen Zengrong, both 56, were killed in a high speed train crash in China...which left 40 people dead and 191 passengers injured in July 2011. The accident rattled the Chinese government and raised questions about the safety of the nation’s high-speed rail system”); 51 Dead in China Travel Accidents, www.voanews.com (May 22, 2010)(bus and railroad accidents kill 51 persons and injure 71 other rail passengers). 143. See At least 60 dead in Congo train crash, ETN (4/24/2014); Linda, Another plane crash in Goma shakes Congo travelers, www.eturbonews.com (5/4/2013)(“A Fokker 50 aircraft owned and operated by...Compagnie Africaine d’Aviation, crashed this afternoon while attempting to land in Goma...killing at least 36 crew and passengers”).

144. See Steinmetz, Seven dead in East Java tourist bus crash, www.eturbonews.com (5/8/2012).

145. In Walsh & Fahim, EgyptAir Flight Believed to Have Crashed at Sea; Egypt Cites Possible Terrorism, www.nytimes.com (5/19/2016) it was noted that “The EgyptAir red-eye from Paris to Cairo, an Airbus A320 jetliner less than half full had just entered Egyptian airspace early Thursday (when it) plunged 28,000 feet, disappearing from the radar screens of Greek and Egyptian air traffic controllers...Egyptian officials suggested that terrorism was a more likely cause for the disappearance than mechanical failure...The loss of the l\flight was the second civilian aviation disaster to hot Egypt in the past seven months”; Walsh, Egypt Sends Submersible in Search

331 for EgyptAir Jet’s Black Boxes, www.nytimes.com (5/22/2016) it was noted that “A statement from the Islamic State on Saturday failed to mention the EgyptAir crash, confounding speculations that the group, which claimed to have been behind the bombing of a Russian airliner in Sinai in October, might have been responsible”; Mexico ‘dissatisfied’ with Egypt’s failure to probe the killing of tourists, www.eturbonews.com (5/13/2016) it was noted that “Mexico has expressed its dissatisfaction with the Egyptian government’s response to an aerial bombing last year in which eight Mexican tourists were killed”.

See Schmidt, Consensus Grows for Bomb as Cause of Russian Jet Crash, Officials Say, www.nytimes.com (11/8/2015) it was noted that “there was a mounting consensus among American intelligence officials that a bomb brought down the Russian airliner jet that crashed last month in the Sinai Peninsula in Egypt, killing all 224 people aboard”. See also: Castle, Britain, Concerned About Russian Crash, Halts Sinai Flights, www.nytimes.com (11/4/2014); ‘Rescue flights’ to fly stranded British tourists out of Sharm el Sheikh, www.eturbonews.com (11/5/2015);http://www.eturbonews.comhttp://www.eturbonews.com Stack, Egypt Security Forces Accidently Kill Mexican Tourists, www.nytimes.com (9/13/2015)(“Egyptian security forces opened fire on a caravan of tourist vehicles in the country’s Western Desert late Sunday night, killing at least 12 people from Mexico injuring 10 others, among them Mexican tourists and their Egyptian tour guides, officials said...The security forces said that they had believed that the vehicles were being used totransport terrorists. The statement said the group had been driving in a restricted area where unauthorized access is banned”; Thomas & Kirkpatrick, Egyptian Military Said to Fire on Mexican Tourists During Picnic, www.nytimes.com (9/14/2015)(“The convoy of four sport utility vehicles full of Mexican tourists about three hours southwest of Cairo on a typical adventure trip through the White Desert...with the blessing of their police escort, and the apparent added security of an Apache military helicopter buzzing on the horizon, the group pulled off for a picnic...Then the helicopter opened fire, killing at least a dozen people-including at least two Mexicans- while wounding a tourist police officer and at least nine others”);

See also: Guidi v. Inter-Continental Hotels Corp. 203 F. 3d 180 ( 2d Cir. 2000 )( “ In October 1993 [ the guests ] were in Egypt on business. While eating dinner in the restaurant of the Semiramis Inter-Continental Hotel...all three men were shot by an Egyptian gunman named Farahat...In addition to the three Americans, Farahat shot a Syrian lawyer, a French lawyer and Italian judge “; defendants’ forum non conveniens motion denied; plaintiff’s emotion al burden

332 in being to litigate in Egypt must be considered ); Niv v. Hilton Hotels Corporation, 2008 WL 4849334 ( S.D.N.Y. 2008 )( “ This action arises out of the tragic events that took place on October 7, 2004 at the Hilton Taba Hotel in Taba City, South Sinai, Egypt when a terrorist drove a vehicle with explosives into the lobby of the hotel, causing an explosion and the hotel’s collapse. Plaintiffs are 157 individuals who were guests or whose decedents were guests of the Hilton Taba Hotel on October 7, 2004. Plaintiffs contend that the Hilton Taba Hotel is ‘a long-favored holiday destination ‘ for Israelis and that the hotel markets to Israeli tourists “); Klinghofer v. S.N.C. Achille Lauro, 795 F. Supp. 112 ( S.D.N.Y. 1992 )( cruise passenger in wheelchair murdered by PLO terrorists).

See also: Shark attacks, kills German visitor in al-Qusair, www.eturbonews.com (3/24/2015); Two killed in Egyptian tourist resort bombing, www.eturbonews.com (3/2/2015); Sheikh & Fahim, Dozens Are Killed in Street Violence Across Egypt, www.nytimea.com (10/6/2013); Baran, Fatal hot-air balloon crash latest in Egypt’s tourism setbacks, Travel Weekly, May 4, 2013 p. 9 (“At least 18 foreign tourists were killed last week in a hot-air balloon crash near Luxor...caught on fire and crashed into a field (plunging 1000 feet)”); Steinmetz, 1 Chinese tourist killed, 3 injured in Egypt, www.eturbones.com (3/3/2013)(“A mini-bus overturned Saturday morning on the highway from Egypt’s Aswan to tourist attraction Abu Simbel, killing one Chinese tourist and leaving another 143 people on board injured–among them three Chinese nationals’); See Steinmetz, 19 tourists killed as hot air balloon explodes, crashes in Egypt, www.eturbonews.com (2/25/2013)(“19 foreign tourists were killed when a hot air balloon exploded and plummeted from the sky in southern Egypt...A total of 21 people were in the balloon when it fell about 300 meters...in the city of Luxor”); Steinmetz, Egyptian Jihadistleader calls for destruction of pyramids and the Sphinx, www.eturbonews.com (11/12/2012)(“El-Gohary, a Salafist Jihadist leader in Egypt, fought with the Taliban movement in Afghanistan in the 1990s...’We will demolish the pyramids and the Sphinx like we did with Buddha”); Linda, Why are terrorists attacking tourists?, www.eturbonews.com (4/17/2012)(“With the rebels, including Islamist factions preaching Sharia of Island, now in control of Timbuktu’s streets, tourists may not return soon...On October 21, 1992, militants ambushed a tourist bus, killing a British woman and injuring two British men. The woman was the first foreigner to die in militant-related violence in Egypt...Egyptian militants considered this development real success as it got international attention about their fight against the then Egyptian government and it was an easy way to promote their struggle....To understand the trend of terrorism against tourism, one can cite the following terrorist attacks on tourists or tourism

333 destinations to look at the similarities of these events (1) Gunmen in Ethiopia’s arid north attached a group of European tourists traveling in one of the world’s lowest and hottest regions, killing five, wounding two and kidnaping two...(on) January 18, 2012. (2) The 2005 Sharm el-Sheikh attacks were a series of terror attacks on July 23, 2005, perpetuated by an Islamist organization, targeting the Egyptian resort city of oftlineCharm el-Sheikh...Eight-three people were killed, the majority of them Egyptians and over 200 were wounded by the blasts...(3) The 2003 Casablanca bombings were a series of suicide bombings on May 16, 2003...Forty-five people were killed...(12 suicide bombers and 33 victims)...(4) The Luxor Massacre refers to the killings of 62 people, mostly tourists that took place of November 17, 1997... the majority of attacks on tourists were in the poorest countries of the world where tourism could play a pivotal role to enhance economies"); Steinmetz, Eleven Hungarian tourists killed in Egypt, www.eturbonews.com (11/7/2011). 146. See Steinmetz, Tourist feared to have been eaten by cannibals in French Polynesia, www.eturbonews.com (10/17/2011).

147. See Steinmetz, Two crashes in one weekend shock Africa’s frequent flyers, www.eturbonews.com (6/4/2012)(147 passengers die in crash of Dana Air commercial aircraft in Lagos preceded by crash in Accra killing a dozen people)

148. See e.g., First Circuit: Nowak v. Tak How Inc. Ltd., 1995 WL 521874 ( D. Mass. 1995 )( guest drowns in hotel pool in Hong Kong ). Ninth Circuit: Beaudu v. Starwood Hotels and Resorts Worldwide, Inc., 2005 WL 1877344 ( W.D. Wash. 2005 )( Marcel Beaudu, a FedEx international airline pilot experienced a heart attack and died at the Sheraton Hong Kong Hotel & Towers). Foreign Law: Great Britain: Wong Mee Wan v. Kwan Kin Travel Services Ltd., 4 All ER 745 ( 1995 )( Hong Kong tourist drowns in boating accident crossing Chinese lake ).

149. See Deadly rafting accident for tourist in Kashmir, ETN (5/9/2014); Sengupta, “ At Least 100 Dead in India Terror Attacks “, The New York Times at nytimes.com, November 27, 2008 ( “ Coordinated terrorist attacks struck the heart of Mumbai, India’s commercial capital, on Wednesday night, killing dozens in machine-gun and grenade assaults on at least two- five star hotels, the city’s largest train station, a Jewish center, a movie theater and a hospital. Even by the standards of terrorism in India, which has suffered a rising number of attacks this year, the assaults were particularly brazen in scale and execution. The attackers used boats to reach the

334 urban peninsula where they hit and their targets were sites popular with tourists. The Mumbai police said Thursday that the attacks killed at least 101 people and wounded at least 250. Guests who had escaped the hotels told television stations that the attackers were taking hostages, singling out Americans and Britons...Hours after the assaults began, the landmark Taj Mahal Palace & Tower Hotel, next to the famed waterfront monument the Gateway of India, was in flames. Guests banged on the windows of the upper floors as firefighters worked to rescue them. Fire also raged inside the luxurious Oberoi Hotel according to the police. A militant hidden in the Oberoi told India TV on Thursday morning that seven attackers were holding hostages there. ‘ We want all mujahedeen in India released and only after that we will release the people ‘, he said. Some guest, including two members of the European Parliament who were visiting as part of a trade delegation, remained in hiding in the hotels, making desperate cellphone calls, some of them, to television stations, describing their ordeal “ ). See also: Steinmetz, Dutch tourist confesses to murdering British backpacker, www.eturbonews.com (4/9/2013)(“The Dutch tourist who was arrested for the alleged murder of a British woman...(who) had also been raped (and) stabbed ...repeatedly in the private parts, thighs and the abdomen”); Steinmetz, Tourist from Switzerland found dead in India hotel, www.eturbonews.com (10/14/2012)(“A 65-year-old tourist from Switzerland was found dead at a hotel in Pushkar town of Sunday”); Steinmetz, Indian Mujahideen bandits target growing tourism industry, www.eturbonews.com (12/5/2011)(“India’s growing tourism industry is now on the radar of the Indian Mujahideen terror outfit which appears determined to project India being unsafe for tourists”). 150. See Manado, Indonesia: 17 killed in a packed karaoke bar early Sunday, www.eturbonews.com (10/25/2015)(“Seventeen people were killed in a fire that raced through a packed karaoke bar early Sunday on Indonesia’s Sulawesi island, and 71 others were hospitalized for smoke inhalation”).

In Cochrane, Indonesian Plane Carrying 54 Is Declared Missing in Papua, www.nytimes.com (8/16/2015) it was noted that “Rescue teams were searching Monday for the wreckage of an Indonesian commercial aircraft carrying 54 people that was believed to have crashed on Sunday amid inclement weather in the eastern region of Papua...Trigana Air Service (operated the aircraft and) has had 14 crashes-three of them resulting in fatalities-since it began operations in 1991, including a crash in 2006, also in Papua Province, that killed all 12 passengers and crew aboard, according to the Aviation Safety Network”. 151. In Hassan, Arango & Al-Jawoshy, Bombing Kills More Than 140 in Baghdad, www.nytimes.com (7/3/2016) it was noted that “As

335 celebrations for the Muslim holy month of Ramadan stretched past midnight into Sunday in central Baghdad, where Iraqis had gathered to eat, shop and just be together, a minivan packed with explosives blew up and killed at least 143 people-the third mass slaughter across three countries in less than a week”.

152. See Siegel v. Global Hyatt Corporation, 2013 WL 5436610 (Ill. App. 2013)(suicide bomber blows up hotel in Jordan).

See also: Three French visitors killed in Jordan, ETN (3/10/2014); Steinmetz, Belgian visitors killed in Jordan coach accident, www.eturbonews.com (10/28/2012)(“Four Belgium tourists have been killed in a coach accident in central Jordan...vehicle carrying the tourists overturned after a collision with another vehicle”). 153. See e.g., Third Circuit: Abercrombie & Kent v. Carlson Marketing Group, 1990 WL 20213 ( E.D. Pa. 1990 )( tour participants on safari tour killed when plane crashes into mountain in Kenya; passengers claims settled for $3,000,000; indemnification sought). State Law: Washington: Rizzutti v. Basin Travel Service, 125 Wash. App. 602, 105 P. 3d 1012 ( 2005 )( “ In early 1999, Ms. Rizzuti contacted...( Basin Travel Agency )“ ) about booking travel on the Livingstone Safari, a package tour of Africa arranged by Amercrombie & Kent International ( A&K ) an Illinois based tour operator. The Livingstone Safari included roundtrip airfare from Los Angles and all transportation, accommodations, and meals during the 15-day tour of Africa...The Livingstone Safari included a flight between Nairobi, Kenya and Arusha, Tanzania, that A&K chartered on Northern Air. Ms. Rizzuti and all other passengers and crew were killed in early September 1999 when the Northern airplane crashed into Mount Meru “).

See also: See Somali Militants Kill 147 at Kenyan University, www.nytimes.com (4/2/2015); Steinmetz, German tourists killed in Kenyan plane crash, www.eturbonews.com (8/23/2012)(“Four people dies when a small passenger plane crashed on the runway in Kenya’s renowned Masai Mara national park...There were 11 foreign tourists on board of the aircraft: five Germans, two Americans and two Czechs. Two Kenyan pilots and two German tourists were killed”); Steinmetz, Attack on British and Swiss Tourists in Kenya, www.eturbonews.com (11/7/2011)(“ The attack took place north of Isiolo in an area with several games reserves that is also known for banditry”); Steinmetz, Terror attack in Nairobi disco leaves 14 wounded, www.eturbonew.com (10/24/2011) (“A grenade exploded in a nightclub in the bustling centre of Kenyan

336 capital Nairobi...the attack came a week after Kenya launched a cross-border operation against al Qaeda-linked al Shabaab militants in Southern Somalia after a wave of kidnaps of foreigners on Kenyan soil”); Sayare, Frenchwoman Abducted in Kenya Dies, www.nytimes.com (10/21/2011) (“The woman, Marie Dedieu, 66, was dragged from a beachfront bungalow on Manda, an island that is a tourist destination... Witnesses said a small group of heavily armed Somalis beached their speedboat in front of her home...A recovering cancer patient and quadriplegic who had lived on the island for years, Ms. Dedieu was taken without her wheelchair or medication”). 154. See Steinmetz, Despite new regulations drunken tubing goes on in Laos, www.eturbonews.com (9/17/2012)(“Attempts by Laos authorities to limit the damage caused by the tourist craze of ‘tubing’-floating down river in the inner-tube of a tire-may have had mixed success. After a spate of tourist deaths on the Nam Song River in Vang Vieng, Laos, authorities from the capital have closed more than two dozen of the riverside and late-night island bars that are pit-stops for tubing tourists”).

155. See British visitor vanishes in Malaysian jungle, ETN ( 6/1/2014); British tourist killed in Malaysia bus crash, ETN (4/20/2014).

156. See Maldives no longer safe for Israeli tourists?, ETN (7/30/2014)(“34 tourists were threatened and evacuated by Maldives security authorities on the Maldives holiday of Kaafu Thulusdhoo”).

157. See Searcey, Nossiter, Gali & Sengupta, Hotel Attack in Mali Reverses Gains in Flight Against Extremism, www.nytimes.com (“With its marble floors, open atrium and lipstick-red lounge, the Radisson BLU Hotel served as a lifeline to the world, a gathering place where diplomats, contractors and others doing business in Mali, one of the poorest countries on earth, could all be found. Now, bullet holes pockmark the walls and blood is pooled on stairs...(the Radisson Blu is the site of a massacre in which terrorists killed 19 people”).http://www.nytimes.com

See also: 2014 Mali Air Algerie MD-83 crash: Pilot was warned, www.eturbonews.com (4/4/2015)(“France’s BEA crash investigation agency, which is helping Mali to investigate the crash that killed 116 people”); Steinmetz, How safe is Mail?, www.eturbonews.com (11/30/2011)(“Following the recent kidnaping of three tourists-one of which is a Dutchman-and the killing of a German in the town of Timbuktu in North Mail...His safe is Mali?”). 158. See Myanmar ferry accident kills 21, www.eturbonews.com

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(3/14/2015)(“ A passenger ferry has sunk off the coast of western Myanmar, leaving at least 21 people dead and 26 missing”).

159. See Hundreds of European tourists still “not accounted for” in Nepal, www.etrubonews.com (5/2/2015)(“More than 6,200 deaths have been caused by the April 25 earthquake”); Steinmetz, Belgian tourist missing in Himalayas found dead with her head cut off, www.eturbonews.com (6/27/2012)(“A female hiker who went missing in the Himalayas was found ten days later with her head cut off...The Belgian’s death in Langtan National Park, on the border with Tibet, is the latest in a string of assaults and disappearances of young women in Nepal’s Himalaya national parks. The U.S. Embassy has now issued a warning against women trekking solo in the region”); Steinmetz, 19 dead in plane crash near Kathmandu, www.eturbonews.com (9/27/2012)(“Sita Air Dornier aircraft, which was carrying 16 passengers and three crew members, caught fire and crashed on Friday morning near Kathmandu airport. All 19 people...reportedly have died in the crash...the plane was heading to the city of Likla-a transit hub for the tourists and mountain climbers heading for Mount Everest”).

160. See Tourist killed in brutal shark attack (off coast of New Caledonia), www.eturbonews.com (5/11/2015).

161. See Steinmetz, NZ police wants tourist warned after visitor killed in car crash, www.eturbonews.com (1/6/2013)(“A 61 year old Israeli woman died and two others were taken to Southland Hospital after their rented Toyota Corolla left the road and crashed into a tree’); Steinmetz, Mad Dog River Boarding fined over tourist’s death, www.eturbonews.com (8/25/2009)(“A New Zealand court fined an adventure tourism company...and ordered it to pay reparations to the family of an English woman who drowned while river boarding. Mad Dog River Boarding pleaded guilty to two counts of negligence”).

162. See Armed bandits hack French tourist to death in southeast Nigeria, www.eturbonews.com (6/5/2015); Amnesty International Shocking Report from Nigeria: Boko Haram, www.eturbonews.com (4/14/2015)(“At least 2,000 women and girls have ben abducted by Boko Karam since the start of 2014 and many have been forced into sexual slavery and trained to fight”); Experts analyze terrorism bombing of Nigerian bus terminal, ETN (4/21/2014); Steinmetz, Two crashes in one weekend shock Africa’s frequent flyers, www.eturbonews.com (6/4/2012)(147 passengers die in crash of Dana Air commercial aircraft in Lagos, Nigeria preceded by crash in Accra, Ghana killing a dozen people).

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163. See Steinmetz, North Korea blames Seoul for the death of Mt. Kumgang tourist, www.eturbonews.com (12/10/2012)(“North Korea...claimed the July 2008 shooting death of South Korean tourist by the North’s troops at Mt. Kumgang resort was the ‘product of a deliberate scheme’ from Seoul...North Korea blames South Korea for failing to control visitors and insists the tours, which had been a substantial cash cow for the cash-strapped regime, must resume, even though the Stalinist country has adamantly refused to offer security guarantees or permit the South to investigate the incident”).

164. See In Hassan, Inayat & Masood, Keen Pain in Pakistan Over Lives ‘Shattered Into Pieces’, www.nytimes.com (3/28/2016) it was noted that “Extremist groups have long made a campaign of attacking religious or ethnic minorities in Punjab. The attack on Sunday was claimed by Jamaat-e-Ahrar, a splinter group of the Pakistan Taliban, which said it was targeting Christians who had gathered in the park for Easter...Most of the victims were working-class or poorer. The attack came just days after the National Assembly adopted a resolution to recognize Easter and the Hindu festivals of Holi and Diwali, as public holidays, in what some here saw as a vital call for tolerance and others saw as offensive in a state officially built on Islam. That gesture, too, was marred by the bomber’s strike”.

See also: DeFederico v. Marriott Intern national, Inc., 2013 WL 1811872 (4th Cir. 2013)(terrorist attack on hotel in Pakistan).

See also: Pakistan train derails: 15 dead, over 100 injured, www.eturbonews.com (11/17/2015)(“At least 15 persons were killed and over 100 injured as a Rawalpindi-bound Jaffar Express derailed near Aab-e-Gum Railway Station in Bolan district Tuesday afternoon”). Suicide bomber attacks Pakistan-Zimbabwe cricket match, www.eturbonews.com (5/30/2015); Sea view beach tragedy: 24 bodies of tourists recovered so far, many still missing, ETN 8/1/2014); Terror attack on PIA flight-one woman killed, ETN (6/24/2014); Linda, Taliban killed 22 more in Mansehra, www.eturbonews.com (8/17/2012)(“After ruling Swat Valley for years and destroying the tourism industry, the Taliban has successfully established their base in another beautiful valley of Pakistan-Naran Valley-and they have killed 22 people on 3 passenger buses that (were) traveling on Karakuram Highway from the Babusar Pass”); Bradsher, “ Analysts Say It Will Be Difficult to Shield Luxury Hotels From Terrorist Attacks “, The New York Times, nytimes.com, December 1, 2008 ( “ For decades, luxury hotels have been an oases for travelers in developing countries, places to mingle with the local elite, enjoy a lavish meal or a dip in the pool and sleep in a clean, safe room. But last week’s lethal attack on two of India’s most famous hotels–coming just two

339 months after a hugh truck bomb devastated the Marriott in Islamabad, Pakistan-have underlined the extent to which these hotels are becoming magnets for terrorists. Worse, hotel executives and security experts say that little can be done to stop extensively trained gunmen with, military assault rifles and grenades who launch attacks like the ones that left this city’s Oberoi and Taj Mahal Palace & Tower strewn with bodies “ ). 165. See Philippines deadly ferry accident with 176 tourists and local passengers on board, www. eturbonews.com (7/2/2015) (“Kim Nirvana, a ferry heading from the central city of Ormoc to the island of Manotes in the Philippines, capsized with 173 tourists and passengers on board, killing at least 16 according to the Coast Guard stationed in Ormac”. And in Antonio, Whatever Happened to...? Justice eludes ‘Princess of the Stars’ victims, http://newsinfo.inquirer.net (6/23/2015) it was noted that “The struggle for justice for hundreds of victims of the ill-fated MV Princess of the Stars is far from over. On June 21, 2008, the 23,824-ton ferry sailed from Manila...on a 22-hour trip to Cebu City, carrying 851 passengers ...when it ran into an approaching typhoon and keeled over. Only 32 survived the sinking, one of the Philippine’s worst sea tragedies. The remains of 300 were later recovered, but another 400 remained missing...A total of 135 cases have been lodged in Manila and Cebu by families of the victims against Sulpicio Lines, seeking damages worth P1.04 billion for negligence and breach of contract of carriage...But no one has been held criminally liable for the disaster”; Two Chinese diplomats killed, one wounded in restaurant attack in Philippines, www.eturnonews.com (10/21/2015)(“China’s consul general in the Philippines’ second biggest city was wounded and two of his staff members were killed on Wednesday during a lunchtime gun attack at a restaurant, police said”). See also:http://www.eturbonews.com One Chinese tourist killed, another wounded in Manila shooting, ETN (5/5/2014); Philippines and Hong Kong settle row over killed tourists, ETN (4/25/2014); Steinmetz, German tourists, tour guide killed in Philippine volcano eruption, www.eturbonews.com (5/8/2013)(“Three German tourists and their Filipino tour guide were killed yesterday when the Mayon volcano exploded into life, spewing massive boulders ‘as big as cars’ and a giant ash cloud”). 166. See Steinmetz, German tourists die in bizarre submarine accident in Red Sea, www.eturbonews.com (2/10/2012).

167. In Hubbard, Suicide Bombings Hit 3 Cities in Saudi Arabia, One Near a Holy Site, www.nytimes.com (7/4/2016) it was noted that “Bombings rocked three cities across Saudi Arabia on Monday, including near the Prophet’s Mosque in the holy city of Medina... The blasts in Saudi Arabia followed a bloody week in which terrorists

340 attacks caused mass casualties in the largest cities of three predominantly Muslin countries: Turkey, Bangladesh and Irag”.

See More than 700 killed in massive hajj stampede near Mecca, www.eturbonews.com. (9/24/2015) (“A massive stampede killed at least 717 people and injured hundreds at the hajj in Saudi Arabia...in one of the worst-ever tragedies at the annual Muslin pilgrimage. The stampede, the second deadly accident to hit the pilgrims this month following a crane collapse in Mecca, broke out during the symbolic stoning of the devil ritual...Bodies of pilgrims wearing traditional white clothing were left scattered by the crush”).

168. In Steinmetz, Hotel under attack: 15 dead, www.eturbonews.com (6/25/2016) it was noted that “It’s a scene of terror and death on Saturday. The Naso Hablod Hotel in Mogadisgu, Somalia is a hotel known with a high degree of safety and comfort for business travelers and tourists...At least 15 people are dead and 25 others are injured as a result of Saturday’s car bombing and gun attack at the hotel”.

In Steinmetz, Deadly attack on Mogadishu Hotel, www.etorbonews.com (6/1/2016) it was noted that “At least 10 killed, 25 injured in Mogadishu hotel attack. We understand the attack on a Mogadishu hotel started with a car bomb and gunfire followed”.

See Seven people killed, hostages held at Mogadishu hotel, www.eturbonews.com (3/27/2015). 169. See Lerner, Lion mauls Rye woman in S. Africa, The Journal News, June 4, 2015, p. 1 (“A Rye native mauled to death by a lion in South Africa was about to start a two-week volunteer stint on a wildlife preserve dedicating to saving rhinoceroses and elephants...Kate Chapell was killed Monday when a lion dragged her from her car as she was riding through a safari park near Johannesburg...Lt. Col. Lungelo Dlamini, a spokesman for the police (said) ‘The allegation is that while she was driving, the window was open and the lion attacked’. Simpson, the park spokesman, said opening windows is against park policy, and numerous signs-plus leaflets given to visitors-reinforce those rules. About 180,000 tourists visit the park every year”).

See also: Steinmetz, Two dead, dozens injured in South Africa tourist boat disaster, www.eturbonews.com (10/14/2012)(“A Brit is reported to be among the dead after a seal-watching boat carrying 41 passengers capsized in rough waters of Cape Town...The locally-owned motorized boat (carried) regular whale, dolphin and seal watching tours”); Geldenhuys, Crimes Against Tourists www.servamus.co.za (4/30/2008)(“The escalation of crime in South

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Africa has caused feelings of fear among local foreign tourists who visit holiday resorts...Some tourist attacks that have made news headlines are the following: On 24 March 2008, 14 tourists from Canada, Britain and the USA were robbed at gunpoint by three men of money, cameras and cellphones...On 24 January 2008 two German tourists were robbed in the Johannesburg City Centre. Three men forced open the windows of the vehicle the tourists were traveling in and stole passports, cameras...On 2 July 2005 a group of tourists...were attacked and held at knife point while on a hike just outside Port St. Johns...In 2000 a Polish honeymoon couple were brutally attacked at a look-out post at the Sterkfontein dam near Harrissmith. After murdering the groom, the criminals gang-raped the women on several occasions”). 170. See S Korea court gives captain life sentence for murder, www.bbc.com (4/28/2015) it was noted that “An appeals court has sentenced the South Korean captain of the Sewol ferry to life in prison on a murder charge, strengthening an earlier conviction. Lee-Joon-seok was at the helm when the ferry went down in April 2014 killing more than 300 people, mostly children. He had been found guilty in November of gross negligence and sentenced to 36 years, but relatives of the dead were furious he was not convicted of murder”.

171. See Cholera kills hundreds in South Sudan, 5000 children at risk, www.eturbonews.com (7/3/2015); Linda, Another Antonov crash rocks Sudan, www.eturbonews.com (10/7/2012)(“Sudan has suffered a significant number of civilian and military air accidents, often with former Soviet Union era aircrafts involved, as is the case here, and suspicions regularly focused on poor maintenance, often allegedly falsified maintenance records and lack of crew training on simulators...While many African countries have moved to ban the registration and in part even the use of these ancients aircraft, the Sudan-as has the Congo DR with an equally bad aviation record-has continued to permit the use of such stone age birds”). Steinmetz, Sudan airline crash kills 31, www.eturbonews.com (8/20/2012)(“The Sudan has one of the worst aviation accident records in Africa, often attributed to poor aircraft maintenance and the lack of regular crew training as required for commercial aviation and also the use of ‘stone-age’ generation Soviet era aircraft, which have long been banned from registration and use in many other jurisdictions”). See also: Clark, E.U. Expands Airline “Blacklist”, www.nytimes.com (4/1/210)(“The European Union on Tuesday banned all airlines from the Philippines and Sudan from flying into the region’s airports, citing ‘serious safety deficiencies’ found by the United Nations and U.S. aviation authorities”).

172. See Sun v. Taipei Economic, 2002 WL 464512 ( 9th Cir. 2002 )(

342 student drowns at Little Bay beach; failure to warn of “ beach was dangerous because it was exposed to severe undertow, high waves and surf “ ); Sun v. Taiwan, 1998 WL 738002 ( N.D. Cal. 1998 ), rev’d 201 F. 3d 1105 ( 9th Cir. 2000 )(tourist drowns during recreational visit to Ken-Ting National Park ).

See also: TransAsia passenger planed crashed in Taiwan, ETN (7/23/2014). 173. See Weinberg v. Grand Circle Travel LLC, 2012 WL 4096611 (D. Mass. 2012)(“This negligence action...involves two Florida resident who planned an African safari vacation with a Massachusetts travel agent, only to become victims of a tragic hot air balloon crash in the Serengeti. One victim was killed in the crash and the other, the deceased’s fiancee, sustained severe bodily injuries, allegedly due to the negligence of the balloon company...brought action against a Massachusetts company, Grand Circle Travel (‘Overseas Adventure’), a Tanzanian corporation, Tourism and Public Relations Services Limited trading as Serengeti Balloon Safaris (‘Tourism Services’) and an English company, Serengeti Balloon Safaris, LTD (‘Serengeti Balloon’) seeking compensatory and punitive damages on claims of strict liability, negligence, gross negligence and recklessness”; motion of Tourism Services and Serengeti Balloon to dismiss for lack of personal jurisdiction granted; “It seems unfair that the Serengeti defendants can reap the benefits of obtaining American business and not be subject to suit in our country”). See also: Alcantara, Bomb attack hits Arusha church, killing one and injuring others, www.eturbonews.com (5/6/2013)(“suspected terror attack in Tanzania’s northern tourist city of Arusha”); Linda, Another robbery gone wrong kills tourist in Dar es Salaam, www.eturbonews.com (9/25/2012)(“A visiting medical doctor from Greece, walking along the Ali Hassan Mwinyi Road in the center of Dar es Salaam with a number of her colleagues on Sunday, saw a car drive up to her, and then arms stretched from the window, grabbing hold of her handbag, dragging her to her death when attempting to speed away”); Linda, Bandits kill Dutch tourist and his guide at Serengeti National Park, www.eturbonews.com (6/25/2012)(“A Dutch tourist and a Tanzanian national were on Thursday killed by suspected bandits after the latter invaded the Ikona Wildlife Management Area on the outskirts of the Serengeti National Park”).

See also: Steinmetz, Belgian tourist missing in Himalayas found dead with her head cut off, www.eturbonews.com (6/28/2012). 149. 174. See e.g., Paulissen v. United States Life Insurance Co., 205 F. Supp. 2d 1120 ( C.D. Cal. 2002 )( climber ascending a mountain

343 in the Himalayas in Tibet dies of high-altitude pulmonary edema ). 175. See British tourist beaten to death in Thai prison, ETN (5/10/2014); Five tourists killed in Thai game reserve, ETN (3/14/2014); Happy New Year Thailand: 102 killed, 893 injured, first two days of Songkran 2014, ETN (4/14/2014); Steinmetz, Phuket police chief asks for help to reduce number of crimes against visitors, www.eturbonews.com (3/14/2013)(Phuket police chief “called for 5,000 more officers to help protect tourists from...’mafia-style’ crime...The figures revealed that seven ex-pats have been murdered in the resort since 2010 and that last year, foreigners were the victims of two rapes, 13 violent crimes, 13 attempted robberies and 46 cases of fraud. In the same year, 193 foreigners were also arrested for drinks, drugs drink driving offenses. The biggest cause of death to foreigners in the resort was drowning...with right deaths in 2012"); Steinmetz, Body of Dutch visitor found off Phuket’s famous Patong Beach, www.eturbonews.com (1/13/2013)(“The body of a 17 year old Dutch tourist was found floating in the sea (had been) struck by solid object on the back of the skull”); Steinmetz, Thai suspect arrested over murder of UK visitor, www.eturbonews.com (1/2/2013)(“Police in Thailand arrested as man in connection with the killing of a British tourist who was shot dead at a New Year’s Eve party after getting caught in the crossfire of agunfight between two local gangs”); Steinmetz, Australian and Canadian visitors die in Bangkok hotel, www.eturbonews.com (10/26/2012)(“An Australian and a Canadian tourist have been found dead in a Bangkok hotel after a suspected drug overdose”); Steinmetz, Korean tourist drowns in Phuket, www.eturbonews.com (9/30/2012); Steinmetz, 4 killed, 20 injured in Phuket nightclub inferno, www.eturbonews.com (8/17/2012)(“A fire ripped through a nightclub popular with foreign tourists in Thailand early Friday...Hospital workers said foreigners were among the casualties in the blaze at the Tiger disco on the island of Phuket”); Steinmetz, Four foreign tourists killed Phuket crash, www.eturbonew.com (3/6/2012)(“a pileup that brought the total toll in that area to 14 dead in three horror smashes in just over a month”); Steinmetz, German tourist killed while elephant trekking in Krabi, www.eturbonews.com (12/1/2011)(“A German woman has been killed in controversial circumstances in an elephant trekking tragedy in the [province of Krabi not far from Phuket...One tourist has been killed and two other tourists have been seriously injured...over the past two years in male elephant rampages”).

176. See King & Hassan, State of Emergency declared in Tunisia, www.latimes.com (7/5/2015) p. A5 (“but the June 26 attack on the idyllic seaside town of Sousse, which killed at least 38 people, most of them British vacationers, coupled with Islamic militants’ assault

344 in March on a landmark museum in the capital, seemingly forced the government’s hand”); Kirkpatrick, Tunisia Museum Attack Is Blow to Nation’s Democratic Shift, www.nytimes.com (3/18/2015)(“Gunmen in military uniforms killed 19 people...in a midday attack of a museum in downtown Tunis...17 foreign visitors-including Polish, Italian, Spanish and German tourists”).

177. In Arango, Tavernise & Yeginsu, Victims in Istanbul Airport Attack Reflect City’s International Character, www.nytimes.com (6/29/2016) it was noted that “There were taxi drivers and a customs officer. And there was a Turkish couple who worked together, and died together, in the suicide attack Tuesday night at Istanbul Ataturk Airport that killed dozens of people and wounded more than two hundred...the death toll from the attack had risen to 41...At least 23 were from Turkey...The victims reflected the cosmopolitan and international character of Istanbul whose airport is among the world’s busiest, a hub for tens of millions of passengers each year connecting to Europe, the Middle East, Africa and beyond”.

In Callimachi, Turkey, a Conduit for Fighters Joining ISIS, Begins to Feel Its Wrath, www.nytimes.com (6/29/2016) it was noted that “When the bodies of Islamic State fighters are recovered on the Syrian battlefield, the passports found on them have often been stamped in Turkey, which thousands of recruits pass through on their way to join the terror group. Fighters who call relatives abroad often do so using Turkish cellphone numbers, and when they need cash, the head to the Western Union offices in southern Turkey”.

In Akyol, What Comes After the Istanbul Airport Attack?, www.nytimes.com (6/29/2016) it was noted that “The assault on the airport is the latest in a series of horrible traumas in Turkey. In the past year, the country has endured almost a dozen major terrorist attacks. Some were the work of the Islamic State, which kills in the name of God; others were the work of the Kurdistan Workers’ Party or P.K.K., which kills in the name of the people”.

Cruise Ships Stay Away From Istanbul

In Sloan, More cruise lines cancel Istanbul calls in wake of attack, www.usatoday.com (6/30/2016) it was noted that “Several cruise lines including Celebrity and Windstar on Wednesday canceled ship visits to Istanbul for the rest of the year...Also canceling calls in Istanbul for the rest of the year was Cunard”.

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In Steinmetz, Bomb exploded! Istanbul close to University main campus, www.eturbonews.com (6/7/2016) it was noted that “While Turkey remains a safe tourism destination, the security situation and perception for the travel and tourism world remain tough. Today the sad count are 11 people dead”.

In Car bomb explosion injures seven in Istanbul, www.eturbonews.com (5/13/2016) it was noted that “Six soldiers and a civilian have been wounded after an explosives-laden car blew up near a military base in Turkey’s port city of Istanbul, the latest in a spate of bombings this year”.

See also: Terror Attack In Turkey, www.eturbonews.com (10/10/2015) it was noted that “tourists See Many dead at Central train station terror attack in Ankara, Turkey and local travelers arriving and leaving from Ankara’s Central Railway station Saturday morning had a horrifying experience when an alleged suicide bomber attacked outside the train station with two explosions at a road junction next to the train station”); Arango, Deadly Ankara Attack Not Enough to Unify a Polarized Turkey, www.nytimes.com (10/12/2015)(“two suicide bombers killed nearly 100 people”).

See also: Women Alert to Travel’s Darker Side, www.nytimes.com (5/23/2014)(“Ms. Sierra, a New Yorker and a first-time traveler abroad, disappeared...What happened to her is still a little unclear, but a Turkish man has reportedly confessed to killing her after supposedly trying to kiss her”). 178. See Haubner v. Abercrombie & Kent International, Inc., 351 Ill. App. 3d 112, 812 N.E. 2d 704, 285 Ill. Dec. 884 ( 2004 ) ( “ On March 1, 1999 Haubner and Rockwell were abducted from their tent and murdered by suspected Interhamwe rebels while vacationing at the Gorilla Forest Camp in the Bwindi Impenetrable Forest National Park...The complaint alleged that the Illinois A&K defendant owned and operated the Gorilla Forest Camp where the decedents were lodging. The complaint further alleged that the Illinois A&K defendants were negligent in failing to warn the decedents about various acts of civil unrest and armed violence occurring along the Ugandan border and in failing to provide adequate security at the Gorilla Forest Camp “). 179. See France charges Yemen Airways with manslaughter over 2009 crash, ETN (1/29/2014)(“France has charged Yeminia Airways with manslaughter over a 2009 crash off the Comoros islands in which 152 people were killed...The 19-year old jet (A310) had been banned from French airspace”).

180. See Zahori & Sukhanyar, Taliban Attack Lakeside Resort Hotel Near Kabul, Taking Families Hostage, www.nytimes.com (6/21/2012)(“

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As families ate a late dinner at a popular lakeside resort hotel here on a warm summer night, at least three Taliban shot their way into the compound, entered the dining room and took an unknown number of hostages”).

181. See Nossiter, Militants Seize Americans and Other Hostages in Algeria, www.nytimes.com (1/16/2013)(“Algerian officials said at least two people, including a Briton, were killed in the assaults which began with a predawn ambush on a bus”).

182. See Steinmetz, Dingo steals bag with cash and jewelry from British tourist, www.eturbonews.com (12/17/2012)(“A dingo has been put down after stealing a British tourist’s bag containing cash and jewelry on a New South Wales beach...’It was established that this animal has been the subject of numerous complaints in the prior three months, jumping onto barbeques in the van park and approaching and stealing things from people”).

183. See Thieves take $350,000 from Australian hotel mogul, ETN (6/19, 2014).

184. In Manik, Anand & Barry, Bangladesh Attack Is New Evidence That ISIS Has Shifted Its Focus Beyond the Mideast, www.nytimes.com (7/2/2016) it was noted that “Friday night’s assault on the Holey Artisan Bakery in the diplomatic district of Dhaka, in which at least 20 hostages and two police officers were killed, marks a scaling up of ambition and capacity for Bangladesh’s Islamist militancy...Among the dead...were nine Italians, seven Japanese, two Bangladeshis, one American and One Indian”.

185. In Steinmetz, Terror in Cape Verde Islands: Airport closed, 10 dead, www.eturbonews.com (4/26/2016) it was noted that “Media reports in the Cape Verde islands off West Africa say Cape Verde’s main airport and country’s airspace have been closed after 8 solders and 3 civilians were found dead at army barracks on Tuesday. The website of local newspaper A Semana says two of the dead civilians are from Spain”.

186. See Visitors to Guanhzhou, China: Be aware of violent and deadly knife attacks, ETN (5/6/2014).

187. See Tourist in Dubai court for drugging, robbing businessmen, www.eturbonews.com (4/19/2015); Steinmetz, Ukrainian tourist arrested at Dubai airport for assaulting police officer, www.eturbonews.com (12/27/2012)(“A woman tourist insulted a female police officer and assaulted her with a water bottle while being detained at Dubai airport”).

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188. See In Walsh & Fahim, EgyptAir Flight Believed to Have Crashed at Sea; Egypt Cites Possible Terrorism, www.nytimes.com (5/19/2016) it was noted that “The EgyptAir red-eye from Paris to Cairo, an Airbus A320 jetliner less than half full had just entered Egyptian airspace early Thursday (when it) plunged 28,000 feet, disappearing from the radar screens of Greek and Egyptian air traffic controllers...Egyptian officials suggested that terrorism was a more likely cause for the disappearance than mechanical failure...The loss of the l\flight was the second civilian aviation disaster to hot Egypt in the past seven months”; Walsh, Egypt Sends Submersible in Search for EgyptAir Jet’s Black Boxes, www.nytimes.com (5/22/2016) it was noted that “A statement from the Islamic State on Saturday failed to mention the EgyptAir crash, confounding speculations that the group, which claimed to have been behind the bombing of a Russian airliner in Sinai in October, might have been responsible”; Mexico ‘dissatisfied’ with Egypt’s failure to probe the killing of tourists, www.eturbonews.com (5/13/2016) it was noted that “Mexico has expressed its dissatisfaction with the Egyptian government’s response to an aerial bombing last year in which eight Mexican tourists were killed”.

See also: Schmidt, Consensus Grows for Bomb as Cause of Russian Jet Crash, Officials Say, www.nytimes.com (11/8/2015) it was noted that “there was a mounting consensus among American intelligence officials that a bomb brought down the Russian airliner jet that crashed last month in the Sinai Peninsula in Egypt, killing all 224 people aboard”. See also: Castle, Britain, Concerned About Russian Crash, Halts Sinai Flights, www.nytimes.com (11/4/2014);‘Rescue flights’ to fly stranded British tourists out of Sharm el Sheikh, www.eturbonews.com (11/5/2015);http://www.eturbonews.comhttp://www.eturbonews.com Stack, Egypt Security Forces Accidently Kill Mexican Tourists, www.nytimes.com (9/13/2015)(“Egyptian security forces opened fire on a caravan of tourist vehicles in the country’s Western Desert late Sunday night, killing at least 12 people from Mexico injuring 10 others, among them Mexican tourists and their Egyptian tour guides, officials said...The security forces said that they had believed that the vehicles were being used to transport terrorists. The statement said the group had been driving in a restricted area where unauthorized access is banned”; Thomas & Kirkpatrick, Egyptian Military Said to Fire on Mexican Tourists During Picnic, www.nytimes.com (9/14/2015)(“The convoy of four sport utility vehicles full of Mexican tourists about three hours southwest of Cairo on a typical adventure trip through the White Desert...with the blessing of their police escort, and the apparent added security of an Apache military

348 helicopter buzzing on the horizon, the group pulled off for a picnic...Then the helicopter opened fire, killing at least a dozen people-including at least two Mexicans- while wounding a tourist police officer and at least nine others”);

See e.g., Third Circuit: Hodes v. S.N.C. Achille Lauro ed Altri-Gestione, 858 F. 2d 904 ( 3d Cir. 1988 ), cert. denied 480 U.S. 1001 ( 1989 )( The Achille Lauro, Italian owned and flagged, was scheduled for an 11-day Mediterranean cruise, departing and returning to Genoa, Italy. While off the coast of Egypt, it was boarded and seized by Palestinian terrorists. The ships and its passengers were held hostage for three days. One passenger, an American citizen named Leon Klinghoffer, was murdered ). Second Circuit: Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione, 739 F. Supp. 854 ( S.D.N.Y. 1990 ), rev’d and remanded 937 F. 2d 44 ( 2d Cir. 1991 ), on remand 795 F. Supp. 112 ( S.D.N.Y. 1992 )( Leon Klinghoffer, an elderly, wheelchair-bound American citizen, was murdered by Palestinian terrorists when he was thrown overboard apparently after biting a hijacker ).

See also: Two killed in Egyptian tourist resort bombing, www.eturbonews.com (3/2/2015); Terror attack on Luxor tourist site foiled, www.eturbonews.com (6/10/2015); Steinmetz, Bedouin tribesmen kidnap two American tourists in Sinai, www.eturbonews.com (7/19/2012); Steinmetz, Bedouin gunmen kidnap Brazilian tourists in Sinai, www.eturbonew.com (3/19/2012) (“Egypt’s security sources say that two Brazilian visitors traveling through Egypt’s Sinai Peninsula on Sunday have been abducted after a visit to an isolated mountain monastery”); Steinmetz, Kidnaped Korean tourists released in Egypt, www.eturbonew.com (2/13/2012)(“29 hours after they were kidnaped in Egypt’s Sinai peninsula, three Korean tourists have been safely released”); Steinmetz, Two US tourists kidnaped in Sinai released, www.eturbonew.com “officials secured the release of two female American tourists and their guide”). 189. See Linda, Ethiopian tourist abductions and attacks blamed on Eritrea, www.eturbonews.com (1/30/2012).

190. See Steinmetz, Fiji torture and beatings may put a damper on tourism, www.eturbonews.com (3/7/2013)(“The brutal beating and torture of prisoners in Fiji, captured on video, could prove a turn off for tourists”).

191. See Islamic terrorists target Israeli tourists in India, ETN

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(19/22/2013); Steinmetz, Kidnappers set conditions for release of abducted Italian tourists, www.eturbonews.com (3/19/2012)(“New Delhi, India. The whereabouts of two Italian tourists kidnaped by Maoists from the Daringbadi area of Odisha’s Kandhamal district remained unknown till Sunday evening”).

192. In Hassan, Arango & Al-Jawoshy, Bombing Kills More Than 140 in Baghdad, www.nytimes.com (7/3/2016) it was noted that “As celebrations for the Muslim holy month of Ramadan stretched past midnight into Sunday in central Baghdad, where Iraqis had gathered to eat, shop and just be together, a minivan packed with explosives blew up and killed at least 143 people-the third mass slaughter across three countries in less than a week”.

193. In Militant attack: 15 wounded in Jerusalem bus explosion, www.eturbonews.com (4/18/2016), it was noted that "The massive explosion occurred in Hebron Way, west Jerusalem, with police citing ‘a militant attack' as the probably cause of the blast".

194. See e.g., Dow v. Abercrombie & Kent, 2000 U.S. Dist. LEXIS 7290 ( N.D. Ill. 2000 )( tourists on safari assaulted and robbed by bandits while camping in the Oloolo Escarpment in the Masai Mara reserve ).

See also German tourist shot dead in Mombasa’s Old Town, ETN (7/24/2014); Russian tourist murdered in Kenya, ETN (7/7/2014); Terrorism and Violence has escalated in Kenya with no end in sight, ETN (7/6/2014); Gettleman, Kenya’s Future Clouds as Tensions Rise and Tourists Flee, www.nytimes.com (6/27/2014); Kushkush & Bilefsky, www.nytimes.com (6/17/2014) (“second lethal attack on coastal village...has left 57 people dead”); Struggling Kenya’s tourism hit by fresh travel advisories, ETN (5/25/2014); Hundreds of British holidaymakers evacuated after terror threat, ETN (5/15/2014); Another blast hits Kenya near Kasarani Sports Complex killing at least two and injuring scores more, ETN (5/4/2014); Kenya Forces Said to Be Securing Mall After Long Standoff, www.nytimes.com (9/13/2013); Two grenade attacks in Mombasa compound worries for tourism sector, ETN (5/3/2014); Linda, Mass attack on Malindi Casino leaves 8 dead and several injured, www.eturbonews.com (3/29/2013)(“a local terrorist group...attacked an Italian-owned casino last night in the wee hours”); Linda, Harissa Hotel in Kenya scene of another Al Shabab attack, www.eturbonews.com\fs24fs24 (1/20/2013)(“The attackers...drew their weapons, separated local patrons from upcountry guests before staring to shoot their victims”); Steinmetz, Attack on British and Swiss Tourists in Kenya, www.eturbonews.com (11/7/2011)(“ The attack took place north of Isiolo in an area with several games reserves that is also known for banditry”); Steinmetz,

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Terror attack in Nairobi disco leaves 14 wounded, www.eturbonew.com (10/24/2011) (“A grenade exploded in a nightclub in the bustling centre of Kenyan capital Nairobi...the attack came a week after Kenya launched a cross-border operation against al Qaeda-linked al Shabaab militants in Southern Somalia after a wave of kidnaps of foreigners on Kenyan soil”). 195. See Simpson v. Socialist People Libyan Arab Jamahiriya, 362 F. Supp. 2d 168 ( D.C.D.C. 2005 )( passengers held hostage were “ informed that they would be shot if they attempted to leave “).

See also: Kirkpatrick, Before Dangers at Sea, African Migrants Face Perils of a Lawless Libya, www.nytimes.com (4/27/2015)(“Human trafficking from Libya across the Mediterranean was a $170 million business last year”); France and Britain orders citizens in Libya to leave now, ETN (7/28/2014); Two dead, planes damaged, control tower hit by rocket in airport attack, ETN (7/15/2014). 196. See Steinmetz, American tourist robbed and raped in Malaysia, www.eturbonews.com (3/13/2013)(“A 25-year-old American tourist was robbed and raped by two men after being taken on a 80km ride in a taxi”); Steinmetz, Moroccan tourists robbed in Penang, www.eturbonews.com (1/4/2013)(“Three Moroccan tourists who had just arrived at the Penang International Airport here were given a horrifying ride when their taxi driver robbed them and left them in a oil palm estate”).

197. See Steinmetz, How safe is Mail?, www.eturbonews.com (11/30/2011)(“Following the recent kidnaping of three tourists-one of which is a Dutchman-and the killing of a German in the town of Timbuktu in North Mail...How safe is Mali?”). See also: Schmitt, American Commander Details Al Qaeda’s Strength in Mail, www.nytimes.com (12/3/2012)(“Al Qaeda’s affiliate in North Africa is operating terrorist training camps in northern Mali and providing arms, explosives and financing to a militant Islamist organization in northern Nigeria, the top American military commander in Africa said on Monday. The affiliate, Al Qaeda in the Islamic Maghreb, has used the momentum gained since seizing control of the northern part of the impoverished country in March to increase recruiting across sub-Saharan Africa, the Middle East and Europe”).

198. See Neo-Nazi group in Mongolia attacked tourists, www.eturbonews.com (4/5/2015)(“In Mongolia...several Chinese tourists were attacked by a Mongolian neo-Nazi group known as Khukh Mongol while traveling on the Burkhan Khaldun mountain”).

199. See Mozambique: Rebel attacks ruining tourism, ETN (5/18/2014).

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200. See Experts analyze terrorism bombing of Nigerian bus terminal, ETN (4/21/2014).

201. See In Hassan, Inayat & Masood, Keen Pain in Pakistan Over Lives ‘Shattered Into Pieces’, www.nytimes.com (3/28/2016) it was noted that “Extremist groups have long made a campaign of attacking religious or ethnic minorities in Punjab. The attack on Sunday was claimed by Jamaat-e-Ahrar, a splinter group of the Pakistan Taliban, which said it was targeting Christians who had gathered in the park for Easter...Most of the victims were working-class or poorer. The attack came just days after the National Assembly adopted a resolution to recognize Easter and the Hindu festivals of Holi and Diwali, as public holidays, in what some here saw as a vital call for tolerance and others saw as offensive in a state officially built on Islam. That gesture, too, was marred by the bomber’s strike”.

See also: Two churches bombed during Sunday prayer service, www.eturbonews.com (3/15/2015); Suicide bomber attacked Pakistan-Zimbabwe cricket match, www.eturbonews.com (5/30/2015); Walsh, Assault on Pakistan Airport Signals Taliban’s Reach and Resilience, www.nytimes.com (6/9/2014); Khan & Masood, A Deadly Week in Northwestern Pakistan Ends With a Car Bomb Blast, www.nytimes.com (9/29/2013); Steinmetz, Czech tourists kidnaped in Pakistan, www.eturbonews.com (3/13/2013)(“Unidentified gunmen...kidnaped two women tourists from the Czech Republic in Pakistan’s insurgency-hit southwestern province of Balochistan”); Steinmetz, Swiss tourists claim they escaped from Taliban, www.eturbonew.com (3/19/2012) (“Two Swiss tourists have been found safe and well after an eight month ordeal as hostages of the Pakistani Taliban”). 202. In Hubbard, Suicide Bombings Hit 3 Cities in Saudi Arabia, One Near a Holy Site, www.nytimes.com (7/4/2016) it was noted that “Bombings rocked three cities across Saudi Arabia on Monday, including near the Prophet’s Mosque in the holy city of Medina... The blasts in Saudi Arabia followed a bloody week in which terrorists attacks caused mass casualties in the largest cities of three predominantly Muslin countries: Turkey, Bangladesh and Irag”. 203. In Steinmetz, Hotel under attack: 15 dead, www.eturbonews.com (6/25/2016) it was noted that “It’s a scene of terror and death on Saturday. The Naso Hablod Hotel in Mogadisgu, Somalia is a hotel known with a high degree of safety and comfort for business travelers and tourists...At least 15 people are dead and 25 others are injured as a result of Saturday’s car bombing and gun attack at the hotel”. In Steinmetz, Deadly attack on Mogadishu Hotel, www.etorbonews.com (6/1/2016) it was noted that “At least 10 killed, 25 injured in Mogadishu hotel attack. We understand the attack on a Mogadishu hotel started with a car bomb and gunfire followed”.

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See also: Seven people killed, hostages held at Mogadishu hotel, www.eturbonews.com (3/27/2015). 204. See Geldenhuys, Crimes Against Tourists www.servamus.co.za (4/30/2008)(“The escalation of crime in South Africa has caused feelings of fear among local foreign tourists who visit holiday resorts...Some tourist attacks that have made news headlines are the following: On 24 March 2008, 14 tourists from Canada, Britain and the USA were robbed at gunpoint by three men of money, cameras and cellphones...On 24 January 2008 two German tourists were robbed in the Johannesburg City Centre. Three men forced open the windows of the vehicle the tourists were traveling in and stole passports, cameras...On 2 July 2005 a group of tourists...were attacked and held at knife point while on a hike just outside Port St. Johns...In 2000 a Polish honeymoon couple were brutally attacked at a look-out post at the Sterkfontein dam near Harrissmith. After murdering the groom, the criminals gang-raped the women on several occasions”).

205. See Linda, Another robbery gone wrong kills tourist in Dar es Salaam, www.eturbonews.com (9/25/2012)(“A visiting medical doctor from Greece, walking along the Ali Hassan Mwinyi Road in the center of Dar es Salaam with a number of her colleagues on Sunday, saw a car drive up to her, and then arms stretched from the window, grabbing hold of her handbag, dragging her to her death when attempting to speed away”).

206. In Steinmetz, Crimes on Tourists: Don’t trust the media in Thailand, www.eturbonews.com (5/1/2016) it was noted “Thailand is known to be a world class travel and tourism destination with an image of peace, smiling people, white sandy beaches...A recent brutal assault on three British tourists during the Thai New Year celebration known as Songkran last month painted a very different picture”. See also: Songkran Thai New Year tourism season begins with a bomb attack today, www.eturbonews.com (4/11/2015); Steinmetz, Tourists canceling trips after ‘Evil man from Krabi’ video emerges, www.eturbonews.com (11/8/2012)(“Large numbers of tourists have cancelled their trips to Krabi after a video clip emerged as a sign of protest against provincial authorities who gave bail to a man accused of (beating and) raping a...27-year-old Dutch woman...in Ao Nang”)...Another incident concerned teenagers attacking a tourist couple. The man was stabbed and wounded severely which his girlfriend barely escaped”). 207. See King & Hassan, State of Emergency declared in Tunisia, www.latimes.com (7/5/2015) p. A5 (“but the June 26 attack on the idyllic seaside town of Sousse, which killed at least 38 people, most of them British vacationers, coupled with Islamic militants’ assault

353 in March on a landmark museum in the capital, seemingly forced the government’s hand”); Steinmetz, French politician: Violent Islamist mobs attack tourists in Tunisia, www.eturbonews.com (“Tunisia is falling prey to violent Islamist mobs, a Franco-Tunisian politician from the L:oire valley has warned, after he narrowly escaped a ‘lynching’ when he returned to his native town for a family holiday”); Gladstone, Anti-American Protests Flare Beyond the Mideast, www.nytimes.com (9/14/2012)(“Anti-American rage that began last week over a video insult spread to nearly 20 countries across the Middle East and beyond...The anger stretched from North Africa to South Asia and Indonesia”).

208. In Arango, Tavernise & Yeginsu, Victims in Istanbul Airport Attack Reflect City’s International Character, www.nytimes.com (6/29/2016) it was noted that “There were taxi drivers and a customs officer. And there was a Turkish couple who worked together, and died together, in the suicide attack Tuesday night at Istanbul Ataturk Airport that killed dozens of people and wounded more than two hundred...the death toll from the attack had risen to 41...At least 23 were from Turkey...The victims reflected the cosmopolitan and international character of Istanbul whose airport is among the world’s busiest, a hub for tens of millions of passengers each year connecting to Europe, the Middle East, Africa and beyond”.

Cruise Ships Stay From Istanbul

In Sloan, More cruise lines cancel Istanbul calls in wake of attack, www.usatoday.com (6/30/2016) it was noted that “Several cruise lines including Celebrity and Windstar on Wednesday canceled

354 ship visits to Istanbul for the rest of the year...Also canceling calls in Istanbul for the rest of the year was Cunard”.

See also: Steinmetz, Instanbul tourist attractions attacked by heavily-armed gunmen, www.eturbonews.com (12/1/2011). 209. See Fear of terrorism in Central Asia, ETN (12/10/2013)(“The ultimate target of Islamists is to launch an Islamic code of life on the patron of Saudi Arabia in the region including Pakistan, China, Afghanistan, Tajikistan, Uzbekistan, Turkmenistan, Kazakhstan and Russia”).

210. See Steinmetz, Vietnamese authorities: Ha Long Bay tourists being ripped off, www.eturbinews.com (9/25/2012)(“Tour boats in Ha Long Bay...have been banned from stopping at floating fishing villages during tour...the move was aimed at preventing tourist from being disturbed, overcharged or even ripped off which has become a common occurrence at private floating fishing houses”).

211. See Naghiu v. Inter-Continental Hotels Group, Inc., 165 F.R.D. 413 ( D. Del. 1996 )( during plaintiff’s “ stay as a guest of defendant’s hotel in Zaire, Africa in March 1993, he was attacked in his room, causing him to suffer personal bodily injury and a loss of $146,000 in property “ ).

355

212. See Linda, Tourists in Zanzibar advised to stay in resorts and use extreme caution, www.eturbonews.com (5/31/2012)(two Christian churches burned to ground by mobs of rioters).

213. See Steinmetz, Swiss tourist arrested in Zimbabwe for ‘insulting’ Mugabe, www.eturbonews.com (9/18/2012)(“a Swiss tourist was arrested at the border of insulting the President...Insulting Mugabe is an offense under sweeping security laws and prosecutions are common...A Zimbabwean carpenter was arrested in February after he questioned whether Mugabe still had the strength to blow up balloons at his 88th birthday”).

214.184. See Klein, “ After Attack, Cruise Ships Rethink Security “, Practical Traveler, N.Y. Times Sunday Travel Section, at p. 6 ( December 4, 2005 )( “ Now the armed attack on the Seaborne Spirit off Somalia has the cruise industry checking its bearings on security. The Spirit was carrying 151 passengers and 161 crew members when it was fired upon at dawn from two small vessels off the Somalia coast “ ).

215. See Raped by an Uber driver in Sydney-a case of misleading body language?, www.eturbonews.com (10/22/2015)(“Uber issued a statement after a British tourist visiting Sydney, Australia was allegedly raped by a Uber driver. The Uber statement says: ‘Our thoughts remain with the victim. We will do everything we can to work with police’...The Uber driver was charged with allegedly raping the young British tourist after he offered to drive her home from a Sydney bar”).

216. Women Alert to Travel’s Darker Side, www.nytimes (5/23/2014) (“A Norwegian woman was raped (then jailed, for having ‘unlawful sex’) in Dubai; she and the man accused in her attack were eventually pardoned last summer”).

217. See Women Alert to Travel’s Darker Side, www.nytimes (5/23/2014)(“a British woman said she was raped by a security guard in a luxury hotel in Egypt”).

218. See Barry, In Indian Rapists’ Neighborhood, Smoldering Anger and Code of Silence, www.nyties.com (3/8/2015); Barry, Man Convicted of Rape in Delhi Blames Victim, www.nytimes.com (3/3/2015); Women Alert to Travel’s Darker Side, www.nytimes (5/23/2014)(“On Jan. 15, a Danish woman, 51, reported being raped at knife point in New Delhi. She said she had approached the seven or eight men who attacked her to ask for directions to her hotel”); Steinmetz, Female tourist jumps from hotel balcony to escape sexual assault in India, www.eturbonews.com (March 19, 2013)(“A British woman has been injured

356 after jumping from a hotel balcony to escape from alleged harassment in Agra, India... The (British) Foreign Office recently updated its advice for women visiting India...they should use caution and avoid traveling on public transport, or in taxis or auto-rickshaws especially at night...Following an alleged gang rape of a Swiss tourist in Madhya Predesh state last week, police arrested six people”); New Indian law against rape to include death penalty, www.eturbonews.com (2/5/2013)(“The new law against rape in India will help to control ever increasing trend of rapes”). 219. See Women Alert to Travel’s Darker Side, www.nytimes (5/23/2014)(“An American tourist was raped in a store in Israel last June”).

220. See Steinmetz, American tourist robbed and raped in Malaysia, www.eturbonews.com (3/13/2013)(“A 25-year-old American tourist was robbed and raped by two men after being taken on a 80km ride in a taxi”).

221. See 71 year old Canadian Tourist raped local boy in Nepal, www.eturbonews.com (3/2/2015).

222. See Steinmetz, Tourists canceling trips after ‘Evil man from Krabi’ video emerges, www.eturbonews.com (11/8/2012)(“Large numbers of tourists have cancelled their trips to Krabi after a video clip emerged as a sign of protest against provincial authorities who gave bail to a man accused of (beating and) raping a...27-year-old Dutch woman...in Ao Nang”).

223. See e.g., Kidnaped Chinese tourist and Filipino worker freed in Malaysia, ETN (5/30/2014); Cost of maritime piracy has fallen but the plight of hostages remains of concern, ETN (5/8/2014)(discussion of the costs incurred from piracy off the coast of Somalia and in the Gulf of Guinea); Nossiter, Nigerian Islamist Leader Threatens to Sell Kidnaped Girls, www.nytimes.com (5/5/2014)(“The Nigerian Islamist group Boko Haram...claimed responsibility for the kidnaping of hundreds of school girls nearly three weeks ago”); Officials: Kidnaped tourist taken to jungle stronghold in southern Philippines, ETN (4/26/2014).

224. See Steinmetz, 24 Tourists rescued after falling into river in China, www.eturbonews.com (5/2/2013)(“A total of 24 tourists have been rescued after they fell into a river from a tilted suspension bridge at a popular town in central China”).

225. See Australian visitor dies while snorkeling in Fiji, ETN

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(5/26/2014).

226. See Irwin v. World Wildlife Fund, Inc., 448 F. Supp. 2d 29 ( D.C.D.C. 2006 )( “ Plaintiffs allege that in June of 2002, Missa arranged, through the Gabonese entity Cecotour, for a trip in a small wooden boat on a lagoon adjacent to Gamba for himself, Irwin and two others...a second boat...collided with the left side of plaintiffs’ boat...The bow of the oncoming boat struck Ms. Irwin in the face, dislodging her orbital ridge and shattering her face. In addition, the bow of the oncoming boat hit metal supports in the boat Ms. Irwin occupied, and the metal supports impaled Ms. Irwin’s skull and tattooed her skin...Ms. Irwin’s injuries are long-term, severe, painful and extensive and they include: loss of sensation and motor function, complete loss of smell and diminished sense of taste, diminished cognitive skills, short-term and working memory loss, shattered sinuses...diminished ability to perceive visual depth “ ).

227. See Ogawa v. U.S. Explore & Study, Inc., 2013 WL 2256220 (D. Guam 2013)(tourist dives into basin, hits head and is rendered quadriplegic; plaintiff’s liability theories included “failing to provide appropriate warnings and instructions at the beginning of the tour and at the spot where the tour participants were encouraged to dive into the waterfall basis, that all entries into the water must only be feet first”; summary judgment for defendants denied).

228. See Nowak v. Tak How Inc. Ltd., 1995 WL 521874 ( D. Mass. 1995 )( guest drowns in hotel pool in Hong Kong ). 229. See Lee v. Choice Hotels International, Inc., 2006 WL 1148755 ( Del. Super. 2006 )( “ the Lees...residents of Seoul, South Korea, embarked upon a vacation tour of Southeast Asia. The tour was arranged by a South Korean travel agency, Freedom Travel. The tour was to include an afternoon and one night at the Quality Resort Waterfront City, Batam, Indonesia...Of particular interest to the Lees was the large free form pool with a sunken bar which was connected to the children’s pool. The resort was advertised as family friendly...The boys ultimately entered the pool behind their parents but became separated...Bo Hyun found ( his son ) at the bottom of the large pool unconscious. No lifeguard was seen on duty during this period of time and no other staff assisted in finding Chan Young ( who ) suffered brain damage and is in a permanent vegetative state “ ).

230. See Steinmetz, Despite new regulations drunken tubing goes on in Laos, www.eturbonews.com (9/16/2012)(“After a spate of tourist deaths on the Nam Song River in Vang Vieng, Laos, authorities from the capital have closed more than two dozen of the riverside and

358 late-night island bars that are pit-stops for tubing tourists...floating down the Nam Song River in a large tractor-tyre innertube, stopping at the legion of jerry-built bars on the waterside for free shots of drugs, has become a popular pastime”).

231. See Furuoka v. Dai-Chi Hotel, 2002 N. Mar. I. LEXIS 8 (2002) ( swimming pool accident at hotel in the Mariana Islands; “ It is undisputed that the hotel did not have a lifeguard on duty and that [ local law ] required a lifeguard to be provided by the hotel “ ).

232. See Addy v. Club Med, 1997 WL 30205 ( E.D. La. 1997 ) ( couple honeymoon at Club Med facility in Tahiti whereat they were injured during scuba excursion). 233. See Sun v. Taipei Economic, 2002 WL 464512 ( 9th Cir. 2002 )( student drowns at Little Bay beach; failure to warn of “ beach was dangerous because it was exposed to severe undertow, high waves and surf “ ); Sun v. Taiwan, 1998 WL 738002 ( N.D. Cal. 1998 ), rev’d 201 F. 3d 1105 ( 9th Cir. 2000 )(tourist drowns during recreational visit to Ken-Ting National Park ). 234. See Steinmetz, Korean tourists injured in speedboat crash off Pattaya, www.eturbonews.com (4/24/2013): Steinmetz, Korean tourist drowns in Phuket, www.eturbonews.com (9/30/2012)(“A 29-year-old Korean tourist on holiday in Phuket has died while snorkeling off Phi Phi Island”).

235. See Tourist falls to his death while scaling crane in Brisbane, www.eturbonews.com (6/30/2015).

236. See Lachina v. Pacific Best Tours, Inc., 1996 WL 51193 ( S.D.N.Y. 1996 )( tour participant falls into manhole at Chinese airport during tour ).

237. See e.g., First Circuit: Paredes v. Princess Cruises, Inc., 1 F. Supp. 2d 87 ( D. Mass. 1998 )( cruise passenger injured during shore excursion in tour van accident in Egypt ). Eleventh Circuit: Sachs v. TWA Getaway Vacations, Inc., 125 F. Supp. 2d 1368 ( S.D. Fla. 2000 )( tourist slips and falls disembarking tour bus in Egypt; “ Defendant further asserts that it did not act negligently in selecting Destination Egypt as an independent contractor responsible for the provision of ground-handling services for its ‘ Best of Egypt ‘ tour. Defendant claims that it entered into a contract with Destination Egypt based upon [ its ] ‘ reputation in the travel industry as one of the largest and best ground service providers in Egypt ‘...since January 1994, approximately, 4,000 individuals have participated in the ‘ Best of Egypt ‘ tour and that

359 during that time period Defendant has never received any reports that any of the 4,000 tour participants had any problems with boarding or disembarking from any of the motorcoaches provided by Destination Egypt “ ). State Law: California: Sanders v. Nabila Tours & Cruises, No. AO79884 ( Cal. App. 1st Dept May 1, 1998 )( tourist injured during tour of Catacombs Hala in Egypt ). New Jersey: Slotnick v. Club ABC Tours, Inc., 2013 WL 830865 (N.J. Super. L. 2013)(slip and fall during tour of a cave; liability theories of tour operators and travel agents for torts of independent contractors). New York: Elsis v. TWA, 1989 N.Y. Misc. LEXIS 899 ( N.Y. Sup. 1989( Nile cruise boat burns to the waterline requiring passengers to jump into the river leaving their possessions in the burning boat; “ defendants undertook a duty to provide a cruise ship with expected safety features such as life boats and preservers “ ). 238. See Lavine v. General Mills, Inc., 519 F. Supp. 332 ( N.D. Ga. 1981 )( tour participant slips and falls on slippery rock in Fiji Islands ).

239. See Brasher, “ Hong Kong Tourism Battered by Outbreak “, N.Y. Times Sunday Travel Section, p. 4 ( April 13, 2003 )( The skyscrapers and the verdant hills ringing one of the world’s loveliest natural harbors are still here, but most of the tourists have been scared off by an outbreak of the new and deadly disease called SARS, for severe acute respiratory syndrome “ ). 240. See Carney v. Singapore Airlines, 1996 WL 598667 ( D. Ariz. 1996 )( tourist falls into steaming hot liquid in volcanic sulphur pit in Indonesia ).

241. See Fosman, The Law of the Tourist’s Country or the Forum Law when awarding Damages?, Travel Law Journal, Issue 2, p. 47 (1995)(“The suit was filed by the parents of a 17 year old American, John Cohen, who suffered injuries in a fall while touring Israel, when he was taken together with a group of youngsters by the Tour Guide in the Golan Heights on a path explicitly marked ‘forbidden’ falling deeply into a canyon and suffering brain damage almost complete(ly) paralyzed and unable to speak...the (Israeli Supreme Court) reduced damages (from $6,863,585.42) to $4,137,037.77 (in accordance with New York State standards for compensatory damages including loss of future earnings and reduced pain and suffering damages from “$250,000 to $60,000-which according to the Court is more in (line) with the Israeli Standards...set by Israeli Courts for its inhabitants”).

360

242. See Walton v. Fujitsa Tourist Enterprises, 380 N.W. 2d 198 ( Minn. App. 1986 )( tourist slips and falls at Japanese hotel ).

243. See Slotnik v. Club ABC Tours, Inc., 2012 N.J. LEXIS 194 (N.J. Super. 2012)(slip and fall during tour of Jordan).

244. See Ross v. Trans National Travel, 1990 WL 79229 ( D. Mass. 1990 )( tourist purchased safari tour of Kenya U.S. based tour operator through U.C.L.A. Alumni Association and during safari injures back and sued U.S. based tour operator and Kenyan safari operator ).

245. See Taniguchi v. Kan Pacific Saipan, Ltd., 132 S. Ct. 1997 (2012)(“Kouichi Taniguchi, a professional baseball player in Japan...was injured when his leg broke through a wooden deck during a tour of (a resort located in the Northern Mariana Islands owned by Kan Pacific Saipan, Ltd.)”). 246. See Larsen v. Hyatt International Corporation, 2011 WL 6937366 (Guam Sup. 2011)(a Guam resident “sprained his ankle while walking off the driveway of the Hyatt Resort and Casino in Manila, Philippines”; motion by defendants U.S. Hyatt International Corporation and Hotel Hotels Corporation to dismiss for lack of personal jurisdiction denied pending limited jurisdictional discovery).

247. See 1000 pilgrims evacuated from burning Mecca hotel, www.eturbonews.com (9/15/2015)(“About 1,000 Asian pilgrims were evacuated early on Thursday from their hotel in the Saudi city of Mecca, hit by a fire that injured two people...The hajj has been almost incident-free for the past decade, but at least 107 people, including some from Asia, died on Friday when a construction crane collapsed on Mecca Grand Mosque”).

248. See Connolly v. Samuelson, 671 F. Supp. 1312 ( D. Kan. 1987 )( tour participant injured during walking tour of Saba Saba Reserve in South Africa ).

249. See Lhotka v. Geographic Expeditions, Inc., 181 Cal. App. 4th 816, 104 Cal. Rptr. 844 (2010), cert denied 131 S. Ct. 288(2010)(37 year old decedent “died of an altitude-related illness while on a GeoEx expedition up Mount Kilimanjaro”).

See also: Steinmetz, British tourist dies after climbing Mount Kilimanjaro, www.eturbonews.com (2/10/2012)(“A British man collapsed and died just a few minutes after reaching Africa’s highest peak, Mount Kilimanjaro, the climb which he wished to fulfill during his lifetime...trip organized by Team Kilimanjaro, a company which

361 specializes in climbing holidays on the mountain”). 250. See Korean tourists hurt in Turkish hot-air balloon crash, www.etrubonews.com (3/11/2015).

251. See Isham v. Pacific Far East Line, Inc., 476 F. 2d 835 ( 9th Cir. 1973 )( passenger broke both wrists in accident while being transported ashore to Wake Island ).

252. See Italian tourist viciously mauled by Rottweiler, www.eturbonews.com (7/12/2015); Crocodile bites golfer at Australian tourist resort, www.eturbonews.com (4/14/2015); Tourists warned about deadly crocodile attacks in Australia, ETN (6/8/2014); Steinmetz, Tourists spend 22 hours trapped up a tree hiding from crocodiles, www.eturbonews.com (1/21/2013)(“Four Dutchmen who spent a terrifying day trapped up a tree hiding from a crocodile finally rescued yesterday-luckily with only bites from mosquitoes and sand flies”); Steinmetz, British tourist wrestles 6.5 foot shark away from paddling children, www.eturbonews.com (1/20/2013)(“British tourist came to the rescue of a group of paddling toddlers as he wrestled a shark heading towards them”).

253. See MacLachlin v. Marriott Corporation, New York Law Journal, January 18, 1994, p. 29, col. 2 ( N.Y. Sup. 1994 ) ( “ Plaintiff and a friend...Yorke booked the Q8 Marriott Vacation Tour under Marriott’s Honored Guest’s Awards Program (HGA) which, inter alia, included air-fare to Egypt and a stay at the Cairo Marriott Hotel & Casino (the Cairo Marriott). Plaintiff and Yorke claim that upon arriving at the Cairo Marriott, they arranged to take various tours through the Marriott tour desk. Plaintiff alleges that on the morning of August 25, 1991, Abou Aziza (Aziza), the Cairo Marriott bell captain, stated that he could arrange a tour of the Sound and Light Show at the Pyramids that evening, to which the plaintiff and her companion agreed. Plaintiff contends that Aziza subsequently drove her and Yorke to a stable and informed them that a horse or camel were the only means available to reach the Pyramids. Plaintiff maintains that she explained to Aziza that she was afraid to ride a camel but was assured by Aziza that the camel and the camel path were ‘ perfectly safe ‘ and that a trained handler would guide the camel along the route. Plaintiff alleges that her camel was subsequently tied to Yorke’s camel and they were led down the trial by a young boy (the Camel Guide), a practice plaintiff avers was not in keeping with Egyptian law which requires one adult handler per camel. Plaintiffs claim that the path she was taken on was rocky, unlevel and strewn with debris, and that the Camel Guide continually beat the legs of both camels to prod them along. At some point, plaintiff avers that her camel stumbled and tripped, ‘ probably on

362 some rocks or debris ‘ and with a loud cry the camel threw her into the air. Plaintiff landed on the rocky road where she remained until Aziza assisted her into his car and drove to the Pyramid Hospital. The fall allegedly caused plaintiff to break six ribs and fracture her pelvis...Even assuming that Aziza arranged the Pyramid Tour on his own accord, the allegations of plaintiff concerning how she was offered and subsequently booked the camel trip by the Bell Captain in the lobby of the Caro Marriott and subsequently driven to the camel stable in what appears to a an official Cairo Marriott car, in addition to Marriott’s brochures which promoted the Q8 vacation and lauded the preferential treatment plaintiff and her companion would receive, raise factual issues as to whether defendant should be estopped from disclaiming liability for the negligence of an independent contractor...and as to whether that contractor’s negligence was the proximate cause of plaintiff’s injuries. Contrary to defendant’s contention, the question is not whether plaintiff was a sophisticated traveler and was at fault, but, rather was the employee of Marriott’s subsidiary negligent in the performance of his official duties and whether such duties included the planning, arranging and booking of the ill-fated camel ride to the Pyramids “ ). See also: Steinmetz, EgyptAir passenger bitten by a snake on plane, www.eturbonews.com (12/3/2012)(“An EgyptAir pilot made an emergency landing...after a snake bit a Jordanian passenger. The snake was apparently concealed in his luggage”). 254. See Hall v. Voyagers International Tours, Inc., 2007 WL 2088878 ( N.D.N.Y. 2007 )( “ This action stems from the death of Donald Hall...when he was trampled by a wild elephant during a photographic safari operated by Wilderness Safaris Namibia in Namibia...There is evidence in the record that, if believed by a jury, would support a determination of direct negligence on the part of Voyagers...there is evidence that would support a determination that Voyagers was vicariously liable for the conduct of Wilderness under a theory of apparent agency or agency by estoppel “ ).

255. See Tourist killed in brutal shark attack (off coast of New Caledonia), www.eturbonews.com (5/11/2015).

256. See Lerner, Lion mauls Rye woman in S. Africa, The Journal News, June 4, 2015, p. 1 (“A Rye native mauled to death by a lion in South Africa was about to start a two-week volunteer stint on a wildlife preserve dedicating to saving rhinoceroses and elephants...Kate Chapell was killed Monday when a lion dragged her from her car as she was riding through a safari park near Johannesburg...Lt. Col. Lungelo Dlamini, a spokesman for the police (said) ‘The allegation is that while she was driving, the window was open and the lion

363 attacked’. Simpson, the park spokesman, said opening windows is against park policy, and numerous signs-plus leaflets given to visitors-reinforce those rules. About 180,000 tourists visit the park every year”).

See also: Steinmetz, German tourist badly injured by white rhino in SA Park, www.eturbonews.com (11/15/2012)(“A white rhino badly injured one German tourist when it charged a group of visitors on a morning walk in South Africa’s famous Kruger National Park”). 257. See Australian tourists injured in wasp attack, ETN (7/28/2014).

258. See Steinmetz, German tourist killed while elephant trekking in Krabi, www.eturbonews.com (12/1/2011)(“A German woman has been killed in controversial circumstances in an elephant trekking tragedy in the [province of Krabi not far from Phuket...One tourist has been killed and two other tourists have been seriously injured...over the past two years in male elephant rampages”).

259. See Chinese tourist killed in Tasmanian crash, ETN (4/18/2014).

260. Steinmetz, Investigators trying to determine cause of Lion Air Crash, www.eturbonews.com (4/16/2013)(“All 108 people on board survived Saturday’s crash, which has renewed questions about how safe it is to fly in Indonesia...The plane snapped in half as it crashed and came to rest in shallow water near the airport”).

261. See Passenger train crashes into a tour bus leaving 9 dead, 50 injured, ETN (8/1/2014).

262. See Wong, Hundreds Missing After Chinese Cruise Ship Sinks on Yangtze, www.nytimes.com (6/1/2015) it was noted that “Most of the 458 people aboard a chartered cruise ship in China were still missing on Tuesday morning, more than a dozen hours after the vessel sank during a torrential rainstorm along the central Yangtze River...Just 13 people had been rescued, local news media reported, making this perhaps the worst passenger maritime disaster in East Asia since the sinking of the South Korean ferry Sewol last year. The water where the boat sank is about 50 feet deep. Rescuers could hear the sounds of people trapped inside...Most of the passengers were 50 to 80 years old and had been traveling on a group tour...The ship capsized, with part of the hull above the surface of the water”.

364

New Hampshire, respectively, were killed in the crash of a Chinese plane en route from Nanking to Beijing, China...(liability limited to $20,000 applying Chinese law; Warsaw and Montreal Conventions do not apply to intra-country air transportation). Foreign Law: Great Britain: Wong Mee Wan v. Kwan Kin Travel Services Ltd., 4 All. ER 745 ( 1995 )( Hong Kong tourist drowns as a result of speedboat accident crossing a lake in China ).

See also: www.eturbonews.com (11/5/2012)(three Japanese tourists dead after being stranded overnight on the Great Wall); Santora, Two Americans Are Buried a Year After a Train Crash in China, www.nytimes.com (9/1/2012)(“A year ago Cao Erxing and his wife, Chen Zengrong, both 56, were killed in a high speed train crash in China...which left 40 people dead and 191 passengers injured in July 2011. The accident rattled the Chinese government and raised questions about the safety of the nation’s high-speed rail system”); 51 Dead in China Travel Accidents, www.voanews.com (May 22, 2010)(bus and railroad accidents kill 51 persons and injure 71 other rail passengers). 263. See At least 60 dead in Congo train crash, ETN (4/24/2014)

264. See e.g., Eleventh Circuit: Sachs v. TWA Getaway Vacations, Inc., 125 F. Supp. 2d 1368 ( S.D. Fla. 2000 )( tour participant injured disembarking tour bus in Egypt). State Law: California: Goldner v. Abercrombie & Kent International, Inc. ( Cal. Super. Ct., Los Angeles Co., June 1, 1998, No. BC 183207 ) slip op. ( granting motion to compel arbitration and stating case; plaintiff rendered paraplegic in slipping of vehicle during tour in Western Desert of Egypt ). New York: Elses v. TWA, 22 CCH Aviation Cases 17,806 ( N.Y. Sup. 1989 )( tour participants on Nile river boat cruise forced to jump into river when boat burns to the waterline; tour operator may be liable for failure to detect obvious defects in ship’s safety ).

See also: Russian tourists injured in bas crash in Egypt, ETN (5/7/2014). 265. See e.g., Ninth Circuit: Rollins v. Maui Dreams Dive Company, 2010 WL 4386755 (D. Hawaii 2010)(“while on a shark dive in Fiji she suffered severe injuries to her hand due to a faulty ladder”). State Law: New York: Braka v. Travel Assistance International, 7 Misc. 3d 1019 ( N.Y. Sup. 2005 )( “ plaintiff and his wife [ on an extended

365 honeymoon ] were seriously injured in a car accident while vacationing in Fiji. Upon learning of the accident, plaintiff’s parents flew to Fiji...there was a determination made that plaintiff was not receiving adequate medical treatment and, therefore, he needed to be transported via air ambulance back to the United States...parents paid for the transportation at a cost of approximately $350,000 “ ). 266. See Chan v. Society Expeditions, Inc., 123 F. 3d 1287 ( 9th Cir. 1998 ), cert. denied 118 S. Ct. 906 ( 1998 )( plaintiffs purchased a cruise and boarded ship in Tahiti and the “ next day passengers were ferried in inflatable raft called a Zodiac to Makatea, a coral atoll located in French Polynesia “ during which the Zodiac capsized drowning the driver and one passenger and severely injuring the plaintiffs).

267. See Irwin v. World Wildlife Fund, Inc., 448 F. Supp. 2d 29 ( D.C.D.C. 2006 )( plaintiffs injured in boat collision in Gabon )

268. See Auster v. Ghana Airways, Ltd., 514 F. 3d 44 ( D.C. Cir. 2008 )( passengers injured when Ghana Airways flight crashed while flying between two cities in Ghana ).

269. See Indian High Speed Passenger train under deadly terror attack, ETN (6/25/2014); India travel alert: Another 11 tourists dead at fatal bus accident, ETN (6/17/2014); Indian passenger train ripped by deadly bomb attack, ETN (5/1/2014).

270. See also: Steinmetz, German tourists killed in Kenyan plane crash, www.eturbonews.com (8/23/2012)(“Four people dies when a small passenger plane crashed on the runway in Kenya’s renowned Masai Mara national park...There were 11 foreign tourists on board of the aircraft: five Germans, two Americans and two Czechs. Two Kenyan pilots and two German tourists were killed”).

271. See Accident involving tourists: High-speed ferry HongKong-Macau, ETN (6/13/2014)(high speed ferry slams into breakwater in Macau injuring 57 passengers).

272. See British tourist killed in Malaysia bus crash, ETN (4/20/2014).

273. See Winter v. I.C. Holidays, Inc., New York Law Journal, Jan. 9, 1992, p. 23, col. 4 ( N.Y. Sup. 1992 )(tour bus accident).

274. See Searcey, Nossiter, Gali & Sengupta, Hotel Attack in Mali Reverses Gains in Flight Against Extremism, (“With its marble floors, open atrium and lipstick-red lounge, the Radisson BLU Hotel served

366 as a lifeline to the world, a gathering place where diplomats, contractors and others doing business in Mali, one of the poorest countries on earth, could all be found. Now, bullet holes pockmark the walls and blood is pooled on stairs...(the Radisson Blu is the site of a massacre in which terrorists killed 19 people”).http://www.nytimes.com

See also: 2014 Mali Air Algerie MD-83 crash: Pilot was warned, www.eturbonews.com (4/4/2015)(“France’s BEA crash investigation agency, which is helping Mali to investigate the crash that killed 116 people”). 275. See Davies v. General Tours, Inc., 1999 WL 712917 ( Conn. Sup. 1999 )( tour participant injured in tour bus accident in Morocco). See also: Passenger bus crash: 31 young athletes dead, www.eturbonews.com (4/10/2015). 276. See See Myanmar ferry accident kills 21, www.eturbonews.com (3/14/2015)(“ A passenger ferry has sunk off the coast of western Myanmar, leaving at least 21 people dead and 26 missing”); Steinmetz, Passenger Jet with foreign tourists crash-landed, www.eturbonews.com (12/25/2012)(“A Myanmar passenger jet packed with foreign tourists crash-landed and burst into flames...killing two people and injuring 11 others”).

277. See Steinmetz, 19 dead in plane crash near Kathmandu, www.eturbonews.com (9/27/2012)(“Sita Air Dornier aircraft, which was carrying 16 passengers and three crew members, caught fire and crashed on Friday morning near Kathmandu airport. All 19 people...reportedly have died in the crash...the plane was heading to the city of Likla-a transit hub for the tourists and mountain climbers heading for Mount Everest”).

278. See Steinmetz, NZ police wants tourist warned after visitor killed in car crash, www.eturbonews.com (1/6/2013)(“A 61 year old Israeli woman died and two others were taken to Southland Hospital after their rented Toyota Corolla left the road and crashed into a tree”); Steinmetz, Chinese tourist impaled by fence pole in NZ bus crash, www.eturbonews.com (1/14/2013(“A 17 year old tourist was been impaled in the chest by a fence post after the bus he was a passenger in crashes...near Roturia”).

279. See Philippines deadly ferry accident with 176 tourists and local passengers on board, www. eturbonews.com (7/2/2015) (“Kim Nirvana, a ferry heading from the central city of Ormoc to the island of Manotes in the Philippines, capsized with 173 tourists and passengers on board, killing at least 16 according to the Coast Guard stationed

367 in Ormac”. And in Antonio, Whatever Happened to...? Justice eludes ‘Princess of the Stars’ victims, http://newsinfo.inquirer.net (6/23/2015) it was noted that “The struggle for justice for hundreds of victims of the ill-fated MV Princess of the Stars is far from over. On June 21, 2008, the 23,824-ton ferry sailed from Manila...on a 22-hour trip to Cebu City, carrying 851 passengers ...when it ran into an approaching typhoon and keeled over. Only 32 survived the sinking, one of the Philippine’s worst sea tragedies. The remains of 300 were later recovered, but another 400 remained missing...A total of 135 cases have been lodged in Manila and Cebu by families of the victims against Sulpicio Lines, seeking damages worth P1.04 billion for negligence and breach of contract of carriage...But no one has been held criminally liable for the disaster”; Two Chinese diplomats killed, one wounded in restaurant attack in Philippines, www.eturnonews.com (10/21/2015)(“China’s consul general in the Philippines’ second biggest city was wounded and two of his staff members were killed on Wednesday during a lunchtime gun attack at a restaurant, police said”).

280. See Steinmetz, Two dead, dozens injured in South Africa tourist boat disaster, www.eturbonews.com (10/14/2012)(“A Brit is reported to be among the dead after a seal-watching boat carrying 41 passengers capsized in rough waters of Cape Town...The locally-owned motorized boat (carried) regular whale, dolphin and seal watching tours”).

281. See S Korea court gives captain life sentence for murder, www.bbc.com (4/28/2015) it was noted that “An appeals court has sentenced the South Korean captain of the Sewol ferry to life in prison on a murder charge, strengthening an earlier conviction. Lee-Joon-seok was at the helm when the ferry went down in April 2014 killing more than 300 people, mostly children. He had been found guilty in November of gross negligence and sentenced to 36 years, but relatives of the dead were furious he was not convicted of murder”. 282. See Linda, Another Antonov crash rocks Sudan, www.eturbonews.com (10/7/2012)(“Sudan has suffered a significant number of civilian and military air accidents, often with former Soviet Union era aircrafts involved, as is the case here, and suspicions regularly focused on poor maintenance, often allegedly falsified maintenance records and lack of crew training on simulators...While many African countries have moved to ban the registration and in part even the use of these ancients aircraft, the Sudan-as has the Congo DR with an equally bad aviation record-has continued to permit the use of such stone age birds”); Steinmetz, Sudan airline crash kills 31, www.eturbonews.com (8/20/2012)(“The Sudan has one of the worst aviation accident records in Africa, often attributed to poor aircraft maintenance and the lack

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368 of regular crew training as required for commercial aviation and also the use of ‘stone-age’ generation Soviet era aircraft, which have long been banned from registration and use in many other jurisdictions”). See also: Clark, E.U. Expands Airline “Blacklist”, www.nytimes.com (4/1/210)(“The European Union on Tuesday banned all airlines from the Philippines and Sudan from flying into the region’s airports, citing ‘serious safety deficiencies’ found by the United Nations and U.S. aviation authorities”). See also: http://europa.eu/rapid/pressRelease (4/17/2012) (“The European Commission has adopted today (April 3, 2012) the 19th update of the European list of air carriers banned (in the EU)”). 283. See Steinmetz, 31 Chinese visitors injured in Taiwan tour bus crash, www.eturbonews.com (9/25/2012)(“A tour bus carrying 35 Chinese nationals from Beijing overturned in Hualien County yesterday afternoon, leaving three passengers seriously injured and 28 with minor injuries”).

284. See Weinberg v. Grand Circle Travel LLC, 2012 WL 4096611 (D. Mass. 2012)(“This negligence action...involves two Florida resident who planned an African safari vacation with a Massachusetts travel agent, only to become victims of a tragic hot air balloon crash in the Serengeti. One victim was killed in the crash and the other, the deceased’s fiancee, sustained severe bodily injuries, allegedly due to the negligence of the balloon company...brought action against a Massachusetts company, Grand Circle Travel (‘Overseas Adventure’), a Tanzanian corporation, Tourism and Public Relations Services Limited trading as Serengeti Balloon Safaris (‘Tourism Services’) and an English company, Serengeti Balloon Safaris, LTD (‘Serengeti Balloon’) seeking compensatory and punitive damages on claims of strict liability, negligence, gross negligence and recklessness”; motion of Tourism Services and Serengeti Balloon to dismiss for lack of personal jurisdiction granted; “It seems unfair that the Serengeti defendants can reap the benefits of obtaining American business and not be subject to suit in our country”).

See also: Steinmetz, Tourists escape death after dramatic ocean rescue, www.eturbonews.com (8/21/2012)(“According to a regular source from the Tanzanian coast, three foreign tourists had to be pulled from the sea, as their boat, sailing from Pangani to Zanzibar sank after running into heavy weather...In recent years Tanzania has been struck by a series of ferry accident, on Lake Victoria and between Zanzibar and Pemba Island”). 285. See Stone v. Pacific Delight Tours, New York Law Journal, Dec. 27, 1978, p. 1, col. 4 ( N.Y. Sup. 1978 )( accident when trishaw over

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369 turns into ditch ).

286. See Korean tourists hurt in Turkish hot-air balloon crash, www.etrubonews.com (3/11/2015).

287. See e.g., Eleventh Circuit: Esfeld v. Costa Crociere, 289 F. 3d 1300 ( 11th Cir. 2002 )( cruise passenger on shore excursion injured in tour van accident in Da Nang, Vietnam; lawsuit against Italian cruise line ). State Law: Florida: Pearl Cruises v. Cohon, 728 So. 2d 1226 ( Fla. App. 1999 )( cruise passengers injured in automobile accident during shore excursion in Da Nang, Vietnam ). 288. See Munn v. Hotchkiss School, 2012 U.S. Dist. LEXIS 40787 (D. Conn. 2013)(15 year old student on a school trip in China when she was infected with an insect-borne disease leaving her permanently disabled; school found to have failed to warn of risk of insect-borne disease and to take adequate precautions; jury

289. See Boyle v. Starwood Hotels & Resorts Worldwide, Inc., 2013 WL 5731729 (N.Y.A.D. 2013)(contraction of Legionnaire’s disease during stay at hotel located in Dubai”.

290. See Lavine v. General Mills, Inc., 519 F. Supp. 332 ( N.D. Ga. 1981 )( tourist purchases package tour featuring trip to Australia and New Zealand with an optional 3 day ocean cruise from New Zealand to the Fiji Islands provided by Blue Lagoon; participant in disembarking cruise ship slips and falls on slippery rock on beach in Fiji Islands; refuses local medical care and returns to the United States for emergency medical treatment; plaintiff claims that defendants negligently “ failed to provide to her adequate medical care, equipment, supplies or staff to handle known medical emergencies “).

291. Nossiter, Fear of Ebola Breeds a Terror of Physicians, 2 Americans Test Positive for Ebola in Liberia, www.nytimes.com (7/27/2014).

292. See Morris v. Princess Cruises, Inc., 236 F. 3d 1061 ( 9th Cir. 2001 )( sick passenger removed from cruise ship to Aradhana Intensive Care and Nursing Home in Bombay, India where she kept in filthy conditions for six hours and then transferred to Breach Candy Hospital in Bombay after being forced to pay $1,200 to leave the nursing home. “ Mrs. Morris testified to the wretched conditions prevailing at the Aradhana facility. There was half an inch of urine on the floor, flies and roaches were everywhere. There was no medical

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370 equipment of any kind there “ ). See also: Protecting against the swine flu in India, www.eturbonews.com (3/17/2015). 293. See Steinmetz, Dengue Fever outbreak reported from Kenya coast, www.eturbonews.com (3/25/2013)(“Health officials were quoted (as) confirming at least 15 cases of Dengue Fever at the Kenya coast”).

294. See Nossiter, Fear of Ebola Breeds a Terror of Physicians, 2 Americans Test Positive for Ebola in Liberia, www.nytimes.com (7/27/2014); Ebola Examines: The History of a Viral Scourge, http://hlconverge.com (6/30/2014); Canadians respond to Ebola outbreak in Liberia with rapid generosity, ETN (4/28/2014).

295. See Tourism Alert: Deadly MERS virus spread to Lebanon, ETN (5/9/2014).

296. See Urgent Nigeria tourism alert: Ebola is deadly and is now in Nigeria, ETN (7/26/2014).

297. See Travel and tourism threat: Killer virus Middle East Respiratory Syndrome (MERS) is spreading, ETN (4/27/2014)(“Saudi Arabia, where MERS was discovered around two years ago and which remains the country most affected. Has now had 323 confirmed cases of MERS, of which 94 have been fatal”).

298. See Nossiter & Cowell, Ebola Virus Is Outpacing Efforts to Control It, World Health Body Warns, www.nytimes.com (8/1/2014); Ebola: Deadly, no cure, no vaccine-WHO team in Sierra Leona fighting virus, ETN (5/29/2014).

299. See MERS fears hit flight bookings to South Korea, www.eturbonews.com (6/11/2015)(“The first case in South Korea of MERS, a virus which produces cold-like symptoms including fever, cough and breathing difficulties, was reported on May 20, 2015").

300. See Cholera kills hundreds in South Sudan, 5000 children at risk, www.eturbonews.com (7/3/2015).

301. See Linda, Fresh ebola outbreak hits Uganda, www.eturbonews.com (11/14/2012)(“ebola has yet again reappeared and already claimed two victims in the Luwero District in Uganda”); Linda, Marburg outbreak in Uganda should not be a threat to tourists, www.eturbonews.com (10/24/2012)(“Five people have died and several dozen more are under confinement and quarantine to avoid the spread of the disease further, in a similar approach which last month saw the successful elimination

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371 of an Ebola outbreak. Both diseases are suspected to have been brought into the country through refugees from Congo, who fled the intense fighting in the border region with Uganda and Rwanda”).

302. See Albania tourism: Two Czech tourists murdered enjoying Albania’s mountain region, www.eturbonews.com (7/4/2015).

303. See In re Ski Train Fire In Kaprun Austria On November 11, 2000, 499 F. Supp. 2d 437 ( S.D.N.Y. 2007 )(“ These cases arise from a disaster that occurred on November 11, 2000 in which a ski train in Kaprun, Austria caught fire, killing 155 people “).

See also: Steinmetz, Russian tourist dies in Austrian avalanche, www.eturbonews.com (12/20/2012)(“Coming down form the mountain, the man entered into the avalanche and was instantly covered with two meters of snow”). 304. In Rubin, Breeden and Raghavan, Strikes Claimed by ISIS Shut Brussels and Shake European Security, www.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, www.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”.

See also: Nossiter, A Shot, a Glimpse of an AK-47, and U.S. Servicemen Pounced in Gunman on Train in France, www.nytimes.com (8/22/2015)(“It was 5:45 p.m., a normal Friday afternoon on the sleek high-speed train that takes high-level European diplomats, businesspeople, tourists and ordinary citizens between Amsterdam, Brussels and Paris...The man with the gun kept going down to carriage, holding his AK-47 and a Luger pistol. In a pocket was a sharp blade capable of inflicting grievous harm. He had at least none cartridges of ammunition, enough for serious carnage. Alek Skarlatos, a specialist in the National Guard from Oregon vacationing in Europe with a friend in the Air Force, Airman First Class Spencer Stone and

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372 another American, Anthony Sadler, looked up and saw the gunman. Mr. Skarlatos, who was returning from a deployment in Afghanistan, looked over at the powerfully built Mr. Stone, a martial arts enthusiast. ‘Let’s go, go’! He shouted...Their actions saved many lives on the train, which was packed with over 500 passengers... The attack took place in Oignies, near the historic town of Arras”. And in Breeden, Americans and Briton Receive Top French Honor for Stopping Train Gunman, www.nytimes.com (8/24/2015) it was noted that “President Francois Hollande of France on Monday awarded the Legion of Honor, France’s highest award, to three Americans and a Briton for their role in stopping a gunman on a high-speed train to Paris from Amsterdam on Friday”.

See also: Steinmetz, Five killed, 19 injured in Belgium tour bus crash, www.eturbonews.com (4/16/2013). 305. See Erlanger, 10 Years After London Bombings, Warnings of a Greater Threat, www.nytimes.com (7/7/2015)(“As Britain mourned the 52 civilians killed 10 years ago in its most devastating terrorist attacks, government officials warned on Tuesday that the threat of terrorism had only increased, though its nature has shifted. Four suicide bombers linked to Al Qaeda detonated explosives on a London bus and on three subway trains in the attacks on July 7, 2005. About 700 people were wounded”).

306. See Steinmetz, Israeli tourists killed in Bulgarian bus bombing, www.eturbonews.com (7/19/2012)(“Israeli officials say that seven people died (30 were injured) in a bomb explosion on a bus carrying Israeli tourists in the city of Burgas, Bulgaria”).

307.263. See Breeden & Blaise, 43 Killed in Southwestern France as Bus and Truck collide, www.nytimes.com (10/23/2015)(“In the worst traffic disaster in 33 years in France, a truck collided head-on with a bus carrying elderly people on a sightseeing excursion...killing at least 43 people...The bus passengers, members of a senior citizens’ club in Petit-Palais-et-Cornemps...were headed first to a tasting of the neighboring region’s famous cured hams”).

See also: Nossiter, Breeden & Bennhold, Three Teams of

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Coordinated Attackers Carried Out Assault on Paris, Officials Say; Hollande Blames ISIS, www.nytimes.com (11/14/2015)( “Three teams of Islamic State attackers acting in unison carried out the terrorist assault in Paris on Friday night...As the death toll rose to 129-with 352 other wounded, 99 of them critically... the attackers were all armed with assault rifles and suicide vests”); Schmitt & Kirkpatrick, Strategy Shifts for ISIS: Inflicting Terror in Distant Lands, www.nytimes.com (11/14/2015)“defying Western efforts to confront the Islamic State on the battlefield, the group has evolved in its reach and organizational capability...(and) strategies that call for using spectacular acts of violence against civilians”); In Editorial Board, What Will Come After Paris, www.nytimes.com (11/15/2015)(“The terrorist attacks in Paris on Friday, along with twin bombings in Beirut on the day before and the downing of a Russian jetliner over the Sinai Peninsula...show a new phase in the Islamic State’s war against the West...The challenge for threatened countries is hugh”); ISIS promises France to remain top target-names of victims released, www.eturbonews.com (11/16/2015) it was noted that “The Islamic State group on Saturday claimed responsibility for a wave of attacks in Paris that killed 129 people and said France would remain at the “top of the list” of its targets”; Breeden & Blaise, 43 Killed in Southwestern France as Bus and Truck collide, www.nytimes.com (10/23/2015)(“In the worst traffic disaster in 33 years in France, a truck collided head-on with a bus carrying elderly people on a sightseeing excursion...killing at least 43 people...The bus passengers, members of a senior citizens’ club in Petit-Palais-et-Cornemps...were headed first to a tasting of the neighboring region’s famous cured hams”).

See also: Clerk, Germanwings Co-Pilot Accelerated During Descent, Data From 2nd Recorder Shows, www.nytimes.com (4/3/2015)(“The co-pilot of the German airliner that crashed into the French Alps last week accelerated as he deliberately guided the aircraft toward the ground...based on data from the plane’s second so-called black box...the data showed that the 27-year-old co-pilot...had used the autopilot to direct the plane to descend to an altitude of 100 feet. Then, ‘several times during the... descent, the pilot adjusted the automatic pilot so as to increase the speed of the plane as it descended’”) Steinmetz, British Tourists Murdered in France, www.eturbonews.com (9/13/2012) (“Engineer Saad at-Gilli, his wife and mother-in-law were brutally murdered in a remote spot close to Lake Annecy a week ago”); Steinmetz, English-speaking tourist jumps to his death from Eiffel Tower, www.eturbonews.com (6/26/2012(“Eiffel Tower has highest number of suicides for any French landmark”). 308. See Two tour busses collide in Dresden: 9 dead, 40 injured, ETN

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(7/19/2014)(“A large Polish tour bus collided with a small Ukrainian tourist bus”).

309. See Clerides v. Boeing Company, 534 F. 3d 623 ( 7th Cir. 2008 )( commercial aircraft “ scheduled to fly from Larnaca, Cyprus to Athens, Greece...After takeoff, the aircraft failed properly to pressurize. As a result, the crew and passengers lost consciousness and asphyxiated; the plane crashed near Athens, Greece, when it ran out of fuel “ ).

See also: Steinmetz, 6 tourists injured in explosion on Greek mock pirate ship, www.eturbonews.com (10/7/2012)(“Greek officials say that a tour boat captain was killed and 6 foreign tourists were injured when a replica cannon exploded Saturday on a mock pirate ship of the southern Aegean island of Koa...Two Dutch passengers, a Belgian and two German children were hurt”); U.S. Tourist Killed in Rockslide on Santorini Island, Greece, http://gogreece.about.com (5/23/2011)(“A 52-year-old male tourist from the United States was killed by falling rocks while riding a donkey...on a popular donkey trail leading up the cliffs to Oia”); 310. See Steinmetz, US visitor dies in Hungary after being refused seat on three New York flights, www.eturbonews.com (11/26/2012)(“Vilma Slotesz, 56, from New York, weighed about 425 lids...had only one leg ad used a wheelchair. She dies from health complications in Hungary nine days after she was kicked off the first of three flights and now he death could...be the cause of a multimillion-dollar lawsuit against the airlines”).

311. See “ Passenger Killed in Shore Excursion Accident “, Travel Weekly, p. 8 ( July 31, 2000 )( “ A female passenger aboard Orient Lines’ Marco Polo was killed in a snowmobiling accident...during a shore excursion on Langjokull Glacier near Raykjavik, Iceland “ ).

312. King v. Cessna Aircraft Co., 562 F. 3d 1374 ( 11th Cir. 2009 )( “ The case arises out of a tragic plane crash that occurred at Linate Airport in Milan, Italy...On that foggy morning, a private Cessna jet operated by Air Evex, a German charter company, made a wrong turn and taxied toward an active runway, causing it to collide with Scandinavian Airlines Flight 686, which was just taking flight. One hundred eighteen people died, including everyone on board both planes and four people on the ground “).

As noted in Piangiani, Captain of Ship That Capsized Off Italy in ‘12 Is Convicted, www.nytimes.com (2/11/2015) “An Italian court...convicted the captain of a cruise liner that capsized in 2012,

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375 killing 32 people, of manslaughter and sentenced him to just over 16 years in prison for his role in one of the worst maritime disasters in modern Italian history. The captain, Francesco Schettino, 54, was convicted of multiple counts of manslaughter, causing a shipwreck and abandoning the vessel, the Costa Concordia, before all of its 4,229 passengers and crew members had been evacuated. The court also barred him from commanding a ship for five years...In closing arguments that went on for days, prosecutors attacked Captain Schettino’s conduct...calling him a ‘reckless idiot’ and accusing him of making deadly mistakes and lying to passengers, maritime authorities and rescue officials...The court also ordered Captain Schettino and the company that operated the ship, Costa Cruises, to pay damages of 30,000 euros or about $34,000 in compensation to each passenger and several million euros to local and national government bodies for the environmental harm caused by the accident...The company has already paid 1 million (euros) in administrative sanctions in connection with the disaster...Under Italian law, companies can be held responsible for their employees conduct, but (curiously) the ship’s operator, Costa Cruises, was not indicted in the case. Costa Cruises is controlled by the Carnival Corporation”. 313. See Roth, Planes Crashes in Fog in Kazakhstan, Killing All 21 on Board, www.nytimes.com (1/30/2013).

314. See Steinmetz, Third British tourist dies in Mallorca in less than a month, www.eturbonews.com (5/8/2012)(“A British tourist has fallen to her death from a hotel balcony in Mallorca in the third such British death on the Spanish island in less than a month”).

315. See British tourist drowns in Malta, www.eturbonews.com (6/22/2015); Steinmetz, Two bodies recovered during search for French tourists missing off Malta, www.eturbonews.com (5/8/2013).

316. See Russian tourist dies in Norway, ETN (7/13/2014)(“Russian tourist died after falling into the waterfall Voringfossen in western Norway”).

317. See 33 Dutch tourists injured, 3 dead in Portugal airport bush accident, www.eturbonews.com (6/18/2015).

318. See e.g., Second Circuit: Esheva v. Siberia Airlines, 499 F. Supp. 2d 493 ( S.D.N.Y.. 2007 )( “ While 79 passengers and crew members survived the crash, 124 died. Sixteen of the passengers were residents of countries other than Russia but none were U.S. residents “); Harris v. VAO Intourist Moscow, 481 F. Supp. 1056 ( E.D.N.Y. 1979 )( tourist

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376 dies in fire in Moscow hotel ). Ninth Circuit: Vorbiev v. McDonnell Douglas Helicopters, Inc., 2009 WL 1765675 ( N.D. Cal. 2009 )( three passengers survive helicopter crash in “ the village of Ulvat, Tyumen in the Russian Federation “ ).

See also: After 100 injured and dozens dead Russia launches ‘safe selfie’ campaign, www.eturbonews.com (7/10/2015); Kramer, Subway Train in Moscow Derails, Killing at Least 20 During Morning Commute, www.nytimes.com (7/15/2014); Steinmetz, Passenger jet in Moscow overshot runway, www.eturbonews.com (12/31/2012)(“A Passenger jet crashed into a highway...At least four people were killed and four critically wounded”); Levy, Subway Blasts Kill Dozens in Moscow, www.nytimes.com (3/29/2010). 319. See Melgares v. Sikorsky Aircraft Corp., 613 F. Supp. 2d 231 ( D. Conn. 2009 )( “ product liability action arising out of a July 2006 helicopter crash near Tenerife, Spain that killed six persons “ ).

See also: Scottish tourist dies in Spain, ETN (3/10/2014) (“A Scots tourist has died after falling from a hotel balcony in Benidorm, Spain”); Swiss tourist killed, two others injured in Canaries crash, ETN (3/10/2014)(“A bus carrying 17 Swiss tourists overturned on Spain’s Gran Canaria island”). 320. See Steinmetz, Belgium Christian Group mourns 22 children after Swiss Ski Holidays, www.eturbonews.com (3/14/2012)(bus crash against tunnel wall in Swiss canton of Valais).

321. See Terrorist attacks in Tajikistan: Airport attacked twice, UK issues travel advisory, www.eturbonews.com (9/4/2015) (“Dushanbe, Tajikistan...was rocked by terrorist attacks on security personnel as the capital of Tajikistan witnessed two separate incidents in which around 11 policemen and security personnel were killed”).

322. See Sarai Sierra Dead: Missing NYC Woman Found Dead In Istanbul, www.huffingtonpost.com (2/3/2013)(“A New York City woman who went missing while vacationing alone in Istanbul was found dead”).

323. See See In Clark & Kramer, Malaysia Airlines Flight 17 Most Likely Hit by Russian-Made Missile, Inquiry Says, www.nytimes.com (10/13/2015)(“A 15-month inquiry into the disintegration of Malaysia Airlines Flight 17 in the skies over eastern Ukraine has concluded that the aircraft was struck by a Russian-made missile, Dutch air accident investigators said Tuesday...’Flight MH17 crashed as a result of the detonation of a warhead outside the airplane above the

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377 left-hand side of the cockpit’...The explosion tore off the forward part of the plane, which broke up in the air. The crash killed all 298 people aboard; the investigation found that many died instantly, while others quickly lost consciousness. ‘It is likely the occupants were barely able to comprehend their situation’”); Pounian & Green, Legal Challenges Faced by Victims of Plane Shootdown Over Ukraine, www.newyorklawjournal.com (6/26/2015)(“This coming July 17 will mark the first anniversary of the shootdown of Malaysia Airlines Flight 17 over eastern Ukraine...But was the airline negligent for operating its aircraft over the eastern Ukraine during a time of known hostilities? Three days before the flight 17 disaster, a Ukrainian military transport at 21,000 feet was shot down by a surface-to-air missile over eastern Ukraine and there had been similar attacks on other Ukrainian government aircraft. Indeed, during the several weeks prior to the disaster, other airlines-including Asiana, China Airlines & Quantas-decided to change their flight routes to avoid overflying eastern Ukraine”. The airspace over eastern Ukraine, however, was officially closed only up to 32,000 feet and remained legally open to commercial jets like Flight 17 that were operating above that altitude...The question is therefore raised: If airspace remains open for flight according to the responsible government authorities, to what extent must airlines question that decision and take it upon themselves to assess the risk of possible military or terrorist activity?”);

324. In Rubin, Breeden and Raghavan, Strikes Claimed by ISIS Shut Brussels and Shake European Security, www.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, www.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”. . 325. See Erlanger, 10 Years After London Bombings, Warnings of a

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Greater Threat, www.nytimes.com (7/7/2015)(“As Britain mourned the 52 civilians killed 10 years ago in its most devastating terrorist attacks, government officials warned on Tuesday that the threat of terrorism had only increased, though its nature has shifted. Four suicide bombers linked to Al Qaeda detonated explosives on a London bus and on three subway trains in the attacks on July 7, 2005. About 700 people were wounded”).

326. See Bulgaria: Sunny Beach resort region dangerous and not fit to receive EU tourists? ETN (5/30/2014).

327. See Suspects dead: Dagestan bomb attack on restaurant, ETN (1/18/2014)(“Russian security forces have killed seven people suspected of involvement in a grenade and bomb attack on a restaurant in Dagestan”).

328. See Nossiter, Breeden & Bennhold, Three Teams of Coordinated Attackers Carried Out Assault on Paris, Officials Say; Hollande Blames ISIS, www.nytimes.com (11/14/2015)( “Three teams of Islamic State attackers acting in unison carried out the terrorist assault in Paris on Friday night...As the death toll rose to 129-with 352 other wounded, 99 of them critically... the attackers were all armed with assault rifles and suicide vests”); Schmitt & Kirkpatrick, Strategy Shifts for ISIS: Inflicting Terror in Distant Lands, www.nytimes.com (11/14/2015)“defying Western efforts to confront the Islamic State on the battlefield, the group has evolved in its reach and organizational capability...(and) strategies that call for using spectacular acts of violence against civilians”); In Editorial Board, What Will Come After Paris, www.nytimes.com (11/15/2015)(“The terrorist attacks in Paris on Friday, along with twin bombings in Beirut on the day before and the downing of a Russian jetliner over the Sinai Peninsula...show a new phase in the Islamic State’s war against the West...The challenge for threatened countries is hugh”); ISIS promises France to remain top target-names of victims released, www.eturbonews.com (11/16/2015) it wasnoted that “The Islamic State group on Saturday claimed responsibility for a wave of attacks in Paris that killed 129 people and said France would remain at the “top of the list” of its targets”; Breeden & Blaise, 43 Killed in Southwestern France as Bus and Truck collide, www.nytimes.com (10/23/2015)(“In the worst traffic disaster in 33 years in France, a truck collided head-on with a bus carrying elderly people on a sightseeing excursion...killing at least 43 people...The bus passengers, members of a senior citizens’ club in Petit-Palais-et-Cornemps...were headed first to a tasting of the neighboring region’s famous cured hams”).

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See also: Steinmetz, Are Chinese tourists safe in France?, www.eturbonews.com (4/30/2013)(“In early March, 23 members of a Chinese tour group were robbed after dinner in Paris. Their passports, passenger tickets and cash were looted, and the group leader was injured”); Steinmetz, Gypsy criminal gangs from eastern Europe overrun Paris tourist attractions, www.eturbonews.com (4/16/2013)(“Hundreds of armed police have been placed around Paris’ major tourist monuments because of an influx of criminal gangs from eastern Europe. It follows a hugh increase in the number of aggressive beggars and pickpockets flooding into the French capital from Romania and Bulgaria”); 329. See Steinmetz, Greek police arresting, beating tourists, www.eturbonews.com (1/10/2013)(“Greek police have stepped up efforts to catch illegal immigrants in recent months...But tourists have been picked up in the sweeps-and at least two have been badly beaten”).

330. See Roma gangs of thieves target popular Europan tourist destinations, ETN (5/25/2014)(“The Roma gang members were first noticed hanging around the Dublin Tourism Information office”); Steinmetz, Dublin criminals prey on sightseeing female tourists, www.eturbonews.com (March 19, 2013)(“Criminals preying on tourists are most likely to target young women sightseeing in Dublin during the afternoon...Almost 740 tourists-at the brunt of 433 separate crimes and traumatic incidents sought help from (The Irish Tourist Assistance Service in 2012)”).

331. See Paneno v. Centres for Academic Programmes Abroad Ltd., 118 Cal. App. 4th 1447 ( Cal. App. 2004 )(student falls from balcony in Florence). See also: Japanese tourist drugged, robbed in Naples, www.eturbonews.com (6/30/2015). 332. See NZ visitor in Slovak hospital after violent assault in Poland, ETN (6/18/2014).

333. See Thieves impersonated cops and targeted tourists in Edinburgh, ETN (5/29/2014).

334. See Terrorist attacks in Tajikistan: Airport attacked twice, UK issues travel advisory, www.eturbonews.com (9/4/2015) (“Dushanbe, Tajikistan...was rocked by terrorist attacks on security personnel as the capital of Tajikistan witnessed two separate incidents in which around 11 policemen and security personnel were killed”).

335. See Tavernise, Schmitt & Gladstone, Jetline Explodes Over Ukraine; Struck by Missile, Officials Say, www.nytimes.com (7/17/2014)(“A Malaysia Airlines Boeing 777 with 298 people aboard

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380 explodes, crashed and burned on a flowered wheat field Thursday in a part of eastern Ukraine controlled by pro-Russia separatists, blown out of the sky at 33,000 feet by what Ukrainian and American officials described as a Russian-made antiaircraft missile”); Steinmetz, British tourists kidnaped in Ukraine, rescued by elite special ops, www.eturbonews.com (3/11/2013)(“‘The man was a tourist. His kidnappers demanded $30,000...from his relatives for his release’”).

336. See Paris police officers charged with raping Canadian tourist, ETN (4/28/2014)(“Two elite French police officers have been charged with raping a Canadian tourist in their Paris headquarters in a case that has sent shock waves across France”).

337. See Child-snatchers target British and Irish tourists in Cyprus, www.eturbonews.com (6/18/2015),

338. See Chinese tourist kidnaped in Pakistan, ETN (5/19/2014).

339. See Steinmetz, Prague tourism center rocked by explosions, www.eturbonews.com (4/30/2013)(“Dozens of people have been injured after a suspected gas explosion rocked the center of Prague this morning”).

340. See Frummer v. Hilton Hotels International, Inc., 19 N.Y. 2d 533, 281 N.Y.S. 2d 41 ( 1967 )( guest at London Hilton Hotel leased by Hilton Hotels ( U.K. ), Ltd. ( “ Hilton (UK) “ ) slips and falls in “ an ‘ ovular ‘ modernistic type bathtub “ ).

341. See Duffy v. Grand Circle Travel, Inc., 302 A.D. 2d 324 ( 2003 )( tourist purchased a package tour featuring a cruise in France during which he was injured ); Gutman v. Club Mediterranee International, 218 A.D. 2d 640, 630 N.Y.S. 2d 343 ( 1995 )( tourist injured in ski accident at Club Med facility at Tigne Val Claret, France).

342. See e.g., Third Circuit: Schwartz v. Hilton Hotels Corporation, 2009 WL 1936784 ( D.N.J. 2009 )( “ Schwartz alleges that...she entered the bathroom of her ( Greek ) hotel room, slipped on a puddle of water on the floor and broke her leg “ ). Foreign Law: Great Britain: Wilson v. Best Travel ( 1993 ) 1 All ER 353 ( English tourist falls through glass window in Greek hotel ). See also: U.S. Tourist Killed in Rockslide on Santorini Island, Greece, http://gogreece.about.com (5/23/2011)(“A 52-year-old male tourist from the United States was killed by falling rocks while riding

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381 a donkey...on a popular donkey trail leading up the cliffs to Oia”). 343. See Dorfman v. Marriott International Hotels, 2001 WL 69423 ( S.D.N.Y. 2001 )( guest at Marriott Hotel in Budapest, Hungary slips and falls on unleveled elevator ); Dorfman v. Marriott International Hotels, 2002 WL 14363 ( S.D.N.Y. 2002 ) (jurisdiction found).

344. See McDermott v. Travelers Air Services, Inc., 462 F. Supp. 1335 ( M.D. Pa. 1979 )( slip and fall at hotel in Ireland ). 345. See Paneno v. Centres for Academic Programmes Abroad Ltd., 118 Cal. App. 4th 1447 ( Cal. App. 2004 )(student falls from balcony in Florence); Santora v. Starwood Hotel and Resorts Worldwide, Inc., 2006 WL 1371432 ( N.D. Ill. 2006 )( guest at Hotel Danieli-Venice trips and falls on carpet ).

346. See Carley v. Theatre Development Fund, 22 F. Supp. 2d 224 ( S.D.N.Y. 1998 )( tourists purchase tour of Russia and during a stay at Hotel Pulkovskaya in St. Petersburg “ Anne Marie Carley sustained serious injuries while trying to open her hotel window...Mrs. Carley fell approximately six floors when the window swung into the room unexpectedly and she fell out “ ).

347. See Wukowitz, UK: Birmingham County Court decides in broken glass door case, http://iftta.org/content (10/17/2012)(“The Russell family booked a holiday package to Spain (and) specially requested accommodations which (were) suitable for young children...They were duly reassured. At the hotel they were allocated to a room with a glass balcony. Shortly after arrival while the parents were unpacking, the (4 year old) girl ran towards the door (and) collided with it. The glass which was only 5mm thin and not reinforced with any kind of safety film or wiring, broke and causes serious injury...The claimant was successful before the Birmingham County Court is establishing liability...The Court found that a reasonable holidaymaker in their position, have been specially reassured that the room was suitable for a young family, should have been told that the glass was not safety glass and was very thin. It was foreseeable that young children would run around and bump into objects and it was not surprising that the family had sought reassurance in what was there first trip abroad. The judge accepted that had they been given an appropriate warning, they would not have chosen to stay in this particular hotel at all” (Case: Russell v. Thomas Cook Tour Operations (2012)).

See also: Tourist survives fall from hotel balcony, ETN (7/20/2014)(“The man was staying at the TRH hotel in Magaluf, Calle Marti Ros Garcia”).

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348. See U.S. Tourist Killed in Rockslide on Santorini Island, Greece, http://gogreece.about.com (5/23/2011)(“A 52-year-old male tourist from the United States was killed by falling rocks while riding a donkey...on a popular donkey trail leading up the cliffs to Oia”).

349. See Steinmetz, 7ft alligator on the lose at Spanish resort, www.eturbonews.com (3/25/2013)(“Police on Spain was warning tourists to watch out for a 7ft alligator they have dubbed ‘the Costa Croc’”).

350. See Polar bear attacks tourist group, www.eturbonews.com (3/22/2015)(“A group pf tourists from the Czech Republis was attacked by a polar in Norwegian Svalbard...the bear was shot to death”); Tourists who shot polar bear that attacked them fined $1230, www.eturbonews.com (7/15/2015)(“because they failed to put a member of their group on ‘polar bear watch’”).

351. See Seagulls terrorize tourists at Welsh seaside resort, ETN (8/1/2014).

352. See Jainchill, Antarctica cruise operators approve new safety guidelines, Travel Weekly, July 27, 2009, p. 8 (“The 43 members of the International Association of Antarctica Tour Operators (IAATO) agreed to participate in a satellite vessel tracking system, to replace open lifeboats and enclosed ones and to require that ships have at least one ice captain or ice pilot with Antarctica experience on the bridge... (following) the April report by the government of Liberia on the 2007 sinking of GAP Adventures’ Explorer cruise ship, in which the lack of Antarctica experience on the part of the captain was cited as a major contributing factor”).

353. See In re Ski Train Fire In Kaprun, Austria, 499 F. Supp. 2d 437 ( S.D.N.Y. 2007 )( “ These cases arise from a disaster that occurred on November 11, 2000 in which a ski train in Kaprun, Austria caught fire, killing 155 people).

354. See e.g., Third Circuit: D’Amato v. Horizon Holidays, Inc., 1997 U.S. Dist. LEXIS 19120 ( D.N.J. 1997 )( tourist injured boarding shuttle bus at Gatwick Airport ); McCartney v. Windsor, Inc., 1996 U.S. Dist. LEXIS 1623 ( E.D. Pa. 1996 )( tour bus accident in England; “ At the time of the accident the coach’s anti-lock braking system was broken, the braking system warning light was broken, the speed limiter had been disconnected, the coach was traveling at an excessive rate of speed, the driver lacked adequate sleep, he was exceeding his driving hour limit... [ Plaintiffs allege that the tour operator’s ] brochure falsely tour

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383 the safety of the tour...Plaintiffs’ claims...for negligent failure to investigate and disclose pertinent safety information, for making false representations and breaching warranties regarding tour safety cannot fairly be characterized as frivolous or lacking any colorable basis “). State Law: New York: Ashkenazi v. Hertz Rent A Car, 18 A.D. 3d 584, 795 N.Y.S. 2d 624 ( 2005 )( rental car accident in Mexico ); Neville v. Anglo American Management, 191 A.D. 2d 240, 594 N.Y.S. 2d 747 ( 1993 )( car rental accident during student tour of England ); Weiner v. B.O.A.C., 60 A.D. 2d 427, 401 N.Y.S. 2d 91 ( 1978 )( air carrier which organized tour of England not liable for rental car accident ). 355. See Breeden & Blaise, 43 Killed in Southwestern France as Bus and Truck collide, www.nytimes.com (10/23/2015)(“In the worst traffic disaster in 33 years in France, a truck collided head-on with a bus carrying elderly people on a sightseeing excursion... killing at least 43 people...The bus passengers, members of a senior citizens’ club in Petit-Palais-et-Cornemps...were headed first to a tasting of the neighboring region’s famous cured hams”).

See also: Reers v. Deutsche Bahn, AG, 320 F. Supp. 2d 140 ( S.D.N.Y. 2004 )( 12 passengers, some U.S. citizens, died in a German owned railcar on a French train because an attendant “ assigned to Railcar 120 that night started a fire and failing to extinguish it, abandoned his port without warning the sleeping passengers “; maximum compensation under French law would be approximately $100,000 “ ); Milgrim v. Backroads, Inc., 142 F. Supp. 2d 471 ( S.D.N.Y. 2001 ), aff’d 91 Fed. Appx. 702 ( 2d Cir. 2002 )(tourist injured during bike tour of Loire Valley in France). 356. See Chouset v. American Airlines, Inc., 1993 WL 501607 ( E.D. La. 1993 )( tour participant in an American Flyaway Tour injured when “ door of a tour bus closed on his arm at a freeway rest stop “ ).

See also: See Two tour busses collide in Dresden: 9 dead, 40 injured, ETN (7/19/2014)(“A large Polish tour bus collided with a small Ukrainian tourist bus”). 357. See Steinmetz, 6 tourists injured in explosion on Greek mock pirate ship, www.eturbonews.com (10/7/2012)(“Greek officials say that a tour boat captain was killed and 6 foreign tourists were injured when a replica cannon exploded Saturday on a mock pirate ship of the southern Aegean island of Koa...Two Dutch passengers, a Belgian and two German children were hurt”).

358. See Dorkin v. American Express Co., 74 Misc. 2d 673, 345 N.Y.S. 2d 891, aff’d 43 A.D. 2d 877, 351 N.Y.S. 190 ( tour participant injured when tour bus suddenly stops during tour of Holland ).

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359. See Steinmetz, US visitor dies in Hungary after being refused seat on three New York flights, www.eturbonews.com (11/26/2012)(“Vilma Slotesz, 56, from New York, weighed about 425 lids...had only one leg ad used a wheelchair. She dies from health complications in Hungary nine days after she was kicked off the first of three flights and now he death could...be the cause of a multimillion-dollar lawsuit against the airlines”).

360. See e.g., Tenth Circuit: Cameron v. Group Voyagers, Inc., 2004 WL 585872 ( D. Colo. 2004 )( “ These personal injury actions arise out of a tour bus crash that took place near Venice, Italy on June 12, 2001, injuring some or all of the approximately 30 passengers on board. Most of the passengers were citizens of the United States, Great Britain or Australia, although two were citizens of Malaysia and the tour director was a citizen of Slovnia” ). State Law: New York : Travalja v. Maieliano Tours, 622 N.Y.S. 2d 961 ( N.Y.A.D. 1995 )( rental car accident in Italy ); Fogel v. Hertz International, 141 A.D. 2d 375, 529 N.Y.S. 2d 484 ( 1988 )( rental car accident in Florence, Italy ). 361. See Plane bursts into flames as horrified passengers look on, www.eturbonews.com (6/17/2015); Roth, Plane Crashes in Fog in Kazakhstan, Killing All 21 on Board, www.nytimes.com (1/30/2013).

362. See Car slams into group of tourists, 22 injured, ETN (7/20/2014)(“car ran into a group of people in Polish seaside resort of Sopot”).

363. See 33 Dutch tourists injured, 3 dead in Portugal airport bush accident, www.eturbonews.com (6/18/2015).

364. See Kermisch v. Avis Rent-A-Car, 71 A.D. 2d 790, 419 N.Y.S. 2d 793 ( 1979 )(tourists arrested in Rumania for mistreating their rental vehicle ).

365. See See e.g., Second Circuit: Esheva v. Siberia Airlines, 499 F. Supp. 2d 493 ( S.D.N.Y.. 2007 )( “ While 79 passengers and crew members survived the crash, 124 died. Sixteen of the passengers were residents of countries other than Russia but none were U.S. residents “); Harris v. VAO Intourist Moscow, 481 F. Supp. 1056 ( E.D.N.Y. 1979 )( tourist dies in fire in Moscow hotel ). Ninth Circuit: Vorbiev v. McDonnell Douglas Helicopters, Inc., 2009 WL 1765675 ( N.D. Cal. 2009 )( three passengers survive helicopter crash in “ the village of Ulvat, Tyumen in the Russian Federation

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“ ).

See also: Kramer, Subway Train in Moscow Derails, Killing at Least 20 During Morning Commute, www.nytimes.com (7/15/2014); Steinmetz, Passenger jet in Moscow overshot runway, www.eturbonews.com (12/31/2012)(“A Passenger jet crashed into a highway...At least four people were killed and four critically wounded”); Levy, Subway Blasts Kill Dozens in Moscow, www.nytimes.com (3/29/2010). 366. See Ramage v. Forbes International, Inc., 1997 WL 785613 ( C.D. Cal. 1997 )( tour participant injured when tour bus hit bump in road outside Glasgow, Scotland).

367. See Rovinsky v. Hispanidad Holidays, Inc. 580 N.Y.S. 2d 49 ( 1992 )( tour bus accident in Spain; tour operator represented that it owned and operated a fleet of safe buses operated by experienced staff ).

See also: Swiss tourist killed, two others injured in Canaries crash, ETN (3/10/2014)(“A bus carrying 17 Swiss tourists overturned on Spain’s Gran Canaria island”). 368. See See Tavernise, Schmitt & Gladstone, Jetline Explodes Over Ukraine; Struck by Missile, Officials Say, www.nytimes.com (7/17/2014)(“A Malaysia Airlines Boeing 777 with 298 people aboard explodes, crashed and burned on a flowered wheat field Thursday in a part of eastern Ukraine controlled by pro-Russia separatists, blown out of the sky at 33,000 feet by what Ukrainian and American officials described as a Russian-made antiaircraft missile”); Chivers, Jet Wreckage Bears Signs of Impact by Supersonic Missile, Analysis Shows, www.nytimes.com (7/21/2014)(“A piece of wreckage from the Malaysia Airlines Boeing 777-200 that was shot down in eastern Ukraine last week bears telltale marks of small pieces of high-velocity shrapnel that apparently crippled the jet in flight”).

369. See Gartland v. Doucette, 2002 WL 1815982 ( Conn. Super. 2002 )( tourist purchases “ European Whirl “ tour during which she becomes stricken with severe respiratory infection and dies in a hotel room; tourist discussed plans with travel agent and informed of heart problems; travel agent recommended Trafalgar Tours because “ it was fully escorted tour which would be the easiest type of tour “; lawsuit charged tour operator, inter alia, with failing “ to recognize signs of medical problems or illness of tour participants in order to insure timely medical intervention and failure to take steps to insure timely medical intervention “). 370. See Deadly MERS virus may be spreading in Germany and Slovakia,

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386 www.eturbonews.com (6/16/2015).

371. See Fleming v. American Automobile Association, 2000 La. App. 1761 ( La. App. 2000 )( medical malpractice by Greek doctors who replaced tour participants hip in Athens ).

372. . See Martinides v. Holland America Line-Westours, inc., C 94 1386 ( W.D. Wash. )( cruise passenger had angina attack and stabilized in ship’s infirmary, then transferred to Naples hospital recommended as the best for cardiac care; allegedly the facility was a maternity hospital with neither the equipment nor the trained staff to care for cardiac patients. Three days later passenger died and family sued cruiseline alleging “ failure to provide adequate medical care, failure to properly provide information regarding medical care options and failure to recommend a facility with proper medical services and/or equipment and directing the deceased...to a medical facility which was inadequate “ ).

373. See Deadly MERS virus may be spreading in Germany and Slovakia, www.eturbonews.com (6/16/2015).

374. See Wajnstat v. Oceania Cruises, Inc., 2011 WL 465340 (S.D. Fla. 2011)(cruise passenger becomes ill and diagnosed by ship’s doctor as having bleeding hemorrhoids; symptoms worsened and passenger was medically disembarked in the Ukraine and transported to a medical facility wherein more than half of his colon was removed; plaintiff claimed her received substandard medical care in Ukraine; the Court dismissed a cause of action against the cruise line alleging a failure to investigate the competency of land based medical providers).

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387 388 THE CRUISE PASSENGE2'S RIGHTS AND REMEDIES 2014: THE COSTA CONCORDIA DISASTER: ONE YEAR LATER, MANY MORE INCIDENTS BOTH ON BOARD MEGASHIPS AND DURING R)SKY SHORE EXCURSIONS

Submitted By:

HON. THOMAS A. DICKERSON Appellate Division, Second Department Brooklyn, NY

389 390 The Cruise Passenger’s Rights and Remedies 2014: The COSTA CONCORDIA Disaster: One Year Later, Many More Incidents Both on Board Megaships and During Risky Shore Excursions

Justice Thomas A. Dickerson*

I. A VERY BAD YEAR FOR MEGASHIPS ...... 4 A. Floating Hotels and Dangerous Shore Excursions ...... 5 B. Shore Excursion Questions To Ask ...... 7 C. What About Those Pesky Somali Pirates? ...... 7 D. Some Improvements in Pirate Control ...... 8 II. TWENTY-FIRST-CENTURY CRUISE SHIPS, NINETEENTH-CENTURY PASSENGER RIGHTS ...... 9 III. RECENT DEVELOPMENTS ...... 10 A. The COSTA CONCORDIA Disaster: Under Investigation ...... 10 B. Lawsuits and Settlements ...... 11 C. International Cruise Line Passenger Bill of Rights 2013—Not Much There ...... 12 D. The Passenger Bill of Rights: An Interposed Analysis ...... 12 E. The Cruise Vessel Security and Safety Act of 2010 ...... 14 1. The Safety Act Needs Some Adjustments ...... 15

* © 2014 Justice Thomas A. Dickerson. Thomas A. Dickerson is an Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court. Justice Dickerson is the author of TRAVEL LAW (2014); CLASS ACTIONS: THE LAW OF 50 STATES (2014); Class Actions, in 3 JACK B. WEINSTEIN, HAROLD L. KORN & ARTHUR L. MILLER, NEW YORK CIVIL PRACTICE art. 9 (David L. Ferstendig ed., 2d ed. 2011); Consumer Protection, in 4C COMMERCIAL LITIGATION IN NEW YORK STATE COURTS ch. 98 (Robert L. Haig ed., 3d ed. 2013); and THOMAS A. DICKERSON, RODNEY E. GOULD & MARK CHALOS, LITIGATING INTERNATIONAL TORTS IN U.S. COURTS (2013). Justice Dickerson has also authored over 300 articles and papers on consumer law, class actions, travel law, and tax certiorari issues, many of which are available at the following Web sites: Justices of the Court: Associate Justice Thomas A. Dickerson, APPELLATE DIVISION, SUP. CT. OF THE STATE OF N.Y., http://www.courts.state.ny.us/courts/ad2/justice_ dickerson.shtml (last visited Apr. 12, 2014); Tax Certiorari & Condemnation Proceedings, NYCOURTS.GOV, 9TH JUDICIAL DISTRICT, http://www.courts.state.ny.us/courts/9jd/ taxcertatd.shtml (last visited Apr. 12, 2014). REPRINTED WITH PERMISSION 1

391 2 TULANE MARITIME LAW JOURNAL [Vol. 38:1

2. Victims Group Questions Crime Data ...... 16 F. Americans with Disabilities Act ...... 16 G. More Needs To Be Done ...... 17 IV. ACCIDENTS ON BOARD CRUISE SHIPS: THE STANDARD OF CARE, LIABILITIES, AND WARRANTIES ...... 17 A. Reasonable Care ...... 25 B. Res Ipsa Loquitur ...... 25 C. Strict Liability for Cruise Employees’ Sexual Misconduct ...... 26 D. Vicarious Liability for Ship Doctor Malpractice ...... 26 E. No Strict Liability ...... 27 F. Dram Shop Liability ...... 27 G. Seaworthiness Doctrine ...... 28 H. No Implied Warranty of Safe Passage...... 28 I. No Implied Warranty of Merchantability ...... 28 J. Causation and Notice ...... 29 V. ACCIDENTS ON SHORE: HOW FAR DOES MARITIME LAW EXTEND? ...... 29 A. Risky Business: Shore Excursions ...... 29 1. Due Diligence Investigations ...... 30 2. Big Business for the Cruise Lines ...... 30 3. The Applicable Law ...... 30 4. Three Zones of Danger ...... 31 B. Types of Shore Excursion Accidents ...... 32 C. Theories of Liability for Shore Excursion Accidents ...... 35 VI. OTHER LIABILITY ISSUES ...... 36 A. Cancellations, Delays, Port Skipping, and Itinerary Changes ...... 36 B. Misrepresentations and Discomfort Aboard the Cruise Ship ...... 37 1. Port Charges ...... 37 2. Hotel Taxes and Fee Surcharges ...... 37 3. Passengers’ Cabins ...... 38 C. Cruise Ship Facilities and Services ...... 39 D. Lost, Damaged, or Stolen Baggage ...... 41 E. Passenger Protection Rules ...... 41 1. Financial Protection for Cruise Passengers ...... 41 2. Sanitary Inspection of Vessels ...... 42 3. Protecting the Oceans ...... 43 F. Insurance: Cancellation Waivers and Third-Party Policies ...... 43

392 2014] CRUISE PASSENGER’S RIGHTS AND REMEDIES 3

VII. LITIGATION ROADBLOCKS IN PROSECUTING PASSENGER CLAIMS ...... 44 A. The Limitation of Liability Act ...... 44 B. Passenger Ticket Print Size and Language ...... 45 C. Time Limitations: Physical Injury Claims ...... 46 1. One Year in Which To File Suit ...... 46 2. Exceptions to the Rule ...... 46 D. Time Limitations: Nonphysical Injury Claims ...... 46 1. Six Months in Which To File Suit ...... 46 2. Exceptions to the Rule ...... 47 E. Jurisdictional Issues ...... 47 1. Marketing Through Travel Agents ...... 47 2. The “Solicitation Plus” Doctrine ...... 48 3. Jurisdiction over Internet Travel Services ...... 48 4. Jurisdiction: Agent and Phone Number in Forum ...... 48 5. Jurisdiction and Territorial Waters ...... 49 F. Forum Selection and Mandatory Arbitration Clauses ...... 49 1. Forum Selection Clauses Are Generally Enforceable ...... 49 2. Notice Must Be Adequate ...... 51 3. Federal Court Forum Selection Clauses ...... 52 4. Application to Nonsignatories ...... 53 5. The Importance of Forum Selection Clauses ...... 54 6. Cancellation Fees and Adequacy of Notice ...... 54 7. Physical Disabilities Exception ...... 56 G. Choice-of-Law Clauses ...... 56 H. Disclaimers of Liability for Onboard Accidents ...... 58 I. Disclaimer of Liability for Medical Malpractice by Ship’s Doctor ...... 58 J. Shore Excursion Disclaimers ...... 60 1. Warranties of Safety ...... 60 2. Limited Scope ...... 60 K. Force Majeure or Act of God Defense ...... 61 L. Limitations on Recoverable Damages ...... 62 M. The Athens Convention: Cruises Not Touching U.S. Ports ...... 62 1. Application to U.S. Cruise Passengers ...... 63 2. Limitations Enforceable ...... 63 N. The Athens Protocol: 2002 and Beyond ...... 64 O. Death on the High Seas Act: Pecuniary Damages...... 66 VIII. CONCLUSION ...... 67

393 4 TULANE MARITIME LAW JOURNAL [Vol. 38:1

I. A VERY BAD YEAR FOR MEGASHIPS Between January 2012 and May 2013, there were a series of disasters involving, inter alia, a megaship thought to be unsinkable that sank faster than the TITANIC, megaships thought to be fireproof that were not, and megaships thought to be secured by appropriate backup systems, both mechanical and electrical, that did not exist. These disasters, which disappointed thousands of angry passengers, included: (1) The COSTA CONCORDIA catastrophe of January 13, 2012. 1 After striking a rock off the Tuscan Coast, the wrecked vessel left “a haunting image: that of the 13-story luxury liner Costa Concordia half-submerged in the Tyrrhenian Sea.” Thirty-two of the COSTA CONCORDIA’s 4,252 passengers perished in the accident.2 (2) In February 2012, the COSTA ALLEGRA became inoperative while sailing on the Indian Ocean. The incident effectively rendered the COSTA ALLEGRA a “sitting duck” for pirates that routinely attack ships throughout the Indian Ocean.3 (3) In February 2013, a fire aboard the CARNIVAL TRIUMPH shut down the vessel’s power, propulsion, sewage, and air-conditioning systems. The fire, which occurred in the ship’s engine room, left “4,200 passengers adrift for days in the Gulf of Mexico with little to eat and raw sewage seeping through the ship’s walls and carpets.”4 Although nearly all cruise vessels lack backup systems that would help the vessel return to port in the event of a power failure, the CARNIVAL TRIUMPH incident highlighted the absence of these systems. After a review of the incident, the United States Coast Guard (USCG) noted that “the ship’s safety equipment contained the blaze.”5

1. Michelle Higgins, So, Just How Safe Is Your Ship?, N.Y. TIMES (Feb. 1, 2012), http:// www.nytimes.com/2012/02/05/travel/reassessing-cruise-safety.html?_r=0. 2. Adam Piore, The Informer: Staying Afloat, CONDÉ NAST TRAVELER, June 2012, at 49-55 (“The dramatic end of the Costa Concordia, ripped open by rocks off the Tuscan coast, has lawmakers asking if the regulations governing cruise ship safety have kept pace with the industry’s rapid growth.”). 3. Peter Tarlow, Security on the High Seas: Assuring the Cruise Industry and Its Ports of Call, ETURBONEWS (Mar. 5, 2012), http://www.eturbonews.com/28173/assuring-cruise-industry- and-its-ports-call. 4. Stephanie Rosenbloom, How Normal Are Cruise Mishaps?, N.Y. TIMES (May 8, 2013), http://www.nytimes.com/2013/05/12/travel/cruise-mishaps-how-normal-are-they.html. 5. Barry Meier & John Schwartz, Lack of Backup Power Puts Cruise Passengers at the Ocean’s Mercy, N.Y. TIMES (Feb. 24, 2013), http://www.nytimes.com/2013/02/25/business/many- cruise-ship-lack-backup-power-systems-vexing-regulators.html; see also Mark Pestronk, For Carnival Triumph Passengers, Three Obstacles to Recovery, TRAVEL WKLY. (Mar. 6, 2013), http://www.travelweekly.com/Mark-Pestronk/For-Carnival-Triumph-passengers-three-obstacles-to

394 2014] CRUISE PASSENGER’S RIGHTS AND REMEDIES 5

While the fire aboard the CARNIVAL TRIUMPH generated considerable publicity, similar incidents have occurred aboard other vessels in recent years. For example, a November 2010 fire on board the CARNIVAL SPLENDOR stranded 3,300 passengers at sea for more than seventy-two hours,6 and an April 2006 fire on board the STAR PRINCESS left one passenger dead and eleven injured.7 (4) A March 2013 voyage of the CARNIVAL DREAM became the passengers’ nightmare when the vessel’s central power and emergency generator failed, resulting in some of the vessel’s toilets not working.8 Similarly, a March 2013 voyage of the CARNIVAL LEGEND was interrupted when reduced power in the ship’s propulsion system forced the vessel to skip a scheduled port of call in Grand Cayman.9 (5) A May 2013 fire on board Royal Caribbean’s GRANDEUR OF THE SEAS “was extinguished about two hours later with no injuries reported.”10

A. Floating Hotels and Dangerous Shore Excursions Modern cruise ships are best viewed as floating deluxe hotels that transport their guests from exotic port to exotic port where they stay a few hours for shopping, snorkeling, scuba diving, jet skiing, parasailing, and touring. Although there are problems on board cruise ships, generally it is safer to be on board than on a shore excursion. However, shore excursions are highly promoted11 by the cruise lines, generate

-recovery/ (discussing passenger tickets featuring a Miami-Dade County, Florida, forum selection clause). 6. Jennifer Medina, Crippled Cruise Ship Reaches Shore, N.Y. TIMES (Nov. 11, 2010), http://www.nytimes.com/2010/11/12/us/12cruise.html; see also Meier & Schwartz, supra note 5 (discussing the discovery of deficiencies in the ship’s firefighting operations after a preliminary United States Coast Guard inquiry). 7. David Cogswell, Star Princess Fire Lowers Carnival’s Earnings, TRAVEL WKLY. (Apr. 3, 2006), http://www.travelweekly.com/Cruise-Travel/Star-Princess-fire-lowers-Carnivals-earnings/. 8. Jack Carpenter, Holly Yan & Lateef Mungin, Carnival Legend Back in Florida After Week of Troubled Cruise Voyages, CNN (Mar. 17, 2013, 7:20 AM), http://www.cnn.com/2013/ 03/17/travel/carnival-problems/. 9. Jerry Limone, Carnival Legend Skips Call Due to Propulsion Problems, TRAVEL WKLY. (Mar. 15, 2013), http://www.travelweekly.com/Cruise-Travel/Carnival-Legend-skips-call- due-to-propulsion-problems/. 10. US Memorial Day Turned into a Nightmare for 2000+ Passengers Onboard a Royal Caribbean Cruise, ETURBONEWS (May 27, 2013), http://www.eturbonews.com/35129/us- memorial-day-turned-nightmare-2000-passengers-onboard-royal-c. 11. For a discussion of how cruise ships market shore excursions, see Perry v. HAL Antillen NV, No. C12-0850JLR, 2013 WL 2099499, at *1-4 (W.D. Wash. May 14, 2013) (discussing the relationship between the cruise line, ground tour operator, and subcontractor

395 6 TULANE MARITIME LAW JOURNAL [Vol. 38:1 substantial revenues,12 and cause an increasing number of reported deaths and serious injuries to cruise passengers. Examples of such injuries include quadriplegia after an unforgettable swim at Lover’s Beach in Cabo San Lucas, Mexico;13 quadriplegia after taking a dive at Señor Frog’s Restaurant in Cozumel, Mexico;14 being shot to death near Coki Beach in St. Thomas; 15 injury while riding an ATV in Acapulco, Mexico;16 being struck by lightning during a catamaran ride in Montego Bay, Jamaica;17 injury during a zip-line excursion in Jamaica;18 assault and robbery during an excursion to Earth Village in Nassau;19 slip and fall during a Laughton Glacier Hike Tour;20 asphyxiation in a diving bell in Bermuda;21 death while parasailing in Cozumel, Mexico;22 death after being run over by a tour bus after returning from the Rain Forest Aerial Tram in Dominica;23 and death after a tour bus ran off a mountain road in Chile.24 transportation provider in relation to a passenger’s injury during a shore excursion); Koens v. Royal Caribbean Cruises, Ltd., 774 F. Supp. 2d 1215, 2012 AMC 721 (S.D. Fla. 2011); and Smolnikar v. Royal Caribbean Cruises Ltd., 787 F. Supp. 2d 1308, 2011 AMC 2941 (S.D. Fla. 2011). 12. See Wendy Perrin, What I Learned Moonlighting as a Cruise Ship Trainee, CONDÉ NAST TRAVELER (Apr. 23, 2013, 4:30 PM), http://www.cntraveler.com/perrin-post/2013/04/cruiseship-shore-excursions-what-i-learned-moonlighting-as-a-cruise-ship-trainee-042313_slideshow_i tem0_1 (explaining that Royal Caribbean expects the NAVIGATOR OF THE SEAS “to earn between $600,000 and $1,100,000 per week in onboard revenue”). 13. Samuels v. Holland Am. Line-USA Inc., 656 F.3d 948, 949-50, 2011 AMC 2441, 2441-43 (9th Cir. 2011). 14. Belik v. Carlson Travel Grp., Inc., 864 F. Supp. 2d 1302 (S.D. Fla. 2011). 15. Chaparro v. Carnival Corp., 693 F.3d 1333, 1335 (11th Cir. 2012). 16. Carnival Corp. v. Operadora Aviomar S.A. de C.V., 883 F. Supp. 2d 1316, 1318 (S.D. Fla. 2012). 17. Bridgewater v. Carnival Corp., 286 F.R.D. 636, 638 (S.D. Fla. 2011). 18. Smolnikar v. Royal Caribbean Cruises Ltd., 787 F. Supp. 2d 1308, 1310, 2011 AMC 2941, 2942-43 (S.D. Fla. 2011). 19. Koens v. Royal Caribbean Cruises, Ltd., 774 F. Supp. 2d 1215, 1218, 2012 AMC 721, 722-23 (S.D. Fla. 2011). 20. Young v. Carnival Corp., No. 09-21949-CIV, 2011 WL 465366, at *1 (S.D. Fla. Feb. 4, 2011). 21. Zapata v. Royal Caribbean Cruises, Ltd., No. 12-21897-Civ, 2013 WL 1296298, at *7 n.1 (S.D. Fla. Mar. 27, 2013); Zapata v. Royal Caribbean Cruises, Ltd., No. 12-21897-Civ, 2013 WL 1100028, at *5-6 (S.D. Fla. Mar. 15, 2013) (dismissing claims against a Bermuda shore excursion operator for lack of personal jurisdiction). 22. Joseph v. Carnival Corp., No. 11-20221-CIV, 2011 WL 3022555, at *1 (S.D. Fla. July 22, 2011). 23. Perry v. HAL Antillen NV, No. C12-0850JLR, 2013 WL 2099499, at *1-2 (W.D. Wash. May 14, 2013). 24. The danger passengers participating in shore excursions face was recently demonstrated when twelve cruise passengers were killed during a stopover in Chile. See Wayne Parry, Dead, Injured in Chilean Bus Crash Return Home, J. NEWS, Mar. 25, 2006, at 7B (“The victims . . . were part of a 64-member B’nai B’rith group that was traveling aboard the cruise ship

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B. Shore Excursion Questions To Ask Before purchasing a cruise line shore excursion, consumers are well advised to ask the following questions: (1) Is the local ground operator insured,25 licensed, and trained? The answer: it may be no on all three issues. (2) Has the cruise line evaluated the reliability of the local ground operator? The answer: maybe yes,26 maybe no. (3) Has the cruise line assumed responsibility for any injuries its passengers suffered, or has it disclaimed all liability for any injuries that passengers might sustain during a shore excursion? The answer: read your cruise ticket. Cruise lines typically disclaim liability for shore-excursion accidents.27 This is reason enough to have appropriate travel insurance,28 including evacuation coverage.

C. What About Those Pesky Somali Pirates? The scary news for those cruising on Middle Eastern and Indian Ocean waters is those pesky and not so romantic Somali pirates who have been known to fire at vessels passing along the Somali coast.29

Millennium, and had made a side excursion to see the mountains on a tour bus that tumbled more than 300 feet down a mountainside.”). 25. See, e.g., Perry, 2013 WL 2099499, at *6-7. A cruise passenger was run over by a tour van hired as a subcontractor by the tour operator Rain Forest Aerial Tram, Ltd.(RFAT), which had entered into a contract with the cruise line (HAL) and executed a copy of a manual entitled “Tour Operator Procedures and Policies” (TOPPS). The TOPPS manual required “a tour operator in the Caribbean to obtain minimum limits of auto and general liability insurance of ‘US$2.0 million/accident or occurrence.’” Id. at *6. In the event “the Operator subcontract[ed] for services (such as aircraft, rail, tour buses or watercraft), the Tour Operator” was required to “provide a list of its subcontractors and evidence of the subcontractor’s insurance.” Id. The cruise line asserted that RFAT “was ‘required to assure that any subcontractor it used to provide excursion related services had in place the equivalent USD 2,000,000 in auto and general liability coverage.’” Id. Here, it was discovered after the accident that the tour van operator only had approximately $80,000 in insurance coverage. The court held that the plaintiffs were third-party beneficiaries of TOPPS and had a claim against RFAT for failing to disclose to HAL that the tour van operator was a subcontractor and was only insured up to approximately $80,000. Id. at *7, *13-20. 26. See, e.g., Smolnikar v. Royal Caribbean Cruises Ltd., 787 F. Supp. 2d 1308, 1312-14, 2011 AMC 2941, 2947-50 (S.D. Fla. 2011). 27. See, e.g., Young v. Carnival Corp., No. 09-21949-CIV, 2011 WL 465366, at *2 (S.D. Fla. Feb. 4, 2011); Smolnikar, 787 F. Supp. 2d at 1310, 2011 AMC at 2443-44. 28. See Johanna Jainchill, Travel Insurance Sales Are Booming for Cruise Vacations, TRAVEL WKLY. (June 5, 2006), http://www.travelweekly.com/Travel-News/Travel-Agent-Issues/ Travel-insurance-sales-are-booming-for-cruise-vacations/. 29. See Debra A. Klein, After Attack, Cruise Ships Rethink Security, N.Y. TIMES (Dec. 4, 2005), http://www.nytimes.com/2005/12/04/travel/04prac.html (“Now the armed attack on the Seabourn Spirit off Somalia on Nov. 5 has the cruise industry checking its bearings on security. The Spirit was carrying 151 passengers and 161 crew members when it was fired upon at dawn

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Recently, Somali gunmen have expanded the scope of their nefarious activities beyond piracy by kidnapping and murdering tourists in Kenya.30

D. Some Improvements in Pirate Control In 2012, there was a well-publicized effort by United States Navy Seals to rescue “two hostages-an American aid worker and her Danish colleague-held by Somali pirates.” In order to rescue the hostages, the Seals were forced to parachute into central Somalia at night, hike two miles, retrieve the hostages, and fly them to safety. 31 Aggressive operations like this one may contribute to a decline in piracy. In fact, data released by the United States Navy showed a decrease in the number of pirate attacks off the coast of Africa in 2012. Whereas there were 239 attacks in 2010 and 222 attacks in 2011, there were only 46 reported pirate attacks in 2012 as of August 2012. Of those 46 attacks, only 9 were successful.32 However, while the total impunity with which pirates were able to operate in many parts of Somalia spurred an increase in naval efforts to stymie hijackings, pirates have simply reacted by shifting their activities landward, increasing land-based kidnapping of foreigners.33 Further, the recent disbanding of the Puntland Maritime Police Force may result in well-trained “pirate hunters” joining forces with the very pirates they were trained to combat.34

from two small vessels off the Somalia coast.”); see also Adam Nagourney & Jeffrey Gettleman, Pirates Brutally End Yachting Dream, N.Y. TIMES (Feb. 22, 2011), http://www.nytimes.com/2011/ 02/23/world/africa/23pirates.html?pagewanted=all. 30. See Scott Sayare, Frenchwoman Abducted in Kenya Dies, N.Y. TIMES (Oct. 19, 2011), http://www.nytimes.com/2011/10/20/world/africa/french-woman-abducted-in-kenya-dies.html?_r =0; see also UK Warns Brits To Stay Away from Coastal Areas in Kenya, ETURBONEWS (Oct. 3, 2011), http://www.eturbonews.com/25554/uk-warns-brits-stay-away-coastal-areas-kenya. 31. Jeffrey Gettleman, Eric Schmitt & Thom Shanker, U.S. Swoops In To Free 2 from Pirates in Somali Raid, N.Y. TIMES (Jan. 25, 2012), http://www.nytimes.com/2012/01/26/world/ africa/us-raid-frees-2-hostages-from-somali-pirates.html. 32. Thom Shanker, U.S. Reports That Piracy off Africa Has Plunged, N.Y. TIMES (Aug. 28, 2012), http://www.nytimes.com/2012/08/29/world/africa/piracy-around-horn-of-africa-has- plunged-us-says.html. 33. Id. 34. Mark Mazzetti & Eric Schmitt, Private Army Formed To Fight Somali Pirates Leaves Troubled Legacy, N.Y. TIMES (Oct. 4, 2012), http://www.nytimes.com/2012/10/05/world/africa/ private-army-leaves-troubled-legacy-in-somalia.html.

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II. TWENTY-FIRST-CENTURY CRUISE SHIPS, NINETEENTH-CENTURY PASSENGER RIGHTS While a cruise vacation may very well be the best travel value available, consumers should be aware that a cruise line’s duties and liabilities are governed not by modern, consumer-oriented common and statutory law, but by nineteenth-century legal principles,35 the purpose being to insulate these companies from legitimate passenger claims. The policy enunciated by the United States Court of Appeals for the Second Circuit nearly sixty years ago in Schwartz v. S.S. Nassau, a case involving a passenger’s wrongful death action, applies equally today.36 In Schwartz, the Second Circuit construed 46 U.S.C. § 183(b) as a statute designed to “encourage shipbuilding.” Accordingly, the court determined that the statute’s provisions “should be liberally construed in the ship-owner’s favor”37 and denied the plaintiffs’ statutory claim that a shipowner impermissibly limited the time to bring suit in a ticket contract. Recently, in Farris v. Celebrity Cruises, Inc., the United States Court of Appeals for the Eleventh Circuit enforced passenger ticket language that provided, “Celebrity Cruises, not [the passenger], is entitled to rights under the Athens Convention. And, although that treaty establishes a two-year limitations period for personal injuries, the ticket does not incorporate that limitations period.”38 Similarly, in Brozyna v. Niagara Gorge Jetboating, Ltd., a passenger was injured on a jet boat plying the rapids of the Niagara River “when the boat ‘came down hard’ in the rapids at Devil’s Hole.”39 The court enforced a preaccident waiver of all liability, noting that “there is a clearly stated rule in maritime jurisprudence in favor of allowing parties to enter into enforceable agreements to allocate the risks inherent in marine recreational activities,” in recognition of “the long-recognized national interest in the development of a uniform body of maritime law.”40

35. See Thomas A. Dickerson, The Cruise Passenger’s Dilemma: Twenty-First-Century Ships, Nineteenth-Century Rights, 28 TUL. MAR. L.J. 447, 447-61 (2004); see also Doonan v. Carnival Corp., 404 F. Supp. 2d 1367, 2005 AMC 2971 (S.D. Fla. 2005); Carlisle v. Carnival Corp., 864 So. 2d 1, 2003 AMC 2433 (Fla. Dist. Ct. App. 2003), rev’d, 953 So. 2d 461, 2007 AMC 305 (Fla. 2007). 36. 345 F.2d 465, 1965 AMC 1375 (2d Cir. 1965). 37. Id. at 467, 1965 AMC at 1378 (quoting Scheibel v. Agwilnes, Inc., 156 F.2d 636, 638, 1946 AMC 1148, 1150 (2d Cir. 1946)). 38. 487 F. App’x 542, 544 (11th Cir. 2012) (per curiam) (citation omitted). 39. No. 10-CV-602-JTC, 2011 WL 4553100, at *2 (W.D.N.Y. Sept. 29, 2011). 40. Id. at *5.

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Not all courts, however, are willing to enforce such passenger ticket provisions. In Johnson v. Royal Caribbean Cruises, Ltd.,41 a cruise passenger was injured on a ship’s simulated surfing and body boarding activity, and the Eleventh Circuit refused to enforce a waiver of all liability, citing 46 U.S.C. § 30509.

III. RECENT DEVELOPMENTS A. The COSTA CONCORDIA Disaster: Under Investigation On January 13, 2012, the COSTA CONCORDIA struck a large rock and nearly sank.42 Perhaps the most helpful explanation of the various safety issues in need of correction in the wake of the COSTA CONCORDIA incident is an article written by Adam Piore of Condé Nast Traveler entitled Staying Afloat, which states: Statistically, cruising is one of the safest ways to travel: Of the 153 million passengers carried between 2002 and 2011, only 6 died in operational incidents (as opposed to suicides or accidents on shore excursions). . . . The Concordia disaster seized the public’s imagination in part because it involved a state-of-the-art vessel owned by Carnival Corporation, the world’s largest cruise ship operator. The idea that one of the industry’s most sophisticated ships could be so spectacularly vulnerable proved unsettling and has raised troubling questions. The Concordia sinking was prevented only because it came to rest on a large rock. Had the ship gone down, most agree, the window for abandoning ship would have closed quickly and thousands could have died. ‘I thought that after the Titanic, something like that would never happen again,’ said . . . one of the passengers ...... The first major safety change following the Concordia accident [was] when [the Cruise Lines International Association (CLIA)] announced a voluntary industrywide policy mandating muster drills prior to leaving port. By most accounts, the scene aboard the Concordia after it hit a rock was one of chaos—a situation ascribed in part to the fact that some 600 passengers had just boarded and had not yet received a safety briefing, which is required within 24 hours of embarkation. . . . . The Concordia accident also raises a troubling question about vessel design. Under [the International Convention on the Safety of Life at Sea (SOLAS)], ships must be designed to survive the flooding of two of the watertight compartments that are supposed to allow the ship to maintain its stability if the hull is breached. A key question that Concordia investigators

41. 449 F. App’x 846, 2011 AMC 1171 (11th Cir. 2011). 42. Piore, supra note 2.

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are considering is why this system failed. . . . It’s likely, [say experts,] that enough of the ship’s compartments were torn open by the rocks to cause catastrophic flooding sufficient to sink the vessel. Another much discussed possibility is that the doors used to seal off the compartments were left open due to human error.43 Additionally, as a result of a Cruise Industry Operational Safety Review conducted by CLIA, a new Life Boat Loading for Training Purposes policy has been enacted effective on or about September 24, 2012.44

B. Lawsuits and Settlements In Giglio Sub S.N.C. v. Carnival Corp., a purported class “of more than 1,000 ‘fishermen, property owners, business owners, and wage earners on Giglio Island, as well as those working in and around the island’ . . . claim[ed] damages to their businesses stemming from the wreck of the Costa Concordia.” 45 This class action was dismissed on forum non conveniens grounds.46 As of January 22, 2013, Carnival claimed that it had reached settlement agreements with 62% of the passengers and 93% of the crew who were on board the COSTA CONCORDIA. Furthermore, Carnival asserted that nearly all of the cost of raising the sunken ship and the cost of defending legal claims would be covered by insurance.47 On July 22, 2013, five employees of Costa Crociere S.p.A., owner of the COSTA CONCORDIA, accepted plea bargains in criminal cases brought by Italian authorities.48

43. Id. at 50, 54-55 (citation omitted). 44. See Theresa Norton Masek, CLIA, ECC Unveil New Lifeboat Loading Training Policy for Cruise Ships, TRAVEL PULSE (Sept. 20, 2012), http://www.travelpulse.com/news/ features/clia-ecc-unveil-new-lifeboat-loading-training-policy-for-cruise-ships.html; New Safety Policies Announced by Global Cruise Industry, ETURBONEWS (June 27, 2012), http://www.eturbo news.com/29919/new-safety-policies-announced-global-cruise-industry; see also Tom Stieghorst, Concordia: One Year Later, TRAVEL WKLY. (Jan. 12, 2013), http://www.travelweekly.com/Cruise- Travel/Concordia--One-year-later/ (discussing the potential changes to SOLAS rules arising out of the COSTA CONCORDIA incident). 45. No. 12-21680-CIV, 2012 WL 4477504, at *1, 2012 AMC 2705, 2707-08 (S.D. Fla. Sept. 26, 2012). 46. Id., 2012 AMC at 2707; see also James E. Mercante, Italy Cruise Ship Lawsuits Unlikely To Survive, N.Y. L.J., Jan. 18, 2013, at 3 (noting that an Italy forum selection clause in the COSTA CONCORDIA’s cruise contract has already been, and will most likely be, enforced in all actions pending in the United States). 47. Tom Stieghorst, Report Details Concordia Settlements, TRAVEL WKLY. (Feb. 4, 2013), http://www.travelweekly.com/Cruise-Travel/Report-details-Concordia-settlements/. 48. Italian Court Jails 5 over Costa Concordia Ship Disaster, GLOBALSHIP NEWS (July 22, 2013), http://www.naftrade.com/3/post/2013/07/italian-court-jails-5-over-costa-concordia-ship-disaster. html (“A court [in] Italy has convicted five employees . . . . The longest sentence went to the crisis coordinator for Costa Crociere S.p.A., the cruise company, who was sentenced to two years

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C. International Cruise Line Passenger Bill of Rights 2013—Not Much There After the worst year in megaship history and a blizzard of negative publicity, CLIA members agreed to issue the International Cruise Line Passenger Bill of Rights (Passenger Bill of Rights). While superficially encouraging, the Passenger Bill of Rights promises little more than what cruise lines are already legally obligated to do and does nothing to level the litigation playing field, which is obstructed by roadblocks as discussed in Part VII. For example, if CLIA really wants to help cruise passengers, then cruise lines should stop inserting Miami, Florida, forum selection clauses into ticket contracts and allow injured passengers to sue in a forum convenient to them. In addition, cruise lines should disavow their liability disclaimers and accept full legal responsibility for accidents that occur during shore excursions they recommend and on which they earn commissions.49

D. The Passenger Bill of Rights: An Interposed Analysis What follows is an analysis of the Passenger Bill of Rights. The text has been reproduced with the author’s analysis interposed between the Bill’s provisions: The Members of [CLIA] are dedicated to the comfort and care of all passengers on oceangoing cruises throughout the world. To fulfill this commitment, our Members have agreed to adopt the following set of passenger rights: [1] The right to disembark a docked ship if essential provisions such as food, water, restroom facilities and access to medical care cannot adequately be provided onboard, subject only to the Master’s concern for passenger safety and security and customs and immigration requirements of the port. [2] The right to a full refund for a trip that is canceled due to mechanical failures, or a partial refund for voyages that are terminated early due to those failures.50 and 10 months. Concordia’s hotel director was sentenced to two years and six months while two bridge officers and a helmsman got sentences ranging from one year and eight months to one year and 11 months. The plea bargains were handled separately from the trial of Costa Concordia Captain Francesco Schettino, who is charged with manslaughter for causing the . . . shipwreck . . . and abandoning the vessel with thousands aboard. That trial opened this week.”). 49. See Perry v. HAL Antillen NV, No. C12-0850JLR, 2013 WL 2099499 (W.D. Wash. May 14, 2013); Young v. Carnival Corp., No. 09-21949-CIV, 2011 WL 465366 (S.D. Fla. Feb. 4, 2011). 50. The Cruise Industry Passenger Bill of Rights, CRUISE LINES INT’L ASS’N, http://www. cruising.org/regulatory/issues-facts/safety-and-security/cruise-industry-passenger-bill-rights (last

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Analysis: This provision may be helpful because cruise lines have in the past merely offered unhappy passengers a discounted cruise as opposed to cash refunds. [3] The right to have available on board ships operating beyond rivers or coastal waters full-time, professional emergency medical attention, as needed until shore side medical care becomes available.51 Analysis: This provision is meaningless and fails to address the fact that cruise lines routinely and successfully disclaim liability for malpractice committed by the ship’s medical staff.52 In addition, there are no uniform standards for the qualifications of doctors and nurses or the nature and quality of medical equipment on board the cruise ship.53 [4] The right to timely information updates as to any adjustments in the itinerary of the ship in the event of a mechanical failure or emergency, as well as timely updates of the status of efforts to address mechanical failures. [5] The right to a ship crew that is properly trained in emergency and evacuation procedures. [6] The right to an emergency power source in the case of a main generator failure.54 Analysis: This provision may be helpful because a number of recent megaship disasters have involved the failure of, or complete absence of, mechanical and electrical backup systems. Such incidents include the February 2012 voyage of the COSTA ALLEGRA, during which the vessel became inoperative while sailing on the Indian Ocean;55 the engine room fire on board the CARNIVAL TRIUMPH in February 2013 that shut down the vessel’s power, propulsion, sewage, and air-conditioning

visited Apr. 12, 2014). Senator Charles Schumer proposed similar legislation on March 18, 2013. See Letter from Senator Charles Schumer to Christine Duffy, CEO & President, Cruise Line Int’l Ass’n (Mar. 18, 2013) (available at http://www.schumer.senate.gov/record.cfm?id=341068&); see also Cruise Industry Oversight: Recent Incidents Show Need for Stronger Focus on Consumer Protection: Hearing Before the S. Comm. on Commerce, Sci. & Transp., 113th Cong. (2013) (testimony of Ross A. Klein, Ph.D.); id. (statement of Christine Duffy, President & CEO, Cruise Lines Int’l Ass’n, available at http://cruising.org/sites/default/files/regulatory/pdf/CLIA-Statement- for-the-Record07-24-2013.pdf). 51. The Cruise Industry Passenger Bill of Rights, supra note 50. 52. See, e.g., Carlisle v. Carnival Corp., 864 So. 2d 1, 2003 AMC 2433 (Fla. Dist. Ct. App. 2003), rev’d, 953 So. 2d 461, 2007 AMC 305 (Fla. 2007). 53. See Cruise-Ship Health Care: Prescription for Trouble, CONSUMER REP. TRAVEL LETTER, Apr. 1999, at 1, 6 (discussing the lack of uniform standards regarding the requisite qualifications of cruise ship doctors). 54. The Cruise Industry Passenger Bill of Rights, supra note 50. 55. Tarlow, supra note 3.

403 14 TULANE MARITIME LAW JOURNAL [Vol. 38:1 systems;56 the fire aboard the CARNIVAL SPLENDOR in November 2010;57 the April 2006 fire on board the STAR PRINCESS;58 the March 2013 engine failure on board the CARNIVAL DREAM;59 and the March 2013 partial power loss on board the CARNIVAL LEGEND.60 [7] The right to transportation to the ship’s scheduled port of disembarkation or the passenger’s home city in the event a cruise is terminated early due to mechanical failures. [8] The right to lodging if disembarkation and an overnight stay in an unscheduled port are required when a cruise is terminated early due to mechanical failures. [9] The right to have included on each cruise line’s website a toll-free phone line that can be used for questions or information concerning any aspect of shipboard operations. [10] The right to have this Cruise Line Passenger Bill of Rights published on each line’s website.61

E. The Cruise Vessel Security and Safety Act of 2010 In response to the growing number of reported rapes, assaults, and robberies aboard cruise ships touching U.S. ports (for example, a passenger was punched and stomped several times in the face,62 another passenger was sexually assaulted,63 and another passenger was sexually assaulted and subjected to sexual battery and verbal abuse by the head waiter),64 President Obama in July 2010 signed into law the Cruise Vessel Security and Safety Act of 2010 (Safety Act).65 Section 2(13) provides in part: To enhance the safety of cruise passengers, the owners of cruise vessels could upgrade, modernize, and retrofit the safety and security infrastructure on such vessels by installing peep holes in passenger room doors, installing security video cameras in targeted areas, limiting access to passenger rooms to select staff during specific times, and installing

56. Rosenbloom, supra note 4; Meier & Schwartz, supra note 5; see also Pestronk, supra note 5. 57. Medina, supra note 6; see also Meier & Schwartz, supra note 5. 58. Cogswell, supra note 7. 59. Carpenter, Yan & Mungin, supra note 8. 60. Limone, supra note 9. 61. Cruise Industry Adopts Passenger Bill of Rights, ETURBONEWS (May 22, 2013), http://www.eturbonews.com/35058/cruise-industry-adopts-passenger-bill-rights. 62. Berner v. Carnival Corp., 632 F. Supp. 2d 1208, 1209, 2009 AMC 2506, 2506 (S.D. Fla. 2009). 63. Doe v. Celebrity Cruises, Inc., 287 F. Supp. 2d 1321, 1324, 2004 AMC 832, 832-33 (S.D. Fla. 2003), aff’d in part and rev’d in part, 394 F.3d 891, 2005 AMC 214 (11th Cir. 2004). 64. Stires v. Carnival Corp., 243 F. Supp. 2d 1313, 1316-17 (M.D. Fla. 2002). 65. Pub. L. No. 111-207, 124 Stat. 2243 (2010).

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acoustic hailing and warning devices capable of communicating over distances. In addition, the Safety Act requires cruise vessel owners to maintain a log that records “(i) all complaints of crimes . . . (ii) all complaints of theft of property valued in excess of $1,000, and (iii) all complaints of other crimes.” Additionally, they must “make such log book available upon request to any agent of the [FBI].”66 Further, the Act requires owners to report to the FBI any “incident involving homicide, suspicious death, a missing United States national, kidnapping, assault with serious bodily injury . . . or theft of money or property in excess of $10,000.”67 The owner shall also “furnish a written report of the incident to an Internet based portal maintained by” the USCG, and “[e]ach cruise line taking on or discharging passengers in the United States shall include a link on its Internet website to the [USCG Web site].”68

1. The Safety Act Needs Some Adjustments While such information is helpful, it is neither cruise ship-specific nor does it require cruise lines to report thefts of money or property that are between $1,000 and $9,999 in value. These problems may be resolved in two ways. First, requiring owners to report thefts less than $10,000 would allow local law enforcement to investigate and deter future crimes. Second, mandating that owners include the recorded thefts of property valued between $1,000 and $9,999 on the USCG Web site would allow prospective cruise passengers to better appreciate the risks associated with cruises.69 An even more effective method would be to break down the USCG online reporting by individual cruise ships, rather than by cruise lines, as is currently required. In fact, the Centers for Disease Control and Prevention’s (CDC) Monthly Cruise Vessel Sanitation Inspections are available online and are ranked by cruise ship.70 Such information would allow consumers to select specific cruise ships based not only on sanitation, but on reported incidents of criminal activity.

66. Id. § 3507(g)(1)(A)-(B), 124 Stat. at 2247. 67. Id. § 3507(g)(3)(A)(i), 124 Stat. at 2248. 68. Id. § 3507(g)(3)(A)(ii), (4)(B), 124 Stat. at 2249; see Coast Guard Investigative Service: Cruise Line Incident Reporting Statistics, U.S. COAST GUARD, http://www.uscg.mil.hq/ cgz/cgis/CruiseLine.asp (last visited Feb. 16, 2014). 69. See Asia N. Wright, High Seas Ship Crimes, 7B LOY. MAR. L.J. 1, 9 (2009). 70. Vessel Sanitation Program, CTRS. FOR DISEASE CONTROL & PREVENTION, http://www. cdc.gov/nceh/vsp/ (last visited Apr. 12, 2014).

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2. Victims Group Questions Crime Data In addition to the foregoing, the International Cruise Victims Association, Inc. (ICV) asserted that “alleged crimes” should be reported along with actual crimes “so that potential passengers could judge for themselves the safety of a cruise vacation.” Prior to the Safety Act’s passage, the ICV submitted a Freedom of Information Act request seeking information regarding alleged crimes on board cruise ships that had been reported to the FBI. The ICV obtained material detailing over 400 alleged crimes reported to the FBI over a one-year period. However, after the Safety Act’s passage, only sixteen crimes were reported on the USCG Web site for the entirety of 2011.71

F. Americans with Disabilities Act All cruise ships touching U.S. ports, including foreign cruise ships, must comply with the requirements of the Americans with Disabilities Act (ADA).72

71. See Victims Group Questions Cruise Crime Data Provided by FBI, ETURBONEWS (June 14, 2012), http://www.eturbonews.com/29706/victims-group-questions-cruise-crime-data- provided-fbi. 72. Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 142, 2005 AMC 1521, 1534 (2005) (noting that the ADA regulates a vessel’s internal affairs while in U.S. waters); Stevens v. Premier Cruises, Inc., 215 F.3d 1237, 1241, 2000 AMC 1976, 1980 (11th Cir. 2000) (concluding that public accommodations aboard vessels are treated as public accommodations under the ADA); Ass’n for Disabled Ams., Inc. v. Concorde Gaming Corp., 158 F. Supp. 2d 1353, 1367 (S.D. Fla. 2001) (holding that craps tables that were too high for wheelchair-bound players did not violate the ADA); Access Now, Inc. v. Cunard Line Ltd., No. 00-7233-CIV, 2001 U.S. Dist. LEXIS 21481, at *3-4 (S.D. Fla. Oct. 31, 2001) (noting that settlement required the cruise line to spend $7 million to make vessels more handicap accessible); Walker v. Carnival Cruise Lines, 63 F. Supp. 2d 1083, 1091, 1094-95 (N.D. Cal. 1999) (explaining that travel agents are liable under the ADA for “failing to adequately research, and for misrepresenting, the disabled accessible condition of the [vessel]”), on reconsideration, 107 F. Supp. 2d 1135, 2001 AMC 741 (N.D. Cal. 2000); Briefer v. Carnival Corp., No. 98-1493-PCT-SMM, 1999 U.S. Dist. LEXIS 21256, at *5-6 (D. Ariz. Aug. 3, 1999) (holding that travel agents are governed by the ADA); Deck v. Am. Haw. Cruises, Inc., 51 F. Supp. 2d 1057, 1059, 1999 AMC 2829, 2829 (D. Haw. 1999); Austin Considine, Lowering the Barriers for Disabled Visitors, N.Y. TIMES, Sept. 11, 2005 (Travel), at 6 (“Cruising is a popular way for disabled travelers to reach the Caribbean, partly because some lines have been building increasingly accessible ships. According to the 2002 Open Doors study, 12 percent of disabled adults had taken a cruise in the previous five years, compared with 8 percent of all travelers.”). For a discussion of services for the disabled provided by Carnival, Celebrity, Holland America, Norwegian Cruise Line, Princess, and Royal Caribbean, see Linda Greenhouse, Does the Disability Act Stop at the Shoreline?, N.Y. TIMES, Mar. 20, 2005 (Travel), at 6.

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G. More Needs To Be Done These are positive developments, indeed. However, they have little impact on the host of litigation roadblocks (discussed infra Part VII) that still make it difficult for injured or aggrieved cruise passengers to exercise their rights. 73 For example, litigation on behalf of cruise passengers is made especially difficult because of the routine enforcement of forum selection clauses, federal forum selection clauses,74 choice-of-law and mandatory arbitration clauses,75 and time-limitation clauses requiring that notice of physical injury claims be filed within six months and lawsuits filed within one year (and much shorter time limitation clauses for nonphysical injury claims). Liability-limiting clauses applying to medical malpractice and accidents occurring during shore excursions, application of the Athens Convention, and limitations on the application of long-arm jurisdiction to cruise lines and purveyors of travel services may similarly obstruct cruise passengers’ rights.76

IV. ACCIDENTS ON BOARD CRUISE SHIPS: THE STANDARD OF CARE, LIABILITIES, AND WARRANTIES Cruise passengers experience common travel problems. These problems run the gamut from death to emotional distress. What follows is a list of some examples of these problems with citations to illustrative authorities. The problems are: 1. Death77

73. Michael Eriksen, Love Boats on Troubled Waters, TRIAL, Mar. 2006, at 48 (“Cruise lines promise fun and romance and encourage partying aboard ship. When negligence or crime results in injury to passengers, what remedies does the law provide?”). 74. See Michael D. Eriksen, U.S. Maritime Public Policy Versus Ad-Hoc Federal Forum Provisions in Cruise Tickets, FLA. B.J., Dec. 2006, at 21, 22; Lischinskaya v. Carnival Corp., 865 N.Y.S.2d 334, 336-37, 2010 AMC 427, 430 (App. Div. 2008). 75. See, e.g., Hadlock v. Norwegian Cruise Line, Ltd., No. SACV 10-0187 AG (ANx), 2010 WL 1641275, at *6, 2010 AMC 1167, 1176 (C.D. Cal. Apr. 19, 2010). 76. See Dickerson, supra note 35. 77. See Higgins, supra note 1 (COSTA CONCORDIA grounding); Piore, supra note 2, at 50 (thirty-two passengers killed on COSTA CONCORDIA); Lasky v. Royal Caribbean Cruises, Ltd., 850 F. Supp. 2d 1309, 1311, 2012 AMC 2630, 2631-32 (S.D. Fla. 2012) (fractured neck after slip and fall); Choe Sang-Hun, Su-Hyun Lee & Jina Ham, Human Error Suspected as Hope Fades in Korean Ferry Sinking, N.Y. TIMES (Apr. 17, 2014), http://www.nytimes.com/2014/04/ 18/world/asia/south-korean-ferry-accident.html (“The Captain was among the first to flee. Only a couple of the 44 life rafts were deployed. The hundreds of passengers were instructed over the intercom to ‘stay inside and wait’ as the ship leaned to one side and began to sink, dragging scores of students down with it. . . . It took two and a half hours for the ferry, the Sewol, to capsize and become submerged in the blue-gray waters off the southwestern tip of South Korea. Yet in that time, only 179 of the 475 people believed to have been on board were rescued. By Thursday evening, the confirmed death toll was 25.”); 2 Dead, 290 Still Missing from Jeju Tourist Ferry

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2. Heart Attacks and Strokes78 3. Suicides and Disappearances79 4. Drownings and Wave Actions80 5. Disease, Legionnaires’ Disease, and Norovirus81 6. Rapes and Sexual Assaults82

Disaster, ETURBONEWS (Apr. 16, 2014), http://www.eturbonews.com/44749/2-dead-290-still- missing-jeju-tourist-ferry-disaster; Laura Isensee, Man’s Death Sends Cruise Ship Back to Port, SUN SENTINEL (Aug. 15, 2010), http://articles.sun-sentinel.com/2010-08-15/news/fl-cruise-ship- death-20100815_1_cruise-ship-caribbean-cruise-norwegian-cruise-line-s-epic (apparent allergic reaction); Nick Pisa, Cruise Passenger Dies After Ship Gangway Crashes 30ft into the Italian Riviera, DAILY MAIL (July 28, 2010), http://www.dailymail.co.uk/news/article-1297548/Cruise- passenger-dies-ship-gangway-crashed.html; see also City of New York v. Agni, 522 F.3d 279, 281, 2008 AMC 1389, 1391 (2d Cir. 2008) (involving ten passengers killed and seventy-six passengers injured after Staten Island ferry allided with maintenance pier). 78. See Amaran v. Marath, 34 So. 3d 88, 89 (Fla. Dist. Ct. App. 2010) (cardiac arrest while exercising in vessel’s fitness center); Gliniecki v. Carnival Corp., 632 F. Supp. 2d 1205, 1206, 2009 AMC 2740, 2741 (S.D. Fla. 2009) (stroke while on board a vessel). 79. Authorities Call Off Search for Two Missing Cruise Ship Passengers, ETURBONEWS (May 11, 2013), http://www.eturbonews.com/34878/authorities-call-search-two-missing-cruiseship-passengers (man and woman fell overboard); US Tourist Dies Aboard Carnival Cruise Ship in Bahamas, ETURBONEWS (Jan. 29, 2012), http://www.eturbonews.com/27635/us-tourist-aboard- carnival-cruise-ship-bahamas (passenger died after jumping from one floor to another); Cruise Passenger Missing as Ship Docks at Palm Beach, ETURBONEWS (Mar. 2, 2012), http://www. eturbonews.com/28132/cruise-passenger-missing-ship-docks-palm-beach (passenger declared missing); Royal Caribbean Cruise Passenger Missing at Sea, ETURBONEWS (Sept. 18, 2012), http://www.eturbonews.com/31212/royal-caribbean-cruise-passenger-missing-sea (passenger claimed to see a woman fall overboard); J.D. Gallop & Suzanne Cervenka, Officials: Man Rescued at Sea Intentionally Jumped from Cruise Ship, FLORIDATODAY.COM (Sept. 3, 2009, 11:52 AM), http://www.floridatoday.com/article/20090903/BREAKINGNEWS/90903001/Officials-Man-resc ued-sea-intentionally-jumped-from-cruise-ship; Luke Duecy, Officials Question Cruise Line’s Suicide Announcement, KOMO NEWS (Aug. 17, 2009, 7:53 AM), http://www.komonews. com/news/local/53413827.html; Caitlin Kelly, Bruising for Cruising, N.Y. DAILY NEWS (Mar. 8, 2006, 12:00 AM), http://www.nydailynews.com/archives/news/bruising-cruising-rash-vanishings- better-safety-demanded-24-americans-disappeared-families-answers-article-1.569574. 80. See Higgins, supra note 1 (COSTA CONCORDIA grounding); Piore, supra note 2 (detailing COSTA CONCORDIA accident); Samuels v. Holland Am. Line-USA Inc., 656 F.3d 948, 949-50, 2011 AMC 2441, 2442-43 (9th Cir. 2011) (passenger injured by turbulent wave action on beach); Clinton River Cruise Co. v. DeLaCruz, 213 F. App’x 428, 429 (6th Cir. 2007) (passenger drowned trying to swim from vessel to shore); Wallis v. Princess Cruises, Inc., 306 F.3d 827, 831, 2002 AMC 2270, 2273 (9th Cir. 2002) (passenger drowned after falling off the ship). 81. See Linda Carroll, Sick Ships: Cruises See Rise in Norovirus Cases, NBC NEWS (Mar. 10, 2010, 8:38 AM), http://www.nbcnews.com/id/35786891/ns/health-infectious_diseases/t/ sick-ships-cruises-see-rise-norovirus-cases/; Bruce Smith, Norovirus Hit Cruise Ship that Left SC for Islands, SEATTLE TIMES (Feb. 25, 2010, 10:57 AM), http://seattletimes.com/html/nationworld/ 2011184297_apuscruisesickpassengers.html; Thomas A. Dickerson, Travel Law: Stop Blaming the Passengers—Eradicate Norovirus Now, ETURBONEWS (Mar. 5, 2014), http://www.eturbo news.com/43374/travel-law-stop-blaming-passengers-eradicate-norovirus-now. 82. See Doe v. Royal Caribbean Cruises, Ltd., 860 F. Supp. 2d 1337, 1338-39, 2013 AMC 842, 842-44 (S.D. Fla. 2012) (involving a seventeen-year-old female passenger who stated a cause of action under the Child Abuse Victims’ Rights Act of 1986 after she was allegedly induced by a crew member to participate in sexual activities); NCL Assistant Cruise Director

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7. Assaults and Stomping83 8. Quadriplegia84 9. Slips, Trips, Falls, and Minor Injuries85

Arrested for Sex with Underage Passenger, ETURBONEWS (Mar. 9, 2012), http://www.eturbo news.com/28246/ncl-assistant-cruise-director-arrested-sex-underage-passenger; Burdeaux v. Royal Caribbean Cruises, Ltd., No. 11-22798-CIV, 2012 WL 3202948, at *1 (S.D. Fla. Aug. 3, 2012) (involving a cruise passenger who was reportedly raped by five local men while shopping on shore); Doe v. Royal Caribbean Cruises, Ltd., No. 11-23323-CIV, 2011 WL 6727959, at *1, 2012 AMC 761, 762 (S.D. Fla. Dec. 21, 2011) (alleging failure of security personnel to monitor surveillance cameras after passenger was raped by another passenger); Doe v. Royal Caribbean Cruises, Ltd., No. 11-23323-CIV, 2012 WL 920675, at *1 (S.D. Fla. Mar. 19, 2012) (denying the defendant’s motion to dismiss the plaintiff’s request for punitive damages); Stires v. Carnival Corp., 243 F. Supp. 2d 1313, 1316 (M.D. Fla. 2002) (passenger sexually assaulted and verbally abused by a head waiter); Doe v. Celebrity Cruises, Inc., 287 F. Supp. 2d 1321, 1324, 2004 AMC 832, 832-33 (S.D. Fla. 2003) (involving a female passenger allegedly raped and battered by a male crew member while on shore in Bermuda), aff’d in part and rev’d in part, 394 F.3d 891, 2005 AMC 214 (11th Cir. 2004); State v. Stepansky, 761 So. 2d 1027, 1029, 2000 AMC 1893, 1895 (Fla. 2000) (attempted sexual assault and burglary by crew member); Royal Caribbean Cruises, Ltd. v. Doe, 767 So. 2d 626, 626 (Fla. Dist. Ct. App. 2000) (involving a passenger who claimed that a bartender put drugs into her drink and sexually assaulted her); Nadeau v. Costley, 634 So. 2d 649, 650, 1994 AMC 2810, 2811 (Fla. Dist. Ct. App. 1994) (sexual assault); Morton v. De Oliveira, 984 F.2d 289, 290, 1993 AMC 843, 843 (9th Cir. 1993) (rape); Johnson v. Commodore Cruise Lines, Ltd., 897 F. Supp. 740, 743, 1996 AMC 666, 668-69 (S.D.N.Y. 1995) (involving the cover up of the rape of a passenger on a cruise); York v. Commodore Cruise Lines, Ltd., 863 F. Supp. 159, 161, 1995 AMC 339, 340 (S.D.N.Y. 1994) (sexual assault); Brian Major Scutt, Cruising Holds Steady Despite Assault Reports, TRAVEL WKLY. (Aug. 13, 1999), http://www.travelweekly.com/Cruise-Travel/Cruising-holds-steady-despite-assault-reports/ (“108 allegations of sexual misconduct were included in a lawsuit filed . . . by a former Carnival employee, who said she was raped by a Carnival officer . . . .”); see also Bonita Navin, Stalking Sexual Predators at Sea: The Response of the Cruise Industry to Sexual Assaults Onboard, 1999 INT’L TRAVEL L.J. 192. 83. See Berner v. Carnival Corp., 632 F. Supp. 2d 1208, 1209, 2009 AMC 2506, 2506 (S.D. Fla. 2009) (passenger attacked, beaten, and stomped with a stiletto heel by two fellow passengers); O’Hara v. Celebrity Cruises, Inc., 979 F. Supp. 254, 255, 1998 AMC 522, 522 (S.D.N.Y. 1997) (passengers assaulted by a crew member); Corna v. Am. Haw. Cruises, Inc., 794, F. Supp. 1005, 1007, 1992 AMC 1787, 1788 (D. Haw. 1992) (passenger assaulted by a crew member); Marmer v. Queen of New Orleans, 2000-1598, p. 2 (La. App. 4 Cir. 5/16/01); 787 So. 2d 1115, 1116 (riverboat casino patron assaulted); Colavito v. Carnival Cruise Lines, Inc., 1983 AMC 1378, 1379 (S.D. Tex. 1981) (passenger assaulted by an intoxicated passenger). 84. See Samuels, 656 F.3d at 950, 2011 AMC at 2442-43 (involving a passenger who was rendered quadriplegic by turbulent wave action at Lover’s Beach); Morag v. Quark Expeditions, Inc., No. 3:07-cv-1062(PCD), 2008 WL 3166066, at *1, 2009 AMC 2309, 2310 (D. Conn. Aug. 5, 2008) (involving a plaintiff who was rendered quadriplegic after suffering severe spinal injuries during a crossing of Drake’s Passage). 85. Bencomo v. Costa Crociere, S.P.A., 476 F. App’x 232, 232 (11th Cir. 2012) (per curiam) (finding that the plaintiff, who slipped and fell in a puddle, could not “establish that Costa had a duty to correct or warn passengers about the allegedly dangerous condition because Costa did not have actual or constructive knowledge of the puddle”); Groves v. Royal Caribbean Cruises, Ltd., 463 F. App’x 846, 847-48 (11th Cir. 2012) (slip and fall on dining room floor); Johnson v. Royal Caribbean Cruises, Ltd., 449 F. App’x 846, 847 (11th Cir. 2011) (injury on FlowRider); Weiner v. Carnival Cruise Lines, No. 11-CV-22516, 2012 WL 5199604, at *1, *6 (S.D. Fla. Oct. 22, 2012) (involving a passenger who slipped and injured his Achilles tendon

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10. Runaway Wheelchairs86 11. Rogue Waves87 12. Listing88 where there was no actual or constructive notice of wet area on ship); Cook v. Royal Caribbean Cruises, Ltd., No. 11-20723-CIV, 2012 WL 1792628, at *1 (S.D. Fla. May 15, 2012) (slip and fall on walkway); Mendel v. Royal Caribbean Cruises, Ltd., No. 10-23398-CIV, 2012 WL 2367853, at *1 (S.D. Fla. June 21, 2012) (slip and fall on pool step); Lobegeiger v. Celebrity Cruises, Inc., No. 11-21620-CIV, 2011 WL 3703329, at *1, 2012 AMC 202, 205 (S.D. Fla. Aug. 23, 2011) (involving an injury to a passenger when the tip of her finger was sliced off by a lounge chair); Lasky v. Royal Caribbean Cruises, Ltd., 850 F. Supp. 2d 1309, 1311, 2012 AMC 2630, 2632 (S.D. Fla. 2012) (fractured neck after slip and fall); Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190, 1191-92, 2011 AMC 2838, 2839 (11th Cir. 2011) (slip and fall on dining room floor), reh’g denied, 682 F.3d 1320, 2012 AMC 2149 (11th Cir. 2012); Balu v. Costa Crociere S.P.A., No. 11-60031-CIV, 2011 WL 3359681, at *2 (S.D. Fla. Aug. 3, 2011) (flip and fall on marble staircase); Walter v. Carnival Corp., No. 09-20962-CIV, 2010 WL 2927962, at *1 (S.D. Fla. July 23, 2010) (injuries from collapsing deck chair); Adams v. Carnival Corp., No. 08-22465-CIV, 2009 WL 4907547, at *1, 2009 AMC 2588, 2589 (S.D. Fla. Sept. 29, 2009) (involving a 340-pound passenger who was injured when a deck chair collapsed beneath his weight); Noboa v. MSC Crociere S.P.A., No. 08 Civ. 2896(PKL), 2009 WL 1227451, at *1, 2009 AMC 1312, 1312-13 (S.D.N.Y. May 5, 2009) (slip and fall on wet towels left on cabin floor); Palmer v. Norwegian Cruise Line & Norwegian Spirit, 741 F. Supp. 2d 405, 407, 2011 AMC 887, 888-89 (E.D.N.Y. 2010) (involving a passenger who suffered injuries to her back, neck, and foot when wooden slats supporting cabin’s mattress gave way); Pratt v. Silversea Cruises, Ltd., No. C 05-0693 SI, 2005 WL 1656891, at *1, 2006 AMC 99, 99 (N.D. Cal. July 13, 2005) (involving a passenger who suffered a broken hip, a torn ACL, and a severe ankle injury after a fall); Evans v. Nantucket Cmty. Sailing, Inc., 582 F. Supp. 2d 121, 130-31, 2009 AMC 360, 368 (D. Mass. 2008) (involving a sailboat passenger who was injured after being hit by a boom during a jibe); McDonough v. Celebrity Cruises, Inc., 64 F. Supp. 2d 259, 261, 2000 AMC 257, 258 (S.D.N.Y. 1999) (involving a passenger who was struck in the head by a rum-filled coconut dropped from the deck above); Catalana v. Carnival Cruise Lines, Inc., 618 F. Supp. 18, 19, 1985 AMC 1941, 1942 (D. Md. 1984) (passenger struck by golf ball); Lawrence v. The “IMAGINE . . . !” Yacht, LLC, 333 F. Supp. 2d 379, 382 (D. Md. 2004) (involving a passenger who suffered hearing loss after crew member fired cannon); Lavoie v. Suncruz Casino Cruises, LLC, No. 4:08-cv-2183-RBH, 2009 WL 425815, at *6, 2009 AMC 781, 788-89 (D.S.C. Feb. 18, 2009) (involving a plaintiff who was allegedly injured when a slot machine fell and struck his knee); Krupski v. Costa Crociere S.p.A., 130 S. Ct. 2485, 2490, 2010 AMC 1564, 1565 (2010) (involving a passenger who tripped on a cable and fractured her femur); Eisenberg v. Carnival Corp., No. 07-22058-CIV, 2008 WL 2946029, at *1 (S.D. Fla. July 7, 2008) (slip and fall on salad dressing in dining room); Kamens v. Holland Am. Line, Inc., No. C09-1074JLR, 2010 WL 1945776, at *1 (W.D. Wash. May 12, 2010) (“[A passenger] fell and injured her knee on the Hydro Pool deck of the ship.”); Oran v. Fair Wind Sailing, Inc., No. 08-0034, 2009 WL 4349321, at *1 (D.V.I. Nov. 23, 2009) (slip and fall on bench cushions); Ward v. Royal Caribbean Cruise Lines, Ltd., No. SACV 08-1077 DOC (MLGx), 2009 WL 151490, at *1 (C.D. Cal. Jan. 22, 2009) (hand laceration after gripping a metal sign). 86. See Moura v. Am. W. Steamboat Co., No. C 08-04025 WHA, 2009 WL 2390228, at *1 (N.D. Cal. Aug. 3, 2009) (involving a passenger in a wheelchair who was injured when a crew member suddenly let go of the wheelchair causing it to accelerate down a ramp into a cement landing). 87. See Samuels, 656 F.3d at 950, 2011 AMC at 2442-43 (involving a passenger who was rendered quadriplegic by turbulent wave action at Lover’s Beach); Verena Dobnik, Freak Wave Leaves Vivid Trip Images, J. NEWS, Apr. 19, 2005, at 3A (discussing a vessel that was struck by a seven-story-high wave, resulting in 300 passengers disembarking early).

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13. Malfunctioning Automatic Sliding Doors89 14. Defective Exercise Equipment90 15. Ship Doctor Malpractice91

88. Johanna Jainchill, Princess: Human Error Caused List, TRAVEL WKLY. (July 31, 2006), http://www.travelweekly.com/Cruise-Travel/Princess--Human-error-caused-list/. After reviewing a list that injured 240 passengers aboard the CROWN PRINCESS on July 18, 2006, Princess Cruises admitted that human error was ultimately responsible for the list. On another ship, the GRAND PRINCESS, twenty-seven passengers were injured in February 2006 in a listing incident, which occurred when the vessel attempted to reverse course and go back to port after a passenger suffered cardiac arrest. 89. Galentine v. Holland Am. Line-Westours, Inc., 333 F. Supp. 2d 991, 993, 2004 AMC 711, 712 (W.D. Wash. 2004). 90. Berman v. Royal Cruise Line, Ltd., 1995 AMC 1926, 1927 (Cal. Super. Ct. 1995) (treadmill injury). 91. See Lobegeiger v. Celebrity Cruises, Inc., No. 11-21620-CIV, 2011 WL 3703329, at *2-4, 2012 AMC 202, 205-09 (S.D. Fla. Aug. 23, 2011) (involving alleged medical malpractice by the ship’s doctor after plaintiff severed her finger on board the ship); Lobegeiger v. Celebrity Cruises, Inc., 869 F. Supp. 2d 1356, 1361-64, 2013 AMC 1254, 1259-64 (S.D. Fla. 2012) (granting summary judgment for defendant on apparent agency theory of liability for medical malpractice); Hill v. Celebrity Cruises, Inc., No. 09-23815-CIV, 2011 WL 5360247, at *3, 2012 AMC 234, 238 (S.D. Fla. Nov. 7, 2011) (involving plaintiff’s claim for negligent misrepresentation after the ship represented that it would have two doctors and it actually only had one); Carlisle v. Carnival Corp., 864 So. 2d 1, 2, 2003 AMC 2433, 2437 (Fla. Dist. Ct. App. 2003) (involving a fourteen-year-old passenger with appendicitis who was misdiagnosed by the ship’s doctor as suffering from the flu), rev’d, 953 So. 2d 461, 2007 AMC 305 (Fla. 2007); Wajnstat v. Oceania Cruises, Inc., No. 09-21850-Civ, 2011 WL 465340, at *1 (S.D. Fla. Feb. 4, 2011) (involving a passenger who was forced to have three major abdominal surgeries and the majority of his colon removed after being misdiagnosed by the ship’s doctor); Doonan v. Carnival Corp., 404 F. Supp. 2d 1367, 1369, 2005 AMC 2971, 2971-72 (S.D. Fla. 2005) (medical malpractice claim); Mack v. Royal Caribbean Cruises, Ltd., 838 N.E.2d 80, 82 (Ill. App. Ct. 2005) (negligent medical treatment); Pota v. Holtz, M.D., 852 So. 2d 379, 380, 2003 AMC 2443, 2443-44 (Fla. Dist. Ct. App. 2003) (pregnant passenger misdiagnosed by ship’s doctor); Jackson v. Carnival Cruise Lines, Inc., 203 F. Supp. 2d 1367, 1371 (S.D. Fla. 2002) (illness); Stires v. Carnival Corp., 243 F. Supp. 2d 1313, 1316-17 (M.D. Fla. 2002) (involving a sexually assaulted passenger alleging negligence by the ship’s doctor); Doe v. Celebrity Cruises, Inc., 287 F. Supp. 2d 1321, 1325, 2004 AMC 832, 833 (S.D. Fla. 2003) (involving a passenger’s claim that the ship’s physician failed to examine her correctly after she was sexually assaulted by a crew member), aff’d in part and rev’d in part, 394 F.3d 891, 2005 AMC 214 (11th Cir. 2004); Benson v. Norwegian Cruise Line Ltd., 859 So. 2d 1213, 1214, 2003 AMC 2973, 2973-74 (Fla. Dist. Ct. App. 2003) (medical malpractice claim following allergic reaction to shellfish); Cimini v. Italia Crociere Int’l S.P.A., 1981 AMC 2674, 2677 (S.D.N.Y. 1981) (enforcing a cruise ship disclaimer of liability for malpractice of ship’s doctor); Cross v. Kloster Cruise Lines, Ltd., 897 F. Supp. 1304, 1306, 1996 AMC 1215 (AMC reporter summarizing case) (D. Or. 1995) (medical malpractice claim following brown recluse spider bite); Afflerbach v. Cunard Line, Ltd., 14 F. Supp. 2d 1260, 1263, 1999 AMC 283, 285 (D. Wyo. 1998) (involving a passenger’s claim for medical malpractice after injuring buttocks while disembarking from vessel); Fairley v. Royal Cruise Line Ltd., 1993 AMC 1633, 1633 (S.D. Fla. 1993) (medical malpractice claim); Meitus v. Carnival Cruise Lines, Inc., 775 So. 2d 965, 966-67, 2001 AMC 105, 106 (Fla. Dist. Ct. App. 2000) (involving a crew member’s medical malpractice claim after contracting viral encephalitis); Rand v. Hatch, 762 So. 2d 1001, 1002, 2000 AMC 2610, 2610-11 (Fla. Dist. Ct. App. 2000) (involving a passenger’s claim that the ship’s doctor failed to diagnose her blood sugar level); Johnson v. Commodore Cruise Lines, Ltd., 897 F. Supp. 740, 743, 1996 AMC 666, 668-69

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16. Fires92 17. Collisions and Striking Reefs93 18. Hot Tubs and Flesh-Eating Bacteria94 19. Falling Bunk Beds95 20. Malfunctioning Toilets96

(S.D.N.Y. 1995) (involving a passenger who was raped by a crew member and misdiagnosed as having had a heart attack); see also Melissa Konick, Malpractice on the High Seas: The Liability of Owners and Physicians for Medical Errors, 2006 INT’L TRAVEL L.J. 53. 92. Monique Hepburn, Caribbean Cruise Turns Deadly as Fire Scorches 100 Ship Cabins, J. NEWS, Mar. 24, 2006, at 3B (discussing a fire on the STAR PRINCESS that injured eleven people and damaged 100 rooms); Krista Carothers, Cruise Control, CONDÉ NAST TRAVELER, July 2006, at 53, 54 (discussing fires on cruise ships); Rebecca Tobin, NCL Stands by Norway, Says It Will Repair Ship, TRAVEL WKLY., June 2, 2003, at 1 (discussing the six crew members killed and the twenty injured after a fire in the boiler room of a cruise ship); Betsy Wade, Fire Safety for Ships at Sea, N.Y. TIMES (Aug. 2, 1998), http://www.nytimes.com/1998/08/02/travel/practical- traveler-fire-safety-for-ships-at-sea.html (“UNLIKE the Titanic or the Andrea Doria, the Carnival cruise ship Ecstasy lost not a single passenger or crew member. But in its smaller way, the Ecstasy fire, which produced thick smoke that was on hundreds of television newscasts, will probably contribute to the evolution of marine safety. The time line of progress on marine safety reads as a perfect counterpoint to tragedies afloat. After more than 1,000 people, mostly children, died on an excursion aboard the General Slocum, which caught fire in New York in 1904, requirements for lifesaving gear and fire equipment were tightened. When more than 1,500 died on the Titanic in 1912, lifeboat personnel were required to be certified, and an international conference was called to approve a Convention on the Safety of Life at Sea. The Andrea Doria-Stockholm crash in 1956, in which 52 died, brought requirements that hulls be divided by steel bulkheads. With the Ecstasy, which was built with sprinklers, smoke inhalation in corridors caused the only injuries, and they were mild. (The investigators, at this writing, do not know if the sprinklers were going to be effective in the fire, or if the fireboats were essential. There were also complaints of confusion and delay in informing passengers of the fire and the procedures to follow.) There were no sprinklers aboard Commodore Cruise Line’s Universe Explorer, where five crew members died of smoke inhalation in a 1996 fire. . . . There are many other ships without sprinklers, or even smoke alarms that go off on the spot. Sometimes they are installed then taken out—in a laundry, for example—because they go off too often.”); Neenan v. Carnival Corp., 199 F.R.D. 372, 373 (S.D. Fla. 2001) (involving passengers who suffered “severe discomfort and nausea” after fire on board). 93. Ernest Blum, Norwegian Cancels Sailings in Wake of Collision, TRAVEL WKLY. (Aug. 26, 1999), http://www.travelweekly.com/Cruise-Travel/Norwegian-Cancels-Sailings-in-wake-of- collision/ (discussing a collision between a cruise ship and a cargo ship in the English Channel); Watanabe v. Royal Caribbean Cruises, Ltd., No. B146759, 2001 WL 1511268, at *2 (Cal. Ct. App. Nov. 28, 2001) (involving passengers who were injured when the MONARCH OF THE SEAS struck a reef, forcing them to abandon ship). 94. Cheryl Rosen, Class Action Claims Carnival Hot Tubs Infected with Flesh-Eating Bacteria, TRAVEL MOLE (July 23, 2013), http://www.travelmole.com/news_feature.php?news_ id=2007367 (“[A] class action lawsuit is claiming that hot tubs on Carnival ships are infested with flesh-eating bacteria. The suit alleges that hundreds of passengers contracted the MRSA virus on Carnival ships and calls for anyone infected to join in. [A passenger] claims he caught it on the Carnival Paradise in December 2011 and almost lost his leg.”). 95. Recent Cases, 49 L. REP. 112 (2006) (discussing Angulo v. Carnival Corp., where a jury awarded about $333,600 after a passenger was struck in the head by a bunk bed on board a Carnival cruise ship). 96. Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1334, 1985 AMC 826, 827 (11th Cir. 1984).

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21. Sanitation and Germs97 22. Pool Jumping98 23. Sliding Down Banisters99 24. Poorly Designed Bathrooms, Sofas, Bunk Beds, Passages, Flooring, and Railings100

97. See Elinor Garely, When Bugs Swim, ETURBONEWS (Jan. 23, 2012), http://www. eturbonews.com/27225/when-bugs-swim (“A recent site inspection (November 2011) by the CDC of the Royal Caribbean Monarch of the Sea, found numerous violations and public health risks including: [1] Dish washing equipment in poor condition. [2] Improper cooling temperatures for stored provisions. [3] Improper cooking temperatures for cooked food. [4] Accumulation of food debris in wash and rinse areas. [5] Clean plates soiled with food residue. [6] Soiled plates stacked with clean plates. [7] Waiter stations, food prep counters, slicers, and strainers soiled with dirt and food particles. The CDC recommended that: [1] Food preparation should not take place in rooms used for living or sleeping quarters. [2] Employees should prevent cross-contamination of ready-to-eat food by not using their bare hands. They are encouraged to use suitable utensils such as deli tissue, spatulas, tongs, single-use gloves, or dispensing equipment. A CDC inspection of the Queen Mary 2 in June 2011 found many violations including: [1] Pool floor tiling and the pool water extremely dirty, coated with dark soil and hairs. [2] Potentially hazardous foods stored out of temperature and not properly discarded. [3] Toxic items stored with food and clean items. [4] Improper storage of food (e.g., food stored on deck.”). 98. Brown v. New Commodore Cruise Line Ltd., No. 98 Civ. 4402 (BSJ), 2000 U.S. Dist. LEXIS 536, at *2 (S.D.N.Y. Jan. 17, 2000) (involving a passenger who suffered a broken ankle after jumping from a deck into the pool below). 99. Meyer v. Carnival Cruise Lines, Inc., 1995 AMC 1652, 1653 (N.D. Cal. 1994) (intoxicated passenger injured while sliding down banister). 100. Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190, 1191, 2011 AMC 2838, 2838-39 (11th Cir. 2011) (slip and fall on wet ceramic tile floor), reh’g denied, 682 F.3d 1320, 2012 AMC 2149 (11th Cir. 2012); Glod v. Clinton River Cruise Co., No. 279422, 2009 WL 186188, at *1, 2009 AMC 843, 844 (Mich. Ct. App. Jan. 27, 2009) (passenger tripped on raised door frame); Groves v. Royal Caribbean Cruises, Ltd., 463 F. App’x 837, 837 (11th Cir. 2012) (per curiam) (slip and fall on granite floor); Mendel v. Royal Caribbean Cruises, Ltd., No. 10-23398-CIV, 2012 WL 2367853, at *1 (S.D. Fla. June 21, 2012) (passenger injured climbing pool steps); Prokopenko v. Royal Caribbean Cruises Ltd., No. 10-20068-CIV, 2010 WL 1524546, at *1 (S.D. Fla. Apr. 15, 2010) (slip and fall near swimming pool); Caputo v. Holland Am. Line, Inc., No. 08-CV-4584(CPS)(SMG), 2009 WL 2258326, at *1 (E.D.N.Y. July 29, 2009) (involving an eighty-one-year-old passenger who fractured her hip after catching her heel on a metal threshold separating the ship’s atrium and elevator lobby); Carnival Corp. v. Amato, 840 So. 2d 1088, 1089 (Fla. Dist. Ct. App. 2003) (involving a passenger who recovered $577,000 after vessel was found negligent for allowing grease to accumulate on stairs, maintaining a defective handrail, failing to put nonskid strips on stairs, and building the stairs too steeply); Corona v. Costa Crociere S.P.A., 844 So. 2d 652, 653 (Fla. Dist. Ct. App. 2003) (involving a passenger who fell after leaning on an improperly attached bathroom door handle); Hood v. Regency Mar. Corp., No. 99 Civ. 10250 (CSH), 2000 U.S. Dist. LEXIS 17298, at *2, 2001 AMC 645, 645-46 (S.D.N.Y. Nov. 29, 2000) (passenger struck by piece of tub); Palmieri v. Celebrity Cruise Lines, Inc., No. 98 Civ. 2037 (LAP)(HBP), 2000 U.S. Dist. LEXIS 3724, at *2 (S.D.N.Y. Mar. 24, 2000) (passenger injured falling over sofa bed); Kunken v. Celebrity Cruises Inc., No. 98 Civ. 7304 (JSM), 1999 WL 1140868, at *1 (S.D.N.Y. Dec. 10, 1999) (ankle broken while entering passageway to cabin); Marchewka v. Berm. Star Lines, Inc., 937 F. Supp. 328, 330, 1998 AMC 599 (S.D.N.Y. 1996) (AMC reporter summarizing case) (involving a passenger who fell when rungs of bunk bed ladder gave way).

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25. Open Hatches101 26. FlowRiders102 27. Wave Runners103 28. Storms and Hurricanes104 29. Spider Bites105 30. Snapping Mooring Lines106 31. Medical Emergency Disembarkation107 32. Torture and Hostage Taking108 33. Forced To Abandon Ship109 34. Intentional Infliction of Emotional Distress110

101. In re Vessel Club Med, 90 F. Supp. 2d 550, 551, 2000 AMC 1824, 1824 (D.N.J. 2000) (passenger stepped into open engine hatch); Hendricks v. Transp. Servs. of St. John, Inc., No. 626/1995, 1999 V.I. LEXIS 16, at *22 (Terr. Ct. V.I. Apr. 26, 1999) (passenger fell into open hatchway on ferry). 102. See Johnson v. Royal Caribbean Cruises, Ltd., 449 F. App’x 846, 847-48, 2011 AMC 1171, 1172 (11th Cir. 2011). 103. See In re Royal Caribbean Cruises Ltd., 459 F. Supp. 2d 1284, 1286-87 (S.D. Fla. 2006) (passenger injured while riding jet ski supplied by cruise ship). 104. Domblakly v. Celebrity Cruises, Inc., No. 96 Civ. 8333 (AJP)(LBS), 1998 U.S. Dist. LEXIS 16549, at *1 (S.D.N.Y. Oct. 20, 1998) (injury caused by hurricane); In re Catalina Cruises, Inc., 137 F.3d 1422, 1424-25, 1998 AMC 1282, 1284 (9th Cir. 1998) (injury during rough weather); Stobaugh v. Norwegian Cruise Line Ltd., 5 S.W.3d 232, 234, 2001 AMC 215, 216 (Tex. App. 2000) (injury caused by Hurricane Eduardo). 105. Ilan v. Princess Cruises, Inc., No. B151303, 2002 WL 31317342, at *1 (Cal. Ct. App. Oct. 16, 2002); Cross v. Kloster Cruise Lines, Ltd., 897 F. Supp. 1304, 1306, 1996 AMC 1215 (D. Or. 1995). 106. Kalendareva v. Discovery Cruise Line P’ship, 798 So. 2d 804, 805 (Fla. Dist. Ct. App. 2001) (involving a passenger who was struck by a heaving line thrown from the dock to the second deck); Douville v. Casco Bay Island Transit, 1998 AMC 2775, 2776 (D.N.H. 1998) (injury caused by failure to detach mooring line before departing). 107. A cruise ship’s medical doctor may medically disembark a sick passenger without the passenger’s consent. In Larsen v. Carnival Corp., 242 F. Supp. 2d 1333, 2003 AMC 1337 (S.D. Fla. 2003), a disabled cruise passenger, diagnosed with severe obstructive sleep apnea, severe morbid obesity at approximately 450 pounds, and chronic obstructive pulmonary disease, and who had utilized a prescribed Bi-Pap ventilator and oxygen concentrator at night to help him breathe during sleep, was medically disembarked by the ship’s doctor because a functioning Bi-Pap ventilator could not be supplied. Id. at 1336, 1340, 2003 AMC at 1337-38, 1341. The court found that the ship’s medical doctor’s “decision to disembark [the passenger] was based upon a reasonable concern for safety” and to do otherwise “would have represented a serious threat to [the passenger’s] health and even his life.” Id. at 1346, 2003 AMC at 1349. In Wajnstat v. Oceania Cruises, Inc., a cruise passenger who suffered from bleeding hemorrhoids was disembarked at a Ukrainian hospital. No. 09-21850-CIV, 2011 WL 465340, at *1 (S.D. Fla. Feb. 4, 2011). 108. Simpson v. Socialist People’s Libyan Arab Jamahiriya, 362 F. Supp. 2d 168, 171 (D.D.C. 2003) (involving a passenger who claimed she was held hostage and tortured after she was forcibly removed from a cruise ship by Libyan authorities). 109. Watanabe v. Royal Caribbean Cruises, Ltd., No. B146759, 2001 WL 1511268, at *2 (Cal. Ct. App. Nov. 28, 2001).

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The Subparts that follow address some of the legal issues facing passengers who have suffered some of the problems noted in the above list.

A. Reasonable Care Cruise lines, as common carriers, were once held to a high standard of care, but more recently are governed by a reasonable standard of care under the circumstances of each case. 111 This change may prove burdensome to passengers bringing suits against cruise lines.

B. Res Ipsa Loquitur Changes to the standard of care courts apply to cruise lines notwithstanding, the doctrine of res ipsa loquitur may apply, thereby

110. Wallis v. Princess Cruises, Inc., 306 F.3d 827, 831, 2002 AMC 2270, 2273 (9th Cir. 2002) (passenger drowned after falling off cruise ship); Stires v. Carnival Corp., 243 F. Supp. 2d 1313, 1316 (M.D. Fla. 2002) (head waiter sexually assaulted and verbally abused a passenger). 111. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632, 1959 AMC 597, 602 (1959); see also Cook v. Royal Caribbean Cruises, Ltd., No. 11-20723-CIV, 2012 WL 1792628, at *4 (S.D. Fla. May 15, 2012) (allowing plaintiffs to introduce into evidence (1) the American Society of Testing and Materials Standard Practice for Safe Walking Surfaces, (2) IMO Circular 75, (3) Draft Passenger Vessel Accessibility Guidelines dated June 26, 2008, and (4) National Fire Protection Association NFPA-101 Life Safety Code); Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190, 1193, 2011 AMC 2838, 2841-42 (11th Cir. 2011) (concluding that an expert on flooring safety should have been allowed to testify for plaintiff); City of New York v. Agni, 522 F.3d 279, 286, 2008 AMC 1389, 1398 (2d Cir. 2008) (considering USCG regulations in determining the standard of reasonable care following an allision involving the Staten Island Ferry); Doe v. Royal Caribbean Cruises, Ltd., No. 11-23323-CIV, 2011 WL 6727959, at *2 (S.D. Fla. Dec. 21, 2011) (applying a reasonable-care standard in a case involving the rape of a female passenger by another passenger); Glod v. Clinton River Cruise Co., No. 279422, 2009 WL 186188, at *3, 2009 AMC 843, 846 (Mich. Ct. App. Jan. 27, 2009) (“In a maritime premises liability action, a ship owner is under a duty to its passengers to exercise reasonable care.”); Fritsch v. Princess Cruise Lines, Ltd., No. B214767, 2010 WL 2090315, at *4-5, 2010 AMC 1655, 1660-62 (Cal. Ct. App. May 26, 2010) (finding a California statute that required carriers to exercise “utmost care” preempted by the general maritime law reasonable care standard); Ginop v. A 1984 Bayliner 27’ Cabin Cruiser, 242 F. Supp. 2d 482, 485, 2003 AMC 1200, 1203 (E.D. Mich. 2003) (applying reasonable standard of care); Ilan v. Princess Cruises, Inc., No. B151303, 2002 WL 31317342, at *3 (Cal. Ct. App. Oct. 16, 2002) (applying reasonable standard of care); Watanabe v. Royal Caribbean Cruises, Ltd., No. B146759, 2001 WL 1511268, at *3 (Cal. Ct. App. Nov. 28, 2001) (“The duty of care of the owner . . . is to exercise reasonable care . . . .”); Kalendareva v. Discovery Cruise Line P’ship, 798 So. 2d 804, 805 (Fla. Dist. Ct. App. 2001) (“A ship owner . . . may have a higher duty of care than a land owner, depending on the danger.”); Galentine v. Holland Am. Line-Westours, Inc., 333 F. Supp. 2d 991, 996, 2004 AMC 711, 716 (W.D. Wash. 2004) (“Defendant . . . owed Plaintiff . . . a reasonable duty of care, but not a heightened duty of care.”); Lawrence v. The “IMAGINE . . . !” Yacht, LLC, 333 F. Supp. 2d 379, 384 (D. Md. 2004) (finding that the vessel owner’s duty of reasonable care to the passengers did not create a duty on the part of the charter broker).

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26 TULANE MARITIME LAW JOURNAL [Vol. 38:1 raising an inference of negligence.112 Application of the doctrine may offset the increased burden courts place on passengers via the lower standard of care to which courts now hold cruise lines.

C. Strict Liability for Cruise Employees’ Sexual Misconduct Cruise lines may be held vicariously liable for the sexual misconduct of their employees.113

D. Vicarious Liability for Ship Doctor Malpractice Despite that cruise lines may be held vicariously liable for employee sexual misconduct, they are generally not held vicariously liable for ship doctor malpractice.114 Recently, however, a few courts have allowed medical malpractice victims to assert a claim against the cruise line based on apparent agency and negligent or fraudulent misrepresentations.115

112. Walter v. Carnival Corp., No. 09-20962-CIV, 2010 WL 2927962, at *1 (S.D. Fla. July 23, 2010) (applying doctrine of res ipsa loquitur when passenger suffered injuries from collapsing deck chair); O’Connor v. Chandris Lines, Inc., 566 F. Supp. 1275, 1279 (D. Mass. 1983) (applying doctrine of res ipsa loquitur when passenger was injured by a falling bunk bed); Hood v. Regency Mar. Corp., No. 99 Civ. 10250, 2000 U.S. Dist. LEXIS 17298, at *12-13, 2001 AMC 645, 650 (S.D.N.Y. Nov. 29, 2000) (applying doctrine of res ipsa loquitur when a passenger was struck by a piece of tile). 113. Doe v. Royal Caribbean Cruises, Ltd., 860 F. Supp. 2d 1337, 1339-40, 2013 AMC 842, 845-46 (S.D. Fla. 2012) (applying strict liability to a violation of the Child Abuse Victims’ Rights Act of 1986 after seventeen-year-old passenger was induced by a crew member “to participate in sexual activities, including the taking of sexually explicit photographs”); Stires, 243 F. Supp. 2d at 1318 (finding vicarious liability possible after head waiter sexually assaulted and verbally abused a passenger); Doe v. Celebrity Cruises, Inc., 287 F. Supp. 2d 1321, 1327-28, 2004 AMC 832, 836-38 (S.D. Fla. 2003) (declining to impose strict liability for crew member’s alleged sexual assault, rape, and battery of a passenger), aff’d in part and rev’d in part, 394 F.3d 891, 2005 AMC 214 (11th Cir. 2004). 114. See Wajnstat v. Oceania Cruises, Inc., No. 09-21850-Civ, 2011 WL 465340, at *4-5 (S.D. Fla. Feb. 4, 2011); Hill v. Celebrity Cruises, Inc., No. 09-23815-CIV, 2011 WL 5360247, at *1-2, 2012 AMC 234, 236 (S.D. Fla. Nov. 7, 2011); Doonan v. Carnival Corp., 404 F. Supp. 2d 1367, 1370, 2005 AMC 2971, 2973-74 (S.D. Fla. 2005); Carlisle v. Carnival Corp., 864 So. 2d 1, 3, 2003 AMC 2433, 2435 (Fla. Dist. Ct. App. 2003), rev’d, 953 So. 2d 461, 2007 AMC 305 (Fla. 2007); Mack v. Royal Caribbean Cruises, Ltd., 838 N.E.2d 80, 87 (Ill. App. 2005). 115. See Lobegeiger v. Celebrity Cruises, Inc., No. 11-21620-CIV, 2011 WL 3703329, at *13-15, 2012 AMC 202, 224-28 (S.D. Fla. Aug. 23, 2011) (involving a medical malpractice claim where a passenger sufficiently pled fraudulent misrepresentation against a cruise line); Lobegeiger v. Celebrity Cruises Inc., 869 F. Supp. 2d 1356, 2013 AMC 1254 (S.D. Fla. 2012) (granting summary judgment for the defendant on an apparent agency theory of liability for medical malpractice); Hill v. Celebrity Cruises, Inc., No. 09-23815-CIV, 2011 WL 5360247, at *3, 2012 AMC 234, 238 (S.D. Fla. Nov. 7, 2011) (denying summary judgment for the defendant on the plaintiff’s claim of negligent misrepresentation when the ship represented that it would have two doctors but only carried one).

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E. No Strict Liability Excepting the application of the doctrine of vicarious or strict liability for the sexual misconduct of crew members, cruise ships have not been held strictly liable for on board accidents including slip-and-falls and food poisoning.116

F. Dram Shop Liability State dram shop acts creating liability for the purveyors of alcoholic beverages to patrons who subsequently injure third parties have been inconsistently applied to cruise ships and riverboat casinos.117

116. Id. at 1282, 1284, 2005 AMC at 2802-03 (“While precedent establishes reasonable care under the circumstances as the operative standard of care in ‘slip and fall’ and other cases involving the physical condition of the ship, [this] Court must also determine whether there is any reason to depart from this standard for injuries resulting from a ship operator’s provision of food and/or drink to its passengers. . . . [T]here is no principled basis to establish a new exception to the general duty owed by [cruise ships] to their ship passengers. . . .”); see also Fisher v. Olde Towne Tours, LLC, No. B224772, 2011 WL 3310362, at *6-7 (Cal. Ct. App. Aug. 3, 2011) (vessel owner not strictly liable for products liability). However, courts have imposed strict liability upon cruise lines for injuries suffered aboard FlowRiders. See Order Denying Defendant’s Motion To Dismiss at 1, 3-4, Morris v. Royal Caribbean Cruises, Ltd., No. 11-23206-CIV-GRAHAM/GOODMAN (S.D. Fla. dismissed Aug. 3, 2012). Additionally, one court has imposed strict liability for a defective filter in an onboard whirlpool spa that caused Legionnaires’ Disease. See Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 358-59, 2003 AMC 2208, 2209-10 (2d Cir. 2003); Celebrity Cruises Inc. v. Essef Corp., 434 F. Supp. 2d 169, 2006 AMC 528 (S.D.N.Y. 2006). 117. See Paul S. Edelman & James E. Mercante, The Floating Dram Shop, N.Y. L.J., May 8, 2006, at 3 (“The popularity of gambling ‘cruises to nowhere’ and ‘booze cruises’ have increased the incidents of lawsuits against vessel owners. . . . [A] tort involving a cruise, to wit, an alcohol-related injury to a third party by an intoxicated passenger or crew member, will typically sustain admiralty jurisdiction. However, despite the ardent strive for uniformity in admiralty law . . . ‘dram shop’ acts ha[ve] come up short of that goal [because such] liability is not . . . uniformly recognized by the states . . . .”); see also Voillat v. Red & White Fleet, No. C 03-3016 MHP, 2004 WL 547146, at *1, *3-4, 2006 AMC 66, 66, 70-72 (N.D. Cal. Mar. 18, 2004) (dismissing a liquor liability cause of action against a vessel owner after a passenger was allegedly thrown overboard during a fight on board the vessel); Young v. Players Lake Charles, L.L.C., 47 F. Supp. 2d 832, 833, 837 (S.D. Tex. 1999) (holding that general maritime law applied to a claim against a riverboat casino owner for the actions of an intoxicated driver); Hall v. Royal Caribbean Cruises, Ltd., 888 So. 2d 654, 654-55, 2004 AMC 1913, 1913-14 (Fla. Dist. Ct. App. 2004); Taylor v. Costa Cruises, Inc., No. 90 Civ. 2630 (AGS), 1996 U.S. Dist. LEXIS 22510, at *8 (S.D.N.Y. Mar. 13, 1996) (declining to establish a minimum drinking age under general maritime law); Guinn v. Commodore Cruise Line, Ltd., No. 94 Civ. 5890(TPG), 1997 WL 164290, at *1 (S.D.N.Y. Apr. 7, 1997) (noting that a ship operator may be liable under general maritime law for not assisting an intoxicated person posing a danger to himself); Peterson v. Scotia Prince Cruises Ltd., 328 F. Supp. 2d 119 (D. Me. 2004) (holding that cruise ships may be liable for its crew members’ intentional torts).

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G. Seaworthiness Doctrine The seaworthiness doctrine has not been applied to actions involving passengers.118

H. No Implied Warranty of Safe Passage Generally speaking, courts “will not imply a warranty of safe passage” unless such a warranty is explicitly provided in a passenger ticket contract.119

I. No Implied Warranty of Merchantability In Bird v. Celebrity Cruise Line, Inc.,120 a case involving a passenger who claimed to have been “diagnosed with bacterial enteritis, a disease she allegedly contracted as a result of [food] poisoning,” the court refused to imply a warranty of merchantability into her ticket contract.121 In refusing to apply this warranty, the court noted that other “courts have manifested a strong reluctance to imply warranties in contracts governed by admiralty law,” especially where such warranty is expressly disclaimed.122 With regard to the plaintiff’s specific claim involving the implied warranty of merchantability for the food and drinks served on board the vessel, the court held that no such implied warranty existed because “the only mention of food or beverage in the parties’ contract disclaim[ed] any warranty as to the food or drink furnished.”123

118. Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1335, 1985 AMC 826, 829-30 (11th Cir. 1984); Oran v. Fair Wind Sailing, Inc., No. 08-0034, 2009 WL 4349321, at *12 (D.V.I. Nov. 23, 2009); Doonan, 404 F. Supp. 2d at 1372, 2005 AMC at 2976; Smith v. Carnival Corp., 584 F. Supp. 2d 1343, 1352, 2009 AMC 563, 575-76 (S.D. Fla. 2008); Hass v. Carnival Cruise Lines, Inc., No. 86-33-CIV-KING, 1986 WL 10154, at *1, 1986 AMC 1846, 1846 (S.D. Fla. June 20, 1986) (“The warranty of seaworthiness does not apply to fare paying passengers.”). 119. Bird v. Celebrity Cruise Line, Inc., 428 F. Supp. 2d 1275, 1279, 2005 AMC 2794, 2797 (S.D. Fla. 2005) (citing Stires, 243 F. Supp. 2d at 1320); see also Jackson v. Carnival Cruise Lines, Inc., 203 F. Supp. 2d 1367, 1377 (S.D. Fla. 2002) (“The general rule of admiralty law is that a ship’s passengers are not covered by the warranty of seaworthiness, a term that imposes absolute liability on a sea vessel for the carriage of cargo and seamen’s injuries. . . . [T]here is an exception to this rule if the ship owner executes a contractual provision that expressly guarantees safe passage.”); Rockey v. Royal Caribbean Cruises, Ltd., No. 99-708-CIV-GOLD, 2001 WL 420993, at *6 (S.D. Fla. Feb. 20, 2001) (“[T]he law of admiralty will not imply a warranty of seaworthiness . . . unless there is an express provision in the contract of carriage guaranteeing safe passage.”). 120. 428 F. Supp. 2d 1275, 2005 AMC 2794. 121. Id. at 1277, 1280-81, 2005 AMC at 2795, 2799. 122. Id. at 1279, 2005 AMC at 2798. 123. Id. at 1280, 2005 AMC at 2799.

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J. Causation and Notice Causation and notice must be proven in all personal injury claims against cruise lines. 124 Generally, cruise lines must have actual or constructive notice of defects that may cause passenger injuries.125 This overarching requirement may serve as a stumbling block for plaintiffs bringing personal injury suits.

V. ACCIDENTS ON SHORE: HOW FAR DOES MARITIME LAW EXTEND? A. Risky Business: Shore Excursions Prior to arriving at a port of call, a cruise ship’s staff may give lectures about the shopping to be expected and the availability of tours, including snorkeling, scuba diving, archaeological sites, catamaran rides, parasailing, and helicopter rides, among others. Cruise ships generate substantial income from these tours,126 which are typically delivered by independent contractors not subject to the jurisdiction of U.S. courts. These independent contractors may be uninsured, underinsured, 127 unlicensed, or irresponsible.128

124. Petitt v. Celebrity Cruises, Inc., 153 F. Supp. 2d 240, 248, 261 (S.D.N.Y. 2001) (holding that passengers did not prove causation for upper respiratory tract infections (URTI) when only 3.3% of 1934 passengers visited the ship’s infirmary with cold or URTI symptoms); Fritsch v. Princess Cruise Lines, Ltd., No. B214767, 2010 WL 2090315, at *6-7, 2010 AMC 1655, 1665-66 (Cal. Ct. App. May 26, 2010) (holding that a passenger did not prove notice when there were no similar slips and falls aboard any of the cruise line’s vessels in the prior two years); Jackson v. Carnival Cruise Lines, Inc., 203 F. Supp. 2d 1367, 1371, 1375 (S.D. Fla. 2002) (holding that a passenger’s estate failed to prove causation for wrongful death allegedly caused by food poisoning). 125. See Mendel v. Royal Caribbean Cruises, Ltd., No. 10-23398-CIV, 2012 WL 2367853, at *3 (S.D. Fla. June 21, 2012) (no cause of action for negligent design unless cruise line had actual or constructive notice of alleged defect); Samuels v. Holland Am. Line-USA Inc., 656 F.3d 948, 953-54, 2011 AMC 2441, 2448-49 (9th Cir. 2011) (cruise ship had no actual or constructive notice of turbulent wave action at Lover’s Beach). 126. See, e.g., Princess Cruise Lines, Ltd. v. Superior Court, 101 Cal. Rptr. 3d 323, 330 (Ct. App. 2009); Hernandez v. Quality Inns, Inc., N.Y. L.J., Mar. 23, 1993, at 21-22. 127. See, e.g., Perry v. HAL Antillen NV, No. C12-0850JLR, 2013 WL 2099499, at *6-7 (W.D. Wash. May 14, 2013) (shore excursion operator only carried approximately $80,000 in insurance when $2 million was required). 128. See, e.g., Winter v. I.C. Holidays, Inc., N.Y. L.J., Jan. 9, 1992, at 23, col. 4 (foreign bus company hired for a shore excursion was uninsured, irresponsible, and insolvent); see also Parry, supra note 24; Carothers, supra note 92.

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1. Due Diligence Investigations Some cruise lines, however, make a concerted effort to perform due diligence in the selection of shore excursion operators.129 In those cases, adequate due diligence may help relieve a cruise line of liability. For example, in Smolnikar v. Royal Caribbean Cruises Ltd., the court recited several reasons for holding that the cruise line had performed a concerted due diligence effort to ensure the safety of its shore excursions. Such reasons included: (1) that Royal Caribbean had an incident-free relationship with [the excursion operator] dating back 4-5 years before offering the Montego Bay tour; (2) that it had never been made aware of any accidents occurring on any of [the operator’s] other tours; (3) the positive feedback received from Royal Caribbean passengers who participated in [the operator’s] other tours; (4) [the operator’s] reputation as a first-class tour operator; . . . (7) that at least two other major cruise lines had been offering the Montego Bay zip line tour for approximately a year; (8) that it had sent representatives to participate on the tour and there was no negative feedback; . . . and (12) that it never received any accident reports from [the operator] pertaining to the Montego Bay tour.130

2. Big Business for the Cruise Lines Shore excursions generate large revenues for cruise lines,131 so it is not surprising that cruise lines actively promote them.132

3. The Applicable Law The law to be applied in the event of an accident on shore, which can be outcome-determinative, will depend on the extent to which a given court wishes to expand maritime law principles beyond the confines of the cruise ship. Some courts have taken a conservative

129. See Smolnikar v. Royal Caribbean Cruises Ltd., 787 F. Supp. 2d 1308, 1312-14, 2011 AMC 2941, 2947-50 (S.D. Fla. 2011). 130. Id. at 1319, 2011 AMC at 2957-58. 131. Perrin, supra note 12 (“These day trips are big business for the cruise lines: Royal Caribbean expects Navigator of the Seas to earn between $600,000 and $1,100,000 per week in onboard revenue, including tour sales.”); Carothers, supra note 92 (“Almost half of all cruise passengers-some five million a year-participate in shore excursions ranging from simple bus tours in port cities to more adventurous activities such as scuba diving trips and hot-air balloon rides.”); Christopher Solomon, Voyage to the Great Outdoors, N.Y. TIMES, Oct. 2, 2005 (Travel), at 12. 132. See Perry, 2013 WL 2099499, at *2; Gayou v. Celebrity Cruises, Inc., No. 11-23359-Civ, 2012 WL 2049431, at *1 (S.D. Fla. June 5, 2012); McLaren v. Celebrity Cruises, Inc., No. 11-23924-CIV, 2012 WL 1792632, at *1 (S.D. Fla. May 16, 2012); Smolnikar, 787 F. Supp. 2d at 1311, 2011 AMC at 2944; Koens v. Royal Caribbean Cruises, Ltd., 774 F. Supp. 2d 1215, 1218, 2012 AMC 721, 722 (S.D. Fla. 2011).

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4. Three Zones of Danger Generally, there are three zones in which accidents occur beyond the safety of the ship. First, accidents may occur while passengers are being transported from ship to shore.136 Second, accidents may occur on piers or areas immediately adjacent thereto.137 Third, accidents may occur: 1. In a town138 2. At a hotel139 3. On local transportation140 or while being transported to local sites141

133. In re Kanoa, Inc., 872 F. Supp. 740, 746, 1995 AMC 691, 699 (D. Haw. 1994) (maritime law did not apply to suit arising out of scuba accident); Musumeci v. Penn’s Landing Corp., 640 A.2d 416, 418, 421 (Pa. Super. Ct. 1994) (maritime law applied to accident on gangplank). 134. Gillmor v. Caribbean Cruise Line, Ltd., 789 F. Supp. 488, 489-90, 1994 AMC 1329, 1329, 1331 (D.P.R. 1992) (robbing and stabbing of passengers on pier). 135. Chan v. Soc’y Expeditions, Inc., 39 F.3d 1398, 1901, 1403, 1994 AMC 2642, 2643, 2646 (9th Cir. 1994) (inflatable raft capsized while transporting passengers to shore); Carlisle v. Ulysses Line Ltd., 475 So. 2d 248, 249-50, 1986 AMC 694, 695-96 (Fla. Dist. Ct. App. 1985) (passengers ambushed on remote beach). 136. Chan v. Soc’y Expeditions, Inc., 123 F.3d 1287, 1289, 1997 AMC 2713, 2715 (9th Cir. 1997) (inflatable raft ferrying passengers to shore capsized), cert. dismissed, 522 U.S. 1100 (1998); Favorito v. Pannell, 27 F.3d 716, 718 (1st Cir. 1994) (engineer drove passengers in an inflatable tender into other vessels). 137. Burdeaux v. Royal Caribbean Cruises, Ltd., No. 11-22798-CIV, 2012 WL 3202948, at *1 (S.D. Fla. Aug. 3, 2012) (passenger reportedly raped while shopping on shore); Smith v. Commodore Cruise Line Ltd., 124 F. Supp. 2d 150, 152 (S.D.N.Y. 2000) (passenger fell in a cruise ship boarding facility); Sharpe v. W. Indian Co., 118 F. Supp. 2d 646, 648, 2001 AMC 995, 996 (D.V.I. 2000) (passenger was struck by a cruise ship railing while walking on a dock); Gillmor, 789 F. Supp. at 489, 1994 AMC at 1329 (passengers stabbed and robbed on pier); Sullivan v. Ajax Navigation Corp., 881 F. Supp. 906, 908, 1995 AMC 2407 (S.D.N.Y. 1995) (AMC reporter summarizing case) (passenger injured on pier). 138. Petro v. Jada Yacht Charters, Ltd., 854 F. Supp. 698, 699, 1994 AMC 1146, 1146 (D. Haw. 1994) (passengers injured in fight at a town bar). 139. Rams v. Royal Caribbean Cruise Lines, Inc., 17 F.3d 11, 11, 1994 AMC 1573, 1574 (1st Cir. 1994) (passenger fell at hotel owned by cruise line). 140. Balaschak v. Royal Caribbean Cruises, Ltd., No. 09-21196-CIV, 2010 WL 457137, at *1 (S.D. Fla. Feb. 4, 2010) (passenger injured in pickup truck); Esfeld v. Costa Crociere, S.P.A., 289 F.3d 1300, 1302, 2002 AMC 1750, 1751 (11th Cir. 2002) (passengers injured in a tour van accident during a shore excursion); Konikoff v. Princess Cruises, Inc., No. 1999-224, 2001 U.S. Dist. LEXIS 14034, at *1 (D.V.I. Aug. 13, 2001) (passenger injured exiting a taxi during a shore excursion); Dubret v. Holland Am. Line Westours, Inc., 25 F. Supp. 2d 1151, 1152, 1999 AMC 859, 859 (W.D. Wash. 1998) (passenger injured in a bus accident during a shore excursion); Paredes v. Princess Cruises, Inc., 1 F. Supp. 2d 87, 89 (D. Mass. 1998) (passenger injured in a tour

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4. On a private beach or tour of a local site142

B. Types of Shore Excursion Accidents Like the list of problems cruise passengers commonly experience aboard ships, passengers experience a wide range of problems on shore excursions. What follows is a list of some examples of these problems with citations to illustrative authorities: 1. Assaults, rapes, robberies, and shootings143 2. Horseback riding144 3. Jet skis145 bus accident); DeRoche v. Commodore Cruise Line, Ltd., 46 Cal. Rptr. 2d 468, 470, 1994 AMC 2347, 2348 (Cal. Ct. App. 1994) (passenger injured in a motor scooter accident during a shore excursion); Lubick v. Travel Servs., Inc., 573 F. Supp. 904, 905, 1986 AMC 132, 133 (D.V.I. 1983) (passengers injured in a bus accident during a shore excursion). 141. McLaren v. Celebrity Cruises, Inc., No. 11-23924-CIV, 2012 WL 1792632, at *2 (S.D. Fla. May 16, 2012) (involving an incident where a cruise passenger was injured while disembarking a snorkeling tour boat); Varey v. Canadian Helicopters Ltd., Case No. 95-13755-18 (Fla. Cir. Ct., Broward County) (on file with author) (acknowledging incident where cruise passengers drowned when their helicopter crashed on their return to Cozumel, Mexico); see also Sixteen HAL Passengers Die in Mexico Air Crash, TRAVEL WKLY. (Sept. 13, 2001), http://www.travelweekly.com/Cruise-Travel/Sixteen-HAL-passengers-die-in-Mexico-air-crash/; Passenger Killed in Shore Excursion Accident, TRAVEL WKLY. (July 27, 2000), http:// www.travelweekly.com/Destinations2001-2007/Passenger-killed-in-shore-excursion-accident/. 142. Berg v. Royal Caribbean Cruises, Ltd., No. 91-4957, 1992 WL 609803, at *1, 1994 AMC 806, 807 (D.N.J. Feb. 20, 1992) (passenger injured at a private beach); Carlisle v. Ulysses Line Ltd., 475 So. 2d 248, 249, 1986 AMC 694, 695 (Fla. Dist. Ct. App. 1985) (passengers were ambushed, raped, and robbed at a private beach); Koens v. Royal Caribbean Cruises, Ltd., 774 F. Supp. 2d 1215, 1218, 2012 AMC 721, 722 (S.D. Fla. 2011) (passengers were robbed and assaulted during tour); Samuels v. Holland Am. Line-USA Inc., 656 F.3d 948, 950, 2011 AMC 2441, 2442-43 (9th Cir. 2011) (passenger rendered quadriplegic after turbulent wave action at beach); Parry, supra note 24 (twelve passengers killed after their tour bus fell down a mountainside); Long v. Holland Am. Line Westours, Inc., 26 P.3d 430, 431 (Alaska 2001) (slip and fall during a museum tour); Metzger v. Italian Line, 1976 AMC 453, 453-54 (S.D.N.Y. 1975) (passengers injured in automobile accident). 143. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1335 (11th Cir. 2012) (passenger shot and killed on a bus); Koens, 774 F. Supp. 2d at 1218, 2012 AMC at 722 (passengers robbed at gunpoint during a shore excursion); Gillmor v. Caribbean Cruise Line, Ltd., 789 F. Supp. 488, 489, 1994 AMC 1329, 1329 (D.P.R. 1992) (passenger stabbed and robbed on pier); Carlisle, 475 So. 2d at 249, 1986 AMC at 695 (passengers ambushed by gunmen while on shore); see also Cathy Carroll, HAL Passengers Robbed During Shore Excursion, TRAVEL WKLY., Jan. 9, 1997, at 4 (“A dozen passengers sailing on Holland America Line’s Noordam were robbed at gunpoint during a shore excursion at the Prospect Plantation in Ocho Rios, Jamaica . . . .”). 144. Colby v. Norwegian Cruise Lines, Inc., 921 F. Supp. 86, 1996 AMC 1752 (D. Conn. 1996). 145. Calhoun v. Yamaha Motor Corp., U.S.A., 216 F.3d 338, 2000 AMC 1865 (3d Cir. 2000); Mashburn v. Royal Caribbean Cruises, Ltd., 55 F. Supp. 2d 1367, 1999 AMC 2475 (S.D. Fla. 1999), aff’d sub nom. Royal Caribbean Cruises v. Hommen, 214 F.3d 1356 (11th Cir. 2000) (unpublished table decision); Mashburn v. Royal Caribbean Cruises, Ltd., No. 00-3575- CIV-SEITZ, 2002 U.S. Dist. LEXIS 3999 (S.D. Fla. Mar. 1, 2002).

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4. Scuba diving146 5. Walking underwater147 6. Falling from a zip-line148 7. Jumping from a cavern wall149 8. Fishing150 9. Bobsled rides151 10. Diving bells152 11. Snorkeling153 12. Boat tours154 13. Vehicular accidents155 14. Fist fights156 15 Catamaran rides157

146. Carnival Cruise Lines, Inc. v. Levalley, 786 So. 2d 18 (Fla. Dist. Ct. App. 2001); Gershon v. Regency Diving Ctr., Inc., 845 A.2d 720 (N.J. Super. Ct. App. Div. 2004); Neely v. Club Med Mgmt. Servs., Inc., 63 F.3d 166, 1996 AMC 776 (3d Cir. 1995); Sinclair v. Soniform, Inc., 935 F.2d 599, 1991 AMC 2341 (3d Cir. 1991); Courtney v. Pac. Adventures, Inc., 5 F. Supp. 2d 874, 1998 AMC 2857 (D. Haw. 1998); Tancredi v. Dive Makai Charters, 823 F. Supp. 778, 1994 AMC 911 (D. Haw. 1993) (AMC reporter summarizing case); Shultz v. Fla. Keys Dive Ctr., Inc., 224 F.3d 1269, 2001 AMC 483 (11th Cir. 2000); Cutchin v. Habitat Curacao-Maduro Dive Fantas-Seas, Inc., No. 98-1679-CIV-GOLD, 1999 WL 33232277, 1999 AMC 1377 (S.D. Fla. Feb. 8, 1999); Borden v. Phillips, 752 So. 2d 69 (Fla. Dist. Ct. App. 2000). 147. DelPonte v. Coral World V.I., Inc., 233 F. App’x 178 (3d Cir. 2007). 148. Smolnikar v. Royal Caribbean Cruises Ltd., 787 F. Supp. 2d 1308, 2011 AMC 2941 (S.D. Fla. 2011); Gayou v. Celebrity Cruises, Inc., No. 11-23359-Civ, 2012 WL 2049431 (S.D. Fla. June 5, 2012); Fojtasek v. NCL (Bah.) Ltd., 613 F. Supp. 2d 1351 (S.D. Fla. 2009); Fojtasek v. NCL (Bah.) Ltd., 262 F.R.D. 650 (S.D. Fla. 2009). 149. Skeen v. Carnival Corp., No. 08-22618-CIV, 2009 WL 1117432 (S.D. Fla. Apr. 24, 2009). 150. Doyle v. Graske, 579 F.3d 898, 2009 AMC 2493 (8th Cir. 2009). 151. See Gentry v. Carnival Corp., No. 11-21580-CIV, 2011 WL 4737062 (S.D. Fla. Oct. 5, 2011). 152. See Zapata v. Royal Caribbean Cruises, Ltd., No. 12-21897-Civ, 2013 WL 1296298 (S.D. Fla. Mar. 27, 2013); Zapata v. Royal Caribbean Cruises, Ltd., No. 12-21897-Civ, 2013 WL 1100028 (S.D. Fla. Mar. 15, 2013). 153. McLaren v. Celebrity Cruises, Inc., No. 11-23924-CIV, 2012 WL 1792632 (S.D. Fla. May 16, 2012); Piché v. Stockdale Holdings, LLC, No. 2006-79, 2009 WL 799659 (D.V.I. Mar. 24, 2009); Mayer v. Cornell Univ., Inc., 909 F. Supp. 81 (N.D.N.Y. 1995), aff’d, 107 F.3d 3 (2d Cir. 1997) (unpublished table decision), cert. denied, 522 U.S. 818 (1997); McClenahan v. Paradise Cruises, Ltd., 888 F. Supp. 120, 1995 AMC 1899 (D. Haw. 1995). 154. United Shipping Co. (Nassau) v. Witmer, 724 So. 2d 722 (Fla. Dist. Ct. App. 1999). 155. Perry v. HAL Antillen NV, No. C12-0850JLR, 2013 WL 2099499 (W.D. Wash. May 14, 2013); Gibson v. NCL (Bah.) Ltd., No. 11-24343-CIV, 2012 WL 1952667 (S.D. Fla. May 30, 2012); Young v. Players Lake Charles, L.L.C., 47 F. Supp. 2d 832 (S.D. Tex. 1999). 156. Petro v. Jada Yacht Charters, Ltd., 854 F. Supp. 698, 1994 AMC 1146 (D. Haw. 1994). 157. In Wolff v. Holland America Lines, Inc., a cruise passenger participated in a shore excursion during which she fell off a catamaran and injured herself. “The parties agree that Holland America owed Ms. Wolff a duty of care in selecting independent third parties to provide off-ship excursions. . . . But Ms. Wolff has submitted no evidence showing that Holland America had any reason to anticipate those events.” No. 09-50RAJ, 2010 WL 234772, at *1, *3 (W.D.

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16. Medical malpractice at local clinics158 17. Abandonment onshore159 18. Parasailing160 19. Waterskiing161 20. Snowmobiling162 21. Helicopter and airplane rides163

Wash. Jan. 13, 2010). Holland America asserted that for ten years prior to the accident, it had no complaints about this shore excursion operator. The court granted summary judgment for the cruise line. Id. at *3; see also Bridgewater v. Carnival Corp., 286 F.R.D. 636, 638 (S.D. Fla. 2011) (passenger injured by lightning strike at or near the catamaran); Oran v. Fair Wind Sailing, Inc., No. 08-0034, 2009 WL 4349321, at *1 (D.V.I. Nov. 23, 2009) (slip and fall on a catamaran); Kilma v. Carnival Corp., No. 08-20335-CIV, 2008 WL 4559231, at *1 (S.D. Fla. Oct. 10, 2008); Henderson v. Carnival Corp., 125 F. Supp. 2d 1375, 1376, 2001 AMC 264, 264 (S.D. Fla. 2000) (passengers injured when catamaran struck a coral reef). 158. Wajnstat v. Oceania Cruises, Inc., No. 09-21850-Civ, 2011 WL 465340 (S.D. Fla. Feb. 4, 2011); Morris v. Princess Cruises, Inc., 236 F.3d 1061, 2001 AMC 804 (9th Cir. 2001); DeRoche v. Commodore Cruise Line, Ltd., 46 Cal. Rptr. 2d 468, 1994 AMC 2347 (Cal. Ct. App. 1994). 159. Daniel v. Costa Armatori, S.p.A., 1980 AMC 2874 (D.D.C. 1980). 160. In Haese v. Celebrity Cruises, Inc., the plaintiff and her mother were parasailing in tandem during a shore excursion when “the guide rope supporting them broke and both women fell into the water. As a result of this fall, Plaintiff sustained ‘serious catastrophic injuries’ and her mother died.” The plaintiff brought causes of actions based upon third-party beneficiary and joint venture theories. No. 12-20655-CIV, 2012 WL 3808596, at *1, 2012 AMC 1739, 1740-41 (S.D. Fla. May 14, 2012); Joseph v. Carnival Corp., No. 11-20221-CIV, 2011 WL 3022555 (S.D. Fla. July 22, 2011); In re UFO Chuting of Haw., Inc., 233 F. Supp. 2d 1254, 2002 AMC 954 (D. Haw. 2001); Ransier v. Quirk Marine, Inc., 812 N.Y.S.2d 214 (App. Term 2006); In re See N Ski Tours, Inc., No. 98-1300-P-M, 2000 U.S. Dist. LEXIS 2983 (S.D. Ala. Feb. 25, 2000); Beiswenger Enters. Corp. v. Carletta, 46 F. Supp. 2d 1294, 1999 AMC 2078 (M.D. Fla. 1999). For a case involving a hotel management company’s liability where a guest drowned while parasailing, see Walker v. Wedge Hotel Management (Bahamas) Ltd., No. 01-3564-CIV, 2003 WL 23218085 (S.D. Fla. Oct. 22, 2003). There, the plaintiff claimed that the defendant management company was liable because the vendor that ran the parasailing business was its agent. A jury awarded plaintiff $1.88 million in the case. No. 01-3564-CIV, 2003 WL 23407582 (S.D. Fla. Sept. 3, 2003). 161. O’Hara v. Bayliner, 679 N.E.2d 1049, 1997 AMC 2037 (N.Y. 1997). 162. See Passenger Killed in Shore Excursion Accident, supra note 141. 163. Altman v. Liberty Helicopters, No. 10-545, 2010 WL 2998467 (E.D. Pa. July 29, 2010); Gund III v. Pilatus Aircraft, Ltd., Nos. C07-4902 TEH, C08-3795 TEH, 2010 WL 887376 (N.D. Cal. Mar. 11, 2010); see also Douglas Rogers, Risky Business, CONDÉ NAST TRAVELER (Feb. 2006), http://www.cntraveler.com/travel-tips/safety-and-security/2006/02/Risky-Business (“On June 14, 2004, a Bell flightseeing helicopter plunged into New York City’s East River soon after takeoff from a Wall Street heliport, injuring the pilot and six tourists on board. This followed the crash of a four-passenger Cessna on the beach at Brooklyn’s Coney Island a month earlier, in which the pilot and three sightseers were killed. More recently, on September 23, three passengers died after a Heli USA Airways flightseeing helicopter plummeted into the sea off the island of Kauai. Flightseeing-known in the aviation industry as air-touring, be it aboard a hot-air balloon, a fixed-wing plane, or a helicopter-attracts more than two million passengers a year and generates revenues in excess of $625 million in the United States alone.”); Debra A. Klein, Spate of Copter Crashes Prompts Concern, N.Y. TIMES, Feb. 5, 2006 (Travel), at 6 (“The N.T.S.B. has recorded more than 140 sightseeing-flight accidents nationally since January 2000, 19 of them

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22. Personal watercraft rides164 23. Wake boarding165 24. Drownings166 25. Mig fighter jet flying167

C. Theories of Liability for Shore Excursion Accidents Typically the cruise line will seek to enforce a cruise ticket clause disclaiming all liability for shore excursion accidents.168 Recently, courts have recognized a variety of legal theories by which to hold the cruise line and shore excursion operator liable for such accidents. Some of these theories include a breach of the duty to warn of dangerous

fatal. The accidents were split almost evenly among helicopters, balloons and small planes, but helicopter flights made up more than half of the fatal crashes, killing 43 people, 24 in Hawaii.”); Rizzuti v. Basin Travel Serv. of Othello, Inc., 105 P.3d 1012, 1015 (Wash. Ct. App. 2005) (safari participants killed in airplane crash); Abercrombie & Kent Int’l, Inc. v. Carlson Mktg. Grp., No. 88-7889, 1990 WL 20213, at *1 (E.D. Pa. Feb. 28, 1990) (travelers killed when in airplane crash); Sixteen HAL Passengers Die in Mexico Air Crash, supra note 141 (“Sixteen passengers from Holland America Line’s Maasdam, along with two pilots and one tour escort, were killed . . . when their sightseeing plane crashed in a jungle near Mexico’s Yucatan Peninsula.”); Passenger Killed in Shore Excursion Accident, supra note 141; Seven Killed in Maui Tour Helicopter Crash, TRAVEL WKLY. (July 26, 2000), http://www.travelweekly.com/Destinations2001-2007/Seven- killed-in-Maui-tour-helicopter-crash/. 164. In re Royal Caribbean Cruises Ltd., 459 F. Supp. 2d 1284 (S.D. Fla. 2006); Henson v. Klein, 319 S.W.3d 413 (Ky. 2010); In re Bay Runner Rentals, Inc., 113 F. Supp. 2d 795, 2001 AMC 894 (D. Md. 2000). 165. Wheeler v. HO Sports Inc., 232 F.3d 754 (10th Cir. 2000). 166. Smith v. Carnival Corp., 584 F. Supp. 2d 1343, 2009 AMC 563 (S.D. Fla. 2008); Island Sea-Faris, Ltd. v. Haughey, 13 So. 3d 1076 (Fla. Dist. Ct. App. 2008); In re Lake George Tort Claims, No. 1:05-cv-1408, 2010 WL 1930583 (N.D.N.Y. May 10, 2010), aff’d, 461 F. App’x 39 (2d Cir. 2012). 167. Johanna Jainchill, Luxury Cruising Sector Is Booming as Mass-Market Products Struggle, TRAVEL WKLY., May 29, 2006, at 1 (“Five Crystal Cruises passengers sailing St. Petersburg itineraries this year will each spend 30 minutes in the cockpit of a MiG fighter jet, experiencing zero gravity and Mach 2 speeds while inverted in the sky over Moscow. The price? A cool $22,000 each. Only two guests took this excursion last year, when it was first offered for $15,000.”). 168. For example, in Reming v. Holland America Line Inc., a cruise passenger fell into a sink hole during a shore excursion tour of Cliff Diver’s Plaza in Mazatlan, Mexico. No. C11-1609RSL, 2013 WL 594281, at *1-2 (W.D. Wash. Feb. 14, 2013). The cruise ship contract clause disclaimed liability for negligent selection of local tour bus companies, but the court held that the clause was unenforceable, thus expanding the scope of 26 U.S.C. § 30509 from accidents on board to shore excursion accidents. The court concluded that the cruise line “failed to provide any evidence or argument regarding [its] inquiry into [the local tour bus company’s] competence and fitness as an excursion provider. Therefore, Plaintiffs’ claim regarding [the cruise line’s] selection and retention of [the local tour bus company] remains for trial.” Id. at *4, *7; see also Young v. Carnival Corp., No. 09-21949-CIV, 2011 WL 465366 (S.D. Fla. Feb. 4, 2011) (enforcing a cruise line’s disclaimer of liability for misconduct of shore excursion operators).

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VI. OTHER LIABILITY ISSUES A. Cancellations, Delays, Port Skipping, and Itinerary Changes Aside from physical injuries, cruise passengers may have claims arising from cancellations, 172 flight delays, 173 port skipping and unannounced itinerary changes, 174 and forced disembarkation. The captain of a cruise ship or a commercial aircraft may, under appropriate circumstances, order the disembarkation of passengers.175 Typically, a

169. Chaparro v. Carnival Corp., 693 F.3d 1333, 1335 (11th Cir. 2012) (duty to warn of dangerous gang-infested environment on shore). 170. See, e.g., Zapata v. Royal Caribbean Cruises, Ltd., No. 12-21897-Civ, 2013 WL 1296298, at *1 (S.D. Fla. Mar. 27, 2013) (decedent asphyxiated during bell diving excursion); Perry v. HAL Antillen NV, No. C12-0850JLR, 2013 WL 2099499, at *3 (W.D. Wash. May 14, 2013) (shore excursion operator ran over passenger with tour bus); Gibson v. NCL (Bah.) Ltd., No. 11-24343-CIV., 2012 WL 1952667, at *1 (S.D. Fla. May 30, 2012) (declining to entertain a cause of action against the cruise line for negligent selection of a shore excursion operator). 171. See, e.g., Perry, 2013 WL 2099499; Haese v. Celebrity Cruises, Inc., No. 12-20655-CIV, 2012 WL 3808596, 2012 AMC 1739 (S.D. Fla. May 14, 2012). 172. Odyssey Travel Ctr., Inc. v. RO Cruises, Inc., 262 F. Supp. 2d 618, 622 (D. Md. 2003) (cruise line cancelled group contracts); Unger v. Travel Arrangements, Inc., 266 N.Y.S.2d 715, 717, 1966 AMC 1440, 1440 (App. Div. 1966) (insolvent cruise line cancelled contracts); Dimon v. Cruises By De, No. 115-62264, 1994 WL 792663, at *1, 1995 AMC 685, 686 (Iowa Dist. Ct. Nov. 28, 1994) (travel agent absconded with consumer’s payment); Sanderman v. Costa Cruises Inc., 55 Pa. D. & C.4th 328, 329-30 (Ct. Com. Pl. 2001) (cruise tour operator failed to remit passengers’ payment to cruise line or issue refund); Slade v. Cheung & Risser Enters., Inc., 10 Pa. D. & C.3d 627, 628-29 (Ct. Com. Pl. 1979) (cruise line absconded with passenger payments). 173. Flamenbaum v. Orient Lines, Inc., No. 03-22549-CIV, 2004 WL 1773207, at *1 (S.D. Fla. July 20, 2004) (baggage placed on wrong flight); Insogna v. Princess Cruises, Inc., N.Y. L.J., June 10, 2002, at 37; Bernstein v. Cunard Line Ltd., No. 83 Civ. 2206 (SWK), 1985 WL 1980, at *1 (S.D.N.Y. June 27, 1985) (snowstorm delayed air transportation); Harden v. Am. Airlines, 178 F.R.D. 583, 584 (M.D. Ala. 1998) (passengers missed two days of cruise because of flight delays). 174. Elliott v. Carnival Cruise Lines, 231 F. Supp. 2d 555, 557, 2003 AMC 1055, 1056 (S.D. Tex. 2002) (engine trouble caused cancellation of stop in Playa del Carmen); Yollin v. Holland Am. Cruises, Inc., 468 N.Y.S.2d 873, 874-75, 1984 AMC 542, 543 (App. Div. 1983) (planned stop in Bermuda skipped); Desmond v. Holland Am. Cruises, N.V., 1981 AMC 211, 212 (S.D.N.Y. 1981) (same); Casper v. Cunard Line, Ltd., 560 F. Supp. 240, 241, 1984 AMC 2465, 2466 (E.D. Pa. 1983) (cruise line failed to abide by its itinerary); Whitman v. TravLtips, Inc., 1982 AMC 429, 430 (W.D. Va. 1981) (change in the travel itinerary); Bloom v. Cunard Line, Ltd., 430 N.Y.S.2d 607, 608 (App. Div. 1980) (same); Christopher Elliott, Maybe Barbados, Maybe Someplace Else, N.Y. TIMES, July 2, 2006 (Travel), at 6 (“Cruise lines make a lot of claims about their itineraries and ports of call. But they may be under no contractual obligation to keep to their schedules, and they sometimes do not. When that happens, the compensation to passengers is entirely up to the lines. Their policies are uneven, ranging from a small credit for port taxes issued to a passenger’s onboard account to, in extreme cases, a free cruise. Those responses do not always sit well with passengers or authorities.”). 175. See, e.g., Ruta v. Delta Airlines, Inc., 322 F. Supp. 2d 391 (S.D.N.Y. 2004); Rubin v. United Air Lines, Inc., 117 Cal. Rptr. 2d 109 (Ct. App. 2002).

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B. Misrepresentations and Discomfort Aboard the Cruise Ship 1. Port Charges Cruise lines have generated substantial profits by forcing passengers to pay “port charges” in addition to the price they pay for a cruise. Sometimes these “port charges” have exceeded $150 per passenger and were explained to passengers as charges required by port authorities and government agencies. In reality, very little of the “port charge” was ever paid to port authorities or governmental agencies, with most, if not all, of the collected revenues being pocketed by the cruise line as profit. This deceptive practice has been the subject of an enforcement proceeding brought by the Florida Attorney General178 and several consumer class actions alleging fraud and violation of state consumer protection statutes.179

2. Hotel Taxes and Fee Surcharges Cruise passengers may also be forced to pay hidden hotel taxes and fee surcharges that they likely were not aware of at the time they booked their tickets. However, courts do not seem to find that these surcharges constitute deceptive practices like they have found with respect to port charges. For example, in Chiste v. Hotels.com L.P., the court dismissed the plaintiff’s claim that the cruise line violated New York General

176. Larsen v. Carnival Corp., 242 F. Supp. 2d 1333, 1340, 2003 AMC 1337, 1341-42 (S.D. Fla. 2003); Wajnstat v. Oceania Cruises, Inc., No. 09-21850-Civ, 2011 WL 465340, at *1 (S.D. Fla. Feb. 4, 2011). 177. Afkhami v. Carnival Corp., 305 F. Supp. 2d 1308, 1313-14, 2004 AMC 1459, 1463-64 (S.D. Fla. 2004) (passengers forced to disembark after they brought live bees on board). 178. Larry Fox & Barbara Radin Fox, The ‘Port Charge’ Game, WASH. POST, Mar. 2, 1997, at E4 (“[S]ix cruise lines . . . said that by June 1 they will adopt new pricing practices that limit advertised ‘port charges’ solely to governmental and quasi-governmental fees imposed by ports of call.”). 179. See Latman v. Costa Cruise Lines, N.V., 758 So. 2d 699, 701 (Fla. Dist. Ct. App. 2000); N.G.L. Travel Assocs. v. Celebrity Cruises, Inc., 764 So. 2d 672, 673, 2000 AMC 2391, 2391-92 (Fla. Dist. Ct. App. 2000); Renaissance Cruises, Inc. v. Glassman, 738 So. 2d 436, 437 (Fla. Dist. Ct. App. 1999); Premier Cruise Lines, Ltd., v. Picaut, 746 So. 2d 1132, 1134 (Fla. Dist. Ct. App. 1999); Cronin v. Cunard Line Ltd., 672 N.Y.S.2d 864, 864, 1998 AMC 2367, 2367 (App. Div. 1998); Pickett v. Holland Am. Line-Westours, Inc., 6 P.3d 63, 65 (Wash. Ct. App. 2000), rev’d, 35 P.3d 351 (Wash. 2001) (en banc); Ames v. Celebrity Cruises, Inc., No. 97 Civ. 0065 (LAP), 1998 U.S. Dist. LEXIS 11559, at *4 (S.D.N.Y. July 29, 1998).

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Business Law § 349 by taxing passengers for their hotel accommodations based on the higher retail rate passengers paid to the cruise line rather than the lower wholesale rate the cruise line paid to the hotel.180 Similarly, in Hotels.com, L.P. v. Canales, a hotel guest “contacted Hotels.com to make a reservation at a hotel in San Antonio, Texas.”181 Hotels.com, the defendant, charged each customer a surcharge, entitled “taxes/fees.” 182 The defendant admitted that it neither charged nor collected the alleged “taxes/fees,” and the court found that such a charge was permissible because “the fee [was] not a tax” under Texas law.183

3. Passengers’ Cabins Unlike hotel taxes and fee surcharges, courts have found cruise lines liable for engaging in deceptive practices with regard to passenger accommodations under a variety of circumstances.184

180. 756 F. Supp. 2d 382, 403 (S.D.N.Y. 2010). 181. 195 S.W.3d 147, 149 (Tex. App. 2006). 182. Id. 183. Id. at 152. 184. Vallery v. Berm. Star Line, Inc., 532 N.Y.S.2d 965 (Civ. Ct. 1988) (stateroom did not meet advertised quality); Ames, 1998 U.S. Dist. LEXIS 11559 (cruise ship substituted lower quality cabin); Mirra v. Holland Am. Line, 751 A.2d 138 (N.J. Super. Ct. App. Div. 2000) (cabin smaller than promised); Donnelly v. Klosters Rederi A/S, 515 F. Supp. 5 (E.D. Pa. 1981) (room unclean); Blair v. Norwegian Caribbean Lines A/S, 622 F. Supp. 21, 1985 AMC 2435 (D.D.C. 1985) (double bed instead of two twin beds); Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1985 AMC 826 (11th Cir. 1984) (malfunctioning toilets); Cismaru v. Radisson Seven Seas Cruises, Inc., No. 07-00-00100-CV, 2001 WL 6546 (Tex. App. Jan. 2, 2001) (unsatisfactory accommodations during shore excursion).

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C. Cruise Ship Facilities and Services185 Disabled travelers 186 present special problems that airlines, both domestic 187 and foreign,188 hotels, 189 and cruise ships need to address. Currently, all cruise ships touching U.S. ports are subject to the ADA’s requirements.190 However, until recently, some cruise lines did not feel bound by the ADA’s directives.191 This changed in 2000 when a disabled passenger purchased a ticket for a cruise, which represented that it had rooms and public facilities that were wheelchair accessible. The passenger paid “a fee in excess of the advertised price to obtain a purportedly wheelchair-accessible cabin,” discovered after boarding that her cabin and the public areas were not wheelchair accessible, and was “denied the benefits of services, programs and activities of the vessel and its facilities.”192 The passenger’s subsequent lawsuit, Stevens v. Premier

185. Nadine Godwin, S.F. Agency, NCL Named in Pride of Aloha Lawsuits, TRAVEL WKLY. (Mar. 29, 2005), http://www.travelweekly.com/Cruise-Travel/S-F--agency,-NCL-named- in-Pride-of-Aloha-lawsuits/ (“Passengers on a charter cruise of NCLs [sic] Pride of Aloha in Hawaii last summer brought a class-action lawsuit . . . alleg[ing] that the ship was experiencing severe staffing problems and that the crew could not provide adequate food-and-beverage service, cleaning services or safety drills.”); Poulos v. Caesars World, Inc., 379 F.3d 654 (9th Cir. 2004) (regarding fraudulent and misleading acts related to slot machines); Gelfand v. Action Travel Ctr., Inc., 563 N.E.2d 317 (Ohio Ct. App. 1988) (refurbished cruise vessel misrepresented as being new); Boyles v. Cunard Line, Ltd., No. 93 Civ. 5472 (JFK), 1994 U.S. Dist. LEXIS 21449, 1994 AMC 1631 (S.D.N.Y. Jan. 11, 1994) (cruise line misrepresented availability of Spa Sea program); Ricci v. Hurley, M 79 10186 C, 1984 AMC 546 (Fla. Palm Beach Cnty. Ct. 1981) (unclean recreational deck facilities); Donnelly, 515 F. Supp. 5 (failure to provide clean decks and children’s playroom); Grivesman v. Carnival Cruise Lines, No. 00 C 2091, 2001 U.S. Dist. LEXIS 661 (N.D. Ill. Jan. 24, 2001) (poor quality of service aboard cruise ship); Hollingsworth v. Cunard Line Ltd., 263 S.E.2d 190 (Ga. Ct. App. 1979) (poker game not available on QUEEN ELIZABETH II). 186. See Betsy Wade, Cruise Ships and the Disabled, N.Y. TIMES, Aug. 6, 2000 (Travel), at 4; Special Report, Shipping News Cruise Passengers Gain More Rights, Consumer Reports Travel Letter, Dec. 2000, at 12; Ernest Blum, AAA To Publish Guides for Disabled Travelers, TRAVEL WKLY. (Feb. 2, 2001), http://www.travelweekly.com/travel-news/travel-agent-issues/ AAA-to-publish-guides-for-disabled-travelers/. 187. See Air Carrier Access Act of 1986, 49 U.S.C. § 41705 (2006). 188. Alino v. Aerovias de Mexico, S.A., 129 F. Supp. 2d 1341, 1344 (S.D. Fla. 2000) (noting that foreign air carriers can be liable under the amended Air Carrier Access Act); Ernest Blum, DOT Aims To Extend Disability Rules to Foreign Lines, TRAVEL WKLY., Feb. 1, 2001, at 5 (“The Department of Transportation is actively carrying out a new mandate from Congress to bring foreign airlines under the jurisdiction of U.S. law in order to guarantee disabled travelers equal access to air transportation.”). 189. Sigros v. Walt Disney World Co., 129 F. Supp. 2d 56 (D. Mass. 2001) (claiming violations of the ADA after wheelchair accident at resort). 190. See supra note 72 and accompanying text. 191. 42 U.S.C. §§ 12101-12213 (2006). 192. Stevens v. Premier Cruises, Inc., 215 F.3d 1237, 1238, 2000 AMC 1976, 1977 (11th Cir. 2000) (internal quotation marks omitted).

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Cruises, Inc., established that the ADA applies to foreign-flagged cruise ships sailing in U.S. waters.193 Other courts have also ruled on the ADA’s application to cruise ships.194 These cases have dealt with contaminated food and water and Norovirus,195 breakdowns of engines, air conditioning, ventilation, water desalinization, filtration, and sanitary systems,196 and the absence of medical care standards.

193. Id. at 1242, 2000 AMC at 1982 (“[T]his case is about whether Title III requires a foreign-flag cruise ship reasonably to accommodate a disabled, fare-paying, American passenger while the ship is sailing in American waters.”). 194. Larsen v. Carnival Corp., 242 F. Supp. 2d 1333, 1348, 2003 AMC 1337, 1341 (N.D. Fla. 2003) (finding that a cruise passenger’s medical disembarkation was appropriate because the proposed modifications to the ship’s ventilator were not reasonable and not required by the ADA); Ass’n for Disabled Ams., Inc. v. Concorde Gaming Corp., 158 F. Supp. 2d 1353, 1367-68 (S.D. Fla. 2001) (finding that craps tables that were too high for wheelchair-bound players did not violate the ADA but that inaccessible restroom facilities did); Resnick v. Magical Cruise Co., 148 F. Supp. 2d 1298, 1303, 1305, 2001 AMC 2576, 2581, 2584 (M.D. Fla. 2001) (finding that a passenger did not have standing to sue under the ADA and that the ADA accessibility guidelines did not apply to cruise ships because they had not been developed yet); Access Now, Inc. v. Cunard Line Ltd., No. 00-7233-CIV-MORENO, 2001 U.S. Dist. LEXIS 21481, at *1 (S.D. Fla. Oct. 31, 2001) (approving a settlement that required the cruise line to spend $7 million to make its vessels comply with the ADA’s public accommodation provisions); Walker v. Carnival Cruise Lines, 63 F. Supp. 2d 1083, 1091 (N.D. Cal. 1999) (explaining that even travel agents could be liable under the ADA for misrepresenting the disabled accommodations on a vessel or failing to research such accommodations); Briefer v. Carnival Corp., No. 98-1493-PCT-SMM, 1999 U.S. Dist. LEXIS 21256, at *5-6 (D. Ariz. Aug. 3, 1999) (alleging sufficient facts to show that the ADA governed travel agents); Deck v. Am. Haw. Cruises, Inc., 51 F. Supp. 2d 1057, 1061, 1999 AMC 2829, 2832 (D. Haw. 1999) (finding the ADA’s new construction and alteration-of-facility provisions inapplicable to the cruise ship). 195. See Carnival Cruise May Have Located Source of Virus Outbreak, ETURBONEWS (Mar. 24, 2013), http://eturbonews.com/print/33997 (“[C]losure of the Carnival Cruise Port on Grand Turk in the Turks and Caicos Islands . . . [comes] in the wake of an outbreak of a sickness that causes vomiting and diarrhea.”); see also Genevieve Shaw Brown, Cruise Ships Queen Mary 2 and Emerald Princess Hit by Suspected Norovirus, ABC NEWS (Dec. 28, 2012), http://www.abcnews.com/Travel/cruise-ships-queen-mary-emerald-princess-hit-suspected/story?i d=18082284; Jackson v. Carnival Cruise Lines, Inc., 203 F. Supp. 2d 1367 (S.D. Fla. 2002) (claiming negligence, breach of contract, and failure to warn where passenger became ill during cruise and died shortly after disembarking); Tateosian v. Celebrity Cruise Servs., Ltd., 768 A.2d 1248, 1249 (R.I. 2001) (per curiam) (negligence action for salmonella poisoning); Barbachym v. Costa Line, Inc., 713 F.2d 216, 218, 1984 AMC 1484, 1486 (6th Cir. 1983) (food poisoning); Bounds v. Sun Line Cruises, Inc., 1997 AMC 25, 30 (C.D. Cal. 1996) (salmonella poisoning from contaminated food and water). 196. Neenan v. Carnival Corp., 199 F.R.D. 372, 373 (S.D. Fla. 2001) (breakdown of sanitation and air conditioning systems causing nausea); Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 623, 2000 AMC 1519 (5th Cir. 1999) (AMC reporter summarizing case) (defective ventilation system allegedly caused respiratory illnesses); Silivanch v. Celebrity Cruises, Inc., No. 95 Civ. 0374 (BSJ) (JCF), 2000 U.S. Dist. LEXIS 12155, at *2 (S.D.N.Y. Aug. 23, 2000) (defective filter in whirlpool spa caused Legionnaires’ Disease); Casper v. Cunard Line, Ltd., 560 F. Supp. 240, 241, 1984 AMC 2465, 2465-66 (E.D. Pa. 1983) (class action for failure to follow itinerary after cruise ship suffered a breakdown); Simon v. Cunard Line Ltd., 428 N.Y.S.2d 952

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Unfortunately, there are no uniform international standards for the qualifications of cruise ship doctors or nurses or for the nature and quality of medical equipment on board cruise ships.197

D. Lost, Damaged, or Stolen Baggage Cruise passengers have also had to deal with various issues arising when cruise lines lose, damage, or steal baggage.198

E. Passenger Protection Rules Cruise ship passengers are the beneficiaries of various consumer protection regulations. State consumer protection statutes provide passengers with remedies for damages arising from deceptive and unfair business practices.199 Federal regulations take the form of financial security rules and vessel sanitation inspections.

1. Financial Protection for Cruise Passengers Federal maritime regulations provide that entities that “arrange, offer, advertise or provide passage on a vessel having berth or stateroom accommodations for 50 or more passengers and embarking passengers at U.S. ports shall establish their financial responsibility.” 200 These regulations provide that cruise lines must establish sufficient funds, through combinations of surety bonds, insurance, or escrow arrangements, and pay the full cruise contract price under circumstances where the cruise is not performed.201 Unfortunately, most problems with

(App. Div. 1980) (change in itinerary when air conditioning malfunctioned and fresh water was not available). 197. Cruise-Ship Health Care: Prescription for Trouble, CONSUMER REP. TRAVEL LETTER, Apr. 1999. 198. See Mainzer v. Royal Olympic Cruises, Ltd., 677 N.Y.S.2d 668, 669 (Sup. Ct. App. Term 1998) (vessel lost passenger’s baggage for four days); Ames v. Celebrity Cruises, Inc., No. 97 Civ. 0065 (LAP), 1998 U.S. Dist. LEXIS 11559, at *3-5 (S.D.N.Y. July 29, 1998) (vessel lost baggage for most of cruise); Cada v. Costa Line, Inc., 547 F. Supp. 85, 85-86, 1984 AMC 1491, 1491-92 (N.D. Ill. 1982) (fire on vessel destroyed baggage). 199. For a discussion of New York State consumer protection statutes, including General Business Law sections 349, 350, see Thomas A. Dickerson, Consumer Law 2013 Update: The Judge’s Guide to Federal and New York State Consumer Protection Statutes, NYCOURTS.GOV (June 6, 2013), http://www.nycourts.gov/courts/9jd/TacCert_pdfs/Dickerson_Docs/CONSUMER LAW2013ONLINE.pdf; see also Vallery v. Bermuda Star Line, Inc., 532 N.Y.S.2d 965, 967-68 (Civ. Ct. 1988) (finding the cruise line liable under New York State General Business Law section 349 for deceptive business practices and section 350 for false advertising after the quality of the cruise ship was misrepresented in brochures). 200. 46 C.F.R. § 540.1 (2013). 201. For amendments eliminating the availability of self-insurance and other changes that became effective August 5, 2002, see 67 Fed. Reg. 44,774 (2002). For cases discussing the scope

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42 TULANE MARITIME LAW JOURNAL [Vol. 38:1 cruise lines involve a failure to deliver part of what is promised while the aforesaid financial security devices appear to provide recourse only in the event of insolvency or bankruptcy. In addition, the Federal Maritime Commission bonds are limited to a maximum of $15 million, which may be inadequate to cover all passenger claims.202

2. Sanitary Inspection of Vessels The United States Department of Health and Human Services conducts monthly inspections of cruise ships touching U.S. ports. The results of these inspections are published and made available upon request from the CDC and should be examined before selecting a cruise ship.203 For example, the CDC recently released a report documenting the unsanitary conditions that led to one of the world’s most luxurious cruise ships failing a health inspection . . . . The report on the surprise inspection of Silversea Cruises’ 382-passenger Silver Shadow says inspectors found raw, cooked and ready-to-eat foods improperly stored under the cabin beds of crew members who worked in the ship’s galley. Food also was stored on the floors of crew cabins, as was equipment used to prepare food for passengers such as a meat slicer and serving trays, the report says.204

of coverage of these maritime surety bonds, see, for example, Patricia Hayes & Associates, Inc. v. M/V Big Red Boat, II, No. 00 Civ. 6925(GBD), 2002 U.S. Dist. LEXIS 9867, 2002 AMC 1722 (S.D.N.Y. May 31, 2002), and Freret Marine Supply v. M/V Enchanted Capri, No. 00-3805, 2002 U.S. Dist. LEXIS 5130 (E.D. La. Mar. 8, 2002), aff’d sub nom. Freret Marine Supply v. Harris Trust & Savings Bank, 73 F. App’x 698 (5th Cir. 2003). See also Rebecca Tobin, FMC Bond Ceiling To Get a Hearing, TRAVEL WKLY. (June 10, 2003), http://www.travelweekly.com/cruise- travel/FMC-bond-ceiling-to-get-a-hearing/ (“A Federal Maritime Commission plan to boost bonding requirements for cruise lines [would] eliminate the $15 million ceiling on cruise line bond requirements and make other changes in the financial responsibility rules. . . . Under the new proposal, cruise lines would be responsible for coverage equal to the total amount of passenger funds on hand for future cruises (unearned passenger revenue), except for revenue received from credit card charges made within 60 days of sailing.”). 202. Tobin, supra note 201. 203. For cruise ship sanitation reports, see Vessel Sanitation Program, CTRS. FOR DISEASE CONTROL & PREVENTION, http://www.cdc.gov/nceh/vsp/ (last visited Apr. 12, 2014). 204. CDC Documents Unsanitary Conditions on Luxury Ship, USA TODAY (July 23, 2013, 5:39 PM), http://www.usatoday.com/story/travel/news/2013/07/23/silver-sea-cruise-ship-health- inspection/2579265/; Travel Agents: Cancel All Bookings on Silversea Cruises!, ETURBONEWS (July 25, 2013), http://www.eturbonews.com/print/36453 (“According to crew members, some spoilable food items were kept out of the refrigerator in cabins and hallways but were served the following day to the cruise passengers.”).

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3. Protecting the Oceans Cruise passengers have a vital interest in monitoring the way in which cruise ships deliver their services. This includes protecting the oceans from cruise ships that illegally dump garbage, wastes, and spent fuel.205 While federal laws exist to protect the oceans, some states have stepped in to provide additional protection. These state laws may in fact be tougher than federal regulations. California and Alaska, for example, have enacted legislation prohibiting ocean dumping.206

F. Insurance: Cancellation Waivers and Third-Party Policies Krista Carothers of Condé Nast Traveler prepared an excellent comparison of cruise line policies and third-party policies in a 2005 article, Playing It Safe. In her article, Carothers noted that the three most important benefits of obtaining travel insurance for your cruise are trip cancellation coverage, trip interruption coverage, and medical coverage. Of these three benefits, Carothers claimed that trip cancellation coverage is the most important because it “will reimburse the cost of a cruise or tour if you’re forced to call off your plans for any of a number of covered reasons.” 207 Carothers also discussed cancellation waivers, which typically allow passengers to cancel their cruise up to one or two days before departure and receive a refund of roughly 75%-90% of the trip’s total cost. While Carothers acknowledged that waivers are generally

205. Matthew L. Wald, A Cruise Line Starts To Clean Up After Itself, N.Y. TIMES, Nov. 28, 2004 (Travel), at 3 (“Royal Caribbean International, which pleaded guilty in 1999 to 21 felony counts of violating water pollution laws, and paid $18 million in fines, . . . turned on new systems on two ships [providing] advanced wastewater treatment.”); Krista Carothers, Cruise Ships Come Clean, CONDÉ NAST TRAVELER, Aug. 2004, at 62 (“When Royal Caribbean said in May that it plans to retrofit its entire fleet with advanced wastewater treatment systems, environmental groups welcomed the news, hoping it might signal a change for the better in the industry’s dumping practices.”); Krista Carothers, Pollution Progress, CONDÉ NAST TRAVELER, Dec. 2003, at 76; Edwin McDowell, For Cruise Ships, A History of Pollution, N.Y. TIMES, June 16, 2002 (Travel), at 3 (“On April 19 the Carnival Corporation pleaded guilty in United States District Court in Miami to criminal charges related to falsifying records of the oil-contaminated bilge water that six of its ships dumped into the sea from 1996 through 2001.”). 206. Carothers, Pollution Progress, supra note 205, at 76 (“In September, California became the second state—after Alaska—to decide that federal regulations governing what cruise ships can and cannot dump are too weak, and to respond by implementing its own laws. After a state task force report found that pollutants ‘are routinely discharged from vessels into California’s coastal waters,’ the state passed legislation that prohibits dumping of sewage sludge, hazardous materials, and bilge water containing oil, and instructs California’s Environmental Protection Agency to ask the federal government to prohibit all such discharges within the state’s national marine sanctuaries. Although the laws do not include limits on the expulsion of blackwater (from toilets) or graywater (from sinks, showers, and laundry), many see this as an important first step.”). 207. Krista Carothers, Playing It Safe, CONDÉ NAST TRAVELER, Jan. 2005, at 55, 56.

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44 TULANE MARITIME LAW JOURNAL [Vol. 38:1 helpful, she also noted, “It can be perilous . . . to rely on a waiver as your only protection against the unexpected” because such waivers “won’t cover other things that insurance does.”208

VII. LITIGATION ROADBLOCKS IN PROSECUTING PASSENGER CLAIMS Generally, the rights of the cruise line under maritime law are paramount to those of the injured or victimized passenger. 209 The following Subpart discusses how maritime law works to protect the cruise lines from legitimate passenger claims.

A. The Limitation of Liability Act Under the Limitation of Liability Act (Limitation Act), 210 shipowners may limit their liability for passenger claims to the value of vessel. The Limitation Act provides, in relevant part, “The liability of the owner of a vessel for any claim, debt, or liability described in [this Act] shall not exceed the value of the vessel and pending freight.”211 The City of New York sought to limit its liability for the 2003 death of eleven passengers in a crash of the Staten Island Ferry. The city “attempt[ed] to limit its liability to $14 million—the value of the ferry after the crash—based on [the Limitation Act].”212 A limitation action is instituted by posting security in an amount equal to the value of the vessel, with notice given to all prospective claimants. After claims are filed, the court conducts a two-step analysis. First, the court must establish what acts of negligence or conditions of unseaworthiness, if any, caused the accident. Second, the court must establish whether (the cruise line) had knowledge of, or privity of knowledge of, negligence or the unseaworthiness of the vessel. In a limitation proceeding, the claimant must present some evidence of negligence or unseaworthiness before the burden shifts to the cruise line to establish lack of knowledge or privity. “If there is no evidence of [the cruise line’s] negligence or contributory fault, then [the cruise line] is

208. Id. at 57-58. 209. See, e.g., Schwartz v. S.S. Nassau, 345 F.2d 465, 467, 1965 AMC 1375, 1378-79 (2d Cir. 1965); Brozyna v. Niagara Gorge Jetboating, Ltd., No. 10-CV-602-JTC, 2011 WL 4553100, at *5 (W.D.N.Y. Sept. 29, 2011); Johnson v. Royal Caribbean Cruises, Ltd., 449 F. App’x 846, 848-49 (11th Cir. 2011). 210. 46 U.S.C. §§ 30501-30512 (2006). 211. Id. § 30505(a). 212. Tom Perrotta, Parties Spar over Findings in Ferry Action, N.Y. L.J., Apr. 27, 2006, at 1.

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B. Passenger Ticket Print Size and Language A cruise passenger’s rights are, to a large extent, defined by the terms and conditions set forth in the passenger ticket. Modern consumers expect the size of the print in consumer contracts to be large enough to be visible and readable. New York State, for example, requires consumer transaction contracts to be printed clearly and legibly in fonts not less than “eight points in depth or five and one-half points in depth for upper case type” in order to be admissible as evidence at trial.215 The microscopic terms and conditions in passenger tickets are, clearly, meant to be unreadable. The law protects this practice. In fact, maritime law, which governs the rights and remedies of cruise passengers, preempts all state laws requiring consumer contracts to be in a specific type size.216 In addition, the terms and conditions in passenger tickets are enforceable even though a passenger may be unable to read or understand the language in which the tickets are printed.217

213. Mashburn v. Royal Caribbean Cruises, Ltd., 55 F. Supp. 2d 1367, 1370, 1999 AMC 2475, 2477 (S.D. Fla. 1999), aff’d sub nom. Royal Caribbean Cruises v. Hommen, 214 F.3d 1356 (11th Cir. 2000) (unpublished table decision). 214. In re UFO Chuting of Haw., Inc., 233 F. Supp. 2d 1254, 1260, 2002 AMC 954, 961 (D. Haw. 2001) (limiting liability for parasailing injuries to $25,208); Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 2001 AMC 913 (2001); In re Illusions Holdings, Inc., 78 F. Supp. 2d 238 (S.D.N.Y. 1999) (exonerating vessel owner under Limitation Act); In re Vessel Club Med., 90 F. Supp. 2d 550, 551-52, 2000 AMC 1824, 1825 (D.N.J. 2000) (seeking to limit liability to $80,000); In re Bay Runner Rentals, Inc., 113 F. Supp. 2d 795, 808, 2001 AMC 894, 911 (D. Md. 2000) (denying exoneration under the Limitation Act); In re See N Ski Tours, Inc., No. 98-1300-P-M, 2000 U.S. Dist. LEXIS 2983, at *8 (S.D. Ala. Feb. 25, 2000) (approving settlement of $22,000); Ginop v. A 1984 Bayliner 27’ Cabin Cruiser, 242 F. Supp. 2d 482, 2003 AMC 1200 (E.D. Mich. 2003); In re Seadog Ventures, Inc., No. 98 C 1463, 2000 U.S. Dist. LEXIS 5805, at *2-3 (N.D. Ill. Mar. 30, 2000) (seeking to limit liability to $543,200); Beiswenger Enters. Corp. v. Carletta, 46 F. Supp. 2d 1294, 1999 AMC 2078 (M.D. Fla. 1999); Mashburn, 55 F. Supp. 2d at 1372, 1999 AMC at 2480; see also Tom Perrotta, City Seeks to Limit Liability for Ferry Crash in U.S. Court, N.Y. L.J., Dec. 2, 2003, at 1 (“Facing a stack of legal claims from victims of the Oct. 15 Staten Island Ferry crash, the Bloomberg administration . . . moved to limit New York City’s liability to $14 million and consolidate all lawsuits before a single federal judge.”). 215. N.Y. C.P.L.R. § 4544 (McKinney 2007); see, e.g., Welch v. N.Y. Sports Club Corp., N.Y. L.J., Mar. 21, 2003, at 19 (applying N.Y. C.P.L.R. § 4544 to health club contracts); Hamilton v. Khalife, 735 N.Y.S.2d 564 (App. Div. 2001) (applying same to car rental contracts); Bauman v. Eagle Chase Assocs., 641 N.Y.S.2d 107 (App. Div. 1996) (applying same to home improvement contracts). 216. Lerner v. Karageorgis Lines, Inc., 488 N.E.2d 824, 827, 1986 AMC 1041, 1045-46 (N.Y. 1985) (enforcing a time-limitation provision in four-point type because maritime law preempts New York’s statute requiring consumer contracts to be in eight-point type). 217. Paredes v. Princess Cruises, Inc., 1 F. Supp. 2d 87, 90 (D. Mass. 1998) (enforcing the time-limitations in a passenger ticket even though the passenger could not read English).

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C. Time Limitations: Physical Injury Claims Many states allow injured consumers at least 2.5 years to commence physical-injury lawsuits and up to 6 years for breach-of-contract and fraud claims. Maritime law, however, allows cruise lines to impose very short time limitations for filing claims and commencing lawsuits.

1. One Year in Which To File Suit For physical injuries occurring on cruise vessels that touch U.S. ports,218 passengers may be required to file a claim within six months and commence a lawsuit within one year.219

2. Exceptions to the Rule On occasion, courts may decide not to enforce the one-year time limitation.220

D. Time Limitations: Nonphysical Injury Claims 1. Six Months in Which To File Suit For nonphysical injury claims, cruise lines may impose even shorter time limitation periods.221

218. Lerner, 488 N.E.2d at 827, 1986 AMC at 1045-46 (holding that 46 U.S.C. § 183(b) time limitations apply only to cruise vessels touching U.S. ports). 219. Hughes v. Carnival Cruise Lines, Inc., No. 01 Civ. 9681 (TPG), 2003 WL 1740460 (S.D.N.Y. Mar. 31, 2003) (enforcing the one-year time-limitation period); Stone v. Norwegian Cruise Line, No. CIV. A. 01-1343, 2001 WL 877580 (E.D. Pa. May 15, 2001) (same); Angel v. Royal Caribbean Cruises, Ltd., No. 02-20409-CIV, 2002 WL 31553524 (S.D. Fla. Oct. 22, 2002) (same); Wall v. Mikeralph Travel, Inc., No. CV020079209S, 2002 WL 178770 (Conn. Super. Ct. Jan. 6, 2003) (same); Tateosian v. Celebrity Cruise Servs., Ltd., 768 A.2d 1248 (R.I. 2001) (per curiam) (same); Konikoff v. Princess Cruises, Inc., No. 1999-224, 2001 U.S. Dist. LEXIS 14034 (D.V.I. Aug. 13, 2001) (same); Burriss v. Regency Mar. Corp., No. 93 Civ. 0813 (PKL), 1993 U.S. Dist. LEXIS 8515, 1994 AMC 2355 (S.D.N.Y. June 24, 1993) (same); Berg v. Royal Caribbean Cruises, Ltd., No. 91-4957, 1992 WL 609803, 1994 AMC 806 (D.N.J. Feb. 20, 1992) (same). 220. Ward v. Cross Sound Ferry, 273 F.3d 520, 2002 AMC 428 (2d Cir. 2001) (refusing to enforce a one-year time-limitation clause because the passenger received the ticket two minutes before boarding and did not have proper notice of the clause); Gibbs v. Carnival Cruise Lines, 314 F.3d 125, 2003 AMC 179 (3d Cir. 2002) (refusing to toll the one-year time-limitation period for a minor where the parent did not begin serving as the minor’s guardian ad litem until after the filing of the lawsuit); Long v. Holland Am. Line Westours, Inc., 26 P.3d 430, 436 (Alaska 2001) (refusing to enforce the one-year time-limitation period because passenger “received the [tour] vouchers just days before she was scheduled to embark on her journey, and after she had already paid for the tour”); Dillon v. Admiral Cruises, Inc., 960 F.2d 743, 1992 AMC 2218 (8th Cir. 1992) (finding that the cruise line may be estopped from relying on the one-year time limitation); Rams v. Royal Caribbean Cruise Lines, Inc., 17 F.3d 11, 1994 AMC 1573 (1st Cir. 1994) (refusing to apply the one-year time limitation to accidents that occurred during shore excursions).

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2. Exceptions to the Rule On occasion, courts may decide not to enforce these particularly short time limitations.222

E. Jurisdictional Issues Most consumers purchase cruise tickets from a local retail travel agent. The cruise will depart from one of several domestic ports of call, typically from cities where the cruise line is headquartered, such as New York City or Miami. Modern consumers, perhaps naively, expect to be able to file a complaint or commence a lawsuit over a defective good or service in their local courts. Such is not the rule, however, when it comes to complaints against cruise lines.

1. Marketing Through Travel Agents To be able to sue a cruise line locally, a consumer’s court must have jurisdiction. Even though cruise lines may distribute brochures through, and take orders from, retail travel agents, such marketing activities are insufficient to serve as a basis for jurisdiction.223

221. Insogna v. Princess Cruises, Inc., N.Y. L.J., June 10, 2002, at 37 (enforcing a six-month time-limitation clause in the ticket for filing a claim arising out of a cancelled flight); Boyles v. Cunard Line, Ltd., No. 93 Civ. 5472 (JFK), 1994 U.S. Dist. LEXIS 21449, 1994 AMC 1631 (S.D.N.Y. Jan. 11, 1994) (enforcing a six-month time-limitation to file a lawsuit where plaintiff simply failed to read the contract); Cronin v. Cunard Line Ltd., 672 N.Y.S.2d 864, 1998 AMC 2367 (App. Div. 1998) (enforcing a six-month time-limitation period in which to file a lawsuit where the plaintiffs conceded that they were apprised of the facts underlying their claim within the six-month period). 222. Barton v. Princess Cruises, Inc., No. B123107, 2002 WL 31677178, at *7 (Cal. Ct. App. Nov. 27, 2002) (finding that a clause in a passenger ticket requiring the filing of a written notice of claims within fifteen days and the filing of a lawsuit within ninety days may be unenforceable if it was “unreasonable under the circumstances in that plaintiffs could not with reasonable diligence have discovered their injuries within the limitation periods.”); Johnson v. Commodore Cruise Lines, Ltd., 897 F. Supp. 740, 1996 AMC 666 (S.D.N.Y. 1995) (holding that the six-month time-to-sue provision in plaintiff’s ticket was invalid because the claim for negligent infliction of emotional distress was governed by Mississippi’s three-year statute of limitations). 223. Falcone v. Mediterranean Shipping Co., No. 01-3918, 2002 U.S. Dist. LEXIS 11392, at *5 (E.D. Pa. Apr. 3, 2002) (finding that there is no general jurisdiction over an independent local travel agent that has “no authority to confirm reservations”); Duffy v. Grand Circle Travel, Inc., 756 N.Y.S.2d 176, 177 (App. Div. 2003) (finding that there were insufficient business contacts with the state of New York to exercise jurisdiction over a Massachusetts cruise company for a passenger’s injury suffered in France); Sanderman v. Costa Cruises Inc., 55 Pa. D. & C.4th 328, 332 (Ct. Com. Pl. 2001) (finding no specific jurisdiction over a cruise line that was not a part of the contract in Pennsylvania); Kauffman v. Ocean Spirit Shipping Ltd., No. 4:90-cv-49, 1990 WL 483909, at *1, 1993 AMC 179, 180 (W.D. Mich. Oct. 15, 1990) (finding that paying commissions to Michigan travel agents for booking Michigan residents’ reservations,

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2. The “Solicitation Plus” Doctrine The “solicitation plus” doctrine governs jurisdiction in travel cases with the “plus” equivalent to contract formation in the local forum.224 With the possible exception of Internet sales through interactive Web sites,225 courts have generally held that contract formation does not take place at the consumer’s location. Some courts, however, have been willing to assume jurisdiction on little more than local advertising.226

3. Jurisdiction over Internet Travel Services Increasingly, travel services, including cruises, are being sold over the Internet either directly by suppliers or through Internet travel sellers such as Expedia and Travelocity.227

4. Jurisdiction: Agent and Phone Number in Forum If a foreign excursion operator advertises the availability of its services together with a local phone number in the forum and does business through an agent, then the assertion of personal jurisdiction may be appropriate.228

disseminating brochures, and advertising in magazines is insufficient to confer personal jurisdiction over a foreign corporation under Michigan’s long-arm statute). 224. Afflerbach v. Cunard Line, Ltd., 14 F. Supp. 2d 1260, 1266, 1999 AMC 283, 290 (D. Wyo. 1998) (finding that national advertising of cruise vacations and sales through travel agents in Wyoming is insufficient for general jurisdiction over a British corporation). 225. See Thomas A. Dickerson, False, Misleading & Deceptive Advertising in the Travel Industry: The Consumer’s Rights & Remedies 2003, CLASS ACTION LITIG. INFO. § D (Oct. 22, 2003), http://www.classactionlitigation.com/library/False%20Advertising%20Web.htm. 226. Nowak v. Tak How Inv. Ltd., 899 F. Supp. 25 (D. Mass. 1995), aff’d, 94 F.3d 708 (1st Cir. 1996) (weighing factors in favor of exercising jurisdiction and noting that a cruise line’s availability for litigation in a local forum is the reasonable cost of doing business in the forum). 227. For a discussion on establishing jurisdiction over Internet travel sellers, see Thomas A. Dickerson, Cheryl E. Chambers & Jeffrey A. Cohen, Personal Jurisdiction and the Marketing of Goods and Services on the Internet, 41 HOFSTRA L. REV. 31 (2012). 228. For example, the court in Meyer v. Carnival Corp. held that it had personal jurisdiction over an excursion operator under Florida’s long-arm statute. 938 F. Supp. 2d 1251, 1261 (S.D. Fla. 2013). The plaintiff took the defendant operator’s “excursion to the Piton’s, the eroded remnants of two volcanic formations on the southwestern coast of the island of St. Lucia,” where he was injured. Id. at 1254. The excursion operator had given Carnival authority to market and sell tickets for its excursion operators. Id. at 1260. However, the defendant operator’s Web site included a phone number with the area code for Miami-Dade County, and the court accordingly found that it had personal jurisdiction over the company. Id. at 1259, 1261.

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5. Jurisdiction and Territorial Waters Jurisdictional issues may arise when an accident occurs in territorial waters229 and may involve in rem claims against a ship.230

F. Forum Selection and Mandatory Arbitration Clauses Passenger tickets may contain a forum selection clause and a choice-of-law clause, both of which can have a negative impact on the passenger’s ability to prosecute their claim. A forum selection clause may require that all passenger lawsuits be brought in the local court where the cruise line is headquartered.231 Recently, cruise lines have sought to require passengers to resolve their disputes in the context of mandatory arbitration proceedings.232

1. Forum Selection Clauses Are Generally Enforceable Generally speaking, courts will enforce forum selection clauses provided they were validly entered into, and under some circumstances where the forum selection clause appears in terms and conditions only accessible in an Internet hyperlink.233 For example, in the recent case of

229. Benson v. Norwegian Cruise Line Ltd., 859 So. 2d 1213, 1215, 2003 AMC 2973, 2974-75 (Fla. Dist. Ct. App. 2003) (finding personal jurisdiction under the Florida long-arm statute because the tortious act of the ship’s medical doctor occurred while the vessel was in Florida territorial waters); Rana v. Flynn, 823 So. 2d 302, 303 (Fla. Dist. Ct. App. 2002) (finding personal jurisdiction over the ship’s doctor because the tortious conduct occurred in Florida waters); Pota v. Holtz, 852 So. 2d 379, 382, 2003 AMC 2443, 2445-46 (Fla. Dist. Ct. App. 2003) (finding personal jurisdiction over a ship’s doctor was obtained by personal service while aboard a ship docked in a Florida port). 230. Freret Marine Supply v. M/V Enchanted Capri, No. 00-3805, 2002 U.S. Dist. LEXIS 5130 (E.D. La. Mar. 8, 2002), aff’d sub nom. Freret Marine Supply v. Harris Trust & Savings Bank, 73 F. App’x 698 (5th Cir. 2003). 231. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 1991 AMC 1697 (1991). 232. See Gilroy v. Seabourn Cruise Line, Ltd., No. C12-107Z, 2012 WL 1202343, at *4 (W.D. Wash. Apr. 10, 2012) (holding that the arbitration clause in a passenger’s ticket is binding and valid). 233. Chapman v. Norwegian Cruise Line Ltd., No. 01 C 50004, 2001 U.S. Dist. LEXIS 9360, at *4-5 (N.D. Ill. July 5, 2001) (“A forum selection clause is enforceable unless (1) ’the incorporation of the clause was the result of fraud, undue influence, or overweening bargaining power; (2) the selected forum is so gravely difficult and inconvenient that [the complaining party] will for all practical purposes be deprived of its day in court; or (3) enforcement . . . would contravene a strong public policy of the forum in which the suit is brought . . . .’” (alterations in original) (quoting AAR Int’l, Inc. v. Nimelias Enters. S.A., 250 F.3d 510, 525 (7th Cir. 2001))); Heinz v. Grand Circle Travel, 329 F. Supp. 2d 896, 904, 2004 AMC 2020, 2029 (W.D. Ky. 2004) (Basel, Switzerland, forum selection clause enforced); Schlessinger v. Holland Am., N.V., No. BC278939, 2003 WL 21371851, at *4-5, 2003 AMC 892, 897 (Cal. App. Dep’t Super. Ct. Jan. 29, 2003) (Washington forum selection clause enforced); Hughes v. Carnival Cruise Lines, Inc., No. 01 Civ. 9681(TPG), 2003 WL 1740460, at *1 (S.D.N.Y. Mar. 31, 2003) (Florida forum selection clause enforced); Pratt v. Silversea Cruises, Ltd., No. C 05-0693 SI, 2005 WL 1656891,

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Starkey v. GAP Adventures, Inc., 234 Starkey, a New York resident, purchased a nine-day tour of the Galapagos Islands provided by a Canadian tour operator. “The trip . . . was scheduled for October 2011 and cost $5,000. . . . After she purchased her ticket, Starkey received a confirmation email, confirmation invoice, and service voucher,” none of which contained any forum selection and choice of law clauses. However, each of these three communications stated “that in purchasing her ticket, Starkey read, understood and agreed to the contract’s ‘Terms and Conditions,’” which were available for review by clicking on a hyperlink leading to a separate Web page. Starkey, like many consumers, did not click on the hyperlink. If she had clicked on the hyperlink and read the thirty-second paragraph, she may have noticed a provision stating “that the ‘Terms and Conditions and Conditions of Carriage including all matters arising from it are subject to Ontario and Canadian Law and the exclusive jurisdiction of the Ontario and Canadian Courts.’”235 Starkey claimed that a tour leader sexually assaulted her during the Galapagos tour. Upon her return home Starkey complained to Gap Adventures (Gap) and underwent “psychological therapy.” In the subsequent lawsuit, Starkey alleged that Gap was negligent in hiring and training the tour leader and was “liable under the tort laws of both the United States and Canada” and “request[ed] one million dollars in compensatory damages plus attorneys’ fees.”236 As the court noted, the central issue in the case was the enforceability of the Ontario, Canada, forum selection clause, which lurked in the hyperlink-accessible Web page that Starkey never read. “The legal effect of a forum-selection clause depends in the first instance upon whether its existence was reasonably communicated to the plaintiff.”237 Starkey asserted that Gap should have set forth its “Terms and Conditions,” including the forum selection clause, “in the body of at *4, 2006 AMC 99, 104 (N.D. Cal. July 13, 2005) (Florida forum selection clause enforced); Morrow v. Norwegian Cruise Line Ltd., 262 F. Supp. 2d 474, 476 (M.D. Pa. 2002) (Florida forum selection clause enforced); Falcone v. Mediterranean Shipping Co., No. 01-3918, 2002 U.S. Dist. LEXIS 11392, at *9-10 (E.D. Pa. Apr. 3, 2002) (Italy forum selection clause enforced); Ferketich v. Carnival Cruise Lines, No. 02-CV-3019, 2002 WL 31371977, at *6, 2002 AMC 2956, 2964-65 (E.D. Pa. Oct. 17, 2002) (Florida forum selection clause enforced); Enderson v. Carnival Cruise Lines, Inc., No. 5:00CV160-H, 2001 U.S. Dist. LEXIS 1608, at *13 (W.D.N.C. Feb. 7, 2001) (Florida forum selection clause enforced); Elliott v. Carnival Cruise Lines, 231 F. Supp. 2d 555, 563, 2003 AMC 1055, 1061 (S.D. Tex. 2002) (Florida forum selection clause enforced); Tateosian v. Celebrity Cruise Servs., Ltd., 768 A.2d 1248, 1252 (R.I. 2001) (per curiam) (New York forum selection clause enforced). 234. No. 12 Civ. 07837, 2014 WL 1271233 (S.D.N.Y. Mar. 27, 2014). 235. Id. at *1. 236. Id. at *2. 237. Effron v. Sun Line Cruises, Inc., 67 F.3d 7, 9, 1996 AMC 253, 256 (2d Cir. 1995).

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2. Notice Must Be Adequate Notice of the forum selection clause should be adequate,243 and they should be reasonable and fair.244

238. Starkey, 2014 WL 1271233, at *2. 239. Id. at *3 (citing Fteja v. Facebook, Inc., 841 F. Supp. 2d 829, 839 (S.D.N.Y. 2012)). 240. Id. 241. Id. at *4. 242. Id. (quoting Street, Sound Around Electronics, Inc. v. M/V Royal Container, 30 F. Supp. 2d 661, 663, 1999 AMC 1805, 1808 (S.D.N.Y. 1999) (internal quotation marks omitted)). Many other courts have similarly enforced online arbitration clauses accessible via hyperlink. See, e.g., Guadagno v. E*Trade Bank, 592 F. Supp. 2d 1263, 1271 (C.D. Cal. 2008) (“[A] reasonably prudent offeree would have noticed the link and reviewed the terms before clicking on the acknowledgment icon.”); Hubbert v. Dell Corp., 835 N.E.2d 113, 121 (Ill. App. Ct. 2005) (“The blue hyperlinks . . . should be treated the same as a multipage written paper contract.”). The enforceability of online mandatory arbitration clauses, however, remains unsettled. See, e.g., Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 35-38 (2d Cir. 2002) (finding a mandatory arbitration clause contained in an online licensing agreement unenforceable). 243. Casavant v. Norwegian Cruise Line, Ltd., 829 N.E.2d 1171, 1175, 2005 AMC 2239, 2242 (Mass. App. Ct. 2005) (refusing to enforce a forum selection clause because the passenger’s ticket was delivered only thirteen days before the cruise); Ward v. Cross Sound Ferry, 273 F.3d 520, 522, 525, 2002 AMC 428, 429, 433 (2d Cir. 2001) (refusing to enforce a forum selection clause because the passenger obtained the ticket “just two to three minutes before boarding the ferry” and “possession of the ticket for such a short period of time was insufficient to give . . . reasonable notice that the ticket contained important contractual limitations”); Osborn v. Princess Tours, Inc., No. H-94-3516, 1995 WL 686632, at *1-2, 1995 AMC 2119, 2120-21 (S.D. Tex. June 22, 1995) (enforcing a forum selection clause where the passenger had “ample opportunity to examine its contents”); Schaff v. Sun Line Cruises, Inc., 999 F. Supp. 924, 927 (S.D. Tex. 1998)

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3. Federal Court Forum Selection Clauses Recently, several major cruise lines have drafted and implemented a forum selection clause that not only requires that all lawsuits be brought in a specific state such as Florida or Washington, but that the lawsuit must also be brought in a federal district court within that state. The enforcement of what amounts to a “sovereign selection clause” may have the effect of eliminating jury trials otherwise available in state court.245 In 2002, Carnival began including federal forum provisions in passenger tickets for its Carnival Cruise Lines brand. The relevant clause reads: It is agreed by and between the Guest and Carnival that all disputes and matters arising under, or in connection with or incident to this Contract or the Guest’s cruise, including travel to and from the vessel, shall be litigated, if at all, before the United States District Court for the Southern District of Florida in Miami, or as to those lawsuits to which the Federal Courts of the United States lack subject matter jurisdiction, before a court located in

(refusing to enforce a forum selection clause for Athens, Greece, because the ticket was delivered too late to allow the consumer to seek a refund). 244. Shute, 499 U.S. at 595, 1991 AMC at 1704 (explaining that forum selection clauses are subject to judicial scrutiny for fundamental fairness). 245. See, e.g., Garnand v. Carnival Corp., No. G-06-024, 2006 WL 1371045, at *1 (S.D. Tex. May 16, 2006) (enforcing a Florida forum selection clause providing that any lawsuits “shall be litigated, if at all, before the United States District Court for the Southern District of Florida in Miami”); Taylor v. Carnival Corp., No. 05-CV-72656, 2006 WL 508632, at *3 (E.D. Mich. Mar. 1, 2006) (refusing to enforce a Florida federal court forum selection clause because of a factual dispute as to whether the passenger received the ticket prior to embarking); Farries v. Imperial Majesty Cruise Line, No. C-06-1656 (JCS), 2006 WL 2472189, at *5, 2006 AMC 2253, 2259 (N.D. Cal. Aug. 24, 2006) (enforcing a forum selection clause providing that all lawsuits must be litigated in a court located in Broward County, Florida, or the United States District Court for the Southern District of Florida); Oltman v. Holland Am. Line-USA, Inc., No. C05-1408JLR, 2006 WL 2222293, at *1, 2006 AMC 2550, 2551 (W.D. Wash. Aug. 1, 2006), rev’d, 538 F.3d 1271, 2008 AMC 1960 (9th Cir. 2008) (“A forum-selection clause in the cruise contract required Plaintiffs to bring their lawsuit in [federal] court.”); Barry v. Carnival Corp., 424 F. Supp. 2d 1354, 1357 (S.D. Fla. 2006) (challenging a federal court forum selection clause on grounds that it deprived the plaintiffs of their constitutional right to trial by jury); Assiff v. Carnival Corp., 930 So. 2d 776, 778 (Fla. Dist. Ct. App. 2006) (finding that a federal court forum selection clause did not permit the state trial court to transfer the action to a federal court); Carnival Corp. v. Middleton, 941 So. 2d 421, 425, 2006 AMC 2812, 2815 (Fla. Dist. Ct. App. 2006) (enforcing a federal court forum selection clause and dismissing the refiled case in federal court because it was time barred); Finkelschtein v. Carnival Cruise Lines, 2006 WL 1492469, at *3 (N.J. Super. Ct. App. Div. June 1, 2006) (enforcing a Florida federal court forum selection clause); Oltman v. Holland Am. Line USA, Inc., 148 P.3d 1050, 1058 (Wash. Ct. App. 2006), aff’d in part, rev’d in part, 178 P.3d 981, 2008 AMC 2891 (Wash. 2008) (en banc) (enforcing a Washington federal court forum selection clause); see also Eriksen, supra note 74, at 22 (“For all of the last century, and for most of the current one, nearly all major cruise carriers have complied with the Saving to Suitors Clause by employing ticket provisions offering all passengers their ‘historic option’ to sue the carrier in state court (subject, of course, to a defendant’s right to remove an appropriate diversity case from state to federal court pursuant to 28 U.S.C. § 1441).”).

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Miami-Dade County, Florida, U.S.A., to the exclusion of the Courts of any other county, state or country.246 Norwegian Cruise Line (NCL) adopted an identical clause in 2005. These provisions operate, without expressly saying so, to require suit in a nonjury federal admiralty court for all claims failing any requirement for federal diversity (law side) jurisdiction (namely, citizenship or amount in controversy). Federal forum provisions in cruise tickets are neither authorized nor required by any government regulation, statute, or treaty. They are the carriers’ creation for proprietary use with their own particular passengers. No carrier has publically announced its reasons for attempting to federalize all its passenger claims. One plausible explanation is forum shopping. A carrier cannot deny a nondiversity passenger-suitor a jury trial in state court, but can in federal court where bench trials produce significantly lower median damage awards than jury trials in comparable cases. Practically, however, economies of scale simply make state court the only common sense fit for many relatively minor, albeit meritorious, cruise-related disputes, which would be deterred altogether if they had to be pursued as proverbial federal cases.

4. Application to Nonsignatories May a nonsignatory to the passenger contract such as a tour operator benefit from a contractual forum selection clause? The answer is yes, according to the court in Morag v. Quark Expeditions, Inc.247 The Morag court held:

246. Plaintiffs’ Response to Defendant Carnival’s Motion To Strike Affidavit of Roger A. Vaughan, Jr. at 3, Barry, 424 F. Supp. 2d 1354(No. 05-22551-CIV), 2006 WL 1046048. 247. No. 3:07-cv-1062 (PCD), 2008 WL 3166066, 2009 AMC 2309 (D. Conn. Aug. 5, 2008); see also Oran v. Fair Wind Sailing, Inc., No. 08-0034, 2009 WL 4349321, at *13 (D.V.I. Nov. 23, 2009) (holding that the plaintiff’s release applied to a nonsignatory); Bernstein v. Wysoki, 907 N.Y.S.2d 49, 57 (App. Div. 2010) (concluding that a forum selection clause in a camp contract could not be relied upon by the nonsignatory medical personnel who treated the camper at a local hospital because they “do not have a sufficiently close relationship with the Camp such that enforcement of the forum selection clause . . . was foreseeable to the plaintiffs by virtue of that relationship”). In Hofer v. The Gap, Inc., the traveler was injured “when a ‘flip-flop’ sandal that she was wearing broke while she was descending a stairway, which made her . . . fall into an ornamental pond containing sharp rocks.” In the subsequent lawsuit against, inter alia, Expedia, Inc., which had sold the tour online, the issue arose as to the enforceability of Expedia’s liability disclaimer that “[t]he . . . hotels and other suppliers providing . . . services for Expedia, Inc., are independent contractors and not agents or employees of Expedia, Inc., [which] [is] not liable for the acts [of] negligence of any such suppliers.” 516 F. Supp. 2d 161, 165, 174-75 (D. Mass. 2007) (third alteration in original). Expedia’s “Terms and Conditions” containing the disclaimer were accessible in the sense “that in order to finalize the reservation [the purchaser]

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A non-party to a contract may invoke a contractual forum selection clause if the non-party is “closely related” to one of the signatories to the contract such that “the non-party’s enforcement of the . . . clause is foreseeable by virtue of the relationship between the signatory and the party sought to be bound. . . . There is no question that Quark is closely related to the dispute and that its relation to the ticket-contract was foreseeable.248

5. The Importance of Forum Selection Clauses Stated simply, it is less expensive and more convenient for injured passengers to hire an attorney and sue in a local court than to travel to, and prosecute their claim in, Greece,249 Italy,250 the state of Washington,251 or Miami, Florida.252 When faced with prosecuting a claim in a distant forum, some passengers may be discouraged from doing so. This is the practical result of enforcing forum selection clauses and explains why cruise lines favor their use in passenger tickets.

6. Cancellation Fees and Adequacy of Notice To be enforceable, forum selection clauses in cruise tickets or brochures must be fundamentally fair.253 Fundamental fairness means (1) that the forum was not selected to discourage pursuit of legitimate claims, (2) there was no fraud or overreaching, (3) notice of the forum had to ‘click through’ Expedia’s Web Site Terms, Conditions and Notices, which included the liability disclaimer.’” Id. at 174. Of particular interest in Hofer is the fact that the plaintiff never used Expedia’s Web site because her companion made all the reservations. Nonetheless, the court held that Hofer would be bound by the Expedia online disclaimer of liability. Id. at 176. Whether nonsignatories should be bound by the terms and conditions of travel contracts still remains unsettled. See D’Elia v. Grand Caribbean Co., No. 09-1707 (NLH) (KMW), 2011 WL 6153704 (D.N.J. Dec. 12, 2011) (holding that a Mexico forum selection clause was inapplicable to a nonsignatory). 248. Morag, 2008 WL 3166066, at *5-6, 2009 AMC at 2317 (quoting Cfirstclass Corp. v. Silverjet PLC, 560 F. Supp. 2d 324, 328 (S.D.N.Y. 2008)). 249. Effron v. Sun Line Cruises, Inc., 67 F.3d 7, 11, 1996 AMC 253, 259 (2d Cir. 1995) (finding the plaintiff’s arguments about the financial difficulty of litigating in Greece to be “less than persuasive when made by someone who owns homes in Palm Beach and New York and who has just returned from an expensive foreign vacation”). 250. Hodes v. S.N.C. Achille Lauro ed Altri-Gestione, 858 F.2d 905, 916, 1988 AMC 2829, 2846 (3d Cir. 1988) (rejecting plaintiff’s assertions that “financial, linguistic, and cultural difficulties posed by an Italian lawsuit would prove insurmountable”). 251. Carron v. Holland Am. Line-Westours Inc., 51 F. Supp. 2d 322, 326, 1999 AMC 2206, 2210 (E.D.N.Y. 1999) (“[C]oast to coast traveling has become commonplace in today’s high-tech, modernized, global world.”). 252. Hicks v. Carnival Cruise Lines, Inc., No. 93-5427, 1994 U.S. Dist. LEXIS 10194, 1995 AMC 281 (E.D. Pa. July 26, 1994). 253. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595, 1991 AMC 1697, 1704 (1991).

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254. See, e.g., id.; Cismaru v. Radisson Seven Seas Cruises, Inc., No. 07-00-00100-CV, 2001 WL 6546, at *1 (Tex. App. Jan. 2, 2001); Stobaugh v. Norwegian Cruise Line Ltd., 5 S.W.3d 232, 235, 2001 AMC 215, 218 (Tex. App. 1999). 255. Lavoie v. Suncruz Casino Cruises, LLC, No. 4:08-cv-2183-RBH, 2009 WL 425815, at *3, 2009 AMC 781, 785 (D.S.C. Feb. 18, 2009) (refusing to enforce a forum selection clause because the passenger did not have a reasonable time to reject the clause); Cismaru, 2001 WL 6546, at *2 (refusing to enforce a Florida forum selection clause because the passenger received the cruise contract twenty-one days before departure); Casavant v. Norwegian Cruise Line, Ltd., 829 N.E.2d 1171, 1175, 2005 AMC 2239, 2242 (Mass. App. Ct. 2005) (refusing to enforce a forum selection clause when passengers cancelled a cruise a few days after September 11, 2001); Long v. Holland Am. Line Westours, Inc., 26 P.3d 430, 436 (Alaska 2001) (refusing to enforce a forum selection clause when a passenger “received the vouchers just days before she was scheduled to embark on her journey, and after she had already paid for the tour”); Ward v. Cross Sound Ferry, 273 F.3d 520, 522, 2002 AMC 428, 429 (2d Cir. 2001) (refusing to enforce a forum selection clause when a passenger obtained the ticket “just two or three minutes before boarding the ferry”); McTigue v. Regal Cruises, Inc., No. 97 Civ. 7444 (JSM), 1998 U.S. Dist. LEXIS 5568 (S.D.N.Y. Apr. 22, 1998); Schaff v. Sun Line Cruises, Inc., 999 F. Supp. 924, 927 (S.D. Tex. 1998) (refusing to enforce a Greece forum selection clause because the passenger received the ticket four days before departure and cancellation would have resulted in a 100% penalty); Grivesman v. Carnival Cruise Lines, No. 00 C 2091, 2001 U.S. Dist. LEXIS 661, at *8 (N.D. Ill. Jan. 24, 2001) (enforcing a Florida forum selection clause because passengers received the ticket early enough to have “forfeited only their deposit if they had canceled their trip at that time”); Corna v. Am. Haw. Cruises, Inc., 794 F. Supp. 1005, 1011-12, 1992 AMC 1787, 1795-96 (D. Haw. 1992) (refusing to enforce a California forum selection clause because the tickets were received two days before the cruise and cancellation would have resulted in a 100% cancellation fee); Stobaugh, 5 S.W.3d at 235-36, 2001 AMC at 218-19 (refusing to enforce a Florida forum selection clause because passengers received the ticket twenty-three days before departure and immediate cancellation would have resulted in a $400 penalty). 256. Ferketich v. Carnival Cruise Lines, No. 02-CV-3019, 2002 WL 31371977, at *5, 2002 AMC 2956, 2962-63 (E.D. Pa. Oct. 17, 2002) (“Although [passenger] would be subject to a $350 cancellation fee . . . we believe [passenger] had adequate and reasonable notice to support enforcing the forum selection clause despite the cancellation fee.”); Elliott v. Carnival Cruise Lines, 231 F. Supp. 2d 555, 561, 2003 AMC 1055, 1061 (S.D. Tex. 2002) (enforcing a forum selection clause despite the fact that “fifty percent of the purchase price was refundable”); Natale v. Regency Mar. Corp., No. 94 Civ. 0256 (LAP), 1995 U.S. Dist. LEXIS 3413, at *8-9 (S.D.N.Y. Mar. 15, 1995) (enforcing a time-limitation clause notwithstanding the 90% cancellation penalty); Boyles v. Cunard Line, Ltd., No. 93 Civ. 5472 (JFK), 1994 U.S. Dist. LEXIS 21449, at *11-12, *14, 1994 AMC 1631, 1636-38 (S.D.N.Y. Jan. 11, 1994) (finding a ticket contract enforceable notwithstanding the significant cancellation fee); Hicks v. Carnival Cruise Lines, Inc., No. 93-5427, 1994 U.S. Dist. LEXIS 10194, at *16, 1995 AMC 281, 288 (E.D. Pa. July 26, 1994) (finding the contract terms not necessarily unreasonable because of the imposition of penalties if the passenger canceled); Lauri v. Cunard Line Ltd., No. 00-CV-70656-DT, 2000 U.S. Dist. LEXIS 8627, at *7 (E.D. Mich. May 15, 2000) (enforcing a Florida forum selection clause even though immediate cancellation after receipt of the ticket would have resulted in a 100% penalty); Bounds v. Sun Line Cruises, Inc., 1997 AMC 25, 28-29 (C.D. Cal. 1996) (enforcing a Greece

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7. Physical Disabilities Exception Some courts have refused to enforce a forum selection clause on public policy grounds.258

G. Choice-of-Law Clauses In addition to forum selection clauses, passenger tickets may also designate the law to be applied in resolving any dispute that may arise. The law selected may be that of the Bahamas, 259 China, 260 Italy, 261 England,262 or France,263 or the law applied pursuant to the Strasbourg forum selection clause notwithstanding the minimum cancellation penalty of 25% “no matter when they purchased the ticket”); Cross v. Kloster Cruise Lines, Ltd., 897 F. Supp. 1304, 1308-09, 1996 AMC 1215 (D. Or. 1995) (AMC reporter summarizing case) (enforcing a Florida forum selection clause notwithstanding a $400 cancellation penalty); Schulz v. Holland Am.-Line Westours, Inc., No. 99-0621-FT, 1999 WL 693461, at *1 (Wis. Ct. App. Sept. 8, 1999) (per curiam) (enforcing a time-limitation clause). 257. Sub-Zero Freezer Co. v. Cunard Line Ltd., No. 01-C-0664-C, 2002 WL 32357103, at *6 (W.D. Wis. Mar. 12, 2002) (refusing to enforce a cancellation clause because it did not represent “a reasonable substitute for defendant’s actual damages”). 258. In Walker v. Carnival Cruise Lines, a travel agent had been informed that the passenger was disabled, used a wheelchair, and would require a disabled accessible guest room and disabled accessible facilities. 107 F. Supp. 2d 1135, 1136, 2001 AMC 741, 742 (N.D. Cal. 2000). Although the cruise line and the travel agent assured the passenger that the ship and his room would be disabled accessible, he discovered that neither his room nor the ship were disabled accessible. Id. at 1137, 2001 AMC at 742. While the passenger claimed misrepresentations and a violation of the ADA, the cruise line sought to enforce a forum selection clause and transfer the case from California to Florida. Initially, the court granted the cruise line’s request, finding the forum selection clause reasonable and fair and dismissing the case. Walker v. Carnival Cruise Lines, 63 F. Supp. 2d 1083, 1090 (N.D. Cal. 1999). Upon reconsideration, the court refused to enforce the Florida forum selection clause for two reasons. “[F]irst, the fact that plaintiffs’ physical disabilities and economic constraints are so severe that, in combination, they would preclude plaintiffs from having their day in court and, second, the fact that plaintiffs are seeking to vindicate important civil rights.” Walker, 107 F. Supp. 2d at 1138, 2001 AMC at 744. But see Caputo v. Holland Am. Line, Inc., No. 08-CV-4584 (CPS) (SMG), 2009 WL 2258326, at *4 (E.D.N.Y. July 29, 2009) (enforcing a Washington forum selection clause despite an elderly plaintiff’s claim that the clause violated public policy); Pratt v. Silversea Cruises, Ltd., No. C 05-0693 SI, 2005 WL 1656891, at *4, 2006 AMC 99, 104 (N.D. Cal. July 13, 2005) (enforcing a Florida forum selection clause against a plaintiff with a physical disability). 259. Kirman v. Compagnie Francaise De Croisieres, 1994 AMC 2848 (Cal. Super. Ct. 1993) (enforcing a Bahamian choice-of-law clause). 260. Jewel Seafoods Ltd. v. M/V Peace River, 39 F. Supp. 2d 628, 1999 AMC 2053 (D.S.C. 1999) (enforcing a Chinese choice-of-law clause). 261. Falcone v. Mediterranean Shipping Co., No. 01-3918, 2002 U.S. Dist. LEXIS 11392 (E.D. Pa. Apr. 3, 2002) (enforcing an Italian choice-of-law clause). 262. Morag v. Quark Expeditions, Inc., No. 3:07-cv-1062 (PCD), 2008 WL 3166066, 2009 AMC 2309 (D. Conn. Aug. 5, 2008) (enforcing a London forum selection clause).

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Convention.264 In determining whether choice-of-law clauses should be enforced, the courts may consider several factors, including (1) the place of the wrongful act, (2) the law of the flag, (3) the allegiance of domicile of the injured passenger, (4) the allegiance of the ship owner, (5) the place of the contract, (6) the inaccessibility of the foreign forum, and (7) the law of the forum.265 Choice-of-law clauses are generally enforceable unless the passenger can demonstrate that enforcement would be unreasonable to prevent fraud or overreaching266 or that “enforcement would contravene a strong public policy of the forum in which suit is brought.”267 The law to be applied to an injured passenger’s claim can have a dramatic impact on the likelihood of recovering proper damages. For example, in a wrongful death case involving a crash in China in which two Americans were killed, the court, relying on New York choice-of-law rules, decided to apply Chinese law, which limited the maximum recoverable damages to $20,000.268 In another case, a traveler was seriously injured when she was thrown from a horse during a vacation in the Bahamas. She sued the several Bahamian entities she considered most responsible for her injuries. However, the application of the Foreign Sovereign Immunities Act meant that the foreign entities would be insulated from any liability.269 In yet another instance, a traveler slipped and fell on an unlighted path while vacationing in Mexico. At issue was whether the court should apply Arizona or Mexican law to determine recoverable damages. The difference was dramatic. Mexico allowed no more than twenty-five pesos per day in lost wage claims, while Arizona had no such limits. The court applied the more generous

263. Seung v. Regent Seven Seas Cruises, Inc., 393 F. App’x 647 (11th Cir. 2010) (enforcing a French forum selection clause); Burns v. Radisson Seven Seas Cruises, Inc., 867 So. 2d 1191, 2004 AMC 769 (Fla. Dist. Ct. App. 2004). 264. Heinz v. Grand Circle Travel, 329 F. Supp. 2d 896, 2004 AMC 2020 (W.D. Ky. 2004) (enforcing a Basel, Switzerland, forum selection clause in a cruise contract that also provided that liability issues would be resolved pursuant to the Strasbourg Convention). 265. Klinghoffer v. S.N.C. Achille Lauro, 795 F. Supp. 112, 115-16, 1993 AMC 1387, 1392-94 (S.D.N.Y. 1992). 266. Long v. Holland Am. Line Westours, Inc., 26 P.3d 430, 431 (Alaska 2001) (applying Alaska law even though choice-of-law clause in tour contract stated that “except when maritime law applied, the contract would be construed according to Washington state law”). 267. Milanovich v. Costa Crociere, S.P.A., 954 F.2d 763, 768, 1993 AMC 1034, 1040 (D.C. Cir. 1992) (quoting The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 1972 AMC 1407, 1418 (1972)). 268. Barkanic v. Gen. Admin. of Civil Aviation of China, 923 F.2d 957 (2d Cir. 1991). 269. Tucker v. Whitaker Travel, Ltd., 620 F. Supp. 578 (E.D. Pa. 1985), aff’d, 800 F.2d 1140 (3d Cir.).

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58 TULANE MARITIME LAW JOURNAL [Vol. 38:1 law of Arizona.270 Just the opposite happened in a case involving an accident on a water slide at a Mexican hotel in which the court applied Mexican damages law resulting in a severe limit on the plaintiff’s pain and suffering damages.271

H. Disclaimers of Liability for Onboard Accidents As a general rule, cruise ships are common carriers and are held to a reasonable standard of care.272 The passenger ticket will contain a host of nearly invisible clauses, many of which seek to disclaim liability for a variety of problems that may arise during the cruise. As with consumer contracts on dry land, instances of gross negligence and intentional misconduct may not be disclaimed by common carriers.273 Additionally, some courts have held that disclaimers of simple negligence, particularly regarding the health and safety of passengers, are ineffective and unenforceable.274 However, as noted in Part IV.I, some courts will enforce passenger ticket contract provisions that disclaim any implied warranty of merchantability.275

I. Disclaimer of Liability for Medical Malpractice by Ship’s Doctor Traditionally, cruise ships have not been held vicariously liable for the medical malpractice of the ship’s doctor or medical staff.276 This policy is unfair and has been criticized by some courts 277 and commentators.278

270. Wendelken v. Superior Court, 671 P.2d 896, 899 (Ariz. 1983) (en banc). 271. Feldman v. Acapulco Princess Hotel, 520 N.Y.S.2d 477, 478 (Sup. Ct. 1987). 272. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 629-30, 1959 AMC 597, 601 (1959). 273. Royal Ins. Co. of Am. v. Sw. Marine, 194 F.3d 1009, 1016, 1999 AMC 2873, 2879 (9th Cir. 1999). 274. Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1334, 1985 AMC 826, 828 (11th Cir. 1984) (refusing to enforce clauses in a cruise contract that disclaimed all liability for the discomfort of passengers and negligence of the vessel after malfunctioning toilets ruined a cruise vacation). 275. See supra notes 120-123 and accompanying text. 276. Barbetta v. S/S Bermuda Star, 848 F.2d 1364, 1988 AMC 2650 (5th Cir. 1988) (finding the cruise ship not liable for medical malpractice of the ship’s doctor in failing to discover during treatment that a passenger had diabetes); Stires v. Carnival Corp., 243 F. Supp. 2d 1313 (M.D. Fla. 2002) (dismissing a medical malpractice claim against cruise ship for negligent acts by the ship’s doctor and nurse); Cimini v. Italia Crociere Int’l S.P.A., 1981 AMC 2674 (S.D.N.Y. 1981) (enforcing a cruise ship’s disclaimer of liability for malpractice of the ship’s doctor). 277. Nietes v. Am. President Lines, Ltd., 188 F. Supp. 219, 220-21, 1960 AMC 1603, 1605 (N.D. Cal. 1959) (finding the cruise line vicariously liable for medical malpractice of the ship’s doctor who was a member of the crew); Fairley v. Royal Cruise Line Ltd., 1993 AMC 1633,

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In Carlisle v. Carnival Corp. a fourteen-year-old female passenger became “ill with abdominal pain, lower back pain and diarrhea and was seen several times in the ship’s hospital by the ship’s physician,” who misdiagnosed her condition as flu when, in fact, she was suffering from appendicitis.279 After several days of mistreatment, she was removed from the cruise ship, underwent surgery after her appendix ruptured, and was rendered sterile. In rejecting a long line of Fifth Circuit cases280 absolving cruise ships for the medical malpractice of a ship’s doctor, the Carlisle court stated: The rule of the older cases rested largely upon the view that a non-professional employer could not be expected to exercise control or supervision over a professionally skilled physician. We appreciate the difficulty inherent in such an employment situation, but we think that the distinction no longer provides a realistic basis for the determination of liability in our modern, highly organized industrial society. Surely, the board of directors of a modern steamship company has as little professional ability to supervise effectively the highly skilled operations involved in the navigation of a modern ocean carrier by its master as it has to supervise a physician’s treatment of shipboard illness. Yet, the company is held liable for the negligent operation of the ship by the master. So, too, should it be liable for the negligent treatment of a passenger by a physician or nurse in the normal scope of their employment, as members of the ship’s company, subject to the orders and commands of the master.281 Unfortunately, the Florida Supreme Court reversed this decision.282 Recently, however, a few courts have allowed the victims of medical malpractice to assert a claim against the cruise line based on apparent agency and negligent or fraudulent misrepresentations.283

1639-40 (S.D. Fla. 1993) (finding that a cruise ship may be liable for the medical practice of the ship’s doctor). 278. Beth-Ann Erlic Herschaft, Cruise Ship Medical Malpractice Cases: Must Admiralty Courts Steer by the Star of Stare Decisis?, 17 NOVA L. REV. 575, 592 (1992) (“It would be in the best interest of the traveling public for admiralty courts to revoke this harsh policy of holding carriers harmless for the torts of physicians engaged by them. However, if admiralty courts continue to exonerate carriers in passenger medical malpractice cases, there are three possible ways to provide better care to travelers: First, the legislature can amend current statutory descriptions of a ship’s staff so that a doctor is specified as an employee of the carrier; second, passengers can invoke the doctrine of agency by estoppel; and third, a shipping company may indemnify itself against potential medical malpractice claims.”). 279. 864 So. 2d 1, 2, 2003 AMC 2433, 2433 (Fla. Dist. Ct. App. 2003). 280. See, e.g., Barbetta v. S/S Bermuda Star, 848 F.2d 1364, 1372, 1988 AMC 2650, 2651 (5th Cir. 1988) (holding that general maritime law does not impose respondeat superior liability on the carrier for negligence of a ship’s doctor). 281. Carlisle, 864 So. 2d at 4, 2003 AMC at 2436. 282. 953 So. 2d 461, 2007 AMC 305 (Fla. 2007).

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J. Shore Excursion Disclaimers Some courts have been willing to enforce disclaimers of liability regarding accidents that occur during shore excursions.284 Recently, in Brozyna v. Niagara Gorge Jetboating, Ltd., wherein a passenger was injured while riding in a jet boat plying the rapids of the Niagara River “when the boat ‘came down hard’ in the rapids at Devil’s Hole,” the court enforced a preaccident waiver of all liability, noting, “[T]here is a clearly stated rule in maritime jurisprudence in favor of allowing parties to enter into enforceable agreements to allocate the risks inherent in marine recreational activities [in recognition of] the long-recognized national interest in the development of a uniform body of maritime law.”285 However, in Johnson v. Royal Caribbean Cruises, Ltd., a cruise passenger was injured while using a ship’s simulated surfing and body boarding activity, and the court refused to enforce a waiver of all liability, citing 46 U.S.C. § 30509.286

1. Warranties of Safety Disclaimers may not be enforceable if the injured passenger relied on representations or warranties regarding the safety,287 competence, and reliability of onshore suppliers of travel services.

2. Limited Scope While disclaimers may be enforceable against cruise ships, they do not insulate ground service providers such as bus companies and dock

283. See Lobegeiger v. Celebrity Cruises, Inc., No. 11-21620-CIV, 2011 WL 3703329, 2012 AMC 202 (S.D. Fla. Aug. 23, 2011) (fraudulent misrepresentation); Lobegeiger v. Celebrity Cruises Inc., 869 F. Supp. 2d 1356, 2013 AMC 1254 (S.D. Fla. 2012) (granting summary judgment for the defendant on an apparent agency theory of liability for medical malpractice); Hill v. Celebrity Cruises, Inc., No. 09-231815-CIV, 2011 WL 5360247, 2012 AMC 234 (S.D. Fla. 2011) (allowing a claim for negligent misrepresentation when the cruise line advertised that the ship would have two doctors and only one was provided). 284. Dubret v. Holland Am. Line Westours, Inc., 25 F. Supp. 2d 1151, 1153, 1999 AMC 859, 861-62 (W.D. Wash. 1998) (disclaimer of liability enforced); Henderson v. Carnival Corp., 125 F. Supp. 2d 1375, 1377, 2001 AMC 264, 266 (S.D. Fla. 2000) (disclaimer of liability for negligence of catamaran company enforced); Mashburn v. Royal Caribbean Cruises, Ltd., 55 F. Supp. 2d 1367, 1372, 1999 AMC 2475, 2480 (S.D. Fla. 1999), aff’d, Royal Caribbean Cruises v. Hommen, 214 F.3d 1356 (11th Cir. 2000). 285. No. 10-cv-602-JTC, 2011 WL 4553100, at *2, *5 (W.D.N.Y. Sept. 29, 2011). 286. 449 F. App’x 846, 849, 2011 AMC 1171, 1178-79 (11th Cir. 2011). 287. Bergonzine v. Maui Classic Charters, Inc., No. 94-00489 SPK, at *2-3, 1995 AMC 2628, 2630-31 (D. Haw. Aug. 9, 1995) (awarding $42,500 in special damages to a 350-pound disabled passenger who broke his ankle because of inattention and lack of assistance by crew).

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K. Force Majeure or Act of God Defense Cruise lines may claim that a delay in sailing, a cancellation of the cruise vacation, or an itinerary change caused by a storm or hurricane290 was an Act of God. As stated by the United States Supreme Court in 1897 in The Majestic, “[T]he act of God is limited . . . to causes in which no man has any agency whatever . . . .”291 Acts of God may include hurricanes, 292 storms at sea, 293 snowstorms, 294 a typhoon or volcanic eruption,295 a revolution or civil disorder,296 or a pilot’s strike.297 To prevail, however, the carrier must establish a causal connection between the Act of God or force majeure and its failure to deliver timely transportation.

288. Sharpe v. W. Indian Co., 118 F. Supp. 2d 646, 650-51, 2001 AMC 995, 1000-01 (D.V.I. 2000) (refusing to enforce a time limitation in a cruise contract against dock operators and a local truck company that were responsible for the accident). 289. Gershon v. Regency Diving Ctr., Inc., 845 A.2d 720, 722 (N.J. Super. Ct. App. Div. 2004) (holding that an exculpatory release did not prevent the heirs of the decedent from commencing a wrongful death action). 290. DeNicola v. Cunard Line Ltd., 642 F.2d 5, 6, 1981 AMC 1388, 1388-89 (1st Cir. 1981) (storm); Domblakly v. Celebrity Cruises, Inc., No. 96 Civ. 8333 (AJP)(LBS), 1998 U.S. Dist. LEXIS 16549, at *1 (S.D.N.Y. Oct. 20, 1998) (hurricane caused injuries on board); Catalina Cruises, Inc. v. Luna, 137 F.3d 1422, 1424-25, 1998 AMC 1282, 1284 (9th Cir. 1998) (passengers injured when cruise ship sailed into storm); Williams v. Carnival Cruise Lines, Inc., 907 F. Supp. 403, 404, 1996 AMC 729, 729 (S.D. Fla. 1995) (storm caused seasickness in 207 people). 291. 166 U.S. 375, 386 (1897). 292. Paul S. Edelman & James E. Mercante, Of Hurricanes, Acts of God and Admiralty Jurisdiction, N.Y. L.J., Oct. 28, 2005, at 3 (“Hurricane season is here. No one disputes that a hurricane is an act of Mother Nature, or at law, an ‘act of God.’ The disputes arise when it is asserted as a defense. . . . A shipowner will invoke this defense, sometimes referred to as ‘peril of the sea,’ against cargo lost or damaged at sea, sinking, charter disputes, third-party property damage and personal injury claims. . . . Similar phrases, such as ‘inevitable accident’ and ‘force majeure,’ are sometimes used as the functional equivalent of ‘act of God.’ This is not always accurate, however. For example, unlike an act of God, a force majeure can constitute governmental intervention resulting from the necessities of war. . . . A severe weather condition of hurricane force is considered in law to be an act of God. A hurricane also qualifies as ‘heavy weather.’”). 293. DeNicola, 642 F.2d at 6, 1981 AMC at 1388-89; Domblakly, 1998 U.S. Dist. LEXIS 16549 at *1; Luna, 137 F.3d at 1424-25, 1998 AMC at 1284; Williams, 907 F. Supp. at 404, 1996 AMC at 729. 294. Ahlstrom Machinery Inc. v. Associated Airfreight Inc., 675 N.Y.S.2d 161, 162 (App. Div. 1998); Klakis v. Nationwide Leisure Corp., 422 N.Y.S.2d 407, 408-09 (App. Div. 1979) (passengers confined in airport for 2 ½ days during snowstorm). 295. DeVera v. Japan Airlines, Nos. 92 Civ. 6698 (JES), 92 Civ. 6699 (JES), 1994 WL 698330, at *1 (S.D.N.Y. Dec. 13, 1994) (Manila Airport closed because of volcano and typhoon). 296. Jamil v. Kuwait Airways Corp., 773 F. Supp. 482, 483 (D.D.C. 1991) (flight delayed four days due to coup in Pakistan). 297. Leake v. Am. Airlines, Inc., No. 000598649, 2000 Conn. Super. LEXIS 2667, at *2-3 (Super. Sept. 26, 2000) (passengers missed cruise because of airline strike).

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In addition, the carrier must prove that it acted reasonably to reinstitute the transportation service once the snowstorm or unexpected event ceased.298

L. Limitations on Recoverable Damages Cruise vessels that touch U.S. ports may not disclaim liability for loss, death, damage, or delay caused or contributed to by the vessel’s negligence.299 In 1996, the cruise industry was able to convince the United States Congress to enact statutory permission for cruise lines to include “provision[s] in a contract or in ticket conditions of carriage with a passenger that relieves an . . . operator of a vessel from liability for infliction of emotional distress, mental suffering, or psychological injury.”300 Such a disclaimer does not apply to physical injuries or to those arising from being “at actual risk of physical injury”301 caused by the negligence or intentional misconduct of the cruise line or crew. Nor does such a disclaimer limit liability arising from “sexual harassment, sexual assault, or rape.”302

M. The Athens Convention: Cruises Not Touching U.S. Ports Passenger tickets may also contain a disclaimer seeking to limit recoverable damages to those authorized by the Athens Convention.303 Such a clause may not be enforceable if the passenger was not given sufficient notice to be able to understand the significance of the Athens Convention.304 Though the United States is not yet a signatory to the Athens Convention, passengers on cruises that do not touch a U.S. port should be aware of the Athens Convention’s liability limiting provisions. Some cruise contracts contain language limiting the passenger’s recoverable damages under the Athens Convention to Special Drawing Rights

298. Bernstein v. Cunard Line Ltd., No. 83 Civ. 2206 (SWK), 1985 WL 1980, at *5 (S.D.N.Y. June 27, 1985). 299. 46 U.S.C. § 30509(a) (2006); Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1334-35, 1985 AMC 826, 829 (11th Cir. 1984) (disclaimers not enforced); Johnson v. Royal Caribbean Cruises, Ltd., 449 F. App’x 846, 849, 2011 AMC 1171, 1179 (11th Cir. 2011) (refusing to enforce a waiver of all liability, citing 46 U.S.C. § 30509). 300. 46 U.S.C. § 30509(b)(1). 301. Id. 302. Id. § 30509(b)(2). 303. Wallis v. Princess Cruises, Inc., 306 F.3d 827, 834, 2002 AMC 2270, 2277 (9th Cir. 2002). 304. Wajnstat v. Oceania Cruises, Inc., 684 F.3d 1153, 1155-56, 2012 AMC 1805, 1806-08 (11th Cir. 2012).

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(SDRs). SDRs, as “determined by the International Monetary Fund,” are based on currency exchange rates.305 The 1976 Protocol to the Athens Convention provides a damage limit of 46,666 SDRs, while the 1990 Protocol provides for 175,000 SDRs.

1. Application to U.S. Cruise Passengers The Athens Convention is important because it may apply to as much as 20% of U.S. cruise passengers who annually “sail from, and back to, foreign ports, like [on] a Mediterranean or Caribbean cruise,” for example.306 In order to encourage the United States to sign the Athens Convention, it was modified in the 2002 Convention Protocol: to raise liability limits to 250,000 SDRs (about $359,000). If ratified by at least 10 states, the convention would come into force and there would be a compulsory insurance requirement per passenger in this amount for passenger ship operators. . . . By its terms, the convention applies to ships flying the flag of the signatory country, or where the place of departure or destination is a signatory country. Suit may be brought in the principal place of a defendant’s place of business; the place of departure or destination; claimant’s domicile, if defendant does business there or is subject to jurisdiction there; and the place where the contract of carriage was made, if defendant does business there or is subject to jurisdiction there.307

2. Limitations Enforceable Such a contractual limitation has been held to be enforceable when the passenger’s injuries occur on cruises that do not touch U.S. ports308 as long as there has been sufficient notice.309

305. Mills v. Renaissance Cruises, Inc., No. C 91-3001 BAC ARB, 1993 WL 471301, at *1 n.2, 1993 AMC 131, 132 n.2 (N.D. Cal. Aug. 17, 1992). 306. Paul S. Edelman, The Athens Convention and American Lawyers, N.Y. L.J., May 29, 2003, at 3; see also Viliam Chovanec, Cruise Ship Passengers and Their Rights (unpublished master thesis, Lund Univ. 2013) (available at http://lup.lub.lu.se/luur/download?func=down loadFile&recordOld=3808227&fileOld=3808228) (discussing the Athens Convention from a European Union perspective and domestic and regional maritime laws in the United Kingdom, European Union, and United States). 307. Edelman, supra note 306, at 3. 308. Berman v. Royal Cruise Line, Ltd., 1995 AMC 1926, 1928-29 (Cal. Super. Ct. 1995) (holding that injuries on a cruise from Italy to Portugal were governed by the monetary limits of the Athens Convention); Kirman v. Compagnie Francaise de Croisieres, 1994 AMC 2848, 2852 (Cal. Super. Ct. 1993) (applying the Athens Convention to an accident on a cruise between Singapore and Australia). 309. Wallis v. Princess Cruises, Inc., 306 F.3d 827, 830, 2002 AMC 2270, 2271 (9th Cir. 2002) (declining to enforce a clause in the passenger’s ticket that limited recoverable damages to

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N. The Athens Protocol: 2002 and Beyond The Athens Protocol has been approved by the European Union and ten individual countries. Therefore, a new Athens Convention will go into effect on April 23, 2014. The impact of this new regime remains to be seen, but it will certainly affect the 20% of U.S. citizens that cruise on ships that do not touch U.S. ports. In his article The Athens Convention as Applied in the United States and Abroad to Cruise Line Accident Litigation, Paul Edelman clarified the significance of the proposed changes to the Athens Protocol, which the United States has not yet ratified. What follows is a full reproduction of Edelman’s article: There is a new regime on the Athens Convention as of December 31, 2012, applicable to the European Union countries. Everyone who handles cruise line cases knows that the fine print in a cruise ticket now goes something like this: in the event of a voyage which does not touch a U.S. port and there is a personal injury or death, the Athens Convention shall apply which limits recoveries to about $68,000 (or $70,000 in some cases). Although early on there was some confusion as to whether U.S. courts would enforce this provision, since the U.S. was not a party to it, more recent cases do enforce it as a matter of contract, the only caveat being a case like that from the Ninth Circuit which held that it would not be enforced where the ticket mentioned only the Athens Convention without stating the limitation amount. [Wallis v. Princess Cruises, Inc., 306 F.3d 827, 2002 AMC 2270 (9th Cir. 2002)]. Other cases have followed [Wallis], and some have held the information properly presented. Since this case, the tickets usually add the explanatory language. The only advantage of the old 1974 Convention is that it provides two years to sue[,] which gives additional time to negotiate a settlement, whereas U.S. voyages usually have a one year limitation. However, there is a U.S. case where despite finding coverage for the Convention, a one-year statute of limitations was applied by the [United States Court of Appeals for the Eleventh Circuit]. [Farris v. Celebrity Cruises, Inc., 487 F. App’x 542 (11th Cir. 2012).] The ticket referring to the one-year limitation stated: “NOTWITHSTANDING ANY PROVISION OF LAW OF ANY STATE OR COUNTRY TO THE CONTRARY.” [Id. at 543] The 2002 Protocol would probably not allow this result. Article 9 provides for a three-year limitation period from the time the claimant knew or should have known of the cause of his injury, loss or damages. The forum law can toll this period[,] but no later than five years from the date of disembarkation or when disembarkation should have occurred. Article 18 voids any contractual provision purporting to relieve the amount prescribed by the Athens Convention because the passenger did not have sufficient notice).

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any person of liability. One other U.S. case said the Convention was inapplicable where there was an intent to cause damage, e.g.[,] assault, rape or recklessness knowing the result. The 2002 Protocol makes a radical change in the amount recoverable. On December 12th of 2011 the European Council [(EC)] promulgated an adherence to the 2002 Protocol. It was mandatory for each of the 27 EC countries to follow it and make it enforceable by December 3rd of 2012 (28 countries in July 2013). EC Regulation (EC) No. 392/2009. As in the prior Protocol [(SDR)] amounts are expressed in Special Drawing Rights, the value of which is made by the International Monetary Fund, and day-to-day changes are on its web site. It is a basket of currencies, dollar, euro, pound and Japanese yen. As of December 28, 2012, the last posted date for 2012[,] the value was $1.536920, just over a dollar and one half. The new Protocol makes the cruise line liable up to 250,000 SDR’s and for more damages the limit is 400,000 SDR’s. But the cruise line must prove it was not at fault for amounts beyond the 250,000 SDR’s. Cabin luggage is up to 2250 SDR’s and other baggage at 3375 SDR’s. Thus there is liability at the end of 2012 of up to $384,230, and for 400,000 SDR’s $614,768. Even prior to the EC Regulation the UK adopted the 2002 Protocol[,] and in Canada damages were 175,000 SDR’s for personal injury and death, and it is also domestic law. In the UK recovery is allowed for emotional distress where a ship caught fire and sank. Incidentally, Italy [was] not a signatory to the 1974 Protocol, but will be bound after December 31st of 2012. The international aviation conventions also provide a large amount with absolute liability up to 113,100 SDR’s. The new Protocol has a two-tier provision for liability. The first is strict liability for personal injury or death caused by a “shipping incident.” A “shipping incident” is a “shipwreck, capsizing, collision or stranding of the ship, explosion or fire of the ship or a defect in the ship.” [Athens Convention Relating to the Carriage of Passengers and Their Luggage by Sea art. 111, Dec. 13, 1974, 1463 U.N.T.S. 19. [Id.] A “defect in the ship” is “any malfunction, failure or non-compliance with applicable safety regulations to respect to any part of the ship or its equipment when used for the escape, evacuation, embarkation and disembarkation of passengers, or when used for the propulsion, steering, safe navigation, mooring, anchoring, arriving at or leaving berth or anchorage, or damage control after flooding or when used for the launching of life-saving appliances.” [Id.] The second tier puts the burden of proof on the claimant for the carrier’s “fault or neglect.” [Id.] In the recent U.S. case of [Myhra v. Royal Caribbean, Ltd., 695 F. 3d, 1233, 2012 AMC 2678 (11th Cir. 2012),] a Florida forum was denied in favor of an English forum clause. The cruise line may or may not be aware that the 2002 Protocol amount should apply in an English court prior to December 31, 2012[,] where passengers were English and bought their tickets there. Depending on the facts, there might be strict liability.

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Other important provisions include a direct action against an insurer and compulsory insurance or a bank guarantee, etc. Interest and costs are not included in the recoverable limits. The parties can agree to higher limits but not lower limits. Periodic payments are allowed. Punitive damages are not recoverable under Article 3. [Athens Convention Relating to the Carriage of Passengers and Their Luggage by Sea art. 111, Dec. 13, 1974, 1463 U.N.T.S. 19.] Jurisdiction for suit includes (1) the residence or place of business of the defendant, (2) the place of departure or destination, (3) plaintiff’s residence if the defendant is subject to jurisdiction and has a place of business, and (4) where the ticket was issued if defendant had a place of business there and is subject to the court’s jurisdiction. It is conceivable that there is a U.S. forum, although the Convention may assume an EU forum only. The Protocol applies if a flag state is involved or the contract is issued in a party state or the state of departure or destination is involved. The EC did not adopt the provisions of the 2002 Protocol dealing with jurisdiction and enforcement of judgments (Articles 10 and 11). The EC has its own law on these issues. A vessel must have a $500 million insurance policy to cover a terrorist attack on the vessel. The only defenses are acts of war, hostilities, civil war, insurrection, a natural phenomenon of an exceptional and irresistible nature, or wholly caused by a third party with an intent to harm. Ten countries must accede to the Protocol to put it in force and the EC countries do not count towards those ten countries. Belgium became the tenth[,] so a new Athens Convention will come into force on April 23, 2014. It will replace the present Convention, presumably in the ten countries involved. The ten countries are Albania, Belgium, Belize, Denmark, Latvia, The Netherlands, Palau, St. Kitts and Nevis, Serbia and Syria. How the cruise lines will react to the changes and how tickets will read after 2012 is anybody’s guess. Will they stick to the $68,000 and will courts say the 1974 Protocol is no longer in effect and invalidate such language? Will the new limits be applied? What will the cruise line lobbies do about this major change? Will the courts allow enforcement of a 1974 Convention involving countries which have repudiated it in favor of the 2002 Protocol and the new Convention in 2014? What of the old two-year statute of limitations? The new Protocol requires a longer period. The Bahamas is the flag state for many cruise ships. It is a signatory to the 1974 Convention, and is not covered by the EC Directive. How will a new Convention effect this situation in a ticket?

O. Death on the High Seas Act: Pecuniary Damages As noted in Cruise Ship Litigation, the Death on the High Seas Act (DOHSA) provides a wrongful death remedy limited to pecuniary

456 2014] CRUISE PASSENGER’S RIGHTS AND REMEDIES 67 damages for fatalities on the high seas.310 DOHSA has been applied to the death of a snorkeler from a heart attack in Mexican territorial waters during an expedition off the beaches of Cozumel,311 the death of a snorkeler in Jamaican waters when the decedent was struck by the propeller of a twenty-two-foot motorboat,312 and the death of a cruise ship passenger due to complications from an injury sustained on a gangway of a vessel in Mexican territorial waters.313

VIII. CONCLUSION Cruise vacations can be wonderful experiences. However, potential cruise passengers are well advised to think carefully about their legal rights should they be dissatisfied, injured, or worse while travelling on a cruise vacation.

310. Ira H. Leesfield, Cruise Ship Litigation, PLAINTIFF MAG. (Oct. 2009), http://plaintiff magazine.com/Oct09/Leesfield_Cruise_ship_litigation_Plaintiff_magazine.pdf. 311. Moyer v. Klosters Rederi, 645 F. Supp. 620, 1987 AMC 1404 (S.D. Fla. 1986). 312. Kunreuther v. Outboard Marine Corp., 757 F. Supp. 633, 1991 AMC 1812 (E.D. Pa. 1991). 313. Howard v. Crystal Cruises, Inc., 41 F.3d 527, 1995 AMC 305 (9th Cir. 1994); see also Lasky v. Royal Caribbean Cruises, Ltd., 850 F. Supp. 2d 1309, 1311, 2012 AMC 2630, 2631-32 (S.D. Fla. 2012).

457 458 BIOGRAPHIES

459 460

ROBERT D. BARONE, ESQ. BIOGRAPHY

For over twenty years Robert Barone of the Tarantino Law Firm LLP, Buffalo, NY, has been defending clients in all phases of civil litigation and has successfully tried numerous cases to verdict in courts throughout the State of New York. He has handled a wide array of high- exposure cases in all major areas of civil defense including automobile liability, premises liability, construction accidents involving New York Labor Law §§ 200, 240(1), and 240(6), products liability, and cases involving exposure to lead paint, asbestos, silica and other harmful substances. Mr. Barone devotes a substantial portion of his practice to the defense of physicians in complex medical malpractice litigation and in professional disciplinary proceedings before the New York State Office of Professional Medical Conduct. Mr. Barone is a 1989 graduate of Wittenberg University and a 1993 graduate of the University of Toledo, College of Law. He has repeatedly been listed as an Upstate New York Super Lawyer. Mr. Barone is admitted to practice in both Federal and New York State courts and is a long-standing member of the Erie County Bar Association.

461 462 EILEEN E. BUHOLTZ, ESQ. BIOGRAPHY

Eileen Buholtz graduated from the Eastman School of Music with a Bachelor of Music Degree as a clarinet major and from Syracuse University with a Doctor of Jurisprudence degree. She is a member of Connors, Corcoran & Buholtz, PLLC in Rochester where she concentrates her practice in litigation in insurance defense, insurance coverage litigation, and estate litigation.

Ms. Buholtz is past chair of the New York State Bar Association’s Torts, Insurance, and Compensation Law Section. She has served on NYSBA’s House of Delegates, New York State Conference of Bar Leaders, Law Office and Economic Management Committee, and CPLR Committee. She serves on the President’s Committee for Access to Justice. She is a member of the American Board of Trial Advocates (ABOTA), the Defense Research Institute (DRI), the Monroe County Bar Association (MCBA), the Greater Rochester Association for Women Attorneys (GRAWA), the Women’s Bar Association of the State of New York (WBASNY), and the Defense Association of New York. She co-chairs WBASNY’s Judiciary/ Courts Committee. She has lectured for NYSBA, MCBA, GRAWA, Lorman Education Services, and the National Business Institute on topics involving civil litigation, insurance law, Labor Law, statutory liens, and ethics. She has authored chapters on construing insurance contracts, post-judgment interest, and ethical issues in preparing for and trying the civil lawsuit for NYSBA treatises.

She has received awards including the 2009 John E. Leach Memorial Award for service to NYSBA’s Torts, Insurance and Compensation Law Section; the 2008 WBASNY Hanna Cohn Pro Bono Award; for multiple years NYSBA’s Empire State Counsel for contributing 50-plus hours of pro bono representation; a 2004 nomination for The Daily Record’s Nathaniel Award; the 2004 GRAWA Crennel-Branch Award for leadership in GRAWA; the 2000 MCBA President’s Award; and the 1994 NYSBA Pro Bono Award and Volunteer Legal Service’s Project’s McKnight Award for Pro Bono Services. She chairs the Friends of Eastman Opera and is a board member of the Rochester chapter of the National Association of Women in Construction.

463 464 HONORABLE TIFFANY GAUTIER CHASE BIOGRAPHY

Judge Tiffany Gautier Chase is a native of New Orleans and has served as judge of Division A of Civil District Court for the Parish of Orleans since May 2007. She has presented at numerous continuing legal education seminars on a variety of civil litigation topics including recent developments in the law, medical malpractice, domestic violence, professionalism and ethics. Judge Chase is committed to providing access to justice to all litigants and works with various groups to do so. In 2010, she worked closely with the Louisiana Bar Association-Access to Justice Committee to create Civil District Court's Self-Represented Litigant Help Desk, the first self-contained legal help desk in a Louisiana court. Judge Chase was appointed in 2013, by the Louisiana Supreme Court as Chairperson of the Louisiana Court Security Committee. She serves as Louisiana’s Delegate to the American Bar Association-State Court Trial Judges Committee; serves on the District Court Rules Committee; Executive Committee of the District Judges' Association, Louisiana Judicial Council and previously served as co-chair for two years of Louisiana Judicial College- Louisiana State Bar Association Summer School. In 2010, Judge Chase received the President’s Award from the Louisiana State Bar Association and was recently honored by Family Services of Greater New Orleans.

465 466

VINCENT CHIRICO, ESQ. BIOGRAPHY

Vince has over twenty five years of experience in civil litigation, having served as national coordinating counsel for Fortune 500 companies in nationwide and cross-border, industrywide and individual matters through trial and appeal. Formerly a partner in a mid-size New York City firm, Vince headed that firm’s appellate practice group.

In 2012, Vince formed Chirico Law PLLC, providing litigation and transactional representation as well as consulting services to other law firms. In the litigation sphere, Chirico Law specializes in appeals, product liability, commercial, transportation and construction law. The firm’s transactional Practice focuses on business formation and transactions, real estate and estate planning.

Vince is a graduate of New York Law School (Class of ’93), where he also served as Adjunct Professor for 11 years, teaching upper-class and first-year courses on legal writing, research, analysis, persuasion, pre-trial and appellate advocacy. He currently presents legal education seminars focusing on appeals, practice management, practical skills and persuasion.

In addition to his membership in the New York City Bar Association’s Tort Litigation Committee, Vince is a member of Brooklyn’s Community Board #11 and serves as Chairperson of Opportunities for a Better Tomorrow (www.obtjobs.org), President of the American-Italian Coalition of Organizations (www.amicoinc.org), and Vice President of the Dyker Heights Athletic Association (www.knightsaa.org).

Vince is admitted to practice in State and Federal courts in New York and New Jersey.

467 468 GARY A. CUSANO, ESQ. BIOGRAPHY

Gary A. Cusano, has over 27 years of litigation experience. He has litigated high exposure tort and commercial transaction cases involving automobiles, construction site accidents, products liability, multi-party large-scale property damage cases, breach of contract, toxic tort and dental malpractice. He also litigates insurance coverage and contract matters. Gary’s firm, The Law Office of Gary A. Cusano, P.C., is a full service law firm specializing in Insurance Defense Litigation, Insurance Coverage and General Commercial Litigation. Their primary objective is the swift resolution of cases with the most favorable outcome possible for clients. The firm prides itself on its diversity and its attention to detail, which insures that personal attention is given to each issue in every case. Working closely with our clients, they offer a unique approach to legal representation: and are both responsive and receptive. Prior to establishing his firm, Gary held the position of Managing Trial Attorney of CNA Insurance Company's staff counsel program in Tarrytown, New York.

Gary received his J.D. from Brooklyn Law School in 1985 and is admitted to practice in both New York state and federal courts. He is a former Chairman of the Torts, Insurance and Compensation Law Section of the NYS Bar Association; He is a past member of the New York State Bar Association’s House of Delegates; Member of the Panel of Arbitrators on Insurance Coverage for A.A.A.; Certified CLE lecturer for the NYS and Bronx County Bar Associations; he is a member of the New York State Bar Association, Westchester Bar Association and the Bronx County Bar Association.

Gary is an accomplished trial attorney who has successfully litigated multi-million dollar matters at both the Federal and State court levels. He has extensive experience in handling complex, high exposure cases.

He currently resides in Westchester County with his wife Adrienne and children Alexandra and Gregory.

469 470 RICHARD W. DAWSON, ESQ. BIOGRAPHY

RICHARD W. DAWSON became a partner at Conway, Farrell, Curtin & Kelly, P.C. in 2002 and has been with the firm since 1999. Born in Brooklyn, New York, Mr. Dawson attended Bernard M. Baruch College in New York City and received his Bachelor’s Degree in Business Administration Management in 1975. After graduation, Mr. Dawson began a twenty year career in property casualty claims working with Hartford, CNA and AIG Insurance Companies. During his tenure as Division Claims Manager for CNA, he resumed his academic pursuits, enrolling in the Evening Division at St. John’s University School of Law in 1991, and earned his law degree in 1995. Mr. Dawson was admitted to the New York State Bar as well as the United States District Court for the Southern and Eastern Districts of New York in 1996. In June 2004, Mr. Dawson was admitted to appear before the U.S. Supreme Court, U.S. Court of Federal Claims, U.S. Court of Appeals for the Federal Circuit and the U.S. Court of Appeals for the Armed Forces.

Mr. Dawson is a member of the New York State Bar Association, the Torts, Insurance & Compensation Law Section, previously serving on the sections Executive Committee and a member of the Trial Lawyers Section. At Conway Farrell, Mr. Dawson practices in the areas of construction labor law, general liability, toxic tort and insurance coverage.

Mr. Dawson brings to the practice of law an extensive knowledge of claims procedure, insurance policy language interpretation, and the manner in which the Federal Courts and Courts of the State of New York have addressed the rights and duties of the contracting parties.

471 472 HONORABLE ARTHUR M. DIAMOND BIOGRAPHY

Arthur M. Diamond has served on the NYS Supreme Court since January 2004.

Justice Diamond is a graduate of Rutgers University (New Brunswick 1974) and Hofstra University School of Law (1978). He began his legal career in the Office of the Nassau County District Attorney Denis Dillon where he spent eight years and served as Deputy Chief of the Trial Bureau. In 1992 he became of counsel to the Garden City law firm of Fishkin & Pugach, concentrating in the areas of criminal and personal injury law. In 1999 and 2000 he was appointed to the County Court by Gov. George Pataki. His column, Evidentially Speaking, appears regularly in the Nassau Lawyer, the official publication of the Nassau County Bar Association. He has lectured on evidence at the Nassau County Bar Association, the New York State Bar Association, New York County Lawyers Association, the Statewide Judicial Seminars at the New York State Judicial Institute in White Plains, New York, the Second and Third Departments Attorney for the Child panels and the Hofstra University Continuing Legal Education Institute among others. He is co-editor of the Evidence chapter and a peer reviewer of the Article 81 chapter of the 2013 revision of the Bench Book for Judges. In 2011 he was appointed by Chief Judge Lippman to the statewide Judicial Advisory Council, a committee of Justices dedicated to improving trial practices in New York courts and in 2015 was appointed to the New York State Advisory Committee on Guardianship Matters. In January of 2016 he was appointed Supervising Judge of Guardianship matters for Nassau County.

473 474 ELIA DIAZ-YAEGER, ESQ. BIOGRAPHY

Elia Diaz-Yaeger is a Shareholder in the law firm of Lugenbuhl, Wheaton, Peck, Rankin and Hubbard, her primary areas of practice are industrial employment/long-latency lung disease litigation, insurance defense and coverage, environmental law, commercial litigation, and Board Governance/Cybersecurity. In the last twenty years, Ms. Diaz-Yaeger has successfully defended thousands of occupational exposure claims, including exposure to asbestos and silica-containing products. Mrs. Diaz-Yaeger’s extensive litigation experience enables her to provide clients with an early strategic plan, vigorous defense and efficient litigation.

As an AV-rated attorney, Mrs. Diaz-Yaeger was selected for the inaugural edition of the Martindale- Hubbell® Bar Register of Preeminent Women Lawyers™. Her recent professional credentials include the 2014-2015 Recipient of the Louisiana State Bar Association Human Rights Award. She is also a 2015 CityBusiness “Women of the Year” recipient and honoree.

Mrs. Diaz-Yaeger actively promotes diversity and inclusion of women and Hispanics in the legal professions through various professional organizations. She is a long standing member of the Hispanic National Bar Association (“HNBA”), where she currently serves as the National Secretary. Mrs. Diaz-Yaeger is also a member of a number of International Association of Defense Counsel, Defense Research Institute, ABA, Louisiana State Bar Association. She is a frequent speaker and CLE presenter. Her recent professional engagements include: presenting at the 2015 DRI Asbestos Medicine Seminar; 2015 LSBA diversity training seminar; 2015 LSBA presenter on professionalism; speaker at the 2012 ABA mid-year meeting and 2011 HNBA National Corporate Conference; leading round-table discussions at several in-house corporate meetings; serving as a diversity facilitator for the Louisiana State Bar Association; participating in the Louisiana State Bar Association’s diversity and inclusion video.

In addition to her professional pursuits, Mrs. Diaz-Yaeger also serves as on the Board of Directors of ASI Federal Credit Union, a Community Development Financial Institution, whose mission is to strengthen the financial health of underserved communities through financial service and education. Mrs. Diaz-Yaeger also volunteers and participates in a number of social and community programs including, Taking Steps for Crohn’s and Colitis, New Orleans Ballet, Kingsley house “friendraising”, and New Orleans Opera Association. Additionally, she is a founding member of Candy Girls/Life Savers of New Orleans, a non-profit group that supports and provides services to families in need.

WORK EXPERIENCE Lugenbuhl, Wheaton, Peck, Rankin & Hubbard - Shareholder, 2007-Present Frilot LLC - Special Counsel, 2005-2007 Lynn Luker & Associates, LLC - Special Counsel, 2000-2004 Chopin Wagar Richard & Kutcher, LLP - Associate, 1999-2000 Tranchina & Mansfield, LLC - Associate, 1995-1999

AFFILIATIONS International Association of Defense Counsel - Member of Toxic & Hazardous Substances Committee, Diversity Committee, Insurance and Reinsurance Committee and Environmental and Energy Law Committee

475 Defense Research Institute - Member of Products Liability Committee, the Diversity Committee and Diversity for Success Corporate Expo Committee Hispanic National Bar Association – National Secretary, 2015 – date. Deputy Region XII President, Member of Board of Governors, Member of National Coordinating Committee for the 2013 and 2015 Tennis & Golf Tournament and Co-Chair of 2011 Mid-Year Corporate Conference and Moot Court Competition American Bar Association - Member of Commission on Racial & Ethnic Diversity in the Profession and Commission on Women in the Profession Louisiana State Bar Association - Diversity Facilitator and Member of Conclave Subcommittee New Orleans Bar Association - Member of Women in the Profession Committee Hispanic Lawyers Association of Louisiana - Member

476

HONORABLE THOMAS A. DICKERSON BIOGRAPHY

Thomas A. Dickerson is an Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court. Justice Dickerson is the author of Travel Law, Law Journal Press, 2016; Class Actions: The Law of 50 States, Law Journal Press, 2016; Article 9 [New York State Class Actions] of Weinstein, Korn & Miller, New York Civil Practice CPLR, Lexis-Nexis (MB), 2016; Consumer Protection Chapter 111 in Commercial Litigation In New York State Courts: Fourth Edition (Robert L. Haig ed.)(West & NYCLA 2016); Dickerson, Gould & Chalos, Litigating Foreign Torts in United States Courts, Thomson-Reuters (West) 2014 and over 400 articles and papers on consumer law, class actions, travel law and tax certiorari and eminent domain issues, many of which are available at: www.courts.state.ny.us/courts/ad2/justice_dickerson.shtml www.nycourts.gov/courts/9jd/taxcertatd.shtml www.classactionlitigation.com/library/ca_articles.html

477 478 HONORABLE MICHAEL J. GARCIA BIOGRAPHY

Michael J, Garcia, Associate Judge of the Court of Appeals, was born in Brooklyn, in October 1961. On January 20, 2016, Governor Andrew M. Cuomo nominated him to the Court of Appeals, and the New York State Senate confirmed his appointment on February 8, 2016. Judge Garcia received his undergraduate degree with honors from the State University of New York at Binghamton in 1983 and an M.A. degree from the College of William & Mary in 1984. In 1989, he received his law degree (summa cum laude) from Albany Law School, where he graduated as valedictorian. He began his legal career as an associate at Cahill Gordon & Reindel LLP in 1989. From 1990 to 1992, he served as Law Clerk to Hon. Judith S. Kaye, then Associate Judge of the New York Court of Appeals.

From 1992 to 2001, he served as an Assistant United States Attorney for the Southern District of New York. In 2001, he became Assistant Secretary of Commerce for Export Enforcement in the Bureau of Industry and Security, and in December 2002 he became Acting Commissioner of the Immigration and Naturalization Service at the United States Department of Justice. From March 2003 to August 2005, he served as Assistant Secretary for Immigration and Customs Enforcement at the United States Department of Homeland Security. Judge Garcia was the United States Attorney for the Southern District of New York from 2005 to 2008, when he joined Kirkland & Ellis LLP.

Judge Garcia is on the Board of Trustees of El Museo del Barrio. He previously was Vice President of the Americas for INTERPOL, the international police organization, from 2003 to 2006. From 2012 to 2014, he was Chair of the Investigatory Chamber of the Ethics Committee of the Federation Internationale de Football Association.

Judge Garcia lives in Westchester with his wife and three children.

479 480 DAVID PAUL HOROWITZ, ESQ. BIOGRAPHY

DAVID PAUL HOROWITZ ([email protected]) is a member of Geringer, McNamara & Horowitz in New York City. He has represented parties in personal injury, professional negligence, and commercial cases for over twenty-six years. In addition to his litigation practice, he acts as a private arbitrator, mediator and discovery referee, and is now affiliated with JAMS.

He is the author of Bender’s New York Evidence and New York Civil Disclosure (LexisNexis), as well as the most recent supplement to Fisch on New York Evidence (Lond Publications). Mr. Horowitz teaches New York Practice at Columbia Law School and will lecture on that topic, on behalf of the New York State Board of Bar Examiners, to candidates for the July 2016 bar exam, serves as an expert witness and is a frequent lecturer and writer on civil practice, evidence, ethics, and alternative dispute resolution issues. He serves on the Office of Court Administration’s Civil Practice Advisory Committee, is active in a number of bar associations, and served as Reporter to the New York Pattern Jury Instruction (P.J.I.) Committee.

481 482 MICHAEL KESTAN, ESQ. BIOGRAPHY

Michael Kestan, an attorney, is the President and owner of AppealTech. Prior to joining AppealTech, he was a litigator in New York City for over 12 years. Mr. Kestan’s litigation experience includes commercial litigation at Nixon Peabody as well as insurance defense litigation. He has represented and worked with large corporate clients and many major insurance companies.

Mr. Kestan’s litigation experience gives AppealTech a unique insight into the needs and requirements of all our clients. He has extensive knowledge of appellate procedure as well as practical litigation experience. Education: University of Witwatersrand, Johannesburg, South Africa (B.Comm) Seton Hall University (JD)

Admitted: New York Southern District of New York Eastern District of New York

483 484 HONORABLE EUGENE F. PIGOTT, JR. BIOGRAPHY

Eugene F. Pigott, Jr., Senior Associate Judge of the Court of Appeals, was born in Rochester, New York, in September 1946. He graduated from LeMoyne College (B.A.1968). Judge Pigott served on active duty in the United States Army from 1968 to 1970. While in the service, he was stationed in the Republic of Vietnam, serving as a Vietnamese interpreter. He graduated from SUNY at Buffalo School of Law (J.D. 1973) and was admitted to the Bar of the State of New York in 1974. Judge Pigott practiced law in Buffalo, New York, with the firm of Offermann, Fallon, Mahoney & Adner from 1974 to 1982. In 1982 he was appointed Erie County Attorney and served in that position until 1986. In 1986 he became chief trial counsel for the firm of Offermann, Cassano, Pigott & Greco. On February 4, 1997, he was appointed to the New York State Supreme Court by Governor George E. Pataki and thereafter was elected to a full 14-year term. In 1998 he was designated to the Appellate Division, Fourth Department and was appointed Presiding Justice on February 16, 2000. On August 18, 2006, he was nominated by Governor Pataki to the Court of Appeals. His nomination was confirmed by the New York State Senate on September 15, 2006. He and his wife Peggy live on Grand Island, New York. They have two children.

485 486 KISHORE RANADE, M.D. BIOGRAPHY

Dr. Kishore Ranade is a board certified Neurologist, in private practice for the last 28 years. He is a partner at Caremount Medical Group, located in Westchester and Putnam Counties in the state of New York.

Dr. Ranade earned his medical degree in India. He completed a 4 year residency in Neurology at New York Medical College in 1987, where he continues on faculty as Clinical Assistant Professor of Neurology. In 1988, he received a fellowship in Neurophysiology and Sleep Medicine at the University of Chicago Medical Center.

He is also Board Certified in Sleep Medicine, Neurophysiology and Medical Acupuncture. In addition he is Board Certified as an Independent Medical Examiner.

Dr Ranade has been recognized in Castle Connolly's "America's Top Doctors", "Top Doctors In Hudson Valley from 2012-2016 and was selected by "Best Doctors In America". He has given radio interviews on Brain Injuries and lectures a variety of audiences including doctors,hospital staff, insurance industry.

488

SHERYL STORY, ESQ. BIOGRAPHY

Sheryl Story grew up in a small town in Indiana and received her undergraduate degree from Valparaiso University, in Indiana. She moved to New Orleans in 1978, earning her J.D. from Loyola University in 1983.

Her entire career has been insurance oriented, beginning as an insurance clerk for Chevron, USA while in law school at night. She was then an underwriter for a marine carrier, Midland Insurance Company. Her legal career has included defending insureds of Travelers, CIGNA, and Zurich.

She has served as the Director and Managing Trial Attorney for CNA’s Staff Counsel Office in New Orleans since 1997. The firm currently has 6 lawyers defending cases involving professional liabilities of medical malpractice, architects & engineers, and accountants; general liabilities of premises, products, and construction; and both Louisiana State and Federal workers’ compensation matters.

Her personal clients have included volunteer fire departments, ambulance services, national pharmacies, accountants, realtors, dentists, and nurses. She has experience before both State and Federal compensation tribunals, as well as the Benefits Review Board.

Sheryl often speaks in the fall to incoming first year law students about ethics and professionalism. She has served as judge for several Moot Court competitions locally.

489 490 MICHAEL C. TROMELLO, ESQ. TROMELLO, MCDONNELL & KEHOE

EMPLOYMENT:

CNA Insurance: Director/Managing Trial Attorney – CNA - Melville Staff Counsel (2001 to Present) I supervise and direct all aspects of insurance defense litigation from pleadings through trials and appeals for CNA and its insureds. Our team presently consists of 11 attorneys, 3 paralegals and 7 support staff. We are defending approximately 650 tort cases and 350 WC cases venued in Queens, Nassau and Suffolk Counties. In addition, we prosecute approximately 75 subrogation cases per year. Director/Managing Trial Attorney – CNA - New York City Staff Counsel (1996 to 2001) I supervised and directed all aspects of insurance defense litigation from pleadings through trials and appeals for CNA and its insureds in New York City. Our team once consisted of 28 attorneys and 14 support staff. We defended approximately 1600 tort cases venued in New York, Kings and Richmond Counties. Director/Managing Trial Attorney – CNA - Syracuse Staff Counsel (1992 to 1996) In addition to handling an individual tort case load of over 200 cases, I supervised and directed all aspects of insurance defense litigation from pleadings through trials and appeals for CNA and its insureds in all counties in "Upstate" NY. (North of Rockland Co.) Our team consisted of 4 attorneys and 3 support staff. Senior Trial Attorney - CNA - Long Island East Staff Counsel (1988 to 1992) As a Senior Trial Attorney, I was responsible for all aspects of insurance defense litigation from pleadings through trials and appeals. I regularly handled 125 to 150 tort cases and 40 to 50 premium collection cases. I was responsible for all large subrogation cases and monitored subrogation cases assigned to other staff attorneys. In conjunction with the Managing Attorney, I developed a manual to assist in the processing of large volumes of Affirmative Litigation. (Subrogation & Premium Collections)

New York State Attorney General (1987 to 1988) As the Assistant Attorney General in charge of the Civil Prosecutions Bureau for Suffolk County, I conducted and supervised civil litigation on behalf of NYS to collect money owed from individuals, insurance companies, private agencies, estates, vendors, outside laboratories and hospitals. I trained and coordinated the efforts of a unit of 12 individuals (attorneys, paralegals and support staff); prepared and monitored the unit's budget and submitted periodic reports on the unit's activities to the NYS Attorney General.

Office of the District Attorney, Queens County (1983 to 1987) As an Assistant District Attorney, I was assigned to the Supreme Court Trial Bureau where I conducted over 30 felony jury trials to verdict. I conducted all related pre-trial hearings and non-jury trials. Other assignments included the Criminal Court and Grand Jury Bureaus.

The City University of New York (CUNY) (1975 to 1983) As the Assistant Director for Governmental Relations, my primary responsibility was to provide the Director with written memoranda on Federal, State and Municipal legislative proposals concerning education, labor, civil rights, pensions, torts, and contracts. Other responsibilities included assisting in the development and implementation of legislative strategy and acting as the unit's liaison to the Chancellor, his Cabinet, the 18 CUNY College Presidents and the Student Organization representing the University’s 160,000 students. In addition, I prepared and monitored the unit's annual budget and handled all administrative matters for the unit’s multiple offices which were located in Albany, Washington, D.C., & NYC.

Education: B.A., Political Science, Queens College (1974) M . S . , U r b a n A f f a i r s & A d m i n i s t r a t ion, Hunter College (1978) J.D., New York Law School (1982)

Bar Admissions: New York State - Appellate Division, 1st Department (1983) U.S. District Court - Southern and Eastern Districts (1987)

491 492 JEFFREY A. WIECZKOWSKI, ESQ. BIOGRAPHY

Jeffrey A. Wieczkowski received a degree in Accounting from the State University of New York at Geneseo in 1988. He graduated cum laude from Syracuse University College of Law in 1993 where he served as an Executive Editor of the Syracuse Law Review and received an American Jurisprudence Award for Academic Excellence.

Mr. Wieczkowski is admitted to practice before the New York State courts and the United States District Court for the Western District of New York. In his work at the Tarantino Law Firm, Mr. Wieczkowski has focused on medical malpractice, motor vehicle, and insurance defense litigation. Mr. Wieczkowski has successfully defended numerous physicians and hospitals, as well as corporate entities, at trial. Mr. Wieczkowski has also successfully represented physicians in investigations and proceedings before the New York State Department of Health's Office of Professional Medical Conduct and the Office of the Medicaid Inspector General.

Prior to joining The Tarantino Law Firm, Mr. Wieczkowski was associated with the firm of Murray & Coleman and the Law Offices of Barry Sternberg, where he practiced in the areas of civil litigation, criminal defense and matrimonial law.

Mr. Wieczkowski's professional affiliations include the New York State Bar Association and the Bar Association of Erie County. Mr. Wieczkowski has lectured on evidentiary issues involving expert witnesses. He also lectures at the SUNY Buffalo Law School.

Mr. Wieczkowski has been selected for inclusion in New York State Super Lawyers in 2011, 2012, 2013, 2014, and 2015. Mr. Wieczkowski is also a recipient of the Top 1% Trial Counsel - Medical Malpractice 2012 designation.

Bar Admissions New York, 1994 U.S. District Court Western District of New York, 1994

Education Syracuse University College of Law, Syracuse, New York J.D. cum laude Law Review: Syracuse Law Review, Executive Editor, 1991 - 1993 SUNY Geneseo, Geneseo, New York B.S. Major: Accounting

Honors and Awards Super Lawyers, 2011 - 2015 Top 1% Trial Counsel - Medical Malpractice, 2012

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