In this week’s article, we examine the case of Lee v. Air Canada, 2017 U.S. Dist. LEXIS 3458 (S.D.N.Y. 2017) in which a passenger on an international flight between the United States and Canada “was sitting in her assigned aisle seat when she was struck on the head by the carry-on roller bag of another passenger (Mr. X who had) lifted his bag to place it in the overhead bin (when) he was ‘bumped’ or ‘struck’ on his leg by a passenger…who was ‘passing down the aisle’ (causing Mr. X to lose his balance and drop his bag)”. Because this flight was an international flight the rights and remedies of Ms. Lee are governed by the Montreal Convention, the successor to the Warsaw Convention [see Dickerson, Travel Law at Chapter 2A].
Terror Targets Update
In Two Ukranian tourists dead, four wounded in Egypt’s Red Sea resort attack, eturbonews.com (7/14/2017) it was noted that “Two Ukranian tourists were killed and four other tourists wounded when a man attacked them with a knife at a resort in Hurghada on Friday afternoon. According to a short statement from the Egyptian interior ministry, the assailant, who was arrested after the attack, had swum to the resort from a nearly beach…Three foreign tourists were stabbed at the same resort, renowned for the scuba diving, in January 2016 by two suspected militants from the Islamic State militant group”.
In 5 policemen shot dead in Egypt ambush-state media, travelwirenews.com (7/14/2017) it was noted that “Masked gunmen opened fire on a security checkpoint south of Cairo, Friday morning killing five policemen before fleeing the scene”.
In 5 terrorist attacks thwarted in recent months, some ‘minutes away’-Met Police commissioner, tavelwirenews.com (7/14/2017) it was noted that “British authorities have thwarted five terrorist attacks in the past three to four months, the Metropolitan Police commissioner has confirmed. Some of them were ‘within minutes’ of being carried out. ‘Just in the last few weeks, five [have been foiled]. And overall, it’s well into the teens in the last couple of years where we know people were intent on attacking and that’s been stopped’. Metropolitan Police Commissioner…later clarified that they were thwarted ‘over the last three to four months’”.
Little Rock, Arkansas
In Fortin, Dozens Are Injured in Shooting at a Nightclub in Little Rock, nytimes.com (7/1/2017) it was noted that “Dozens of people were wounded by gunfire at a nightclub early Saturday morning in downtown Little Rock, Ark., in what appeared to be the result of a dispute…The Power Ultra Lounge…was crowded with patrons around 2:30 a.m….the gunfire erupted. About 30 shots rang out over 10 seconds as people screamed and ducked for cover…The youngest victim…was 16 years old”.
In Anderson & Sorensen, Stockholm Truck Attack Kills 4; Terrorism Is Suspected, nytimes.com (4/7/2017) it was noted that “A man drove a stolen beer truck into a crowd of people in a popular shopping district in Stockholm on Friday afternoon and then rammed it into a department store, killing four people and injuring 15 others in an attack that unleashed bloodshed and panic on the streets of another European capital. ‘Sweden has been attacked’, Prime Minister Stefan Lofven said in a televised news conference. ‘This indicates that it is an act of terror’”.
St. Petersburg, Russia
In Nechepurenko & MacFarquhar, Explosion in St. Petersburg, Russia, Kills 11 as Vladimir Putin Visits, nytimes.com (4/3/2017)(“The train had just entered a tunnel between stations, on its way out of a sprawling hub, when the bomb exploded. The homemade device, filled with shrapnel, tore through a third car. It killed 11 people; wounded more than 40, including children, and spread bloody mayhem as the train limped into the Technology Institute station with smoke filling the air…’What a nightmare’ somebody yelled amid piercing screams”.
In Chiem, US Lifts Laptop Ban For Royal Jordanian, Kuwait Airways, law360.com (7/10/2017) it was noted that “The U.S. on Sunday cleared Royal Jordanian Airlines and Kuwait Airways to allow large personal electronic devices, such as laptops, in their aircraft cabins aboard U.S.-bound flights from Jordan and Kuwait after they tightened their passenger screening procedures”.
Travel Ban Update
In Jordan, Grandparents Win Reprieve From Trump Travel Ban in Federal Court, nytimes.com (7/14/2017) it was noted that “A federal judge in Hawaii ruled late Thursday that the Trump administration’s temporary ban on travelers from six predominantly Muslin countries and on refugees should not prevent grandparents and other close relatives from entering the United States”
Stay Away From Chicago, Please
In Deadliest July 4 weekend in Chicago in Years, over 100 shot despite extra police, travelwirenews.com (7/5/2017) it was noted that “Over 100 people were shot over the four-day weekend in Chicago, with a dozen killed. This despite more than 1,000 extra officers being deployed on the streets during the holiday”.
Stay Away From Columbia, Please
In Death toll from Columbia’s mudslides rises to 254, travelwirenews.com (4/2/2017) it was noted that “Victims dug through the rubble searching for loved ones and trying to save the last remaining possessions on Saturday (April 1) after mud slides in the Colombian city of Mocoa, Putumayo Department, killed 254 people and injured hundreds more”.
In Casey, ‘The Bodies Are Decomposing’ After Mudslide in Columbia, nytimes.com (4/3/2017) it was noted that “The bodies were piling up on Monday morning on Mocoa, a Columbian city where mud and debris had made it impossible in places to see that anyone had ever lived there. Rescue workers continued to scour the rubble for the dead. And family members…pleaded for the bodies of loved ones so they could offer them a proper burial”.
How Many Died In London Fire?
In Nordlan & Magra, How Many Died in London Fire? Anger Rises as Police Won’t Say for Sure, nytimes.com (7/10/2017) it was noted that “On Monday, after weeks of criticism, the police for the first time offered an estimate of the number of people who should have been in the building that night-350-and said that of that figure, 255 had survived and 14 were not at home, which would imply that 81 people had died. But the official death toll in London’s deadliest fire since World War II has been repeatedly challenged by survivors and their advocates…From the day of the fire, June 14, when the death toll was initially announced as only six and later 12, people began to complain that the ;police were giving low estimates. It was clear that flames had engulfed the entire building in a very short time, forcing some-no one has divulged how many-to jump out of higher floors and others to flee down the single, smoke-choked staircase”.
Up Close And Personal: Killed By Jet Blast
In Tourist killed by jet blast on world-famous St. Maarten beach, eturbonews.com (7/13/2017) it was noted that “A New Zealand woman has died after the force of a jet blast lifted her off the ground at a beach on St. Maarten, next to a runway popular among tourists wishing to experience the force of airplane engines up close”
Slime Eels, Anyone?
In Mele. Chain-Reaction Crash With Minor Injuries, Except for the Slime Eels, nytimes.com (7/14/2017) it was noted that “If you thought you were enduring a ‘summer of hell’ commute, consider the repulsive mess created on an Oregon highway on Thursday in a collision of modern transportation and prehistoric fish. Picture the scene from the 1984 ‘Ghostbusters’ movie in which Dr, Peter Venkman, played by Bill Murray, complains about being ‘slimed’. Then multiply that a thousand-fold and you’ll get some idea of what happened on a coastal highway in Depoe Bay, Ore., about 100 miles west of Portland. A truck hauling 7,500 pounds of hagfish, also known as slime eels, was (in an accident resulting in containers of slime eels spilling onto the highway and several cars)”
In Philippines Earthquake: Trapped Guests in three-Story Pension Hotel, eturbonews.com (7/6/2017) it was noted that “A three-story pension house in the town of Kananga in Leyte province collapsed Thursday afternoon after a magnitude 6.5 earthquake struck the region”.
Another Train Derailment
In McGeehan & Tarbell, Penn Station Derailment Gives Stark Proof of Track’s Disrepair, nytimes.com (7/7/2017) it was noted that “If there were any lingering doubts about the urgency of the comprehensive repairs to the tracks at Pennsylvania Station in Manhattan, the derailment of another commuter train on Thursday night should have quashed them. The derailment, the third since late March at Penn Station, happened at a crucial junction that is scheduled to be closed and replaced this summer”.
Holiday Nightmare In Bavaria
In Steinmetz, Holiday Nightmare in Bavaria: Tour Bus in flames after deadly Autobahn crash, eturbonews.com (7/3/2017) it was noted that “A tourist bus with mostly senior citizen travelers burst into flames on the A9 Autobahn (freeway) in Bavaria, Germany after colliding with a truck. Officials in Germany say several people have been confirmed dead, at least 30 people were injured in the crash and 18 are reported missing”.
Marriott Sued For Unwanted Phone Calls
In Hanson, Consumers Say Marriott Violated TCPA With Unwanted Calls, law360.com (7/3/2017) it was noted that “A proposed class of consumers have filed suit against Marriott International Inc. in New York federal court, accusing the hotel giant of sending unwanted prerecorded phone calls to consumers’ cell phones in violation of the Telephone Consumer Protection Act…(The plaintiff) seeks to represent a class that consists of all persons in the United States who, beginning four years before she filed her complaint received robocalls or text messages promoting Marriott via an ATDS or with an artificial or prerecorded voice (and) who didn’t give the hotel company their prior express consent”.
Speeding Up Airport Screening
In Vora, T.S.A. Testing 2 Technologies to Speed Airport Screening, nytimes.com (6/28/2017) it was noted that “Yes, there are those constant warnings of long lines at security checkpoints, but the agency recently introduced pilot programs of two technologies intended to significantly speed up the screening process: computer tomography three-dimensional (CT 3D) bag screening and biometric fingerprint identification…one thing fliers shouldn’t expect this summer when going through security lanes is being asked by the agency’s employees to remove their books from their carry-on luggage”.
Museum Of Ice Cream
In Museum of Ice Cream announces its opening in Los Angeles, etn.travel (3/28/2017) it was noted that “Museum of Ice Cream opens its doors to the West Coast this April claiming sunny Los Angeles as its highly anticipated second locations…Museum of Ice Cream captivated a global audience with its unprecedented 2016 launch in New York City, selling out in five days and attracting a waitlist of 200,000…Interactive highlights include a ‘banana split’ comprised of ten thousand ‘bananas’, a mint ‘grow house’, a room dedicated to California, a melted popsicle jungle and more, The iconic swimmable sprinkle pool filled with one hundred million sprinkles”. Enjoy.
Babies Should Be Compensated
In Paris, Babies deserve flight delay compensation too, court finds, msn.com (4/6/2017) it was noted that “After a Ryanair flight was delayed by nine hours, the airline agreed to pay compensation to one of the adult male passengers but refused to pay the same amount to his six-month-old daughter, who had sat on his lap during the flight. The budget airline argued that it should not have to pay compensation to babies who do not have a seat reservation and who are only subject to a (E20) infant fee. It also said that the little girl could not have suffered trouble and inconvenience because of her young age. But a judge at Liverpool County Court disagreed and ruled that the baby was a passenger for the purposes of the regulations. Ryanair has called the ruling ‘daft’ and is instructing its lawyers to immediately appeal”.
Chinese Tourism Academy
In Italian city signs agreement with Chinese tourism academy, travelwirenews.Com ( 3/29/2017) it was noted that “China Tourism Academy signed an agreement with the Italian city of Bologna in Beijing on Wednesday to carry out research on Chinese tourists’ habits and needs….Matteo Lepore, deputy mayor of Bologna, said the city, with its long history, rich culture and delicious food, is a worthwhile destination for Chinese tourists. It also has the oldest university in Europe, which now hosts about 1,000 students from China”.
Japanese Corpse Hotel
In Rich, Crematory Is Booked? Japan Offers Corpse Hotels, nytimes.com (7/1/2017) it was noted that “The minimalist rooms at the Hotel Relation here in Japan’s third-largest city are furnished with plain twin beds. Flat-screen televisions adorn the walls. Plastic-wrapped cups and tooth brushes are provided in the bathrooms. And just across the hall are the rooms where the corpses rest. Checkout time, for the living and the dead, is usually no later than 3 p.m. The Hotel Relation is what Japanese call an ‘itai hoteru’ or corpse hotel…Part mortuary, part inn, these hotels serve a growing market of Japanese seeking an alternative to a big, traditional funeral in a country where the population is aging rapidly, community bonds are fraying and crematories are struggling to keep up with the sheer number of people dying”.
Flash Floods In Vietnam
In Flash Floods forces hundreds of tourists to flee Vietnamese resort, eturbonews.com (7/1/2017) it was noted “A flash flood hit a resort in the central province of Thua Thien-Hue on Friday, forcing holidaymakers to flee. Flood waters from upstream poured down into the Suoi Voi (Elephant Srings) Summer Resort in Loc Tien Commune at about 4 p.m., while around 1,000 people were still bathing there. Hundreds of tourists panicked and fled to higher ground”.
Elephants Relax A Little
In Gettleman, Elephants Get a Reprieve as Price of Ivory Falls, nytimes.com (3/29/2017) it was noted that “Finally, there’s some news for elephants. The price of ivory in China, the world’s largest market for elephant tusks, has fallen sharply, which may spell a reprieve from the intense poaching of the past decade. According to a report released on Wednesday by Save the Elephants, a respected wildlife group in Kenya, the price of ivory is less than half what it was just three years ago, showing that demand is plummeting. Tougher economic times, a sustained advocacy campaign and China’s apparent commitment to shutting down its domestic ivory trade this year were the drivers of the change, elephant experts said”.
Avis, Hertz & Self-Driving Cars
In Huddleston, Avis Shares Jump on Alphabet Self-Driving Car Partnership, fortune.com (6/26/2017) it was noted that “Waymo, the self-driving car unit of Google-owned Alphabet, has reached an agreement with Avis Budget Group under which the rental car company will manage Waymo’s fleet of autonomous vehicles. Avis will provide storage and maintenance services for the Waymo fleet of self-driving vehicles in Phoenix”.
In Webb & Welch, Apple working with Hertz to manage small driverless fleet, msn.com (6/27/2017) it was noted that “Apple is leasing a small fleet of cars from Hertz to test self-driving technology, an agreement that echoes a larger deal between competitors Alphabet Inc. and Avis Budget Group”.
Uber’s Self-Driving Cars On Hold
In Isaac, Uber Suspends Tests of Self-Driving Vehicles After Arizona Crash, nytimes.com (3/25/2017) it was noted that “Uber said on Saturday that it was suspending the testing of its self-driving vehicles, a day after one of the vehicles was involved in a collision in Tempe, Ariz. The Uber vehicle, which had a person in the driver’s seat but was in self-driving mode, was not at fault in the accident, according to…a Tempe Police Department spokeswoman. Uber’s Volvo XC90 sport utility vehicle was hit when the driver of another car failed to yield…The collision caused Uber’s vehicle to roll over onto its side”.
Who Stole Waymo’s Technology?
In Wakabayashi & Isaac, Uber Denies It Is Using Stolen Waymo Technology, nytimes.com (4/7/2017) it was noted that “Uber denied claims from Waymo, the self-driving car company spun out of Google’s parent company last year, that it is using driverless car technology stolen by a former Google employee. In a federal court filing Friday, Uber said it started designing a key component for its own autonomous vehicle before hiring Anthony Levandokski, Uber’s head of self-driving cars whose departure from Google is at the heart of an intellectual property lawsuit between the two companies”.
In Farvel, Uber is getting out of Denmark, qz.com (3/28/2017) it was noted that “Sometimes Uber can be a sore loser. The ride-hailing company on Tuesday (March 28) said it will stop providing service in Denmark as of Aril 18, citing ‘unworkable’ changes to local taxi rules. Those changes, scheduled to take effect next year, cap new taxi driver licenses at 125 per quarter. They also require all cars to have fare meters, and restrict the types of cars that can be used for taxi-like purposes…the company has 2,000 Danish drivers and 300,000 Danish riders…In a handful of European countries-Sweden, France and Germany-Uber previously halted service of UberPop, which is comparable to UberX in the U.S. It pulled out of Taiwan earlier this year after racking up about $10 million in fines…In London, a lawyer recently took the first step to sue Uber and demand that the company pay the UK’s 20% value added tax on every ride. In Spain, Uber has sparked vehement protests”.
Brooklyn’s Kosher Pizza War
In Kilgannon, In Brooklyn’s Kosher Pizza War, Modern Tastes Battle Ancient Law, nytimes.com (3/28/2017) it was noted that “In a city as pizza-crazed as New York, pizza wars erupt with some regularity, from dollar slice joints battling for customers in Manhattan to a Mafia-tinted dispute over a stolen sauce receipt between a pizza shop in Brooklyn and another in Staten Island. But perhaps nothing compares to a kosher pizza war, pitting 21st-century foodie-ism against the decidedly 19th-century world of an insular Hasidic neighborhood. Two pizza restaurant owners, both Orthodox Jews, have become entangled in an only-in-Brooklyn lawsuit, not in an August courthouse, but in an obscure hall of justice known as the Rabbinical Court of Borough Park, which hears cases in a simple room above a synagogue on a residential block. At the center of the battle are not prices or sauce recipes, but cryptic interpretations of holy law set down in ancient Aramaic thousands of years ago. Both sides have invoked rules dictated by the Torah and the Talmud, as well as a cookbook’s worth of interpretations of kosher rules and certification standards”.
India’s Phone Romeos
In Barry, India’s ‘Phone Romeos’ Look for Ms. Right via Wrong Numbers, nytimes.com (3/22/2017) it was noted that “In a glass-sided call center, police constables clickety clack on computer keyboards, on the trail of particularly Indian sort of criminal. The ‘phone Romeo’ as he is known here, calls numbers at random until he hears a woman’s voice, in the hope of striking up a romantic attachment. Among them are overeager suitors (‘Can I recharge your mobile?’), tremulous supplicants (‘I am talking to you, madam, but my body is shaking’) and the occasional heavy breather (‘I want to do the illegal things with you’). Intentionally dialing wrong numbers is a labor-intensive way to find a girlfriend. But it is increasingly common in a range of countries-Morocco, Papua New Guinea, Bangladesh and India are examples-where traditional gender segregation has collided head-on with a wave of cheap new technology. India is justly proud of its mobile-phone revolution. Call tariffs are among the world’s lowest, and competition has sent the price of broadband plummeting. An estimated 680 million Indians use cellphones, with three million new ones coming online every month”.
Deep In The Amazon
In Romero, Deep in the Amazon a Remarkable Beach (and Ant-Eating) Experience, nytimes.com (3/20/2017) it was noted that Alter Do Chao, Brazil-Even though it is far removed from the sea in a remote corner of the Amazon jungle, Alter do Chao must rank among the world’s most alluring beach towns. White-sand beaches along the Tapajos River beckon visitors who drive from as far as Cuiaba, a landlocked city nearly 1,000 miles to the south. The clear, warm waters lure snorkelers and practitioners of standup paddle boarding. While on a reporting trip this year in the Amazon Basin, I escaped to Alter do Chao for a few days after hearing tales of its rugged beauty. In a country with more than 4,600 miles of coastline, I wondered if one of Brazil’s best beaches could really be situated deep in the untamed interior of the world’s largest rain forest. ‘If you want to experience the real Alter, you’ll have to eat the ant’, Pito, 55, a Cumaruara Indian who guides visitors on treks through the jungle explained to me. He plucked a sauva ant out of the jungle floor and dared me to eat it. Crunchy like popcorn, it was delicious, with hints of lemongrass”.
Travel Law Case Of The Week
As noted by the Court “Plaintiff Lisa Lee has sued defendant Air Canada, seeking damages for injuries allegedly received on board a flight operated by defendant. Lee alleges that she was injured when a piece of luggage that a fellow passenger was attempting to place into an overhead compartment above plaintiff’s seat feel and hit her on the head. The claim is governed by the Montreal Convention, which authorizes passengers to recover damages for injuries sustained in international flights. Defendant (seeks summary judgment dismissing the complaint) on the grounds that the incident that caused Lee’s alleged injuries was not an ‘accident’ within the terms of the Montreal Convention…(and further seeks to limit) its liability pursuant to Article 21 of the Montreal Convention (to) 113,100 SDRs (approximately $150,000)”.
“At the time of the incident, Air Canada’s flight attendants were ‘stationed throughout the cabin’ and were ‘performing their assigned duties including ‘greeting passengers, directing the passengers to their assigned seats and generally monitoring the cabin for safety’. There is no evidence that the flight crew made any announcement or warning concerning passenger flow during the boarding process. One Air Canada flight attendant…saw (Mr. X’s) bag fall but ‘could not prevent the bag from striking [Lee] as she was five to eight rows away and ‘there were other passengers in the aisle’”.
Regulations Complied With
“The parties do not dispute that (Mr. X’s) bag was fully compliant with Air Canada’s baggage policies; that neither federal regulations not Air Canada’s policies required cabin crew member to help (Mr. X) place his bag into the overhead bin…and that the number and positioning of the flight attendants on the flight was consistent with federal regulations and industry standards”.
The Montreal Convention
The Montreal Convention superseded the Warsaw Convention which was negotiated “and enacted in the first half of the twentieth century (with) its ‘cardinal purpose” was to ‘achiev[e] uniformity of rules governing claims arising from international air transportation’…Since the Warsaw Convention was drafted while the airline industry was in its infancy, it sought to ‘limit the liability of air carriers in order to foster the growth’ of that industry…Toward the end of the twentieth century, the state parties to the Warsaw Convention negotiated a treaty-the Montreal Convention-to replace the Warsaw Convention and its associated ‘hodgepodge of supplementary amendments and intercarrier agreements’…Unlike its predecessor, this new treat clearly ‘favor[ed] passengers rather the airlines’. It eliminated the Warsaw system’s ‘arbitrary caps’ on air carrier liability and held carriers ‘strictly liable for the first 100,000 (Special Drawing Rights (‘SDRs)] of proven damages for each passenger”.
Article 17: Accident
“Despite the difference between their overarching purposes, the Montreal Convention retained a number provisions that had been present in the Warsaw Convention (including Article 17 which provides that) The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took pace onboard the aircraft or in the course of any of the operations of embarking or disembarking”.
Defining An “Accident”
“Although the Montreal Agreement and Warsaw Convention allow for an injured passenger to recover damages from an air carrier only in the event of an ‘accident’, neither treaty defines the term. The United States Supreme Court filled this void in a 1985 case, Air France v. Saks, 470 U.S. 392, 405 (1985) by declaring clearly and unanimously that an ‘accident’ arises ‘only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger’. The Saks court directed the inferior courts to apply its definition both ‘flexibly’ as well as ‘broadly’…Nonetheless, the broad definition crafted by the Supreme Court does not mean that every injury that occurs on an airplane is the result of an ‘accident’”.
This Case Analyzed
“Courts have consistently found that items falling from overhead compartments are both ‘unexpected and unusual’ and ‘external’ to the unfortunate passengers upon whom the items land (citing Maxwell v. Aer Lingus Ltd., 122 F. Supp. 2d 210 (D. Mass. 2000); Smith v. American Airlines, Inc., 2009 U.S. Dist. LEXIS 94013 (N.D. Cal.2009 (‘The bottle falling from above was both ‘unexpected and unusual’, it was an event that was ‘external’ to plaintiff’s body and it caused plaintiff bodily harm. Thus, the requirements of Saks…are satisfied’)…Because another passenger’s bag falling onto an unsuspecting passenger’s head was an unexpected or unusual event that was external to her—this Court finds that the circumstances in this case constitute an ’accident’ pursuant to Article 17 of the Montreal Convention”.
“Pursuant to Article 21 of the Montreal Convention, an airline is not liable for damages exceeding 100,000 SDRs if the carrier proves that ‘such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents’…Today the cap on an airline’s ‘strict liability’ is actually 113,100 SDRs…because of inflation…Having considered the evidence…the Court finds that Air Canada has shown that as a matter of law it exercised reasonable case (and) has established that it was not negligent as matter o (and hence) its liability is limited to 113,100 SDRs of provable damages”.
The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 41 years including his annually updated law books, Travel Law, Law Journal Press (2016), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), Class Actions: The Law of 50 States, Law Journal Press (2016) and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org
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