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MattCasey

Freedom of the Seas Fatality?

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A lot to unpack here but I'll try to take a shot*

Criminal liability-multiple news outlets are reporting that the grandfather is being investigated for criminal liability.  Winkleman is not a criminal attorney but the outcome of the criminal case could/will have implications upon a civil recovery.  He wants to get out in front of that story-line and you can bet that a strong criminal defense attorney will be hired.  

Civil liability-One aspect that is often overlooked with the "cruise line cases" is what law would apply.  Maritime law and conflict of laws can create a number of complicated questions about what jurisdiction's laws would control the case.  For civil actions a lot of times the cases end up applying Florida law.  In this case Florida (RCL HQ, where tickets are purchased from, etc) has interest and Puerto Rico (embark/disembark, locus of accident) are the two likely applicable jurisdictions.  Winkleman will want PR law to apply because there's something called joint and several liability.  This means that if any "joint tortfeasor (party responsible)" is found liable for any reason, then the full award can be recovered from any person found liable. 

Why does this matter-because grandpops was negligent, there's no doubt about it.  As everyone here said, he either failed to see something that was pretty obvious or otherwise made a really poor choice.  So what about RCL? Winkelman will argue RCL was negligent because it failed to take reasonable steps to prevent a foreseeable accident.  The argument will be that it was foreseeable that someone may not realize that the glass had been opened and it would have been easy enough to install screens/warnings or other safety measures to prevent this from happening.  As a note: nearly all hotels in the US that have windows you can open have some sort of child protection on them because there were a rash of suits in the 90s about kids banging on screens and falling out of windows.

A jury may or may not actually agree that anything that RCL did was unreasonable, or they might say "hey, they could have put a warning by the window," they could have done a little bit more, etc. etc.  We see it all the time, and the jury will almost certainly assign liability to grandpops.  However, this is where the joint and several liability kicks in, lets say the jury says grandpops is 99% liable and RCL is 1% liable.  Family can still recover the full award from RCL.  Both jurisdictions allow for awards for emotional pain and suffering from the loss of a child as well, those tend to be big numbers.  

 

*I am an attorney, but I am not your attorney, this should not be construed as legal advice or an official opinion regarding applicable laws or principals.

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5 minutes ago, Crown&AnchorEsq said:

A lot to unpack here but I'll try to take a shot*

Thanks for the detailed information.

If I'm not mistaken, Winkleman was engaged the day of the accident.  I suspect if that is the case a local criminal attorney was also.  

They've moved very quickly.  Afternoon accident, understandably terribly distraught and sedated yet have researched and engaged counsel back on the mainland within hours.  My head would be spinning, I wouldn't be thinking about engaging an attorney at that moment in time. 

Why is Winkleman making such an effort to be so public about this?  A presser within 24 hours of the incident for example.

 

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Forum selection - I do not think there will be J&S liability in Florida.

 9. FORUM SELECTION CLAUSE FOR ALL LAWSUITS; CLASS ACTION WAIVER: a. EXCEPT AS PROVIDED IN SECTION 10 (b) WITH REGARD TO CLAIMS OTHER THAN FOR PERSONAL INJURY, ILLNESS OR DEATH OF A PASSENGER , IT IS AGREED BY AND BETWEEN PASSENGER AND CARRIER THAT ALL DISPUTES AND MATTERS WHATSOEVER ARISING UNDER, IN CONNECTION WITH OR INCIDENT TO THIS AGREEMENT, PASSENGER'S CRUISE, CRUISETOUR, LAND TOUR OR TRANSPORT, SHALL BE LITIGATED, IF AT ALL, IN AND BEFORE THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA LOCATED IN MIAMI-DADE COUNTY, FLORIDA, U.S.A., (OR AS TO THOSE LAWSUITS TO WHICH THE FEDERAL COURTS OF THE UNITED STATES LACK SUBJECT MATTER JURISDICTION, BEFORE A COURT LOCATED IN MIAMI-DADE COUNTY, FLORIDA, U.S.A.) TO THE EXCLUSION OF THE COURTS OF ANY OTHER STATE, TERRITORY OR COUNTRY. PASSENGER HEREBY CONSENTS TO JURISDICTION AND WAIVES ANY VENUE OR OTHER OBJECTION THAT HE MAY HAVE TO ANY SUCH ACTION OR PROCEEDING BEING BROUGHT IN THE APPLICABLE COURT LOCATED IN MIAMI-DADE COUNTY, FLORIDA. b. CLASS ACTION RELIEF WAIVER. PASSENGER HEREBY AGREES THAT EXCEPT AS PROVIDED IN THE LAST SENTENCE OF THIS PARAGRAPH, PASSENGER MAY BRING CLAIMS AGAINST CARRIER ONLY IN PASSENGER'S INDIVIDUAL CAPACITY. EVEN IF THE APPLICABLE LAW PROVIDES OTHERWISE, PASSENGER AGREES THAT ANY ARBITRATION OR LAWSUIT AGAINST CARRIER, VESSEL OR TRANSPORT WHATSOEVER SHALL BE LITIGATED BY PASSENGER INDIVIDUALLY AND NOT AS A MEMBER OF ANY CLASS OR AS PART OF A CLASS OR REPRESENTATIVE ACTION, AND PASSENGER EXPRESSLY AGREES TO WAIVE ANY LAW ENTITLING PASSENGER TO PARTICIPATE IN A CLASS ACTION. IF YOUR CLAIM IS SUBJECT TO ARBITRATION AS PROVIDED IN SECTION 10 BELOW, THE ARBITRATOR SHALL HAVE NO AUTHORITY TO ARBITRATE CLAIMS ON A CLASS ACTION BASIS. YOU AGREE THAT THIS SECTION SHALL NOT BE SEVERABLE UNDER ANY CIRCUMSTANCES FROM THE ARBITRATION CLAUSE SET FORTH IN SECTION 10.b BELOW, AND IF FOR ANY REASON THIS CLASS ACTION WAIVER IS UNENFORCE

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1 hour ago, twangster said:

 

 

They've moved very quickly.  Afternoon accident, understandably terribly distraught and sedated yet have researched and engaged counsel back on the mainland within hours.  My head would be spinning, I wouldn't be thinking about engaging an attorney at that moment in time. 

Why is Winkleman making such an effort to be so public about this?  A presser within 24 hours of the incident for example.

 

Exactly. That is why this topic/thread has so many views and comments already. Alot of us just don't get it.

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1 hour ago, twangster said:

If I'm not mistaken, Winkleman was engaged the day of the accident.  I suspect if that is the case a local criminal attorney was also.  

They've moved very quickly.  Afternoon accident, understandably terribly distraught and sedated yet have researched and engaged counsel back on the mainland within hours.  My head would be spinning, I wouldn't be thinking about engaging an attorney at that moment in time. 

Why is Winkleman making such an effort to be so public about this?  A presser within 24 hours of the incident for example.

 

Classic public play to avoid charges and/or attain settlement.

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Maybe the reason they have moved so quickly is the father of the baby is a policeman and his friends are watching his back for him and making sure they help with the legal issues while they are in this horrible nightmare situation.  This is a very nice family.  My son worked with the father for about 8 years.  Have some compassion folks!  It is sad enough without a mock jury and trial.  May we all never feel the pain and hurt that this family is now dealing with and will for the rest of their lives.

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1 hour ago, Zambia-Zaire said:
2 hours ago, twangster said:

Thanks for the detailed information.

If I'm not mistaken, Winkleman was engaged the day of the accident.  I suspect if that is the case a local criminal attorney was also.  

They've moved very quickly.  Afternoon accident, understandably terribly distraught and sedated yet have researched and engaged counsel back on the mainland within hours.  My head would be spinning, I wouldn't be thinking about engaging an attorney at that moment in time. 

Why is Winkleman making such an effort to be so public about this?  A presser within 24 hours of the incident for example.

 

If I was speculating, I would say someone immediately called home to tell about the tragedy and that person contacted a lawyer on their behalf, most likely a local attorney who said this was beyond his scope, but Winkelman is well known for suing rcl, call him. It's highly unlikely the family on the ship called him direct 

Do I think rcl should be liable-based on info as I have heard it, no. I was on navigator and had no issue figuring out which windows were open, and, obviously heights=danger of accident. As a libertarian I think there should be a lot more personal responsibility. However, if I was the one at home that got called, I would find a lawyer for my family or friends and make sure that they had the same caliber of lawyer as rcl has. Because the point of the court system is to get to the truth and that only works if both sides are represented by competent legal counsel.

 

 

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Here's the thing -- life is dangerous and terrible, awful accidents happen.  And the awful, horrible things that happen can be just unimaginably painful and impossible to ever forget.  Reality, however, is that most of the time, these awful, horrible things really are just plain accidents.  There are not bad actors.  Royal Caribbean cannot create a cruise ship without windows that anyone would want to cruise on in the Southern Caribbean.  That area of the world is just plain hot.  If every area on a cruise ship were indoors, no one would cruise.  Outdoor areas require air circulation and a breeze or they become unbearable.  Thus, the pool deck of ships needs to be outdoors and it needs windows and fresh area.  There is no alternative.  Similarly, most of us want access to open air balconies, because being indoors on a cruise ship stinks and being outdoors without a breeze is miserable.

On the other hand, all of us do stupid things occasionally.  Who hasn't done something stupid like accidently not noticing a stop sign or a red light?  Who hasn't failed to notice a car in the lane next to us when changing lanes? Who hasn't lost track of a toddler for a couple of minutes at some point? All of us experience moments of distraction where we accidently engage in conduct that could cause an accident.  In almost all instances, our momentary lapses do not result in harm to us or anyone else.  In rare and awful cases, absolute tragedy results.  

Here, one possible scenario is that grandpa got on a ship.  A lot is going on and he focused on many different distractions at once.  He puts his granddaughter on his lap as he always does, and she stands up to look out over the rail.  Or he unthinkly, out of habit, stands her up on the rail as he always does and just for a brief second does not recongnize the danger of the open window and she is gone.  It is horrible and beyond tragic.  It is something too awful for anyone to contemplate.  But, it is not something for which either ship or granddad should be blamed.  

I took my eye off my five year old one day while we were swimming in a placid swimming hole I thought was safe.  I two seconds, my little boy was taken by a current I never saw or recognized over 20 foot dam.  He went over the waterfall, came up, and managed to hold onto a fallen tree until we could get to him and he was fine.  For the rest of my life, however, I will relive the horror of that moment and I will never, ever overcome the guilt of not recognizing the danger of that swimming area.  But, blaming me for my negligence would not help anyone.  It might make folks feel better about the safety of their own kids.  But, really, life is dangerous.  And every once in awhile, horrible accidents happen.  My deepest sympathy is with this family. 

The attorney, however, I hold the attorney in absolute contempt.

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27 minutes ago, Vlgg said:

Maybe the reason they have moved so quickly is the father of the baby is a policeman and his friends are watching his back for him and making sure they help with the legal issues while they are in this horrible nightmare situation.  This is a very nice family.  My son worked with the father for about 8 years.  Have some compassion folks!  It is sad enough without a mock jury and trial.  May we all never feel the pain and hurt that this family is now dealing with and will for the rest of their lives.

I think everyone has compassion, but the attorney's public statements on behalf of the family have put them in a bad light publically.  That was their choice.

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29 minutes ago, Whizbank said:

If I was speculating, I would say someone immediately called home to tell about the tragedy and that person contacted a lawyer on their behalf, most likely a local attorney who said this was beyond his scope, but Winkelman is well known for suing rcl, call him. It's highly unlikely the family on the ship called him direct 

Do I think rcl should be liable-based on info as I have heard it, no. I was on navigator and had no issue figuring out which windows were open, and, obviously heights=danger of accident. As a libertarian I think there should be a lot more personal responsibility. However, if I was the one at home that got called, I would find a lawyer for my family or friends and make sure that they had the same caliber of lawyer as rcl has. Because the point of the court system is to get to the truth and that only works if both sides are represented by competent legal counsel. 

Valid points and could very possibly be the case...however, as far as my point is concern...a statement was made, "Why is Winkleman making such an effort to be so public about this?  A presser within 24 hours of the incident?" A very classic play is at hand here, of public pressure to force protection of brand name(make publicity quickly go away & settle), while gaining public sympathy for the accused, whom face possible charges...not unusual at all.

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On 7/9/2019 at 5:18 PM, JohnK6404 said:

Not sure if anyone familiar with Freedom can tell from these screen captures from the news report showing the start of the investigation exactly where this is on the ship. It looks like there are a few windows open...

Bottom line, only after an adult lifts a child that high (estimating 4 feet or so above the deck) in the air could they possibly fall out. Unless you have extremely poor eyesight and cannot feel a breeze it's blatantly obvious when a window is open. Why would you even think of placing a child up against a glass/plexiglass pane in the first place? How is that cute or funny? You can also see all of the tables and chairs right behind the investigators... 

When we were in the Solarium on Allure, I immediately noticed the open windows (I recall they were higher of course) that they opened for circulation. You don't need to be a rocket scientist to notice them.

https://www.express.co.uk/news/world/1150533/royal-caribbean-cruise-ship-freedom-of-the-seas-death-baby-girl-san-juan-puerto-rico

image.thumb.png.c3bd59165ac0bcc90072e88e280c2a9d.png

 

image.thumb.png.31b616796cbe878bccf5e39cb878d728.png

 

Just to be clear, are the windows talked about at chest level of this guy or the one where his legs are?  It looks like the windows where the guys legs are can slide open given the panel in the middle.  Can anyone that has been on the ship verify if these slide open too?

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23 hours ago, Aeroman380 said:

 

Just to be clear, are the windows talked about at chest level of this guy or the one where his legs are?  It looks like the windows where the guys legs are can slide open given the panel in the middle.  Can anyone that has been on the ship verify if these slide open too?

I have been on freedom.... While I don't remember specifically if the bottom windows can open, I can adamantly say that I never ever saw them open.  I only ever saw the middle ones.  I don't believe the bottom ones move... Jane

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6 hours ago, Aeroman380 said:

 

Just to be clear, are the windows talked about at chest level of this guy or the one where his legs are?  It looks like the windows where the guys legs are can slide open given the panel in the middle.  Can anyone that has been on the ship verify if these slide open too?

All accounts and photos, including the statement from their attorney, refer to the chest high window(s) as shown in the screen capture. Their attorney stated the child was lifted up and placed on the railing just prior to falling out of the open window. Here is the quote from their attorney and the source:

"Essentially her grandfather lifts her up and puts her on a railing and where he thinks that there is glass there because it's clear, but it turns out there was no glass there," he said. "She goes to bang on the glass like she would have at one of those hockey rinks, and the next thing you know, she's gone."

https://www.today.com/news/family-toddler-who-fell-cruise-ship-speaks-out-about-cause-t157908

I'm still very confused over how one can assume there is glass in an opening that is "clear" when the entire glass wall on Deck 11 is clearly tinted green.

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1 hour ago, JohnK6404 said:

"Essentially her grandfather lifts her up and puts her on a railing and where he thinks that there is glass there because it's clear, but it turns out there was no glass there," he said.

This is what bother's me. We all know that if you pass or stand at one of these open windows that there is a wind that blows. How can you NOT know the window is open??? Moreover, wouldn't  you question why all the window panes are tinted but this one "supposed" pane isn't?? This idiot of an attorney is trying to spin the story but will end up losing at the long run. RCCL will most likely file a Motion for Summary Judgment should this attorney file suit as previously stated, grandfather admits to his negligence.

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Hi All,

I'm new to this group, but have been on Freedom and have been following along since we booked our Harmony cruise for next spring.  

9 hours ago, Vlgg said:

Maybe the reason they have moved so quickly is the father of the baby is a policeman and his friends are watching his back for him and making sure they help with the legal issues while they are in this horrible nightmare situation.  This is a very nice family.  My son worked with the father for about 8 years.  Have some compassion folks!  It is sad enough without a mock jury and trial.  May we all never feel the pain and hurt that this family is now dealing with and will for the rest of their lives.

 

We all have deep compassion and sincere sympathy for this family.  I feel shaken to my core since first hearing about this tragic incident.   But what I find even more troubling and disturbing is the handling of events since this tragedy occurred. 

The immediate obtaining of their career cruise line litigator and their statements to the media just don't make sense. The claiming not to know the window was open, the hockey glass reference and subsequent released photo, being in the kids water zone when it occurred.  None of it makes sense.   I would have a lot more respect if the Grandfather had said; "I picked up Chloe to look out of the window and she wriggled out of my arms."   This makes sense. Yes, he is absolutely responsible, but we can understand how that would be plausible.  It's a devastating freak accident and we would send our outpouring of love and support to this family and the Grandfather even more so.  I'm sure many of us would gladly donate to a fund set up for the family and in Chloe's memory. My heart is literally breaking over the pain they must feel and will have to live with.

Instead, their refusal to take any responsibility and what feels like false statements pointing the blame at RCI  leaves me with a negative view of the family and an almost defensive feeling towards RCI. 

Toddler Was in ‘Kid’s Water Zone’ When She Fell to Her Death From Cruise Ship in Puerto Rico: Attorney

https://ktla.com/2019/07/09/toddler-was-in-kids-water-zone-when-she-fell-to-her-death-from-cruise-ship-in-puerto-rico-attorney/

This is just so blatantly untrue that it is deeply upsetting.  

 "The girl’s family wants to know why a window that “should have been closed securely” was open. “The family needs answers as to why there would be an open window in a wall full of fixed windows in a kids’ play area? Why would you have the danger without any warning, sign, or notice?” he asked.

Again,  this just feels wrong and untrue on so many levels.  

Winkleman said he will do everything he can to hold the cruise line "accountable for what appears to me to be negligence."

This right here shows his true motives. "Accountable" being as much money from RCI that he can get.  Whether is bending the truth or slandering RCI in the media. This guy appears to have one motive and he is good. 

It is just deeply disturbing to see the family and their lawyer pointing the blame at RCI for a clearly open window among many and it feels wrong to seek to profit off the tragic death of their daughter. I'm in favor of holding corporations responsible for negligence or when they put profits ahead of human safety, but this is not the case.  

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7 hours ago, mom2mybugs said:

I have been on freedom.... While I don't remember specifically if there bottom windows can open, I can adamantly say that I never ever saw them open.  I only ever saw the middle ones.  I don't believe the bottom ones move... Jane

I have been on Marnier, Indy, Navigator and those bottom windows don't open...I spent a lot of my time on the pool deck and around the section...I remember wisihing they had more windows that opened...the lower ones defn don't open!

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12 minutes ago, kpal711 said:

It is just deeply disturbing to see the family and their lawyer pointing the blame at RCI for a clearly open window among many and it feels wrong to seek to profit off the tragic death of their daughter. I'm in favor of holding corporations responsible for negligence or when they put profits ahead of human safety, but this is not the case.  

This is why many of us are voicing our thoughts in this thread.  We all have compassion and feel terrible about the loss of life.  If the family hadn't attacked the cruise line with such tenacity refusing to accept any blame or admit it was simply a terrible accident many of us would have remained silent and grieved with them.   

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54 minutes ago, monctonguy said:

II have been on Marnier, Indy, Navigator and those bottom windows don't open...I spent a lot of my time on the pool deck and around the section...I remember wisihing they had more windows that opened...the lower ones defn don't open!

I have been on Freedom for weeks at a time and I can tell you that none of the bottom windows open. The H2O Zone is centered in the ship. Starboard and port of it lay both paths used by people to move from aft to forward and vice versa as well as tables and chairs for sitting. The area the toddler fell is utilized by many people without children and include tables and chairs for their use. Both sides are smoke free areas. The railings that skirt both the port and starboard side of deck 11 are positioned far enough from the windows to prevent any adult who would feel the need (however foolish) to lean out the window and possibly fall out (unless you are nearing 7 feet tall).  They are not meant to be sat or stood upon by anyone.  I have taken many pictures through open windows on the Freedom. The window glass itself has a slight bluish tint to it so that along with them never being immaculately clean of water marks, etc. does not make for a good photo. Anyone, unless they have significantly failing eyesight, would be able to tell that a window is open on deck 11. The windows slide to one side making it very clear that the window is open as there are tracks visible when the window is open. That in addition to the air that comes through the window however slight would alert anyone to the absence of glass. As a grandparent myself, I can't imagine the pain this grandfather is going through. I know that when I am in the position of caring for my granddaughter I am more alert and on the defensive than I was with my own children.  I can't imagine how my children would feel if I was the one responsible for hurting much less the death my granddaughter. Childcare is a grave responsibility and the use of common sense along with acting to avoid any potential situation where the child may injure him or herself is an absolute necessity. I have had my granddaughter when she was four on Liberty of the Seas which has the same design as Freedom and we had just finished a sailing aboard Adventure of the Seas when this happened.   I saw pictures of the toddler banging on the glass at a hockey game (the rationale the attorney is giving for why Chloe was lifted up and placed by the window). Why the grandfather did not simply allow her to bang on the bottom glass (albeit something that I would not encourage) is beyond me.  Clearly he had a lapse in judgment and was momentarily distracted, a situation, unfortunately, that led to the tragedy.  In no way is Royal Caribbean responsible for the toddler's death.  

 

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@MrMarc with regards to the forum selection clause in the cruise contract, that really only applies to "consumer complaints"  the BI/Wrongful death tort claims follow the usually common law choice of laws principles.

14 hours ago, MrMarc said:

 9. FORUM SELECTION CLAUSE FOR ALL LAWSUITS; CLASS ACTION WAIVER: a. EXCEPT AS PROVIDED IN SECTION 10 (b) WITH REGARD TO CLAIMS OTHER THAN FOR PERSONAL INJURY, ILLNESS OR DEATH OF A PASSENGER , IT IS AGREED BY AND BETWEEN PASSENGER AND CARRIER THAT ALL DISPUTES AND MATTERS WHATSOEVER ARISING UNDER, IN CONNECTION WITH OR INCIDENT TO THIS AGREEMENT, PASSENGER'S CRUISE, CRUISETOUR, LAND TOUR OR TRANSPORT, SHALL BE LITIGATED, IF AT ALL, IN AND BEFORE THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA LOCATED IN MIAMI-DADE COUNTY, FLORIDA, U.S.A., ...

Emphasis mine.  

Going to attorneys immediately after an accident is more common than you think, especially when they're knocking on your door.  Publicity issues aside, if you are in an accident, particularly if its a situation where you have a good claim (say you get rear-ended) its not a bad idea to get an attorney involved asap just to make sure that all evidence is preserved.  Just because you hire an attorney does not mean that you have to file suit.  I'd have to check the statute of limitations in Puerto Rico but my guess is that suit wont be filed for at least a few years. (Statute is  3 years for tort (bodily injury) claims in most jurisdictions.)

The publicity...that's an attorney's strategy choice.  The client needs to approve it to some extent, but here Winkelman wants to control the narrative and get out in front of the grandfather being the sole cause of this accident.  As many have alluded "litigating in the news" is also a time-honored strategy, it provides some leverage to get the case settled or prevent it from dragging out.

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18 hours ago, monctonguy said:

I just read how they are trying to frame it as the ships fault?.....like WTH?...he sat her on a wooden railing against a window....even if they didn't know the windows open(which they would have on a 7 day cruise).....or someone else opened the window(I doubt it with a child leaning against it..they are quite heavy to move and open)....they shouldn't have the child left up there even if it wasn't glass...

 

Its absurd..the family screwed up and they want someone or something to blame.....

Based on the timing of when this happened, they would have just boarded (and thus would not have the 7 days experience with open windows).

Doesn't excuse the reckless action of the adult involved, but the "should have known the windows can open" piece wouldn't apply yet for the unobservant.

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