Tourists often slip, trip and fall, as in Jamaica (Hofer v. The Gap Inc.14) (guest falls into turtle pond at hotel after flip-flop breaks); Aruba (Leinhart v. Caribbean Hospitality Services Inc.)15 (hotel guest lying on beach in lounge chair and struck by truck); Hawaii (Courbat v. DaHano Ranch Inc.16) (horse riding accident); Namibia (Hall v. Voyagers International Tours Inc.17) (tourist trampled by wild elephant); Egypt (MacLachlin v. Marriott Corp.) (tourist in Egypt thrown from angry camel breaks eight ribs and fractures pelvis); Jamaica (Colby v. Norwegian Cruise Lines Inc.) (horse-riding accident during shore excursion).

• Airplanes, Tour Vans & Golf Carts. Tourists may be injured riding in airplane, tour vans and golf carts in Kenya (Rizzutti v. Basin Travel Service18) (tourists killed in crash of aircraft); in China (Barkanic v. General Administrator of Civil Aviation) (tourist killed in airplane crash during tour); Bolivia (Philippe v. Lloyd’s Aero Boliviano) (tourist takes plane to La Paz traveling from sea level to an altitude of 13,313 feet within 40 minutes during which he suffers cerebral injuries due to hypoxia); Kenya (Abercrombie & Kent v. Carlson Marketing Group) (tourists killed when plane crashes into a mountain); Vietnam (Pearl Cruises v. Cohon) (cruise passengers injured in automobile accident during shore excursion); Peru (Vermeulen v. Worldwide Holidays Inc.19) (tour van accident in Peru); Dominican Republic (Lang v. Corporacion De Hotels, SA)20 (golf cart struck by truck); Mali (Winter v. I.C. Holidays Inc.) (bus accident; driver unlicensed and uninsured); Germany (Chouset v. American Airlines Inc.) (tour bus door closes on tourist’s arm).

Life Can Be Very Different Abroad

Travelers assume that should they have an accident in a foreign country they will be protected by the same safety standards, high-quality medical care, consumer protection laws and user-friendly legal system available in the United States. The reality, however, may be quite the opposite.

• Safety Standards. In many foreign countries the safety standards may be much lower (see, e.g., Wilson v. Best Travel (tourist falls through weak plate glass window in Athens hotel; plate glass thickness standards lower in Greece than in England where tourist resided); Knoell v. Cerkvenik-Anderson Travel Inc. (18-year-old tourist from Arizona consumes large quantities of alcoholic beverages for three days and jumps to death from third-story hotel balcony; Arizona Dram Shop law does not apply; drinking age in Mexico is lower than in Arizona); Cicchiello v. Reney Tours Plane Broker Inc. (tourist injured when gas stove at hotel exploded).

• Emergency Medical Care. The quality of medical care may be much lower (Gianocostas v. RIU Hotels, SA21) (diabetic tourist misdiagnosed at hotel and local hospital); DeRoche v. Commodore Cruise Line, Ltd. (cruise passenger on shore excursion suffers injuries in motor scooter accident; medical malpractice by local infirmary in Cozumel, Mexico); Gillmore v. Caribbean Cruise Line (malpractice by ship’s doctor); Blinzler v. Marriott International Inc. (guest suffers heart attack at hotel; surviving spouse claims delay in obtaining medical assistance caused death; hotel liable for delay in calling emergency aid).

Foreign Substantive Law

The law may be less sympathetic22 to the injured traveler in, among other places, Egypt (MacLachlin v. Marriott Corp.) (tourist thrown from angry camel in Egypt; “an Egyptian forum which is based partially on Koranic law would be unduly harsh to plaintiff”); Dominican Republic (Calvo v. Sol Melia, S.A.) (tourist struck by motor boat while swimming; Dominican Republic does not recognize product liability claims); Gianocostas v. Interface Group23 (diabetic tourist misdiagnosed in Dominican Republic); Cayman Islands (Lehman v. Humphrey Cayman Ltd.) (recovery for wrongful death in Cayman Island may not exceed $5,000); China (Barkanic v. General Administration of Civil Aviation) (air crash; maximum recoverable damages limited to $20,000); Mexico (Wendelken v. Superior Court) (slip and fall; Mexico limits lost wage damages to 25 pesos per day); Hernandez v. Burger (auto accident; Mexican law limits recovery to the amount of the injured party’s medical and rehabilitative expenses and lost wages at the minimum rate).

Foreign Procedural Law

The applicable foreign legal system may discourage litigation as we know it in the United States by, among other things, barring contingency fee arrangements with attorneys and jury trials in, among other places, Bermuda (Bruemmer v. Marriott Corp.) (hotel guest playing golf falls off cliff adjacent to tee area for 18th hole and subsequently dies from his injuries; no contingent fees in Bermuda); Bahamas (Doe v. Sun International Hotels, Ltd.) (18-year-old female guest raped at hotel; no jury trials or contingency fees in Bahamas); Cayman Islands (Wilson v. Humphreys Cayman Ltd.) (rape at hotel; no contingency fees or jury trials in Cayman Islands); Jamaica (Reid-Walen v. Hansen) (motorboat accident; no contingency fees or jury trials in Jamaica); Trinidad and Tobago (Flynn v. General Motors Inc.) (car accident; no jury trial in Trinidad and Tobago); Israel (Gyenes v. Zionist Organization of America) (student drowned in Jordan River; no right to jury trial in Israel).

Is Forum Convenient?

Travelers injured abroad may commence a lawsuit in a U.S. court against a cruise line, foreign hotel, tour bus company or various other ground operators. In response the defendants may seek to dismiss the lawsuit because the U.S. forum selected is not convenient or a clause in the cruise passenger ticket, hotel registration form or tour participant contract states that all lawsuits must be brought in a specific forum. Although it is not dispositive the forum selected by the plaintiff will be given serious consideration, particularly, if the plaintiff resides in the forum (Guidi v. Inter-Continental Hotels Corp.) (murder in Egyptian hotel; “the choice of an American court over a foreign court should be given the heightened deference”).

Application of Foreign Law

In addition, the defendants may seek an early determination by the court that the law of a foreign country applies to one or more issues in the case. The applicable law, foreign or domestic, bears on the convenience of the selected forum. The theory being that foreign courts are better able to interpret their own law than the courts of a U.S. forum: Mercier v. Sheraton International Inc. (contract dispute; difficulty in interpreting Turkish law one reason for dismissal); Rudisill v. Sheraton Copenhagen Corp. (fall in Danish hotel bathtub; Danish courts better able to apply Danish law); Carnival Cruise Lines Inc. v. Oy Wartsila AB (contract dispute; Finnish courts better able to interpret Finnish law).

Conditions for Dismissal

Should the court grant a forum non conveniens motion it may condition dismissal upon the defendant agreeing to the transfer of the case to a distant forum for trial (Gianocotas v. Interface Group24) (dismissal conditioned on various waivers); Chhawchharia v. The Boeing Co.) (dismissal subject to defendant submitting to jurisdiction of English or Scottish courts, waiving any statute of limitation defense, conceding liability for all compensatory damages, providing access to all evidence, and paying the awarded damages); Diaz v. Mexicana de Avion SA (dismissal subject to defendant accepting service in and jurisdiction of Mexican courts, waiving statute of limitations, producing all evidence and witnesses, and agreeing to satisfy any judgments).

Alternative Forum Availability

Generally, the court will not dismiss a lawsuit unless there is an alternative forum available to hear plaintiff’s claim. The courts differ widely on just how different the alternative forum can be to still be “available.” Such factors include whether the foreign forum: recognizes U.S. legal theories (Mercier v. Sheraton International Inc.) (failure to show that Turkish law expressly recognizes claims for breach of contract and tortious interference with contract); allows contingency fee arrangements with attorneys (Lugones v. Sandals Resorts Inc.) (no contingency fees in Jamaica); provides for jury trials (Flynn v. General Motors Inc.) (no jury trials in Trinidad and Tobago); and limits recoverable damages (Abouchalache v. Hilton International Co.) (limit on punitive damages not dispositive).

• Location of Witnesses and Evidence. Proving or defending an accident case may require the production of witnesses and documentary and physical evidence which is located in the distant forum where the accident occurred. In arguing for dismissal the defendant will show the court a list of essential witnesses which are beyond the court’s jurisdiction and, hence, unavailable for trial (Gianocotas v. Interface Group)25; Dunham v. Hotelera Canco, S.A. (snorkeling accident in Mexico; witnesses not subject to subpoena power of U.S. courts); Magnin v. Teledyne Continental Motors (French witnesses not subject to subpoena power of U.S. courts).

The defendant may also assert that the jury must have a view of the accident scene (Rudisill v. Sheraton Copenhagen Corp.) (guest falls in hotel bathtub; view of site important consideration). The court must examine the actual necessity of each listed witness (Calvo v. Sol Melia, S.A.) (Spanish tourist struck by motorboat while swimming of the beach in Dominican Republic; all 41 witnesses to the accident lived in Dominican Republic and spoke only Spanish; motion to dismiss granted); Anderson v. Marriott Hotel Services Inc. (guest falls on hotel tennis court; although most witnesses reside in Hawaii the defendant failed to identify any of them; motion to transfer denied) and decide whether there are alternative forms of evidence which will make the witness’ presence unnecessary such as dispositions, video presentations and sworn statements (Bruemmer v. Marriott Corp.) (admissions, video tapes, models, photographs acceptable alternative evidence). Foreign witnesses may (MacLachlin v. Marriott Corp.) (Egyptian bell captain could be ordered to appear at trial in New York by resident employer hotel corporation) or may not (Gianocotas v. Interface Group),26 be compelled by a U.S. court to appear for depositions or a trial.

Court Congestion

Another factor which a court may consider is the extent to which the transferee court is able to handle the case sent to it. In Bhatnagar v. Surrendra Overseas Ltd., the court refused to transfer a case to the Calcutta High Court in India because there were only two judges available to handle a backlog of 156,477 pending cases. Describing the Indian court as “almost on the verge of collapse” the court concluded that it was not “available in any practical sense.”

Forum Selection: Cruise Lines

Forum selection clauses are used by cruise lines (Carnival Cruise Lines Inc. v. Shutte) (Florida forum selection clause enforced); Heinz v. Grand Circle Travel (passengers sustained injuries from malfunctioning doors aboard Blue Danube cruise ship on the Rhine in Germany; travel contract contained clause “all claims…must be litigated in Basel, Switzerland”); Moeller v. Cruiseshipcenters (Washington forum selection clause enforced); Effron v. Sun Line Cruises Inc. (Greek forum selection clause enforced); Hodes v. SNC Achille Lauro (Naples forum selection clause enforced).

Recently, two major cruise lines have drafted and implemented a forum selection clause that not only requires that all lawsuits be brought in a specific forum but that the lawsuit must be brought in a U.S. District Court. The enforcement of what amounts to a “ sovereign selection clause “ may have the effect of eliminating jury trials otherwise available in state court.27

Fora: Hotels, Resorts

Forum selection clauses are used by hotels (Doe v. Sun International Hotels, Ltd.) (female guest raped at hotel; Bahamas forum selection clause in guest registration form signed by minor guest’s stepfather not enforced; void by reason of guest reaching age of majority); Decker v. Circus Circus Hotel (Nevada forum selection clause enforced; combination of an interactive Web site with a forum selection clause negates any intent of being haled into a local courtroom).

Tour Operators

Forum selection clauses are used by tour operators (Shea v. Global Travel Marketing Inc.) (estate of child tourist on safari killed by hyenas bound by contract clause requiring arbitration of disputes in Fort Lauderdale, Fla.); Cameron v. Group Voyagers Inc.28 (tour bus accident in Venice involving British passengers who entered into travel contract with British tour operators providing that “ any dispute…will be dealt with under the ABTA Arbitration Scheme or by the Court of England and Wales only”; enforceability based upon U.S. law although the application of British law may have been appropriate); Milgrim v. Backroads Inc. (bike tour accident in France; clause in travel contract providing arbitration in California enforced); Sachs v. TWA Getaway Vacations Inc. (tour participant contract stated that “Any litigation concerning the trip may be brought only within the state of Missouri and nowhere else, and Missouri law will be applicable to any and all such litigation”); Rodriquez v. Class Travel Worldwide (minor tourist injured after being pushed into hotel pool; California forum selection clause in tour operator’s registration form enforced); Paster v. Putney Student Travel Inc. (tourist contracted oral yeast infection on the Blackfeet Indian Reservation in Montana during a “ sweat ceremony,” one portion of which included the passing of a tobacco-filled pipe; Vermont forum selection clause in tour participant contract enforced).

Thomas A. Dickerson is an associate justice of the Appellate Division, Second Department. Justice Dickerson is the author of “Travel Law,” Law Journal Press, 2008.

Endnotes:

1. Dickerson, Travel Law, Law Journal Press, 2008.

2. Travel Law at 3.02. See also Dickerson, The Modern Cruise Passengers Rights & Remedies 2006 at http://classactionlitigation.com/library/cruisepassengersrightsremedies2006.html.

3. Brunner v. Hampson, 441 F. 3d 457 (6th Cir. 2006) (Muskox hunting expedition in Nunavut, Canada; “On Aug. 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”).

4. Haubner v. Abercrombie & Kent International Inc., 351 Ill. App. 3d 112, 812 N.E. 2d 704, 285 Ill. December (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”).

5. 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) (“we hold that an arbitration agreement incorporated into a commercial travel contract is enforceable against the minor or minor’s estate in a tort action arising from that contract”).

6. 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 [the employee’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”).

7. Girden v. Sandals International, 2003 WL 21243109 (2d Cir. 2003), aff’g 206 F. Supp. 2d 605 (D. Conn. 2002) (“Plaintiff arranged to take a sailing lesson from David Titus, an employee of the resort…after navigating the small boat into the open sea, Titus sexually assaulted her”).

8. 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”).

9. 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 of inclement weather. During the ride the frayed towrope failed, causing Walker to be dragged through the water for several minutes. Walker drowned…. A jury awarded plaintiff $1.88 million”).

10. Irwin v. World Wildlife Fund Inc., 448 F. Supp. 2d 29 (D.C.D.C. 2006) (“Plaintiffs allege that in June 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”).

11. 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 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”).

12. Crawley v. Marriott Hotels Inc., 2006 WL 2331143 (N. 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’”).

13. 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”).

14. 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”).

15. Leinhart & Caribbean Hospitality Services Inc., 426 F. 3d 1337 (11th Cir. 2005) (“Leinhart was vacationing at the Aruba Grand (which) is located next to the public beach…. 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 backing up along the beach”).

16. Courbat v. Dahano Ranch Inc., 141 P.3d 427 (Hawaii Sup. 2006) (consumers purchased tour through “Island Incentives Inc., an internet-based tour organizer and suffered injuries from horse riding accident at ranch”).

17. 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 in Namibia”).

18. Rizzutti v. Basin Travel Service, 125 Wash. App. 602, 105 P. 3d 1012 (2005) (“Maryanne Rizzuti died in an airplane crash during a safari trip to Africa”).

19. Vermeulen v. Worldwide Holidays Inc., 922 So. 2d 271 (Fla. App. 2006) (“Vermeulen was met at the airport by a Chasquitur employee (who) escorted him to van with a driver who proceeded to have accident causing injuries to Vermeulen”).

20. Lang v. Corporacion De Hoteles, SA, 2007 WL 3286385 (D.P.R. 2007) (“plaintiffs…traveled to the Dominican Republic for a vacation…. 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”).

21. Gianocostas v. RIU Hotels, SA, 2005 WL 503931 (Mass. Super. 2005) (case remanded “for further consideration of whether the Dominican Republic offers an adequate remedy with respect to the plaintiffs’ claims against (tour operator) and if so whether the action should proceed against the defendants jointly in Massachusetts or the Dominican Republic”; negligent selection of suppliers claim to be tried in Dominican Republic and negligent misrepresentation claim to be tried in Massachusetts); 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).

22. If the tour is governed by the law of the European Community, specifically, EC Council Directive of June 13, 1990 (90/314/EEC) then the tour operator may be liable for the defaults of travel suppliers such as hotels, airlines, cruise lines and so forth. See Travel Law, 5.04; Edelman, Admiralty Law, New York Law Journal, Feb. 21, 2008, p. 4.

23. Gianocotas v. Interface Group, 450 Mass. 715, 2008 WL 483766 (Mass. Sup. 2008) (“The record contains affidavits of six lawyers licensed to practice in the Dominican Republic. Four lawyers indicate that reparations may be sought, under the Dominican Civil Code, for negligent misrepresentations causing physical injury…. The plaintiffs make no argument…as a matter of law, a plaintiff cannot recover for negligent misrepresentation in the Dominican Republic”).

24. Gianocotas v. Interface Group, 450 Mass. 715, 2008 WL 483766 (Mass. Sup. 2008) (“dismissal of the plaintiffs’ negligent misrepresentation claim is conditioned on GWV’s written agreement to waive any defenses based on statute of limitations or lack of personal jurisdiction, and to waive any requirement that the plaintiffs post a bond and on the further condition that the court in the Dominican Republic give full force and effect to such waivers”).

25. Gianocotas v. Interface Group, 450 Mass. 715, 2008 WL 483766 (Mass. Sup. 2008) (“most, if not all, of the litigation will center on live testimony concerning the quality of medical care Jennifer received in Puerto Plata…. All of the medical personnel who were in contact with Jennifer during the relevant time period are in the Dominican Republic, as are all clinic and hospital records”).

26. Gianocotas v. Interface Group, 450 Mass. 715, 2008 WL 483766 (Mass. Sup. 2008) (“Judicial notice may be taken of the likely fact that witnesses on this issue would be Dominican residents and…neither the parties nor a Massachusetts court can compel their testimony”).

27. Travel Law at 3.022biv; See Eriksen, “U.S. Maritime Public Policy Versus Ad-Hoc Federal Forum Provisions in Cruise Tickets,” Fla. B.J., December 2006, p. 21.

28. Cameron v. Group Voyagers Inc., 309 F. Supp. 2d 1232 (D. Colo. 2004).