Nothing is more frustrating than to suffer an accident when you’re traveling, especially if you suffer damages through the negligence of a hotel, cruise line, tourist attraction, sightseeing operator, or such. Judge Thomas Dickerson, who literally writes the book on travel law, recently published several articles that address legal questions about overseas travel, but they offer less certainty than you might expect. The key question is whether you can claim jurisdiction over a foreign supplier in a U.S. court, and Dickerson’s analyses suggest that the answer is a firm “maybe.”
Foreign supplier jurisdiction
Generally, you can sue in a U.S. court if a foreign supplier has a “presence” in a U.S. forum you might use. Especially in states with “long arm” statutes, presence has been defined pretty liberally to include a supplier that maintains an office and bank account or even one that conducts business through an agent within a U.S. jurisdiction.
Cases Dickerson cites have gone either way, however, with seemingly little rationale for the differences. Moreover, a recent Supreme Court decision appears to raise the bar slightly on a threshold for jurisdiction over foreign companies and individuals. My take: If you have a legitimate damage claim against a foreign supplier, you may be able to exercise jurisdiction, but don’t count on it.
Apparently the question of the degree of a foreign supplier’s website’s presence is largely determined by whether that website is active or passive. If the website cannot be used to make reservations, most courts would hold that the site is passive and therefore not subject to personal jurisdiction. However, in one case where a court denied personal jurisdiction, the judge advised the plaintiff to move the suit to another state where an affiliate of the first website’s sponsor did make reservations.
On the other hand, if a website is interactive – allowing making reservations and providing other business contacts – and if it actively sells to residents of the local jurisdiction, personal jurisdiction typically applies. Intermediate levels of interactivity fall into an uncertain zone.
Risky shore excursions
On a big cruise ship, you’re probably quite safe, but not so much on some shore excursions. Dickerson cites a depressingly long list of serious mishaps, including death and paralysis, resulting from a shore excursion gone wrong. Although cruise lines routinely disclaim liability for anything that happens on a shore excursion, such a disclaimer may not excuse a cruise line from liability. The decision of whether jurisdiction applies seems to vary, but plaintiffs seem to do better when the cruise line failed to warn them of risks or were negligent in selection of operators.
Duty to warn
In a related situation, Dickerson notes that travel agents and Internet travel sellers carry a duty to warn you if you’re considering a trip that poses a risk. Courts have often held against agents that have failed to provide basic travel information, such as the need for a visa, the availability and condition of recommended hotels, flights, cruises and the financial stability and responsibility of tour operators. This “standard of care” can also extend to tour escorts and third-party organizations that arrange tours, including group travel through schools, universities and professional associations, making them subject to personal jurisdiction in many cases.
Post-accident medical care
Dickerson’s analysis seems to indicate that cruise lines may enjoy relative immunity from jurisdiction for actions by onboard doctors or of shore facilities to which a cruise line transfers sick or injured passengers.
Conclusion: Buy travel insurance and take control of your treatment, yourself; don’t rely on the cruise line.
Needless to say, questions of law such as these are quite complex. As a non-lawyer, I’m trying to convey the main thrust of what a distinguished legal scholar has provided. But when you think you might have a case, don’t take my statements as the final word: Instead, get a good lawyer.