Travel abroad: Sue at home again

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Written by Linda Hohnholz

We return to the issue of where to sue should the tourist sustain serious injuries while traveling abroad [Dickerson, Travel accidents abroad: where to sue, www.eturbonews.com (3/27/2014)].

We return to the issue of where to sue should the tourist sustain serious injuries while traveling abroad [Dickerson, Travel accidents abroad: where to sue, www.eturbonews.com (3/27/2014)]. This week we examine the case of Lerner v. Friends of Mayanot Institute, Inc., 2015 WL 868292 (1st Dept. 2015), affโ€™g Decision dated April 21, 2014 of Justice Manuel J. Mendez, Index No:159038/2012 (N.Y. Sup.)(โ€œPlaintiff alleges that on December 20, 2009, while on a trip to Israel, she was sexually assaulted at the King Solomon Hotel in Tiberias, Israel. At the time, plaintiff was a college student attending Northwestern University in Illinois and participating in the Taglit-Birthright to Israel program. This program advertised on its website that Jewish individuals between the ages of 18-26 that had never been to Israel could participate in a free peer education trip to Israel. The website also advertised the trip as a โ€˜giftโ€™, but an email sent to plaintiff explaining the registration details stated that a โ€˜fully-refundableโ€™ deposit was required. Plaintiff obtained consent from her parents to attend the trip based on the representation that the trip would be supervised by the defendantsโ€). How and why this case will be tried in the United States and not in Israel as requested by the defendants will be discussed below.

Travel Law Update

Co-Pilot Accelerated During Descent

In Clerk, Germanwings Co-Pilot Accelerated During Descent, Data From 2nd Recorder Shows, nytimes.com (4/3/2015)(โ€œThe 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 planeโ€™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, โ€˜several times during the… descent, the pilot adjusted the automatic pilot so as to increase the speed of the plane as it descendedโ€™โ€).

Planes Without Pilots?

In Markoff, Planes Without Pilots, nytimes.com (4/6/2015) it is noted โ€œHow many human pilots, some wonder, are really necessary aboard commercial planes? One? None? Advances in sensor technology, computing and artificial intelligence are making human pilots less necessary than ever in the cockpit…

Commercial aviation is already heavily automated…In a recent survey of airline pilots, those operating Boeing 777s reported that they spent just seven minutes manually piloting planes in a typical flight. Pilots operating Airbus planes spent half that timeโ€.

Airbnb Opens Up In Cuba

In Weissenstein, Airbnb Opens in Cuba, meetings-conventions.com (4/2/2015)(โ€œThe popular online home-rental service Airbnb is allowing American travelers to book lodging in Cuba starting Thursday…Airbnb searches for โ€˜Cubaโ€™ now turn up more than 1,000 properties across the island, with 40 percent in Havana and the rest in tourist destinations such as Cienfuegos a few hours away on the southern coast. The company has been sending teams of representatives to Cuba for three months to sign up home owners, and plans to expand steadily in coming monthsโ€.

Tourists As Tax Spies?

In Alderman, In Greece, Desperate Times and Offbeat Measures, nytimes.com (3/7/2015) it was noted that โ€œAthens is rapidly running out of cash. So it is scrambling to find new, even radical ways to fill the shortfall-including a proposal to recruit citizens and tourists to spy on suspected tax evaders… A proposal to enlist โ€˜casualโ€™ tax spies-tourists, students, housekeepers and other nonprofessionals inspectors-โ€˜to pose, after some basic training, as customers, on behalf of the tax authorities, while wired for sound and videoโ€™, according to a letter accompanying the proposals that the Greek finance minister…sent last week…With tax arrears in Greece at 76 billion (euros), the proposal is intended to scare tax dodgers and engender โ€˜a new tax compliance cultureโ€™, the letter saidโ€. Stay tuned.

Inconvenient Forums

This article discusses travel accidents abroad and the selection of a U.S. court in which the injured traveler may seek appropriate compensation. This analysis assumes that the selected U.S. court has jurisdiction over the foreign hotel and/or local ground provider [Dickerson Jurisdiction and the Internet, www.eturbonews.com (1/14/2014) and Dickerson Personal Jurisdiction over Foreign Travel Suppliers www.eturbonews.com (2/26/2014)]. Even though subject to personal jurisdiction the foreign travel supplier may seek to dismiss the case on the ground that the U.S. forum selected is inconvenient. This concept is known as the doctrine of forum non conveniens [Travel Law, Section 1.03[4][5]]. www.eturbonews.com

Sexual Assaults

Tourists may be subjected to sexual assaults while traveling abroad [Starkey v. GAP Adventures, Inc., 2014 WL 1271233 (S.D.N.Y. 2014)(woman purchases trip โ€œGalapagos on a Shoestringโ€ and alleges she was sexually assaulted by tour leader; Canada forum selection clause enforced); Doe v. Ritz Carlton Hotel Company, 2015 WL 221106 (E.D. Pa. 2015)(hotel employee allegedly sexually assaults minor guest); Paris police officers charged with raping Canadian tourist, www.www.eturbonews.com (4/28/2014); Chinese tourist raped by Jakarta airport security guards, www.eturbonews.com (12/29/2014); Iranian tourists kidnaped, raped in Dubai, www.eturbonews.com (8/27/2014); Dubai waiter acquitted of tourist rape, www.eturbonews.com (8/24/2014); Straight British tourist raped by gay man at Munich Octoberfest,www.eturbonews.com (10/1/2014). See also: Cortez v. Palace Resorts (sexual assault by male masseur in hotel in Mexico); Blankley v. Marriott Corp. (inappropriate touching during massage in Puerto Rico)]; O’Keefe v. Inca Floats, Inc. (sexual assault during cruise to Galapagos Islands ); Doe v. Sun International Hotels, Ltd. (guest raped at resort in the Bahamas ); Girden v. Sandals International (tourist sexually assaulted on small boat in Jamaica); Catalano v. NWA, Inc. (tourist raped during sailing excursion on a two-person sunfish sailboat in Jamaica); Creteau v. Liberty Travel, Inc. (tourist raped and robbed in Jamaica); Flanagan v. Wyndham International, Inc. (children molested in hotel day care facility in St. Thomas).

Choosing A Friendly Forum

While the injured tourist may have a choice of litigating his or her claim in the foreign country in which the accident occurred the law may be less sympathetic to the injured traveler in, among other places, Egypt [MacLachlin v. Marriott Corporation (tourist thrown from angry camel in Egypt; “an Egyptian forum which is based partially on Koranic law would be unduly harsh to plaintiff “); France [In Re Air Crash Off Long Island, New York (air crash; France does not allow punitive damages); Dominican Republic [Calvo v. Sol Melia, S.A. (tourist struck by motor boat while swimming; Dominican Republic does not recognize product liability claims); Turkey [Mercier v. Sheraton International, Inc. (contract dispute; Turkey may not recognize claims for breach of contract or tortious interference with contract); Nowack v. Tak How Inv. Ltd. (drowning accident; law uncertain in Hong Kong); Malaysia [Simcox v. McDermott International (slip and fall on barge; Malaysia has similar substantiative law to U.S.); Cayman Islands [Lehman v. Humphrey Cayman Ltd. (recovery for wrongful death in Cayman Island may not exceed $5000); 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)].

Foreign Procedural Law

The applicable foreign legal system may discourage litigation as we know it in the U.S. 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 ); Cuba [Club Resorts Ltd. V. Van Breda 2012 SCC 17 (2012)(โ€œA trial held in Cuba would present serious challenges to the parties. There may be problems with witnesses, concerns about the application of local procedures, and expenses in litigating there…the burden on the plaintiffs clearly would be far heavier if they were required to bring their action in Cubaโ€); Cayman Islands [Wilson v. Humphreys Cayman Ltd (rape at hotel; no contingency fees or jury trials in Cayman Islands ); Lehman v. Humphrey Cayman Ltd. (no contingency fees or jury trials in Cayman Islands )]; Jamaica [Reid-Walen v. Hansen ( motorboat accident; no contingency fees or jury trials in Jamaica ); Lugones v. Sandals Resorts, Inc. (no contingency fees or jury trials in Jamaica) and Israel [Gyenes v. Zionist Organization of America (student drowned in Jordan River; no right to jury trial in Israel); ].

Is The Forum Selected Convenient?

Travelers injured abroad may commence a lawsuit in a U.S. court against a cruiseline, foreign hotel, tour bus company, tour operator, informal travel promoter or various other ground operators. In response the defendants may seek to dismiss the lawsuit because the U.S. forum selected is not convenient [forum non conveniens] 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 [forum selection clause].

Plaintiff’s Choice Is Important

Although it is not dispositive, the forum selected by the plaintiff, particularly if he or she resides in that forum, will be given serious consideration prior to dismissing a lawsuit on the grounds of forum non conveniens [see 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”)].

Advertising In The Forum

If a defendant advertises and solicits business in the forum it should expect to be available for lawsuits brought by injured residents. In Reid-Walen v. Hansen, a case involving a motorboat accident in the Bahamas, the Court found that because of a Bahamian hotel’s solicitation of business in the U.S. it “should not be (totally) surprised…that they may be sued in the courts of the U.S.”. And in Nowak v. Tak How Inv. Ltd., a case involving a drowning in a Hong Kong hotel pool, the Court held that a cost of doing business is being available to respond to lawsuits in the U.S. The Nowak Court also declared that Massachusetts, where the lawsuit was brought, had a strong interest in protecting its citizens from solicitations for unsafe services.

Availability Of Alternative Forum

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 as 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); Sullivan v. Starwood Hotels and Resorts Worldwide (slip and fall in Chinese hotel parking garage and underwent surgery in Beijing United Family Hospital; forum non conveniens motion denied; China not an adequate alternative forum); Club Resorts Ltd. V. Van Breda 2012 SCC 17 (2012)(โ€œA trial held in Cuba would present serious challenges to the parties. There may be problems with witnesses, concerns about the application of local procedures, and expenses in litigating thereโ€)].

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 [Dunham v. Hotelera Canco, S.A. (snorkeling accident in Mexico; witnesses not subject to subpoena power of U.S. courts); Carney v. Singapore Airlines (tour accident in Indonesia; defendant would not be able to subpoena witnesses if action brought in U.S.); Club Resorts Ltd. V. Van Breda 2012 SCC 17 (2012)(โ€œA trial held in Cuba would present serious challenges to the parties. There may be problems with witnessesโ€)]. The defendant may also assert that the jury must have a view of the accident scene [see 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); Abouchalache v. Hilton International Co. (bomb explosion at London hotel; necessary witnesses and view of accident scene in London; motion to dismiss granted)] and decide whether there are alternative forms of evidence which will make the witness’s presence unnecessary such as dispositions, video presentations and sworn statements [Bruemmer v. Marriott Corp. (admissions, video tapes, models, photographs acceptable alternative evidence)].

The Lerner Case

Having reviewed many of the factors taken into consideration in deciding which forum should hear a particular travel accident case letโ€™s return to Lerner v. Friends of Mayanot Institute, Inc., 2015 WL 868292 (1st Dept. 2015), affโ€™g Decision dated April 21, 2014 of Justice Manuel J. Mendez, Index No:159038/2012 (N.Y. Sup.) Before the trial court the defendants including Friends of Mayanot Institute, incorporated in New York, moved to dismiss the case on the grounds that it should be heard in Israel because โ€œ(1) the sexual assault took place in Israel, (2) the Mayanot staff that witnessed the events is located in Israel, (3) the King Solomon hotel staff that witnessed the events is in Israel, (4) the hospital and doctors from which plaintiff sought initial treatment are in Israel, (5) the police investigators are located in Israel and (6) if defendants wanted to assert any claims against the King Solomon hotel, they would have to assert claims in Israel.

In response the plaintiff asserted โ€œthat defendants were responsible for supervising the trip participants and provided chaperons, security guards and trained medical professionals for the trip. After returning to the United States, plaintiff received and continues to receive medical care and counseling from doctors and psychiatrists in New York and Illinois. Two of the witnesses who were with plaintiff on the night of the assault are located in the United Statesโ€.

The Appellate Decision

In affirming the trial courtโ€™s decision to deny defendantโ€™s forum non conveniens motion the Appellate Court [2015 WL 868292 (1st Dept. 2015)] held that โ€œDefendants failed to meet their heavy burden to show the relevant factors militate against the litigation being heard in New York…Defendants did not identify any foreign witness, nor did they specify the nature or materiality of the testimony of any foreign witness. They have offered only โ€˜sheer speculation…that any such testimony will be unobtainable in New York…They also failed to show that New York courts will be unable to apply Israeli law, should the necessity ariseโ€).

Conclusion

Choosing the appropriate forum in which to litigate the travelerโ€™s claim requires considerable thought and involves consideration of many factors.

The author, Justice Dickerson, been writing about Travel Law for 38 years including his annually-updated law books, Travel Law, Law Journal Press (2014), and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2014), and over 300 legal articles.

This article may not be reproduced without the permission of Thomas A. Dickerson.

About the author

Avatar of Linda Hohnholz

Linda Hohnholz

Editor in chief for eTurboNews based in the eTN HQ.

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