This week we examine the state of travel law as it has developed in Saipan, Northern Mariana Islands. Specifically, we will discuss two reported cases, one involving a hotel guest who dove into a hotel pool “hitting his head on the bottom and sustaining spinal injuries” [Furuoka v. Dai-Ichi Hotel (Saipan), Inc., 2002 WL 32984615 (N. Mariana Islands Sup. Ct. 2002)] and a more recent case involving a tourist who was killed in a commercial aircraft owned by Star Marianas Air, Inc. which crashed on take off from Saipan International Airport [Lu v. Star Marianas Air, Inc., 2015 WL 632390 (D.N.Mar.I (2015)]. There is a third reported decision, Taniguichi v. Kan Pacific Saipan, Ltd., 132 S. Ct. 1997 (2012) involving a Japanese citizen who fell through a wooden deck at a resort, wherein summary judgment was granted to the resort [2011 WL 794913 (9th Cir. 2011)]. However, there is no discussion of liability issues only the imposition of the costs of document translation.

Travel Law Update

Ferry Captain Gets Life Sentence

In Evans, Sewol ferry: S Korea court gives captain life sentence for murder, www.bbc.com (4/28/2015) it was noted that “An appeals court has sentenced the South Korean captain of the Sewol ferry to life in prison on a murder charge, strengthening an earlier conviction. Lee-Joon-seok was at the helm when the ferry went down in April 2014 killing more than 300 people, mostly children. He had been found guilty in November of gross negligence and sentenced to 36 years, but relatives of the dead were furious he was not convicted of murder”.

Big Taxi Gets Tough

In Saitto, Who’s driving you? Big Taxi gets tough in dirty war against Uber, www.msn.com/en-us/money (3/12/2015)(Mr. X “s looking for the worst possible news about Uber Technologies. An accident in San Francisco, an assault in Boston: Such bad tidings for Uber are ammunition for (Mr. X)(who) is a hired gun in the dirty war that’s broken out between old-line taxi companies and Uber…His client, a powerful trade association, represents 1,000 taxi and limousine firms worldwide…Probably no amount of media spin will win this one for Big Taxi, Uber is a textbook example of what happens when an aggressive newcomer enters a business that’s gone unchallenged for decades…Uber’s strategy has been to launch services regardless of the rules and then leverage its popularity to force regulators to adapt. So far, that approach has succeeded in about 30 markets in North America, including Colorado, Illinois and California, where new laws on licensing and safety have been created for so-called transportation network companies like Uber, or are in the process of being approved… Amid all the bickering, taxi companies confront an obvious dilemma: They say Uber is a taxi company, rather than a technology company, but they wouldn’t mind being technology companies themselves”.

The Furuoka Case

In Furuoka v. Dai-Ichi Hotel (Saipan) Inc. (2002) the Court noted that “In September 1995, Furuoka came to Saipan through a trip sponsored by Sanks Corporation (Sanks), the parent company of Furuoka’s employer, Sun Plan. Satoshi Itahana, a Sanks employee and Takeshi Watanabe, an employee of JTB (Japan Travel Bureau) arranged the trip…JTB is a corporation organized under the laws of Japan (and) is not registered to do business in the Commonwealth of the Northern Mariana Islands (CNMI)…As a travel company JTB arranges tours for its customers all over the world (and its) Advertising brochures claim JTB provides carefree tours to Saipan and advises customers to leave all questions regarding reservations, meals, optional tours, etc., to the fifty eight JTB staff, who will take care of all their travel needs through JTB’s eight offices located at major Saipan hotels, including the Dai-Ichi Hotel…JTB (booked) Furuoka’s accommodations at the Dai-Ichi through Pacific Micronesia Tours (PMT, a CMNI corporation) …PMT had an office in the Dai-Ichi where JTB customers could get assistance. A sign stating ‘Pacific Micronesian Tours, Inc.’ appeared on the office door along with the initials ‘PMT’ and ‘JTB’”.

The Accident

Sanks held a dinner one evening next to one of Dai-Ichi’s pools. “That evening, the pool was open for use despite the absence of a lifeguard. The pool is kidney shaped with no steps or ladder to indicate the shallow end of the pool and no sign was posted indicating the shallow water…During the course of the evening, Furuoka…ran around the party (and) then ran toward the pool and dove in, hitting his head on the bottom and sustaining spinal injuries.”

Water Safety Statutes

“It is undisputed that the hotel did not have a lifeguard on duty and that CNMI law required a lifeguard to be provided by the hotel…Itahana was not informed that Dai-Ichi was operating its pool in violation of the safety statute. He was shocked to find out that JTB would book its customers into a hotel that violates a safety statute specifically intended to protect…visitors to the CNMI using the pools”. “Furuoka…testified that he wrongly thought the pool was deep rather than shallow where he dove and that if he had known it was shallow he would not have dived in…JTB argued that…it has no legally recognizable duty to ensure Furuoka’s safety…Further, the proximate cause of Furuoka’s injury was the actions of Furuoka himself in failing to determine the depth of the water before diving in”.

JTB’s Duties As Travel Agent

The Court discussed the duties of JTB as travel agent, an issue of first impression in CNMI. “As defined by other jurisdictions, the duty to disclose or inform does not include, as Furuoka claims, a duty to ensure that tour participants will ne reasonably safe from harm caused by hotels where the participants are booked and a duty to ensure that hotels will maintain adequate safeguards for the safety of its guests. He correctly asserts, nevertheless, that a travel agent has a duty to advise and warn its principals, if the agent had knowledge that the hotel had not established and maintained particular safeguards. We conclude that a travel agent has a duty to disclose known or reasonably ascertainable, material information to the traveler unless that information is so clearly obvious and apparent to the traveler that, as a matter of law, the travel agent would not be negligent in failing to disclose it. Applying the law to Furuoka’s complaint we note that Furuoka’s stated a claim for which relief could be granted…JTB had a duty to warn Furuoka of all known and reasonably discernable dangers germane to the scope of the agency”.

The Lu Case

In Lu v. Star Marianas Air, Inc. (2015) the Court noted that “This case asks the Court to define the duties that a travel agency owes to its customers…Defendant Top Developments, Inc. (TDI) asks the Court to dismiss the negligence claim filed against it because a travel agency owes no duty of care to a customer that it books on an airline with regard to the airline’s safety record or particular aircraft safety instructions. However, in the CNMI, the common law or negligence creates a duty to exercise reasonable care in all conduct and the common law of agency creates a duty on the part of the principal to inform the agent of any facts pertinent to the relationship…The Court… rejects TDI’s argument”.

A History Of Problems

“On November 19, 2012, an airplane departing Saipan International Airport en route to Tinian crashed into trees just north of the Saipan runway after takeoff. Plaintiff Weilian Lu was killed in the crash…The airline operating the flight, Star Marianas Air, Inc. (SMA), had a history of problems with its aircraft. In May 2012, another SMA plane crashed at the airport due to mechanical failure, injuring passengers. In July 2012 an SMA plane had to make an emergency landing because the engine was ‘choking’ in mid-air. Finally, three days before the crash in this case, an SMA plane had a flat tire just before takeoff”.

Duty Of Reasonable Care

“Plaintiffs assert that…TDI (was) negligent for failing to ‘inspect SMA and its history involving plane crashes and other incidents’ and failing ‘to provide safety instructions in Chinese to a group of Chinese tourists’…As an initial matter the law presumes that TDI owed the plaintiffs a duty to exercise reasonable care when it sold them plane tickets…Although SMA certainly owed the Plaintiffs a duty to exercise reasonable care in operating its aircraft, that duty does not displace TDI’s duty of reasonable care with respect to booking the flight with SMA… To be clear, even if TDI is correct that it should not be held liable for failing to inspect SMA aircraft or provide foreign-language safety instructions, the appropriate question is not whether TDI had a duty to take those actions, but whether it breached the duty of reasonable care by not performing them (and it is a) jury question of whether performing that action in a certain way breached that duty.

Duty To Inform

“The duties owed by a travel agency to its customer is governed (inter alia) by (the Furuoka case discussed above which suggests) that TDI may have owed a duty to Plaintiffs inform them of SMA’s safety problems and provide Chinese-language safety instructions. That information may have been relevant to the scope of the agency relationship and of some importance to Plaintiffs”.

Conclusion

The duties and responsibilities of travel agents to their customers have and may continue to expand over the years as new sources of technology provide more and more information [e.g., online traveler reviews] helpful to travelers in selecting safe providers of travel services. For a comprehensive discussion of the duties of travel agents and tour operators see Travel Law, Chapter 5 (2015).

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.