Traveling abroad “can be a wonderful experience—until you have an accident.” So says Judge Thomas A. Dickerson in his latest paper entitled “Travel Abroad, Sue at Home.” Dickerson literally “wrote the book” on travel law. His basic point is that U.S. residents traveling abroad, whether on airlines, cruise ships, or tours, face severe and inconsistent obstacles to obtaining legal recourse in foreign countries. “Travel Abroad, Sue at Home” states the obvious best case, but it also points out two big barriers to successful law actions against travel suppliers while you’re at home—even some travel suppliers located in the United States.
“Forum selection” clauses in travel contracts are the main barriers. Basically, if you suffer damage from a travel supplier, those clauses limit you to suing in only specified legal venues. The worst of such clauses limit you to overseas courts; some purely domestic ones limit you to the supplier’s home state and may limit you to federal court. And, unfortunately, suing in a court other than a local one can sometimes be extremely difficult.
- Many popular tourist countries do not permit contingency fees for plaintiffs’ attorneys, so you can’t sue without incurring lawyers’ bills regardless of whether you win or lose.
- Many countries’ laws do not cover consequential damages.
- Many countries’ laws prohibit jury trials.
- Safety standards in many foreign countries are much lower than in the United States.
- The quality of emergency medical care in many foreign countries can be much lower than in the United States.
Law in foreign countries can differ substantively from U.S. law. Examples Judge Dickerson cites include notations that Egyptian law is partially based on Koranic law; France does not allow punitive damages; the Dominican Republic does not recognize claims for product liability; the Cayman Islands limit recovery for wrongful death to $5,000; China limits the maximum damages in an air crash to $20,000; and Mexico limits recovery of lost wages to 25 pesos (about $2) per day.
If you want to take legal action, says Judge Dickerson, you can always start out by filing the suit in a court where you live. But if your contract has fine print specifying a foreign forum, the defendant may try to remove the suit to the specified venue—a venue that can be strongly biased against you. And Judge Dickerson cites numerous cases showing that both U.S. and foreign courts have been extremely inconsistent—you might even say capricious—in their enforcement of those requirements.
- In some cases, U.S. courts have allowed transfer because the defendant’s home court is in a better position than a U.S. court to interpret the local laws or so the court can have better access to local witnesses.
- In other cases, U.S. courts have refused to transfer cases because the defendant had a business presence in the United States, traveling to the foreign venue would impose an unnecessary burden on the plaintiff, or the foreign court was running years late in its caseload.
- Even with suppliers based in the United States, contracts may limit court actions to courts in the supplier’s home area, and some limit suits to U.S. courts that do not provide for jury trial.
A related barrier is the requirement for arbitration. In general (my conclusion, not Judge Dickerson’s), arbitrators tend to be much stingier with awards than juries.
My lawyer friend Donald Pevsner tells me that the unilateral contracts imposed by travel suppliers are “contracts of adhesion,” which means the law recognizes that consumers really do not have an opportunity to negotiate a “freely bargained” contract. Accordingly, plaintiffs can sometimes void a contract limitation on that basis.
My overall conclusion, however, is that attempting to sue a travel supplier—especially one located in a foreign country—is a risky enterprise. You may be able to proceed, but you may also face insurmountable barriers. This is, of course, a non-lawyer’s interpretation of published material. Better to stay safe. And if you can’t, get a good lawyer.
Ed Perkins Seniors on the Go is copyright (c) 2012 Tribune Media Services, Inc.
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