The recent tour boat accident in Mexico involving 10 travelers sailing from Miami on Royal Caribbean is the second such accident within weeks of each other. On Dec. 19, 12 people died after a tour bus to Mayan ruins south of Tulum flipped on a two-way highway. In October 2017, two passengers were killed in Croatia when a tour bus backed into them. These are just recent examples, but the list goes on. The reality is, major accidents on shore excursions happen more than travelers might think.
Unfortunately, U.S. travelers fail to understand the risks involved with vacation travel, and focus only on the enjoyable aspects. That puts them at a legal disadvantage if a death or serious injury were to occur. Many U.S. travelers rely on name brands they trust, many times failing to understand that cruise lines will disclaim any responsibility for what occurs on a shore excursion. This happens frequently even where the cruise line sells a passenger the excursion directly. Cruise lines also fail to inform their passengers that these excursion companies, often based on foreign soil, fail to follow customs and practices which are generally accepted in their industry. Many times, foreign-based companies, are less concerned with solidifying good standards and practices as we are in the United States. Later, when tragedy strikes, cruise lines will argue that the excursion operators are nothing more than independent contractors and that the law does not provide for a remedy against the cruise. While there are available avenues to hold cruise lines liable for the negligence of their excursion operators, the cases are more complex and the law provides several ways for cruise lines to avoid liability.
Foreign resort operators and hotel companies also employ tactics for skirting liability. Many resorts include "standard" legal disclaimers in fine print at the bottom of a travel agreement where only a few people will take the time to read them. Many times, they will appear to be a harmless part of the hotel check-in process that most folks overlook because they are on vacation, not engaged in a serious business transaction. Resorts know that guests would rather get their kids to the pool or have a rum punch than wrangle over what appears to be a benign part of the check-in process.
One of the key disclaimers in a check-in document involves the "forum selection clause." This language allows the hotel or resort to choose the country where any potential personal injury, products liability or wrongful death lawsuit will be filed. That also means if a serious accident occurs in The Bahamas, Mexico or Jamaica, the law of that country will apply to the case.
Why do travel providers include such a provision and why would it matter to a U.S. citizen or resident? The answer is simple: It is far more difficult to bring, let alone win, such a lawsuit in an overseas court than in the United States. The United States offers the jury trial which is one of the most important rights granted to Americans. Many popular island destinations, while having legal systems patterned on English law much like our own, do not give plaintiffs the right to a jury trial. Further, it is far likelier that an injured individual will not pursue the case if it means litigating it abroad. In a very real sense, their case is being decided not on the merits, but on their having signed a document many have no idea existed.
The laws governing these cases can be substantially different from country to country, and engaging a foreign attorney may be necessary—adding substantially to the cost, time and complexity of filing a lawsuit for damages.
Depending on the individual circumstances, an injured party may be able to file a lawsuit in the United States, significantly improving the odds of a favorable jury verdict or financial settlement. After all, many leading travel providers are U.S. companies or have substantial U.S. operations or assets.
However, it is far better for travelers to understand the potential risks involved in signing legal disclaimers and protect their rights before leaving the country.
Clearly, the first step is to read and understand everything in the documentation provided by the travel agency, resort, cruise line or other provider. Because of recent court decisions, these disclaimers are typically emailed well in advance of the actual travel date. If the travel agent does not send this information, the agency itself could face a liability issue if a problem occurs.
Prior to arriving at a hotel or resort, a resort guest should read the travel documents closely. At check-in, if the documents contain a choice of forum clause, simply draw a line through that clause and initial the document. The resort will then have to decide if it wants to turn away its paying guests at the last minute.
When booking an excursion, cruise passengers should make sure that the cruise lines oversee or inspect where the excursion is taking place and take note of any representations made by the cruise line as to the quality, safety and features of the excursion. Many cruise operators will have standards excursion operators must meet and the cruise regularly inspects the excursion operators for compliance. A traveler should do some research and ask questions. Armed with more facts allows a traveler to make a more informed decision.
These simple steps allow you to protect your rights and give you a wider range of legal options if a tragedy should occur while out of the country.
Finally, we encourage folks to seriously consider whether they want to spend their hard-earned money on resort and cruise operators who would try to skirt liability by locking the courthouse doors to Americans, all the while receiving millions of dollars in revenue from them.
Robert L. Parks is a partner and Gabriel Garay is an associate in The Law Offices of Robert L. Parks in Miami.
Originally published on Daily Business Review. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.