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Litigating travel law cases in an inconvenient forum

Litigating travel law cases in an inconvenient forum

In this week’s article, we examine several cases involving the enforcement of forum selection clauses in travel contracts with cruise lines [Young v. Holland American Line, N.V., 2016 U.S. Dist. LEXIS 179370 (N.D. Cal. 2016)(physical injuries sustained during cruise; Washington forum selection clause not enforced); travel agency/tour operator [Vardanyan v. Costa Rica Travel Planning, Inc., 2016 WL 7378545 (Cal. App. 2016)(wrongful death in Costa Rica; Colorado forum selection clause enforced; Colorado law applied)] and the application of the doctrine of forum non conveniens in accident cases at foreign hotels or resorts [Wilmot v. Marriott Hurghada Management, Inc., No. 16-3211 (3d Cir. 2017)(citizen of United Kingdom sustains pool side injury at hotel in Egypt; motion to dismiss on grounds of forum non conveniens granted; Delaware not convenient forum; Egypt or United Kingdom adequate forums); Brown v. Marriott International, Inc., No. 14-CV-5960 (SLT)(MDG) (E.D.N.Y. 2017)(United States citizen slips and falls at hotel in St. Kitts, British West Indies; motion to dismiss on the grounds of forum non conveniens denied; St. Kitts not an adequate forum); Guezou v. American University of Beirut, 2017 NY Slip Op 31688(U)(French citizen injured on beach in Lebanon when beach chair collapses; motion to dismiss on the grounds of forum non conveniens granted; Lebanon is adequate forum)]. See also: Dickerson, In Hotel Law, the Best Defense Is an Enforceable Forum Selection Clause, newyorklawjournal (5/26/2017)(discussing St. Aubin v. Island Hotel Company, 2017 U.S. Dist. LEXIS 37042 (S.D. Fla.2017)(U.S. citizen injured at resort in Nassau; Bahamas forum selection clause not enforced); Molino v. Sagamore, 105 A.D. 3d 922 (N.Y.A.D. 2016)(guest sustains injury at hotel in Warren County, New York; forum selection clause enforced). See also our previous article on this subject: Dickerson, Forum selection clauses in travel contracts: Should adequate notice be required? eturbonews (11/15/2015).

Terror Targets Update


In Beech, The Rohingya Suffer Real Horrors. So Why Are Some of Their Stories Untrue?, nytimes (2/1/2018) it was noted that “In any refugee camp, tragedy is commodified. Aid groups want to help the neediest cases and people quickly realize that the story of four orphaned sisters holds more value than that of an intact family that merely lost all its possessions…Such strategies are a natural survival tactic…But false narratives devalue the genuine horrors-murder, rape and mass burnings of villages-that have been inflicted upon the Rohingya by Myanmar’s security forces. And such embellished tales only buttress Myanmar government contentions that what is happening in Rakhine State is not ethnic cleansing as the international community suggests, but trickery by foreign invaders”.

Investigating Philippines Drug War

In Villamor, International Criminal Court Will Investigate Duerte Over Drug War, nytimes (2/8/2018) “The International Criminal Court said on Tuesday that it was opening a preliminary investigation into accusations that President Rodrigo Duerte and other Philippine officials had committed crimes against humanity in the course of the government’s deadly crackdown on drugs…Harry Roque, a spokesman for the Philippine president, said that the government’s crackdown was a ‘legitimate police operation’ and that the president welcomed The Hague-based tribunal’s decision”.

Parkland, Florida

In Burch & Mazzei, Florida School Shooting Death Toll Is at 17 and Could Rise, nytimes (2/14/2018) it was noted that “A heavily armed young man barged into his former high school about an hour northwest of Miami on Wednesday, opening fire on terrified students and teachers and leaving a death toll of 17 that could rise even higher…Students huddled in horror in their classrooms, with some training their cellphones on the carnage, capturing sprawled bodies, screams and gunfire that began with a few shots and then continued with more and more. The dead included students and adults, some of whom were shot outside the school and others inside the sprawling three-story building. The gunman armed with a semiautomatic AR-15 rifle was identified as Nikolas Cruz, a 19-year-old who had been expelled from the school”.

Cross Border Comparisons

In Aguilar, From Museums to Mountains, Pride and Patriotism, nytimes (2/6/2018) it was noted that “The border between the United States and Mexico is in the news every day, in ongoing debates about immigration and spending on security initiatives. But what is it like to visit destinations along the border? To find out, writers for Travel spent time in five pairings of places: Brownsville, Tex., and Matamoros, Mexico; Bif Bend National Park and Boquillas; San Diego and Tijuana; Nogales, Ariz. And Nogales, Mexico; and El Paso and Ciudad Juarez”.

Wildlife Expert In Kenya Murdered

In Gettleman, No Suspects in Killing of Eccentric American, a Kenyan Wildlife Expert, nytimes (2/5/2018) it was noted that “He was a fixture in Kenya’s wildlife scene…known for meticulous work on the black-market prices of ivory and rhinoceros horn. Now he is the victim in a murder mystery…It is not clear if Mr. Martin, who was 76, was killed in connection to his strident views or his work. No doubt he had many enemies, writing report after report that exposed the depth of the ivory and rhino horn trade across the world that has killed tens of thousands of endangered animals, His death sent shock waves through East Africa’s wildlife circles”.

Majorca Activists To Be Prosecuted

In Mass tourism protesters in Majorca face prosecution, travelwirenews (2/9/2018) it was noted that “Group called Arran Paisos Catalans say mass tourism is ruining island of Majorca. It stormed Palma marina last July, setting off flares next to luxury yachts. The activists also threw confetti over terrified diners at a nearby restaurant. They have been accused of public disorder, damage and threats”.

Airbnb Opens To Hotel Distribution

In Airbnb Officially Opens Up to Hotel Distribution-Travel Weekly, travelwirenews (2/8/2018) it was noted that “Airbnb is to allow hotels and other accommodation providers to list on the site for the first time through an official third-party distribution network. Siteminder will be the first platform to act as channel manager on a global scale so that its portfolio of properties can be featured alongside existing properties from Airbnb hosts”.

Flush That Hamster, Please

In AP Florida woman: Airline told me to flush pet hamster, msn (2/9/2018) it was noted that “A Florida woman says an airline told her to flush her hamster down an airport toilet because the emotional rodent wasn’t allowed to fly with her…The Miami Herald reports before Belen Aldecosea flew home from college to South Florida, she twice called Spirit Airlines to ensure she could bring Pebbles, her pet dwarf hamster, No Problem, the airline said. But when (she) arrived at the Baltimore airport, Spirit refused to allow the animal onboard. The 21-year-old told the paper she flushed Pebbles at an airline employee’s suggestion, after running out of other options…’She was scared. I was scared, It was horrifying trying to put her in the toilet’ Aldecosea said”.

Stop Mishandling Sacred Items, Please

In AP Native church’s lawsuit spurs training for airport screeners, wtop (2/8/2018) it was noted that “A wooden box carried an eagle feather and bone whistle, a gourd rattle and a feather fan-items that carry spiritual energy and are used in Native American religious ceremonies. The man holding the box asked security agent at the San Antonio International Airport to allow him to display the items so their energy wouldn’t by polluted. The agents declined, roughly handling the items and shoving them back in the box, according to Sandor Iron Rope, former president of the Native American Church of North America. His lawsuit against the (TSA) was settled last month, with neither side acknowledging fault and the agency agreeing to better educate its employees about Native American religious items at more than a dozen airports nationwide”.

Cruise Travel Insurance Mistakes

In The 4 Biggest Mistakes That Could Make Your Cruise Travel Insurance Worthless, travelwirenews (2/7/2018) it was noted that “A record breaking 2017 hurricane season that damaged popular cruise destinations and an icy winter that temporarily closed some airports caused many travelers to lose money… Leading travel insurance comparison company, Squaremouth, explains how to avoid the four biggest mistakes that can make a policy worthless. Mistake No. 1 Waiting Until There’s Bad Weather To Get Travel Insurance…once a hurricane or winter storm has been given a name, it’s too late for travel insurance…Mistake No. 2: Drinking Alcohol and Assuming Your Medical Emergencies are Covered. Travel insurance can cover expensive cruise ship unless the traveler is intoxicated…Mistake No. 3: Assuming Your Medical Emergencies are Covered During All Shore Excursions… Some travelers may be aware that there are exclusions on dangerous activities such as bungee jumping or skydiving but many travelers may not realize that a policy may exclude lower impact activities like kayaking or riding in a hot air balloon… Mistake No. 4: Arriving (at) Your Port of Departure Early and Assuming You’re Covered”.

Exercise While You Travel

In Vora, How to Fit in Exercise While You Travel, nytimes (2/8/2018) it was noted that “Ms. Lang (a New York City-based certified personal trainer) naturally has plenty of tips on how to get some exercise while you travel. Here are some…Experience Your Environment Through Activity…Create Your Own Walking Tour…Start Your Day With a Mini Workout…Don’t Just Wait In Line…Instead of passively standing and waiting… Ms. Lang suggested using your time to do three exercises that your fellow bystanders won’t notice: calf raises, which strengthen the lower legs, glute squeezes, where you tighten your glutes and hold as long as you can before releasing, to tone your backside and belly breathing, where you exhale as you pull your stomach in and keep inhaling and exhaling while pulling it in more, to boost your core strength. You might get some odd looks, but the result will be worth it”.

Flipping The Train Safety Switch

In Haag, Signal System Was Down for Safety Upgrades Before Fatal Amtrak Crash, Authorities Say, nytimes (2/5/2018) it was noted that “A maintenance crew working on a railway in South Carolina on Sunday had disabled its signal system to install new technology meant to prevent crashes when an Amtrak track slammed into a freight locomotive on the track, killing two people, investigators said on Monday…Still, Mr. (X) cautioned against casting all the blame for the accident on the crew that flipped the manual switch, He said the Amtrak engineer on the train should have also noticed that the switch was positioned in the wrong direction”.

Stay Away From Baltimore, Please

In Williams, In Baltimore, Brazen Officers Took Every Chance to Rob and Cheat, nytimes (2/6/2018) it was noted that “Stacks of bills, $100,000 taken from a safe. Garbage bags full of stolen prescription drugs dumped on the black market. A motorist robbed of $25,000. The crimes were not carried out by normal criminals, but by Baltimore police officers. They are among the dozens of revelations in one of the most startling police corruption scandals in a generation…even the officer themselves have described an elite squad gone rogue, taking every opportunity to rob those they were supposed to be policing or protecting, and barely bothering to cover up their deeds”.

Idaho: What Climate Change?

In Albeck-Ripka, Idaho Stripped Climate Change From School Guidelines. Now It’s a Battle, nytimes (2/6/2018) it was noted that “The political fight over global warming has extended to science education in recent years as several states have attempted to weaken or block new teaching standards that included information about climate science. But only in Idaho has the state legislature stripped all mention of human-caused climate change from statewide science guidelines while leaving the rest of the standards intact. Now teachers, parents and students are pushing back”.

Don’t Get Sick In India, Please

In Gettleman & Kumar, Fake Doctor in India Suspected of Infecting Dozens With H.I.V., nytimes (2/6/2018) it was noted that “Police officials in northern India were searching on Tuesday for a fake doctor suspected of infecting dozens of his patients with H.I.V. by reusing a dirty syringe. The patients were treated by what is known as a ‘jhola chhaap dctor’ a wandering medical practitioner whose only verifiable qualification (a chhaap is a trademark or official seal) is a jhola, the cotton shoulder bag from which treatment is dispensed. Most are untrained, and some of the cures they offer can be dangerous, but in India, where the health care system is tremendously challenged, many poor people often feel they have no choice but to pay a few rupees for their services and hope for the best”.

Uber Favors Men Of Speed

In Westgard, Uber’s Pay Formula for Drivers Favors Speed, Which Benefits Men, msn (2/7/2018) it was noted that “Uber has proven to be a flexible workplace for drivers who can set their own hours and routes, a system that some speculated would favor women, Instead, it seems the formula for compensating these drivers favors speed, which tends to be clocked by more lead-footed men, a study shows. The result is that Uber drivers earn 7 percent more than females, according to an (analysis) of more than one million drivers for the startup. Other factors including experience and preferences over when and where to work, also contribute to the discrepancy, according to the study”.

Grubhub Decision & Sharing Economy

In Dickey, Judge rules Grubhub properly classified delivery driver as independent contractor, techcrunch (2/9/2018) it was noted that “A few months after hearing closing arguments in the Lawson v. Grubhub case, Judge Jacqueline Scott Corley has ruled Raef Lawson, the plaintiff, was an independent contractor while driving and delivering food for Grubhub…A key element of the case centered around the Borello test, which looks at circumstances like whether the work performed is part of the company’s regular business, the skill required, payment method and whether the work is done under supervision of a manager. The purpose of the test is to determine whether a worker is a 1099 contractor or a W-2 employee”. As noted by the Court “ ”while some factors weigh in favor of an employment relationship, Grubhub’s lack of all necessary control over Mr. Lawson’s work, including how he performed deliveries and even whether or for how long, along with other factors persuade the Court that the contractor classification was appropriate for Mr. Lawson during his brief tenure with Grubhub”. This decision will have an impact upon Uber, Lyft and other ride-sharing companies.

Travel Law Cases Of The Week

Case 1

In Young v. Holland America Line, N.V. the Court noted that the Plaintiffs “booked a 14-day Caribbean cruise… operated by Holland but purchased their tickets through Defendant Costco Travel. Plaintiffs allege that they suffered physical injuries during their cruise. Plaintiffs filed suit (in California) claiming Defendants’ negligence caused their injuries. Holland filed a motion to transfer venue to the Western District of Washington ‘pursuant to the terms of the forum-selection clause in the Passage Contract’”.

Reasonable Communication

“Here, the focus of the parties’ dispute is whether the forum-selection clause in Holland’s Passage Contract was reasonably communicated to Plaintiffs…Holland focuses…on its ‘Internet-based booking conformation and check-in system’. Holland claims that Plaintiff ‘were required to first view and then acknowledge the terms and conditions of the Passage Contract’ which include the forum=selection clause. Indeed, Holland claims ‘Plaintiffs would have been unable to print their boarding passes without first accepting the terms and conditions’. Holland then explains how, within the Passage Contract, the forum-selection clause is ‘notably distinguished’ by its physical characteristics”.

Booking Through Costco

“The problem with Holland’s argument is that Plaintiffs did not use the online booking system…Plaintiffs explain that they purchased their cruise tickets through Costco Travel (and) a Costco travel agent sent Plaintiffs written confirmation of their booking along with their itinerary. None of these documents mentioned the forum-selection clause. (Subsequently the Costco travel agent sent an email which) directed Plaintiffs to check in for their cruise on Holland’s website in order to obtain their boarding and luggage tags…After receiving the…email (the) Plaintiffs attempted to check in with Holland’s online system but were unable to do so. Together, Plaintiffs called Holland’s customer service line (and eventually receive an eleven-page boarding pass by email on page 8 of which there were) disclosures regarding the forum-selection clause”.

Inadequate Notification

“The upshot is that Plaintiffs were not notifies of the forum-selection clause in their Passage Contract until after they booked their cruise tickets and, even then, the clause was buried near the back of an 11-page document. For these reasons the Court finds that this chain of events did not result in an effective forum-selection clause. (In addition) the Court is skeptical that a term disclosed only after a purchase is made and at a time when cancellation would cost up to 75% of the ticket price can satisfy the reasonable communicativeness test. See Carnival Cruise Lines, Inc., 499 U.S. 585, 595 (1991) (finding it important that the cruise ship passengers ‘retained the option of rejecting the contract with impunity’).

Case 2

In Vardanyan v. Costa Rica Travel Planning, Inc. (C.R. Travel), the Court noted that “Plaintiffs alleged that…Vardanyan purchased a vacation package from C.R. Travel (which) sent an email…regarding the planned trip, stating in part…We are currently in the process of confirming your reservations…By asking us to make reservations for you are agreeing to our Terms & Conditions (which) included a forum selection clause in a separate paragraph with the heading ‘Applicable Law’ in italicized, capitalized print. Below that heading was the following language: ‘The contract will be governed by the laws of the State of Colorado and all disputes shall be brought in Weld County, Colorado’…on August 4, 2013 decedent drowned in Costa Rica while swimming in the ocean…After C.R. Travel was served with the…complaint…(it moved to dismiss the complaint) based on the forum selection clause”.

Forum Selection Clause Enforced

After reviewing Plaintiff’s arguments regarding adequate notice, unconscionability and conspicuousness the Court enforced the Colorado forum selection clause. “Here, the document that contains the forum selection clause (the e-mail attachment of terms and conditions) consists of only one page, and the forum selection clause is set forth in one separated, short paragraph. That paragraph has the heading ‘Applicable Law’ in italicized, capitalized print. Therefore, although the text of the clause was set forth in the same sized font as that of other sections, it was not ‘buried in a sea’ of same-sized print. In addition, the font of the text was not too small. Indeed, the document was e-mailed to Vardanyan, the font could have been made larger after opening it on a computer”.

Case 3

In Wilmot v. Marriott Hurghada Managements, Inc., the Court noted that “This case stems from an alleged pool side injury that Guy Wilmot, a citizen and resident of the United Kingdom, suffered during a vacation at the Marriott Resort in Hurghada, Egypt. After the injury, Wilmot underwent surgery for a broken shoulder in Egypt and sought further treatment from doctors and physical therapists in the United Kingdom. Those who witnesses the incident, assisted Wilmot afterward and medically treated his injuries all remain in either Egypt or the United Kingdom. Any medical records generated from Wilmot’s care are in either Egypt or the United Kingdom as well. Wilmot brought this action in the District of Delaware”.

Motion To Dismiss

“In response (to the lawsuit) Marriott filed a motion to dismiss for forum non conveniens, contending Egypt was a more appropriate forum for resolving this case. Marriott agreed to accept service of process in Egypt and consent to the Egyptian courts’ jurisdiction, Marriott also submitted an affidavit of Tarek Ahmed Roushdy Ezzo, Managing Partner of the Egyptian law firm of Ezzo Advocates, which attested Wilmot’s claim would be cognizable in Egyptian courts. After Wilmot responded, Marriott’s reply also offered the United Kingdom as an available and adequate alternative forum”.

Forum Non Conveniens

“The doctrine of forum non conveniens places within a district court’s discretion the option of ‘resist[ing] imposition upon its jurisdiction’…when trial would ‘establish …oppressiveness and vexation to a defendant…out of all proportion to plaintiff’s convenience…We have outlined four factors to guide district courts’ exercise of discretion: ‘(1) the amount of deference to be afforded to [plaintiff’s] choice of forum, (2) the availability of an adequate alternative forum where defendants are amenable to process and [plaintiff’s] claims are cognizable; (3) relevant ‘private interest’ factors affecting the convenience of litigants; and (4) relevant ‘public interest’ factors affecting the convenience of the forum’”.

The Four Factors

First, the Court agreed that “Wilmot’s forum choice (should be afforded) ‘significantly less deference’ than is ordinarily afforded a plaintiff’s choice of forum” because he is a “foreign” plaintiff and his choice of a United States forum is “less likely to be based on convenience”. Second, regarding the availability of an adequate alternative forum the Court found both the United Kingdom and Egypt adequate notwithstanding “Wilmot also contends terrorism and corruption render Egypt’s courts inadequate”. Third, as regards private [“Private interests to consider include the ease of access to sources of proof; ability to control witness attendance if necessary; means to view relevant premises and objects; and any other potential obstacle impeding an otherwise easy, cost-effective and expeditious trial”] and public interests [“Public interests include administrative difficulties arising from increasingly overburdened courts; local interests in having the case tried at home; desire to have the forum match the law that is to govern the case to avoid conflict of laws problem…; and avoiding unfairly burdening citizens of an unrelated forum with jury duty”], the Court noted that “nearly all witnesses, evidence and other sources of proof are outside the United States. The case involves an alleged accident in Egypt, suffered by a British citizen and resident whose injuries were treated by Egyptian and British doctors…the District of Delaware has little interest in resolving this case compared to Egypt or the United Kingdom”. Motion to dismiss granted.

Case 4

In Brown v. Marriott International, Inc., the Court noted that plaintiff while a guest at St. Kitts Marriott Resort “was caused to slip and fall as a result of water dripping down from the air conditioner…causing the plaintiff to strike and come in violent contact with the floor…St. Kitts island and the neighboring island of Nevis are an independent ‘two-island country in the West Indies; called the ‘Federation of Saint Kitts and Nevis…Plaintiff resides in Brooklyn, New York (and) Defendant is a Delaware corporation (which has moved to dismiss on grounds of forum non conveniens)”.

St. Kitts Inadequate Forum

“Although it is true that Plaintiff does not have to be able to pursue ‘an identical cause of action’ in the alternative forum, she must be able to ‘litigat[e]…the subject matter of the dispute’…Here the subject matter of Plaintiff’s dispute is vicarious liability based on agency law…Defendant had failed to meet its burden to show a necessary element…that St. Kitts permits litigation of vicarious liability and/or agency claims. On this ground alone, the Court can properly deny this motion…Moreover, whether a New York resident can hold an American company that does business in New York liable under an apparent agency theory is of interest to New York citizens”. Defendant’s motion to dismiss on the grounds of forum non conveniens is denied.

Case 5

In Guezou v. American University of Beirut, the Court noted that the plaintiff was a citizen of France and while in Lebanon on a beach owned and maintained by the defendant sat on a broken chair, feel backwards and was injured. He received medical treatment in Lebanon and France. “Defendant is a university incorporated under New York law (with) administrative offices in New York although since its founding, its campus and facilities are in Lebanon”. Defendant moves to dismiss on the grounds of forum non conveniens.

Motion To Dismiss Granted

“[T[here is an insubstantial nexus between this case and New York, especially as Lebanon is the situs of the accident and the location of potential witnesses other than plaintiff’s doctors and plaintiff, all of whom reside in France…And there is also no indication that adjudication in Lebanon would not serve the interests of substantial justice…As the balance of these factors is ‘strongly in favor of the defendant’ and in the interest of substantial justice, Lebanon is the better venue”.

The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 42 years including his annually updated law books, Travel Law, Law Journal Press (2018), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2018), Class Actions: The Law of 50 States, Law Journal Press (2018) and over 500 legal articles many of which are available at For additional travel law news and developments, especially, in the member states of the EU see

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