TOUR OPERATORS AND AIR CARRIERS : MODERN THEORIES OF LIABILITY
Litigating on behalf of travelers who have been seriously injured in exotic and distant locales can be challenging, indeed. Where and who, for example, are the viable and liable defendants in the following real life vacation disasters?
A birdwatcher drowns while snorkeling off the Isle de Cano during a university sponsored birdwatching tour to Costa Rica? A member of the Marriott Honored Guest Program cashes in 40,000 bonus points for a Marriott tour to Egypt during which she is thrown from a camel breaking eight ribs and fracturing her pelvis? A passenger on a tour of South America suffers a cerebral hemorrhage as a plane with malfunctioning pressurization equipment ascends 13,000 feet from sea level to La Paz, Bolivia? Travelers on a TWA Getaway Tour jump into the Nile River when their cruise boat, the M/S Pharoah, catches fire and burns to the waterline? A tourist is raped and robbed on a secluded beach in the Bahamas? Two high school students take separate student tours to Mazatlan, Mexico. One of the students falls between the cars of the tour operator's " Party Train " and is crushed to death. Another student tourist jumps to his death from a hotel balcony after three days of consuming alcoholic beverages supplied by the tour operator. A participant in the Murder Mystery Weekend tour is severely burned while watching a fire eating act that explodes in flame. And tourists are injured in an accident in Mali involving a tour bus owned by an insolvent company and driven by an unlicensed and unisured driver.
Each of these ruined vacations involve a complex marketing system which includes suppliers, both domestic and foreign, wholesalers and tour operators, travel agents and informal travel promoters. Often the negligence of a foreign supplier, i.e., hotel, para-sailing operator, horse or camel stable, tour bus company, air carrier or cruise ship, will be the primary cause of the consumer's injury. Unfortunately such a potential defendant may be irresponsible, insolvent, uninsured or unavailable because of a lack of jurisdiction or the U.S. forum selected is deemed inconvenient.
Assuming availability the potential defendant may be insulated from liability, in whole or in part, because of the application of foreign law, enforceable disclaimers and releases, the Warsaw Convention, U.S. federal and state statutes limiting the liability of cruise ships and hotels and tariffs limiting the liability of carriers.
Successful travel litigation depends upon the selection of viable defendants and the application of modern liability theories. This article will discuss the liability of tour operators and air carriers for the tour participant's injuries sustained in foreign locales.
Tour operators enter into long term contracts with air carriers, hotels and other suppliers for the provision of bulk travel services. Discrete travel services are then assembled into a package tour featuring round trip transportation, seven nights accommodations, ground transportation and tours of local sites. The package tour is marketed to the general public through travel agents. Tour operators are principals and responsible to consumers for the provision of the component travel services of each tour package.
Cooperating Air Carriers
Cooperating air carriers may function as tour operators and be subject to the same theories of liability. For example, an air carrier may own and/or control a captive tour operator. Or the air carrier may be a partner or joint venturer and help finance, organize, operate or market tours to the general public. Air carriers may, however, function as independent contractors entering into arm's length transactions with tour operators. Under these circumstances a cooperating air carrier may be held vicariously liable because of an assumed duty, breach of warranty, apparent authority or third party beneficiary theory. Lastly, the duties and obligations of both tour operators and air carriers may be governed by DOT Public Charter regulations or State travel seller regulations.
Common Law Duties
As a general rule tour operators may be able to disclaim liability, in the absence of their own negligence, for a consumer's physical injures caused, primarily, by the negligence of a foreign supplier. The traditional theory being that a principal should not be liable for the torts of independent contractors. This general rule can be circumvented by applying one or more of the following theories of liability.
Breach Of Warranty Of Safety And Assumed Duty
A tour operator may be held liable for the consumer's physical injuries if the tour operator promised, either expressly or implicitly, that the tour would be delivered in a safe and careful manner. Brochure language such as " safe and enjoyable cycling area ", " Marenco's administration and staff work together to make your stay comfortable, safe " ,
" suitable for handicapped individuals ", " perfectly safe " canoeing conditions and " safe buses " may generate liability under a breach of warranty theory. Alternatively, the tour operator may assume a duty to deliver safe travel services. Assumed duties may more readily overcome written disclaimers than a warranty.
Negligent Supervision Of Tour Guides
Escorted tours feature close supervision and tour coordination provided by professional tour guides. Older consumers and the parents of students purchase escorted tours. Some sports' tours provide instructors to train and supervise the activities of the participants. In their brochures tour operators will promise that " every tour will be escorted by a qualified professional tour director...carefully selected and trained...informative, they know precisely what you will be seeing and doing...they've been there before " and their " tour escort was a professional and qualified to serve travelers in all matters ". Consumers, especially the parents of students, rely upon promises of close supervision in purchasing such a tour. Consumer injuries caused by the negligence of the tour guide may support claims against the tour operator for negligent selection and supervision of tour guides and misrepresentation of their training, expertise and knowledge of the tour locale.
Assumed Ownership And Control
Tour operators and air carriers may lend their names to promotional brochures giving consumers the impression of ownership and control. When Trans World Airlines describes tours as TWA Getaway tours it is reasonable for consumers to believe that TWA owns, operates, controls and is responsible for the delivery of such tours. When Delta Airlines gives the impression that it is " connected " to Skywest it is reasonable for consumers to believe it is so. When hotel and rental car franchisors fail to distinguish between themselves and foreign franchisees the former may be held liable for the torts of the latter. Describing foreign bus companies, taxi services and ground service providers in possessory terms [ " our " ] can generate liability.
Negligent Selection Of Suppliers
Tour operators select the suppliers that will provide the component travel services which make up the package tour. Tour operators should investigate the reliability and willingness of suppliers to deliver safe travel services. Such an investigation should reveal the supplier's financial solvency, prior accident and safety history, the existence of insurance and compliance with all applicable licensing and safety regulations, both domestic and foreign. A failure to conduct such an investigation may generate liability for the negligent selection of suppliers.
Negligent Tour Design & Exposure To Risk
Tour operators should design itineraries which maximize safety and minimize the consumer's exposure to risk. Of course, calculated exposure to risk may be a strong selling point in marketing " adventure " tours featuring challenging terrain or white water rafting. Tour operators may be held liable for unnecessarily exposing consumers to risk or designing itineraries in a negligent manner.
If tour operators hold themselves out as owning or controlling a foreign service provider then they may be estopped from denying liability for the torts of foreign air carriers, resorts, rental car companies, tour bus companies and other independent contractors. Consumers reasonably rely upon the appearance of ownership and control in purchasing the tour package.
What happens after the accident? Typically, the injured consumer will be given assistance by the medical staff of the foreign hotel, resort or tour operator. If such medical services are unavailable the consumer may be transported to a recommended foreign doctor, infirmary or hospital. The quality of medical care rendered in foreign locales can exacerbate existing injuries and expose the tour operator to even greater liability. Certainly, domestic carriers have a common law duty to seek proper medical assistance and maintain adequate medical equipment for emergencies. Under an assumed duty theory the tour operator may be obligated to investigate the availability of proper medical care before recommending foreign health care providers.
Identification of the entities involved in marketing and delivering the component elements of the tour is important. Once identified then appropriate legal theories may be developed and applied to each potential defendant.There are situations, however, where the connection between the accident and a viable U.S. defendant is too tenuous to support litigation in a U.S. forum. Under these circumstances it may be necessary to recast the defendants and redefine their marketing function. For example, in MacLachlin v. Marriott Corp. the consumer was a frequent guest at Marriott Hotels. As such she was a member of the Marriott Honored Guest Program operated by Marriott Corp., a U.S. based holding company [ " Marriott " ]. She exchanged 40,000 bonus points for a Q8 Marriott Vacation Tour featuring accommodations at the Cairo Marriott Hotel & Casino. While at the hotel the Marriott bell captain encouraged her to purchase a camel ride described as " being perfectly safe ". During the camel ride she was thrown off breaking eight ribs and fracturing her pelvis. Most of the potential defendants were beyond the jurisdiction of U.S. courts and subject to Egyptian law. The only viable and potentially liable defendant was Marriott. To find Marriott liable it was necessary to recast it from a remote holding company to an involved tour operator which organized and marketed the Q8 Marriott Vacation Tour. As a tour operator Marriott could be viewed as the principal and subject to a higher standard of care as a fiduciary. Recasting Marriott's marketing function allowed Ms. MacLachlin to defeat motions seeking summary judgment and dismissal on the grounds of forun non conveniens
[1.] Thomas A. Dickerson is a Westchster County Court Judge, New York State. Judge Dickerson is the author of Travel Law, published by Law Journal Press, New York, 1981-2000 ( updated biannually ).
[2.] See Mayer v. Cornell University , 92-CV-220 (NPM) ( N.D.N.Y. ), 1995 WL 728376 ( N.D.N.Y. 1995 ); Decision of April 16, 1996.
[3.] See MacLachlin v. Marriott Corporation, New York Law Journal, Jan. 18, 1994, p. 29, col. 2 ( N.Y. Sup. ).
[4.] See Philippe v. Lloyd's Aero Boliviano, 589 So. 2d 536 ( La. App. 1992 ).
[5.] See Elsis v. Trans World Airways,
[6.] See Loretti v. Holiday Inns, Inc., 1986 WL 5339 ( E.D. Pa. 1986 ).
[7.] See Maurer v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 294, 890 P. 2d 69 ( 1994 ).
[8.] See Knoell v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 394, 891 P. 2d 861 ( 1995 ).
[9.] See Thomalen v. Marriott Corp., 845 F. Supp. 33 ( D. Mass. 1994 ).
[10.] See Winter v. I.C. Holidays, Inc., New York Law Journal, Jan. 9, 1992, p. 23, col. 4 ( N.Y. Sup. ).[11.] See e.g., Pellegrini v. Landmark Travel Group, 165 Misc. 2d 589, 591-592, 628 N.Y.S. 2d 1003 ( 1995 ).
" There are over 40,000 United States travel agents and their role is critical in the marketing of travel services... Travel agents are best viewed as information specialists upon whom consumers rely for the provision of accurate information and the confirmation of travel arrangements."
[12.] Informal travel promoters are organizations such as alumni groups, bar associations, churches, medical professional groups, book clubs, sports clubs and so forth that sponsor reunions, conventions and group travel. The actual travel arrangements are made by professional tour operators or travel agents. See e.g., American Jewish Congress v. Unitours, Inc., New York Law Journal, Oct. 29, 1980, p. 6, col. 6 ( N.Y. Sup. )( discussion of relationship between informal travel promoter and tour operator ). Informal travel promoters may be appropriate defendants in travel litigation. See e.g., Gottesfeld v. Center for Modern Psychoanalytic Studies, 113 Misc. 2d 937, 448 N.Y.S. 2d 916 ( 1980 )( psychologists on a disastrous tour of Kenya; liability of a sponsor may be that of a surety ).[13.] See e.g.,
Second Circuit: Neilan v. Value Vacations, Inc., 116 F.R.D. 431( S.D.N.Y. 1987 )( 8000 consumers stranded overseas when tour operator goes out of business; depository bank held liable for mishandling consumer deposits ).
New York: Marcus v. Zenith Travel, Inc., New York Law Journal, Nov. 19, 1990, p. 25, col. 3 ( N.Y. Sup. ), aff'd 178 A.D. 2d 372, 577 N.Y.S. 2d 820 ( 1991 )( consumers stranded in Japan after tour operator goes out of business; travel agent liable for misrepresenting financial stability of tour operator ); Geelan v. Pan American World Airways, Inc., 15 CCH Aviation Cases 18,356 ( N.Y. Sup. 1981 ), aff'd 83 A.D. 2d 538, 441 N.Y.S. 2d 474 ( 1981 ), appeal dismissed 54 N.Y. 2D 1028 ( 1981 )( 2000 consumers stranded overseas when tour operator goes out of business; class action against cooperating air carrier certified ).
[14.] See N. 10, supra.
[15.] See e.g., Crocker v. Hilton International Barbados, 976 F. 2d 797 ( lst Circuit 1992 ( guest raped on hotel grounds in Barbados; no jurisdiction based solely on 800 telephone) number and brochures mailed into forum ).
[16.] See e.g., Chhawchharia v. The Boeing Company, 657 F. Supp. 1157 ( S.D.N.Y. 1987) ( citizen of India killed in air crash in Japan; U.S. complaint dismissed; India more convenient forum ).
[17.] See e.g.,
Illinois: Esser v. McIntyre, 169 Ill. 2d 292, 661 N.E. 2d 1138 ( Ill. Sup. 1996 ), aff'g 267 Ill. App. 3d 611, 204 Ill. Dec. 902, 642 N.E. 2d 803 ( 1994 )( tourist falls on popcorn kernels in villa in Mexico; Illinois law applied ).
New York: Feldman v. Acapulco Princess Hotel, 137 Misc. 2d 787, 520 N.Y.S. 2D 477 ( 1987) ( pool accident in Mexico; Mexican law on damages applied ).
[18.] See e.g.,
Fifth Circuit: Levine v. General Mills, Inc., 519 F. Supp. 32( N.D. Ga. 1981 )( slip and fall on slippery rock in Fiji Islands; tour operator disclaimer enforced ).
Sixth Circuit: Shannon v. Taesa Airlines, 25 CCH Aviation Cases 17,134 ( S.D. Ohio 1995 )( tour participant assaulted in cockpit of charter aircraft; disclaimer enforced ).
[19.] See e.g., Ferrari v. Grand Canyon Dories, 32 Cal. App. 4th 248 ( Cal. App. 1995 )( rafting accident; release enforced ).
[20.] See e.g., Newsome v. Trans International Airlines, 492 So. 2d 592 ( Ala. Sup. 1986) ( flight delay during charter tour; Warsaw Convention preempts U.S. federal Public Charter regulations and domestic tariffs ).
[21.] Cruise ships are protected by statute from physical injury claims. 46 U.S.C. 183b permits cruise lines to require injured passengers to file claims within six months and commence lawsuits within one year. These time limitations may not apply to accidents that place during shore excursions. See e.g., Rams v. Royal Caribbean Cruise Lines, Inc., 1994 AMC 1593 ( 1st Cir. 1994 ). Time limitations for non-physical injury claims may be much shorter. See e.g., Anschul v. Sitmar Cruises, Inc., 67 F.R.D. 455 ( N.D. Ill. 1974 ), aff'd 544 F. 2d 1364 ( 7th Cir. 1976 ), cert. denied 429 U.S. 907 ( 1976 )( breach of contract action; cruise ship's fifteen day notice of claim provision enforced ). Compare: Johnson v. Commodore Cruise Line, Ltd, 1995 AMC 666 ( S.D.N.Y. 1995 )( passenger raped; time limitations ( fifteen days to file claim and six months to sue ) for non- physical injury claims null and void; negligent infliction of emotional distress claim governed by Mississippi's three year statute of limitations ). See also, Dickerson, "Laws Leave Passengers Shipwrecked", National Law Journal, May 29, 1995, pp. B9-B-13.
" The unpleasant reality of modern-day cruising, however, is that passengers' rights and cruise ship's responsibilities are governed not by modern, consumer-oriented common and statutory law, but by 19th century legal principals, the purpose of which is to insulate the maritime industry from legitimate claims of passengers. "
[22.] Most states allow hotels to limit their liability for loss of guest property if a safe and proper notice is provided. See e.g.,
Second Circuit: Moog v. Hilton Hotels Corp., 1995 WL 232764
( S.D.N.Y. )( inadequate notice of statutory limits of liability; $400,000 worth of jewelry stolen ).
New York: Zaldin v. Concorde Hotel, 48 N.Y. 2d 107, 421 N.Y.S. 2d 858, 397 N.E. 2d 370 ( 1979 ).
[23.] See e.g., Fontan v. Lineas Aereas Costarricenses, 23 CCH Aviation Cases 17,655 ( 1st Cir. 1991 )( passenger encountered problems because of failure to carry passport; airline tariff disclaimed liability for misinformation given by agent of airline; action stayed while passenger seeks determination by DOT on enforceability of tariff ).
[24.] See e.g.,
Fifth Circuit: Southern Travel Club, Inc. V. Carnival Air Lines, Inc., 24 CCH Aviation Cases 17,633 ( 5th Cir. 1993 ) ( breach of contract action between travel club and air
Ninth Circuit: International Ambassador Program, Inc. V. Archexpo, 1995 WL 601111 ( 9th Cir. 1995 )( contractual dispute between domestic tour operator and foreign tour facilitator).
[25.] This is true at both common law [ see e.g., Walton v. Fujita Tourist Enterprises Co., Ltd., 19 CCH Aviation Cases 18,101 ( Minn. App. 1986 )( tour operator liable for slip and fall at Japanese hotel during tour )] and under DOT Public Charter regulations [ see e.g., Irving Trust Company v. Nationwide Leisure Corp., 562 F. Supp. 960, 973 ( S.D.N.Y. 1982 )( " ( the statutory language ) could not be clearer: Nationwide offered to place tour participants in specified hotels or similar one, and if it did not, it is responsible " ); Feuer v. Value Vacations, Inc., 17 CCH Aviation Cases 17,593 ( N.Y. Sup. 1983 )( tour operator liable for flight delay )].
[26.] See e.g., Elsis v. Trans World Airways, 22 CCH Aviation Cases 17,806 ( N.Y. Sup. 1989 ).
[27.] See e.g., Shaw v. Delta Airlines, Inc., 798 F. Supp. 1453
( D. Nev. 1993 )( injured passenger sues commuter airline and ticketing airline; discussion of partnership concept ).
[28.] See e.g.,
Ninth Circuit: Shaw v. Delta Airlines, Inc., 798 F. Supp. 1453 ( D. Nev. 1993 )( discussion of joint venture relationship ).
Minnesota: Walton v. Fujita Tourist Enterprises Co., Ltd. 19 CCH Aviation Cases 18,101, 18,102 ( Minn. App. 1986 ). In Walton a travel agent participated in a ten day fam trip to Japan sponsored by Northwest Airlines, Inc. and Pacific Delight Tours, Inc. The travel agent fell in a Japanese hotel and the Court found the air carrier and tour operator liable for her injuries as joint venturers.
" The co-sponsoring of fam trips by Northwest and Pacific Delight began as early as 1971. The firms shared revenues from the trips and both firms contributed money, property, time, employees and effort to organize the trips and market them to travel agents..."
[29.] See e.g., Kvalheim v. Horace Mann Life Ins. Co.,219 N.W. 2d 533, 537 ( Iowa Sup. 1974 ).
" Braniff Airlines...receives and distributes some 15,000 Perez brochures annually and sells the Perez tours out of its many offices. "
[30.] See e.g.,
Ninth Circuit: Shaw v. Delta Airlines, Inc., 798 F. Supp. 1453, 1458 ( D. Nev. 1992 )
( " Delta's actions have effectively managed to equate SkyWest with Delta in the minds of the traveling public. " ).State Courts:
New York: Elsis v. Trans World Airways, 22 CCH Aviation Cases 17,806, 17,807 ( N.Y. Sup. 1989 )( air carrier undertook to provide safe cruise ship ).
[31.] See e.g., Rovinsky v. Hispanidad Holidays, Inc., 180 A.D. 2d 673, 580 N.Y.S. 2d 49 ( 1992 )( bus crash during tour of Spain; tour operator promised safe buses; breach of warranty of safety ); Goranson v. Trans World Airways, 121 Misc. 2d 68, 467 N.Y.S. 2d 774 ( 1983 )( warranty of reliability ).
[32.] See N. 27, supra. See also, Fogel v. Hertz International, Ltd., 141 A.D. 2d 375, 529 N.Y.S. 2d 484 ( 1988 )( rental car accident ); Jacobson v. Princess Hotels International, Inc. 101 A.D. 2d 757, 475 N.Y.S. 2d 849 ( 1984 )( slip and fall near hotel pool ).
[33.] See e.g., Klakis v. Nationwide Leisure Corp., 73 A.D. 2d 521, 422 N.Y.S. 2d 407 ( 1979 )( tour operator and air carrier may be liable for 2 ½ day flight delay during charter tour).
[34.] See e.g.,
Second Circuit: Neilan v. Value Vacations, Inc., 116 F.R.D. 431 ( S.D.N.Y. 1987 )( air carrier depository bank liable for mismanagement of consumer funds ).
District of Columbia Circuit: Arrow Air, Inc. v. Dole, 784 F. 2d 1118 ( D.C. Cir. 1986 )( air carrier responsible for returning stranded passengers ).
[35.] A few states have enacted travel seller statutes that regulate tour operators and travel agents. Some statutes establish advertising standards and consumer contract disclosure rules, require surety bonding, the use of escrow accounts and participation in consumer restitution funds. See e.g., Cal. Bus. & Prof. Code 17550 et. Seq.; R.I. Rec. L. Ann. 5-52-1 to 5-52-14; Wash. Rev. Code 19.138010 et. seq.; Fla. Stat. Ann. 559.927(a) et. seq.; Ore. Rev. Stat. 646.200(7) et. seq.
[36.] See e.g.,
Third Circuit: McDermott v. Travelers Air Services, Inc., 462 F. Supp. 1335 ( M.D. Pa. 1979) ( tour operator not liable for slip and fall in Irish hotel ).
Fifth Circuit: Levine v. General Mills, Inc., 519 F. Supp. 332 ( N.D. Ga. 1981 )( tour operator not liable for slip and fall on slippery rock in Fiji ).
Sixth Circuit: Shannon v. Taesa Airlines, 25 CCH Aviation Cases 17,134 ( S.D. Ohio 1995 )( tour operator not liable for assault on tour participant in cockpit of charter airline ).
Seventh Circuit: Wilson v. American Trans Air, Inc., 874 F. 2d 386 ( 7th Cir. 1989 )( tour operator not liable assault at hotel ).
New York: Travalja v. Maielliano Tours,213 A.D. 2d 155, 622 N.Y.S. 2d 961 ( 1995 )( tour operator not liable for torts of European rental car company ); Weiner v. BOAC, 60 A.D. 2d 427, 401 N.Y.S. 2d 91 ( 1978 )( air carrier not liable for rental car accident ).
[37.] See Pau v. Yosemite Park and Curry Co., 928 F. 2d 880, 883 ( 9th Cir. 1991 )( bike rider killed in National Park; brochure
" recommended Mirror Lake Trial as a paved road closed off to automobile traffic, and thus a ` safe and enjoyable cycling area...." ).
[38.] See Mayer v. Cornell University, 92-CV-220 (NPM)( N.D.N.Y. ), 1995 WL 728376 ( N.D.N.Y. 1995 ); Decision of April 16, 1996. In Mayer two elderly birdwatchers purchased a 23 day bird watching tour to Costa Rica sponsored by Cornell University's Laboratory of Ornithology and organized by an Ithaca based tour operator. One of the brochures promised that safety would be a foremost consideration. During the tour the group went snorkeling off Isle de Cano during which Mr. Mayer drowned. No safety precautions had been taken nor was any life saving equipment available. The complaint alleged that the tour operator and the sponsor had promised a safe tour yet did nothing to make it so.. The case settled against the tour operator and was tried against Cornell University resulting in a defendant's verdict.
[39.] See Bergonzine v. Maui Classic Charters, 1995 AMC 2628 ( D. Hawaii 1995 )( cruise brochure promised special care for handicapped passengers; crew failed to assist 350 lb. handicapped passenger who broke ankle disembarking ).
[40.] See Glenview Park District v. Melhus, 540 F. 2d 1321 ( 7th Cir. 1976 )( canoeist drowns after being promised that canoeing would be " perfectly safe " ).
[41.] See Rovinksy v. Hispaniddad Holidays, Inc., 180 A.D. 2d 673, 580 N.Y.S. 2d 49 ( 1992 )( bus accident in Spain; tour operator promised " safe buses " operated by experienced staff).
[42.] See e.g., Elsis v. Trans World Airways, 22 CCH Aviation Cases 17, 806, 17,807-17,808 ( N.Y. Sup. 1989 ). In Elsis the consumers purchased a TWA Getaway Tour featuring " a seven day cruises aboard the M/S Pharoah down the Nile River ". The TWA brochure stated that
" TWA has a proven track record...Every tour is custom designed by TWA and Travellers...maintain full service offices in Cairo and Athens. They're staffed by travel experts who examine every hotel, every sightseeing attraction, every cruise ship on sight. .."On the first day of the cruise the M/S Pharoah burned to the waterline. Because there were no life preservers and the one life boat was taken by the crew the consumers were forced to jump into the Nile to save their lives. TWA's motion to dismiss on the grounds that it had no control over the M/S Pharoah was denied.
".. .having created the impression of ` TWA Getaway ` and implored passengers to ` sit back and relax with the peace of mind that only TWA Getaway Egypt vacations can offer ` defendants undertook a duty to provide a cruise ship with expected safety features such as life boats and preservers . "
[43.] See e.g., Klakis v. Nationwide Leisure Corp., 73 A.D. 2d 521, 422 N.Y.S. 2d 407, 411 ( 1979)( 2 1/2 day flight delay; tour operator disclaimer of liability for negligence of charter air carrier may not be enforceable because of assumed duty to provide air transportation ).
[44.] See e.g.,
Fifth Circuit: Stevenson v. Four Winds Travel, Inc., 462 F. 2d 899 ( 5th Cir. 1972 )( slip and fall on slimy pier during escorted tour of the Amazon River basis ).
Florida: Jackson v. State of Florida, 636 So. 2d 99 ( Fla. App. 1994 )( slip and fall during walking tour of state park ).
Louisiana: Philippe v. Lloyd's Aero Boliviano, 589 So. 2d 536 ( La. App. 1992 )( aircraft pressurization accident during escorted tour of Bolivia ).
New York: Cohen v. Heritage Motor Tours, Inc., 205 A.D. 2d 105, 618 N.Y.S. 2d 387 ( 1994) ( slip and fall on slippery rocks in stream in Canadian Rockies during escorted tour ).
[45.] See e.g.,
Arizona: Knoell v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 394, 891 P. 2d 861 ( 1995 )( student jumps from balcony in Mazatlan ); Maurer v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 294, 890 P. 2d 69 ( 1994 )( student falls to death under train to Mazatlan ).
New York: Neville v. Anglo American Management Corp., 191 A.D. 2d 240, 594 N.Y.S. 2d 747 ( 1993 )( students injured in bus accident while touring England ).
[46.] See e.g., Tancredi v. Dive Makai Charters, 823 F. Supp. 778 ( D. Hawaii 1993 )( scuba diver drowns; negligence in conducting dive ).
[47.] Stevenson v. Four Winds Travel, Inc., 462 F. 2d 899, 907-907 ( 5th Cir. 1972 ).
[48.] Philippe v. Lloyd's Aero Boliviano, 589 So. 2d 536, 543-544 ( La. App. 1992 )
[49.] See e.g.,
Arizona: Knoell v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 394, 891 P. 2d 861 ( 1995 )( parents of student who died during tour claim tour operator misrepresented its willingness and ability to adequately supervise their son ).
New York: Neville v. Anglo American Management Corp., 191 A.D. 2d 240, 594 N.Y.S. 2d 747, 748 ( 1993 ).
"The gravamen of the...actions is that a chaperone in the summer school program run by Oxford was negligent in supervising the bus driver involved in the accident. "
[50.] See Ns. 44-46, supra. See also Glenview Park District v. Melhus, 540 F. 2d 1321 ( 7th Cir. 1976 ), cert. denied 429 U.S. 1094 ( 1977 )( canoeist drowns; Park Service employees, sponsors and guides of canoe trip have a duty of care to canoeists ).
[51.] See N. 41, supra.
[52.] See e.g., Shaw v. Delta Airlines, Inc., 798 F. Supp. 1453, 1468 ( D. Nev. 1992 ).
" Delta's actions have effectively managed to equate Skywest with Delta in the minds of the traveling public. Delta publishes SkyWest flight information in Delta time tables and refers to Skywest's service as the ` Delta Connection `. The two names ( Delta and Skywest ) appear together in national advertising materials along with the same trademark the ` Delta Connection` "
[53.] See N. 31, supra.
[54.] See N. 40, supra.
[55.] See e.g., Casey v. Sanborn's Inc. Of Texas, 478 S.E. 2d 234 ( Tex. App. 1972 )( rental car accident in Mexico; Texas tour operator held itself out as being in charge and control of Mexican taxi services ).
[56.] See e.g., Stone v. Pacific Delight Tours, New York Law Journal, Dec. 27, 1978, p. 1, col. 4 ( N.Y. Sup. 1978 )( trishaw accident in Singapore; liability of domestic tour operator based upon ` Pacific Delight ` button worn by foreign tour operator ).
[57.] See e.g., Winter v. I.C. Holidays, Inc., New York Law Journal, Jan. 9, 1992, p. 23, col. 4 ( N.Y. Sup. 1992 )( bus accident in Mail; tour operator liable for selecting insolvent, uninsured and otherwise unavailable foreign bus company to transport consumers ).
[58.] See e.g., Miller v. Group Voyagers, Inc., 1996 WL 32119 ( E.D. Pa. 1996 )( tour operator failed to reveal to consumers unsanitary conditions at one hotel and rash of thefts at another hotel; negligent selection of suppliers ). Compare: Shannon v. Taesa Airlines, 25 CCH Aviation Cases 17,134, 17,136 ( S.D. Ohio 1995 )( tour participant assaulted in cockpit of charter aircraft; in absence of prior complaints of a problem with on- board security measures no negligence in selection of charter air carrier ).
[59.] See N. 56, supra.
[60.] See e.g., McAleer v. Smith, 860 F. Supp. 924 ( D.R.I. 1994 ) ( sailboat trainees drown after vessel capsizes during race; sponsor had duty to select vessels which were seaworthy, properly manned and safe for racing ).
[61.] See e.g.,
Great Britain: Wilson v. Best Travel [ 1993 ] 1 All ER 353 ( English tourist falls through glass window in Greek hotel; English tour operator must select hotels which, at a minimum, meet foreign hotel safety standards ).
[62.] See e.g., Connolly v. Samuelson, 671 F. Supp. 1312 ( D. Kan. 1987 )( slip and fall during African safari ).
[63.] See e.g., Goldstein v. D.D.B. Needham, 740 F. Supp. 461 ( S.D. Ohio 1990 )( five passengers killed during rafting accident in British Columbia ).
[64.] See e.g.,
First Circuit: Thomalen v. Marriott Corp., 880 F. Supp. 74 ( D. Mass 1995 )( negligent design of Murder Mystery Weekend tour during which participant was burned when fire eating act exploded in flame ); McAleer v. Smith, 860 F. Supp. 924 ( D.R.I. 1994 ) ( negligent exposure of sail trainees to risk of drowning ).
Third Circuit: Miller v. Group Voyagers, Inc., 1996 WL 32119 ( E.D. Pa. 1996 )( negligent design tour featuring hotels with unsanitary conditions and rash of thefts ).
Seventh Circuit: Glenview Park District v. Melhus, 540 F. 2d 1321 ( 7th Cir. 1976 )( negligent design of canoeing trip ).
Ninth Circuit: Tancredi v. Dive Makai Charters, 823 F. Supp. 778 ( D. Hawaii 1993 )( negligent design of scuba dive ).
Arizona: Rudolph v. Arizona BASS Federation, 182 Ariz. 622, 989 P. 2d 1000 ( 1995 )( jet skier killed by fishing contest participant racing to weigh-in station; content negligently designed ).
Florida: Jackson v. State of Florida, 636 So. 2d 99 ( Fla. App. 1994 )( walking tour of park negligently designed ).
Louisiana: Philippe v. Lloyd's Aero Boliviano, 589 So. 2d 536 ( La. App. 1992 )( negligent exposure to risk of high altitude flying ).
[65.] See e.g., Jacobson v. Princess Hotel International, 101 A.D. 2d 757, 475 N.Y.S. 2d 846 ( 1986 )( slip and fall at foreign franchisee hotel ).
[66.] See e.g., Fogel v. Hertz International, 141 A.D. 2d 375, 529 N.Y.S. 2d 484, 485 ( 1988 )( rental car accident in Italy ).
" Among the factual issues presented are whether the nature and content of the advertisements placed by ( Herta ) to encourage Americans to rent automobiles in Europe were such as to constitute a holding out to the public which would estop them from disclaiming responsibility for Hertz Italiana's negligence ".
[67.] See e.g., Rovinsky v. Hispanidad Holidays, Inc., 180 A.D. 2d 673, 580 N.Y.S. 2d 49, 50 ( 1992 )( bus accident in Spain; estoppel ).
[68.] See e.g.,
Fifth Circuit: Room v. Caribe Hilton Hotel, 659 F. 2d 5 ( 5th Cir. 1981 )( delay in providing medical assistance to heart attack victim ).
New York: Meshel v. Resorts International of New York, 160 A.D. 2d 211, 553 N.Y.S. 2d 342 ( 1990 )( negligence claimed in failing to revive guest suffering from cardiac arrest at hotel).
[69.] See e.g., McDermott v. Travellers Air Service, Inc., 462 F. Supp. 1335, 1341 ( M.D. Pa. 1979 )( malpractice by Irish doctor ).
[70.] See e.g., DeRoche v. Commodore Cruise Line, Ltd.,31 Cal. Rptr. 2d 278 ( Cal. App. 1994 )( cruise passenger injured while riding motorbike during shore excursion; crew recommended local Mexican infirmary where doctors committed malpractice in performing surgery ).
[71.] See e.g., Valad v. Club Mediterranee, S.A., 84 Civ. 1980 (LBS)( Club Med guest broke ankle and transported to local infirmary; malpractice charged in complaint ).
" Without benefit of blood tests, x-rays and proper medical and surgical procedures [ the recommended ] doctor proceeded to treat the broken bones and close the wounds. Thereafter [ she ] was flown to a hospital in Guadalajara...the wound [ was ] opened to reveal dirt, soil and small stones, the wound was cleaned and closed. .."
[72.] See e.g., Fischer v. Northwest Airlines, Inc., 623 F. Supp. 1064 ( N.D. Ill. 1985 )( passenger dies from heart attack during flight ).
[73.] See N. 3, supra.
[74.] See e.g., Ns. 10 & 11, supra ( travel agents and tour operators are fiduciaries ).
[75.] See N. 3, supra.