Chapter § 1.03 TRAVEL ABROAD, SUE AT HOME

• Jurisdiction: United States
• Publication year: 2021

§ 1.03 Travel Abroad, Sue at Home

One of the most interesting areas of Travel Law involves accidents sustained by U.S. citizens that occur outside of the United States, whether in a foreign country or on a cruise ship.⁸⁹

A common litigation strategy is to sue in the U.S. in federal or state court against a solvent defendant subject to long arm jurisdiction and applying U.S.common law or statutory law. Such travel cases raise a variety of complex liability and procedural issues including liability shifting,⁹⁰ jurisdiction,⁹¹ forum non conveniens,⁹² choice of law⁹³ and the enforceability of forum selection clauses,⁹⁴ arbitration clauses⁹⁵ and choice of law clauses⁹⁶ in travel contracts.

[1] Types of Accidents Abroad

Traveling abroad, whether by international air carrier, aboard a cruise ship or while participating in a tour, can be a wonderful experience until you have an accident. This is especially true for those unlucky tourists involved in the following types of accidents:

• Wrongful death claims;

• Assaults;

• Rapes, sexual assaults, molestations;

• Robberies;

• Drownings and other water sports accidents;

• Slip and fall cases;

• Riding accidents;

• Transportation accidents;

• Walking tour injuries.

[2] Life Can Be Very Different Abroad

Travelers assume that, should they have an accident in a foreign country, they will be protected by the same safety standards, high quality medical care, consumer protection laws and user-friendly legal system available in the United States. The reality, however, is quite the opposite.

• Safety Standards— In many foreign countries, the safety standards may be much lower.

• Emergency Medical Care— Likewise, the quality of medical care may be much lower.

• Foreign Substantive Law—The law may be less sympathetic to the injured traveler.

• Foreign Procedural Law—The applicable foreign legal system may discourage litigation as we know it in the U.S. by, among other things, barring contingency fee arrangements with attorneys and jury trials.

[3] Behave Yourself

Travelers need to be careful in selecting relatively safe vacation venues⁹⁷ and protect themselves by avoiding a variety of dangerous sports activities provided by foreign companies, as they may not be subject to the jurisdiction of U.S. courts and which may be uninsured, unlicensed and unavailable. However, travelers also need to behave in accordance with the laws and customs of the destination country, which may be quite different than the laws and customs of the United States.

[a] Canings and Jail

For example, "[i]n Singapore, which places a high value on order, prostitution is legal but careless disposal of chewing gum can invoke fines up to $500. . . . Jaywalking and spitting result in similar fines. On the bright side, Singapore saves canings for more serious offenses, such as vandalism, for which American teenager Michael Fay received a public lashing in 1994. Sensitivity to another country's values [is important as] Raffi Nernekian, a Lebanese tourist visiting the United Arab Emirates learned . . . when he was arrested for wearing a skin cancer awareness T-shirt depicting Posh Spice in her birthday suit. Though a strategic pose and lettering kept Mrs. Beckham's revelations from being explicit, Nerekian spent a month in jail . . . [and] Ireland, the land of creative invective, . . . passed a blasphemy law making it a 25,000-euro ($37,000) offense to say or print anything 'grossly abusive or insulting' about any subject held sacred by any religion."⁹⁸

If you find yourself in jail in a foreign country, you may wish to contact the U.S. Embassy or Consulate and a U.S. attorney.⁹⁹

[b] Excessive Alcohol Consumption

After a spate of tourist deaths on the Nam Song River in Vang Vieng, Loas, authorities have closed more than two dozen of the riverside and late-night island bars that are pit-stops for tubing tourists, stopping at the legion of jerry-built bars on the waterside for free shots of drugs, which has been a popular pastime there.¹⁰⁰ The Sudan Tourism Minister has made a plea to "drink camel milk instead of alcohol."¹⁰¹ And in other areas, it has been reported that one Australian visitor dies in Bali every nine days,¹⁰² Indonesia was reported to plan to execute a British woman for drug smuggling,¹⁰³ and it has been reported that 5,400 British tourists were arrested abroad in 2012.¹⁰⁴

[c] Dress Modestly

Kashmir has asked visiting tourists to stop wearing skimpy clothes and warned them of an angry reaction if they failed to do so: "some tourists, mostly foreigners, are seen wandering in short mini-skirts and other objectionable dresses openly, which is against local ethos and culture."¹⁰⁵ Abu Dhabi has issued "flyers [that] provide guidelines to prevent tourists from getting into trouble with the law. . . . It addresses issues such as physical displays of affections, attire, smoking, drinking or eating during Ramadan, respect for religious sites and occasions, attire for beaches."¹⁰⁶ It is also the case that bikinis and Speedos are not permitted at UAE beaches.¹⁰⁷

[d] Loud and Rude Behavior

Chinese tourists have been urged to avoid embarrassing behavior when traveling to other countries. Li Zhongguang of the China Tourism Academy believes it is time to have a global vision and think about the effects of their behavior on the world. Chinese travelers abroad are seen as "loud, rude, self-centered and lacking in self-discipline," said Li. Zha Qizhi, deputy chief of China's Sanqing Mountain resort in Jiangxi Province, agreed, stating that "talking loudly in public spaces, spitting in the streets, ignoring the queue and carving names on ancient monuments are just as improper in China as anywhere else. . . . Chinese people are polite, hospitable and thoughtful hosts, and now they need to learn to be good guests," he said.¹⁰⁸

[e] Insulting Royalty and Religious Feelings

In Thailand, dozens of people have been convicted of insulting the king and his family. Among them were a Swiss man sentenced to 10 years in prison in 2007 for defacing posters of the king and a naturalized American citizen convicted in 2011 for translating a banned biography of the king.¹⁰⁹ In another case, two women and one man were detained in the southern town of Galle, Sri Lanka, after a photographic laboratory alerted police of pictures of the travelers posing with Buddha statutes and pretending to kiss one of them. Mistreatment of Buddhist images and artifacts is strictly taboo in the country.¹¹⁰ And, a Russian tourist was left with horrific injuries after he was allegedly beaten after offending locals when he rang a sacred religious bell in Sri Lanka.¹¹¹ French tourists were given jail terms in Sri Lanka for "insulting religious feelings."¹¹² It has also been reported that Bali demanded stricter regulations for tourist visits to temples.¹¹³ And, in another case, an American tourist was allegedly beaten by Jagannath temple security men while he was trying to climb Jagannath's chariot on the second day of Rath Yatra.¹¹⁴

[f] Mistreating Local Animals

China has drafted a law under when people convicted of eating endangered animals, such as pandas and monkeys, face jail time as the country takes steps to halt illegal hunting. Chinese law currently bans hunting endangered species without clearly addressing the legality of buying or consuming their meat.¹¹⁵ Foreigners visiting Thailand have been advised not to buy elephants tusks or any ivory products, even if it is something as small as an earring or a bracelet. Offenders could face arrest in Thai- land.¹¹⁶

[g] Physical Displays of Affection

In Dubai, "a visitor was apprehended inside a courtroom immediately after a judge sentenced him to three months in jail for attempting to molest a tourist at a luxury hotel on Palm Jumeirah. The 45-year-old Indian visitor . . . was charged with attempting to hug the Indian female tourist in the hotel's elevator."¹¹⁷

[h] Birth Tourism

One recent article explained that Chinese travel agents should stop sending pregnant tourists to Saipan. The United States Government has issued a warning to the Chinese outbound travel industry. Eloy Inos, governor of the U.S. Territory Saipan, told the Saipan Tribune that "immigration agents had sent home about 20 so-called birth tourists in the last three to four months because of 'documentation problems.'" Why would the U.S. care? The answer is that "any child born in this string of 15 islands between the Philippines and Hawaii is eligible for U.S. citizenship, and in the past two years the number of women delivering babies here has jumped dramatically. . . . Today, Saipan, the largest island, receives about eight charter flights a week from . . . Chinese cities. . . . And many businesses cater specially to the maternity traffic. The operator of one Saipan guesthouse told Radio Free Asia that she hosted 50 Chinese mothers last year, charging them $11,000 for accommodations, travel, translation help and some medical care, though most also incurred around $10,000 in other medical bills."¹¹⁸

[i] Ten Laws from Around the World

In a 2012 article, "10 Super Weird Laws from Around the World,"¹¹⁹ the following laws were mentioned which tourists should be aware of: "Rome, Italy: eating and drinking near landmarks illegal; Dubai: sharing a hotel room outside of marriage illegal; Greece: stiletto heels illegal; Netherlands: soft drugs like marijuana and hash illegal; Daytona Beach, Florida: spitting in public illegal; Venice, Italy: feeding the pigeons illegal; Canada: using more than 25 pennies in a transaction illegal; Singapore: chewing gum illegal."¹²⁰

[4] Jurisdiction Over Foreign Travel Suppliers, Tour Operators and Internet Travel Sellers

In an action against a foreign hotel or resort, the issue of personal jurisdiction will be raised. On occasion, the traveler's injury may occur on a body of water, thus invoking admiralty jurisdiction.¹²¹ If a foreign hotel or resort or tour operatorconducts business through...