Safety
| Author | Jeffrey Wilson |
| Pages | 1405-1410 |
Page 1405
Both domestic and international travelers are often exposed to unique risks and dangers not common to other activities or industries. In the course of travel, direct control over the safety and welfare of travelers is effectively transferred to others (often unknown third parties). In some instances, the law imposes "strict liability" upon these third parties, whereas in other circumstances, there must be fault on the part of the third party before a traveler may recover damages for injury or harm.
However, the issue of travel safety invokes more consideration than merely the identification of potentially liable parties. Of particular concern is the myriad of complex bodies of law that affect different aspects of travel safety, e.g., maritime law, aviation law, hotel law, consumer law, etc. This is further complicated in instances of international travel, which may invoke questions of jurisdiction and choice of law rules.
At the global level, one must consider the many provisions contained in international treaties and federal statutes which address issues of travel safety. Among them are the following:
The Warsaw Convention (Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on 12 October 1929): Among other things, this body of law governs the legal rights of international travelers to sue airlines for physical injuries or death suffered on an airliner. The amended Warsaw Convention provides that airlines have strict liability (providing an automatic entitlement without proof of fault) up to $100,000 SDRs ("Special Drawing Rights," equivalent to approximately $135,000 U.S. dollars).
The Athens Convention and The Hague Convention.
The Death on the High Seas Act (DOHSA), 49 USC 40120, governs crashes occurring more than one marine league (approximately three miles) from land. The DOHSA limits recovery to pecuniary damages only.
The Ford Federal Aviation Reauthorization Act of 2000, PL 106-181, which, among other
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things, amends provisions of the above DOHSA to clarify that crashes within 12 nautical miles ("territorial waters") from U.S. shores will be adjudicated by domestic state and federal laws and not DOHSA.
The Foreign Sovereign Immunities Act, 28 USC 1330, governs the waiver of sovereign immunity for foreign governments whose airlines cause injuries in the United States.
Domestically, major issues of travel safety fall under the Department of Transportation (DOT) and the DOT's Federal Aviation Administration (FAA), and to a lesser degree, the National Transportation Safety Board (which is not affiliated with the DOT but is responsible for investigating air accidents), the Department of State, U.S. Customs, and the Department of Health's Center for Disease Control (CDC).
As part of the Aviation and Transportation Security Act of 2001, P.L. 107-71, the Bush Administration created the Transportation Security Administration (TSA), an arm of the Department of Homeland Security. These entities are concerned with traveler safety from a security perspective. They include initiatives such as airport passenger screening and color-coded homeland security alerts for travelers.
Congress has used the Commerce Clause as authority to enact other laws affecting travel safety. One such law is the Air Carrier Access Act of 1986 (49 CFR 382), which prohibits discrimination and requires physical accommodation of passengers with disabilities. Airlines may not require advance notice that a person with a disability is traveling (with certain exceptions involving special equipment or hook-ups), and airlines are prohibited from restricting the number of disabled persons on a flight.
As a general rule, "common carriers," such as airlines, cruise line, bus and rail operators, are held to a higher standard of care owed to passengers and travelers. Common carriers cannot require or request patrons to sign contracts that purport to disclaim liability caused by the gross negligence or intentional misconduct of the common carrier or its agents/employees. Nor may common carriers attempt to enforce such a disclaimer even if it appears on a passenger ticket.
Several state courts have ruled that travel agents are agents of the consumer and not the travel service providers. According to these states (including Arizona, California, Illinois, Louisiana, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, and the District of Columbia), travel agents are fiduciaries owing a high standard of care. This makes their obligations and duties to the consumer independent from their relationship with airlines, cruise lines, hotels or tour operators. In addition, it exposes them to potential liability for harm or injury to their customers...
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