This week we will examine the extent to which tour operators should be held liable for failing to investigate and advise their customers on the incidence of criminal activity in the desired destination locale. Specifically, we will review the recent case of Giuffra v. Vantage Travel Service, Inc., 2015 U.S. Dist. LEXIS 70331 (6/1/2015) involving the mugging and assault of a tourist in the Old Town of Riga, Latvia.
Travel Law Update
Ride-Hailing App Regulations
In Sarcevic, App-based Car Services Praise New City Regulations, newyorklawjournal.com (6/25/2015) it was noted “New York City’s taxi regulatory agency…approved new rules governing how Uber ad other app-based car services operate within the five boroughs. Part of the proposal…allows the companies to update their apps without approval from the regulators, a change from the initial proposed rules (which) would have required companies like Uber and competitor Lyft to submit app updates to the Taxi and Limousine Commission for approval. It’s a small but important shift that Uber…hailed as a victory. It ensures riders will have the most up-to-date-versions, an Uber spokesman said”.
Airbnb Threat To Priceline
In Huston, Airbnb poses long-term threat to online travel sites like Priceline, marketwatch.com (6/24/2015) it was noted that “Airbnb isn’t only a threat to hotels, but to the online travel industry, Deutsche Bank analysts say. In comparison to sites like Priceline…the analysts see home-rental site Airbnb rising in popularity-potentially becoming a large competitor, especially if it adds more hotel listings to the site. Beyond discussions of adding chains like Hilton and Marriott, the analysts say they’re concerned about…European hotels and bed and breakfasts ‘salivating’ over Airbnb 3% fee compared to other online travel agents’…25% fee…Even with its current model, the analysts said Airbnb has more ‘intense loyalty’ due to its sharing economy…verification system. ‘Airbnb has emphasized itself as a movement as much as it has a place to find a pad for the night’”.
Unhealthy Destinations?
In Tourism: 49 Percent of the health problems when traveling related to the destination, www.eturbonews.com (6/25/2015) it was noted that “Observatory (TIO) with the support of the World Tourism Organization…49 percent of the health problems affecting tourists and travelers when they visit other countries are related to the country of destination, such as gastrointestinal or respiratory infections. 26 percent of the problems faced by travelers have to do with trauma, especially fractures”. See also Dickerson, Avoiding Dangerous Vacations 2014 at nycourts.gov/courts/9jd/taxcertatd.shtml
The Plane Hacker?
In Plane safe? Hacker case points to deeper cyber issues, msn.com.en-us/money (5/26/2015) it was noted that “Security researcher (Mr. X) made headlines last month when he was hauled off a plane in New York by the FBI and accused of hacking into flight controls via his under seat entertainment unit. Other security researchers say (Mr. X)-who was quoted by the FBI as saying he once caused ‘a sideways movement of the plane during a flight’ helped draw attention to a wider issue-that the aviation industry has not kept pace with the threat hackers pose to increasingly computer-connected airplanes”.
The Risk Of Suicidal Pilots
In Kulish and Clark, Germanwings Crash Exposes History of Denial on Risk of Pilot Suicide, nytimes.com (4/18/2015) it was noted that “When Andreas Lubitz sent an email in 2009 seeking reinstatement to Lufthansa’s flight-training program after a month’s long absence, he appended what in retrospect was a clear warning signal about his fitness to fly passenger jetliners: an acknowledgment that he had suffered from severe depression.
Lufthansa put the young German back through its standard applicant-screening process and medical tests. But it did not, from everything known about the case so far, pursue any plan to assure that he was getting appropriate treatment. Nor did it impose special monitoring of his condition beyond that required of any pilot who had a flagged health issue…Lufthansa was so unaware of the extent of Mr. Lubitz’s psychological troubles that the company and its medical staff had no idea of the tortured drama playing out in his mind, peaking in the two or three months leading up to his final flight”.
Choice Of Law: Helicopter Crash In Mexico
In Bell Helicopter Textron, Inc. v. Arteaga, 2015 WL 1780072 (Del. Supr. 2015) the Delaware Supreme Court held that Mexican law and not Texas law should be applied in an aviation accident case brought against Bell Helicopter Textron (Bell). “A helicopter transporting mechanics and technicians from the Mexican state of Campeche to a work site in the Mexican state of Veracruz crashed, killing everyone on board. The helicopter was registered in Mexico and was owned by a Mexican company that provides transportation services within Mexico and was thus regulated by Mexico’s federal aviation authority. All of the victims, including the two pilots and seven passengers, were Mexican citizens…The only connection to this forum is that Bell is a Delaware corporation…But Bell has no operations in Delaware related to the helicopter crash and no conduct in Delaware affected the unfortunate victims of the crash, none of whom have any relevant connection with Delaware”.
In Flight Interactive
In In Flight, En route from London to Tokyo, a pilot’s eye view of life in the sky, nytimes.com/interactive (5/14/2015) it was noted that “The world’s airspace is divided. There are various sorts of divisions. To the pilots who cross them every day, their borders form what we may regard as the countries of the sky. London is such a sky country. Maastrict is another-indeed, it’s one of Europe’s busiest and most important volumes of named air. It covers much of the higher airspace over the northwest corner of Europe, a new and unified dominion above some of the Continent’s historically bloodiest borders”.
Duty To Warn
Tourists may be assaulted, raped, robbed or murdered at or near a cruise ship pier in Puerto Rico [Gillmore v. Caribbean Cruise Line, Ltd. (1992)] or at a hotel beach in the Bahamas [Loretti v. Holiday Inns, Inc. (1986)] or assaulted by the pilot of a charter aircraft [Shannon v. Taesa Airlines (1995)(tour participant assaulted in cockpit of charter aircraft; in the absence of complaints and available reports tour operator has no duty to make inquiries of onboard security measures) or may be stranded overseas if a travel provider has financial difficulties [Marcus v. Zenith Travel, Inc., 178 A.D. 2d 372 (1991)(tour operator went out of business stranding tourists in Japan; information about financial problems of tour operator including “freezing of bank accounts, bounced checks and reductions in staff were published in the trade newspapers” but allegedly were not conveyed to the tourists prior to purchasing their vacation; court held that a cause of action was stated for “breach of this duty of reasonable care and diligence in selecting a (financially solvent) wholesaler”)].
Available Information
Generally, information regarding the incidence of criminal activity at or near a hotel or the prospect of terrorist or criminal acts in the destination country should be obtained, if available, and conveyed to the tourist by tour operators and travel agents [[Travel Law 5.05[4][D]]. Reports of dangerous locales appear in U.S. State Department Travel Advisories, in newspapers [Sayare, Frenchwoman Abducted in Kenya Dies (nytimes.com (10/20/2011)], travel magazines [Dawood, Bad Medicine in China, Conde Nast Traveler (9/1997)(“Western tourists to China are being warned that grossly inadequate medical facilities await them if they fall ill on their vacations”)], travel trade press [Steinmetz, Belgian tourist missing in Himalayas found dead with her head cut off, www.eturbonews.com (6/27/2013);] and online alerts [see Dickerson, Avoid Dangerous Vacations 2014 at nycourts.gov/courts/9jd/TacCert_pdfs/Dickerson_Docs/ travelaccidents2014.pdf][2015 version will be out in July].
The Giuffra Case
“Plaintiffs-well educated and experienced travelers-purchased a pre-packaged European tour from (their travel agent Vantage Deluxe World Travel (Vantage)] for June and July 2012. On July 14, 2012, while traveling in Riga, Latvia, Robert Giuffra was mugged and assaulted by an unknown individual. The mugging took place in an enclosed pedestrian passageway adjacent to a stone bridge connecting plaintiffs’ hotel to the ‘Old Town’ of Riga. At the time of the mugging, plaintiffs were returning from dinner in the Old Town. Although alternative means of transportation were available, plaintiffs decided to travel on foot. Plaintiffs allege that a tour guide…had suggested that they go to Old Town for dinner and indicated that walking across the stone bridge was ‘very safe’”.
The Participation Agreement
“When plaintiffs booked the tour…they received a copy of the Vantage Tour Participation Agreement…’The responsibility of Vantage…is strictly limited. As a tour operator, Vantage organizes, promotes and sells tour programs consisting of certain travel services…that Vantage purchases and reserves from various suppliers (which) are independent contractors and are not agents or employees of Vantage…’. The Agreement also disclaimed all liability for criminal acts: ‘Vantage is not responsible for…criminal activities or any other act or event beyond the direct control of Vantage’. The Giuffras also received an invoice containing essentially identical disclaimers (and which stated) that ‘payment of this invoice indicates acceptance of the Terms and Conditions contained in the Tour Participation Agreement’”.
Warnings Given
“In addition, the Giuffras received several warnings regarding the possibility of theft and pickpocketing during the trip. They received a personal travel guide with the following warning: Personal Safety: Please keep in mind that in any tourist destination, you need to be aware of your surroundings…Although incidents of theft and pickpocketing while on tour are rare, it is important to be cautious and aware…In addition (the tour guide informed plaintiffs) that they should be careful in Latvia and other Baltic countries…Mr. Giuffra understood this to mean that there was a greater risk of pickpocketing in those countries”.
The Decision
“Pickpocketing and muggings can happen anywhere. When people take trips to interesting places, they should heed their tour operator’s advice to keep their wits about them. No one can foresee and protect against random acts of street crime”.
No Duty To Warn
“Plaintiff’s negligence claim rests on the contention that the area where Mr. Giuffra was mugged was unsafe, that Vantage had a duty to investigate and warn plaintiffs that it was unsafe, and that Vantage is liable for the tour guide’s alleged misrepresentation that the bridge was safe. Plaintiffs’ claim must be dismissed, regardless of whether the bridge was, in fact, ‘safe’. Simply put, a ‘travel agent is not an insurer or guarantor of [its] customer[s’] safety’ and cannot be held liable for a mugging on the public streets of Riga…Here, Vantage had no legal duty to protect plaintiffs against the particular type of harm that befell them”.
Actual Knowledge Of Dangers
“Plaintiffs cite a few cases for the proposition that a travel agent may have a duty to warn if it has actual knowledge of particular safety hazards, or if such information is ‘readily available’ (citing Creteau v. Liberty Travel Inc.(1993)(“Where the agent has knowledge of safety factors or where such information is readily available, a travel agent has the duty to inform the customer of those factors’)…Here there is no genuine dispute that Vantage did not have actual prior knowledge of any dangerous conditions at or near the stone bridge…and there is no evidence before the Court that information about such conditions was in Vantage’s possession or otherwise ‘readily available’”.
Tour Guide’s Duty
In distinguishing Cohen v. Heritage Motor Tours, Inc. (1994) which found that a tour guide may have assumed a duty of reasonable care in leading tourists across a stream, the Court stated that “Here, there is no evidence that Vantage or its employees directed plaintiffs to cross the stone bridge on foot…Or assumed any duty as to their safety…The tour guide’s alleged statement that the stone bridge was ‘very safe’ does not offset or negate (the warnings given to plaintiffs about the incidence of pickpocketing)-and does not indicate any negligence on her part. A statement that a bridge in ‘safe’ does not mean that pickpocketing or theft is guaranteed not to happen; at most, it suggests that, in the speaker’s experience, dangerous conditions are unlikely to occur (citing Manahan v. NWA (1992) (“Whitehouse stated that she believed the road was well-lit and safe for plaintiff and her friend to travel at night on foot… Whitehouse’s statement could not reasonably be understood as a guarantee that crime in St. Thomas, about which plaintiff had been warned generally, could not occur in the area of Yacht Haven”). There is no evidence that (tour guide) was untruthful or otherwise negligent when she opined that the bridge was safe…
In any event, even if the tour guide was somehow negligent, her negligence cannot be attributed to Vantage. To start, the tour guide is ‘several bridges too far’: she is a contractor hired by one of Vantage’s independent contractors-Guides and Tourist Services…of Moscow, Russia”.
When Information Is Available
In Chaparro v. Carnival Corporation (2012) plaintiff passengers took a cruise aboard Carnival’s M/V Victory during which a Carnival employee urged plaintiffs to visit Coki Beach and Coral World which plaintiffs did. “On their way back to the ship from Coki Beach (plaintiffs) rode an open-air bus past a funeral service of a gang member who recently died in a gang-related shooting near Coki Beach…While stuck in traffic, gang-related retaliatory violence erupted at the funeral, shots were fired and Liz Marie was killed by gunfire while she was a passenger on the bus”. In the subsequent lawsuit a motion by defendant Carnival to dismiss was denied because the complaint stated cause of action for failure to warn of the crime problem. Specifically, the complaint alleged, inter alia, that “Carnival was familiar with Coki Beach because it sold excursions to passengers to Coki Beach; Carnival generally knew of gang violence and public shootings in St. Thomas; Carnival knew of Coki Beach’s reputation for drug sales, theft and gang violence…Carnival failed to warn (passengers) of any of these dangers; Carnival knew or should have known of these dangers because Carnival monitors crime in its ports of call; Carnival’s negligence in encouraging its passengers to visit Coki Beach and in failing to warn disembarking passengers of general or specific incidents of crime in St. Thomas and Coki Beach caused Liz Marie’s death…This negligent failure-to-warn claim is more than a mere recitation of the elements of the cause of action. The facts alleged in the complaint are plausible and raise a reasonable expectation that discovery could supply additional proof of Carnival’s liability…We consequently conclude that the district court erred in dismissing (the) negligence claim”).
Conclusion
It seems clear that in the Giuffra case there was no readily available information of the incidence of muggings on or near the stone bridge in Riga, Latvia. In addition the tour operator gave general warnings about the possibility of theft and pickpocketing during the trip. However, if information of dangerous environments is available, as alleged in the Chapparo case, then travel professionals should convey that information to their customers.
The author, Justice Dickerson, has been writing about Travel Law for 39 years including his annually updated law books, Travel Law, Law Journal Press (2015) and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2015), and over 350 legal articles.
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