US tourist injured in South Africa during tour organized by Australian operator: Is there jurisdiction?
In this week’s article, we examine the recent case of Ameralv. Intrepid Travel Party, Ltd., 2015 WL 5163047 (D.Mass.
In this week’s article, we examine the recent case of Ameralv. Intrepid Travel Party, Ltd., 2015 WL 5163047 (D.Mass. 2015) in which the Ameral family residing in Cambridge, Massachusetts “filed this lawsuit against Intrepid Party, Ltd (ITPL)(an Australian tour operator) for claims arising out of injuries Plaintiff sustained while traveling on an ITPL trip in South Africa”. At issue is where should this lawsuit be heard, in the United States where it was started or in Australia where ITPL is headquartered and sells its tour packages over the Internet. In deciding this issue, the Court considered typical travel law issues including jurisdiction over a foreign corporation such as ITPL and the enforceability of choice of law and forum selection clauses in ITPL’s travel contracts.
Terror Targets Update
New York, New York
In Santora, Rashbaum, Baker & Goldman, Ahmad Khan Rahami Is Arrested in Manhattan and New Jersey Bombings, nytimes.com (9/19/2016) it was noted that “The man who the police said sowed terror across two states, setting off bombs in Manhattan and on the Jersey Shore and touching off a furious manhunt, was tracked down on Monday morning sleeping in the dank doorway of a neighborhood bar and taken into custody after being wounded in a gun battle with officers…investigators were still in the earliest stages of trying to determine what provoked the attacks, why a street in Chelsea was one of the targets and whether the bomber was aided by others”.
St. Cloud, Minnesota
In Smith & Perez-Pena, Friends Say Minnesota Attacker Was ‘Normal American Kid’, nytimes.com (9/19/2016) it was noted that “The man who the police say stabbed 10 people at a mall here on Saturday seemed like a model of assimilation, not a violent jihadist, people who knew and family said. The son of Somali refugees, he lived in the United States most of his life, did well in school, played sports, worked as a security guard and took classes at a local college”.
In Steinmetz, Tourist shot dead at Wyndham Orlando Resort on International Drive, www.eturbonews.com (9/8/2016) it was noted that “A vacation in Orlando, Florida, ended with death for a 53-year-old tourist. He was shot and killed early Thursday morning during a robbery at the Wyndham Orlando Resort on International Drive in Orlando, Florida, USA”.
In French police foil terror attack on Paris train station, www.eturbonews.com (9/10/2016) it was noted that “Three ‘radicalized’ women, who were planning to bomb the busy Paris Gare de Lyon train station, were arrested by French police, France’s Interior Minister Bernard Cazenauve said”.
In 48 wounded in Turkish tourist town car bomb explosion, www.eturbonews.com it was noted that “At least 48 people have been wounded in Turkey in a car bomb explosion targeting the provincial offices of the ruling AK Party in the country’s eastern city of Van”.
Davao City, Philippines
In Philippines: 25 dead, 60 wounded in Davao City marketplace explosion, www.eturbonews.com (9/2/2016) it was noted that “At least 25 people were reported killed and over 60 wounded when a blast ripped through a night market area in Davao City late Friday evening…The explosion had prompted the administration of Ateneo de Davao University to impose a lockdown on the campus, which is across the street from the night market”.
In Deadly train bombing kills one in southern Thailand, www.eturbonews.com (9/3/2016) it was noted that “At least one railroad worker has been killed when a bomb blast hit a train in southern Thailand, a few weeks after a string of bomb attacks in the Southeast Asian country’s tourist towns killed several people…the deadly incident occurred when a bomb, planted on the tracks, was detonated as the train passed over it at a station in Khok Pho district in the southern province of Pattani”.
Helicopter Rescue: Mont-Blanc
In Helicopter rescue: 110 people trapped in Panoramic Mont-Blanc cable cars, www.eturbonews.com (9/8/2016) it was noted that “The High Mountain Gendarmerie Platoon (PGHM) Chamonix launched an operation to rescue 110 people trapped at over 3000-meters altitude, in Mont Blanc Panoramic cable cars this afternoon…The Panoramic Mont Blanc gondola connects France and Italy over 5093 meters in 35 minutes of travel”
Sex Offenders & Passports
In Penton, New Passport Rules Set For Sex Offenders, Tax Delinquents, law360.com (9/1/2016) it was noted that “Certain convicted sex offenders may either have their passports denied or revoked under new State Department guidelines…The new rules impact those identified as sexual offenders under International Megan’s Law, whose who the U.S. Treasury has identified as having “seriously delinquent’ tax debt”. The rule is 22 CFR Part 51, RIN 1400-AD97 Passports.
Airlines Fined For Inaccurate Information
In 4 major airlines fined for doling out inaccurate consumer information, foxnews.com (8/29/2016) it was noted that “The government is fining four airlines for failing to have accurate notices explaining compensation for passengers who are bumped from flights or whose baggage is damaged or lost. The (DOT) said Friday that it fined American Airlines $45,000, Southeast Airlines and Alaska Airlines $40,000 each, and United Airlines $35,000″.
To Tip Or Not To Tip
In Roberts, To tip or not to tip: What you need to know about, lohud.com (9/5/2016) it was noted that “Used to be, you’s throw a few coins someone’s way to say thanks for a job well done. Then tipping became, well, a lot more complicated. Now, as the minimum wage is heading upward-it’ll move to $10 in Westchester this January and climb to $15 in 2021-and the sharing economy is throwing a wrench in the well-oiled tipping machine, it’s not getting n ay simpler. For a taxi, you tip. For an Uber, you don’t. Bt how do you know”.
Drones: Privacy To Patents
In Tillman, Drone Flights Spur Court Fights Ranging From Privacy to Patents, law.com (9/5/2016) it was noted that “As the future of commercial drones slowly takes shape-airborne pizza delivery, anyone? – one thing is certain: unmanned aircraft will continue to leave a trail of litigation in the wake. A privacy advocacy group this month filed a challenge to new regulations that permit commercial drones, arguing that the (FAA) was wrong not to include privacy standards. There are drone patent fights, lawsuits against state drone regulations, and criminal prosecutions of people who shoot drones out of the sky”.
Uber Drivers: How Long To Work?
In Scheiber, How Uber Drivers Decide How Long to Work, nytimes.com (9/4/2016) it was noted that “For nearly 20 years, economists have been debating how cabdrivers decide when to call it a day…That’s where Uber comes in. When one of the company’s researchers, using its supremely detailed data on drivers’ work times and rides, waded into the debate with a paper this year, the results were intriguing. Over all, there was little evidence that drivers were driving less when they could make more per hour than usual. But that was not true for a large portion of new drivers. Many of these drivers appeared to have an income goal in mind and stopped when they were near it, causing them to knock off sooner when their hourly wage was high and to work longer when their wage was low”.
Uber Can’t Ditch Penalty
In Fair, Uber Can’t Ditch $11.4M Pa. PUC Fine, law360.com (9/1/2016) it was noted that Uber “lost its bid Thursday to scrap an $11.4 million penalty it was slapped with in April for operating on Pennsylvania without proper authorization from the state’s Public Utility Commission. The PUC voted 4-to-1 to adopt an order rejecting Uber’s motion to reconsider the record-breaking fine as commissioners pointed to the nearly 185,000 trips the ridesharing company facilitated without proper licensure”.
Uber Drivers & Arbitration
In Hancock, Appeals Court Sends Uber Drivers Into Arbitration, law.com (9/7/2016) it was noted that “A federal appeals courts on Wednesday handed (Uber) a major victory, ruling that drivers suing the company by be bound by arbitration agreements. The U.S. Court of Appeals for the Ninth Circuit ruled that an arbitrator, not a federal judge, must decide whether the agreement used by Uber in 2013 and 2014 are enforceable. The decision reverses a 2015 ruling that voided the company arbitration agreements and allowed a driver class action proceed against the company in court over claims that it violated background laws”. See Mohamed v. Uber Technonologies, Inc., No. 15-16178, D.C. No. 3:14-cv-05200-EMC (9th Cir. 2016).
Travel Law Article: The Ameral Case
In determining whether or not the federal District Court located in the First Circuit Court of Appeals had jurisdiction over ITPL it was noted as follows:
How Was The Tour Purchased?
“Plaintiff, a resident of Cambridge, Massachusetts, logged on to a website maintained at ITPL (which is) a tour operator organized under the laws of Australia with its principal lace f business in Melbourne, Australia. ITL’s website contained information and prices for ITPL’s global gravel packages and featured an interactive platform for customers to identify their location and select packages. Plaintiff selected an itinerary that started in Johannesburg, South Africa and includes a tour of Kruger Park. Plaintiff then called the telephone number provided on the website and spoke with a representative of Intrepid US, a Delaware corporation based in California that serves as ITPL’s booking agent. Plaintiff provided Intrepid US with her credit card information and Intrepid US booked Plaintiff’s trip order over the telephone through its California office. Later that day, ITPL sent Plaintiff an email through Intrepid US confirming the dates and cost of her trip. The email contained a copy of the ‘Booking Conditions’ governing the trip and an itinerary”.
“[T]he Court finds ITPL’s contacts with Massachusetts insufficient to support the exercise of general jurisdiction. ITPL has never maintained an office or other facility in Massachusetts, has never registered to transact business in Massachusetts and has never maintained a mailing address, post office or telephone number in Massachusetts (and) never owned or leased any real property in Massachusetts (or) maintained a bank account or paid taxes or filed tax returns in Massachusetts”.
Specific Jurisdiction: Apparent Agency
“At a minimum, ITPL and Intrepid US were engaged in an apparent agency relationship and ITPL ratified Intrepid US’s conduct such that the Court may consider their combined contacts for purposes of specific jurisdiction over ITPL. The apparent agency analysis considers whether conduct ‘leads a third party to believe that the agent has authority and thus creates apparent authority to those who act upon it’…ITPL through its website prompted Plaintiff to contact a telephone number that connected her to Intrepid US to pay for her ITPL trip and Intrepid US accepted payment from Plaintiff on behalf of ITPL. This conduct by both ITPL and Intrepid US reasonably led Plaintiff to believe she was interacting with Intrepid US as an agent of ITPL and therefore vested Intrepid US with apparent authority to act on ITPL’s behalf…The Court will, therefore, impute US’s jurisdictional contacts to ITPL due to their apparent agency relationship”.
Specific Jurisdiction: Alter-Ego
“Plaintiffs allege that Peak, an Australian corporation based in Melbourne, maintained interlocking directories with ITPL and ‘exercised complete control’ over ITPL’s finances and policies such that Peak is subject to personal jurisdiction as ITPL’s alter ego. Courts generally ‘have presumed the institutional interdependence of parent and subsidiary when determining whether jurisdiction might be asserted over the parent solely on the basis of the subsidiary’s contacts with the forum’…In cases where that presumption is overcome, there is ‘invariably a ‘plus’ factor, such as an unusual degree (of)control or an obvious agency relationship. Despite Peak’s ownership of ITPL, the record reflects that the two entities maintain separate banks accounts, prepare separate financial statements and maintain separate corporate records. Plaintiffs’ counter argument that the ‘interlocking directories’ of the two entities warrant the extension of personal jurisdiction, cannot overcome the presumption of corporate separateness…Plaintiffs have not provided sufficient evidence upon which the Court could plausibly find Peak liable as IPTL’s alter ego”.
Long Arm Jurisdiction: The Factors
“The Massachusetts long-arm statute…provides for specific jurisdiction to the extent provided by the Constitution…’The First Circuit employs a tripartite analysis to determine whether specific jurisdiction is appropriate: 1) whether the claims arise out of or are related to the defendant’s in-state activities, 2) whether the defendant has purposefully availed itself of the laws of the forum state and 3) whether the exercise of jurisdiction is reasonable under the circumstances’”.
“Plaintiffs in-state contacts with ITPL and Intrepid US form an important part of the breach of contract and negligence claims against ITPL such that the relatedness requirement is satisfied here. The complaint alleges that Plaintiff accessed ITPL’s website in Massachusetts, contacted Intrepid US from Massachusetts at the direction of the website to pay for her trip and received an email in Massachusetts from ITPL that confirmed the trip dates, an itinerary and a copy of the booking conditions. For a breach of contract claim, the Court asks whether the defendant’s contacts with the forum state were ‘instrumental either in the formation of the contract or its breach’…The formation of the contract while Plaintiff was in Massachusetts serves as a material element in her breach of contract claim against ITPL…The contract, formed in Massachusetts, forms the basis of the duty of care ITPL owed to plaintiff that is at issue in Plaintiffs’ negligence claim and the relationship between Plaintiff and ITPL formed in Massachusetts will, therefore, be an important part of Plaintiffs’ negligence claim”.
“ITPL argues that it would be unreasonably burdened by being required to travel to Massachusetts to defend itself,’ particularly since ITPL has ‘no ongoing connections to Massachusetts’…ITPL runs over ten tours through Massachusetts …ETPL has not identified any special or unusual burden of litigating this case in Massachusetts”.
Protecting American Interests
“Next, Massachusetts has a ‘strong interest in protecting the rights of American citizens from negligence that occurs outside our borders’…That interest, however, is diminished where the injury occurs outside of Massachusetts”.
Plaintiff’s Choice Of Forum
“Plaintiff, ’a resident of the state, has an interest in bringing this action in Massachusetts, which weighs in favor of a finding of personal jurisdiction’”.
After weighing all the relevant factors, the federal District Court found that it had specific personal jurisdiction over ITPL, an Australian tour operator. Nonetheless the Court dismissed the case by enforcing ITPL’s Australian forum selection clause in the travel contract.
Justice Dickerson has been writing about travel law for 39 years including his annually updated law books, Travel Law, Law Journal Press (2016) and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. Justice Dickerson is also the author of Class Actions: The Law of 50 States, Law Journal Press (2016). For additional travel law news and developments, especially in the member states of the EU, see IFTTA.org.
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