At least once a month, a traveler sends me a message detailing some major problem that occurred overseas, ending with:
"What are my rights in this situation?"
The short answer is, "Very few." The law and the fine print often conspire to deny justice.
Unfortunately, U.S. travelers often run into serious problems when visiting other countries. These problems include wrongful death, personal injury, assault, theft and property damage, and fraud and misrepresentation. These are all situations where you might well want to proceed with legal action. Even at home, however, legal action can face many problems, and those problems multiply greatly when the defendant is based in a different country.
Given the complexity of the situation, my reporting is necessarily confined to residents of the U.S. and U.S. laws. And although I've touched on this question often, many of you U.S. travelers still seem not to know that, with the single exception of international commercial air travel, when you travel in other countries you enjoy essentially no special "rights" anywhere in the world. Instead, your "rights" are only as good as what you can successfully claim. And, in many cases, the travel industry has the deck stacked against you from the start.
To help assess some of the key problems, I turned to Judge Thomas Dickerson's key publications Travel Abroad Sue at Home and Cruise Passenger's Rights and Remedies. Judge Dickerson is the country's leading legal scholar on travel matters as well as an important authority on consumer rights, generally.
My report is based on my non-lawyer interpretation of some complex legal issues. Clearly, with any sort of major problem, you should consult a lawyer, not a travel writer.
Within that framework, as far as I can tell, in seeking redress outside the U.S., you face several major obstacles.
Jurisdiction and Choice of Law
If you want to seek legal redress for any sort of problem, you obviously prefer to take action in a U.S. court. Local laws elsewhere can limit severely your ability to sue and the amount you might be able to recover.
Compared with U.S. law, laws in many countries:
Base injury and negligence claims on lower safety standards.
Limit monetary awards for loss of life or serious injury. China, for example, limits loss-of-life claims to $20,000.
Base litigation on different basic law structure -- Napoleonic Code or Koranic law, for example -- that may not recognize some kinds of tort or injury claims.
Prohibit contingency fees for legal actions. You'd have to front the costs of any action, regardless of the outcome.
Deny you the right of a jury trial.
Not recognize punitive damages.
Not recognize breach of contract and some other tort claims.
Setting the jurisdiction may well be the most important consideration in possible legal actions. And establishing the jurisdiction may well involve a legal tug-of-war between you and the defendant before any actual process can begin.
In U.S. law, you can claim U.S. court jurisdiction over a foreign entity if that entity advertises and sells its services in the U.S. But U.S. courts often must weigh counterclaims about jurisdiction. Although many U.S. laws specify that suits be brought in a "convenient" jurisdiction, in any given situation, both sides can claim their local jurisdictions are the "most convenient" jurisdictions:
You can argue that the costs and difficulties of traveling abroad are prohibitive for you as a private citizen. Foreign defendants can make a similar claim about having to travel and hire U.S. counsel.
You can claim that foreign law is inadequate to compensate you. Foreign defendants can claim it is fair to you.
Foreign defendants may claim a need to interview local witnesses and have their court visit the scene of an accident or crime. You can claim that witness interviews and site visits can be done electronically.
Foreign defendants can claim that applicable local laws are written in the local language, and that knowledge and use of that language is essential to a determination of the case. You can claim that competent translators can overcome any language problems.
Clearly, determining jurisdiction is the most important factor in any sort of legal proceeding against a foreign defendant. But in digging through Judge Dickerson's literature, I can see no consistency among U.S. courts in determining jurisdiction. Rulings cited in the literature appear to be almost random.
I suspect, however, that if you lose a jurisdiction ruling, your chances of meaningful recovery drop precipitously -- so much so that, in all probability, most of you would abandon your case. But that's a decision only you and your lawyer can make. And if the amount is big enough, you may well want to proceed even in a foreign court.
Unfortunately, many travel suppliers try to lock you into an unfavorable jurisdiction from the get-go. The fine print on many travel suppliers' contracts contains one or more limitations on your legal options:
Specifying the jurisdiction in which any legal action must be taken.
Limiting legal action to a specific court.
Limiting legal action to the laws of a specific country outside the U.S.
Requiring mandatory arbitration of any legal dispute, and specifying the arbitration venue.
Typically, U.S. courts sometimes throw out such limitations on the grounds of unfairness, inadequate notice and unreasonableness. Sometimes, they enforce the fine print. Again, as I sift through the literature, I see no consistency in the precedents: Some favor plaintiffs, some favor defendants.
Cruises Even Worse
Whatever barriers you might face in pursuing a legal claim against a hotel, tour operator or other supplier, the barriers are even higher with cruise lines.
In the first place, maritime law preempts state law for all claims that originate outside the 12-mile limit, and maritime law is significantly less consumer-friendly that general U.S. laws. And your options can be severely limited for cruises that do not touch a U.S. port.
See Judge Dickerson's literature for more detail.
Clearly, embarking on legal action against a foreign supplier is a gamble -- and one that you're as likely to lose as win, regardless of the merits of your case.
In his conclusion, Judge Dickerson says that lawyers need to consider the best ways to keep any claim in U.S. courts. With an unfavorable ruling on jurisdiction, you may have no alternative but to pursue your claim in a foreign court, under foreign law. For most of you, doing that looks like a losing gamble.
In any case, I commend you to Judge Dickerson's publications -- and a good lawyer.
Ed Perkins is a contributing editor to SmarterTravel and a respected commentator on all aspects of the travel industry, including passenger comfort and rights, travel insurance, the best credit cards for travelers and car rental fees. SmarterTravel provides expert, unbiased information on timely travel deals, the best value destinations and money-saving travel tips.