How to Avoid a ‘Travel Nightmare’

If you really want your vacation to be a dream rather than a nightmare, listen to the judge. That would be Judge Thomas A. Dickerson, one of the nation’s leading authorities on travel law. He and a colleague, Cheryl E. Chambers, recently published their ideas in the New York Law Journal. As is so often the case, most of their ideas are about what good common sense would dictate, but the legal implications add an additional level of authority. Here’s my take from this excellent report, with a few personal additions:

Don’t Go Looking for Trouble

Even a casual look at the headlines would suggest that you avoid Egypt right now, but you can encounter terrorism, civil unrest, street crime, kidnapping, terrorism and even piracy in lots of places. Your best overall source is the State Department’s summaries about individual countries, but don’t ignore the headlines, either. 

Read the Fine Print

Do I really need to say this again? Dickerson and Chambers point out that many travel contracts (the ones that actually commit both parties) conceal some serious traps in fine print, especially for foreign travel:

• Disclaimer of liability for torts of independent contractors, even when recommended by the supplier. These contractors may be insolvent, uninsured, unlicensed, irresponsible, and, of course, outside the jurisdiction of any U.S. court.
• Mandatory arbitration of disputes. Arbitration leaves you with no recourse to law, and arbitration is notoriously less favorable to consumer plaintiffs than to supplier defendants.
• “Forum” clauses. These common provisions limit your right of legal recourse to just one court venue, often in a remote part ofthe United States or even a foreign country. In effect, the objective of a forum clause is to hinder your ability to seek a legal remedy for damages or other misdeeds.
• Limits on damages to actual monetary loss, especially on foreign trips. Some contracts cap any damages; in other cases, forum clauses may limit your recovery for wrongful death (maximum of $5,000 in the Cayman Islands), to loss of wages (about $2 in Mexico), or to actual out-of-pocket medical expenses (several areas).
• Travel insurance exclusions: If the contract does not specifically say some event is covered (“covered reason,” or “named peril”), it isn’t covered.

Typical travel contracts are “contracts of adhesion,” the legal term for contracts between parties of vastly unequal strength and bargaining position. One of the biggest problems is that U.S. courts have been inconsistent in upholding restrictive contract terms: Plaintiffs prevail in some cases, they fail in others, and you don’t know the outcome until a court actually rules.

Don’t Take Risks

If you engage in a risky activity, including zip-lining, snorkeling or even skiing, and you suffer an accident, you may have a problem collecting any damages even in cases of obvious negligence.

Cruise America

If possible, choose a cruise that calls in at least one U.S. port. That means the cruise line operates under U.S. maritime laws and that the ship is subject to U.S. sanitation inspection. Otherwise, your legal remedies are sharply reduced.

Avoid Risky Foreign Airlines

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If you fly a foreign airline entirely within a single country, you may not be protected by the international provisions of the Montreal Convention, itself more limiting than U.S., Canadian, and European protections.

Avoid Uncertain Medical Care

Cruise lines generally avoid liability for malpractice by shipboard doctors, and medical practices in many parts of the world are unacceptable. The judges say, “Use your evacuation insurance, get on a plane, and fly home” as fast as you can. But if you do, make sure you arrange the flight through the insurance company: If you “wing it” to make arrangement on your own, the insurance probably won’t cover the cost.

Behave Yourself

Don’t unwittingly violate local customs and laws. In some places, you can be fined for jaywalking, throwing used chewing gum on the street, making abusive statements, or wearing the wrong sort of clothing.

Not Rocket Science

 These recommendations shouldn’t surprise you. So if you ignore them, don’t be surprised if your dream trip becomes a nightmare.

 

Ed Perkins on Travel is copyright (c) 2013 Tribune Media Services, Inc.

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