Traveling this summer outside of the US? Be careful what you sign when you check in.
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If you’ve ever been to an athletic event, you know that when two teams compete, often one is “home” and one is “away”. You prefer for your team to be home, not just because it makes it easier for you to get to the game, but also because it tends to increase the chances of victory. This is referred to as “home court advantage”. The home team has the advantage of higher attendance by fans, comfort and familiarity in the arena, and time to prepare for the traveling team’s arrival. To a certain extent, the same can be said for the current status of resort litigation. When you’re involved in any law suit, it is beneficial to be in your own state or country where you can easily travel, understand the system, and communicate with a local attorney who is familiar with local laws. This is particularly true of the United States legal court system.
However, if you travel and find yourself injured, it can now be difficult to get the home court advantage. Actually, it can be difficult to even bring a case at all.
Take a common vacation scenario for example. Many people choose to vacation at large Caribbean resorts. It's become almost an extension of Florida. As with most agreements, your reservation at a resort is considered a contract. As with all contracts, it’s important to read the fine print.
At the time of your reservation, you are asked to agree to the resort’s policies for booking and visiting, but when you’re traveling outside the U.S., it’s imperative that you be careful before signing your guest registration card. For example, the reservation request for a major resort in St. Lucia includes the clause that “all rates and conditions are subject to change without notice”.
While the above is considered a relatively common policy, contracts also include more serious conditions that may make it hard for you to protect your rights if you have an accident. Under the forum selection clause, if you choose to bring a law suit, many vacation destinations claim that you must do so in their country (outside the US). This implies more than just traveling back to a given island paradise for a court date. It also means that you must follow, not U.S. laws and procedures, but the other country’s. Sometimes, these laws prohibit contingency fee contracts (a good example is the Bahamas where contingency contracts are not allowed), and some require significant bonds to be posted in order to bring a personal injury claim. Many countries make it very complicated to bring personal injury suits in the first place.
In some instances the traveler does not even see this forum selection clause until they have already traveled thousand country. Other resorts, have reservation websites that when travel is booked, send s a link to their website, and somewhere buried in its multi-page website is a Terms and Condition section with language similar to the following (which was taken from the Atlantis Terms & Conditions section of their internet site):
During guest registration ... you will be asked to sign a form agreeing to the following terms related to any claims you may have as a result of your stay at the resort: "I agree that any claim I may have against Atlantis, Ocean Club, or any of their officers, directors, employees or related or affiliated companies,....... resulting from any events occurring in The Bahamas shall be governed by and construed in accordance with the laws of the Commonwealth of The Bahamas, and further, irrevocably agree to the Supreme Court of The Bahamas as the exclusive venue for any such proceedings whatsoever. The foregoing shall apply to all persons accompanying me, and I represent that I have the authority to sign this document on their behalf.
So why sign away your rights? Why not just avoid the issue altogether? If only it were so simple. The problem with the forum selection clause is that it is often not shown to travelers before they arrive at the destination. Once you are at the resort, you must agree to their terms in order to stay there. Therefore, unless you want to be stranded in paradise looking for a Super 8 Motel equivalent so you don’t have to pitch a tent on the beach, you’ll probably agree to sign what the resort asks you to sign. To avoid this kind of problem, find out the resort’s policies before you leave home. Find out if there is a forum selection clause, and if so, ask where the agreed forum is. If there are legal problems during your visit, this location will be the site of any necessary litigation.
If you are planning to travel, be careful that you know what you are signing. Actually, be careful because in some instances, you don't even have to sign- the person who checks you in obligates everyone within his/her travel group (see the last sentence in the forum selection clause from Atlantis). If you need help and want to be advised of your rights, consult an attorney who is familiar with forum selection and can help you understand the agreement you are making with the resort. It would be great not to have to worry about this because the likelihood of injury is so remote, but unfortunately accidents and injuries can happen to people while they are traveling. It would be a shame if someone was seriously injured because of a resort's negligence, but they couldn't recover simply because they had to litigate outside the US and they either couldn't afford the bond, couldn't find a contingency lawyer, or could not withstand the traveling back to the country where they were hurt.