Q:If a client of our agency has an accident in a foreign country due to the negligence of a tour operator or hotel, can the client sue in the U.S., or must the client sue in the country where the accident occurred? If the client can sue here, can the court dismiss the case anyway if it wants to do so? If the client decides to sue in the foreign country, and if the client claims that our agency were somehow negligent, as well, could we be forced to defend a suit in a foreign country?
A: Corporations can be sued wherever they regularly do business. So if a tour operator advertises in the U.S. and operates tours in a foreign country, it can be sued in either place.
If a hotel chain is headquartered in the U.S. and franchises hotels around the world, it can be sued in every country where it has a hotel bearing its name. It can also be sued in any state where it is regularly doing business or is headquartered.
So if your client in New York was injured at a Marriott hotel in Pakistan, he can sue Marriott in New York, Maryland (where Marriott is headquartered) or Pakistan. It generally does not matter where the accident occurred or whether U.S. or foreign law will apply to the issue of negligence.
However, at the defendant's request, federal judges sometimes dismiss cases because, taking all factors into consideration, it would be more convenient for the parties to litigate the case in the country where the accident occurred. This is known as the doctrine of forum non conveniens.
The operation of the doctrine was recently illustrated in the case of DiFederico v. Marriott International, when a federal judge in Maryland threw out a suit by the surviving family of a government contractor killed in a terrorist explosion at the Islamabad Marriott in 2008. This is the same incident depicted in the movie "Zero Dark Thirty."
The judge decided that even though it was probably now too late for the family to file the suit in Pakistan, the case should be dismissed because Pakistan would have provided an adequate forum for adjudication, and that suit in Pakistan would have been more convenient in light of the public and private interests involved.
On May 1, the U.S. Court of Appeals reversed the judge's decision, calling it an "abuse of discretion." It noted that when U.S. citizens choose to sue in U.S. courts, the citizens are entitled to "heightened deference" in their choice of forum, but that dismissal would have been warranted in other circumstances.
Because dismissal on the grounds of forum non conveniens is always discretionary with the court, the plaintiff who chooses to litigate in federal court at home can never know for certain whether the case is going to get dismissed. The judges can and do make abusive decisions, as shown by the DiFederico case.
A plaintiff who wants to sue your agency must do so only in the state in which you actually transact business on a regular basis. If you get sued elsewhere, you do not have to defend the suit.
Any judgment against you would be unenforceable, although you would need a lawyer to point this out to the court in your state.
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].