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March 2011    Download the Entire Issue (PDF) Available to the Public Vol. 26, No. 3   RSS Feed for Undercurrent Issues
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Legal Complications of Being Injured Abroad

why a Californian had to go to Hawaii to sue a Fiji resort

from the March, 2011 issue of Undercurrent   Subscribe Now

If a diver suffers an injury on a dive trip overseas and wants to sue the dive operator, it's not only hard to make the case stick, but it may cost you a fortune and end up in the twilight zone. Many dive operators require signed dive releases that contain a "choice of forum" clause, which sends litigants to courts in the countries they operate in. That clause often results in a U.S. court dismissing the lawsuit, so the only choice is to journey to the designated court - which could be Belize, Indonesia, or farther. Foreign legal systems aren't easy to maneuver through. Having to find a foreign attorney who can communicate in English and charges a reasonable fee could discourage anyone from pursuing a claim. We've discovered a recent case, yet to go to trial, which revolves around the venue in which it is to be tried.

While on a Maui vacation in June 2008, Linda Rollins visited the Maui Dreams Dive Company, where she noticed a DVD ad about Beqa Lagoon Resort. She spoke with the owners, who said they were chaperoning a trip to the resort in June 2009. Back home in California, Rollins called Maui Dreams, which referred her to a nearby travel agency, McCoy Enterprises, to book the trip. While Rollins wrote a check to McCoy, she was told the Maui Dreams owners would handle the trip details. She was later contacted by BLSS, which sent her an airplane ticket and information about the trip.

In our January 2009 issue, we reported Rollins' fingers had been severed by a free-swinging boat ladder during a shark dive at Beqa Lagoon Resort. As a fellow diver in her party reported, "When it was Linda's turn, she grabbed the ladder from the back just as the boat's stern rode up on a swell. The ladder swung down hard against the aluminum stern plate and severed two of Linda's fingers. A third finger was hanging by a flap of skin . . . The tips weren't recoverable thanks to the lampreys."

Rollins filed a suit against Beqa Lagoon Resort and Beqa Lagoon Support Services (BLSS), the resort's U.S. reservations office. It was originally filed in San Francisco, where BLSS had it dismissed due to a lack of personal jurisdiction (the reservations office is in Nevada).

Rollins' attorney, Kevin Lancaster, decided to take a different tactic and include as defendants a Hawaiian dive shop and a travel agency that Rollins used to sign up for the Fiji dive trip. Rollins filed her case again at the U.S. District Court in Hawaii, suing Maui Dreams and McCoy along with Beqa Lagoon Resort and BLSS. The resort agent protested, saying it did not solicit business, advertise or hire employees in Hawaii, does not advertise in Hawaii, and has no employees in Hawaii.

However, Rollins successfully argued that BLSS worked with McCoy Enterprises and Maui Dreams to market and solicit business in Hawaii by providing promotional materials, pricing schedules, and commissions to the two companies, who in turn sold and marketed vacation packages to Hawaiian residents and tourists. Moreover, BLSS is the only company allowed to book U.S. clients for Beqa Lagoon Resort.

BLSS asked that Rollins' claim be filed and tried in Fiji. However, District Court Judge Helen Gillmor decided BLSS couldn't demonstrate why Hawaii wouldn't work as the forum, and why Fiji would be a better place for a trial, given the diverse location of parties in this case. (BLSS never suggested that the case be transferred to Nevada.) Rollins stated that half of the witnesses she intended to call live in Hawaii, while BLSS contended most witnesses were in Fiji. However, both parties agreed that four of the six defendants in the case live in Hawaii.

Lancaster, Rollins' attorney, tells us that now the actual Beqa Lagoon Resort has filed a motion to quash the lawsuit, which is pending. The resort's dive release has a "forum selection" clause stating that lawsuits can only be tried in Fiji courts. But Lancaster is arguing that because Fiji has had a recent spate of coups, the dictator sent the Supreme Court home, and the civil courts are essentially not working, it has no jurisdiction over the case.

What a mess.

- - Vanessa Richardson

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