Extreme Vacations and Limitations of Liability

• Posted on: Aug 4 2023

By Jonathan H. Freiberger

This Blog has recently written on the issue of contractual limitations of liability.  [Here]

Proving that timing is everything, Jonathan H. Freiberger, one of Freiberger Haber LLP’s founding members, was interviewed for, and quoted in, an August 1, 2023, article appearing in Hotel News Now, titled: “Is Extreme Tourism Responsible Tourism? Hotels Catering to Adventurous Guests Seek to Limit Liability Exposure.” 

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The article, which was originally published at Hotel News Now, is reprinted in its entirety with permission from Hotel News Now.  The article was written by Leora Halpern Lanz.

Is Extreme Tourism Responsible Tourism? Hotels Catering to Adventurous Guests Seek To Limit Liability Exposure

There has been much talk recently about “extreme tourism” — particularly in light of the catastrophic implosion of the OceanGate’s Titan vessel, bringing four passengers and the company’s CEO to their tragic, and likely avoidable, deaths.

“Extreme tourism,” sometimes called “shock tourism,” can be defined as a form of travel that involves a sense of danger — such as adventure in jungles, deserts, caves, canyons or in today’s times: space and the bottom of the ocean floor.

In the case of the Titan submersible, this particularly expensive and very extreme adventure is one that had an element of “look what I can do that others can’t do.” But it also may have had an element of altruism for the passengers aboard — the ability to explore and learn from the newly developed ecosystems at the wreckage site of the Titanic. Was this specific experience intended as an educational eco-tourism opportunity, or did it naturally also attract a status of significance because the passengers were able to afford this? It’s been shared that the high prices of these adventures also help with funding future explorations. By the way, I would not classify all eco-tourism as “extreme tourism.” These terms are not, and should not be, interchangeable.

Are these extreme experiences truly eco-educational in nature, though only a select few can afford them? Will the tragedy of the Titan stop other individuals from pursuing extreme thrills or experiences? And will this disaster encourage regulation and policies to better prioritize safety and protect human lives?

As USA Today pointed out in a post-event article, OceanGate CEO Stockton Rush had been quoted saying “safety was a pure waste.” His public downplaying of safety, coupled with the exorbitant fees, didn’t stop these individuals from participating in the excursion, one in which the waiver mentions “death” three times on its first page — as reported in MSN.com among other news outlets.

Will this June 18 tragedy conclude the existence of OceanGate? It has. To have survived, the company would have needed to prove it values life and would have needed to greatly boost safety measures. It may even have had to change its name. 

In the meantime, other high-risk adventures continue. Victor Viscovo, who founded Caladan Oceanic, and was quoted in the Dallas Morning News as not being deterred by the Titan tragedy, charges willing passengers $750,000 to submerge to the Mariana Trench, almost seven miles to the bottom of the Pacific. Space Perspective aims to bring people, by the end of next year, on a ride with a futuristic hot air balloon, up 100,000 feet in the air, for a mere $125,000.

As technology improves, and the public awareness of so many of these once-in-a-lifetime experiences continues, and as personal wealth grows, the demand for extreme adventure will only continue. It may pause now in light of the Titan incident, but I imagine this pause will be short as individuals continue to find meaningful, once-in-a-lifetime, activities for their once-in-a-lifetime memories.

Hotels Also Provide These Extreme Experiences

One of the more renowned extreme hotels is the Icehotel in Sweden. Every winter, since 1989, this hotel situated 200 kilometers north of the Arctic Circle is rebuilt from ice and snow. Artists and sculptors from all over the world assemble to rebuild the hotel annually. Guests sleep on ice beds topped with reindeer skins and the hotel recommends guests only stay one night.

Guests enjoying the Skylodge Adventure Suites in Peru can only bring what they can carry 400 meters up a mountain. To arrive in the transparent pods, which have 300-degree views of Sacred Valley, guests must hike and zipline or mountain climb to reach the guestrooms which hang off the side of the visibly perilous mountainside.

And the underwater guestroom of the Manta Resort in Zanibar, Tanzania, is anchored among the coral with a submerged bedroom, sea-level living area and elevated stargazing deck. Meals are delivered to the isolated floating hotel room at set times; guests simply enjoy the solitude — for approximately $2,000 per night.

Hotels and other operators frequently seek to minimize their exposure to liability by having adventurers acknowledge the risks of participating in extreme experiences by signing waivers. Risk management typically revolves around liability waivers and insurance. The efficacy of a waiver and the availability of insurance may be subject to their “duty of care.” Hotels and operators should be mindful of their obligations to adventurers in order to obtain the maximum benefits of their waivers and/or insurance.

“In the event of an injury during extreme activities, hotels and operators should assume that litigation will follow, despite the existence of signed waivers and, accordingly, they should strive to put themselves in the best position to successfully defend against such claims,” said Jonathan Freiberger, founding partner of Freiberger and Haber, LLP, a New York-based law firm that has worked with hotels in New York and Florida. “In many cases, this can be done by utilizing waivers that are drafted to maximize the protections available to the hotel or operator.”

“Insurance policies should also be reviewed carefully because general liability policies frequently exclude coverage for grossly negligent, reckless and/or intentional behavior,” he said. Hotels and operators should discuss the intended activities with their brokers and/or the carriers themselves to determine if the intended adventures would be covered and/or what, if any, safety protocols need to be followed to avoid denials of coverage in the event of an accident.

Leora Halpern Lanz, ISHC is the assistant dean of academics at Boston University’s School of Hospitality Administration, associate professor of the Practice, and a member of ISHC.

The opinions expressed in this column do not necessarily reflect the opinions of Hotel News Now or CoStar Group and its affiliated companies. Bloggers published on this site are given the freedom to express views that may be controversial, but our goal is to provoke thought and constructive discussion within our reader community. Please feel free to contact an editor with any questions or concerns.

Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.