Balked at ‘release of liability’ form

My husband, Steve, and I took the “Ultimate Galápagos Exploration & Ecuador’s Amazon Wilds” tour, Jan. 11-25, 2014, with Overseas Adventure Travel (OAT).

Upon arriving in the Galápagos Islands seven days into the trip, we were asked to sign a Release of Liability agreement before we would be allowed to swim or snorkel.

By signing the document, we would be acknowledging that these are dangerous activities, involving the risk of serious injury, death and property damage, and that, in the event of personal injury, property damage or wrongful death related to our participation, we would agree not to sue OAT.

Throughout the document, the word “Releases” was used to include any and all parties associated with OAT (its directors, employees, attorneys, shareholders, affiliate and successor companies, etc.). The document went on to say that the signer would assume full responsibility for any of the above, even if caused by the negligence of Releases or by negligent rescue operations.

We are not litigious people and have never sued anyone.

We were assured by our excellent guide, Giovanni Quintero, and/or by OAT’s Quito representative via phone that the form was merely a formality. They said there had never been a problem and that we would be carefully watched (we are in our seventies, and I have never snorkeled). However, the form states, “In executing this document, I am not relying upon any oral or written representations of statements made by Releases other than what is set forth in this Agreement.”

We believe that OAT should have sent this to us before we signed up for the trip. Had we known that the company was going to assume no responsibility at all, should anything happen, and that our signatures were required in order for us to snorkel or even swim, we would not have taken this trip.

Because we would not sign, we were not allowed to participate in the almost-daily snorkels or even to swim. While everyone else on the tour snorkeled or swam, there was nothing else for us to do except sit on the boat.

We are writing this letter for two reasons. The first is to alert potential tour participants of this comprehensive waiver of rights. The second is in the hope that OAT will be more transparent and, at the very least, inform future travelers of this requirement, preferably including the form in pretravel materials rather than springing it on them after they have paid their money and have arrived on site and are expecting to be able to participate fully in the trip activities.

Finally, in speaking to an OAT representative upon our return, we were told that their position was that we were signing this form to attest to our physical ability to participate in the optional snorkeling activities. Our response was that there is absolutely nothing on the form saying anything about our physical abilities. Everything on the form has to do with protecting OAT, not the tour members.

GWEN & STEVE TIGNER

Chautauqua, NY

ITN emailed a copy of the above letter to Overseas Adventure Travel and received the following reply.

We do not send a release form in our predeparture information for our Galápagos adventure because snorkeling is an optional activity. Our itinerary includes boat excursions during which travelers have the option to snorkel, swim or stay on board. 

It is up to individuals to choose the options that suit them best, and if they choose to snorkel, they do so at their own risk… similar, for example, to the risks one assumes when one chooses to zip-line in Costa Rica or bungee jump in Australia.

For those who choose to snorkel or swim, our guides are very careful about bringing them to safe waters, and they keep a close and constant eye on them when they’re in the water. 

PRISCILLA O’REILLY, Vice President, Public Relations, Overseas Adventure Travel, One Mifflin Place, Suite 400, Cambridge, MA 02138

Release-of-liability forms are commonly presented to people considering endeavors involving certain levels of risk. ITN staff wondered how ironclad such releases are. ITN Contributing Editor Judith Anshin no longer practices law in California, but she teaches law and provided the following comments.

A company’s release form probably would indicate that, in the event of a claim or dispute, the law of the US state in which the company is based would apply.

OAT is headquartered in Massachusetts, and I do not know what the law there provides on this issue. However, in California one can be held to the terms of a Release of Liability on recreational activities so long as one has legal capacity when signing (that is, one is 18 years of age or over, is lucid, has no mental impairment, etc.).

Courts make a distinction between ordinary negligence and gross negligence, the former being the failure to provide safety or care of the “reasonable person” standard, common in law. Gross negligence would entail an extreme departure from this “reasonable person,” or ordinary, standard. 

The California Supreme Court has ruled that the Release of Liability only protects (the company) against liability for ordinary negligence, not gross negligence. Some states may have similar laws.

This is a complicated issue. Releases often are seen as adhesion contracts; that is, the parties are not in a position to negotiate. It is a “take it or leave it” situation.

JUDITH ANSHIN