891 F. Supp. 2d 228
D. Mass.2012Background
- Weinberg and Ward, Florida residents, sue Overseas Adventure Travel (MA), Serengeti Defendants (balloon operators), and related entities for injuries from a Tanzanian hot air balloon crash; claims include Montreal Convention liability, negligence, gross negligence, and recklessness.
- Serengeti Defendants move to dismiss for lack of personal jurisdiction; plaintiffs must show amenability to suit in MA.
- Overseas Adventure booked the balloon through Kibo Guides (TZ); Overseas asserts control over Kibo, including payroll, uniforms, and supervision, and a contract links Overseas to Kibo; Kibo acted as booking intermediary.
- The September 29, 2010 launch had dangerous crosswinds; the Serengeti balloon allegedly lacked safety equipment and was operated by a trainee pilot, causing death and injuries.
- The court grants lack of jurisdiction over Serengeti Defendants; Montreal Convention does not apply here; Oversea s Adventure and Kibo remain; Counts I, IV, V, VI, VIII, IX dismissed as futile upon amendment; Counts II (negligence), III (Mass. 93A), VII (wrongful death) survive against Overseas Adventure and Kibo, to proceed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do Serengeti Defendants fall within MA long-arm due to Montreal Convention or agency ties? | Weinberg/Ward rely on agency/ratification to attribute Serengeti contacts to MA. | Serengeti Defendants lack MA contacts; no direct targeting or agency sufficient for jurisdiction. | No; Serengeti Defendants lack MA jurisdiction under due process. |
| Does the Montreal Convention apply to the alleged injuries? | Plaintiffs plead Montreal Convention applicability to damages. | Flight involved was a Tanzanian balloon excursion without an international stopping point; not within Montreal Convention. | Montreal Convention not applicable to these facts. |
| Is there personal jurisdiction under MA long-arm for the Serengeti Defendants via agency/ratification? | Overseas Adventure’s control over Kibo and Handbook could ratify Serengeti contacts. | No actual/apparent agency; limited or unilateral contacts do not suffice; ratification remains uncertain. | Lacks purposeful availment; no specific jurisdiction over Serengeti Defendants. |
| Are the claims against Overseas Adventure and Kibo viable after the jurisdiction ruling? | Overseas Adventure breached duty by selecting/assessing risk; Kibo liable for negligent booking. | Travel agents generally not liable for third-party operator negligence; no duty to third parties in absence of direct breach by agent. | Counts II, III viable; Count VII viable against Overseas Adventure; Counts against Serengeti and Kibo dismissed or limited per analysis. |
| Should amended counts be allowed, and which are futile? | Amendment timely; adds 93A and other claims. | Some counts fail to plead required elements. | Leave to amend granted; Counts I, IV, V, VI, VIII, IX dismissed as futile. |
Key Cases Cited
- Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138 (1st Cir. 1995) (prima facie standard for personal jurisdiction)
- Boit v. Gar-Tec Prods., Inc., 967 F.2d 671 (1st Cir. 1992) (affirmative proof required for personal jurisdiction)
- Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42 (1st Cir. 2002) (agency attribution and ratification in jurisdictional analysis)
- McIntyre Mach., Ltd. v. Nicastro, 131 S. Ct. 2780 (U.S. 2011) (plurality on requiring targeted forum contacts for specific jurisdiction)
- Nowak v. Tak How Invs., Ltd., 899 F. Supp. 25 (D. Mass. 1995) (relaxed relatedness standard when direct targeting occurs)