By STEVEN W. ZOFFER, a shareholder in the Pittsburgh law office of Dickie, McCamey & Chilcote, P.C.
About 80,000 American college students study abroad every year, and the number is rising as overseas study is increasingly seen as a critical offering for attracting and retaining students.
But international study is not without risk, and U.S. students studying abroad have been injured, kidnapped or even killed while spending a semester in another country. Many of these accidents have left victims, participants, bereaved parents and their academic institutions searching for answers on how to safely and effectively manage educational programs in countries where they travel. Often these are locations where security and safety standards are, at a minimum, very different from those in effect in the United States and which present circumstances that are simply dangerous.
The harsh reality is that many educational institutions, and their study abroad experts and vendors, are often ill-equipped to handle the complex logistics of overseas study programs, in terms of arranging the travel, transportation and safety measures that are often required in arranging field trips and international academic opportunities.
Colleges and universities in particular are not in the business of arranging sightseeing excursions let alone making the kinds of complex travel arrangements, which are routinely part of a study abroad educational opportunity.
As a result, educational institutions often rely upon third-party travel agents and study abroad providers to arrange trips for their own students, and for other students across the country and around the world that have elected to join them for a semester abroad. Even the most experienced and well-qualified study abroad providers can find themselves faced with tragedy and potentially program-ending liability exposure.
A recent court case highlights a number of factors for administrators, risk managers, insurers and program sponsors to consider in order to protect themselves, their programs and their institutions from potentially devastating liability, and their students from the inherent dangers which routinely present themselves in studying abroad.
The Institute for Shipboard Education and its well-known "Semester at Sea Program," regarded by many in the industry as one of the safest study abroad providers around, understands very well the unique challenges and requirements of successfully arranging large group travel for students with an emphasis on education. Semester at Sea has been making study abroad opportunities for college credit available to students across the country and outside of the United States for 50 years.
Such was the case in 1996 when Semester at Sea traveled to one of its regular ports of call in southern India. As part of an optional field trip within the country that the Semester at Sea participants traveled to that year were opportunities to travel to the northern part of the country to visit some of India's most famous and popular destinations, including the Taj Mahal, in Agra.
A tragic accident occurred as the Semester at Sea students in 1996 traveled in a luxury motor coach along the Grand Trunk Road. Four students and an adult chaperone as well as an employee of the bus company died when their motor coach veered off the roadway and over an embankment. Many other student participants on the bus were also seriously injured.
Lawsuits from the parents and family members of the injured and deceased ensued over the next 15 years, culminating in a three-week trial against the Semester at Sea Program and one of its employees charged with the administration of field programs, including the field programs for the northern part of India where the accident occurred.
The Institute for Shipboard Education, the Semester at Sea Program, the University of Pittsburgh as the academic sponsor, and the institute's director of field programs were sued in the final case in March.
Among other claims, the plaintiffs claimed the road used by the Semester at Sea Program to transport students was widely regarded, as reported in the travel literature, to be the most dangerous road in the world.
Important lessons for academic institutions, their insurance carriers, risk managers and sponsors of study abroad programs are instructive for managing such programs in the future:
* Educational institutions can properly rely upon third-party providers, as long as those providers can demonstrate that they have the necessary expertise to satisfy the unique applicable standards of care in the educational travel industry.
* The prevailing legal standards of liability can, in fact, be satisfied by educational institutions in properly retaining local or in-country travel providers familiar with the customs and practices in the area in which the study abroad experience is being offered.
* Educational institutions should be mindful of the subcontractors for whom it may ultimately have responsibility. Due diligence in the selection and hiring and monitoring of contractors is important to satisfying prevailing legal standards of liability.
* Although enforced differently in many states, contractual protections can also be properly utilized by educational institutions, travel agents and tour operators to place the burden of liability on those parties responsible for their own scope or role in making the educational travel opportunity available to students.
* An audit of the "chain" of providers associated with an educational opportunity, including a review of insurance can be useful to develop financial safeguards coverages and indemnity agreements, to protect universities and other educational providers with a reasonable amount of managed risk. This will allow these entities to not only function responsibly and safely, but also to operate in a manner that allows the institution to avoid unreasonable impositions of liability for risks that are truly and properly not within their control or scope of services being provided to students.
* Commonly utilized contractual disclaimers, permission slips and similar documents can be effective and are enforceable, but only if they are prepared in accordance with the laws of the state in which the exclusion is being challenged or enforced. Each state has its own requirements for exculpatory clauses. There are also different federal laws which also apply and must be considered, especially in international study abroad programs such as Maritime laws and international contract laws.
* The potential risks and exposures to universities and their students can be great and potentially devastating. Very few study abroad providers, for example, could withstand the type of financial exposure that would come from a mass tort loss as was potentially the case with the Semester at Sea Program and the tragic accident in India.
Nevertheless, providing international study opportunities is regarded by most leading educational organizations as mission critical or core to the objective and purpose of the educational provider.
International study programs allow students in the United States to attain a perspective on the world that is key to their ability to compete and contribute to society at large, and also prepares them for the global nature of world affairs and living in a world economy.
Regardless of the expertise which a study abroad program like the Institute for Shipboard Education has in arranging study abroad programs for students, there is an aspect of risk which is inevitably part of the study abroad experience. These programs and, of course, the colleges and universities that participate in them are constantly striving to improve their respective programs and make them as safe as possible.
However, traveling, especially internationally including to the underdeveloped nations, has the potential for exposing student participants to unfamiliar surroundings, cultures and travel situations. By properly arranging, documenting and then managing study abroad opportunities, universities and educational organizations can provide their students with an invaluable service, while at the same time doing so safely and responsibly.
STEVEN W. ZOFFER is a shareholder in the Pittsburgh law office of Dickie, McCamey & Chilcote, P.C. He is co-chairman of the firm's commercial law and litigation and corporate services practices. Dickie, McCamey was retained as defense counsel for the Institute of Shipboard Education and the University of Pittsburgh.
November 1, 2011
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