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UK Owned Serengeti Balloon Safari Company
Escapes Reach of U.S. Law
LORRAINE BAILEY / September 26, 2012
(CN) - The victims of a hot air balloon crash in the Serengeti cannot sue the Tanzanian balloon company in U.S. courts, a federal judge ruled.
In 2010, Harvey Marron and Grace Weinberg bought a safari trip to Tanzania from a Massachusetts travel agent, including tickets for a hot air balloon ride. The agent did not tell them that a balloon had previously crashed due to high winds.
On the day of their flight, it was windy at the launch site, and an earlier balloon ride was canceled. However, Marron and Weinberg were not informed about the cancellation or of the risk of flying under windy conditions.
As their balloon attempted to descend, the wind blew the balloon into a tree, killing Marron and another passenger. Weinberg broke her arm, which was trapped in the balloon's rigging and dragged across the ground. She waited for hours alongside Marron's body for rescue in the remote area.
Weinberg and Marron's estate sought punitive damages from the Massachusetts travel agency, Overseas Adventures, and Serengeti Balloon Safaris on strict liability and negligence claims.
However, U.S. District Judge William Young ruled that the pair could not sue the Tanzanian balloon company in a U.S. court and granted Serengeti's motion to dismiss.
"A hot air balloon tour within the country of Tanzania that was accidentally swept by wind did not include an 'agreed stopping place within the territory of another State' and is therefore not covered by the Montreal Convention," the treaty establishing rules for victims of air crashes, Young said.
"It seems unfair that the Serengeti defendants can reap the benefits of obtaining American business and not be subject to suit in our country. It is perhaps unfortunate that recent jurisprudence appears to 'turn the clock back to the days before modern long-arm statutes when a [business], to avoid being hailed into court where a user is injured, need only Pilate-like wash its hands of a product by having [agents] market it,' and that, in many circumstances, American consumers 'may now have to litigate in distant fora - or abandon their claims altogether,' but this Court must follow the law as authoritatively declared," Young continued, quoting legal criticism.
The court permitted the plaintiffs' claims against Overseas Adventure, which booked the tickets for the couple, to proceed to the next stage of litigation."This memorandum and order demonstrates an obvious but lamentable truth - that where personal jurisdiction is limited, the parties most culpable may escape liability, leaving the burden of recovery on defendants close to home - even when they are undoubtedly less culpable," Young concluded.
Unsuspecting US travel agents acting on behalf of SBS unwittingly placed themselves in legal jeopardy.
What this means
SBS’s with questionable business practices having created enough legal distance between themselves and their clients, it passes the burden of legal liability on to their unsuspecting booking agents. As a result of that, such intermediaries become vulnerable to multi-million dollar lawsuits resulting from accidents at SBS.
Recommendations:
Travel agents that generate business on behalf of SBS; should give consideration in making it a legally binding contractual agreement with the operator; that all passengers generated by them; SBS balloons are to be appropriately equipped with the following:-
A: Balloon Deflation System:
To fit rapid inflation system (not to be purposely confused by SBS with the assurances to agents stating “factory-fitted deflation System”)
Re RDS:- Expert Report says:-
On August 12, 2016 I called Mr. Phil Kavanagh the CEO of Kavanagh Balloons and asked him just how many of the hundred or so balloons that he had manufactured over the past ten years had he sold without rapid deflation systems.
He answered “none”.
Then he said, “That’s not quite true. We have just sold an 84,000 cubic foot balloon to Japan with the standard Parachute Vent, which is being mostly used for tethering.”
I asked Mr. Kavanagh if he had considered asking the Japanese purchaser of the 84,000 cubic foot balloon to sign a disclaimer with regard to his requesting that an RDS not be fitted to that balloon.
Mr. Kavanagh said, “I will contact my Lawyer and get advice.”
I then asked Mr. Kavanagh if an RDS was a Type Certified CASA requirement in Kavanagh built balloons.
He answered, “No, it’s an oversight, but it would be a brave Commercial Operator who ordered a balloon without an RDS.”
Opinion:
Commercial hot air balloon operators now have wide a choice of Rapid Deflation Systems. It is a matter of which System to chose for the Operational conditions rather than choosing no System.
Although not mandated in all jurisdictions (perhaps a CASA/CAA oversight, as Kavanagh suggests) I do not believe that any Commercial Operator anywhere in the World would chose not to install an RDS of some description in its Commercial Passenger Balloons, particularly in balloons of capacity exceeding 120,000 cubic feet. END.
B: To carry legally required levels of fuel
All SBS balloons are to be appropriately fuelled; the emphasis being that after the planned flight duration of one hour, there is a 50% reserve as laid out in two Independent Expert Witness Reports. Fuel consumption calculations should be based on thouse Reports ’ of a minimum 4 laters per minute.
With aircraft fuel levels such an important matter, for the benefit of clarity:-
16 passenger balloons
Fuel requirements for inflation minimum 60 litres ***
Fuel requirements for a flight of one hour 240 litres
Mandatory reserve fuel 50% 120 litres
This equates to 360 L at Equilibrium, just as Buoyancy is achieved seconds, Not minutes before departure.
Note: These Independent Expert Witness calculations categorically substantiate my analysis in that SBS balloons are/were Dangerously under fuelled when demanding that their pilots conduct passenger flights with 120L fuel shortfall.
*** Unlike Mr. Fraser's area of operation, hot air inflation-process in the Serengeti is more often not a windy affair. This results in a balloon envelope being knocked about; often pushing out previously heated air resulting in higher fuel consumption. On occasions I've used 80L just to stand the balloon up vertically.
Re Fuel Expert Report says:-
The Legislated requirement in Australia for a one-hour balloon flight is that the pilot carries enough fuel for the flight plus 30-minutes in reserve. Sometimes this is not enough fuel.
Ultimately it is the Pilot’s responsibility to carry the correct amount of fuel for any given flight, which may be greater than the Legislated amount or more than what is recommended in Company Operations Manual.
On August 12, 2016 I spoke to Mr. Mark Fraser, Chief Pilot of Go Wild Ballooning operating in the Yarra Valley near Melbourne in Australia. Mr. Fraser operates 400,000 and 450,000 cubic foot balloons. Personally he has over 1,200 hours experience as Pilot in Command in 400,000 cubic foot balloons and larger.
Mr. Fraser informed me that the burn rate for a balloon in this range is approximately 4 litres per minute.
Mr. Fraser carries 384 litres (6 X 80 litre cylinders filled to 80%) for a one-hour flight. This amount of fuel does not include the 50 litres required for inflating, getting ready for takeoff.
His minimum legislated fuel load is 240 litres plus 120 litres reserve, giving a total of 360 litres.
However, the Legislated minimum is exactly that.
9.4 C of A Failure
C: Factory Certified Burners:
All SBS Passenger Balloons/Aircraft must unlike previously; comply with Type Rating Certification, the manufacturer must not deviate as they have on no less than five previous occasions from such legal binding certification.
Expert report says :-
Opinion:
I have never encountered a set of burners without pressure gauges. They are mandatory equipment in every Type-Certified Balloon. A balloon burner without pressure gauges, or with malfunctioning pressure gauges, is legally un-airworthy in every jurisdiction.
I believe that a pilot would be criminally liable, as would the Balloon Operator if an accident ensued from knowingly operating a hot air balloon without functioning burner pressure gauges.
It is also highly unlikely that a manufacturer would supply a burner without pressure gauges. In that event the manufacturer could become liable if an accident was partly attributable to the absence of pressure gauges. END
Opinion
There's no denying that defying gravity always comes with an element of risk. Having conducted approximately 500 flights over the Serengeti, I have no difficulty stating that the Serengeti balloon flight can be a wonderful experience, indeed a once-in-a-lifetime experience that many have treasured.
For SBS pilots, there are no equal forms of employment whereby one is almost contractually compelled to indulge in post-flight celebrations underneath an acacia tree. Pilots and passengers are saved Champagne, to be be complimented with sumptuous bush breakfast. More often than not, we can observe wildlife frequently consisting of Elephants and Giraffes; hungry, envious hyenas are not far away. So far so good.
It gets better
SBS is situated in an enviable location; they have over many years invested hundreds of thousands, possibly several millions dollars into the Tanzanian economy; with this lighter-than-air sport be it , contradictory; notoriously labour-intensive, SBS provide much-needed work to the many locals. I have enormous respect for their ground crew as well as local pilot Mohammed, each of whom I enjoyed working alongside, they are very special characters, undoubtedly the company’s most significant assets.
I have always been happy to state that to a limited degree, SBS had got many aspects together, particularly location location location.
SBS: The weakest links
This brings me to their downfall, their weakest links, which, in my view is yet not limited to are as follows:-
1: The act of attempted Commercial Pilots Intimidation.
2: The act of threatening to tarnish a pilot’s reputation,
3: The act of vowing to ruin a pilot’s entire professional aviation career.
4: Failing to comply with normal passenger safety guidlines & regulations.
5: Failing to respect advice given by qualified pilots.
Advice to all USA travel agents marketing Tanzania
My I advise to those booking agents supplying SBS with passengers to seek professional legal advice; at the same time, seek such clarification from SBS of any legal liabilities placed against such agents. As to whether or not such agents continue to supply SBS with passengers in the interim is a matter of their concern only.
With well documented corruption rife one can't rely upon the Tanzanian civil aviation authority to conduct oversight, US travel agents that SBS rely so heavily upon for the continuation of their business; ultimately have the necessary buying power to encourage this air operator to conduct their operations in a safer and proper manner. SBS no longer have the monopoly in the Serengeti; then of course there is always Kenya's Masai Mara.
Warning USA Travel Agents
Tanzania Balloon Safaris