E.J. and his wife Anna loved Hawaii, having traveled there many times during their 56 years together. In January, at 74 and 73 years of age, respectively, they planned another trip to the islands for May to celebrate E.J.’s 75th birthday.

When we hear of people that age who look like they are in their 50’s and act as if they are in their 30’s, this couple matched the definition perfectly. After E.J. retired from the beverage business, they “still maintained a highly active, mobile lifestyle,” he explained, adding that “travel was an important part of our business and personal lives, taking us all over the world. We both really loved flying, even after one frightening experience returning to California from the East Coast, when our plane went through the most severe turbulence we had ever experienced.

“It felt as if the plane was being shaken apart. Both I and my wife were literally trembling. In glancing around the cabin, everyone we saw were visibly terrified. It was simply a nightmare. But that was not going to stop us from returning to Hawaii.”

You’ve got travel insurance

Using an online reservation service, E.J. purchased two non-refundable, first-class tickets from Los Angeles International Airport to Honolulu for $3,500. When his American Express credit card bill arrived, he realized that in addition to the tickets, he had also purchased a travel insurance policy for $170 from Travel Guard, one of the largest sellers of these products in the United States.

“I do not recall checking the box for this insurance, but, especially at our age, we figured that the trip cancellation and medical coverages might be useful if something were to happen,” he reasoned.

“One of the problems in booking flights online is that unless you opt out, without knowing it, you might have bought a policy. It is so important to carefully study the website, and deselect what you do not want,” San Francisco attorney Alexander Anolik commented when we discussed E.J.’s situation. Anolik is considered the nation’s most highly regarded travel attorney and wrote the first comprehensive text on travel law – now in its fourth edition – “The Law and the Travel Industry.”

At times, life will hurl bad things at us, often in rapid succession. Between January and their May departure date, E.J. lost seven of his lifelong friends, “just due to old age,” he told us, eyes beginning to water and a profound sadness overcoming our Southern California reader. The seeds of depression had been sown.

And then, two weeks before the flight, while the couple were talking about where they would go, what they would visit, “Suddenly I began to tremble. I was afraid, so afraid, thinking of that horrible flight. I just couldn’t shake it. This has never happened to me before, never! Then I knew that I could not fly, not now, perhaps not ever again, or at least, not for a long time,” he told us.

His wife immediately scheduled an appointment with their family doctor, who wrote a very detailed letter to Travel Guard, concluding, “Due to this severe panic attack, my patient is unable to fly.”

“But, of course, we had travel insurance, therefore, no problem in getting a refund. I filed our claim, enclosed my doctor’s letter, and waited for a check,” E.J. told us.

“You are not covered for this event”

Several weeks later, Travel Guard send the couple a denial letter, quoting the following exclusion language: “The policy does not cover any loss caused by or resulting from mental, nervous or psychological disorder.”

There would be no compensation, not one cent. In fact, most travel insurance policies have similar language.

With non-refundable tickets, most airlines have a “use it or lose it” policy, allowing a non-refundable ticket to be re-issued within a year’s time for the passenger. They also might refund a ticket if a passenger or spouse dies or is hospitalized. As our readers would not likely be flying for a long time, if ever, they now faced the complete loss of all the money paid for those tickets.

No is an invitation to try by other means

With E.J. in our office, we spoke with a reservation supervisor. “Could you folks reissue the tickets for the couple’s adult children, so they could travel to Hawaii?”

“No! We just don’t do that, and I wish we could,” was the polite response.

“Will you give me the name and number of your media relations person?”

Given that information, we placed a call, left a detailed voice mail message and waited for a response.

Next week, we’ll tell you the outcome as well as provide money-saving tips from travel attorney Anolik on how to shop for travel insurance – if you need it at all.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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“Your articles on travel insurance and interview with travel attorney Alexander Anolik prompted me to write,” retired naval commander “Bill” emailed from Lemoore.

“During the Vietnam war, I was attached to the United States Embassy in Bangkok. There, I fell in love with Thailand, its kind people and especially spicy Thai food, which can be a little too hot for some people,” he added.

“Retired now, I wanted to share these terrific food experiences with my wife and our adult children. I found a California-based tour operator specializing in Thai food tours. Their website assured taking you only to restaurants which are not ‘dumbed down’ in terms of spiciness. When the tour operator assured me it would be the real thing, I booked  a 10-day trip for the six of us.

Gerber’s would have been better

“While the flight was fine and hotels very nice, the food looked like Thai food, but had little taste, as if most of the spices had been forgotten. It was this way wherever we were taken. We expected sensational dining and were terribly disappointed. Gerber’s would have been better. We complained to the tour guide constantly, but nothing improved.

“Is this just a unique experience, or is it common? What explains this? Do we have any legal rights? Is there anything we should have done before going or when we were in Thailand?

Obvious lack of truthful advertising

We ran these facts by attorney Anolik, who is familiar with food tour complaints.

“Food tours are very popular and can be expensive. If they tell you that for 10 days, you are going to have an authentic Thai food experience, legally they are required to uphold that promise. That’s the legal standard. Unfortunately, your reader’s disappointing food tour isn’t all that rare as some tour operators assume that you don’t really know  the authentic and correctly prepared food of a particular country or region and wind up getting shortchanged. When that happens, it’s deceptive advertising.”

“Your reader’s case is a good example of how restaurants in many countries adapt to customers who often do not like or cannot tolerate the usual level of spice or heat in their typical dish. Management does not wish to offend, and the restaurant staff isn’t trying to deny guests the pleasure of their excellent cuisine, but from experience, often dishes are sent back or customers leave unhappy. So, the response of some chefs is to dial back the heat,” Anolik observes.

“But that’s not what Commander Bill wanted. The whole purpose of their trip was to have an authentic culinary experience, and that’s what they were promised.

“Once they started getting aggravated, it ruined their trip and they are entitled to a partial refund, at least the ground portion of the trip. I would recommend sending a polite letter, explaining their position and asking for that refund. If he billed this to a credit card, there may be some recourse with the issuing company as well. If unsuccessful, they could use a small claims court. Their argument is simple: You didn’t provide what you both advertised and told me on the phone.”

Document everything

“Especially with something like a food tour — a gourmet tour — you must define your terms.

Before signing up, in writing tell the tour operator what you are looking for, what you expect. Ask if this is what the tour will deliver and state that you need a reply with answers to your questions. Are we going to visit restaurants which cater to timid eaters? If so, I’ll go down the street and save myself $3,000.

“If things turn out to be far different than advertised, you need to think of how to prove it in court, should it ever wind up there. Therefore, take pictures of everything and start documenting, taking good notes, day by day of what the tour did not deliver that was promised. If there are other members of the group who also feel as you do, interview them and always obtain their contact information. There is strength in numbers,” Anolik stressed.

Advice from a travel professional

There is an approach to planning a trip which few people think of, but which makes a great deal of sense, as 31-year veteran travel agent Peggy Goldman, owner of Friendly Planet Travel in Jenkintown, Pa. told us.

“To avoid the possible bias of Trip Advisor or Frommer’s reviews, objective, trustworthy information can easily be obtained from government tourist offices. Phone, tell them what you are looking for — for example, a food tour — and they will send you to the right place, with non-biased, good information.” Her website is: friendlyplanet.com.

Both Alex Anolik and Peggy Goldman asked that we thank Commander Bill for his service to our country. That mission was accomplished.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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I just returned from a trip to the Orient and Australia. My cell phone provider told me how to make calls, but I was never really clear on what it cost to call home. The phone bill came to a whopping $600 and instead of the dollar a minute I expected, most calls were almost $3 per minute! But yet, when in Vietnam and Hong Kong, friends who live there told me that when they use their own cell phones, it costs them only a few cents a minute to call the U.S.!

I have asked my cellular provider if they can do something to help me, but so far they refuse. In all fairness, when I now study their international calling web page it is fairly clear, but when I phoned I was clearly told that it would cost $1 a minute to use the phone overseas. What do you advise I do? Are there any recommendations you have for using a cell phone overseas and not being taken to the cleaners? Don from Fresno.

Better than Las Vegas

When I ran the facts of Don’s e-mail by Ken Grunski, CEO of San Diego based Telestial, Inc., he was not surprised. “Rates charged by U.S. based cell providers for calls back to the United States are a giant slot machine – one with great odds for the house,” he said. His company is responsible for saving, “Literally millions of dollars in the excessive charges that U.S. based cell phone companies force their users to pay for using a cell phone overseas. They do not like us, but our customers love us,” he added, with a big smile.

And, if I may engage in a bit of flag waving for a moment, Ken’s story is an example of what makes this country such an amazing place. America truly is that land where, if you have an idea that makes sense, you will indeed make dollars and cents out of it. Ken’s is not the story of the better mousetrap – it is the story of the mousetrap that was just waiting, just begging to be used.

It began years ago after Kenhttp://www.telestial.com) discovered that a brief phone call he placed to the States from China was more than the price of a hotel room, but that locals could make inexpensive calls from their own cell phones. “I wondered, why can’t we – the tourist or business visitor – use local cell phone services, at a local rate, just like anyone who lives there?”

Sometime after that experience in China, the idea of marketing local cell phone service to an international audience “hit me like a ton of bricks!” Ken proudly relates. “At the time there were no world cell phones and even when phones that work on most global frequencies came into production, there was still no way to obtain the low, local cell phone rates charged in most countries to their residents. Why was it so expensive to use your American phone overseas? There had to be a better way, and thus was born Telestial – our company satisfied an obvious need,” he explained.

Today it is possible to have the convenience of a cell phone virtually anywhere in the world without falling victim to the international roaming surcharges USA cellular providers beat us with. The products and services that Ken delivers – as do others in this same business – also provide an alternative to many so called international calling cards.

“They are typically cheaper to call from but require a payphone when available or you are often subjected to hotel access charges when you dial that toll-free access number. But, for as little as $99 any traveler can have the security and convenience of their own cell phone, while receiving free income calls just like the locals do,” Ken states.

When You Need To Use Your Local US Cell Phone Service

All of that said, Ken cautions that, “For some travelers, it is absolutely necessary to be reachable through your U.S. cell phone service. Even though it is more expensive than using a pre-paid SIM card and local number, the advantage for some users is that you can be reached just by calling your U.S. number – the call following you overseas but at a very steep price.

What are the Options?

The international traveler has four choices for using a cell phone overseas. One, go with a U.S. GSM provider, roam overseas, and expect to pay from $1 up to $4 per minute for incoming and outgoing calls. To roam with your US service you will need a GSM compatible phone that operates on the 900 and 1800 frequencies.

The least expensive choice is to purchase a SIM card for local cell phone service before you leave. With local service you get a local cell phone number for the country in which you are traveling, free incoming calls (even from the US), pay roughly 30 cents for local calls, and 70 cents for outgoing calls to the States. Since the service is prepaid you always know how much you are spending for calls and there are never any billing surprises when you return home.

“Finally, there is also prepaid international roaming service – a truly powerful product for the modern globe-trotter. Designed for multi-destination itineraries and frequent travelers, you can have a single phone number with global coverage and still benefit from rates that are up to 70 percent cheaper than other alternatives. Free incoming calls are of course available at many destinations including most of Europe, Mexico and Australia while outgoing calls will rarely cost more than 60 cents per minute locally or to the United States,” Ken pointed out.

How Does it Work?

To take advantage of international prepaid cell phone service you need a GSM phone with the correct frequencies for the areas you are visiting. If you are using a phone provided by your U.S. cell company, it must also be unlocked, which means that it will accept foreign SIM cards. Expect to pay around $40-$60 for the card which, in addition to your phone number, will also include some air time credit.

Reduced Rates

In discussing this with the major US cell carriers, I learned they have reduced rates, but it is still impossible to match those of local carriers overseas. But a lot has changed, as five years ago, with a US cell phone, roaming was possible in only a handful of countries.

Help To My Reader – Re-Rate The Calls

In my reader’s case, all was not lost, as Ken had a suggestion. “Why not phone them and see if they will re-rate the charges, especially as it seems as though your reader was not told the full story about how expensive it would be. Most US companies are pretty good about this – give it a try.”

So we did – Don and I got on the line to the Customer Retention department of his cell provider, we explained the problem, and they did indeed re-calculate his calls at the $10 a minute figure he had expected to pay. This saved him over $400, but the cost in using a pre-paid SIM card service would have brought his entire bill down to less than $100.

Need I say more? You can visit the Telestial Web site by going to www.telestrial.com.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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Last week we introduced you to E.J. and his wife Anna, an amazingly energetic young couple, 75 and 74 years of age, respectively, who have been married for more than 56 years. In January, they booked a trip to Hawaii to celebrate E.J.’s birthday in May.

Using an online reservation service, nonrefundable first-class tickets were purchased for $3,500. E.J. was unaware that a $170 policy of travel Insurance from Travel Guard had also been sold.

“I only knew we had the insurance when my next statement from American Express arrived, but we thought it might be useful, especially at our age, so we did not dispute the bill,” our reader told us.

A trip which was not to be

Days before the flight, while the couple were talking about all the things they would do in Hawaii, E.J. suddenly began to “tremble, shaking like a frightened child, reliving the horrible turbulence of a flight we were on together in the past, when we thought the aircraft would be torn apart. I was consumed with fear and knew I could not fly. I had never experienced a panic attack before.”

His emotional state was also deeply affected by the loss of seven of his closest friends between January and May “due to old age,” E.J. whispered, head lowered so that we would not see his tears.

Their family doctor wrote a letter for Travel Guard, making it clear that E.J. could not travel because of this condition. A claim was submitted, but instead of compensating the couple for the price of the airline tickets, Travel Guard denied the claim.

Exclusions: a must read

Was this the case of a big, bad insurance company ripping off the public? No, not at all. The reason was simple: the policy language excluded mental, nervous or psychological disorders.

In fact, most travel insurance policies have similar exclusions.

“Travel insurance policies tend to promise the world, using words like full coverage, and then you discover that the comfort and assurance promised isn’t there,” San Francisco travel attorney Alexander Anolik observes. “Before buying, it is crucial to read the policy carefully to see if there is some exclusion which might apply to you. These policies are hugely profitable – sellers often get 40 percent of the premium – because the companies are often able to avoid paying.”

“The biggest exclusion is pre-existing health conditions. Use your common sense. Ask yourself, ‘What kinds of physical things could happen to me? Have I been treated for it within the timeframe in the policy’s exclusions?’

“Remember, the insurance company will use the policy language exclusions to avoid paying whenever possible. For example, while they might advertise terrorism covered, some policies go on to state that the act of terrorism must occur in the exact city you are visiting. This gives them a giant loophole to avoid payment. So a policy which states that the act of terrorism occurs in the area is obviously better for the traveler.

“Do not make any assumptions about what will be covered. Cruise insurance is one of the worst areas where what they deliver is often much less than what was advertised. If you’ve been sold a cruise, then you know the pressure both to take these expensive land excursions and to buy insurance.

“One couple bought insurance which covered death, and during the excursion, the husband had a massive heart attack and died immediately. He could not have been saved anywhere. But the insurance specified that the death must occur on the ship. The claim was denied and a lawsuit followed.

“Fortunately, The Department of Transportation has issued new consumer-friendly rules which go into effect in January 2012, requiring much more clarity and honesty in advertising. Until then, I recommend doing a great deal of online research and comparison, taking your time and asking yourself if you really need that insurance, or if what you have in place already will be enough protection. For example, if you go to certain areas of the world, you might need insurance for evacuation. But if you are traveling in North America, it’s rarely worth it,” Anolik believes.

We don’t take no for an answer

We asked a reservations supervisor to reissue the tickets so that the couple’s children could use them, but our request was denied. But there was no way we were going to see our readers lose their $3,500. That would have been so unfair.

But then we reached the airline’s vice president for public affairs. He had the power to do the right thing. And he listened.

A few days later, E.J. dropped by our office. “Dennis, I have something to show you,” he said, handing me his American Express statement. In it was a credit for $3,500.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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In November, I was one of the organizers of a 40th high school reunion from an all girls school I attended when my family lived in Hong Kong. About 30 of us — now in our late 50’s or early 60’s — returned to Hong Kong from all over the world for an evening of fun, looking at photos, and catching up after 40 years. It was a wonderful evening, filled with laughter and an amazement at where all those years had gone.

We brought photographs of then and now, of family, kids, our jobs — and with pictures taken during the reunion, they were all put a nice DVD by one of our classmates who lives in New Zealand not far from where the new King Kong movie was filmed. Several days ago, I received the DVDs, along with instructions to mail them to everyone who attended the reunion, and I, of course, did.

Yesterday, I received an e-mail from her, asking that each person who gets a DVD pay about $20.00 — to cover the cost of production and duplication, and she expects me to send her that money, which totals to about $400. But she never mentioned anything about wanting to be paid, and admitted in the e-mail that she had just forgotten. Apparently her husband, who is a medical doctor, insists upon the costs of producing the DVD being recovered.

No one else has asked for reimbursement for the things they brought to the event, or their time spent in organizing it, and I just assumed that the DVDs were her present to us all — much as you get after attending a wedding or birthday party. How would you analyze the situation? I want to be fair and promise to follow your advice. — Thanks, Sue.

Gift or contract?

The legal issue here is clear: Was the DVD — to all outward appearances — intended to be a gift or was there some contractual, and legal basis to insist upon payment? The law, and definition of a gift, in The United States, Hong Kong, and New Zealand is identical:

A gift is a voluntary and intentional transfer of something of value from one person to another out of affection, charity, generosity, or similar motivations, without charge or expectation of being paid. Courts will examine the totality of the circumstances to determine if an exchange of property appeared to be a gift or was to be paid for.

In the Common Law, valid in the United States and all countries whose legal system came from England, a contract is generally formed two ways — expressly, where we discuss a price for something, or by implication — actions that reveal an understanding there will be an exchange of money for some item or service.

For example, I can ask the barber how much for a haircut, hear the price, sit down in the chair and afterwards pay the quoted price, or, I can merely sit in the chair, get my haircut, and then ask how much I owe. It is understood that payment is required even though no words are spoken. It is the situation that reveals whether the parties were contracting or if a gift was intended. If, in my haircut example, I simply walk out of the barber shop without paying, it will probably wind up being a little “hairy.”

Appearances count

But, how do you establish that these DVDs were intended to be a gift from one classmate to another? I asked Sue if her friend at any time said or remotely suggested anything about wanting to be paid for the DVDs? “No, never,” Sue replied, adding, “I thought and everyone I gave the DVD to agreed that it was just something nice being done for us all. DVDs are so inexpensive and not difficult to assemble on a computer, so the thought that there would be a charge never entered my mind at least,” she said.

The law does not ask us to be mind readers and holds us all accountable for the reasonable and logical meaning attached to our actions. Here we have a DVD of an event to which everyone, to some extent, contributed something. It’s like taking pictures and handing out duplicate prints. The DVD is the equivalent of those photos. As it is so common to be given photos or a DVD — and the cost to duplicate one is negligible without clearly asking for payment in advance, in my book, it’s a gift.

“We do not know the relationship your friend in New Zealand has with her husband. He could be just plain cheap, or a miser, who knows, but don’t tell me an M.D. in New Zealand can’t just be a nice guy and make his wife happy. So it is clearly a situation that requires handling in an extremely gentle manner to preserve the good feelings generated that night among all of the girls,” I stressed.

My recommendation

I suggested that Sue forward my e-mail to her friend in New Zealand alone, as no one else needed to know that a dispute was brewing. “Let’s not damage the harmony of that evening,” I stressed. “We will keep this to ourselves, for as I see it, your friend in New Zealand is as much a victim of her husband’s odd attitude as you are, but I’m betting that she will understand these sound legal arguments and tell him to forget the whole thing.” I said.

She did that and a response indeed came in. “Thank the lawyer for his analysis — please consider those DVDs as my gift to everyone!”

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

The post Gift or contract? appeared first on Dennis Beaver.

“I am a senior at UCLA and my boyfriend (Hans) is a Swedish graduate student who I love and want to marry. Last summer, we visited his hometown — Stockholm — and I just fell in love with Sweden. It is just like the USA and I could easily live there,” Anna’s e-mail began.

“Hans tells me in Sweden couples living together have most of the same legal protections as if they were married. He does not want to get married now. My grandparents read your column and tell me that you are an especially good person to ask about these issues because you know the language and have spent time there. If you had a family member in my situation, what would you advise?

“Toto, We’re Not in Kansas Anymore…”

Anna is lucky to have grandparents who risk tossing cold water on her plans. Experience and caution learned across the years is difficult to pass along to someone in love and 21 years of age. This young lady was facing both legal and cultural challenges of which she had no idea.

“How important is marriage — really going through a marriage ceremony? Also, what are your political views. Liberal? Conservative? Republican? Democrat? Finally, how important is personal giving — charitable giving — to you or your family?” I asked.

“I am Catholic and, yes, marriage is important to me. I do understand that it is fairly common in some European countries to live together prior to marriage and I could see myself doing that, briefly. I am Republican, support our President and am proud of my country,” she replied.

“In terms of charitable giving, like my parents, I have always supported a variety of causes and organizations out of my own earnings. I would assume that to be the same in Sweden, as their standard of living is higher than in the States and they have so many things we do not, such as health insurance for everyone provided by their government. It is only right to give back to your community, don’t you agree?” she asked.

Indeed, I agree with her, giving back is important to Americans, from those with modest incomes to the very wealthy. We are a generous people on a personal level. There is nothing similar in Sweden.

“If it is important for you to be in the company of people who will reach into their own pockets to support good things, you will be disappointed. There is no culture of giving, even shockingly, among those Swedes who earn large incomes. And, believe me, they could if they wanted to, but simply refuse,” I pointed out.

Take No Stand

Anna’s comments and assumptions about life in Sweden invite serious disappointment. I can say this because I have spent a great deal of time there, speak the language, admire its educational system and generally like the people and their country.

Yet, I find them to be an enormous disappointment and tragic victims of 200 years of political neutrality.

“Take no stand, no position on anything, especially do not admit that you like the USA” is the way Sweden has been explained to me by a number of Swedish educators. “We still have a Communist Party here, believe it or not!” I was told.

Let’s Live Together — Why Get Married?

So, why do Swedes live together without getting married? I asked a Swedish Divorce lawyer, who I will just call David.

“Many of us feel that it is an extension of our politics, a refusal to commit or to take a position. It is a certain national cowardice we suffer from, never sticking our necks out. It’s what we are told is the right thing to do. Yes, these living together relationships are similar to marriage, and the children are protected, but it is not marriage. Sure, many Swedes do live together faithfully as any husband and wife would, but deep down, it isn’t the same thing, not legally and certainly not the same level of commitment.”

“Tell your American reader to mature a bit before taking such a huge leap. At 21, when you are in love and have limited life experience, it is dangerous to leave home for a new country. Tell her to come here, perhaps study — certainly to study her boyfriend — and see if she could fit it,” he suggested.

“We are called the Japanese of Europe. Friendly on the outside, but a riddle and difficult for outsiders to know what we really think or mean, especially if you do not know our language,” David concluded.

Legal Issues

The legal issues here are something which Anne must be aware of. Over the years, I have spoken with many Americans living in Sweden in precisely the same kind of situation her boyfriend desires. While legal protections for couples “living together” are far greater than in the USA, it is still not marriage, and should Anna desire to return home, with children, she could face hurdles undreamed of.

The State Department Weighs In

“Tell your reader to get online and do her research,” were the comments from a Desk Officer I spoke with at our State Department. “Take off the blindfold. Listen to the advice of your grandparents. Go there, spend time, see if you like it, and see if you can legally qualify for residence in Sweden. Just realize that the State Department has an entire department devoted to international custody cases — children taken against the wishes of a mother or father,” she pointed out.

“At 21, love often dictates behavior. Her boyfriend may be a great guy, or just someone who wants a fling for a while. If she really wants to move there, then Anna will have to apply for residence, just as would someone coming to the States. It will take time, and hopefully during those many months, she will better understand herself, and have a clearer look into her future.”

I couldn’t say it better myself.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

The post How Swede it is appeared first on Dennis Beaver.

You and the Law: Risks in renting a vacation cabin

Thinking of renting a nice little mountain cabin from the owner? You may be in — or out — for more than you expect, as Hanford resident Kristin Bettencourt discovered in early January.

So, if you’ve been looking at “Vacation Rentals by Owner” sites, before booking, consider Kristin’s booking nightmare, which began in early September.

“On one site, I found the ideal property, Clark Lodge at Shaver Lake, perfect for our large family get-together on the President’s Day weekend, February 12 — 15. As Shaver Lake is popular, it is critical to book months in advance, especially for a family our size. This property has six bedrooms and three baths, can sleep 12 to 14 people. It is just gorgeous from photos — and verified by comments from other renters.”

“I spoke with the owner, Dr. Jim Clark — who is a retired professor from the Graduate Business School at the University of Washington in Seattle, and was extremely helpful. I told him that we wanted it for that weekend,” Kristin explained.

Within days, a contract for the February date had been signed, and her credit card was charged $1,870. You and the Law has in its possession her contract and several confirming e-mails.

Well, mistakes do happen …

Her family having made travel plans, everyone looking forward to a nice President’s Day weekend. Life was good for Kristin until an odd e-mail from Dr. Clark arrived on Jan. 13, stating, “Hope the snow is falling for your visit to the cabin this weekend …”

“What? This Weekend?” Upon seeing the wrong date, she immediately replied, “Oh noooooo ….. we are reserved for Feb. 12 through Feb. 15. I hope there isn’t going to be a problem. Please let me know.”

Dr. Clark responded: “Regrettably we will not be able to honor your booking. I will issue a refund immediately. This was my mistake. I thought you were reserved for this current weekend.”

“While I thought we were organized, as new cabin owners, I somehow misassigned this early reservation. I just learned that my wife booked the cabin for us, and her handicapped mother has already made flight plans from Des Moines for that weekend. We now have a system in place that prevents future booking errors. I am happy to offer you a one-night complimentary rental at our cabin in the future.”

Mad scramble to find another cabin

Upon receiving that e-mail, “It was a race against time to find anything close to being suitable for our large family. I immediately contacted Shaver Lake Vacation Rentals and spent a day and a half online and talking with them, trying to find something” her e-mail to You and the Law stated.

“This late in the booking season, nothing as nice as the Clark property was available. That’s why bookings are often made months in advance,” explained Dana Smith, owner of Shaver Lake Vacation Rentals. “We were still able to find a nice cabin which was about one third smaller, had fewer bedrooms, not as spacious or as well-equipped, but at such a late time, you have to go with what’s available.”

Interestingly enough, the price for the replacement cabin was almost the same as what Kristin had paid for the Clark property.

Her question: “Because we had a contract, in addition to the refund, are we owed any other damages? We are now paying the same amount to not even get, two-thirds of what we should have had!”

Kristin is owed more than one free night

When presented with these facts, Dana Smith commented, “These things occasionally happen with inexperienced owners — who lack a good date-tracking system — or those who suddenly change their mind and want to use the property themselves, regardless of the fact that it has been booked. We have a clause in our owner contracts that prohibits this exact thing from happening!”

Kristin was caught in a classic breach of contract: A written agreement for a specific date, payment had been made and the owner decided to cancel. Referring to guests canceling a reservation, the contract states, “Between 30 to 60 days prior to the arrival date, a cancellation fee of $500 will be charged.”

But it’s the owner who pulled the plug and nothing in the contract addresses that weird situation. Does this mean that Kristin is owed nothing?

What is Kristin entitled to, under the law? She was paying the same amount and getting far less. The right thing for Dr. Clark to do is to reimburse that one third loss at least.

Next week: We’ll tell you what happened, as well as advice from Dana Smith on how to reduce the chances of things going wrong with your vacation rental.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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Greetings from Stockholm, Sweden, Mr. Beaver. I am an exchange student from California spending one year in a wonderful high school here in snowy Sweden. My family
e-mailed your story of the Coco’s restaurant that refused to let a waitress off for a few days when her husband was on leave from Iraq and management blamed the waitress when she quit her job. Well, there is something similar going on here, making the newspapers and TV, and I need your opinion about the legal duty in America of going to the aid of a person who is in an accident, or the victim of violent crime.

Here is the story:

A bus driver, reaching the final stop and letting his passengers off, heard a noise — it was a fight next to his bus, in which a man was being severely beaten and kicked in the head by several youths. The driver quickly locked the bus and tried to stop the fight. He was also beaten up, but successfully ended the fight, and the attackers left. The bus driver was credited with saving a life. Amazingly, instead of praise, his employer claimed the driver violated the company’s security measures and threatened him with being fired!

Their policy required drivers to remain in the bus and call police. But the driver said he felt a moral duty to help this person who could have been killed, and that had he remained in the bus, it would have been completely immoral.

I learned that in neutral Sweden you can just stand around and watch someone be killed and have no legal duty to act. Well, in class we had a discussion about the poor bus driver, and I said this could never happen in the USA, as we aren’t cowards and must help someone in danger. But my teacher said that I was wrong, that there is no such law in America. That is why I am writing you.
— Thanks, Carol

What really happened?

I researched the story, and found that accounts in Swedish newspapers, TV and radio revealed a management that was more concerned with “policy,” than common sense or basic morality. This, “follow orders” attitude was reinforced in a discussion I had with the Public Relations Officer of UK based Arriva, Corporation. I sent them an e-mail asking for their version of what happened — something basic fairness in journalism requires.

While expecting an e-mail reply, I was startled — I mean really startled — at 1:30 in the morning, when my home phone rang.
“Hallo, this is Morten Starup, Public Relations manager with Arriva, calling you from Denmark. Hallo? Hallo? Did I wake you? What time is it?”

When groggy me replied, “Only 1:30 in the morning,” Morten apologized, but we did have a nice and lengthy discussion.
“Our driver violated company policy several times in the past, this time by leaving the bus without notifying management or the police and placed passengers at risk. While he did get a written warning, we never really considered firing him,” he explained. However, according to witnesses, there were no passengers present and delay could have meant a young man might be killed, but Morten still felt that their policy should have been followed. This would have made for a nice, new slogan for Arriva buses, “Take the Bus, Leave the Beating to Us!”

“Do we or do we not have the moral courage to act when someone is in danger?” was the refrain from Swedish political leaders. They asked that question because unlike most of Western Europe, in Sweden, there is no duty to become involved. “It is a country where they do not like to commit themselves, to stick their necks out in the defense of anyone,” is the way one high school principal phrased it. (He is British, married to a Swedish woman, and after nearly 30 years there, “still, can’t understand how they became so uninvolved and fence-sitters.”

In this part of Scandinavia, a truly lovely land with nice people who are mostly pacifists, you can indeed stand on the sidelines, observe violent crime, and even without risk to yourself, do nothing.

But before we become too smug, the sad news is that it is no different in the United States.

The American view of a duty to act

We Americans are at times a difficult to understand people. While we defended the world from oppression in the two World Wars of the last century, at home things are very different.

As Janice Pearson, Dean and Professor of Law at San Joaquin College of Law in Fresno observes, “In most U.S. states, there is no duty to go to the aid of a person in peril, unless we have somehow contributed to their danger, or have some other legally recognized duty requiring action. In your example, if the fight took place on board the bus, the driver would have legally been obligated to become involved. As to something completely outside of the bus and unconnected with it, there is no legal duty. He could have locked the doors and waited for the danger to pass, even if an innocent person was killed.”

“Sadly, these things happen all the time, and are morally unacceptable, but not usually a violation of the law,” Dean Pearson said. “Fortunately, we have Good Samaritan Laws which encourage becoming involved, but it is an area of our legal system that many feel needs to change,” she believes.

This freewill philosophy of ours is part of who we are as a people –no one is going to tell us what to do. We are required to act if there is a duty — if we have a special relationship. However, there is no duty to come to the aid of a stranger unless we are somehow to blame for that person’s imminent danger. If not, as so many cases of street violence reveal, far too many of us stand by and do nothing.

To many, this is pure hypocrisy, and may violate religious teachings, but for the majority of jurisdictions, that’s the law. But there are people in our country who refuse to remain silent, and choose to become involved. We call them police, fire fighters, and yes, even lawyers.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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During her vacation in Hawaii, Vivian, a French tourist,  decided that on her way home to the south of France, she would visit Malibu. She went online in late February and booked a hotel and shuttle service from LAX in order to spend two days enjoying the California sunshine.

Checking in, Vivian presented her debit card. Two days later, she checked out and took another shuttle for her ride to LAX, looking forward to returning home.  But it wouldn’t be a smooth trip.

“When the shuttle driver ran the card, the charge was rejected! So back to the hotel we went,” she told You and the Law.

“I have traveled all over the world with just this one debit card, but now, all access to money was frozen, and there was more than enough for the hotel stay in the account. The hotel staff were helpful, and actually paid the driver to take me to LAX because I had no cash, but that was just the beginning of my nightmare,” Vivian explained.

Upon arrival in Paris, she proceeded to the railroad office to buy a ticket. Again, her card did not work, and to make matters worse, she had no cash at all, no US dollars, no euros, nothing. “I never felt a need to have cash or another bank or credit card,” she reasoned.

One big mistake

“That is one big mistake,” San Francisco-based travel attorney Alex Anolik pointed out.

“A debit card is fine, but always have a credit card, or alternative  card, just to get you by when you are traveling. It is dangerous not to have a reasonable amount of cash with you anywhere you go in the world,” he added.

Stranded and it’s snowing

Unable to reach anyone by phone and afraid of being arrested for trying to take a train ride with no ticket —  with the station closing — she waked out into a snowy Paris night wearing only lightweight clothing. It was well after midnight when Vivian — who admitted to having a mental health history — walked into a Paris hospital “in a really bad state.”

“I just asked if I could spend the night, as I had nowhere else to go,” she said.

Evidently, she was in a much worse “state” that she thought, as they placed her in a mental ward for two days before family arrived.

She blames the hotel for causing this horrible experience and would like to sue them. But what actually happened?

Card blocking is extremely common

“Your reader’s experience isn’t that rare,” Anolik explained. “Hotels commonly place a hold on funds in debit accounts, known as card blocking, preventing a guest’s departure without paying, often including extra days, damage to property, phone calls, incidentals and on it goes.

“Vivian’s debit card balance was clearly less than what the hotel had blocked, freezing it. The hotel is responsible for their error in not releasing her card,  and the front desk staff had to suspect that they were the cause of what occurred the instant she was returned to the hotel,” he pointed out.

“By failing to remove the hold on her card, at the least, it’s negligence — and you could even go further and say that it amounted to willfully, intentionally keeping the charge on her card, which can’t be justified under any circumstances.

“This would have been so easy, after verifying no property damage, or other outstanding charges. So they set in motion events which led to her misery, and she can indeed use the Malibu small claims court, where the limit is $10,000 — and she does not need to return to California — unless the hotel offers something reasonable,” he said.

“So the argument she would make in a settlement demand letter — or later in small claims court if the hotel ignored her — might read:

“I was an international traveler, handed over my card in good faith, paid my bill, and did not have any extra money. You made my card completely unuseable. It is foreseeable these types of problems would arise, all because of your refusal to take a moment to just clear my card.

“Under the principles of negligence law, based on this wrongful conduct, I am asking the court for a judgment in the amount of $XXX.”

An inexpensive remedy to try

“I try to teach this as a remedy that is very inexpensive and doesn’t need an attorney. But the hotel will likely do nothing until she files suit.

“So the filing fee is well worth it. In her letter, she should state that I can sue, but am asking for $XXXX and always write Settlement Negotiation Document on the letter.

“If it were me, I’d take $3,000 as settlement in full,” America’s foremost — and practical — travel attorney concluded.

Anolik has a terrific website at www.travellaw.com.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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