A case is currently passing through the US legal system that may have immediate implications for Everest expedition operators, and wider implications for guided mountaineering in general.
The case concerns a US businessman, Zachary Bookman, who has decided to sue US mountaineering operator Madison Mountaineering because their Everest expedition never got above base camp.
Bookman is one of two private clients who paid $69,500 USD to join Madison Mountaineering’s autumn 2019 Everest expedition, one of the first attempts to run a commercial expedition to climb Everest in the autumn season.
Alongside their two private clients, Madison Mountaineering also took a separate group sponsored by the outdoor gear brand Mountain Hardwear, which consisted of Mountain Hardwear’s president Joe Vernachio and one of their sponsored climbers, Tim Emmett.
With trips at that price, you may be wondering if Madison Mountaineering is so-named because it runs boutique Everest trips from a swanky office on New York’s Madison Avenue. In fact, it is named after Seattle-based guide Garrett Madison, who runs the trips himself as expedition leader.
After making a foray to Camp 1, Garrett and some of his Sherpa team noticed a giant serac hanging off the West Shoulder that looked ready to collapse. In 2014, a similar serac did collapse, sending an avalanche across the Khumbu Icefall that killed sixteen Sherpas. The incident sparked an organised labour dispute that resulted in all expeditions being cancelled that year.
Perhaps remembering this incident, Garrett announced that they would not be climbing through the icefall until the serac collapsed. The Mountain Hardwear team then decided to pack up and leave, even though there will still many days left in the expedition and plenty of time for things to change.
Garrett and his two private clients stayed for a few more days. The other client then decided to climb Ama Dablam instead. But Zachary alleges that he agreed to leave after Garrett offered a refund that never materialised.
So far, so simple, or so it seems.
Nearly all the coverage I’ve seen of this case has been supportive of Garrett and incredulous that one of his clients has decided to sue because their expedition didn’t meet its objectives.
Everybody knows – and I’m sure that Zachary does too – that mountaineering is a risky business, not just in terms of risk to life and limb, but in terms of uncertainty in the final outcome. We all know that you don’t always reach the summit; in the case of an 8,000m peak, you often don’t even come close.
Guides and expedition operators have a duty of care. Their first duty is to bring their clients home safely. We hire them because they have experience and are better equipped than we are to assess the risk and decide if a route is too dangerous. It’s not always clear cut, and some guides are more cautious than others, but we all have to accept that guides have the final say.
Operators make clear prior to booking that expeditions don’t always follow the itinerary due to factors beyond their control. US operators also ask their clients to sign a contract accepting this. The contract that Zachary signed with Madison Mountaineering stated their no-refund policy and encouraged him to get trip-cancellation insurance.
Garrett does not expect to lose the case, and if he does it could have unfortunate consequences. First and foremost, he says it will bankrupt him. But the fallout could go beyond that. If operators are expected to provide a refund when an expedition isn’t successful, then guides may feel under pressure to take more risks. It may also discourage operators from running expeditions to peaks where success is less likely.
But is Garrett right to be confident, and are things as straightforward as they seem?
You may be thinking this could only happen in America, where litigation is as common as mass shootings, but the case reminds me of another one that happened a few years ago this side of the pond.
In 2004, the UK mountaineering operator Jagged Globe was sued by a client after the explorer Sir Ranulph Fiennes asked her to stage a fall into a crevasse to provide exciting footage for one of his films. She suffered injuries that caused her to take time off work. She sued Jagged Globe for damages because they had provided the guides and the logistics for the expedition and therefore, she claimed, had a duty of care.
She eventually lost the case in 2012 after judges concluded that she performed the stunt voluntarily and in full understanding of the risks. But the case ran for several years and through several appeals. Jagged Globe also faced bankruptcy, and they even changed their name in the middle of the case to protect the investment of clients already booked onto their trips (while they are still branded as Jagged Globe, their registered company name is now Climb Trek Ski).
Had Jagged Globe lost that case, it could also have had consequences for the adventure travel industry, or anyone running activities that involve an element of risk. I don’t know if Garrett has been on the blower to Jagged Globe’s managing director Simon Lowe, but if he has then I’m sure Simon will have urged him to take the case seriously.
And it should be taken seriously, because there are undoubtedly two sides to this, as anyone who has been in Zachary shoes will tell you. Here are some of these people:
Yes, indeed. Although I don’t necessarily agree
with him, like you I see the client’s side too.
There are arguments on both sides
and often we are quick to label client who raise this concern as rich and
unreasonable. But many clients are not rich or unreasonable, yet the system
allows for no leeway or recourse if plug is pulled early. That model needs
light shining on it.
— Irish Seven Summits (@Irish7Summits)
If you were reading this blog in 2014, you will know that I was also one of those affected when expeditions were cancelled that year (and can I just say, thank you if you are still reading my blog now!)
I was climbing Lhotse that year, which shares a route through the Khumbu Icefall. I paid $20,000 USD for the expedition, and like Zachary, I didn’t climb above base camp.
In these situations, cancellation insurance is irrelevant – that only applies if your trip never takes place. If it ends halfway through then you need cover for curtailment, which only covers a fraction of the cost. I received £5,000 GBP, the maximum that my insurance policy covered. Like Zachary, I received no refund from my operator, and I don’t know of any operators who provided their clients with refunds that year.
I didn’t complain. It wasn’t the fault of my operator, or our Sherpas who were not among those striking. But I had ‘only’ paid $20,000. Those climbing Everest had paid $40,000 to $50,000+ and lost much greater sums for the same experience.
The craziness of Everest’s south side put me off going back there the following year. I believed there was a high risk of something like that happening again. I decided there were better things to spend such large sums of money on.
In fact, I’ve never booked an 8,000m peak expedition again. The cost is so high, and when the price is weighed against the chance of the expedition living up to its promise, I’ve decided that 8,000m-peak expeditions are poor value for money.
Back in 2014, not everyone agreed with me. There were plenty of others willing to return to Everest in 2015. That year expeditions were curtailed once again, but for an entirely different reason. Nineteen people died at Everest Base Camp when an earthquake triggered a massive avalanche.
This time, there was no question of expeditions continuing. Ten thousand people died across Nepal and hundreds of thousands more were made homeless. Regular aftershocks turned the Khumbu Icefall into a death trap.
This, however, was little consolation for those who had spent $50,000 in 2014 and $50,000 again in 2015, only to experience back-to-back base camp treks. Of course, these losses don’t bear comparison with those who lost family members, but suffering is not a competition where those who suffer most are the only ones deserving of sympathy.
Some of the media attention has focused on Zachary Bookman’s wealth as CEO of a technology company valued at $290 million. This is common practice in Everest reporting. There is a general assumption that all Everest clients are super rich. I wish that were true, but the reality is different.
While most of us have good jobs that have enabled us to save up the princely sum required for an expedition, this does not equate to fabulous wealth. For many Everest climbers, that money has been saved up after years of graft pursuing a dream. Many sacrifices have been made and it’s not something to be given up lightly.
There is an analogy with people who spend tens of thousands on a wedding. I personally wouldn’t spend thousands on a one-day event, but that’s just me. Many couples believe that one special day is worth it, as something they will remember for the rest of their lives. Many weddings have been cancelled this year due to COVID-19 restrictions. I can imagine it must be pretty gutting if you have also lost tens of thousands.
Because of the huge sums of money that people spend on Everest trips, Zachary Bookman’s case deserves to be heard. The argument for the standard practice of zero refunds has always been that costs of the trip have already been sunk, but 100% of them? If the case helps to shine a light on these costs then it will provide some reassurance to those who ultimately pay the bills.
Of course, the operator needs to make a reasonable profit, and there is no question of refunding costs that have already been spent. But what size are these profits that nothing can be shared in the case of a big let-down? And what of those costs that haven’t been sunk, such as oxygen cylinders that can be reused the following year, or staff wages for trips through the icefall that haven’t been made? These things should be examined.
My personal feeling is that top-end 8,000-peak expeditions are a bit of an edge case. One of the reasons they are so expensive is because staff are hired to do much of the climbing, carrying loads and setting up camp. While this massively increases the clients’ chances of reaching the summit, the flip side is that they spend hardly any time climbing, apart from a couple of one- or two-day acclimatisation rotations. If for any reason a summit push doesn’t happen, clients then feel very short changed.
Most expeditions are not like this. On other mountains, you’re going to spend almost all your time trekking or climbing, so even when you don’t reach the summit you’ve had a pretty full trip. Zachary has experienced these trips. He’s climbed Denali, Aconcagua and Vinson, so his first 8,000m-peak expedition must have been a surprise.
At the moment these arguments seem largely irrelevant. Those like Garrett who make their livings from international travel are among those hardest hit by the global pandemic. Many travel firms are unlikely to survive. As we speak, Madison Mountaineering has a team on Ama Dablam, even as COVID-19 spreads across the Everest region. Even though it’s almost certainly the wrong thing to do, you can understand the overwhelming temptation such companies had to return to Nepal as soon as it re-opened.
I expect Garrett to win his case and that will be the end of that. I don’t know when Everest expeditions will resume, but when they do, perhaps it’s time for a rethink. When such huge sums are being spent on something that falls so far short of expectations, I can’t help thinking there needs to be a fairer way. Even if I don’t fully agree with his actions, I can understand why Zachary might feel ripped off.