Holland & Knight, Kramer Levin

When What Goes Up Can’t Come Down: Who Pays For Climbing Misadventures?

(c) Image by Juri H. Chinchilla.

“We knocked the bastard off!” Edmund Hillary exclaimed on May 29, 1953, after descending from the summit of Mount Everest with his climbing partner, Tenzing Norgay. Sixty-one years ago today, the two men were the first to reach Everest’s summit — or perhaps the first to live to tell the tale. This week, On Remand looks back at Hillary and Norgay’s achievement, and the legal ramifications of less successful climbers who’ve followed in their footsteps — on Everest and elsewhere.

Hillary and Norgay were part of a large, well-organized British expedition that included 362 porters, 10,000 pounds of gear, and 20 Sherpa guides to support thirteen climbers. But the odds were not in their favor. Since 1921, ten teams and two solo climbers had tried and failed to reach Everest’s top. On the heels of a near-miss by Switzerland the previous year, the British team departed Kathmandu on March 10, 1953. Eleven weeks later, on May 26, two men from the team were finally in position to try for the summit. But the world hardly remembers Tom Bourdillon and Charles Evans. The men turned back 330 feet from the top, sensing they had neither the oxygen nor the energy to safely summit and descend.

Three days later, Hillary, a thirty-four year old beekeeper and mountaineer, and Norgay, a thirty-eight year old Nepalese Sherpa with more Everest climbing experience than anyone, took their shot. By about 9 a.m., they reached the final narrow ridge leading to the summit and the forty-foot wall of rock and ice now known as “The Hillary Step.”  As Hillary recounted fifty years later:

… [W]e came to a 40-foot-high rock buttress barring our path—quite a problem at nearly 29,000 feet. An ice cornice was overhanging the rock on the right with a long crack inside it. Beneath the cornice the mountain fell away at least 10,000 feet to the Kangshung Glacier.  Would the cornice hold if I tried to go up?  There was only one way to find out.

Less than an hour later, Tenzing and Hillary were standing on the top of the world. Hillary offered his hand to shake Norgay’s, but Norgay instead threw his arms around Hillary in a hug. The men stayed on the summit for fifteen minutes, taking pictures and looking for signs of George Mallory and Andrew Irvine, British climbers who had disappeared thirty years before during an attempt at the peak.

Learning of the success, James Morris, the London Times reporter along on the expedition, relayed the news by a coded message to the newspaper: “SNOW CONDITIONS BAD STOP ADVANCED BASE ABANDONED MAY TWENTY-NINE STOP AWAITING IMPROVEMENT STOP ALL WELL.”  “Snow conditions bad” meant that the Everest summit had been reached, while “Advanced base abandoned” and “Awaiting improvement” signaled the two successful climbers, Hillary and Tenzing. The “Morris-coded” news arrived in London a few days later on the eve of Queen Elizabeth II’s coronation.  In one of her first acts as Queen, she knighted Edmund Hillary.

At the time of the conquest, Hillary thought that he and Norgay would be the first — and the last — to climb Everest, believing the mountain would lose its allure once summited. But Hillary was wrong. In the sixty-one years since Hillary and Norgay’s success, approximately 4,000 people have touched the top, and at least 200 have died trying. The Everest spectacle — hundreds of climbers lined up, paying an average of $25,000 to commercial outfitters to make the climb, and the mountain dotted with trash and corpses — did not please Hillary. In a New York Times editorial on the fiftieth anniversary of the summit, he urged people to “Climb Other Mountains.”

Michael Matthews did not want to climb other mountains. He wanted to climb Everest. After reading about guided excursions to Everest in a men’s magazine, Matthews, the twenty-three year old son of a millionaire, paid a commercial guide $40,000 for his chance at glory. On May 13, 1999, Matthews reached Everest’s summit, becoming “the youngest Briton ever known with certainty” to climb Everest. While descending, however, he disappeared into a vicious snowstorm after his guide went ahead to clear accumulating snow from the ropes. Matthews’s body was never recovered.

In 2001, Matthews’s father sued the trekking company, Out There Trekking. At the time, OTT was well-regarded: it had a reassuring safety record and was a founding member of a group committed to following a code of conduct on Everest. But Matthews’s suit blamed OTT for his son’s death, allegedly a result of incompetent guiding and ineffective oxygen equipment. The suit eventually settled for an undisclosed amount.

Still unsatisfied, Matthews filed a private criminal suit, accusing OTT, its co-director, his son’s guide, and the oxygen equipment supplier of manslaughter. The criminal suit alleged that Michael was disoriented from oxygen deprivation — a result of OTT’s faulty equipment — and that OTT failed the ailing Michael by not doing more to assure his safety.  A  court pleading in the case outlined the danger of the lack of oxygen: a non-acclimatized person on Everest will die in roughly ten minutes. Indeed, Everest climbers have reported strange behavior from oxygen-deprived trekkers: finding a partially clothed Australian climber sitting in the snow who believed he was on a boat, and discovering another face down in the snow praying the Hail Mary (perhaps that is reasonable behavior under the circumstances?). But in 2006, the judge dismissed Matthews’s manslaughter case. Although he said Michael was “exceptional,” and sympathized with the grieving parents, he concluded that it was “hardly tolerable” to use criminal law to stifle adventure or the ambition of those “old enough to decide how to live their lives.”

Setting aside the legion of climbers on Everest and the web of fixed ropes, Everest adventurers have no safety net; there is no “Search and Rescue Team” at 29,000 feet. Fortunately, for adventurers elsewhere, including those legendary Quinn Emanuel summer associates who slid down the wrong ridge at Mount St. Helens, many locations have volunteers and professionals willing to spend the government’s money to rescue the unlucky, unskilled, or unintelligent. Depending on the complexity of the search (planes, helicopters, and patrol boats run up the bill quickly), a single search can cost hundreds or tens of thousands of dollars. As a result, some states have laws that allow them to recover expenses from the victims, especially when those adventurers are determined to win the Darwin Award. Acting with “intentional disregard” for your safety in Hawaii, “gross negligence” in California, “recklessness” in New Hampshire, or without “reasonable care” in Oregon may result in receiving a bill for your rescue. Although Oregon caps the amount it can seek from each victim at $500, other states can seek more. A New Hampshire Eagle Scout was billed $25,000 for a helicopter used during his rescue from Mount Washington after he continued climbing despite spraining his ankle and then veered off marked trails.

One non-profit company, Texas EquuSearch Mounted Search and Recovery Team, believes it has found a cheaper, more efficient tool for finding missing people — radio-controlled planes (aka drones) fitted with cameras. In 1400 searches, EquuSearch claims that it has found 300 people alive and at no cost to the rescued. But since February of this year, its fleet has been grounded as the result of a Federal Aviation Administration directive prohibiting unauthorized use of EquuSearch planes for search and rescue purposes. In April, EquuSearch filed a Petition for Review in the D.C. Circuit, which is still pending. Kramer Levin, the law firm representing EquuSearch in the case, formed the first drone practice in December 2013. Like Hillary and Everest, Kramer was the first but not the last. Within the last six months, drone practices have taken flight in at least three other law firms, including McKenna Long & Aldridge, LeClairRyan, and Holland & Knight.  Will Drone Law be the next big thing? As Edmund Hillary knew, there is only one way to find out.

2 of British Team Conquer Everest [New York Times]
1953:  First Footsteps – Sir Edmund Hillary and Tenzing Norgay [National Geographic]
Finally, the Top of the World [Smithsonian Magazine]

Samantha Beckett (not her real name) is an attorney with more than ten years of experience working in Biglaw. When not traveling back in time, she is most likely billing it. Her writing has been featured in state and federal courts across the nation and in the inboxes of countless clients, colleagues, and NSA analysts. She can be reached at OnRemand@gmail.com.

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