Restrictions on Liability Waiver Use

Question

The US National Park Service (NPS) has the following language. This is in the context of a commercial operator (like a white water rafting company) getting a commercial permit to take clients down a river in National Park lands.

The commercial operator is required to carry insurance, and nearly all insurance companies require clients to sign documents that waive their rights to hold the commercial operator responsible for actions (as much as can be enforced).

The National Parks say this:

NPS policy states that operators cannot require visitors (clients) to waive their right to hold Commercial Use Authorization (CUA) or Special Use Permit (SUP) holders responsible for actions.

1. The Holder is not permitted to require clients to sign a waiver of liability statement or form, insurance disclaimer and/or indemnification agreement.

...

Let's imagine that in the past a commercial operator has had clients sign those releases, while holding a National Park commercial permit.

1) Is the release signed by the client independent of whatever the National Park's policy (above) states?

2) Are those releases subject to challenge because they violated an aspect of the permit?

3) Is the only real material affect going to be potential discipline from the NPS for violating the terms of the commercial permit, by clients signing liability waivers.

Additionally:

Apparently the history for this is because of a law that doesn't allow the federal government, in this case the NPS, to be released of liability.

Answer 1

1. Generally, yes, but these policies are not written in a vacuum. The provider knows the operator in working in NP and knows that the NP prohibits waivers so the policy may state that the insured cannot require waivers but it will certainly build into the premiums the fact that the insured can't require waivers (ie more claims than if waivers were allowed). I think your question is - could an injured person, who signed a waiver, use the NPS policy alone to invalidate the waiver. It seems no bc there is no privity of contract but there also seems to be a lot of overlap so it's hard to say.

2. They are subject to challenge no matter what; it's the success of the challenge that matters. And a judge (or jury!) would look very unkindly upon a waiver which was provided by an operator in clear conflict with the operator's commitment to the NPS. There is a bit of your first question in here because if the judge allows the suit against the operator the operator is going to bring the insurance company in if they haven't already been named. If the insurance company tries to get out by pointing to a clause requiring waivers, again, the judge will know that the insurer knew that the insured was operating in a NP and... You get it.

3. Discipline = getting kicked out = out of business. But the other effect is if a suit is brought and the operator broke the NPS rules and broke the insurers rules the operator could be personally liable for all damages.

I'd like to take a look at some of these policies. I'll look for cases on point but I'm not optimistic.