As the threats of terrorism, disease and weather catastrophes
grow, one question that increasingly nags at travel agents is how much negative
information they are legally responsible for sharing with their clients.
While agents have a duty to warn clients of certain known
information about destinations to which they are traveling, industry lawyers
interviewed by Travel Weekly said each situation is different, and there is no
fail-safe way to ward off potential negligence lawsuits if something goes
wrong.
Still, some practical steps, such as including disclaimers
on agency websites and requiring clients to sign a contract with disclaimers,
can help, if and when legal issues crop up.
Industry lawyer Mark Pestronk, Travel Weekly's Legal Briefs
columnist, said there are no hard-and-fast rules as to what agents should
disclose to their clients.
"It depends on the community; it depends on the niche,"
he said.
Mark Pestronk
However, Pestronk added that in general, agents "should
warn about a destination danger that your agency knew about or should have
known about but the client would not ordinarily have known about. That, of
course, varies in each ease, and there's no way to say X-fact fits in there and
Y-fact doesn't."
Rose A. Hache, a travel industry lawyer based in Houston,
agreed.
"The standard that is used," she said, "is
what would a reasonably prudent businessperson in the travel agency industry
know?"
As an example of something an agent would not be required to
disclose, Hache said her community, which she described as "the equivalent
neighborhood of Mayberry," recently experienced a drive-by shooting. It
was not terrorist-related but a random incident.
"No one would have told a visitor to my neighborhood in
Houston, 'Be careful of someone shooting people,' because it's completely
unexpected and unpredictable," she said. "But if something has made
the news and is within your range of knowledge, then I do think that not only
does it build trust between the travel agency consultant/adviser and the
consumer, but it also, I think, is very realistic in terms of 'This is what I
know, this is my opinion about your going to this particular destination and
also realize things are in a constant state of flux and change.'"
Simply put, she said, "I think you can be enthusiastic
about a particular destination, but if you know something that you would want
to know prior to visiting a destination, I would share it."
That range of knowledge extends to travel industry-specific
knowledge, for example, a supplier's probable insolvency or the spread of a
tropical disease in a particular region, Pestronk said. Things like that should
be disclosed. As a measuring stick, he said agents could use items reported in
Travel Weekly.
"Since Travel Weekly is the newspaper of record for the
travel industry, if there's something there that would give rise to a duty to
warn ... and there was nothing in the general media about it, then I would say,
yeah, absolutely there would be a duty to warn," he said.
Services exist that provide agents and their clients with
intelligence about destinations, such as Prescient and Intelliguide Corporate
(owned by Travel Weekly's parent company, Northstar Travel Group). However,
agents are not bound to disclose that information to clients, Pestronk said.
"Just because a service exists that can give you
additional information doesn't mean that you must disclose the additional
information," he said.
Michael Fuhrman, managing editor of Intelliguide Corporate,
said the company does not interfere with what agents might or might not advise
their clients. "That type of advice would run counter to our mission,"
he said. "We think informed managers and travelers make the best
decisions."
Similarly, at Prescient, marketing specialist Meg Regan said
the company's goal is not to give advice but to provide agents and their
clients information so they can make their own decisions.
When agents do disclose potential dangers or issues to
clients, it should be done in writing. Oral disclosures are not sufficient,
Pestronk said, as the other party will likely deny hearing it. If something
does go wrong, clients could bring agents to court for negligence for three
reasons, he said: physical injury, loss of money (for example if they paid
extra to fly home early) or emotional distress.
Both lawyers said that disclaimers can help give agents a
defense if they are taken to court.
Hache recommends that every agency add the following to the
home page of their website:
XYZ Travel recommends you read these websites related to
your travel plans:
• U.S. Department of State
• The World Health Organization
• U.S. Centers for Disease Control and Prevention
• Information on Zika or other insect-transmitted viruses
Consult your doctor for any specific health related concern.
She calls using disclaimers, asking clients to sign
contracts and making disclosures "strengthening the signal."
Rose A. Hache
"Everything is helpful," Hache said. "The
thing about going to court is that it's always unpredictable as to what will be
the outcome. There is no guarantee. All you can do is strengthen the signal in
terms of protecting yourself."
Similarly, Pestronk recommended that agents use a
disclaimer, including a notice that the agency is not liable for acts and
omissions of suppliers, and direct clients to government websites along with
providing phone numbers, such as the State Department's, for more information.
An example disclaimer is available on his website.
Those kinds of disclaimers give the agency a defense no matter
what a plaintiff alleges, Pestronk said.
"Most claims against travel are totally frivolous,"
he said. "The plaintiff's lawyers just make up alleged duties, but the
case never really goes anywhere, so those are the bothersome ones. And in those
cases, a good disclaimer will make the plaintiff's lawyer go away, sort of like
shark repellent. Use shark repellent -- that's the best lesson here."