'Duties to investigate' can be an unreasonable expectation

By Mark Pestronk
Mark PestronkQ: You ended last week's column by stating your wish to find the logical dividing line between when an agency is liable, and when it isn't, for such things as an agent's failure to advise about a needed visa. Why would you want to articulate such a theory? Wouldn't a viable theory tend to create liability for travel agencies? If not, have you had any success in finding the line?

A:
I am certain that a viable theory of liability would deter many more claims and lawsuits than it would create. I would say that more than 80% of legal threats made against my clients are bogus, so it would certainly help agencies to be able to explain why they are not liable in those instances.

There is only one book that has collected and analyzed all the precedents in the U.S. on the subject of agency liability: "Travel Law," by Judge Thomas A. Dickerson. It costs about $500 and is available at LawCatalog.com.

Dickerson writes: "The most exciting area of travel agent liability has been theever-increasing number of affirmative duties imposed upon travel agents by the courts. Chief among these are ongoing duties to investigate suppliers and tour operators and to convey needed and relevant information to consumers."

Both Dickerson and the courts appear to have assumed that all travel agents and agencies have the same legal duties to clients. They further assume that all agents are knowledgeable professionals who know their clients' wishes.

However, this is not a proper characterization of many if not most agents and agencies today. For example, almost half of agency volume is business travel, and most corporate travel agents cannot reasonably be expected to "investigate suppliers" every time they take an order by phone or email.

To take another example, a significant portion of corporate travel is now booked using online booking engines such as Concur, and a large percentage of leisure bookings are now made online using websites such as Expedia. For all such transactions, there is little or no human involvement, so it is unreasonable to require that these agencies "investigate suppliers and tour operators" and "convey needed and relevant information to consumers," other than what is on the website, which may or may not be relevant.

So the first principle in our workable theory should be that the quoted duties apply only to those agents who provide advice or counsel about a trip, and not to those who merely take orders. Under the principal-agent relationship, the same duties would apply to those agencies that employ the agents who provide the counseling, but they would not apply to host agencies, as businesses are not responsible for the acts or omissions of their independent contractors.

Next, Dickerson states, "The duty to affirmatively seek out relevant and available information that the consumer needs has also been accepted by some, but not all courts, and is an appropriate standard of care." In other words, the counseling agent must not only convey what he or she already knows but must also seek out relevant information in every case.

Again, it is clearly unreasonable to assume that this legal duty to "seek out" should apply to every agent providing advice, and we will explore its limitations in a future column.

Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at mark@pestronk.com. 
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