Q: In corporate travel, more and more transactions use agency online booking tools such as Concur, GetThere, RESX and NuTravel. In a recent column ["Hotel websites' terms can leave consumers without recourse," March 12] you wrote that these systems do not require travelers to agree to hotel chains' onerous terms and conditions. Would the same reasoning apply to airlines' terms and conditions?
A: That is a very good question. Could American Airlines' 7,700-word Conditions of Carriage, for example, apply to a traveler who books on a site that does not show, link or even refer to them?
To find the answer, we look at the case law concerning the "reasonable communicativeness" test that the federal courts have enunciated. This is a complicated, legalistic formula that tries to justify when a passenger can be held to a contract that he has never seen, read or even thought about.
In a recent case, the court outlined the test's two-pronged approach: "First, the court is to assess the physical characteristics of the ticket/contract, including features such as size of type, conspicuousness and clarity of notice on the face of the ticket, and the ease with which a passenger can read the provision in question.
"Next, the court is to examine the circumstances surrounding the passenger's purchase and retention of the ticket/contract. The surrounding circumstances to be considered include the passenger's familiarity with the ticket, the time and incentive under the circumstances to study the provisions of the ticket and any other notice that the passenger received outside of the ticket. Important is whether the passenger is an experienced commercial air traveler."
In online bookings using corporate booking tools, a carrier's attempt to enforce its conditions of carriage would clearly fail the first prong of the test. There is no "ticket/contract," no document with any "size of type," no "conspicuousness," no "clarity of notice," as the conditions of carriage do not appear on the booking website.
Interestingly, although the Department of Transportation (DOT) recently adopted a rule requiring agencies to include, in e-ticket confirmations, each carrier's carry-on and checked-baggage allowances and fees, there is no rule requiring agencies to provide any notice of conditions of carriage in those confirmations. Only the carriers themselves are required to provide notice of their conditions of carriage.
Although the airlines would argue that their conditions of carriage apply to every transaction regardless of any notice to the passenger, that is not quite true. The Airline Deregulation Act and a DOT rule allow airlines to incorporate their terms and conditions by reference, but only if there is a ticket (or e-ticket) and a "conspicuous notice" that certain terms of the conditions of carriage are incorporate by reference.
However, the second prong of the "reasonable communicativeness" test would also come into play. Even if there is no ticket or notice whatsoever, the passenger could still be bound if he or she is "an experienced commercial air traveler," which would probably be the case for the majority of corporate employees using these tools.
Conversely, an inexperienced traveler using the same booking system would probably not be bound by the airline's terms and conditions. In travel law, ignorance can be an excuse.
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].