Q: I am an experienced travel agent who counsels clients and recommends destinations, resorts, tour operators and cruise lines that match the clients' preferences and needs. For many years, I have been confused about my exact nature of my legal duties to clients. On the one hand, authorities such as Judge Thomas Dickerson, the author of the book "Travel Law," state that an agent has "ongoing duties to investigate suppliers and tour operators and to convey needed and relevant information to consumers." On the other hand, I read about one recent case where the judge held that "travel agents have no duty to warn tour participants of dangers unless they have specific, actual knowledge of previous incidents." So, one authority says that we must "investigate" suppliers, but the other one implies that we don't have to do anything unless we already know of previous incidents to warn about. These authorities can't both be correct, can they?
A: Believe it or not, both authorities are correct. In some transactions, you have a duty to investigate, and in other cases, you don't have to do anything but counsel clients based on what you already know.
If you know nothing about a supplier because you have never used its services, you counsel clients at your peril. In case after case, courts have imposed liability on agents for sending their clients to hotels and resorts that were inappropriate or totally unfit for human habitation, where the agent should have known better.
For example, in one case, the court held the agent liable because the accommodations were "so totally unacceptable that any reasonable travel agent would have known not to make such recommendations." The court noted that the "plaintiffs could well have made their own arrangements, choosing a resort at random. But rather than risk a substandard vacation, they took advantage of a service offered by defendant. As it turned out, defendant had little or no more knowledge than the plaintiffs."
So, if you know little or nothing about a supplier or destination, you need to conduct your own investigation before recommending it. If you don't, and if the client's vacation is ruined, a judge or jury could well hold you liable for negligence.
By "investigation," I don't mean that you have to play detective or that you need to visit every resort or use every tour operator or cruise line. However, you certainly need to take steps to become knowledgeable.
For example, you should read the trade press, ask your co-workers and colleagues about a supplier, consult your consortium or co-op and read travelers' opinions on websites that post reviews.
One word of caution: Some consortia choose their suppliers solely on the basis of higher commissions for the members and overrides for themselves. So the fact that your group prefers a supplier does not necessarily fulfill your duty to investigate.
On the other hand, the courts have consistently held that an agent has no duty to investigate in cases where: (a) the agent has previously used the supplier without any problems, and (b) there was no way the agent could have foreseen what went wrong.
Examples of such cases are slip-and-falls at resorts that the agent has previously booked or traffic accidents that result in injuries at popular tourist destinations.
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].