Mark Pestronk
Mark Pestronk

Q: Four years ago, you stirred up controversy in a series of columns on the trend toward so-called open booking, which was a new kind of corporate travel policy that let travelers book through any website or channel they wished as long as they complied with corporate travel policy and as long as the company's travel data could be consolidated into reliable management information reports. Your position was that public websites should be avoided because they contained oppressive terms and conditions that deprived travelers of all their legal rights.

In the last few years, open booking has not received much publicity, but a new corporate-travel trend called "duty of care" has been the subject of many experts' advice. The duty of care means that employers have a legal or moral obligation to take steps to keep their traveling workers safe by staying abreast of potential risks. Here is my question: Does the corporation's duty of care require them to discourage employees from using public websites in order to avoid loss of their legal rights?

A: Yes. I have no doubt that allowing employees to use public online travel agencies or supplier-direct websites violates the employer's duty of care.

Public websites that I have reviewed require the user to accept the website terms of use or the like, which constitute a binding contract when they are accepted as part of the booking process. My perusal of those contracts reveals that the waivers and limitations of liability are as oppressive now as they were four years ago when I wrote my anti-open-booking columns.

For example, Expedia's terms of use state, "In no event shall the Expedia Companies, the Expedia Partners and/or their respective suppliers be liable for any direct, indirect, punitive, incidental, special or consequential damages arising out of, or in any way connected with, your access to, display of or use of this website ... whether based on a theory of negligence, contract, tort, strict liability, consumer protection statutes, or otherwise, and even if the Expedia Companies, the Expedia Partners and/or their respective suppliers have been advised of the possibility of such damages."

Expedia makes you waive not only all claims against it but also all claims against "suppliers," which, of course, means airlines, hotels and car rental companies.

As if the waiver weren't enough, the terms of use go on to state, "If, despite the limitation above, the Expedia Companies, the Expedia Partners or their respective suppliers are found liable ... , [damages] will in no event exceed, in the aggregate, the greater of a) the service fees you paid to Expedia Inc. in connection with such transaction(s) on this website, or b) $100 or the equivalent in local currency."

I mention Expedia only as one example; every public website has similar provisions, and many go further by requiring the user to waive the right to trial by jury or to participate in class actions.

Two questions inevitably arise when I point out these clauses: First, do courts really enforce them and require travelers to waive their legal rights?

The answer is clearer now than it was four years ago because there are more court precedents upholding these clauses and not a single precedent that I could find holding them unenforceable as long as the user had notice of the terms and an opportunity to read them before agreeing. Second, don't TMCs have similar clauses in their online booking tools? In my experience, TMCs, which, I should disclose, are my clients, do not. Therefore, corporate travel managers should perform their duty of care by requiring employees to use TMCs for booking.

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