Mark Pestronk
Q: Sometimes I try to help my clients by telling them that some of the airline's rules are not necessary to strictly obey. For example, in my home city, getting to the airport one hour before the flight is more than enough time, even for an international flight, but the airline requires you to be there at least two hours in advance. Could my agency be legally liable if the client got to the airport one hour before the flight and was denied boarding because he or she tried to check in too late? If so, what could the client sue us for?
A: Assuming that the airline's contract of carriage actually requires a two-hour advance check-in, your agency could indeed be liable for advising the client incorrectly or advising that it was not strictly necessary to obey the airline's rule.
Travel agencies are liable for their own negligence, which means a breach of a recognized legal duty that results in an economic or personal injury to a client. Court precedents have established that travel agencies have a legal duty to advise clients with care.
In court, the plaintiff could prove that this legal duty exists in several ways: by citing precedents in the agency or client's state, having an expert witness, quoting from a legal treatise such as Judge Thomas Dickerson's Travel Law or pointing to some contractual provision requiring correct advice.
An example of such a contractual provision can be found in American Airlines' "Addendum to the Governing Travel Agency Agreements for ARC Accredited Agents and their Affiliates" that requires that the agency "strictly adhere to American's ... conditions of sale or carriage, tariffs and procedures (the "Rules")."
Even if you do not have an ARC appointment, the quoted language could serve as a description of the legal duty. Therefore, you put your agency at risk whenever you advise something like, "Don't worry about the airline's rules. You can get away with ..."
Another example of advice that may put you at risk is the matter of "international driver's licenses." Car rental companies' terms and conditions (i.e., the fine print on the back of the contract that nobody has time to read or understand) may require that you possess such a license in order to drive in certain countries.
You may advise a client that it is not necessary to get one because you have never needed one or that such licenses are a scam.
If the client lands in a country that actually requires one and if he or she cannot rent a car, gets fined or even put in jail, your agency could be liable for negligent advice.
Of course, not all statements to clients constitute advice. Sometimes you are just providing your expertise or observations. If the client says, "I usually get to the airport one hour or less before the flight," and you say, "So do I," you aren't advising the client, so you cannot be liable for negligence.
Of course, an angry client will try to twist your mere observations into advice, so be sure to advise about the supplier's rules.
Say, "So do I, but the airline still requires you to be there two hours ahead."