Q: In several recent columns, you mentioned the legal risks of booking on the public websites of travel suppliers and online travel agencies. All such sites have onerous terms and conditions such as disclaimers of liability, limits on damages and exclusive-forum clauses. You also noted that when we book through the GDS, we do not encounter and are therefore not bound by such terms and conditions. What if, at the request of a client, we book on a public website? Are we binding the client traveler to the website's terms and conditions? What if we decide to book on a public website without the client's specific knowledge or consent in order to obtain a better Internet-only rate and never tell the client how we obtained the rate?
A: You are probably binding the client to the public website's terms and conditions. If the client is harmed by the onerous terms, the client could well hold you responsible for failure to disclose the terms before the sale was made.
A travel agent is the agent of both the supplier and the client. As agent for the client, you have authorization to make travel arrangements for the client, which means that you have authorization to bind the client to the supplier's contract.
If the client then suffers an injury or inconvenience on a trip and wants to sue the supplier, the client could unknowingly sue in his hometown. The supplier would then file a motion to dismiss because the exclusive-forum clause in the supplier's terms and conditions required the client to sue only in the supplier's home county.
In the majority of cases, the court would side with the supplier and either dismiss the case or, in federal court under certain circumstances, transfer the case to the supplier's home district. The client would then have the unfortunate choice of having to sue in a faraway place using an unknown lawyer or giving up, which is exactly what the supplier intended.
The client could then turn to you and say, "You should have disclosed these terms and conditions because, if you had, I would never have agreed to the booking. Now I am blaming you for my loss."
As Judge Thomas Dickerson notes in his legal treatise, "Travel Law," the "most exciting area of travel agent liability has been the ever-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."
So the client would argue that you failed to convey the "needed and relevant information" that all suits must be brought in a court several thousand miles away and that, because of your failure, the client could not recover damages from the supplier. If the client sued in local small claims court, he would have a good case.
Since all agencies probably book on public websites from time to time, you should add a sentence to your disclaimers stating that, when the agency books on public websites at the client's request or for the client's benefit, the client consents to the website's terms of use, which may contain disclaimers, limits of liability and the like. I have added such a clause to my samples at www.pestronk.com/free.html.
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].