Mark Pestronk
Mark Pestronk

Q: Now that the pace of air travel is picking up, some home-based travel advisors appear to be making airline reservations via the major OTAs' public websites. Also, some corporate travel decision-makers are apparently allowing corporate travelers to book using any online agency, now that new technologies enable the corporation or the travel management company of record to consolidate these so-called open bookings into travel management reports. I know that you have advised that use of public websites to book travel presents major legal risks for travelers. Have there been any court precedents that support your view?

A: OTA websites for the public and travel advisors 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. The contracts contain oppressive clauses that deprive users and travelers of legal rights that they would have if they booked through a travel agency that uses a GDS or even if they booked on the supplier's own website.

A recent, rather shocking case illustrates my point. In federal court in Miami, a customer filed a class-action suit against Air Europa because it failed to provide refunds when it canceled flights because of the pandemic. The plaintiff had booked on Expedia. Given the DOT's order requiring such refunds on request, the case should have been a no-brainer.

However, in Capua v. Air Europa Lineas Aereas S.A. Inc. (S.D. Fla. Mar. 15, 2021), the judge ruled in favor of the carrier because Expedia's terms and conditions protect its travel suppliers against court litigation. Specifically, the carrier relied on the following clause in Expedia's terms and conditions: "Any and all claims will be resolved by binding arbitration, rather than in court, except you may assert claims on an individual basis in small-claims court if they qualify. This includes any claims you assert against us, our subsidiaries, travel suppliers or any companies offering products or services through us (which are beneficiaries of this arbitration agreement)."

The court held that "travel suppliers" included Air Europa and that the carrier could take advantage of the clause because it was a "beneficiary of this arbitration agreement." That effectively killed the case, as you cannot have a class action in arbitration.

The lesson of this case is not only that arbitration against an airline can be compelled but also that an OTA can validly include any travel supplier in the OTA's numerous disclaimers, waivers and limitations of liability. Perhaps the DOT needs to look into this matter and take a stand in the consumer's favor.

I mention Expedia only as one example; every public website has anti-consumer clauses, and more are added from time to time as courts uphold them. On the other hand, agencies' terms and conditions rarely have such clauses, in my experience.

Therefore, travel advisors and corporate travel managers should avoid booking on public websites, lest they deprive their clients and travelers of important legal rights. 

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