Q: Travel management consultants and other experts have been predicting that, in the coming years, corporate travelers and their employers will embrace "open booking" or "Managed Travel 2.0." One expert describes the concept as follows: "Open bookings provide corporate travelers the ability to book on virtually any travel site or channel of their choosing while ensuring that policy is enforced, then electronically transmitting the booking information back into an established servicing and management infrastructure for purposes of reporting and duty of care responsibilities." In other words, business travelers will (or should) be allowed to book on any website or mobile app they choose, and all the booking data will be captured, reviewed and reported by the corporation's designated agency, credit card company or online travel-and-expense system, using various new capture technologies. I have heard arguments for and against the wisdom of encouraging open booking, but I am wondering whether open booking presents legal problems for travelers and corporations.
A: Open booking presents a serious legal problem that no one has yet touched on: By allowing employees to use the public websites and mobile apps offered by suppliers and online travel agencies, travelers and their employers waive all of the contractual and other legal rights that they normally have under U.S. law.
These waivers are found in each website's or mobile app's "user agreement," "terms and conditions" or "terms of use," interchangeable phrases that mean an agreement that becomes binding on users and their employers when bookings are made.
Courts have held that these kinds of online agreements bind the user regardless of whether the user knew the terms or were even aware that they existed.
For example, Expedia, which is the most popular online agency in the U.S., has terms of use that state: "In no event shall the Expedia Companies, the Expedia Affiliates 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 Affiliates and/or their respective suppliers have been advised of the possibility of such damages."
This means that the traveler and his or her employer waive all their rights to sue not only Expedia but also the travel suppliers, no matter what happens on a trip.
Similarly, Hilton Hotels' website states: "All users agree that the Indemnified Parties [the chain and hotels] are released ... from and are not responsible or liable for ... any losses, injury, death, property damage ... that may occur from use of the site or the acceptance of ... services or products related thereto or acquired therefrom." So if a hotel fire kills the corporation's group of executives that booked using Hilton.com, neither the executives nor the corporation can successfully sue the chain for damages.
I know that it is hard to believe that the quoted words really mean what I say they mean, but they do, or that the courts will uphold the waivers, but they do as well. Corporations would never tolerate such clauses in normal procurement contracts, yet they unknowingly do so with open booking.
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].