Mark Pestronk
Mark Pestronk

Q: You have written extensively on the subject of the legal duties of travel agencies, but what about the legal duties of OTAs? They don't typically "advise" people who make bookings on their websites, and I doubt that their customer service representatives are even qualified to do so. So, do OTAs have fewer legal duties toward their customers than traditional advisors do? If so, they would have an unfair business advantage because travel advisors have to stay familiar with destinations, hazards, suppliers, client preferences, current events and the like, while OTAs don't have to, thus saving OTAs a lot of time and money.

A: Advisors' legal duties are set by court precedent in each state, and my research turned up no precedent holding that OTAs are subject to a lower standard of care than traditional travel advisors.

Take the fairly recent Pennsylvania federal court case of Giampietro v. Viator, Inc., 140 F. Supp. 3d 366. The plaintiff was badly injured on a Vespa tour of Italy sold by Viator, an online travel seller.

The suit claimed that Viator failed to use reasonable care in selecting local tour providers, failed to warn the Giampietros of the dangers of a Vespa tour, failed to select a competent tour provider and negligently misrepresented the tour.

Viator argued that it is not a travel agent and therefore owed no duties of care to the injured plaintiff. Instead, it claimed that it (and parent company Trip-Advisor) "are websites that ... serve as an online information resource and ticket agent for travelers ... to research, plan and execute their own itineraries."

In contrast, the Giampietros noted that Viator advertises itself as a travel agency, referred to the Vespa tour as "their product" and that Viator and TripAdvisor both "hold themselves out as the world's leading resource for researching, finding and booking the best travel experiences worldwide."

Under these facts, the court found that Viator was a travel agent. Further, "Pennsylvania law imposes some duty of care on travel agents, which may include selecting appropriate travel providers and conducting reasonable investigations of the travel providers they book."

Because Viator had the same duties as any other travel advisor, I would state that OTAs such as Viator are really at a disadvantage compared with traditional advisors. The latter have the experience and training to be able to perform their legal duties, whereas OTAs typically do not, perhaps leading to more lawsuits against OTAs than against traditional advisors.

I say "typically" because many niche OTAs are leading experts in their fields and possess all the qualifications that off-line advisors have. It's just that the most well-known brands typically don't.

Most large OTAs, like most travel suppliers' own websites, do not do much more than take orders. Perhaps it is illogical to hold them to the high standard of care expected of travel advisors. However, until a court so rules, there is no other standard.

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