Mark Pestronk
Q: A local club of jazz fans has contacted me about arranging a cruise for about 40 club members. Besides the cruise, I have been asked to arrange air travel, transfers and hotel on the nights before and after the cruise. I have also contacted a talent agency to see if a renowned jazz quartet can join us to provide entertainment, in which case I would provide a free or reduced-rate cruise for the quartet and raise the price for everyone else. I am worried about what would happen if one or more of the quartet members canceled at the last minute or was unable to play during the cruise for whatever reason, in which case the group members would most likely demand refunds, which, of course, I could not provide. Is there any way to protect myself?
A: You need to have the group itself or each member (or both) agree to your disclaimer stating that, if the quartet does not perform for any reason, there will be no refunds unless the cruise line's cancellation policies allow refunds. You probably need to feature that clause prominently in your disclaimer, although you can rephrase it less starkly, as noted in the sample below.
If the club is not a legal entity such as a nonprofit association or corporation, you cannot have a contract with the club itself, nor can the club agree to anything on behalf of its members. In that case, you need a disclaimer for each participant, and given the amount of money at stake and the potential for misunderstandings and even litigation, you should require every member to sign it.
On the other hand, if the club is a legal entity, you can have a contract with it, and the club in turn would be responsible for contracting with its members. However, here again, given the risk of claims, I would recommend that you also try to get signed disclaimers from each participant.
If you use the sample disclaimers at www.pestronk.com/free.html, the clause stating that you have no responsibility for events beyond your control would be the place to insert the disclaimer about the musicians, as follows (the new words are underlined and in bold, and you should probably keep them that way):
"ABC assumes no responsibility for and shall not be liable for any refund (other than refunds allowed by Suppliers), personal injury, property damage or other loss, accident, delay, inconvenience or irregularity which may be caused by: (1) any defaults, wrongful or negligent acts, or omissions of the Suppliers; (2) failure of contracted musicians to join the cruise or perform during the cruise; (3) any defect in or failure of any vehicle, craft, equipment or instrumentality owned, operated or otherwise used or provided by the Suppliers; or (4) any wrongful or negligent acts or omissions on the part of any other party not under ABC's control."
In addition, consider offering trip cancellation insurance that will allow the participant to cancel for any reason. Although such policies are expensive, and most people will not buy them, the mere fact that you offered such insurance will make a disgruntled, canceling participant less likely to sue you.
So if the quartet backs out, and participants try to cancel, you will be well protected against suits.
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].