Q: With the recent outbreaks of norovirus on cruise ships, do we have a legal duty to warn our prospective cruise clients about the risk of norovirus? If so, would the duty apply to all ships of all cruise lines or only the ships or lines on which outbreaks have been reported? What can we do to prevent suits against our agency following outbreaks?
A: Travel agencies have a legal duty to warn clients about dangers that are known to them but would not ordinarily be known to reasonably informed consumers. The clearest example comes from the case of Marcus v. Zenith Travel, where the New York court held Zenith liable because it had failed to warn the client about the financial troubles of tour operator Hemphill Harris, after those troubles had been widely reported in the trade press but not the general media.
On the other hand, if the risk or danger has been widely reported in the general media, then the travel agency has no legal duty to warn. A good example would be a Caribbean cruise during hurricane season, when any reasonably informed consumer would know that there is a risk that a hurricane might affect his vacation plans.
So is a norovirus outbreak more like a Hemphill or a hurricane? Google News shows no less than 17,700 articles in the last few months on the subject of cruise passenger illness due to norovirus. Therefore, it would be very hard for a plaintiff to argue that the travel agency had special knowledge not available to the reasonably informed consumer, especially if the outbreak occurred on a ship or cruise line for which there had been no previous reports of outbreaks.
However, it would be a closer question if the outbreak occurred on a ship that had suffered more than one previously reported outbreak. As a participant in the travel industry, you would be much more likely to have special knowledge of that fact than the reasonably informed consumer, who cannot be expected to remember the names of ships that have had multiple outbreaks.
Nevertheless, I believe that a court would not find that a travel agency had a legal duty to inform the consumer about a particular ship. Since all cruise lines have been taking steps to prevent outbreaks, it probably follows that the odds of an outbreak on any given ship are not higher merely because of a previous outbreak.
Of course, in the U.S., anyone can file a lawsuit against anyone for any reason, and it costs time and money to defend even a frivolous lawsuit until it is dismissed. Therefore, it is always best to take steps to try to deter lawsuits, even if they have no merit.
The best way to deter lawsuits is to have all clients agree to an effective disclaimer of the type that you can find at www.pestronk.com/free.html. Those disclaimers clearly state that your agency is not responsible for suppliers' acts or omissions. They go on to state that you have no special knowledge of health hazards, and they direct the client to find out about health issues by clicking on the link to the Centers for Disease Control.
If a client threatens suit, call the disclaimer to the attention of the client or his attorney.
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].