Mark Pestronk
Q: Our agency's standard disclaimer for leisure trips is similar to those that you provide for free on your website. It states that we have no responsibility for losses caused by suppliers' defaults or wrongful or negligent acts or omissions, and that we have no liability for events beyond our control such as natural disasters. One of our important group clients refuses to sign the form or click "I agree" on our website. She is stating that it would be unfair to leave her stranded or to refuse to help if such problems arise and that we should be responsible because her contract is with us. What can we tell the client to make her less unwilling to sign?
A: The specific wording from my sample disclaimers states, "ABC assumes no responsibility for and shall not be liable for any refund, 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) any defect in or failure of any vehicle, craft, equipment or instrumentality owned, operated or otherwise used or provided by the Suppliers; [and] (3) any wrongful or negligent acts or omissions on the part of any other party not under ABC's control."
I can understand your client's concern. However, what your client may not realize is that your disclaimer merely reflects what is currently the law in the United States: travel agents and tour operators are not liable for any of the losses described above, unless they are the fault of the agency or operator.
As I wrote in my July 19 column, "Comprehensive disclaimers can deter 'duty to warn' lawsuits", courts have uniformly held that tour operators and travel agencies are not necessarily liable for what happens on a trip. Rather, they are liable for their own acts or omissions, such as negligence or breach of contract.
Examples of your acts or omissions for which you would be liable are: (a) cases where you were negligent in selecting suppliers or (b) cases where you negligently failed to warn of a danger known to us that you should have disclosed to the client. You would also be liable in cases where you breached your duty to pay the supplier, resulting in cancellation by the supplier.
So you could point out that your disclaimer does not absolve you of liability for your own negligence or breach of contract. In fact, I would not hesitate to add a sentence to that effect if that is what it takes to get the client to sign. At the end of the paragraph that begins with the wording quoted above, add, "Notwithstanding anything in this Agreement to the contrary, ABC shall be responsible for its own negligence or breach of contract."
You can also point out that, if the client does suffer any losses that are caused by suppliers or by events beyond your control such as natural disasters, she would probably be covered if she purchased the travel insurance that you offer. However, be careful not to promise or guarantee any such coverage, or your agency could be liable for misrepresentation if the insurance company invokes one of the many exclusions in its policy.