Mark Pestronk
Q: In his Nov. 30 column, "Preparing Clients for a Dangerous World," Charlie Funk, reflecting on the Paris attacks, asks himself, "What are our responsibilities as travel professionals to our clients going forward?" He answers that, as a professional, you must become fully familiar with rules about passports, visas, inoculations, denials of entry based on criminal records, supplier rules about accepting people with disabilities and requirements about a single parent's traveling with a minor, among other things. Otherwise, you are at "tremendous financial risk if boarding is denied and money is lost or forfeited." What is your legal opinion about an agent's duties to know and advise about all these requirements?
A: A professional travel counselor must not only advise about these rules but must also keep up to date and convey the relevant information to the client. If the professional travel counselor fails to do so, a client suffering a loss could sue for negligence.
Further, these aren't the counselor's only duties. You could also be liable in cases where you were negligent in selecting suppliers or cases where you negligently failed to warn of a danger known to you as a professional that you should have disclosed to the client.
In his legal treatise, "Travel Law," Judge Thomas Dickerson states that, "The most exciting area of travel agent liability has been the ever-increasing number of affirmative duties imposed upon travel agents by the courts. ... The duty to affirmatively seek out relevant and available information that the consumer needs ... is an appropriate standard of care."
By the way, when a travel agency employee is liable for negligence, the travel agency employer is also automatically liable. A client suffering a loss would normally sue the agency instead of or in addition to the employee.
The rule of automatic liability for the employer does not extend to negligence by independent contractors of the agency, as they are deemed to be separate businesses. Nevertheless, a client could pin liability on the host if the client could prove that the contractor was acting for the host or was effectively in partnership with the host.
However, in my opinion, there are two huge exceptions to the general rule articulated by Judge Dickerson: First, there has to be a limit on how deeply the counselor must research the issues, a limit on what he or she can be expected to remember and a limit on the amount of information that the counselor must convey to the client. For example, it is totally unrealistic to expect a U.S. counselor to advise a citizen of another country about entry requirements to a third country.
The legal standard for these kinds of limits would be expressed as follows: The professional travel counselor would be expected to know and advise about what a typical professional in the community or specialized niche would be expected to advise about. This "community standard" is the same for malpractice claims against doctors.
The second exception is that not all travel agents are travel counselors. Many or even most agents who arrange high-volume corporate travel are not really counselors and should not be held to the standards articulated by Charlie and me.