Q: Two of your columns last month dealt with the legal duties of agents toward their clients. In the first column, you noted that it is unreasonable to expect an agent to be able to advise every client about the need for a visa, no matter how complicated the situation. In the second column, you noted that it is unreasonable to expect every agent to investigate suppliers or to convey all relevant information to every client, as some transactions involve no advice at all. Have you made any progress in developing a set of legal standards that would apply to all agents and agencies?A:
Yes, I have made progress, and I believe that I have developed a complete and cogent legal theory. I have had significant help from two readers.
The first reader recommended a distinction based on whether the client solicits advice from the agent (or clearly needs advice), on the one hand, or whether the agent is merely acting as a facilitator or order-taker, on the other hand. In the former case, the reader agreed with Judge Thomas A. Dickerson, author of "Travel Law," that the agent has a duty to investigate suppliers and convey all relevant information about the trip.
However, in the latter case, the agent is fulfilling the orders of a business or leisure traveler who obviously knows the suppliers and the destination and, based on the agent's experience with the client or with similar transactions, does not need advice.
Let us call the first agent a "counseling agent" and the second agent a "fulfilling agent." In the latter category, you would find not only most corporate agents but also all corporate online booking sites, as nothing more than fulfillment is usually expected of them.
A second reader pointed me toward the excellent enumeration of agents' duties found in the regulations issued by the Travel Industry Council of Ontario (aka TICO), which not only licenses agencies but also issues substantive rules on agents' duties to clients. The TICO rules can be found at www.e-laws.gov.on.ca/html/regs/english/elaws_regs_050026_e.htm.
Although the rules apply only in Canada, the underlying legal principles are the same as those of the common law of agency that applies in every U.S. state. Therefore, the rules can and probably should provide legal guidance for U.S. agencies.
On the subject of investigating and advising, the TICO rules state that an agent shall "(a) bring to the customer's attention any conditions related to the purchase of travel services that the travel agent has reason to believe may affect the customer's decision to purchase ... (e) in the case of proposed [foreign] travel, advise the customer...(i) about typical information and travel documents, such as passports, visas and affidavits, that will be needed for each person for whom travel services are being purchased ...[and] (f) refer to other conditions, if any, that relate to the transaction and to the travel services, and advise the customer where those conditions may be reviewed."
These are the duties of the "counseling agent" but not the duties of the "fulfilling agent." With respect to advising about visas, note that the TICO rules state that the duty is to convey "typical information" about visas, which I think refers to the typical visa situation, not the unusual visa problems that I noted in my first December column.
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].