Mark Pestronk
Q: What should our agency's employees and independent contractors be telling clients about the risk of terrorism in Europe in order to avoid liability yet not lose sales?
A: Travel agencies have a legal duty to advise their clients about important information that the clients would not necessarily know or be expected to find out on their own. In this case, the ordinary traveler would clearly know or be expected to find out about the potential for terrorism in Europe because it has been in the general media every day for weeks.
Therefore, in my opinion, your agency would have no liability for failing to warn clients about the risk of terrorism. This means that if your client is a victim, the client or his estate could not successfully sue you.
Nevertheless, as we all know, meritless lawsuits are filed all the time, and when the plaintiff claims that the defendant was negligent in failing to warn about a danger, the case can drag on for months or even years. Even if you win, the legal fees will be in the tens of thousands of dollars.
Therefore, you should try to deter meritless lawsuits such as these. One of the best steps you can take is to make available the link to the State Department's most recent alert for travel to Europe
There is also a worldwide caution for Americans traveling anywhere abroad.
You can put the link to the alert and the caution at the bottom of emails, quotes, itineraries and invoices. You don't have to say anything more, except perhaps: "Please see the following State Department warning and alert."
Even better, have the client sign a disclaimer that contains these warnings. I have revised one of my sample disclaimers at www.pestronk.com/free.html. Click on "Disclaimer for Invoice/Itinerary or for Online Terms & Conditions."
If it is impractical to have the client sign (which it often is), then you can post the disclaimer at the bottom of quotes, itineraries and invoices, preceded by a sentence such as, "By accepting our services, you agree to the following important terms and conditions." To find a sample with the new alert and warning, go to my Web page noted above and click on "Disclaimer for Invoice/Itinerary."
Finally, you can post your disclaimer on your website and add the following to quotes, itineraries and invoices, "By accepting our services, you agree to the important terms and conditions at www.abctravel.com/terms".
The trouble with merely posting it is that the client will often deny that he saw it, or he will say he had no Internet access. That's why a signature is always preferable.
I note that you ask about your independent contractors (ICs). I believe that there is little risk in mandating inclusion of the link in the IC's quotes, itineraries and invoices, as long as you don't mandate how the IC sells in other ways and thereby risk reclassification by the taxing authorities.
Another useful step is to offer trip cancellation, interruption, medical and evacuation insurance. Even if the client declines to purchase a policy, the mere fact that you can show that you offered it will tend to deter suits.
Finally, consider buying errors and omissions insurance, which will cover legal fees in case you are sued anyway.