Mark Pestronk
Q: In late December, a number of cruise ships reported Covid-19 outbreaks. Do travel advisors have a duty to warn prospective cruisers about the possibility of catching the disease on a cruise? If so, would we have to warn all the clients to whom we previously sold cruises departing in the next year, including the hundreds who booked using future cruise credits?
A: Travel advisors have a legal duty to warn clients about dangers that are known or should be known to them but that the client would not necessarily know about. Conversely, there is no duty if the risk was widely reported in the general news media.
So, which category does the current situation fall into? No one can know the correct legal answer until a court sets a precedent, and there are no precedents on the subject of a duty to warn about the risk of disease.
Even if there were a precedent in one state, it would not be binding on the courts of the other 49. The decision would just serve as guidance, and the law of negligence varies somewhat from state to state.
In the absence of a clear legal rule, here are the four steps that I recommend:
First, for new clients and clients who have not yet made final payment, require them to sign a disclaimer that states that you have no responsibility for hazards of travel, such as pandemics, and that the client needs to review the destination and travel risks at the State Department website, www.travel.state.gov, and the CDC website, www.cdc.gov/travel.
You can find a model Covid-19 disclaimer and release agreement at www.pestronk.com/resources, along with a more general disclaimer. If requiring a signature will cause too much sales resistance, you can put your disclaimer in an email and ask the client to signify agreement by return email.
Second, be sure to recommend trip cancellation and medical insurance that expressly covers Covid-19. If you rely on the insurance policies or cancellation waivers offered by the cruise lines, you need to examine those policies to satisfy yourself that they cover Covid-19. Put your recommendation in writing, and if the client declines, ask him to decline in writing.
When, as so often happens, the insurer declines to pay a cancellation or medical claim, the client may look to you for satisfaction. However, you have no liability unless you misrepresented what the policy would cover, so remember to refer all coverage questions to the insurance agency.
Third, consider getting travel agent errors-and-omissions insurance. Although the insurance does not cover most things that go wrong at a travel agency, it does cover claims that you failed to warn about a danger or risk of travel.
Fourth, although it may or not may not be legally required, I would recommend that you periodically keep clients up to date about outbreaks on ships. This step assumes that you have kept contact information for all of the clients who will go on cruises in the near future, which I am sure you have.