Q: You have often written that it is advisable for agencies to use disclaimers, as they deter lawsuits and help win them if we are sued. Because of overbuilding in the hotel and cruise industries, I think many suppliers will be in financial distress and may go out of business in the next couple of years, so a disclaimer is probably more important than ever. However, every disclaimer that I read seems to say different things. What should the ideal disclaimer say, exactly?
A: Based on my decades of experience in helping agencies deter client claims and lawsuits, the perfect disclaimer would cover the following 14 points:
1) A clear statement that the disclaimer is a contract with the client, so the client doesn't think that it is merely a guideline or advice.
2) The agency's full legal name, including the "Inc.," "LLC" or other legal designator, so that the owner can avoid personal liability.
3) Your agency acts only as sales agent for the travel suppliers named in the itinerary or confirmation, as agents are not liable for the acts or omissions of their principals.
4) Your agency is not liable for the acts or omissions of suppliers; otherwise, many clients will think that because they paid you, it follows that you are responsible for what happens on the trip.
5) You have no special knowledge of suppliers' financial condition, so that you can avoid accusations that you failed to warn about a supplier's impending insolvency.
6) More broadly, you are not responsible for events beyond your control such as strikes, disasters or terrorism. Although you may be liable if some of these events were foreseeable and you failed to warn about them, there is no harm in implying the opposite if it will stave off a lawsuit.
7) You have no knowledge of destination dangers, as such a statement will help you defend against a claim that you knew or should have known about a climate or local issue and failed to warn the client.
8) The client should check the State Department's travel advisories webpage.
9) The client should check the Centers for Disease Control's travel webpage for destination health issues.
10) The client is solely responsible for passports and visa requirements. Otherwise, a client who tries to go to Brazil, for instance, may blame you when he is turned back.
11) Passports must be valid for at least six months from the client's planned return date. Although some countries have no such rule, so many have it or have some variation of it that you might as well make it a blanket statement.
12) An exhortation to buy insurance covering trip cancellation, interruption and medical expenses, including evacuation. Although insurance is not mandatory and can be a waste of money in some cases, merely offering it deters claims against your agency even if the client did not buy it.
13) All claims for refunds or damages must be filed within a short number of days after the client's return. Typically, the deadline is 30 or 60 days, but a shorter deadline is legal, too.
14) Lawsuits against your agency must be brought only in your agency's home city or county, and state that the client consents to be sued there, too. In order to make this clause enforceable, you probably have to make it prominent and consider posting it at the beginning of the disclaimer.
Some agencies and tour operators require arbitration in the company's home city or county in lieu of lawsuits, but you can probably deter more suits by requiring court litigation.