Mark Pestronk
Q: On Aug. 8, a federal judge in Miami prohibited the state of Florida from enforcing its law prohibiting businesses from requiring proof of vaccination. The court's decision now allows cruise lines and any other businesses in Florida to require proof of Covid vaccination.
Looking at the latest cruise line policies, I see that more and more are requiring such proof for everyone, with no exceptions. I am concerned about our agency's liability for having sold a cruise to an anti-vaccine client if the line changes its policy after the sale.
What if the client relied on my statement that the line did not require vaccination? What if I now sell a cruise to a client that counted on everyone being vaccinated, but the Court of Appeals overturns the judge and reinstates the Florida law, and the cruise line reverses its policy? Could those clients sue me for wrong advice?
A: As long as you did not misstate the cruise line's then-current policy at the time of the sale, and as long as you updated any advice that you gave after you found out that the policy changed, you would have no legal liability.
Travel advisors are not responsible for the acts of suppliers, including changes to their embarkation requirements after a sale is made. Rather, travel advisors (and the travel agencies that employ them) are responsible only for their own negligent advice.
"Negligent" means careless in not fulfilling a legal duty that is recognized by court precedents. Under relevant precedents, you must not only advise about embarkation rules as they exist when the sale is made, but you must also keep up to date and convey the relevant information to the client when a rule changes.
As long as you convey the change to the client, you are not responsible for the consequences. For example, if the unvaccinated client cannot board and the line refuses to make a refund, you are not liable. Similarly, if the vaccinated client refuses to board because the line changed its policy to allow unvaccinated passengers, you are not responsible for the client's cancellation or no-show penalties.
Even though you have no liability for suppliers' policy changes, and even if you advise about what you know, clients may blame you for their losses. In addition, you cannot realistically remember everything you read; nor can you be expected to know who is vaccinated and who isn't.
Therefore, it would be useful to deter such claims in the first place. The most reliable way to do so is to get the client to agree to a disclaimer at the time of sale.
I recommend that you use a disclaimer that clearly states that suppliers' vaccination policies may change after the booking and that you have no liability for such changes. Your disclaimer should also direct the client to check the supplier's latest policies on its website.
You can find my suggested language here: www.pestronk.com/resources. I have added the relevant language in bold to both the "Model Covid-19 Disclaimer and Release" and the "Model General Disclaimer and Release."
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].