WASHINGTON -- A specific, clearly worded disclaimer signed by a
client could help limit a travel agency's exposure to consumer
lawsuits, according to several top attorneys speaking during a
daylong travel law symposium jointly sponsored by ARTA and Travel
Weekly with MasterCard International.
The lawyers noted, however, that although disclaimers bolster an
agency's ability to fend off lawsuits, most firms do not use
them.
"It is somewhat astounding that disclaimers are still not used
[and] how lawsuits could have been prevented by taking a few simple
steps," Mark Pestronk, travel attorney and Travel Weekly columnist,
said.
Framington, Mass.-based attorney Rodney Gould of Rubin, Hay
& Gould said the disclaimer should spell out that some travel
services are provided by a supplier and that the client agrees to
settle any claims through arbitration, rather than a potentially
expensive and time-consuming lawsuit.
ARTA's legal counselor, Alexander Anolik, said that without a
disclaimer, "you are asking for it."
Gould estimated a travel agency has a one-in-10 chance of being
sued by a client. Students, honeymooners and inexperienced
travelers are more likely to sue than veteran travelers.
Many of the lawsuits emerge from seemingly simple problems that,
if handled expeditiously, might not have mushroomed out of control,
Gould said. Others involve disputes that border on the
outrageous.
For instance, Gould said one of his agency clients was sued by a
honeymoon couple who lost a piece of luggage while traveling
through Italy.
"The complaint was that the birth control devices were in the
suitcase, so they had to abstain from sex for the rest of the
honeymoon," Gould said.
In another instance, a couple traveling in Mexico were moved
from their beachfront hotel to a safer property farther inland by
government officials because of a hurricane.
During the hurricane, the client left his inland hotel room to
complain to the manager about the accommodations. "While he is out
in the rain yelling at the manager, he falls. So what does he sue
the travel agent for? His injury -- because he fell while yelling
at the manager," Gould said.
Typically, agents don't lose these types of cases, according to
Gould. But they can drag on in court, tapping the agency's
financial resources and time.
Disclaimers are important, Gould said, because "the motto of the
plaintiff's bar is that for every injury someone must pay and
usually that somebody is close to where the plaintiff is," which
means the travel agent.
The attorneys suggested that agents have clients sign
disclaimers or waivers when they choose to disregard the agent's
recommendations.
But attorneys warned retailers not to present themselves as
experts on such topics as current visa requirements for certain
countries or the latest information on communicable diseases in
different regions of the world, especially if they are not. "Agents
can expect a big mess if they try to fake their way through
advice," Pestronk said.
Rather than fake it, Anolik said, agents should, as part of a
disclaimer, direct their clients to experts such as the State
Department and the Centers for Disease Control and Prevention or
other government agencies.
"Get the ball out of your court and into theirs," Anolik said,
"because they will lie when they go to court, so help your attorney
and yourself by having clients sign disclaimers."