Q: Given the recent outbreak of flight cancellations and delays, many of our agency’s clients are missing vacation days, having to pay extra for last-minute alternative arrangements, and incurring other losses. My most recent example is the couple who missed a $20,000 transatlantic cruise because they arrived in Florida after their ship had departed, even though we had booked their flight to arrive the day before departure. Could our agency be responsible for any of these losses? If so, is there a disclaimer that we could have customers sign that would protect us from legal action?
A: A fundamental principle of agency law in the United States is that an agent is not liable for the acts or omissions of a principal. Therefore, your agency is not responsible for cancellations or non-compliance with airline schedules. For this reason, almost all warnings begin by reciting this fact and developing it.
For example, the model disclaimers you can find at www.pestronk.com/resources start with this: “ABC Travel Inc. (“ABC”) is acting as sales agent for any airline, hotel, car rental company, tour operator, cruise line or other service provider named in your itinerary or confirmation ( “Suppliers”). We are not responsible for the acts or omissions of Suppliers or their non-compliance with their own schedules….”
Language such as that quoted above does not change your agency’s responsibility. On the contrary, by stating the rule, it tends to deter customer complaints and lawsuits for what goes wrong during the trip.
However, clients and their attorneys often try to circumvent this rule by alleging that your agency itself did something wrong, such as failing to recommend travel insurance that would cover their losses or failing to inform that certain carriers or flights are chronically late.
These types of claims are allegations of negligence. No one can know for sure whether these allegations will hold up in court until a legal precedent is established, and there is no precedent for a duty to inform about possible flight delays or on travel insurance.
Even if there were a precedent in one state, it would not be binding on the courts of the other. 49 The decision would merely serve as a guide, and the law of negligence varies somewhat from state to state.
In the absence of a definitive legal rule, all you can do is deter lawsuits by having a disclaimer that specifically mentions what could go wrong and then states that your agency is not responsible for it. . You should keep the Disclaimer updated by periodically adding the latest obstacles to travel as they arise, such as pandemics, strikes, volcanoes and terrorism.
Your disclaimer should also strongly recommend trip cancellation and delay insurance. Finally, your disclaimer should include links to the State Department and CDC advice for the customer’s destination.
If you can prove that the customer has accepted the disclaimer, you will avoid almost all claims and lawsuits.