Travel advisors have always been in the middle — between customers on one side, and suppliers on the other. However, the pandemic has highlighted some of the conflicts that can arise when trying to satisfy competing interests.
How should advisors handle what can be called a tripartite (three-party) relationship?
Travel Advisors Caught in the Middle
I am sure that every advisor can think of numerous times when being caught in the middle made them uncomfortable. An easy example is when a supplier offers a future travel credit (FTC) with “book by” and “travel by" dates, but the customer wants to extend these dates.
Since the advisor has no control over the suppliers’ terms, but must act as the interface between the two parties, the advisor is essentially a ping-pong ball — passing messages back and forth. And if the supplier holds firm and will not change the terms, the advisor becomes the bearer of bad news and, often, the customer’s punching bag.
Can you protect yourself?
One key suggestion (which might make me sound like a broken record) is to make clear in your client agreement that your client will be bound by terms and policies of each supplier, and that you, the advisor, will act as a conduit but are not responsible for creating or changing supplier policies.
The Legal Liabilities of Being the Messenger
Once you’ve established that the consumer must abide by the supplier’s terms, it is incumbent on the advisor to communicate those terms to the customer, and not doing so can create legal liability for the advisor. This is because the supplier is entitled to rely on the advisor being the legal “agent” of the customer.
An often-cited legal statement is that “it is black-letter law that a travel agent is deemed to be the agent of the passenger on whose behalf he acts, and the passenger is accordingly charged with constructive knowledge of information in the travel agent's possession.”
If a customer goes on to commence a lawsuit against a supplier, the supplier can fall back on the position that it communicated its terms to the advisor and therefore, the supplier can seek to dismiss the case.
Simply stated, when the supplier shares information with the travel advisor, the supplier can reasonably infer that the customer has been made aware of the shared information. In other words, if a customer goes on to commence a lawsuit against a supplier, the supplier can fall back on the position that it communicated its terms to the advisor and therefore, the supplier can seek to dismiss the case.
Jeffrey Ment
Credit: 2022 Jeffrey MentIn the recent case of Kimberly Moffatt Jones v. Ponant USA LLC, the cruise line was able to get the case dismissed because it was filed in the United States; Ponant’s venue provision in the terms and conditions required any case to be brought in France. Ponant had communicated its terms to Jones’ travel advisor at the time of the booking. Therefore, even though Jones never saw the venue provision, it was enforceable.
What Would Be Considered Negligence?
Cases like the above leave the advisor subject to claims for failing to communicate a supplier’s terms. It is negligent for an advisor to have information from the supplier but to not share it with the customer.
Therefore, travel advisors should keep the following in mind:
- Always share the supplier terms and conditions, including COVID-19-related updates, immediately to the customer.
- Most courts will find it acceptable to simply share a link to the supplier terms.
- In the client agreement, include a sentence such as “We are pleased to provide you this confirmation of your trip, which is subject to the terms and conditions of the supplier, which can be found at www.supplierterms.com."
The Details
The Ment Law Group
