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Preventive Legal Care for Travel AgentsSeptember 1, 2007 By: Alexander Anolik Home-Based Travel Agent
A top travel attorney's tips on protecting yourself from legal troubles
Protecting your legal rights as a travel agent is critical to running a reputable and successful business. And the process must begin early on—by taking steps to prevent legal issues from ever occurring in the first place. How can agents do this? Read on for tips about Preventive Legal Care®, one legal expert's solution.
Preventive Legal Care® means always being aware that there might be a legal problem related to travel rights, taking pre-emptive steps to prevent potential problems from developing into litigation and being prepared with the proper understanding of the law in order to minimize the negative effects of litigation. Preventive Legal Care® includes: knowledge of the rights and obligations required of the participants in travel services, prior to making any travel arrangements; understanding how to protect civil and property rights by knowing what conduct is required, permitted or restricted by law; and knowing when and how to retain travel law counsel for assistance before the problem develops into a lawsuit. Preventive Legal Care® should be exercised as a guiding principle by all parties in travel industry business relations.
When I trademarked/service marked the term "Preventive Legal Care®" 30 years ago, I intended to use this concept within the travel industry, in my lectures, seminars, books, tapes and videos for the protection of travel agents and tour operators. I sought to instill a concept in travel industry professionals, who for the most part were unfamiliar with the necessity of legally protecting their own assets. Many of the agents were so busy serving their customers as professionals that they did not worry about third party actions that could cause problems: being hauled into court as defendants to consumer lawsuits, because the traveler felt he or she had no one else to sue.
The Fine Print
Preventive Legal Care® is a concept used to create awareness in the travel agent and tour operator community of the concepts of travel protection, even before they have done anything wrong.
The disclosure notices on my web site, www.travellaw.com/web/disclosures.html, are to protect you with retail sales and for more active tours, such as sporting and adventure trips. In the sporting/adventure tours disclosures, you will notice that these samples are partly in bold and all capital letters, and this style should be maintained for your documents to ensure that the consumer is alerted to the both the agents' and tour operators', as well as their own, legal rights. The bold font emphasizes the major issues.
These notices provide you with certain legal concepts that you want a passenger to be aware of, such as assumption of risk and knowledge of a dangerous activity. If one person is purchasing the trip for others, you should make an attempt to get both the consumer-buyer/traveler to sign on behalf of themselves and others in their traveling group, so that all of the parties to the travel contract will be on notice.
In today's high-tech world, these travel contracts are usually entered into through phone or Internet transactions, rather than via the more traditional in-office signing of contracts. The retail travel agents must ensure that these consumer disclosure notices are sent to clients by being prominently displayed on the back of invoices or itineraries, so that if a situation did arise, and you are ordered to appear in court as a defendant to a lawsuit, you can at least testify that in all of your transactions, this notice had been sent to the consumer. Since the consumer disclosure notice is prominently attached or printed on the documents that the consumer receives, it should be sufficient notice to the traveler and consumer of your capacity and responsibilities of being only an agent for the tour operator or carrier.
As a travel agent, you are a conduit: The transaction flows through you to the principal, the providers of travel, whom you serve as an agent. If the principal, meaning the carrier, the resort or the tour operator, is negligent, then your being this conduit means you are not the entity responsible.
If you as an individual or company make an error in destination scheduling or book a flight on the wrong date or time, even though the passenger had the last clear chance of catching this error, the consumer/traveler may be able to go after you. Your negligence cannot be shielded entirely with this consumer disclosure notice if you are negligent. The insurance waiver forms, also found on the www.travellaw.com web site, can be utilized if a customer declines your offer of travel protection; however, this may not be a defensive argument that will protect you in court.
A third line of protection is errors and omissions insurance. Unfortunately, these services are being provided by a company with a near-monopoly control of the market. Results of combining different carriers are higher costs and less protection for you, the travel agent. Remember, if you have assets to protect, you may wish to research policies for your own protection.
Identifying Problem Clients
There are tale-tell signs in your business that you may want to consider with your practice of Preventive Legal Care®. I am sure you are familiar with certain problem customers that come into your office, challenging you and making difficult demands, and it is at this point that you have to remind yourself, "Life is too short, and why do I want to take on this extra risk?"
For example, you may have had the pleasure of serving Mr. or Ms. Know-It-All. When you see him or her begin to record all of the conversations they are having with you about the tour by putting a tape recorder on your desk or by turning on their Palm Pilot or mp3 player to record every word, you have a choice of not servicing that customer. As it turns out sometimes, Mr. or Ms. Know-It-All may be an attorney. Now, I cannot ask you to refuse to sell to attorneys, because this would be discrimination, but that doesn't mean you don't have some kind of protection from them.
You have a choice of sending that person to a different travel agent in town or you can make sure that you always implement the procedure of obtaining both the traveler's and the consumer's signature for the disclosure notice. Maybe you even want to draft in additional specific terms for services that you do not guarantee and/or will not be providing. An ounce of prevention is worth a pound of cure, as the medical and legal professions have learned. The travel industry would be wise to act on this saying.
Openings for Being Sued
State, federal and international laws are organized around jurisdiction and venue concepts that place restrictions on where you can sue a person. This is the reason some passengers might bring you into a lawsuit after their honeymoon in Cancun went sour and they cannot get jurisdiction in Mexico: They will try to sue you where the contract was made. Then, as you have represented to them that your agency is merely the conduit for the sale of a resort stay, and that you did not have any warnings about the troubles the honeymooners faced (as happened to the many agents who sold and got burned by Sun Trips), you should not be responsible for millions of dollars in attorney fees, as we saw concerning Leon Klinghoffer in the Achille Lauro Lines vs. Chasser, et al. case that went up to the U.S. Supreme Court.
While the case against you should be dismissed, in reality the dilemma of "how much justice can you afford" means that it is going to cost you money to defend yourself, unless you have Preventive Legal Care® policies in place. The theory of law to sue you on would be that you as an agent should have known that this was a flaky resort with problems in the past, and therefore you made an error in booking it, opening the possibility of negligence. Here, your errors and omissions policy that you were wise enough to purchase ahead of time will have to defend you, whether you were right or wrong.
Only in California is there a Consumer Legal Remedies Act that allows the plaintiff to sue in small claims court without an attorney, regardless of where the defendant resides. You can use this tool if you have a California connection and you need to go after a tour operator, carrier or destination operator that might owe you money because your negotiations with them have failed.
In a nutshell, Preventive Legal Care® means that many problems related to legal rights can be pre-empted by putting yourself in a protected position and being prepared with the proper understanding of the law. Risk management mandates that you use Preventive Legal Care® yourselves, so you will be prepared if and when you get the first nasty attorney letter.