The Ongoing Debate About Passengers' Rights

VALENTINE'S DAY HAS NEVER REALLY HAD MUCH SIGNIFICANCE FOR THE TRAVEL INDUSTRY. But this year, it marked the day an ice storm caused JetBlue to have perhaps it's angriest customers ever. The winter storm that blasted the Midwest and Northeast in February prompted a now-famous JetBlue disaster in which passengers were left stranded on planes for several hours—one plane for as long as 11 hours. This spurred new energy into an ongoing discussion: What rights do passengers have and how should travel agents plan for and advise their clients to avoid or alleviate problems? This is not what your clients want to see when at the airport; keep them informed

Home-Based Travel Agent talked to some experts in the field to find out what an agent could do to protect clients and to make a bad situation more tolerable.

John K. Hawks, co-author of Traveler's Rights: Your Legal Guide to Fair Treatment and Full Value, told HBTA that the most important tip an agent needs to know is this: Pinpoint the three most popular airlines in your area, visit their web sites and type "conditions of carriage" into each page's search engine.

This will give you the basic set of policies that govern that specific airline—how late a flight has to be before gate agents hand out phone cards and meal vouchers, how long before a passenger is allowed to stay overnight at the airport hotel, luggage policies, carry-on restrictions, etc. These documents are a bit dense, Hawks warns, but they have a table of contents listing everything you need to know about the airlines. Calling an airline's reservations number instead of or while queuing can save clients time and headaches

According to Hawk's book, co-written by lawyer Alexander Anolik, "Under federal law, any person who sells airline tickets—including airline employees at the airport or at an airline call center, as well as travel agents, travel web sites and other retailers—must make a copy of the entire contract of carriage (including statements filed with the U.S. Dept. of Transportation) available to you upon request."

Hawks says mastering a local airport's guidelines is not an overnight job, but rather something that might take an agent about a month to learn thoroughly. Other important pieces of advice that Hawks, who currently writes the Outside Sales Support Network's (OSSN) newsletter, urges agents to take are to always offer travel insurance and to strongly recommend that a passenger use a credit card. Credit cards are vital because of the charge-back policies they usually have that make it easier for the user to get a full refund when something goes wrong.

Always Recommend Insurance

Travel insurance should always be recommended to a client. In fact, agents might find themselves in a legal bind if they don't make clients aware of it. Agents should protect themselves by getting Errors and Omissions insurance, which protects agents who omit information when planning their clients' vacations or who make other similar honest mistakes. De-icing airplanes is a common source of delays in the winter

But as far as the consumer goes, an agent must recommend insurance and should always make a client sign a waiver if the client doesn't want the insurance. The waiver should say that the agent told the client insurance was available and the client opted not to purchase it and took the risk of going on vacation without coverage.

"So many times, I've heard a story where something happens on a trip and the client tried to take the agent to small claims court and the agent pulls out the waiver," Hawks says. "The agent has a sheet that says the client knew the risk and decided to take that risk."

Kevin J. Herlihy, national accounts manager at Travel Insured International, based in Hartford, CT, says his company offers travel insurance that pays $150 per day if the traveler has been delayed more than six hours. For instance, if a passenger's flight is delayed for more than six hours (he was scheduled to fly at noon on one day and will not fly until the next day), that client will receive $300.

The insurance, Herlihy says, runs between 5 and 10 percent of the trip's cost, depending on the age of the traveler. For instance, a $1,000 trip for a 50-year-old traveler will cost $46 to insure.

Although he couldn't provide exact stats, Herlihy says he received an influx of inquiries about travel insurance policies after the JetBlue incident.

"After every incident, there are many more people who learn about travel insurance," he says. "When they were talking about the JetBlue story on the news, one of the things they mentioned was travelers' insurance. Everyone should get it."

Paul Ruden, senior vice president of legal and industry affairs for the American Society of Travel Agents (ASTA), says there's only one thing an agent can control when it comes to airport dilemmas: whether to tell the consumer the truth.

"There's not much an agent can do," Ruden says. "An agent doesn't need to tell you that it snows in the winter and there is a chance of heavy rain storms in the summer. If clients don't know that, they're either lying or dead.

"What an agent needs to do is tell their clients the truth: As of right now, they have no real rights [when flying]. These catastrophic delays are really a small percentage of total flights, but you're not going to be happy if it happens to you, and there's really not much you can do right now."

When it comes to passengers' rights, the last of Hawks' three most important tips an agent must know is simple and scary: There is no such thing as travel law. Everyone looks to try to blame the supplier, Hawks says, such as a cruise line, and often travelers will view an agent as a supplier and try to sue him or her.

But Hawks notes that agents, as long as they recommend insurance and keep a waiver stating that the client denied it, are rarely held liable, and the same goes for cruise lines and airlines.

According to Hawks' book, an airline ticket, legally speaking, is basically a contract between the consumer and the airline. However, Hawks notes that a consumer can rarely negotiate any of the "contract terms."

The contract is written heavily in favor of the airline. Some of the terms and conditions governing a consumer's flight, for instance, are hidden in "convoluted legalese" or legal jargon.

"There's really not much an agent can do to prevent (a client from being stuck at an airport)," says Joanie Ogg, president of the National Association of Commissioned Travel Agents (NACTA). "I think it's in the best interest as travel professionals to be as aware as possible of all the options for clients."

However, what agents can do—if they want to make their clients very happy—is ask for compensation. A supplier—a hotel, an airline or a cruise ship—doesn't have to give a client compensation, but the agent can ask for it.

In that sense, it wouldn't hurt for an agent to ask a supplier he or she has done business with a lot in the past to compensate his or her clients in some way as a show of good faith.

Tony Salamone, owner of Chicago-based Tony Salamone Travel Company, doesn't feel agents should be blamed for unforeseen airport troubles, but notes that there are tips they can offer to clients to make an emergency less aggravating.

"The bottom line is be aware and explain to the client when there is joint ticketing/plating on a different carrier," he says. "I had a client flying Montreal-Hilo-PHL for one night on the return and back to Montreal. The ticket was plated on United and she flew UA, AQ, UA, US. The stickler was the last segment when she became stuck in PHL. US said they couldn't do anything [immediately] because it was plated on UA. Although the flights were sold out, I was able to claim one of two last seats early the next morning and she was on her way."

Strategies for Coping

With that said, Salamone also urges passengers to "make sure they have a contact number of either the office or the airline in their mobile phone and encourage them to communicate ASAP. Having status on an airline really helps, so I encourage and coach clients to build equity with one carrier, which is priceless in situations like these.

"The agent shouldn't be liable for unfortunate service or negative experience," Salamone continues. "My thoughts would be to understand the bill of rights of the carriers we support; however, there is so much fine print with every supplier we work with that knowing each bill of rights will take a lot of time, plus ensuring we are up to date with revisions."

"I always like to hear these situations, and, when applicable, the client should forward a customer service letter. In the back of our minds we need to take notes on these situations and share them when appropriate."

Hawks recommends agents print out the guidelines off the airlines' web sites and include it in the ticket confirmation.

"It's a great piece of advice, because if a client has an argument about something and the airline disagrees with the consumer and is obviously wrong, the customer can say, 'Oh, really, well that's not what it says here in your guidelines,' and pull out the piece of paper with the passengers' rights on it," Hawks says.

Looking to the Future

But will it ever get any easier for airline customers? Will there be a day when a JetBlue incident becomes completely avoidable? In a word: no.

"Whether things will get better on the airlines really depends on whether Congress has the guts to regulate the way the airline industry perceives its clients, which right now, is absolutely horrible," says Susan Tanzman, owner of Martin's Travel & Tours in Los Angeles.

Ruden, however, says it shouldn't be up to Congress to smooth out the problems that occur at airports but rather the burden should be placed on the D.O.T. Ruden instead thinks a solution to alleviate these problems should be met between the D.O.T., airline representatives and travel professionals, including agents and organizations like ASTA.

"No one can find the perfect solution, but there are things that can be done to make it easier, to make these problems manageable," Ruden says. "What we [ASTA] would bring to a discussion like this is the consumer's point of view, the point of view from someone who paid for transportation to somewhere and should expect to get there in a reasonable time with as little hassle as possible. We would suggest that communication be improved. If there is a problem at the airport, the passengers should be the first to know. If there is a delay, they should know how long it will be and when they can leave. And if that information changes, they should know right away. They shouldn't be lied to and they should be updated constantly."

The Senate has proposed a passengers' rights bill that would allow passengers to get off an aircraft after three hours on the ground, but it is controversial. "The proposed legislation will force airlines to inconvenience most passengers to satisfy the demand of just one who wishes to deplane," the Air Transport Association (ATA) said in a statement. "Congress cannot legislate good weather or the best way to respond to bad weather because every situation is unique. Airlines need the flexibility to deal with each delay situation individually to help ensure that the fewest people possible are inconvenienced."

"We're not going to prevent airport problems from happening, but we could make things easier," Ruden says. "Once we've done that, everyone wins."


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