Travel advisors make
recommendations every day, and most of the time those recommendations lead to
exactly what everyone hoped for: a great trip. But when a traveler is seriously
injured during a service the advisor arranged, the legal question can get complicated
very quickly.
The fact that an
advisor recommended or booked the service does not automatically make the
advisor responsible for what happened. Travel advisors are often
intermediaries, arranging services that are ultimately provided by independent
hotels, tour operators, transportation companies, excursion providers and other
suppliers. When something goes wrong, the more important questions are who
actually controlled the service, what each party was responsible for and
whether the advisor itself did anything negligent.
Consider a common
scenario: an advisor books a client on a guided walking safari. During the
excursion, a hippo emerges from the water and charges, seriously injuring the
client. The client sues the agency that arranged the trip. The agency's terms
and conditions identify its role as the booking agent, not the safari operator.
The scenario raises an important distinction for every advisor: you can be sued
without ultimately being responsible.
Booking the service is not the
same as providing it. Clients rely on advisors for experience, judgment and
recommendations. They want to know which resort to choose, which operator has a
good reputation and which excursions are worth their time. That guidance is
part of the value an advisor provides, but a recommendation doesn't guarantee
nothing will go wrong.
The advisor may arrange
the hotel, airport transfer, guided tour and excursions, but each of those
services is controlled and delivered by someone else. The hotel controls its
property. The transportation company controls its vehicles and drivers. The excursion
operator controls how it conducts its activities. The advisor does not suddenly
become responsible for those operations simply because the agency made the
reservation.
That does not mean an
advisor can never face liability. The advisor’s own conduct may matter if, for
example, it materially misrepresented a service, failed to communicate
important information it actually knew, booked something incorrectly or made
assurances that went beyond what the supplier represented. Those situations
raise questions about the advisor’s own professional services. That’s different
from holding the advisor responsible for an independent supplier’s conduct.
Travelers also make
decisions once a trip begins. They choose whether to participate in activities,
follow instructions and accept risks that may be inherent in certain
experiences. Those facts can matter too.
Your terms and conditions
define the relationship. This is one reason well-drafted terms and conditions
matter. They do more than establish cancellation policies and payment
requirements. They also help define the relationship between the agency, the
traveler and the independent companies actually providing the travel services.
For an agency acting as
a booking agent or intermediary, the agreement should clearly reflect that
role. The agency arranges services on the traveler's behalf; it does not
operate the hotel, excursion, cruise, transfer or tour. The suppliers
delivering those services remain responsible for their own operations and
conduct.
Terms and conditions
are not a magic shield against litigation, nor do they determine the outcome of
every claim. The facts, the parties’ actual conduct and applicable law still
matter. But there is a significant difference between trying to explain your
role after something has happened and having an agreement that defined that
relationship before the trip began.
Good records matter for
the same reason. Advisors do not need to turn every recommendation into a legal
exercise, but they should maintain reasonable documentation of important
communications, material information provided to the client, and the services
actually arranged. If an allegation is made later, those records can help
establish what the advisor did and did not do.
Do not assume errors and
omissions insurance (E&O) covers everything. Insurance is another area
where advisors should avoid assumptions. E&O is professional liability
coverage, and advisors should not assume it automatically covers a traveler’s bodily
injury. Depending on the policy, bodily injury may be excluded or handled under
a different type of liability coverage.
The key is to understand what your
E&O covers, what it doesn't, and whether your business has other coverage
that may respond if a traveler is injured. Tour operators may have additional
considerations because their role can extend beyond arranging someone else's
services to packaging, organizing or operating parts of the trip.
Travel advisors should be able to
recommend travel confidently. That is part of the reason clients hire them. The
goal is not to become afraid of making recommendations, but to understand the
boundaries of the role.
A client can get hurt at a hotel you
recommended, on a safari you booked or during an excursion you arranged. Your
agency may even be named in the lawsuit that follows. Neither fact, standing
alone, answers the question of responsibility.
The better question is the one every
advisor should understand before anything goes wrong: What was my role, what
was the supplier’s role, and who was actually responsible for what happened?
Disclaimer:
This commentary is provided for your information only—it is not
legal advice, it is not a substitute for legal advice, and it does not create
attorney-client privilege. If you seek legal advice, please consult with a
qualified attorney. You are responsible for using the information
appropriately, and neither Travel Industry Solutions nor Travel Pulse is
responsible for how you use it.
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