Mark Pestronk
Q: The FAA's recent order cutting 10% of capacity at the top 40 U.S. airports brings up several questions about our agency's legal duties to clients. First, do we have a duty to warn clients that their flights might be canceled? Does it make any difference if the client booked using our online booking tool and has never directly communicated with us?
A: A travel advisor's legal duty is limited to disclosing reasonably obtainable, relevant risks about the destination that a reasonably informed consumer would not necessarily know. Here, the risk is something that every reasonably informed consumer already knows about, so you have no duty to warn in this situation.
If the client booked using your online booking tool, it is safe to assume that the client is a reasonably informed consumer, so the same advice would apply; you have no legal duty to warn the client.
If the client is not a reasonably informed consumer, such as an elderly person with no regular access to news, my advice would be the opposite: When you advise the person about flights or sell a ticket, you probably do have a legal duty to inform about the possibility of flight cancellations.
Q: If we do notify all clients that their flights might be canceled, and one client's flight is canceled but we don't inform the client about the cancellation, and the client misses a cruise, tour or an important business meeting, could the client hold us liable for the loss?
A: Merely advising everyone about the possibility of cancellations does not create a legal duty to track every client's flight and follow up with notifying the client. So you could not be held liable for a client's financial loss.
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Q: What if we specifically promised to keep particular clients, such as a family with young children, informed about cancellation of their flight and we neglect to do so, and the flight is canceled, resulting in major inconvenience and stress for the family?
A: If you made that promise as part of the sale of the tickets, then you have a contract with the client, and you breach the contract by failing to inform them. So you could be held liable for the client's financial loss but not for damages for inconvenience and stress suffered by the family because a plaintiff cannot recover for nonfinancial losses in a breach-of-contract case.
Even in cases where you have no liability, clients might blame you and find an attorney to sue. The attorney will probably sue every company involved, even if the case against you has no merit. You are especially likely to be sued if your agency is the only domestic entity in that chain, such as when the canceling airline is a foreign carrier.
Therefore, if you don't do so already, I strongly recommend that you get all future clients to agree to a disclaimer such as the one at www.pestronk.com/resources. Using disclaimers will deter potential lawsuits and will help you win actual lawsuits; but remember that the sample form does not constitute legal advice.