Let’s start with a disclaimer. I’m not an attorney. I don’t play one on TV. And I did not stay at a Holiday Inn Express last night. With that said, I want to talk about liability; our liability. With the recent tragedy of a flightseeing plane crashing in Alaska with Holland America passengers onboard, a lot of questions are being asked about travel agent liability in situations like this.
Whether a travel professional can be held liable (i.e. because they specifically suggested the excursion and/or booked it for the clients), is a decision for the courts to make. However, there are business practices that you can put into place to help you mitigate your liability.
First, seek the advice of an attorney, one that is familiar with liability and lawsuits surrounding liability. You should have an attorney review and offer suggested revisions for your terms and conditions, as well as any disclaimers or waivers that you have clients sign. Ask questions, and get educated on how waivers/disclaimers can be tossed out in court. This does not mean you should not bother getting them signed, but fully understand that they are not sufficient to prevent a lawsuit, nor by themselves will they save you from being found liable in a lawsuit.
Here are a couple of questions you would definitely want to ask an attorney: One, if I do the online check-in for a cruise client, and accept the cruise line’s terms and conditions on the client’s behalf, what liability am I exposing myself to? This is especially important when dealing with first time cruisers (but don’t assume you’re scott-free with repeat cruisers). First time cruisers aren’t familiar with the cruise contract, and the fact that the cruise line basically absolve themselves from EVERYTHING in those contracts. If you accept on their behalf and you have nothing in writing showing that they received and accepted the cruise contract terms, you can be open to liability if anything goes wrong on their cruise.
Another question to ask an attorney is what liability you may open yourself up to when you suggest a specific excursion, or a specific excursion provider (many travel professionals sell third party excursions in order to make commission). If you are named in a lawsuit, the opposing attorney may claim that you should have done your due diligence and known how many times the flightseeing company has had accidents in the past, and if they were safe and reliable. These are important questions to ask an attorney BEFORE you are facing a possible lawsuit, in order to avoid putting yourself in unnecessary situations.
Second, seek the advice of an insurance agent. Your local insurance agent may not be sufficient. You need an agent that is familiar with E&O (errors and omissions) insurance, in addition to umbrella liability policies for businesses. Even when home based, a standard home owner’s insurance policy isn’t going to suffice. You can start with your local agent, and ask what they know and what they can offer. You can also reach out to our industry providers of E&O insurance such as the Berkeley Group or the Berkshire Hathaway Group.
Again, ask a lot of questions and get educated, because not all policies are created equal. Ask “what if” scenario type questions to get a handle on what may or may not be covered. Just like the travel insurance we sell to clients, not everything is covered. Find out and understand what situations they’ll cover, what riders (add-ons) they offer that you can purchase for additional coverage, and to what limits are you covered (i.e. how much in attorney’s fees will they cover). Also, it is very important to get the insurance companies policy on how you should respond if you are contacted by an attorney about a possible lawsuit. More than likely the insurance company will advise you not to say anything, not even something as innocuous as “I’m sorry” (attorneys interpret that as an admission of guilt on your part). And lastly, don’t be surprised if the insurance company settles out of court, even if you’re not liable. Settling is often cheaper than fighting “the good fight” in court, and the attorneys that sue know this.
The real issue for travel professionals is this: even if you’re not found liable eventually, you can still be named in a lawsuit and incur significant court costs defending yourself. With E&O/liability insurance, you are on your own covering any attorney fees that may be required in order to defend yourself; and if yours is a small agency, those attorney fees could put you out of business, even when you’re eventually found not liable.
Do yourself a favor, and plan ahead. Don’t ignore the possibility of something like an excursion gone wrong putting you out of business.
Susan Schaefer is the owner of Ships ‘N’ Trips Travel (www.shipsntripstravel.com) located in Tennessee, and specializes in leisure travel with a focus on group travel and charity fundraisers. Through their division Kick Butt Vacations (www.kickbuttvacations.com), she focuses on travel for 18 to 23-year-olds. Susan can be reached by email at firstname.lastname@example.org or by phone at (888) 221-1209.