By now everyone in the business is aware of the issues surrounding the two recent crashes of the Boeing 737 MAX aircraft. The immediate problem of how professional advisors should handle the safety concerns of clients regarding flights on this aircraft has been resolved by a presidential order grounding the aircraft in the United States and a grounding earlier in the day by Canada. Nevertheless, this situation serves as a useful, though tragic, vehicle for reminding advisors of their responsibilities related to the safety of aircraft.
The first principle is that no travel advisor is competent to assess the safety of aircraft in passenger service here or abroad. It follows that no travel advisor should express an opinion to a consumer that implies otherwise. Advisors should scrupulously avoid any conduct that could lead a consumer to think: “my advisor told me it was safe.”
The related principle then is that like everyone else, travel advisors must rely on the government for assessments regarding the safety question. In the past few days this reliance has created a difficult situation in that most of the world’s aviation authorities were grounding the 737 MAX, while the U.S. Federal Aviation Administration continued to maintain that grounding was unjustified.
The best way to handle a fluid situation like that is to stick to facts. Professional advisors should report what they know to clients who inquire. In the end, the decision to fly on the 737 MAX is one the individual traveler must make after being informed of the relevant facts. If, as in this case, a choice must be made between acting on the implicit advice of the grounding nations and the explicit advice of the U.S. safety authorities, the traveler alone must make the call. The best action you can take is to be clear in reporting the facts and supportive of the client’s choice. It’s a good strategy to have an alternative travel plan in mind when discussing the issue with the consumer.
You are now likely thinking, “that’s all fine, but what if the traveler doesn’t inquire but I am aware that the flight in question is on the 737 MAX? Do I have an obligation to affirmatively warn the client?”
My view is that the advisor should explain the situation to the traveler. Maybe start with a question: “Are you aware of the grounding of the 737 MAX in many countries and does it concern you if you were to be booked on the aircraft?” If the answers are “yes” and “no” to those questions, you want to make a notation in the record and proceed with the booking. If the answers are either “yes” and “yes” or “no” and “yes.,” then it would be wise for the advisor to provide the factual explanation as outlined above and then carry out the client’s wishes, again notating the exchange in the record.
Those notations are very important as contemporaneous notes of the conversation, which are often given much credence in later disputes about what happened. They would be helpful even if the booked flight were on another type of aircraft. You are likely aware that the exigencies of scheduling sometimes lead the airline to change the aircraft at the last minute from the type originally scheduled.
No advisor will be held liable for wrongful death of a passenger on an aircraft that the advisor didn’t operate. You could, however, be exposed to liability for failure to assure the client was fully informed when making the decision to travel, or not, on the 737 MAZ. Such failure might be seen by courts as a breach of fiduciary duty the advisor owes to each client. You want to avoid any conduct that could be construed as placing your interest in closing the sale ahead of the client’s interest in her personal safety.
Happily, you don’t have to face this question now that the United States and Canada have joined the rest of the world in grounding the 737 MAX. On the other hand, it is still possible that the U.S. might remove the grounding order while other countries maintain it. Hopefully, the above outline will help you deal with that or any similar situation in the future.