Do Travel Advisors Have a Duty to Warn Regarding Aircraft Safety?

The problems keep on coming for Boeing. After another incident this week, that resulted in two deaths in Atlanta, Boeing is now dealing with issues with a new aircraft, the 777x.

Initially reported in Air Current, reports on the 777x issues include sources such as ubiquitous as CNN. Cracks were discovered in engine mounts during test flights. This raises again the question of the obligation of travel advisors to inform clients about issues related to aircraft in service on their bookings.

Travel Market Report published on this subject back in 2019 and 2020 regarding Boeing’s issues with the 737 MAX aircraft and its reintroduction to operations and on numerous other occasions involving other issues with Boeing aircraft.

While the 777X is not in active commercial service yet, the publicity may stimulate concerns among some travelers who may expect their advisors to warn them when their flights are to be performed by aircraft that have had issues either during testing or after service has started.

When I addressed this in 2019, I observed that:

No travel advisor is competent enough 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.

Because the U.S. Federal Aviation Administration was withholding a grounding order while other countries were acting to ground the MAX, I suggested that,

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.

And, as always, “It’s a good strategy to have an alternative travel plan in mind when discussing the issue with the consumer.”

I did not and do not believe it likely that a travel advisor will be held liable for wrongful death of a passenger on an aircraft that the advisor didn’t operate. Out of an abundance of caution, however, I suggested that travel advisors should take the initiative in communicating with clients, including those who indicated no awareness of the problems with the aircraft.

My reasoning was that an advisor “could be exposed to liability for failure to assure the client was fully informed when making the decision to travel, or not, on the 737 MAX. 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.”

When the FAA cleared the 737 MAX for return to service, I noted that:

the central idea is that while a travel advisor is an “agent” for the travel supplier “principal,” and thus generally not liable for the principal’s failure to perform its duties, the courts have also adopted the concept that the advisor is a “fiduciary” in relation to the consumer. That status is the highest form of obligation short of absolute liability and requires the advisor to act in the consumer’s best interest even if it conflicts with the advisor’s interests. One of the most important practical effects of these principles is that a travel advisor must disclose to the consumer any information, including negative information, that the consumer might want to know before making commitments.

The airlines’ handling of the 737MAX return raised some unique issues at the time and, as most industry players know, the issues with Boeing have continued. Ultimately, the decision whether to fly on a flight involving a Boeing aircraft belongs to the traveler.

I reiterate my view that a travel advisor should not make statements about any aircraft such as “it’s perfectly safe.” It likely is, but declarations regarding safety matters are well outside the advisor’s range of expertise. It is fine to say, “the FAA has determined that the X aircraft is safe, and we rely on it, the expert government agency, to make that call.”

I repeat that I am not saying that safety issues remain with any Boeing or other aircraft. Rather, advisors need to recognize that some consumers will be concerned about the plane and advise accordingly.

The eventual approval of the 777X, which I believe will occur at some point, does not change the situation. The hard case, of course, is one in which the advisor knows the aircraft type assigned to the flight, tells the client and she expresses concerns. In such cases, while the risk is extremely small that an incident could occur, consumers, especially those with limited flying experience, can easily mistake turbulence, for example, as reflecting a problem with the plane. The issue is the same: avoid assurances that have no basis in reality, and if the client is seriously concerned, try to book on another aircraft. If you can’t do that, I say again, the traveler must make his own decision. Make a note of the conversation and keep it.