The big breaking news in travel is that the Federal Aviation Administration, charged with managing the safety certification of aircraft in passenger service, has approved the return to flying of the Boeing 737 MAX.
This action concludes a 20-month investigation of the safety issues arising from two total-loss crashes. The background is well set out in the article cited above, so I won’t repeat it here.
Neither will I venture an opinion about the safety of the aircraft. As with all such matters, the industry relies on the federal government for careful and cautious review and approval of airworthiness, so that travelers and their travel advisors can depend upon the safety of the aircraft in which they fly.
That said, the saga of the 737 MAX review has sparked concern among travelers about whether it is safe to fly on this aircraft. Indeed, the news of the FAA’s approval has been met by a letter to the major airlines that fly the aircraft (Alaska, American, Southwest, and United) from five consumer groups: Business Travel Coalition, Consumer Action, Consumer Federation of America, National Consumers League, and Travel Fairness Now. The letter proposes a six-point 737 MAX 8/9 Passenger Protection Plan:
1. Allow passengers concerned about flying on a 737 MAX 8 and 9 to change to flights operated with other aircraft without financial penalties, all the way up to departure time.
2. If no other aircraft is operated on a passenger’s itinerary, offer consumers the option of either a full refund or the ability to apply the full value of the ticket to a ticket to a different destination served by aircraft other than a 737 MAX, without a change fee, administrative fee or other financial penalty.
3. If a consumer prefers not traveling at all to flying on a 737 MAX 8 or 9, provide a full refund on a timely basis.
4. Update your “Contract of Carriage” to reflect these changes and make them binding.
5. Provide consumers and travel advisors with easily viewable advance information on the type of aircraft that will serve a flight so that consumers have can consider the matter before making a decision to purchase an airline ticket on a specific flight.
6. When an aircraft substitution is made from a plane other than a 737 MAX to a 737 MAX, alert passengers as quickly as possible.
There can be little doubt that these proposals will be controversial with the airlines. Whether or not they are adopted in whole or part, the return of the 737 MAX presents travel advisors with a related, but hopefully familiar, obligation arising from the advisor’s role as a fiduciary for the traveler and the related “duty of care” principle for corporate travel. We have discussed these principles in various settings in prior articles.
To refresh your recall, 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 question regarding the return of the 737 MAX is: under what circumstances must the advisor inform the traveler about the aircraft type that is expected to perform flights under consideration? In most past cases, this has likely not been a discussion point. Most consumers don’t know one aircraft type from another and in most cases probably don’t care. The unique history of the 737 MAX and the controversies around Boeing’s and the FAA’s handling of the issues likely changes the situation for many travelers, as suggested by the letter from the consumer organizations.
The story on this has yet to be written, of course, because the airlines’ practices regarding travel on the 737 MAX have not been publicly released. However, there have been reports that some carriers are taking pains to conceal the fact that they are flying the MAX. If so, that creates a problematic situation for the travel advisor.
Until it is clear how airlines will identify flights operated with the MAX, travel advisors should tell consumers looking to travel on any route on which the aircraft might operate that it is possible they could be booked on a 737 MAX. If, as I hope, the airlines do not conceal the aircraft type in reservation systems, the advisor’s obligation, out of an abundance of caution and simple prudence, is to inform the traveler that the MAX is listed for their flight.
The decision whether to fly then falls squarely on the traveler. The travel advisor should not make statements 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 MAX is safe, and we rely on it, the expert government agency, to make that call.”
It seems likely that the issues surrounding the 737 MAX will “pass into history” at some point, when, for example, the plane has operated many flights without further incident. Aviation afficionados with sufficiently long memories will recall the troublesome early days of the B-727.
For now, however, the 737 MAX controversy is with us and the travel advisor should be careful about counseling travelers regarding it. I repeat that I am not saying that safety issues remain with the aircraft. Rather, advisors need to recognize that some consumers will be concerned about the plane and advise accordingly. In due time this too shall pass.