It is important that travel agents understand how their choice of “business style” may affect their legal position. The allusion in the title of this article is, of course, to Shakespeare’s famous line from "Romeo and Juliet," but it does apply in a way to the contemporary role of travel agents.
Richard D’Ambrosio’s recent article in Travel Market Report addressed the various ways modern travel agents have chosen to describe themselves. (See: Travel Agent? Travel Designer? Travel Advisor? What Should I Call Myself?). Not surprisingly, agents have varied opinions about the best description for what they do. That is how it should be, and nothing I say here should be read to suggest otherwise.
That said, the choice of “business style” may affect the agency’s protection from liability for supplier non-performance that arises from the principal-agency relationship. You know from prior articles on this subject that, in order to take advantage of that protection, the retailer must make clear to the consumer that he or she is acting as an agent for an identified principal. (See Are You an Agent for A Supplier or Fiduciary for the Client?). You also know that the failure of the agency itself to fulfill its legal duties to the consumer is not protected by the principal-agency relationship.
What, then, is the connection between the business description and legal protection? It is that the choice of descriptor, especially if it is a new one not familiar to consumers, may reinforce the argument that the agency is not an “agent at law,” but is a principal that is liable for every failure of a supplier to perform. Terms that imply a retail service other than describing, advising about or selling a supplier’s travel services may be used by disappointed consumers, and their attorneys, to argue that the agency has removed itself from the protection of the principal-agent concept by becoming “something else.”
I repeat now that this observation is not intended to argue that travel agents should continue to call themselves “travel agents” and avoid more exotic, interesting or meaningful descriptors of their role. I am, in fact, an advocate for using modern terms to describe what agents do.
Disclosure is key to protect yourself
The critical point is to always disclose the fact that the firm or individual agent is acting in every case as an “agent of a disclosed principal” and is not responsible for the failure of the supplier to perform.
As we are reminded by the recent spate of hurricanes, this disclosure should also contain a force majeure clause that makes explicit that the agency is not responsible for its or a supplier’s failure to perform if external circumstances beyond the agency’s control make performance impossible or imprudent. You should consult your attorney about the details of these disclosures and the methods of delivering them to customers. Those factors may be affected by the particular laws of your home state.
If I were a travel agent/advisor/designer/consultant/specialist, I would also want to include a statement that the agency provides its services based on its experience, expertise and information available to it, but is not a guarantor of the traveler’s experience and that the decision to travel or to travel to a particular place is always the decision of the consumer.
Clearly, care must be exercised in drafting such statements. You don’t want to alarm the consumer with overbearing legalese, but at the same time, you are entitled to take the protection the law allows for properly and fully disclosing your true role. Again, consult your attorney regarding how to word these statements and how to present them to the consumer.