Some More Issues Worth Considering as Travel Resumes
(The following article by Rodney E. Gould, Esq. appeared in the May 11, 2021 edition of Travel Market Report, a leading industry publication.)
Now that the pandemic finally seems to be getting under control and travelers will resume traveling, it may be time to focus on your terms and conditions and responsibility clause. The objective, of course, is to help ensure that you are protected to the maximum extent from lawsuits which stem from a repeat of epidemics, governmental closings and travel restrictions.
Over the last months, we have been recommending to our clients a couple of relatively easy steps. These include:
1. Use of a ”Supplemental COVID Release.” This release should detail the parade of horrors which the traveling public may encounter (and for which members of the travel industry do not want to be held responsible). While by no means an exhaustive list, reference to the possibility of a vaccination requirement, the requirement of negative testing, the possibility of unanticipated quarantining, closures of buildings and attractions, etc. are all important. We have frequently been asked whether clients should incorporate the COVID release into the basic release and, as a result, not worry about the use of a supplemental release. There is no clearly right or wrong answer, but there are two distinct advantages in using a supplemental COVID release. The first is that it focuses on COVID and gives information which you absolutely want the client to read. This is much easier with a supplemental release than simply incorporating the material into a general release. The second reason is that by mentioning COVID in the primary release, it heightens its importance and arguably reduces the importance of other diseases such as SARS, Bird flu, hantavirus, ebola and, of course, whatever novel disease next year will bring.
2. Modification of refund and/or cancellation clauses. As we all know, many travel entities could not run trips because of COVID, governmental closures, etc. Most responsibility clauses did not envision giving the travel provider (tour operator) the option of postponing a trip without a right of refund. This problem became particularly acute because a number of foreign countries passed legislation which enabled travel arrangers in those countries (such as cruise lines and hotels) not to issue refunds, but rather, simply to extend credits.
As such, a crystal-clear statement of what happens in the event of a force majeure event or an act of government which requires postponement / cancellation of a tour is necessary. For example, under what circumstances are refunds to be given (return of moneys paid to suppliers, retention of administrative or booking fees, etc.).
A related issue is whether, and to what extent, Attorneys General could take a dim view of refunds of less than 100%. While thus far this has appeared to be an issue only in a couple of states, the potential for pushback from state authorities is real.
3. Add a “no class action” clause. Class actions are brought by an individual on behalf of all members of the class similarly situated. Historically, they have not been a major factor in travel litigation because most litigation involves an injured or deceased individual and not hundreds of similarly situated persons. As a result of COVID, however, class actions have been filed on behalf of all individuals who did not get their trip and wanted refunds. Consequently, since the United States Supreme Court has held such a clause enforceable, we have been adding a “no class action” clause to the normal choice of law/forum/arbitration provision in the contract.
Even apart from these specific issues, we recommend, as we always have, that you have your attorney review your basic terms and conditions periodically. New court decisions often require new wording.
(Attorney Rodney E. Gould, a partner with the Boston-based law firm of Smith Duggan Buell & Rufo LLP, is an international authority on travel law. He can be reached at firstname.lastname@example.org.)