Like Travel, Travel Litigation is Broadening

A client of mine wanted to take his wife on a special vacation.

After examining several colorful brochures from reputable tour operators, they decided on a one-week cruise to the Grecian islands. But when they arrived in Athens, much to their chagrin the large yacht that had been promised as part of the tour package was gone.

Instead, they were left with a boat that look like it had just docked with Gilligan and Mary Ann. They began thinking of who they could and should sue for this injustice.

And apparently they're not alone. Consumer travel litigation appears to be a burgeoning field. But the sale and marketing of travel services is a complex and integrated business. The question is not only whom do you sue but on what grounds.

Air and ground carriers, travel agents, tour operators and travel promoters are just some of the players in the vacation game. And the liability arising from failure of performance of these entities is rapidly expanding.

Problems for travel suppliers such as air carriers, cruise ships, railroads, bus companies, rental car companies and hotels include physical injuries; delays; cancellations; overbookings; lost, damaged or stolen baggage; misrepresentations regarding departure and arrival times; misinformation; the nature of the accommodations, food or itineraries; physical discomforts and contraction of diseases.

For example, an air carrier promises timely transportation; but, instead, the flight is delayed 30 hours, forcing travelers to sleep on airport floors. A limousine operator fails to show up at the airport and the traveler has to hitchhike home. A hotel "on the beach" is, instead, five miles inland and accessible only by traversing a narrow jungle path. A wholesaler promises tickets to the Super Bowl as part of a three-day package tour but fails to deliver the tickets, forcing the travelers to watch the game on television from their motel room.

Almost everyone has a horror story. These are just some that made it to court. Travel agents, promoters, booking agents, tour planners and operators may be liable for the same problems in addition to failure to investigate and carefully select suppliers, failure to warn of hazardous conditions, failure to deliver promised travel services, breach of implied and express warranties and failure to guarantee the faithful performance of others. Often the categories overlap. To determine the grounds for liability, it must first be determined the manner in which the travel services were created, marketed and delivered to the aggrieved traveler.

Take the recent Illinois case in which a tourist sued a tour operator for injuries suffered when he was hit in the head by a piece of carry-on luggage owned by another passenger.

In Jacob v. Greve, 251 Ill. App. 3d 529, 622 N.E. 2d 91 (2d Dist. 1993), the appellate court upheld the trial court's finding that the private tour company had no duty to assist with or supervise the loading and unloading of carry-on luggage. The issue of such a lack of duty was based on the contract between the plaintiff and the tour operator, it's promotional materials and representations made by the tour operator's employees.

Courts generally are loathe - in the absence of express warranties of personal safety - to hold tour operators responsible for the tortious acts of others which result in personal injuries. But the most rapidly expending area of liability is in the marketing of travel services, often based on vicarious liability principles or contract law.

More and more third parties, such as travel agents, are finding themselves liable, not only for their own incompetence, but also for the defaults of carriers, hotels and even tour operators. To avoid this shift in liability, it is best to fully disclose the true identity of the principal to the traveler.

Nonetheless, with insolvent, distant and unavailable travel suppliers, a disgruntled traveler is more apt to turn to the local travel agent, tour operator or travel promotor who should have known better and who often influenced the traveler in a face-to-face transaction. This reasoning is akin to strict liability, although that term is seldom used in these types of cases.

Jurors, who value their two or three weeks' vacation a year, are demonstrating increased sensitivity to the plight of injured travelers. Courts, though, have been willing to find liability only where travel entities fail to deliver the services contracted for and demonstrate certain irresponsible behavior.

As for my client, in the case of the Grecian trip, we managed to negotiate a more reasonable price out of court.

As for his wife, she opened her own travel agency.