Mark Pestronk
Q: If a cruise line or tour operator sends my company a copy of its conditions and conditions and we don’t ahead them to our shopper, is the shopper even so sure by the conditions and problems? If so, then I never recognize the legislation simply because I thought that, to be certain by a contract, you experienced to have experienced an chance to study it and acknowledge or reject it. What if we are acting as our have tour operator (as an alternative of just a vacation agent) by marketing a package that we put alongside one another? In that case, is the customer bound by the phrases and circumstances of all the suppliers we use?
A: In accordance to court docket precedents, acceptance of terms and problems by your company binds your consumer just as however the client experienced gained and recognized them. It does not make any difference irrespective of whether you forward them to your client or whether or not your consumer at any time sees them.
Under the regulation of company, you are the client’s agent in the sale of a cruise or tour, and you can consequently take contract terms on your client’s behalf. You do so by forwarding the client’s deposit, obtaining the supplier’s conditions and circumstances and proceeding with the transaction.
In a federal circumstance in Manhattan made a decision last calendar year, Jones v. Ponant U.S. LLC, the vital situation in the case was no matter if the shopper recognized Ponant’s passenger agreement clause stating that all litigation had to be introduced in France. These clauses are regarded as “discussion board collection clauses.” The decide ruled that the purchaser was considered to have accepted the cruise line’s passenger agreement when the cruise line sent the agreement to the journey agency.
The courtroom said that “a journey agent is considered to be the agent of the passenger on whose behalf he functions, and the passenger is accordingly charged with constructive know-how of details in the travel agent’s possession. … Courts hence routinely deem forum-assortment clauses fairly communicated to plaintiffs exactly where the provider fairly communicated its existence.”
For journey advisors, the crucial takeaway is that you have a authorized responsibility to make absolutely sure that consumers get a copy of the supplier’s phrases and circumstances, or at minimum a url to them. If you fail to do so, clients will be certain in any case and then may possibly blame you for shedding their legal rights.
For example, if a cruise line’s passenger deal states that it is not responsible for theft of jewellery in baggage transferred onto the ship by the line’s employees and your consumer does not get a duplicate of the deal and the client’s jewellery is stolen, the client could efficiently sue your company for negligently failing to ahead the line’s deal. It won’t matter no matter whether the shopper would at any time have examine the agreement.
If your agency functions in the capacity of tour operator, it is no longer the client’s agent but alternatively a supplier in its personal right, so it simply cannot bind the consumer to any conditions and disorders other than your personal.