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It pays to double-check
availability!
This interview deals with booking procedures for travel
agents.
Before making a booking, travel agents are well advised to
double-check the availability of tours, travel services and
the standard of the accommodation. In no circumstances can
agents safely rely on a brochure (printed or on a website)
as their sole source of information on a tour, a cruise, a
resort or a hotel. They should also hold confirmed bookings.
Otherwise … if a client arrives to find that an advertised
service isn’t available, or a hotel isn’t open or falls
short of the advertised standard, or no room has been
booked, then the agent will be responsible to compensate the
client, either soley, or jointly with the supplier.
Availability
“Just because the brochure says a ski resort is open on a
certain date, doesn’t mean that it will be,” says specialist
tourism lawyer Anthony Cordato, author of the book
“Australian Travel & Tourism Law”.
“A travel agent found this out to its cost in a case which
ended up before the NSW Consumer, Trader and Tenancy
Tribunal in 2003.”
That case, outlined in “Australian Travel & Tourism Law”,
concerned two travellers who, before booking a holiday in
New Zealand, discussed with a representative from the travel
agency, their requirement for two days skiing to be included
in their two week holiday. They were given a brochure
stating that the ski season at Mt Hutt was from “late May to
October”. The agent relied entirely on the brochure, and did
not check skiing availability with the resort for a date in
late May. When the two travellers arrived, they found that
no skiing was available, as the ski season had not opened.
The Tribunal awarded $500 for the loss of two days skiing in
New Zealand, payable by the agent, because the agent had
misled the travellers on the booking. That amount was
awarded, rather than the full cost of the holiday, as the
holiday was not a total failure because the travelling and
sightseeing components were available as booked for the rest
of the holiday.
“It’s a difficult one for agents to get around,” Cordato
concedes. “I don’t think that agents are forced to check
every fact in the tour itinerary in the brochure. But when a
client makes a point of wanting some feature in the
brochure, the agent can’t rely on the brochure alone when
making the booking – they have to take one further step and
make an inquiry somehow to confirm the information, to
protect themselves. It might entail checking by email or
phone.”
Standard
While checking availability is important, checking the
standard of accommodation is also important when making the
booking. The brochure might feature photographs with luxury
fit-outs in hotels. The reality could be quite different.
The booked accommodation might be less luxurious than
advertised – being of a three-star standard, instead of the
advertised four-star property, for instance.
“Checking the standard of accommodation is often difficult
to do. They can’t visit all the properties to check them
out, emailing or telephoning the accommodation won’t give a
different impression, and it is often difficult to
independently verify standards.”
The law does recognise that ‘reasonable reliance on
information provided’ is an answer to a claim against an
agent for misleading standard of accommodation (and brochure
information generally).
Confirmed Bookings
Another case, heard by the NSW Consumer, Trader and Tenancy
Tribunal in 2004, illustrates how the law looks at
compensation in a case where confirmed accommodation was not
available.
A married couple booked through their travel agent a package
holiday at the Angasana Resort in the Maldives, as
advertised in a tour operator’s brochure. The booking
included accommodation in a beachfront villa for six nights.
Upon arrival, they were told that the accommodation had not
in fact been confirmed, and they were placed in alternative
accommodation in a so-called garden villa, as an interim
measure for three nights before being transferred to the
beachfront villa for the last three nights of their stay.
While they were there, the couple accepted in writing an
offer of compensation of $550 from the resort, representing
what the resort stated to be the difference in price between
the garden villa accommodation for the first three nights
and the beachfront villa for the last three nights.
When they arrived home, the couple had second thoughts and
did not bank the cheque. Instead, they claimed $4,000 as
compensation for spending three nights in the garden villa
out of a price of $9,060 (which included airfares and
accommodation).
The tour operator defended the claim on two bases:
1. The $550 had been accepted in satisfaction of the claim.
The NSW Consumer, Trader and Tenancy Tribunal rejected this
defence, stating that the $550 was accepted under duress, as
the couple believed that if they did not accept that money,
they would have had to stay in the garden villa for the
whole of the holiday.
2. The $550 paid was adequate compensation for the
inconvenience, given that they were still able to use all
the facilities of the resort, and enjoy their holiday
despite the difference in the accommodation.
In considering this defence, the Tribunal found that the
type of accommodation booked, which was described as “being
private, luxurious and beach frontage”, was critical. The
garden villa lacked the seclusion, privacy and direct beach
access of the beachfront villas. The Tribunal found that the
garden villas were not offered as tourist accommodation (it
seems the garden villas were employee accommodation) and
were not considered by the Tribunal to be acceptable for
international tourists.
“Australian Travel & Tourism Law” relates that the Tribunal
awarded damages for the loss of holiday, calculated as
follows: the accommodation represented 62% of the total
holiday price, and because the couple enjoyed the promised
accommodation for half of the time, then the damages awarded
were 31% of the price, namely $2,808.60. The Tribunal took
into account the anxiety of being stranded late at night at
a foreign airport (because initially, the resort denied the
booking), the uncertainty as to the final arrangements, the
inconvenience of having to unpack and repack and unpack
again due to the move between villas, and the anxiety,
disappointment and distress caused by the failure to provide
the promised accommodation. In the outcome, the Tribunal did
not offset any amount as the cost of the stay in the garden
villa accommodation for the first three days.
In this case, the travel agent was able to breathe easily,
having done their job properly. The agent was not
responsible because the booking had been made as promised
and beachside villas were available, in the standard
represented in the brochure. The problem lay at the door of
the tour operator, which was unable to explain why a
beachfront villa was not available, even though confirmed
bookings were held.
Note: this was the fifth in a series of five interviews
in which specialist tourism lawyer Anthony Cordato discusses
issues of vital importance to travel agents.
Published with the kind permission of e-travel blackboard,
where the article was first published in August 2007, and
with the kind permission of Peter Needham. |
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