TRAVEL AGENTS 2001 : THE CONSUMER'S RIGHTS & REMEDIES FOR PERFORMANCE FAILURE

*This Article May Not Be Reproduced Without The Permission Of Thomas A. Dickerson*

July 15, 2001

By Judge Thomas A. Dickerson^[1]

Travel agencies [ 32,238 U.S. locations in 1999 ^[2] ] are located down the street from your home and/or on the Internet with an interactive web site^[3]. In fact, nearly 43% of travel agents have their own web page on the Internet^[4]. While average domestic air transportation commissions dropped from 10.05% in 1994 to 6.06% in 1999^[5], most members [ 87.9% in 2001^[6] ] of the American Society of Travel Agents [ ASTA ] made up for this loss of revenue by charging their clients a service fee^[7].

The Influence Of Travel Agents In Profound
Travel agents are best viewed as information specialists upon whom consumers rely for the provision of accurate and concise information. To a lesser extent travel agents are order takers and ticket dispensers. Travel agents interact directly with consumers and their influence is profound, e.g., most clients seek advice for the selection of hotels and resorts[ 70% ], package tours [ 69% ], cruises [ 68% ], destinations[ 61% ], airlines [ 60% ], car rentals [ 58% ] and side trips[ 54% ][ Travel Weekly^[8] ].

Professional Standards
Today's travel agent is a fiduciary and a professional with a high standard of care equivalent to that imposed upon attorneys, doctors and accountants. As noted in Brown v. Hambric^[9]

" To become a professional travel agent... requires years of training and participation in advanced educational programs such as those provided by the Institute of Certified Travel Agents... and the American Society of Travel Agents... accreditation by supplier organizations such as the Airlines Reporting Corporation ...and the Cruise Lines International Association ( and ) compliance with state and local licensing requirements and obtaining bonding and comprehensive insurance ".

Selling Travel Services On The Internet
Consumer use of the Internet to plan travel and make reservations has risen dramatically in recent years.

" According to the Travel Industry Association of America, 52 million people used the Internet in 1999 to plan travel, a 54% percent increase from 1998. Sixteen and half million used the Internet in 1999 to make reservations, a 146 percent increase... According to Internet research company PhoCusWright, US consumers spent over $7 billion in 1999 on travel bought on the Internet, up from $2.6 billion in 1998. Internet bookings represented 5.4 percent of all airline bookings in 1999, up from 1.9 percent in 1998 "^[10].

While consumers remain cautious about the reliability of information^[11], the prospect of hidden fees^[12] and insecure credit card transactions^[13], travel shopping on the Web is increasing^[14], particularly, as suppliers such as hotels^[15] and air carriers^[16] offer exclusive fares on their own Web sites with 24 hour accessability^[17] and retailers continue to develop creative ways^[18] to sell travel services, e.g., Priceline^[19].

At the same time the Internet threatens to destabilize the existing retail distribution system by replacing travel agents^[20]. Unlimited and unlicensed^[21] access to the Internet threatens consumers by exposing them to complex travel scams^[22] and boiler room operators^[23]. And, lastly, the marketing of travel services on the Internet may expose foreign suppliers and tour operators to greater risk of being hailed before U.S. Courts to answer lawsuits brought by aggrieved travelers^[24].

Replacing Travel Agents
In addition, domestic air carriers see the Internet as a cheaper means of distribution than the existing travel agent system. In his 1999 article,"Internet Continues to Drive Changes in Distribution"^[25] , Kenneth S. Nankin made the following observations.

" The latest round of commission reductions is just the latest installment of a trend that began with Delta's commission caps in February 1995. It is no secret that the prospect of increased direct Internet sales by airlines is driving the shift away from agents as a form of distribution. According to some estimates, an online sales cuts an airline's distribution ( agent commission or telephone sales ) costs by 75 percent. "

Selecting A Good Travel Agent
Selecting a good travel agent is a risky business. Veryfew States license or regulate travel agents [ see discussion below ]. Nonetheless, there are certain things to look for when selecting a reliable travel agent. Conde Nast Traveler "Conde Nast Traveler's Consumer Alert"^[26] suggested the following:

" There are good travel agents and there are bad travel agents. The good ones find airfares and cruises priced below advertised rates, negotiate free upgrades, find rooms in ' full ' hotels, understand and tell you about travel insurance, and, when things go wrong, either fight for you or try to make it up to you. The bad ones don't do any of this ...Word of mouth is a good way to find a reliable agent. But if you're looking for one on your own, consider the following:
(1) How experienced is the agent?,
(2) How knowledgeable is the agent about your destination? How often has he or she traveled to a place or sent other clients there?
(3) Does the agent ask about your needs, desires and travel habits?
(4) Is the agent certified by the Institute of Certified Travel Agents?
(5) Is the agent skilled at using the computer reservations systems?
(6) Does the agency belong to a consortium? [ Small, independent agencies join consortiums in order to offer competitive rates on travel opportunities ].
(7) Does the agency use a consolidator [ who sells discounted airline tickets, usually at rates below those advertised to the public ]?
(8) Does the agency have a 24-hour phone line?
(9) Does the agency protect the client's deposits? Does it put them in an escrow account or post a bond? "

Consumer Reports Travel Letter
In Consumer Reports Travel Letter the article "Get The Best From Your Agent"^[27] suggested the following:

" Here are some tips that should help you select and benefit from a travel agent.
(1) Is an agent for you?...airlines are employing many sales and marketing tools to incentivize consumers to book directly via the Internet...Weigh such benefits against using a good and unbiased travel agent.
(2) Be loyal. Travel agencies are fueled by loyalty, on both the customer and the travel supplier ends...
(3) Ask for other benefits. Some agencies provide additional services, such as e-mail alerts about sales and tracking your frequent-travelers miles and points.
(4) Know about overrides...
(5) Ask about airline perks. The good news about overrides is that an agency's booking volume often provides perks for you, including preferred seating, upgrades and airport lounge passes.
(6) Be Flexible. The more accommodating you are, the better...
(7) Ask about flight options. If your schedule allows it, ask the agent to consider connecting as well as non-stop flights. A good agent can use a reservations computer to uncover flight options within minutes that many of us would need hours to find on a web site.
(8) Ask about airlines. Suggest the agent look for other options, such as competing airlines...
(9) Ask about airports...dozens of ( smaller ) cities offer secondary airports in suburban and outlying communities; low-fare carriers often operate into these less-congested facilities...
(10) Be Precise...This means being clear about nonstop, direct ( or stopover ), and connecting flights, as well as preferences for airlines and airports.
(11) Get all the costs...
(12) Ask again. Always follow up by specifically asking, " Are there other airlines ( or hotels or car-rental firms ) with that same rate for that same flight...CRTL found that asking twice often yields more information..."

Are Travel Agents Biased?
Notwithstanding the increasing use of service fees^[28] travel agents are, primarily, compensated for their efforts by the suppliers of the travel services purchased by their clients. This suggests a possible conflict between representing the client's interest [ e.g., getting the lowest possible fare ] and the supplier's interest [ e.g., selling a specific flight in order to generate a higher commission ]. InIs Your Travel Agency Playing ' Fare '?,^[29] published in June 2001, Consumer Reports Travel Letter [ CRTL ] discussed the issue of travel agent bias.

" Your travel agent may not always give you thorough and accurate responses to your requests for travel information...In a nationwide survey of 840 agencies, CRTL found that nearly one-half failed to fully answer our queries about low-fare flights upon first request. Only 51 percent immediately provided complete airline and pricing information after we asked for all the lowest-fare nonstop options on 12 different routes. This figure rose to 63 percent after we repeated the request. But 25 percent of the agencies failed to mention all of the lowest-fare flights even after the second request. And 12 percent did not provide the lowest-fare options at all...We don't know whether this poor showing was due to the agents' lack of training, lack of skills, insufficient technology, or bias. But we do know that airlines pay ' override ' bonus commissions to give travel agents incentives for booking travelers on certain flights. This practice, which applies to cruise lines, hotels and other travel companies as well, continues to raise serious questions about the impartiality of travel agents. "

Override Commissions Should Be Revealed
CRTL described overrides this way.

" Some have called them kickbacks. So what exactly are travel agency overrides and how can they affect you? Simply put, they're incentive payments to agencies from airlines, cruiselines, hotels, tour operators, car-rental firms and insurance companies in return for meeting specific sales quotas ".

CRTL noted that

" no fewer than four U.S. Government entities^[30] " have investigated overrides. For example, " The Inspector General (IG) for the Department of Transportation (DOT) released a report in 1999 contending that overrides or other financial incentives, such as free tickets for agents, transform the role of travel agents from that of a
' neutral seller ' to one of a ' distribution agent ' for a particular airline. The IG found that overrides may encourage agents to provide incomplete information and thus are detrimental to consumers if not revealed..."

Travel agent overrides should be revealed to consumers.

" That's why Consumers Union is asking the DOT to require travel agents to mandatorily disclose overrides and incentives to all consumers. In our view, it would help ensure that when you shop for travel, you're receiving complete and unbiased information "^[31].

Travel agents, however, have criticized this report and its conclusions^[32].

The Legal Status Of Travel Agents
Travel agents are agents of the consumer and have been declared to be fiduciaries with a high standard of care in several States including:

Arizona [ Maurer v. Cervenik-Anderson Travel, Inc.^[33] ( teenager on student tour is crushed by steel wheels of tour operator's Party Train traveling to Mazatlan, Mexico )],
California[McCollum v. Friendly Hills Travel Center ^[34] ( tourist injured while water skiing at resort )],
District of Columbia [Craig v. Eastern Airlines, Inc.^[35] ( travel agent fails to inform consumer that airline tickets have restricted use )],
Illinois [Kruempelstaedter v. Sonesta International Hotels Corp.^[36]( cruise passenger exits pool and burns feet on hot surface ),McCoy v. MTI Vacations, Inc.^[37] ( travel agent failed to notify consumer of flight changes )];
Louisiana [Philippe v. Lloyd's Aero Boliviano^[38] ( tourist suffers cerebral hemorrhage on chartered aircraft in Bolivia )];
New Jersey [Rodriquez v. Cardona Travel Bureau ^[39] ( charter air carrier goes bust and defaults in delivery of flight )];
New York [Pelegrini v. Landmark Travel Group^[40] ( consumer misinformed by travel agent that tour vouchers refundable );
Contra: Russell v. Celebrity Cruises, Inc.^[41] ( passenger contracts Legionnaire's disease aboard cruise ship; travel agent has no fiduciary duty to consumer )];
Puerto Rico [Montanez v. Solstar Corp.^[42], ( travel agent is agent of passenger );
Ohio [Grigsby v. O.K. Travel^[43] ( tour operator defaults in delivery of tour )];
Oklahoma [ Douglas v. Steele^[44] ( tour operator defaults in delivery of tour )]; and
Pennsylvania [ Lyall v. Airtran Airlines, Inc.^[45] ( baggage falls on passenger's head during turbulence onboard aircraft ),Touhey v. Trans National Travel^[46] ( accommodations and facilities at hotel misrepresented )]. And in
Florida [ Walt Disney World Co. v. Diaz^[47] ( for the purposes of Fla. Stat. Section 47.051

" independent travel agents who make reservations at the request of travelers are not per se agents or representatives of the entity owning or operating the resort, airline, hotel or other facility for which the reservation was made, even though the travel agent may receive ( or withhold from the traveler's funds ) a payment from the facility's owner or operator " ]

travel agents are not agents of suppliers or tour operators.

The virtue of being a fiduciary is that the travel agent's duties and obligations to the consumer are independent from the travel agent's relationship with airlines, cruise lines, hotels or tour operators. What should consumers reasonably expect from their travel agents?

Duty To Make & Confirm Reservations
After selecting specific travel services the consumer expects the travel agent to contact the supplier or tour operator and make reservations. This function may be accomplished by computer, telephone or in writing. A failure to make the agreed upon reservations renders the travel agent liable for the consumer's damages [ Slade v. Cheung and Risser Enterprises^[48] ( travel agent liable for consumer's lost deposit for failing to contact insolvent cruise company and establish availability of cruise );Reservations Desk v. ALIA^[49] ( failure to confirm airline reservations ); Carro v. Parente World Travel Center^[50] ( travel agent responsible for making airline reservations );Lathigra v. British Airways^[51] ( passengers stranded in Nairobi for five days because airline reconfirmed reservations on discontinued flight ); Rosen v. DePorter-Butterworth Tours^[52]

( failure to inform consumer of itinerary change ); Van Rossem v. Penney Travel Service^[53] ( failure to confirm hotel

accommodations ); Zobler v. Windward Travel Center^[54] ( failure to deliver tickets for honeymoon trip ); Fuller v. Healey Transportation^[55] ( failure to send consumers to proper airport for flight )].

Independent Duty To Verify Reservations
Travel agents may find it convenient to rely upon various sources of information in confirming reservations. For example, the travel agent may rely upon wholesalers or tour operators

[ Bucholtz v. Sirotkin Travel Service^[56] ( travel agent relied upon wholesaler to make reservations at selected Las Vegas hotel )] or computers [ Bhattal v. Grand Hyatt-New York^[57] ( computer error results in guest's baggage being sent to Saudi Arabia )] to verify that reservations have been made. Such reliance may be insufficient, however, since travel agents should be prepared to contact suppliers such as air carriers, cruise lines and hotels, directly, and independently verify that the purchased travel services will, in fact, be delivered [ Prechtl v. Travel House of Garden City^[58] ( travel agent should have contacted air carrier instead of relying on computer to make reservations on a flight which air carrier had discontinued );Trip Tours, Ltd. v. Zamani^[59] ( travel agent should have contacted air carrier instead of relying on an irresponsible tour operator to make airline reservations that never materialized ); Touhey v. Trans National Travel^[60] ( travel agent failed to independently verify conditions at half finished hotel; $25,000 in general damages awarded against travel agent )].

Failure To Disclose Identity Of Supplier
In recommending specific travel services the travel agent must disclose the identity of the supplier or tour operator responsible for delivering the services. If the travel agent fails to make such a disclosure then the travel agent may be held responsible for the supplier's or tour operator's default [ Spiro v. Delmar Travel Bureau^[61] ( travel agent will be held liable for defaults of tour operator if it fails to disclose tour operator's identity ); Van Rossem v. Penney Travel Service^[62] ( inferior hotel accommodations substituted during honeymoon vacation in Jamaica; travel agent liable for failing to disclose identity of tour operator )].

Negligent Selection Of Air Carrier
In arranging package tours tour operators have a duty to select safe and reliable suppliers such as air carriers, hotels, buses and so forth [ see e.g., Thomalen v. Marriott Corp.^[63] ( tour operator may be negligent for participant injuries while viewing fire eating act at hotel ); McAleer v. Smith^[64] ( sail trainees drown after vessel capsizes during race; sponsor had duty of reasonable care to select and approve vessels which were seaworthy, properly manned and safe for racing );Miller v. Group Voyagers, Inc.^[65] ( tour operator failed to reveal unsanitary conditions at one hotel and rash of thefts at another; negligent selection of hotels ); Chan v. Society Expeditions, Inc^[66]. ( accident during transport from cruise ship to shore; negligent selection of boat driver )].

Recently, one court has held that travel agents may have a duty to carefully select the air carriers they recommend. In Lyall v. Airtran Airlines, Inc^[67]. a consumer asked her travel agent to book a flight from Philadelphia to Chicago. The travel agent booked a flight on AirTran from Philadelphia to Atlanta and then to Chicago. During the flight the crew decided to fly through heavy weather " despite such weather having been seen and predicted before take-off ". As a result the flight encountered severe turbulence causing an overhead storage bin to open and a piece of luggage to fall on the passenger's " head and neck, resulting in a bone fracture in her neck ". The Court refused to dismiss a complaint which charged the travel agent with negligence in

" (1) selecting an airline that had established a wilful and wanton disregard for the legal requirements for operating a safe airline, (2) selecting an airline that had changed its name in order to confuse the public, (3) failing to inform Lyall that AirTran was the same airline as ValuJet, and (4) failing to inform Lyall of information that would have led Lyall to seek other transportation ".

The Court stated

" that travel agents...do have duties to their clients for conducting reasonable investigations of the travel providers they book clients on and for selecting appropriate travel providers for their clients ".

Vouching For The Reliability Of Suppliers
In recommending suppliers and tour operators the travel agent may vouch for or warranty the performance of a specific airline, cruise line, hotel or tour operator. In doing so the travel agent may be held liable for the supplier's or tour operator's default under a variety of legal theories including

(1) Assumed duty [Hernandez v. Rapid Bus Company^[68] ( passenger rapes passenger; bus company liable for assuming duty to provide safe transportation ); Cohen v. Heritage Motor Tours ^[69] ( tourist slips and falls on slippery rocks crossing stream during tour of Canadian Rockies; tour operator and tour guide may have assumed duty to determine whether stones were safe to use as a path )];

(2) Breach of warranty [ Glenview Park District v. Melhus^[70] ( canoeist who drowned during trip down river was promised that canoeing would " be perfectly safe " ); Pau v. Yosemite Park and Curry Company^[71] ( bicycle accident; express warranty of safety claim based on promises of safe trails and " safe and enjoyable cycling areas " );Chan v. Society Expeditions^[72] ( tourists being transported from cruiseship to shore excursion drown when Zodiac raft overturns; brochures " advertised the Zodiac's versatility and safety in the hands of ( tour operator's ) ' highly skilled boatman ' " )];

(3) Negligent or fraudulent misrepresentation [Maurer v. Cerkvenik-Anderson Travel, Inc.^[73] ( student on tour falls to death under steel wheels of Party Train to Mazatlan, Mexico; negligent failure to reveal three prior deaths of students on same train );Pelegrini v. Landmark Travel Group^[74] ( travel agent misrepresents tour vouchers as being refundable ); Marcus v. Zenith Travel^[75] ( tourists stranded in Japan when tour operator defaults; travel agent negligently misrepresented that tour operator was financially stable );Gelfand v. Action Travel Center^[76]( travel agent negligently misrepresented cruise ship's ability to deal with tourist's physical condition )];

(4) Breach of implied warranty of habitability [ Touhey v. Trans National Travel^[77] ( vacation ruined because hotel under construction; travel agent contract carries with it an implied warranty of habitability of hotel accommodations; travel agent failed to make independent investigation of condition of hotel; $25,000 in special damages against travel agent )]; and

(5) Promissory estoppel [ Chow v. Trans World Airlines^[78] ( passenger relies upon air carrier's false promises of priority seating on connecting foreign carrier and misses flight to Singapore );Keefe v. Bahama Cruise Line^[79] ( reliance upon false promises resulted in delay in filing claim );Fogel v. Hertz International^[80] ( rental car accident in Italy; liability of U.S. Hertz corporation may be based upon agency by estoppel )].

Duty To Investigate Availability of Travel Services
Travel agents have ongoing duties to investigate the availability of contracted for travel services, e.g.,

(1) Hotel closed [Barton v. Wonderful World of Travel^[81]( hotel closed; travel agent liable for failing to investigate conditions )];

(2) Hotel under construction [ Josephs v. Fuller^[82] ( hotel substandard; travel agent liable for failing to investigate conditions )];

(3) Canceled charter flight [ Rodriquez v. Cardona Travel Bureau^[83] ( charter air carrier defaults; travel agent liable for failing to warn of risks of charters )];

(4) Canceled scheduled flight [ Fix v. Travel Help^[84] ( airline goes bankrupt; travel agent liable for failing to investigate )];

(5) Tour package not delivered [ Marcus v. Zenith Travel^[85] ( travel agent liable for failing to reveal trade reports about financial instability of tour operator )];

(6) Cruise ship impounded by a local sheriff [Slade v. Cheung & Risser Enterprises^[86] ( travel agent failed to contact cruise ship company directly and verify cruise availability )];

(7) Tour operator changed the itinerary [Rosen v. DePorter-Butterworth Tours^[87] ( travel agent failed to advise tourist of change in tour itinerary )]; and

(8) Hotel overbooking [ Bucholtz v. Sirotkin Travel Service^[88] ( Las Vegas hotel overbooks and walks customers; travel agent liable for failing to investigate reliability of tour wholesaler )]. The travel agent's duty to investigate continues even after the initial deposit is made [Barton v. Wonderful World of Travel^[89] ( travel agent required to keep in contact with hotel up to thirty days before departure )].

Duty To Convey Needed Information
The most open ended duty of travel agents is to disclose any negative information which could have an adverse impact on the consumer's vacation or business trip. This duty is limited only by the actual availability of the information to the travel agent and to the consumer [ Stafford v. Intrav^[90] ( travel agent has duty to disclose information unless " obvious and apparent " to the traveler );Markland v. Travel Travel Southfield^[91] ( both travel agent and consumer knew of financial instability of Eastern Airlines prior to default ) and was the accident foreseeable and would the information have prevented the accident [Harvey v. American Airlines^[92] ( vacation ruined because of inclement weather; no duty to warn of rainy weather ); McCollum v. Friendly Hills Travel Center^[93] ( waterskiing accident at resort; no duty to warn of danger in the absence of information of prior accidents ); Tucker v. Whitaker Travel, Ltd.^[94] ( no duty to warn of risks of horseback riding ); Connolly v. Samuelson^[95] ( no duty to warn of dangers of walking onsafari ); Bryant v. Cruises, Inc.^[96] ( passenger falls down stairwell in cruiseship;

" a travel agent has no duty to inspect or otherwise make safe, a cruise ship which it does not own, control or otherwise operate " )].

What Type Of Information Is Needed?
Financial Instability: Travel agents should investigate the financial stability of suppliers and tour operators and convey this information to the consumer [ Marcus v. Zenith Travel^[97]( travel agent liable for failing to reveal reports in travel trade press about financial instability of tour operator ); Spiro v. Delmar Travel Bureau^[98] ( travel agent liable for defaults of bankrupt tour operator );Fix v. Travel Help^[99] ( travel agent negligently misrepresents financial stability of bankrupt airline );Douglas v. Steele^[100] ( travel agent liable for failing to reveal information regarding financial instability of tour operator ); Grigsby v. O.K. Travel^[101] ( travel agent failed to make reasonable inquiry into financial stability of defaulting tour operator )].

Inability To Deliver Services:
Travel agents should investigate the willingness and ability of suppliers and tour operators to actually deliver contracted for travel services. Specifically, the travel agent should find out and inform the consumer if the

(1) Hotel is closed [ Barton v. Wonderful World of Travel^[102] ( travel agent should have discovered that hotel was closed)];

(2) Hotel under construction [ Josephs v. Fuller^[103] ( travel agent should have discovered that hotel was substandard )];

(3) Cruise vessel has been impounded by the local sheriff [ Slade v. Cheung & Risser Enterprises, Inc.^[104] ];

(4) Can the cruise vessel accommodate disabled passengers[ Walker v. Carnival Cruise Lines^[105] disabled cruise passenger promised handicapped accessible room and facilities when, in fact, they were not; travel agents have obligation under American Disabilities Act to provide accurate information regarding the disabled accessibility of travel accommodations to consumers;

" Travel information--details about the nature and price of various travel accommodations--is perhaps the primary ' service ' offered by travel agents. Inadequate or inaccurate information regarding the disabled accessibility of travel accommodations for disabled travelers deprives them of equal access to or ' full and equal enjoyment of ' travel information services " );

Gelfand v. Action Travel Center^[106] ( travel agent negligently misrepresents that cruise vessel can meet the needs of handicapped passenger );Briefer v. Carnival Corp.^[107] ( travel agent has duty to advise and inform consumers of wheelchair accessibility of cruise ship )];

(5) Does the cruise vessel have hot decks [ Kruempelstaedter v. Sonesta International Hotels Corp.^[108]( cruise passenger exits pool and burns feet on hot surface; travel agent

" could possibly have breached its fiduciary duties...when it failed to inform them about the conditions on the cruise ship " )];

(6) Does the hotel overbook its guests [ Bucholtz v. Sirotkin Travel Service^[109] ( travel agent should have investigated tour operator's track record in selling accommodations at hotels that overbooks guests )];

(7) Was a specific flight canceled [ Trip Tours, Inc. v. Zamani^[110] ( charter tour operator fails to deliver flight; travel agent liable );Prechtl v. Travel House of Garden City^[111] ( travel agent liable for failing to investigate availability of flight )].

(8) In addition, the travel agent should continue to investigate even after the reservations are made [ Marcus v. Zenith Travel^[112] ( the travel agent learned of the tour operator's financial instability after the consumers made their reservations but failed to reveal this negative information before full payment thus giving the consumers the opportunity to cancel with minimum losses )].

Need For Travel Documentation:
Without proper travel documents the purpose of the consumer's vacation or business trip may be defeated, e.g., the traveler may be imprisoned or denied entry and forced to leave the destination country at great expense. As stated in Conde Nast "Traveler's Consumer Alert"^[113]

" ( We are ) alarmed by a number of reports from readers who flew to a foreign country and were turned away immediately or charged hundreds of dollars in fines because they lacked the documentation required by the country they were visiting. Two scenarios in particular stand out: people carrying passports that expire in six months or less and adults traveling with minors other than their own children, who require special
documentation ".

Travel agents should investigate and inform consumers of the need for travel documentation [Compaigne Nationale Air France v. Castano^[114] ( airline liable for failing to advise consumers of need for a visa to enter Spain ); Levin v. Kasmir World Travel^[115] ( travel agent liable for failing to advise consumer of need for a visa to enter China )].

Health And Safety Hazards: The destination country may be suffering from a typhoid epidemic, have a high crime rate or be a violent environment because of war or revolution. Travel agents should obtain information from the

(1) U.S. Center for Disease Control^[116] [ CDC ][ information about diseases and the need for medication and shots ];

(2) U.S. State Department [ Travel Advisories^[117] warning of dangers ];

(3) New York Times [ see e.g., "Tourists Held On Greek Bus Are Released"^[118]; "Malaria on the Rise In Southern Africa"^[119]; "Turbulent Times For Tourism in Greece"^[120]; "Safety Concerns Slow Tourism to Turkey"^[121] ; "Kosovo Casts a Shadow Over Adriatic Resorts"^[122]; "New Questions on Safety In Mexico Are Raised"^[123]; "Bombings Cast a Shadow On East African Tourism"^[124] ];

(4) Travel Trade publications [ see e.g.,"Extreme Travel: Abating the Risks"^[125]; "Fla. Authorities Advise Travelers On Virus Carried By Mosquitoes"^[126]; "Weeklong Spree At Beach Resort In Mombasa Leaves 30 Dead"^[127] ];

(5) Conde Nast Traveler ["The Perrin Report, To Go Or Not To Go...To Post-Coup FIJI"^[128]; "Hawaii's freshwater threat"^[129]; "Bad Medicine In China, Travelers Are Warned Of Primitive Facilities" ^[130] ];

(6) Consumer Reports Travel Letter ["Healthy Travels: Tips for wellness aboard"^[131]; "Coping with Travel Risks"^[132] ];

(7) Medical Web Sites for tourists [ MedicinePlanet ^[133] and Travel Health Online ^[134] ];

(8) any other reasonably available source of information of health and safety hazards in the destination country [Shurben v. Dollar Rent-A-Car^[135]( British citizen traveling in rental car in Miami is accosted and shot; rental car company has duty to warn of high crime areas in Miami which should be avoided );Glenview Park District v. Melhus^[136] ( canoeist drowned during trip down river; sponsor should have investigated the water levels and determined imminent flood conditions );Loretti v. Holiday Inns^[137] ( tourist assaulted and raped on beach in Bahamas; travel agent should investigate crime levels in destination ); Maurer v. Cerkvenik-Anderson Travel^[138] ( student falls to death under steel wheels of the Party Train to Mazatlan, Mexico; tour operator failed to reveal prior three deaths of students on the same train ); Anon. V. Anon^[139]. ( tour operator may have duty to warn raped consumer of prior acts of " heavy alcohol consumption, vandalism and dubious security " during weekend ski tours ); McCartney v. Windsor^[140] ( travel agent and tour operator may have duty to reasonably investigate whether tour buses met safety standards;

" At the time of the accident the coach's anti-lock braking system was broken, the braking system warning light was broken, the speed limiter had been disconnected, the coach was traveling at an excessive rate of speed " );

Elsis v. TWA^[141]( tour operator and travel agent may have duty to investigate safety conditions aboard Nile riverboat ) ].

Need For Travel Insurance:
Travel agents should advise consumers of the need for and availability of appropriate travel insurance [Rodriquez v. Cardona Travel Bureau^[142] ( charter air carrier defaults; travel agent failed to advise of need for travel insurance ); Markland v. Travel Travel Southfield^[143] ( travel agent not liable for default of tour operator; travel agent advised consumer to buy travel insurance );Evanoski v. All Around Travel^[144] ( consumer canceled tour because of illness but was denied full refund for failing to comply with 72 hour notice requirement in tour contract; consumer could have obtained trip cancellation insurance from a travel agent but chose not to )].

Code Sharing Arrangements:
Air carriers may enter into agreements whereby a larger air carrier will promote the services of a smaller, lesser known carrier. These arrangements may carry over into computer reservations systems and the use of codes for two or more air carriers.

" The short of it is that you can buy a ticket from Chicago to Warsaw on American Airlines and you will fly the whole nonstop trip on LOT, the Polish airline ".

DOT regulations require travel agents to

" tell consumers clearly when the air transportation they are buying...involves a code-sharing arrangement...and that they disclose to consumers the transporting carrier's identity^[145] ".

Itinerary Changes:
Travel agents should discover and warn consumers of any changes in flight schedules [ McCoy v. MTI Vacations, Inc.^[146] ( travel agent failed to notify consumers of flight changes ); Vick v. National Airlines^[147] ( failure to warn of schedule changes )] or tour itineraries [ Rosen v. DePorter-Butterworth Tours, Inc.^[148] ( failure to advise consumer of change in tour starting point ) ].

Restrictions On Transportation Tickets:
Travel agents should discover and advise consumers of any restrictions on the use of tickets and vouchers [Das v. Royal Jordanian Airlines^[149] ( travel agent failed to inform consumer that flight was wait listed ); Burnap v. Tribeca Travel^[150] ( travel agent failed to inform consumer of ticket restrictions ); Pelegrini v. Landmark Travel Group^[151] ( travel agent misrepresents refundability of tour vouchers )].

Recoverable Damages
The damages which a consumer may recover from a travel agent for breach of contract, negligence, fraud or violation ofa Consumer Protection Statute will depend upon the nature of the injuries sustained. In non-physical injury cases recoverable damages should include the value of the components of the vacation not delivered, compensation for discomfort, annoyance and harassment and special damages for " loss of what was to have been a pleasant week " [ Touhey v. Trans National Travel^[152] ( $25,000 in special damages awarded )], or loss of " a refreshing, memorable vacation " [Vick v. National Airlines^[153] ( $2,500 each for couple who suffered from missed flight )] or the " intangible pleasure of a 24 hour vacation day " [ Semrod v. Mexicana Airlines^[154] ( $3,000 awarded for loss of one vacation day )] or the loss of a planned vacation [ Pelegrini v. Landmark Travel Group<^[155] ( $250 awarded loss of planned vacation )] .

Licensing & Regulation Of Travel Sellers
Travel sellers include tour operators^[156] and consolidators^[157] and retailers such as professional travel agents^[158], pseudo travel agents^[159], outside sales representatives^[160], telemarketing " boiler rooms "^[161], time share salesmen^[162], Internet web sites^[163], travel clubs^[164] and informal travel promoters^[165].

Travel scams continue to proliferate^[166]. As a consequence there is an urgent need for uniform State licensing of Travel Sellers^[167]. The necessary components are annual registration, proficiency testing, advertising standards, contractual disclosure rules, surety bonding, escrow accounts, errors and omissions insurance, consumer restitution funds and civil and criminal penalties.

Some or all of these components can be found in very few of the existing State statutes regulating Travel Sellers^[168].

[a] Registration And Proficiency Testing
Travel Sellers should be registered and tested. For example, in California, registered Travel Sellers are issued a registration number and must display it in their stores and on advertising and promotional materials^[169]. To register the Travel Seller should pay a fee and file a form listing needed information. Californiarequires payment of a $100 annual fee together with a filing that includes the following information: (1) business name, (2) place of business, (3) names and addresses of all persons owning 10% or more of the business, (4) any orders or judgments entered in actions alleging violations of the Act, (5) copies of any travel certificates being sold or promoted;(6) the location and number of all trust accounts or copies of surety bonds maintained for the benefit of the public^[170] and (7) proof of compliance with the requirements of the CaliforniaConsumer Restitution Fund^[171].

Rhode Island^[172], Hawaii^[173], Florida^[174], Ohio^[175], Oregon^[176], Virginia^[177], Washington^[178] and Nevada^[179] also require registration, registration fees and the display of a registration number on advertising material. In addition, Rhode Island requires the applicant to have prior experience as a travel agent^[180] and to take a written test demonstrating familiarity with arranging travel reservations and governing statutes and regulations^[181].

[b] Financial Responsibility
Travel Sellers should post surety bonds^[182], the beneficiaries of which are consumers^[183]. Travel Sellers should deposit a substantial portion of each consumer's contract payment into a trust account^[184]. Travel Sellers should obtain errors and omissions insurance^[185] covering a variety of consumer claims, particularly, those involving physical injuries incurred during tours abroad^[186]. Travel Sellers should fund State administered consumer restitution funds.

Surety bonds tend to serve different purposes, depending upon the State requiring them.In Illinois, for example, the posting of a single surety bond in the amount of $100,000 or more, to cover the contingency of bankruptcy, exempts the Travel Seller from establishing a trust account^[187]. Californiagives travel promoters the choice of either posting an ' adequate bond ' covering each transportation service contracted for or establishing a trust account for each such service. In California^[188], an ' adequate bond ' is one

' executed by an admitted surety insurer in an amount at all times no less than at least equal to the amount required to be held in a trust account ...by any seller of travel in conjunction with such transportation, for the benefit of every passenger who sustains a monetary loss as a result of any violation of this ( statute ) ".

Florida^[189], Iowa^[190], Ohio^[191], Rhode Island^[192], Virginia^[193],Oregon^[194] and Nevada^[195] also require surety bonding in varying amounts.

A common practice among Travel Sellers is to use consumer monies paid for the delivery of future travel services to pay on-going business expenses^[196]. In order to protect consumers against loss of pre-paid funds due to this practice, a substantial portion of the consumer's payment should be deposited in a trust account^[197]. Most states which require trust accounts agree that 90% of all sums received for consumer travel should be placed in an escrow account. In Hawaii^[198], Illinois^[199] and Oregon^[200] the travel promoter may withdraw the money from the account only to pay the suppliers of the services purchased by the consumer or to make refunds. In California, the Travel Seller is required to deposit 100% of all sums received for travel services in a trust account^[201]. Washington requires the deposit of consumer monies into a trust account within five days of receipt^[202]. Virginia requires travel clubs to deposit consumer payments into escrow accounts that are separate from other accounts^[203].

In 1995 Californiabecame the first State to require registered Travel Sellers to fund a Travel Consumer Restitution Fund^[204]. Starting with an initial payment of $25.00 per location each Travel Seller may be assessed an annual amount of no more than $200 to keep the restitution fund at $1.2 million^[205].Consumers who have sustained a loss may file a claim against the fund^[206].

[c] Advertising Standards
Misrepresentations and hyperbolic overstatement are characteristic of sales pitches and advertising by Travel Sellers^[207]. Failing to disclose material information^[208] and using overreaching, one sided disclaimers^[209] are characteristic of the contracts used by Travel Sellers.

Travel Sellers should be required to adhere to minimum advertising standards. Nearly every State has consumer protection statutes prohibiting misrepresentations and unfair and deceptive business practices^[210]. Florida ^[211], Virginia^[212], Hawaii^[213], Massachusetts^[214] and Washington^[215] have made an express tie-in between their Travel Seller statutes and their consumer protection statutes, giving consumers a private cause of action for violations of the Travel Seller statute. Any violation of Illinois' Travel Seller statute is also a violation of Illinois' Consumer Fraud and Deceptive Business Practices Act^[216].

A few Travel Seller statutes impose minimum advertising standards. California^[217], Florida^[218], Illinois^[219], Massachusetts^[220], New York^[221] Oregon^[222], Virginia^[223] and Washington^[224] prohibit advertising the availability of air or sea transportation unless the services are actually available. States with this provision also treat any material misrepresentation regarding travel services as grounds for cancellation warranting a full refund^[225].

New York has two separate lists of prohibited practices depending upon whether the Travel Seller is a travel consultant^[226] or a travel promoter^[227]. Florida prohibits the use of solicitation material in which credit card charges are sought unless that form of payment is necessary^[228]. Virginia^[229] and Massachusetts^[230] set forth lengthy lists of specifically prohibited misrepresentations.

[d] Disclosure Rules
Travel contracts with consumers should disclose basic information about the travel services being purchased. As a general rule Travel Sellers are under an ongoing obligation to discover readily available information which may have a negative impact on the travel contract and disclose that information to the consumer. Travel Sellers should disclose, at the very least, the following information^[231]:
(1) the financial instability of recommended suppliers,
(2) the ability and willingness of recommended suppliers to deliver purchased travel services,
(3) the riskiness of using charter air carriers and tour operators,
(4) the need for travel documentation such as passports and visas,
(5) the health hazards in the destination country,
(6) the level and nature of crime and terrorism at the destination or at the hotel,
(7) the need for travel insurance,
(8) any itinerary changes,
(9) the history of accidents at the destination or on the carrier selected,
(10) restrictions on transportation tickets and
(11) restrictions on refunds.

California^[232], Hawaii^[233], Illinois^[234], Massachusetts^[235], New York^[236], Oregon^[237], Virginia^[238] and Washington^[239] require that travel contracts disclose:
(1) the identity and location of the travel promoter,
(2) a detailed statement of payments to be made and their purpose,
(3) the location of any required surety bonds and trust accounts and how to file a claim,
(4) the name of the carrier with which the seller of the travel service has contracted to provide transportation, the type of equipment to be used, and the date, time and place of each departure,
(5) the cancellation rights of the parties,
(6) a statement in conspicuous ( e.g., eight-point bold face^[240] ) type that uponcancellation of the transportation through no fault of the passenger, all sums paid will be promptly refunded,
(7) in Californiaa statement on how to file a claim with the " Travel Consumer Restitution Plan " and
(8) in New York a statement that the consumer may cancel the travel contract within three days of receipt of the disclosure notice^[241]

In addition Illinois^[242] and New York^[243] require a description of any other travel services to be provided. Hawaii requires travel agencies to reveal that airline frequent flyer mileage awards may not be honored^[244]. Hawaii also requires travel agencies to inform consumers of their statutory rights^[245]. Virginia requires each travel contract to inform consumers that they may cancel within seven days of the execution of the contract^[246].

California's Educational Travel Organization Act requires disclosure^[247] of a 24-hour emergency telephone number or " 24-hour emergency contact by pager, voice mail..." and an itemized list of services including the educational program to be provided, whether insurance coverage is maintained for student injuries, experience and training of staff and their qualifications, number of similar prior student programs conducted by the organization and its length of time in business and a list of any judgments entered against it.

Massachusetts requires disclosure of

" the complete terms of any substitution policy of any seller of travel services that may apply to the consumer's purchase of travel services "^[248]

and

" the complete terms of any trip cancellation insurance policy... including...coverage, exclusions, limitations and benefits payable "^[249].

[e] Consumer Remedies & Penalties
Any violation of a Travel Seller statute should, asit does in Florida^[250], Hawaii^[251], Illinois^[252], Massachusetts^[253], Virginia^[254] and Washington^[255], constitute a violation the each State's Consumer Protection Act^[256] giving rise to a private right of action and entitling the consumer to treble damages, attorneys fees and costs. Any violation of the Travel Seller statute should, as it does in California^[257], Hawaii^[258], Florida^[259], Illinois^[260], Iowa^[261], New York^[262], Ohio^[263], Oregon^[264] Rhode Island^[265] and Washington^[266], allow the Attorney General to seek criminal or civil penalties including restitution on behalf of consumers.

Should the Travel Seller violate any provision of a Travel Seller statute he should forfeit the right to enforce a travel contract against a consumer^[267]. Any violation of the Travel Seller statute should, as it does in Ohio^[268], allow the consumer to void the travel contract and obtain a full refund. Should the consumer suffer damages from the breach of a travel contract and should the Travel Seller have violated any provision of the Travel Seller statute, then the Travel Seller will be liable for the consumer's damages including those otherwise attributable to the default of a third party supplier.^[269]

[f] Selling Travel Insurance
Texas^[270] requires travel sellers to obtain, upon payment of a fee, a " specialty license " which authorizes them to sell the following types of travel insurance,
(1) accident and health insurance,
(2) trip cancellation or interruption insurance,
(3) personal effects insurance and
(4) life insurance covering the risks of travel up to $150,000 per person. Travel insurance brochures must disclose
(1) the material terms of coverage,
(2) the identity of the insurer,
(3) the possible duplication of coverage with the consumer's personal auto insurance, homeowner's policy and personal liability insurance,
(4) that the purchase of travel insurance is not necessary to complete the associated consumer transaction and
(5) the claim filing process. With respect to consumer monies received for the purchase of travel insurance the travel agent is not a fiduciary and does not have to segregate funds.

The uniform and comprehensive licensing of Travel Sellers in the United States is long overdue. It is in the best interests of consumers and professional travel agents to encourage the legislators of each State to enact a uniform licensing statute containing provisions for registration and testing, financial responsibility, advertising standards, disclosure rules, consumer remedies and penalties.

FOOTNOTES

[1]. Thomas A. Dickerson is a Westchester County Court Judge, New York State, Web Site http://members.aol.com/judgetad/index.html, and the author of Travel Law, 1981-2001, Law Journal Press, New York, Web Site http://members.aol.com/travellaw/index.html; Class Actions: The Law of 50 States, 1988-2001, Law Journal Press, Web Site http://members.aol.com/class50/index.html; and nearly 190 articles on consumer law issues. Many of Judge Dickerson's articles are available at http://www.classactionlitigation.com/library/ca_articles.html

[2]. Travel Weekly's 2000 U.S. Travel Agency Survey, August 24, 2000, p. 10.

[3]. See "Consumer Alert," Conde Nast Traveler, March 2000, p. 94

[ " Ombudsman is getting more and more letters from frustrated readers who were enticed into a ' travel deal ' on the Web and then left empty handed because their tickets never arrived or the company they had paid disappeared without a trace " ]; Hidden Fees Take Bite Out of Online Savings, Consumer Reports Travel Letter, February 2000, p. l [ " Found a cheap ticket online? Beware of hidden fees that could take a bite out of those savings. Service fees for processing bookings, delivering tickets, and making changes are driving up the cost of booking airline tickets online...Our research found that fees can add as much as 85 percent to the ' advertised price '. And they're hard to avoid because online discounters don't always disclose-or plainly display-these charges on their web sites " ].

See also: Dickerson, The Internet, The " Solicitation Plus " Doctrine And Jurisdiction Over Foreign Hotel and Other Travel Suppliers, International Travel Law Journal, 1999; Web Site [ http://courts.state.ny.us/tandv/TLJInterentArticle99.htm ]

[4].Travel Weekly's 2000 U.S. Travel Agency Survey, August 24, 2000, p. 138.

[5].Travel Weekly, February 7, 2000, p. 1.

[6]. "ASTA Survey Shows Service Fee Charges Are Still Going Strong," Travel Agent, May 28, 2001, p. 6. See also Travel-agency fees in flux, leaving room to negotiate, Consumer Reports Travel Letter, August 2000, p. 1.

[7].Travel Weekly's 2000 U.S. Travel Agency Survey, August 24, 2000, p. 70.

[8].Travel Weekly's 2000 U.S. Travel Agency Survey, August 24, 2000, p. 190.

[9].Brown v. Hambric, 168 Misc. 2d 502, 638 N.Y.S. 2d 873 ( 1995 ). Web Site at http://www.directsaleslaw.com/library/cases/mlm/state/nybrown.htm

[10].Nankin, Travel Distribution Update, Spring 2000, p. 1.

[11].See Marschak, "Consumer press reports distrust of Web travel sites", Travel Weekly, November 11, 1999, p. 29

( " Consumers are not necessarily seeing a meaningful range of products or getting the tools they need for making meaningful price comparisons... Paul Grimes...complained that many sites, including travel agency consortium sites, promote only certain tour and cruise companies " );

Tedeschi,"Practical Traveler, Web Air Deals: Caveat Surfer," N.Y. Times Travel Section, April 16, 2000, p. 4.

[12].See "Hidden Fees Take Bite Out of Online Savings", Consumer Reports Travel Letter, February 2000, p. 1

( " Found a cheap ticket online? Beware of hidden fees that could take a bite out of those savings. Service fees for processing bookings, delivering tickets and making changes are driving up the cost of booking airline tickets online...that fees can add as much as 85 percent to the advertised price. And they're hard to avoid because online discounters don't always disclose--or plainly display--these charges on their web sites " ).

[13].See Grant, "Are Web Bookings Safe? Airlines Say Yes, But Some Take Extra Precautions", Travel Agent, January 17, 2000, p. 88

( " Last month Northwest discovered a programming error that left unprotected the credit card numbers and personal information of some frequent flyers. " );

Tedeschi," Tighter Security For Web Buyers", Practical Traveler, N.Y. Times Sunday Edition, Travel Section, December 26, 1999, p. 4

( " This year...a technical administrator for an Internet service provider in Seattle discovered that hundreds of Web sites had left their customers' credit card information completely exposed to anyone with an Internet connection " );

Bryant, "Cautiously, Travelers Shop on the Internet", New York Times Sunday Edition, Travel Section, December 20, 1998, at p. 3

( " A recent survey...found that among 500 people who have traveled by air in the past year and visited a Web site in the past month, 80 percent have looked at Internet travel sites and 58 percent have checked fares. But only 18 percent have used the Internet to book travel online...The main reason for their reluctance? Credit card security. " ).

[14]. See Bryant, "Web Travel Shopping: The Surf Is Rising", New York Times Sunday Edition, Travel Section, May 3, 1998, p. 3

( " A recent survey...estimated that by 2002, on-line bookings of air fares, hotel rooms, rental cars and vacation packages will jump more than tenfold, to $8.9 billion..." ).

7.See "More Web Worries? Four Hotel Chains Plan A Common Site", Travel Agent, March 27, 2000, p. 6; Johnston, "Practical Traveler,Rooms Through The Web", New York Times Sunday Edition, Travel Section, p. 4 ( " But shopping for lodgings on the Web is clearly the wave of the future. " ).

[16].See "Airlines Throw Their Weight Behind New Web Site," Travel Agent, January 17, 2000, p. 6

( " Twenty-three airlines have answered the question posed by Continental, Delta, Northwest and United last November--will enough major players joined a planned Web site to make it viable? With the addition...of large and small U.S. and foreign carriers...the new Web site...has the backing it needs to potentially become the industry's 400-pound gorilla. " );

"Big Airlines Ready To Deal", Consumer Reports Travel Letter, December 1999, p. 13

( " More choices on the web mean better deals for consumers, right? That's the pitch behind a new travel ' supersite ' to be launched by Continental, Delta, Northwest and United " ).

[17].See "Round-The-Clock Access Rates As A Major Attraction Of Net, Survey explores Internet users' attitudes, motives", Travel Weekly, August 3, 2000, p. 4.

[18].See Polling, "Latest Web twist: Lose the booking, keep the cash", Travel Weekly, June 5, 2000, p. 1

( "...an alternative pricing mechanism for moving travel...on the Web, enabling merchants to make a deal with a consumer, but with the option to call it off if it looks as if the ( travel services ) can be sold elsewhere at a better price. For taking the risk that the supplier might pull out of the deal, the consumer gets a guaranteed low price with a cash rebate up front. " ).

[19]."How Low Can You Go? Priceline Adds Hotel Bids", Consumer Reports Travel Letter, December 1998, p. 1

( " Priceline.com. The Internet bidding system that claims it lets travelers name their own prices for airline tickets, quietly launched a similar service for hotel rooms in 26 cities " );

"Priceline: Moving 20,000 air tickets, 5000 hotel rooms weekly",Travel Weekly, May 3, 1999, p. 8; Milligan," Priceline.com to add cruises, tours to lineup", Travel Weekly, May 11, 2000, p. 1; Wilkening,"The ins and outs of Priceline.com: Good fares come with drawbacks", Travel Weekly, June 24, 1999, p. 1

( " But if you think the price is right, don't overlook the minuses--including uncertain hours of travel, nonstandard purchase conditions and some potential hidden costs " ).

[20].See Nankin, Travel Distribution Update, Fall 1999, p. 2

( " It is no secret that the prospect of increased direct Internet sales by airlines is driving the shift away from ( travel ) agents as a form of distribution. According to some estimates, an online sale cuts an airline's distribution ( agent commission or telephone sales ) costs by 75 percent " );

"Will The Internet Replace Your Travel Agent?", Conde Nast Traveler, August 1997, p. 19

( "' The Web can be a very good tool for travelers looking for last-minute specials. But for other types of travel, we still find that travel agents are best. They don't guarantee the best price, but they do increase your chances of finding it '" );

" ASTA consumer survey: Agents more credible than the Net", Travel Weekly, January 7, 1999, p. 12

( " Agents were favored over Internet-based travel information sources by 68% of air travelers and 81% of cruise vacationers " );

"Poll: Most Web browsers still turning to agents", Travel Weekly, August 12, 1999, p. 23

( " The poll said 56% of on-line travelers reported booking with an agent after visiting a travel site " ).

[21].See Dickerson, "The Licensing And Regulation Of Travel Sellers In The United States", The Aviation Quarterly [ 1998 ] TAQ 47-69, January 1998

( " Travel Sellers are, to a large extent, unregulated in the United States. As at 1997 only a handful of States...had some form of Travel Seller regulation. Many of today's Travel Seller statutes are cosmetic only...(and) fail to have most of the basic components of a comprehensive licensing statute, i.e., annual registration, proficiency testing, advertising standards and contractual disclosure rules, surety bonding, escrow accounts, errors and omissions insurance, consumer restitution funds and civil and criminal penalties " .

See also Dickerson, The Licensing And Regulation Of Travel Agents, Tour Operators And Other Travel Sellers In The United States, Canada, Australia, Great Britain, Japan And The Members Of The European Community, March 15, 2000, http://www.courts.state.ny.us/tandv/Aqtaed1.htm.

[22]. See "Vacations from Hell", Consumer Reports, January 1999, p. 29

( " Because travel mixes fantasy and fun--and because the industry is largely unregulated--it's an area ripe for rip-offs...According to FTC records, Design Travel operated 41 telemarketing boiler rooms...What buyers typically got was a few nights in Florida, a ' cruise ' to the Bahamas on a converted auto ferry and a brief stay there at a seedy hotel. It was hardly the vacation ' retailed at over $1,500 ' that smooth-talking telemarketers described " );

See also Edelson," ASTA Travel Scam Conference: Beware Of Fraud on the Web", Travel Agent, May 18, 1998, p. 119 ( " As it becomes more mainstream, the Internet has opened up a whole new medium for scam artists... " ).

[23].See Dickerson, The Licensing And Regulation Of Travel Services In The United States, The Aviation Quarterly [ 1998 ] TAQ 47-69, January 1998

( " consumers need to be protected from increasingly complex, misleading and deceptive travel scams. Recently, the Federal Trade Commission (FTC) and the Attorneys General of ( 12 States ) took legal action against a variety of travel scam operators. ' Travel has long been a fertile field for flimflam, but what had been a cottage industry has lately mushroomed into a growth industry...the cost of travel-related fraud ( is estimated ) at more than $12 billion a year...Travel fraud comes in many more packages than it used to ' " ).

[24]. For a discussion of the impact of Internet marketing upon jurisdiction see http://courts.state.ny.us/tandv/TLJInternetArticle99.htm

[25]. Nankin, Internet Continues to Drive Changes in Distribution, Travel Distribution Update, Fall 1999, p. 2.

[26].Ombudsman, "Consumer Alert," Conde Nast Traveler, November 1998, p. 199.

[27]."Get The Best From Your Agent," Consumer Reports Travel Letter, June 2001, p. 10.

[28]. Travel Weekly 's 2000 U.S. Travel Agency Survey, August 24, 2000, p. 70.

[29]. "Is Your Travel Agency Playing ' Fare '?," Consumer Reports Travel Letter, June 2001, p. 1. See also "Does Your Travel Agent Take Kickbacks?," Consumer Reports Travel Letter, January 1999, p. 1; "Hidden Fees Take Bite Out Of Online Savings," Consumer Reports Travel Letter, February 2000, p. 1.

[30]. "Is Your Travel Agency Playing ' Fare '?," Consumer Reports Travel Letter, June 2001, p. 8.

[31]."Is Your Travel Agency Playing ' Fare '?," Consumer Reports Travel Letter, June 2001, p. 10.

[32]. See e.g., "Did Consumer Reports play ' fare '?," Travel Weekly, May 31, 2001, p. 1.

[33]. Maurer v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 294, 890 P. 2d 69 ( 1994 ).

[34].McCollum v. Friendly Hills Travel Center, 217 Cal. Rptr. 919 ( Cal. App. 1995 ).

[35].Craig v. Eastern Airlines, Inc., 19 CCH Aviation Cases 17,954 ( D.C. 1985 ).

[36]. Kruempelstaedter v. Sonesta International Hotels Corp., 2000 U.S. Dist. LEXIS 11453 ( N.D. Ill. 2000 ).

[37].McCoy v. MTI Vacations, Inc., 272 Ill. App. 3d 494, 209 Ill. Dec. 911, 650 N.E. 2d 605 ( 1995 ).

[38].Philippe v. Lloyd's Aero Boliviano, 589 So. 2d 536 ( La. App. 1992 ), rev'd 710 So. 2d 807 ( La. App. 1998 ).

[39].Rodriquez v. Cardona Travel Bureau, 216 N.J. Super. 226, 523 A. 2d 281 ( 1986 ).

[40].Pelegrini v. Landmark Travel Group, 165 Misc. 2d 589, 628 N.Y.S. 2d 1003 ( 1995 ).

[41].Russell v. Celebrity Cruises, Inc., 2000 WL 1013954 ( S.D.N.Y. 2000 ).

[42]. Montanez v. Solstar Corp., 46 F. Supp. 2d 101 ( D.P.R. 1999 ).

[43].Grigsby v. O.K. Travel, 118 Ohio App. 3d 671, 693 N.E. 2d 1142 ( 1997 ).

[44].Douglas v. Steele, 816 P. 2d 586 ( Okla. App. 1991 ).

[45].Lyall v. Airtran Airlines, Inc., 2000 WL 1100845 ( E.D. Pa. 2000 ).

[46]. Touhey v. Trans National Travel, 47 Pa. D. & C. 3d 250 ( Pa. C.P. 1989 ).

[47]. See Walt Disney World Co. V. Diaz, 691 So. 2d 1150 ( Fla. App. 1997 ).

[48].Slade v. Cheung and Risser Enterprises, Inc., 10 Pa. D. & C. 3d 627 ( Pa. C.P. 1979 ).

[49].Reservations Desk v. ALIA, 21 CCH Aviation Cases 17,529 ( N.D. Tex. 1988 ).

[50].Carro v. Parente World Travel Center, 23 CCH Aviation Cases 18,345 ( N.D. Ohio 1991 ).

[51].Lathigra v. British Airways, 23 CCH Aviation Cases 18,284 ( W.D. Wash. 1994 ).

[52].Rosen v. DePorter-Butterworth Tours, Inc., 62 Ill. App. 3d 762, 379 N.E. 2d 407 ( 1978 ).

[53].Van Rossem v. Penney Travel Service, Inc.,128 Misc. 2d 50, 488 N.Y.S. 2d 595 ( 1985).

[54].Zobler v. Windward Travel Center, 42 Pa. D. & C. 3d 119 ( Pa. C.P. 1986 ).

[55].Fuller v. Healey Transportation, Ltd., 22 O.R. 2d 118 ( Ontario, Canada, 1978 ).

[56].Bucholtz v. Sirotkin Travel Service, Ltd., 74 Misc. 2d 180, 343 N.Y.S. 2d 438, aff'd 80 Misc. 2d 333, 363 N.Y.S. 2d 415 ( 1974 ).

[57].Bhattal v. Grand Hyatt-New York, 563 F. Supp. 277 ( S.D.N.Y. 1983 ).

[58].Prechtl v. Travel House of Garden City, 17 CCH Aviation Cases 17,182 ( N.Y. Civ. 1980 ), mod'd 17 CCH Aviation Cases 17,183 ( N.Y. App. Term. 1981 ).

[59].Trip Tours, Ltd. v. Zamani, 22 CCH Aviation Cases 17,425 ( N.Y. Civ. 1988 ).

[60].Touhey v. Trans National Travel, 47 Pa. D. & C. 3d 250 ( Pa. C.P. 1987 ).

[61]. Spiro v. Delmar Travel Bureau, Inc., 188 A.D. 2d 792, 591 N.Y.S. 2d 237 ( 1992 ).

[62].Van Rossem v. Penney Travel Service, Inc., 128 Misc. 2d 50, 488 N.Y.S. 2d 595 ( 1985 ).

[63]. Thomalen v. Marriott Corp., 880 F. Supp. 74 ( D. Mass. 1995 ).

[64]. McAleer v. Smith, 860 F. Supp. 924 ( D.R.I. 1994 ).

[65]. Miller v. Group Voyagers, Inc., 1996 WL 32119 ( E.D. Pa. 1996 ).

[66]. Chan v. Society Expeditions, Inc., , 123 F. 3d 1287 ( 9^th Cir. ), cert. denied 118 S. Ct. 906 ( 1997 ).

[67]. Lyall v. Airtran Airlines, Inc., 2000 WL 1100845 ( E.D. Pa. 2000 ).

[68].Hernandez v. Rapid Bus Company,, 641 N.E. 2d 886 ( Ill. App. 1994 ).

[69].Cohen v. Heritage Motor Tours, Inc.,, 205 A.D. 2d 105, 618 N.Y.S. 2d 387 ( 1994 ).

[70].Glenview Park District v. Melhus, , 540 F. 2d 1321 ( 7^th Cir. 1976 ).

[71].Pau v. Yosemite Park and Curry Company, 928 F. 2d 880 ( 9^th Cir. 1991 ).

[72].Chan v. Society Expeditions, Inc., 123 F. 2d 1287 ( 9^th Cir. 1997 ), cert. denied 1185 S. Ct. 906 ( 1998 ).

[73]. Maurer v. Cerkvenik-Anderson Travel, inc., 181 Ariz. 294, 890 P. 2d 69 ( 1994 ).

[74]. Pelegrini v. Landmark Travel Group, 165 Misc. 2d 589, 628 N.Y.S. 2d 1003 ( 1995 ).

[75]. Marcus v. Zenith Travel Inc., New York Law Journal, November 19, 1990, p. 25, col. 3 ( N.Y. Sup. ), aff'd 178 A.D. 2d 372, 577 N.Y.S. 2d 82 ( 1991 ).

[76].Gelfand v. Action Travel Center, Inc., 55 Ohio App. 3d 193, 563 N.E. 2d 317 ( 1988 ).

[77]. Touhey v. Trans National Travel, Inc., 47 Pa. D. & C. 3d 250 ( Pa. C.P. 1987 ).

[78].Chow v. Trans World Airlines, 22 CCH Aviation Cases 17,445 ( Ind. App. 1989 ).

[79].Keefe v. Bahama Cruise Line, Inc., 867 F. 2d 1318, 1323-1324 ( 11^th Cir. 1989 ).

[80].Fogel v. Hertz International, Ltd, 141 AD. 2d 375, 529 N.Y.S. 2d 484 ( 1988 ).

[81].Barton v. Wonderful World of Travel, Inc., 38 Ohio Misc. 2d 6, 502 N.E. 2d 715 ( 1986).

[82].Josephs v. Fuller, 186 N.J. Super. 47, 451 A. 2d 203 ( 1982 ).

[83].Rodriquez v. Cardona Travel Bureau, 216 N.J. Super. 226, 523 A. 2d 281 ( 1986 ).

[84].Fix v. Travel Help, 541 N.Y.S. 2d 924 ( N.Y. Civ. 1989 ).

[85].Marcus v. Zenith ravel, Inc., New York Law Journal, November 19, 1990, p. 25, col. 3 ( N.Y. Sup. ), aff'd 178 A.D. 2d 372, 577 N.Y.S. 2d 820 ( 1991 ).

[86].Slade v. Cheung & Risser Enterprises, 10 Pa. D. & C. 3d 627 ( Pa. C.P. 1979 ).

[87].Rosen v. Deporter-Butterworth Tours, Inc., 62 Ill. App. 3d 762, 379 N.E. 2d 407 ( 1978 ).

[88].Bucholtz v. Sirotkin Travel Service, Ltd., 74 Misc. 2d 180, 343 N.Y.S. 2d 438, aff'd 80 Misc. 2d 333, 363 N.Y.S. 2d 415 ( 1974 ).

[89].Barton v. Wonderful World of Travel, Inc., 28 Ohio Misc. 2d 6, 502 N.E. 2d 715 ( 1986).

[90].Stafford v. Intrav, inc., 841 F. Supp. 284, 288 ( E.D. Mo. 1993 ), aff'd 16 F. 3d 1228 ( 8^th Cir. 1994 ).

[91].Markland v. Travel Travel Southfield, 810 S.W. 2d 81, 84 ( Mo. App. 1991 ).

[92].Harvey v. American Airlines, 19 CCH Aviation Cases 18,531 ( Okla. 1986 ). Compare: Fleming v. Delta Airlines, 359 F. Supp. 339 ( S.D.N.Y. 1973 )( air carrier liable for failing to warn of bad weather for flying ).

[93].McCollum v. Friendly Hills Travel Center, 172 Cal. App. 3d 83, 217 Cal. Rptr. 919 ( 1985 ).

[94].Tucker v. Whitaker Travel, Ltd., 629 F. Supp. 578 ( E.D. Pa. 1985 ), aff'd mem. 800 F. 2d 1140 ( 3d Cir. ), cert. denied 107 S. Ct. 578 ( 1986 ).

[95].Connolly v. Samuelson, 671 F. Supp. 1312 ( D. Kan. 1987 ).

[96].Bryant v. Cruises, Inc., 6 F. Supp. 2d 1314 ( N.D. Ala. 1998 ).

[97]. Marcus v. Zenith Travel, Inc.,New York Law Journal, November 19, 1990, p. 25, col. 3 ( N.Y. Sup. ), aff'd 178 A.D. 2d 372, 577 N.Y.S. 2d 820 ( 1991 ).

[98]. Spiro v. Delmar Travel Bureau, Inc., 149 Misc. 2d 613, 566 N.Y.S. 2d 1010 ( 1991 ), mod'd 188 A.D. 2d 792, 591 N.Y.S. 2d 237 ( 1992 ).

[99].Fix v. Travel Help, 541 N.Y.S. 2d 924 ( N.Y. Civ. 1989 ).

[100]. Douglas v. Steele, 816 P. 2d 586 ( Okla. App. 1991 ).

[101]. Grigsby v. O.K. Travel, 693 N.E. 2d 1142 ( Ohio App. 1997 ).

[102]. Barton v. Wonderful World of Travel, Inc., 28 Ohio Misc. 2d 6, 502 N.E. 2d 715 ( 1986 ).

[103].Josephs v. Fuller, 186 N.J. Super. 47, 451 A. 2d 203 ( 1982 ).

[104].Slade v. Cheung & Risser Enterprises, Inc., 10 Pa. D. & C. 3d 627 ( Pa. C.P. 1979 ).

[105]. Walker v. Carnival Cruise Lines, 63 F. Supp. 2d 1083 ( N.D. Cal. 1999 ), on reconsideration 107 F. Supp. 2d 1135 ( N.D. Cal. 2000 ).

[106].Gelfand v. Action Travel Center, Inc., 55 Ohio App. 3d 193, 563 N.E. 2d 317 ( 1988 ).

[107].Briefer v. Carnival Corp., 1999 U.S. Dist. LEXIS 21256 ( D. Az. 1999 ).

[108]. Kruempelstaedter v. Sonesta International Hotels Corp., 2000 U.S. Dist. LEXIS 11453 ( N.D. Ill. 2000 ).

[109].Bucholtz v. Sirotkin Travel Service, Ltd., 74 Misc. 2d 180, 343 N.Y.S. 2d 4 ( 1974 ).

[110]. Trip Tours, Inc. v. Zamani, 22 CCH Aviation Cases 17,425 ( N.Y. Civ. 1989 ).

[111].Prechtl v. Travel House of Garden City, Ltd., 17 CCH Aviation Cases 17,182 ( N.Y. Civ. 1980 ), mod'd 17 CCH Aviation Cases 17,183 ( N.Y. App. Term. 1981 ).

[112].Marcus v. Zenith Travel, inc., New York Law Journal, November 19, 1990, p. 25, col. 3 ( N.Y. Sup. 1990 ), aff'd 178 A.D. 2d 372, 577 N.Y.S. 2d 820 ( 1991 ).

[113].Conde Nast Traveler's Consumer Alert, November 1999, p. 123.

[114].Compaigne Nationale Air France v. Castano, 358 F. 2d 203 ( 1^st Cir. 1966 ).

[115].Levin v. Kasmir World Travel, Inc., 143 Misc. 2d 245, 540 N.Y.S. 2d 639 ( 1989 ).

[116].Center For Disease Control at http://www.cdc.gov.

[117]. Consult the State Department's web site at http://travel.state.gov/

[118]."Tourists Held On Greek Bus Are Released," New York Times, November 5, 2000, p. 16.

[119]."Malaria on the Rise In Southern Africa", New York Times Travel Section, December 19, 1999, p. 3.

[120]."Turbulent Times For Tourism in Greece", New York Times Travel Section, June 6, 1999, p. 3.

[121]."Safety Concerns Slow Tourism to Turkey", New York Times Travel Section, May 16, 1999, p. 4.

[122]."Kosovo Casts a Shadow Over Adriatic Resorts", New York Times Travel Section, April 25, 1999, p. 3.

[123]. "New Questions on Safety In Mexico Are Raised", New York Times Travel Section, January 31, 1999, p. 3.

[124]."Bombings Cast a Shadow On East African Tourism", New York Times Travel Section, September 13, 1998, p. 3.

[125]."Extreme travel: Abating the Risks", Travel Weekly, March 1, 2001, p. 6.

[126]."Fla. Authorities Advise Travelers On Virus Carried By Mosquitoes", Travel Weekly, September 1, 1997, p l.

[127]."Weeklong Spree At Beach Resort In Mombasa Leaves 30 Dead", Travel Weekly, August 28, 1997, p. 39.

[128]."The Perrin Report, To Go Or Not To Go...To Post-Coup FIJI", Conde Nast Traveler, May 2001, p. 106.

[129]."Hawaii's freshwater threat", Conde Nast Traveler, March 1998, p. 45.

[130]."Bad Medicine In China, Travelers Are Warned Of Primitive Facilities", Conde Nast Traveler, September 1997, p. 67.

[131]."Healthy Travels: Tips for wellness aboard", Consumer Reports Travel Letter, February 2001, p. 1.

[132]."Coping with Travel Risks", Consumer Reports Travel Letter, December 1998, p. 281.

[133]. MedicinePlanet at http://www.who.int/en/.

[134].TravelHealthOnline at http://www.tripprep.com.

[135].Shurben v. Dollar Rent-A-Car, 676 So. 2d 467 ( Fla. App. 1996 ).

[136].Glenview Park District v. Melhus, 540 F. 2d 1321 ( 7^th Cir. 1976 ).

[137].Loretti v. Holiday Inns., Inc., 1986 WL 5339 ( E.D. Pa. 1986 ).

[138].Maurer v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 294, 890 P. 2d 69 ( 1994 ).

[139]. " Anon. Anon.", New York Law Journal, September 7, 2000, p.__, col. __ ( N.Y. Sup. ).

[140]. McCartney v. Windsor, 1996 U.S. Dist. LEXIS 1623 ( E.D. Pa. 1996 ).

[141].Elsis v. T.W.A., 1989 N.Y. Misc. LEXIS 899 ( N.Y. Sup. 1989 ).

[142].Rodriquez v. Cardona Travel Bureau, 216 N.J. Super. 226, 523 A. 2d 281, 282 ( 1986 ).

[143].Markland v. Travel Travel Southfield, 810 S.W. 2d 81, 84 ( Mo. App. 1991 ).

[144].Evanoski v. All Around Travel, 178 Misc. 2d 693, 682 N.Y.S. 2d 342 ( 1998 ).

[145]. 14 Code of Federal Regulations § 257.1.

[146].McCoy v. MTI Vacations, Inc., 272 Ill. App. 3d 494, 208 Ill. Dec. 911, 650 N.E. 2d 605 ( 1995 ).

[147].Vick v. National Airlines, Inc., 16 CCH Aviation Cases 18,404 ( La. App. 1982 ).

[148].Rosen v. DePorter-Butterworth Tours, Inc., 62 Ill. App. 3d 762, 379 N.E. 2d 407 ( 1978 ).

[149].Das v. Royal Jordanian Airlines, 766 F. Supp. 169 ( S.D.N.Y. 1991 ).

[150].Burnap v. Tribeca Travel, 21 CCH Aviation Cases 17,321 ( N.Y. Civ. 1988 ).

[151].Pelegrini v. Landmark Travel Group, 165 Misc. 2d 589, 628 N.Y.S. 2d 1003 ( 1995 ).

[152].Touhey v. Trans National Travel, Inc., 47 Pa. D. & C. 3d 250 ( Pa. C.P. 1983 ).

[153].Vick v. National Airlines, Inc., 16 CCH Aviation Cases 18,404 ( La. App. 1982 ).

[154].Semrod v. Mexicana Airlines, 22 CCH Aviation Cases 17,747 ( D.N.J. 1991 ).

[155]. Pelegrini v. Landmark Travel Group, 165 Misc. 2d 389, 628 N.Y.S. 2d 1003 ( 1995).

[156]. See Travel Law, § 5.02, supra.

[157].See Travel Law, § 5.02[1], supra. See also, Wade,"Who's Afraid of Consolidators?", Practical Traveler, N.Y. Times, Travel Section, April 22, 1998, p. 4

( " air consolidators...are companies that sell tickets, usually for trips overseas, at prices below those the airlines advertise. There is indeed nothing illegal about them, but there are perils to be aware of. Most problems can be avoided with three rules: work through a travel agent, use a credit card and, if the price is preposterously low, go elsewhere " ).

[158]. See Travel Law, § 5.03, supra.

[159]. See Travel Law, § 5.04, supra.

[160].For a discussion of outside sales agents see Fee and Anolik, The Official Outside Sales Travel Agent Manual ( Travel Support Systems, Inc., Jupiter, Florida, 1996 )

( " Until now, ' outside sales ' has been the standard industry expression attached to those who sell travel ' outside ' the agency's premises " ).

[161].See e.g., F.T.C. v. Commonwealth Marketing Group, Inc., 1999 WL 816726 ( W.D. Pa. 1999 )( injunction obtained against telemarketing boiler room selling bogus travel services ); Cogswell,"FTC and State Attorneys General Target Purported Travel Fraud", Travel Agent, June 8, 1998, p. 112

( " On May 28 ( 1998 ), the Federal Trade Commission (FTC) announced that a federal judge had frozen the assets of CMG...on the grounds that (it was ) misleading thousands of consumers with false promises of free vacations...CMG used TV personalities Robin Leach and Ricardo Montalban to sell vacation cruises " ).

[162]. See Travel Law, § 4.10, supra.

[163].See Travel Law, § 4.07[3][d], supra ( jurisdiction on the Internet ); see also, Del Rosso," Class Action Litigationf. to Net Firms: Get Registered", Travel Weekly, February 15, 2001, p. 1

( " Californiafor the first time is putting on-line travel firms and Web site operators on notice that they must be registered under the state's Seller of Travel Law before they can sell travel on line to Californiaresidents " );

Bryant,"Web Travel Shopping: The Surf Is Rising", N.Y. Times, Travel Section, May 3, 1998, p. 3

( " Travelers booked $827 million worth of reservations over the Internet last year...by 2002, on-line bookings of air fares, hotel rooms, rental cars and vacation packages will jump more than tenfold to $8.9 billion ( per year ) " );

"Internet Gains Grounds As Travel-Scam Channel", Consumer Reports Travel Letter, July 1998, p. 145

( " Scams continue to proliferate...and the Internet has now joined traditional mail and telemarketing as a channel for them ");

Edelson, "ASTA Travel Scam Conference: Beware Of Fraud on the Web", Travel Agent, May 18, 1998, p. 119

( " ' The Internet is also the perfect medium for criminals. Anyone can put up a great-looking web site, and buying on the Internet is essentially sight unseen " ).

[164].See e.g., Plutchok v. European American Bank, 143 Misc. 2d 149, 540 N.Y.S. 2d 135, 136 ( 1989 )

( " the plaintiff received a postcard from Holiday Magic Travel Club, Inc...stating that he had been selected to receive a pre-paid luxury cruise plus hotel accommodations...");

see also " Pros and Cons of Travel Clubs ", Consumer Reports Travel Letter, Vol. 13, No. 7, July 1997, pp. 153-155

( " Those clubs sell some travel services directly; with other services, they resell some other organization's program...or provide ID that gets members a special price when they buy directly from some other supplier...Whether they promote by snail mail or the Internet, shady operators can easily assemble the ingredients of a conventional travel club. Half-price hotel directories are available at very lost cost. Any agency can find a source of consolidator air tickets, and any agency can set up a lowcost telephone based operation that rebates a portion of its commission " ).

[165].See Travel Law, § 5.05, supra.

[166].See Dickerson, "The Licensing and Regulation of Travel Sellers in the United States", Aviation Quarterly, [1998]TAQ 47-63, January 1998, p. 48

( "...consumers need to be protected from increasingly complex, misleading and deceptive travel scams. Recently, the Federal Trade Commission [FTC] and the Attorneys General of California, Connecticut, Florida, Illinois, Massachusetts, Michigan, New York, North Carolina, Ohio, Vermont, Washington and Wisconsin took legal action against a variety of travel scam operators. ' Travel has long been a fertile field for flimflam, but what had been a cottage industry has lately mushroomed into a growth industry...the FTC and the attorneys general of 12 states estimated the cost of travel related fraud at more than $12 billion a year...Travel fraud comes in many more packages than it used to ' " ).

[167]. Id.

[168]. See Travel Law, § 5.07(1), supra.

[169].Cal. Bus. & Prof. Code Section 17550.24(f).

[170].Cal. Bus. & Prof. Code Section 17550.21.

[171].Cal. Bus. & Prof. Code Sections 17550.23, 17550.35, 17550.7.

[172].R.I. Rev. L. Ann. Section 5-52.4. Travel agents and their travel agent employees are required to be licensed with the license conspicuously posted at the place of business. Licenses are subject to age requirements and a " reputation for honesty, truthfulness and fair dealing ".

[173].Hawaii Rev. L. Section 468L-2(b).

[174].Fla. Stat. Ann. Section 559.927(2)(a). Florida requires annual registration with the certificate of registration prominently displayed in the store and on all advertising material. The registration fee varies but shall not exceed $300.

As of July 1, 1997

" The Florida Division of Consumer Services said it will vigorously enforce an amendment to the state's Sellers of Travel Law that requires the registration of independent sales agents...The legislation defines an independent agent as anyone who has a written contract to represent a seller of travel; who does not receive a fee directly from the consumer on behalf of the seller of travel and who does not issue tickets or possess ticket stock. "

[ Blum,"Fla. Takes Hard Line on Seller Law", Travel Weekly, June 12, 1997, p. 25 ].

[175].Ohio Rev. Code Ann Section 1333.961(B). Ohio's program requires a one time registration with payment of a $10 fee for travel agencies and travel promoters. The legend " registered Ohio travel agency " along with a registration number must appear on all advertising material.

[176].Ore. Rev. Stat. Section 646.214. Travel Sellers are required to file a registration form containing a variety of information, pay a $100 annual registration fee and display their registration number in their place of business and on advertising material.

After two years of opposition Oregon travel agents successfully lobbied to have the registration requirement repealed. See Del Rosso,"Oregon Repeals Seller of Travel Law Registration Provision", Travel Weekly, June 23, 1997, p. 5

{ " Oregon agents had fought the provision since it was passed in 1995, claiming that the $100 annual registration fee was ineffectual for enforcement and that the law penalized legitimate agents and did not stop scam artists. " ).

[177].Va. Stat. Section 59.1-446. Virginia requires travel clubs to register and pay an annual fee of $350.

[178].Wash. Rev. Code Section 19.138.110-.130. Washington requires registration, the submission of a registration form, a registration fee of $234.00, a renewal fee of $234.00 and the use of a registration number on advertising material. Much like their neighbors in Oregon Washington travel agents are trying to amend Washington's Sellers of Travel law " to make it less burdensome on travel agents and tour operators " [ Del Rosso,"Wash. Lawmaker Reintroduces Amended Sellers of Travel Bill", Travel Weekly, March 17, 1997, p. 83 ].

[179]. See "Agents Split Over Nevada Law To Regulate Sellers Of Travel," Travel Agent, June 18, 2001, p. 8.

[180].R.I. Rev. L. Ann. Section 5-52-2(3). The person applying for the license must have been a travel agent for at least one year, working at the business for at least thirty-five hours a week, or demonstrate certification of a course of study at a recognized educational institution.

[181].R.I. Rev. L. Ann. Section 5-52.4.2. The purpose of the examination is

" to show the applicant's knowledge of reading, writing, spelling, elementary arithmetic, geography and in general the means and methods of domestic and foreign travel by air, rail, ship, bus or other medium of transportation, or hotel or other lodging accommodations and of the state and federal statutes and regulations relating to the same ".

[182]. For a discussion of Public Charter Surety Bonds see §§ 5.02[6][b][ii], supra, and 5.08[2][b], infra.

[183].See § 5.08[2][d], infra. Retail travel agents selling domestic airline tickets must be accredited by the Airlines Reporting Corporation (ARC) and obtain a performance bond with the airlines as the beneficiaries, not victimized consumers.

[184]. For a discussion of Public Charter Escrow Accounts see §§ 2.10[5], 5.02[6][b][I], supra.

[185]. For a discussion of travel insurance see § 5.08.

[186].The most difficult travel cases are those involving physical injuries caused by the negligence of a foreign ground operator [ bus company, parasailing operator, horse riding stable ] over whom local courts have no jurisdiction.

Under these circumstances legal theories are available to find local tour operators and travel agents liable. See § 5.02[5][c], supra. See also Dickerson, "Tour Operators And Air Carriers: Modern Theories of Liability", The Aviation Quarterly [ 1996-1997 ] TAQ 87-155, 1996.

See e.g.,Wong Mee Wan v. Kwan Kin Travel Services Ltd. [1995] 4 All ER 745 [ tourist drowns in Chinese lake after speedboat accident; tour operator had duty to select speedboat driver of reasonable competence and experience ).

[187].124.Ill. Ann. Stat. Ch. 121 ½ Section 1852.

[188].Cal. Bus. & Prof. Code Sections 17550.11, 17550.15.

[189]. Fla. Stat. Ann. Section 559.929. Registered Travel Sellers are required to obtain surety bonding or an equivalent letter of credit of no less that $25,000 or up to $50,000 if travel certificates are being sold.

[190]. Iowa Stat. Section 120.3. Iowa requires that each travel agency registration form be accompanied by a surety or cash performance bond in the amount of $10,000 for the benefit of defrauded consumers. This requirement may be waived if the travel agency has $1 million in errors and omissions insurance.

[191].Ohio Rev. Code Ann Section 1333.96(D). Ohio requires travel promoters to obtain a $50,000 surety bond if operating interstate and $20,000 surety bond if operating intrastate.

[192]. R.I. Rev. L. Ann. Section 5-52-4. Rhode Island requires travel agencies to post a $10,000 surety bond to indemnify consumers for actual damages.

[193].Va. Stat. Section 59.1-447. Virginia requires travel clubs to maintain a surety bond or letter of credit in an amount reflecting the number of consumer contracts [ $60,000 for up to 1500 contracts; $70,000 for up to 1750 contracts; $80,000 for up to 2000 contracts; $100,000 for 2001 or more contracts ].

[194].Ore. Rev. Stat. 646.200. Oregon requires Travel Sellers in business less than three years to post a $100,000 bond or a bond equal to 10 percent of the total revenue of the two highest consecutive months of business in Oregon in the prior calendar year, whichever is greater, up to maximum of $500,000.

[195]. See "Agents Split Over Nevada Law To Regulate Sellers Of Travel," Travel Agent, June 18, 2001, p. 8. Nevada requires travel sellers which are not accredited by the Airlines Reporting Corporation to obtain a $50,000.00 surety bond, letter of credit or certificate to cover claims in case of bankruptcy.

[196].See Travel Law, § 5.02[5][a], supra.

[197].For a discussion of how the escrow accounts of a charter air carrier and a tour operator work together to protect consumer monies see §§ 2.10[5], 5.02[6][b][I][A], supra.

[198].Hawaii Rev. L. Section 468L-5.

[199]. Ill. Ann. Stat. Ch. 121 ½ Section 1856.

[200].Ore. Rev. Stat. Section 646.208.

[201]. Cal. Bus. & Prof. Code Section 17550.15(b).

[202].Wash. Rev. Code Section 19.138.140.

[203].Va. Stat. Section 1-447.1.

[204].Evidently, non-residents of Californiaare not covered by the Travel Consumer Restitution Fund. See Stewart v. Travel Consumer Restitution Corp., No: 971719, Marin County Court ( Nevada resident challenges constitutionality of California's Travel Seller statute for excluding claims by non-residents even travel services were purchased from a Californiabased tour operator ).

[205].Cal. Bus. & Prof. Code Section 17550.44(b). The amount of the fund seems to have been reduced from $1.6 million to $1.2 million [Travel Trade, June 10, 1996, p. 1 ].

[206]. Cal. Bus. & Prof. Code Sections 17550.14(b), 17550.37.

[207].See e.g.,
New York:Meachum v. Outdoor World Corp., 235 A.D. 2d 462, 652 N.Y.S. 2d 749 ( 1997 )( misrepresentations in the marketing of vacation club camp grounds; deceptive and misleading business practices );Pelligrini v. Landmark Travel Group, 165 Misc. 2d 589, 628 N.Y.S. 2d 1003 ( 1995 )( travel agent negligently misrepresents that tour operator's vouchers were refundable when, in fact, they were not ); Marcus v. Zenith Travel, Inc., New York Law Journal, November 19, 1990, p. 25, col. 3 ( N.Y. Sup. ), aff'd 178 A.D., 2d 372, 577 N.Y.S. 2d 820 ( 1991 )( travel agent negligently misrepresents financial stability of tour operator );Vallery v. Bermuda Star Line, 141 Misc. 2d 395, 532 N.Y.S. 2d 965 ( 1988 )( cruise ship age and facilities misrepresented; consumer protection statute violated ).

Ohio: Gelfand v. Action Travel Service, Ltd., 55 Ohio App. 3d 193, 563 N.E. 2d 317 (1988)( travel agent negligently misrepresents that cruise ship can meet the needs of tourist with physical limitations ).

Canada, British Columbia:Litner v. Delta Charters, Inc., Docket: C945571, B.C. Sup. Ct. April 16, 1997 ( cruise aboard the Motor Vessel " Skeena " misrepresented ).

Great Britain :Richards v. Tricolors Coaches [ 1996 ] 12 CL 150 ( size of motor coach to carry families to football tournament misrepresented ); Clarke and Greenwood v. Airtours [ 1995 ] 4 CL 32 ( 3 star hotel in Tenerife misrepresented; dirty rooms infested with cockroaches, wild dogs on hotel grounds, graffiti );Stewart v. Trans Air International [ 1994 ] CLY 1523 hotel misrepresented; no air conditioning; children slept on balcony; TV had only two Spanish language channels ).

[208].See e.g.,

Second Circuit:Das v. Royal Jordanian Airlines, 766 F. Supp. 169 ( S.D.N.Y. 1991 )( travel agent failed to inform consumer that flight was waited listed ).

Third Circuit:Loretti v. Holiday Inns, Inc., 1986 WL 5339 ( E.D. Pa. 1986 )( travel agent may have failed to reveal incidence of crime in Bahamas ).

New Jersey:Rodriquez v. Cardona Travel Bureau, 216 N.J. Super. 226, 523 A. 2d 281, 282 ( 1986 )( travel agent failed to advise consumer of the need for travel insurance ).

New York :Levin v. Kasmir World Travel, Inc., 143 Misc. 2d 245, 540 N.Y.S. 2d 639 ( 1989 )( travel agent failed to advise of the need for a visa to enter China );Trip Tours, Inc. V. Zamani, 22 CCH Aviation Cases 17,425 ( N.Y. Civ. 1989 )( travel agent fails to reveal riskiness of using tour wholesalers for definitive travel plans ).

Ohio:Grigsby v. O.K. Travel, 118 Ohio App. 3d 671, 693 N.E. 2d 1142 ( 1997 )( travel agent liable for failing to investigate and determine that tour operator had failed to register as travel seller in the State ).

Oklahoma :Douglas v. Steele, 816 P. 2d 586 ( Okla. App. 1991 )( travel agent failed to reveal information regarding the financial instability of tour operator ).

Great Britain: Wong Mee Wan v. Kwan Kin Travel Services Ltd., [1995] All ER 735 ( speed boat accident; tour operator liable for failing to insure that " speedboats...operated by persons of reasonable competence and experience " ).

[209]. See Travel Law, § 5.06[4], supra. See also

Second Circuit : Passero v. DHC Hotels and Resorts, Inc., 1996 WL 931767 ( D. Conn. )( slip and fall on floatation mat at hotel; tour operator disclaimer enforced );Irving Trust Co. V. Nationwide Leisure Corp., 562 F. Supp. 960 ( S.D.N.Y. 1982 )( tour operator in hotel ' bait and switch ' scheme; disclaimer not enforced ).

Fifth Circuit:Brooks v. Timberline Tours, Inc., 1997 WL 686011 ( 10^th Cir. 1997 )( accident during snowmobile tour; disclaimer enforced ); Lavine v. General Mills, Inc., 519 F. Supp. 32 ( N.D. Ga. 1981 )( slip and fall on a rock during tour of Fiji; disclaimer enforced ).

Sixth Circuit:Sova v. Apple Vacations, 984 F. Supp. 1136 ( S.D. Ohio 1997 )( snorkeling accident; tour operator disclaimer enforced );Shannon v. Taesa Airlines, 25 CCH Aviation Cases 17,134, 17,135 ( S.D. Ohio 1995 )( tour participant assaulted in cockpit of charter air carrier; disclaimer enforced ).

Ninth Circuit: Chan v. Society Expeditions, Inc., 1997 WL 530531 ( 9^th Cir. 1997 )( accident during shore excursion; tour operator disclaimer not enforced ); Ramage v. Forbes International Inc., 1997 WL 785613 ( C.D. Cal. 1997 )( accident during motorcoach tour of Scotland; tour operator disclaimer enforced).

State Law:

Minnesota:Walton v. Fujita Tourist Enterprises Co., 380 N.W. 2d 198 ( Minn. App. 1986 )( slip and fall in Japanese hotel; disclaimer not enforced ).

New York:Elsis v. Trans World Airlines, Inc., 22 CCH Aviation Cases 17,805 ( N.Y. Sup. 1989) ( escape from burning Nile River boat; disclaimer not enforced ).

[210].See e.g.,

Arizona:Maurer v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 294, 890 P. 2d 69 ( 1994 )( failure to reveal prior deaths on tour operator's party train; violation of consumer fraud act ).

California:People v. Western Airlines, Inc., 18 CCH Aviation Cases 18,051 ( Cal. App. 1984 )( fare misrepresented ).

/Illinois/:McCoy v. MTI Vacations, Inc., 272 Ill. App. 3d 494, 208 Ill. Dec. 911, 650 N.E. 2d 605 ( 1995 )( travel agent failed to notify consumers of flight changes; violation of Consumer Fraud Act ).

New York:Pelegrini v. Landmark Travel Group, 165 Misc. 2d 589, 628 N.Y.S. 2d 1003 ( 1995 )( travel agent misrepresents refundability of tour vouchers; violation of consumer protection act).

Pennsylvania:Brunwasser v. Trans World Airlines, Inc., 17 CCH Aviation Cases 17,723 ( W.D. Pa. 1982 )( air fares misrepresented ).

Vermont:State v. Stedman, 547 A. 2d 1333 ( Vt. Sup. 1988 ) ( resort time share fraud violates Vermont Consumer Fraud Act ).

[211].Fla. Stat. Ann. Section 559.927(8)(b).

[212].Va. Stat. Section 59.1-454.

[213].Hawaii Rev. L. Section 468L-10.

[214].Mass. Gen. L. Ch. 93A, Section 2(c), 940 CMR 15.01(1).

[215].Wash. Rev. Code Section 19.138.290.

[216].Ill. Stat. Ann., Ch. 121 ½ , Section 1857. See also: McCoy v. MTI Vacations, Inc., 272 Ill. App. 3d 494, 208 Ill. Dec. 911, 650 N.E. 2d 605, 607 ( 1995 )( travel agent failed to notify consumers of flight changes; violation of Illinois Travel Promoter Act is violation of Consumer Protection Act ).

[217].Cal. Bus. & Prof. Code Section 17550.12.

[218].Fla. Stat. Ann. Section 559.927(3)(a).

[219].Ill. Ann. Stat. Ch. 121 ½ Section 1853.

[220].Mass. Gen. L. Ch. 93a Section 2(c), 940 CMR 15.03(1).

[221].N.Y. General Business Law Section 158-a(3).

[222].Ore. Rev. Stat. Section 646.202.

[223].Va. Stat. Section 58.1-44(5).

[224]. Wash. Rev. Code Section 19.138.030.

[225].See e.g., Cal. Bus. & Prof. Code Section 17550.14(b) and Wash. Rev. Code Section 19.138.050(2).

[226].N.Y. General Business Law Section 158 ( The prohibited practices include knowing misrepresentations of the quality of the travel service and of the transportation charges, selling transportation at lower than tariff rates, misrepresenting special priorities for reservations, selling charters without a binding commitment from the carrier, issuing transportation tickets that will not be honored and misrepresenting charter group qualifications ).

[227]. N.Y. General Business Law Section 158-a ( The prohibited practices include (1) offering free travel services to one member of a group when the total of the group's travel services include the " free " services; (2) using a merchant account number other than the travel promoter's for credit card transactions, (3) misrepresenting the quality and availability of travel services, (4) misrepresenting fares, (5) selling transportation at below tariff rates, (6) misrepresenting special reservation's priorities, (7) selling charters without binding carrier commitments, (8) issuing tickets that will not be honored and (9) misrepresenting charter qualifications.

[228]. Fla. Stat. Ann. Section 559.927(2)(b).

[229].Va. Stat. Sections 59.1-449(1)-(9). Virginia prohibited practices include: (1) selling travel services at prices greater than available without " travel club membership ", (2)misrepresenting any of the descriptive features of the travel services offered unless based upon a reasonable belief, (3) misrepresenting the fares and charges for transportation and services, (4) misrepresenting the availability of priority reservations that are otherwise available to the general public, (5) selling tickets that can not be honored by carriers, (6) misrepresenting charter tour requirements and (7) using the terms " time share " and " vacation ownership " which are otherwise regulated by the Virginia Real Estate Time-Share Act.

[230].Mass. Gen. L. Ch. 93A Section 2(c), 940 CMR 15.03. In Massachusetts Travel Sellers may not misrepresent (1) the total price of any travel service, (2) the scheduled date, time or location of any departure or arrival time, (3) the planned modes of transportation, (4) the planned provider(s) of transportation, (5) the name, location or amenities of any lodging, (6) the terms of any substitution policy that may apply, (7) the terms of any insurance policy offered by or through any seller of travel, (8) the terms of any cancellation or refund policy, and (9) the billing practices of the seller of travel.

[231].See Ns. 93-96, supra. See also § 5.03[3][d], supra.

[232].Cal. Bus. & Prof. Code Section 17540.8(g).

[233].Hawaii Rev. L Section 468L-4.

[234]. Ill. Ann. Stat. Ch. 121 ½, Section 1855.

[235].Mass. Gen. L. Ch. 93A, Section 2(c), 940 CMR 15.04.

[236].N.Y. General Business Law Section 157-a.

[237].Ore. Rev. Stat. Section 646.204.

[238].Va. Stat. Section 59.1-448.

[239].Wash. Rev. Code. Section 19.138.040

[240]. Compare Lerner v. Karageorgis Lines, Inc., 66 N.Y. 2d 479, 497 N.Y.S. 2d 894, 488 N.E. 2d 824 ( 1985 )( New York's consumer protection rule that consumer contracts must be in 8 point typepreempted by maritime law which allows passenger tickets to be in 4 point type.

[241].N.Y. General Business Law Section 157-a(3).

[242]. Ill. Ann. Stat. Ch. 121 ½, Section 1855.

[243].N.Y. General Business Law Section 157-a(1)(d).

[244].Hawaii Rev. L. Section 468L-6.

[245].Hawaii Rev. L. Sections 468L-7(1)-(7). The statutory rights which must be disclosed are (1) the right to proper disclosure, (2) the right to rely on the travel agent's guarantees and promises, (3) the right to have the travel agency fulfill its contracts and honor its guarantees, (4) the right to be informed of cancellation provisions, (5) the right to obtain all tickets upon full payment and (6) the right to have a full refund within fourteen days of a request.

[246].Va. Stat. Section 59.1-448(B),(C).

[247].Cal. Bus. & Prof. Code Section 17554.

[248].Mass. Gen. L. Ch. 93A Section (2)(c), 940 CMR 15.04(2)(d).

[249].Mass. Gen. L. Ch. 93A Section (2)(c), 940 CMR 15.04(2)(f).

[250].Fla. Stat. Ann. Section 559.927(8)(b).

[251].Hawaii Rev. L. Section 468L-10.

[252]. Ill. Stat. Ann., Ch. 121 ½ , Section 1857. See also McCoy v. MTI Vacations, Inc.,, 272 Ill. App. 3d 494, 208 Ill. Dec. 911, 850 N.E. 2d 605, 607 ( 1995 )( violation of Illinois Travel Promoter Act is violation of Consumer Protection Act ).

[253].Mass. Gen. L. Ch. 93A Section 2(c), 940 CMR 15.01(1).

[254].Va. Stat. Section 59.1-454.

[255].Wash. Rev. Code Section 19.138.290.

[256].See N. 166, supra. [257].Cal. Bus. & Prof. Code Section 17550.19. See Del Rosso, "Class Action Litigationf. Charges Operator, Agents Under Seller Law," Travel Weekly, July 10, 1997, p. 27

( " The Californiaattorney general's office made good on its promise to crack down on travel firms that violate the Seller of Travel Law...The office assessed Sun Trips, a major West Coast Mexico and Hawaii wholesaler, $100,000 in fines and $34,000 in investigating fees for not depositing credit card transactions into a trust account..." ).

[258].Hawaii Rev. L. Section 468L-12.

[259].Fla. Stat. Ann. Sections 559.927(10),(11).

[260].Ill. Ann. Stat. Ch. 121 ½, Section 1857.

[261].Iowa Stat. 120.4.

[262].N.Y. General Business Law Section 159.

[263].Ohio Rev. Code Ann. Section 1333.99.

[264].Ore. Rev. Stat. Section 642.218.

[265]. R.I. Rev. L. Ann. Section 5-52-12.

[266].Wash. Rev. Code Sections 19.138.210-.250, .270.

[267].In New York the failure of a travel agency to obtain a license prevented the agency from enforcing a contract against a consumer. See Ungar v. Travel Arrangements, Inc., 25 A.D. 2d 40, 266 N.Y.S. 2d 715 ( 1966 ). In Washington this rule has been codified in Wash. Rev. Code Section 19.138.260 ( " In order to maintain or defend a lawsuit, a seller of travel must be registered..." ).

[268]. Ohio Rev. Code Ann. Section 1333.96(G)

( " A contract for transportation or land arrangements between the purchaser of the arrangements and a tour promoter doing business in this State in violation of this section is voidable at the option of the purchaser " ).

California[ Cal. Bus. & Prof. Code Section 157550.14(b) ] and Illinois [ Ill Ann. Stat. Ch. 121 ½, Section 1855 ] authorize full refunds if the Travel Seller cancels the consumer's reservation for any reason, and even more salutary, provide that any ' misrepresentation ' with respect to the date, time, place of all departures or arrivals or the type of equipment being used is a cancellation requiring a full refund. In Washington [ Wash. Rev. Code. Section 19.138.050(2) ]

" Any material misrepresentation with regard to the transportation and other services offered shall be deemed to be a cancellation necessitating the refund...".

[269].The marketing of travel services involves several levels including suppliers, tour operators, travel agents and other Travel Sellers. Often the consumer is injured or suffers monetary damages due to the tortious misconduct of foreign suppliers who may not be subject to local jurisdiction, may be insolvent, uninsured or irresponsible [ See § 5.01, supra ]. For consumers to be successful in travel litigation arising from such misconduct they must establish that local tour operators and travel agents may be held liable for the defaults of foreign suppliers. This can be accomplished in one of three ways. First, by statute as is done in the European Community in the E.C. Directive, Article 5(10)[ See § 5.02[10][h], supra

( " The tour organizer or retailer shall be liable to the consumer for proper performance regardless of whether a supplier hotel or air carrier is responsible " );

see also European Travel Law, supra, at Chapter 2, pp. 54-55 ]. Second, tour operators and travel agents have a duty to investigate the reliability of suppliers and a failure to do so generates liability [ See §§ 5.02[5],[6]; 5.03[3][c],[d], supra ]. Third, there are several liability shifting legal theories [ assumed duty, breach of warranty, estoppel, apparent authority ] available for imposing liability upon tour operators and cooperating air carrier for the misconduct of foreign suppliers [ see § 5.02[5][c][iv], supra; see also Dickerson,"Tour Operators and Air Carriers: Modern Theories of Liability", The Aviation Quarterly [ 1996-97 ] TAQ 87-155, 1996 ].

[270]. Texas Ins Code Art. 21.09.s

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Class Action Litigation Information

A Service of Timothy E. Eble, P.A.

TRAVEL AGENTS 2001 : THE CONSUMER'S RIGHTS & REMEDIES FOR PERFORMANCE FAILURE

FOOTNOTES