TRAVEL CONSUMER REMEDIES : SMALL CLAIMS COURTS AND CONSUMER CLASS ACTIONS
The reality of travel consumer claims against suppliers, tour operators and travel agents is that the recoverable damages are often too small to justify the expense of hiring an attorney and prosecuting a lawsuit. Even in the United States where attorneys are permitted to represent clients on a contingency fee basis most travel consumer claims [ e.g.,transportation delays and cancellations; hotel over- booking and breach of reservations' contracts; lost, damaged or stolen baggage; misrepresentations regarding the accommodations, facilities, services and food available at hotels or on a cruise ship and failing to warn of hazards and reveal needed information about required travel documentation, travel restrictions and health and safety conditions at the destination ], simply, do not generate sizable monetary recoveries.
Typical Damages
In travel cases the typical damages include all or a portion of the tour price and out of pocket expenses such the costs of purchasing alternative accommodations or transportation, the costs of replacing lost clothing and the costs of purchasing the facilities and services which were promised but not delivered. More recently, however, some Courts have been more generous in awarding damages for intangibles. For example, in Das v. Royal Jordanian Airlines a passenger was wait listed and the Court awarded $240.00 for waiting time and $1,000.00 for the emotional distress inflicted on the passenger. In Vick v. National Airlines, Inc. a couple never arrived at their chosen destination and the Court awarded each $2,500.00 for the loss of " a refreshing, memorable vacation ". In Semrod v. Mexicana Airlines the passenger was overbooked and the Court awarded $3,000.00 for the loss of " intangible pleasure of a 24 hour vacation day ". In Pelligrini v. Landmark Travel the consumer lost his full tour price after canceling the tour without being informed that the tickets were nonrefundable and the Court awarded the full tour price of $1,032.00 and $250.00 for " the harassment and annoyance experienced...and the loss of a planned vacation ". Lastly, in Touhey v. Trans National Travel the traveler was overbooked at a hotel and the Court awarded $25,000.00 for the " loss of what was to have been a pleasant week ".
Small Claims Courts
In the United States most Cities and Counties have Small Claims Courts where for a small fee [ $5.00-$10.00 ] an aggrieved consumer may commence a lawsuit against the seller or manufacturer of a defective product or service. The consumer needs no knowledge of substantive law or of legal procedures and is encouraged to state his or her claim is the simplest of terms. Small Claims Courts will hear almost any type of monetary claim limited only by a jurisdictional amount $1,500.00 to $3,000.00. Once served with the complaint the defendant is required to come to Court, with or without an attorney, appear before a Judge or arbitrator and settle or try the case.
Small Claims Court Philosophy
The historical imperative which generated Small Claims Courts was " equal access to justice " a recurring political theme even today. As stated by Elihu Root there was no reason " why a plain, honest man should not be permitted to go into court and tell his story and have the judge before whom he comes permitted to do justice...unhampered by a great variety of statutory rules ".
Streamlined Procedures
From their inception the goal of Small Claims Courts has been to provide a simplified and expeditious mechanism whereby economically unlitigatable claims may be heard without the burden of being bound by rules of practice, procedure, pleading and evidence. Streamlined procedures mean that motion practice is discouraged, discovery must be approved by the Court, evidentiary rules are relaxed and hearsay evidence is admissible and specific pleading requirements do not apply.
Judges Must Be Active
Judicial passivity will not lead to substantial justice in Small Claims Court. Judges must take an active role in helping the parties marshall their evidence, and organize and present their cases so that causes of action and defenses can be proven and damages established. As stated by one Judge " we must direct claimant's attention to those precise questions which case law ...requires be answered in order for the claimant to recover... By doing so, we guarantee due process..."
Successful Travel Law Cases
Small Claims Courts work and victimized travelers should bring their claims before a Judge. Several important travel law cases have been brought in Small Claims Courts, e.g., Bucholtz v. Sirotkin Travel Service [ travel agents have a special fitness and are responsible for investigating the financial responsibility of tour operators ], Prechtl v. Travel House of Garden City [ travel agent responsible to independently verify that a tour operator has booked the services described in the tour brochure ], Trip Tours, Ltd. V. Zamani [ travel agent responsible to independently verify availability of air transportation promised by a wholesaler ], Fix v. Travel Help [ travel agent liable for lost contract payment when tour operator goes bankrupt; failure to investigate financial stability ], Pelligrini v. Landmark Travel [ travel agent who failed to reveal that tour vouchers nonrefundable liable for lost tour price when consumer canceled ].
Travel Consumer Class Actions
Both Federal and State Courts in the United States permit large numbers of victimized consumers to aggregate their claims and sue together as a class [ see Dickerson, Class Actions: The Law of 50 States, Law Journal Press, New York ]. One person may commence a class action asserting claims on behalf of hundreds or thousands of " similarly situated " travelers who were on the same delayed aircraft [ Klakis v. Nationwide Leisure Corp. [ tourists lost 2 ½ days from 5 day tour because of delayed air transportation ]], who stayed at the same misrepresented resort [ Guadagno v. Diamond Tours & Travel, Inc.[ Club Islandia in Jamaica half finished and most promised services unavailable] , who cruised on the same malfunctioning cruise ship [ D'Amico v. Sitmar Cruises, Inc. [ tainted food and water causes shipwide diarrhea ]], who purchased the same overpriced air transportation [ In Re Domestic Air Transportation Antitrust Litigation [ 8 domestic airlines fixed prices ]],and who were stranded overseas when a tour operator absconded with tour participant payments [ Nielan v. Value Vacations, Inc. [ 2,000 consumers lost tour payments and paid for their own return air transportation ]].
Class Action Requirements
The Court must decide whether to allow the proposed class action to proceed as such. The plaintiff must demonstrate to to the Court that the class is sufficiently numerous [ more than 100 will do ], that common factual and legal questions predominate individual issues, that plaintiff's claims are typical of those of the class, that plaintiff and his attorney will adequately represent the class and that the class action is superior to other available procedures for the resolution of the dispute. Once the Court allows the action to go forward as a class action notice is sent to class members giving them an opportunity to stay in the action or remove themselves.
Class Action Advantages
Unlike Small Claims Courts the class action procedure serves the purpose of providing sufficient economic incentive through the aggregation of many small claims to encourage attorneys to represent victimized consumers. Some travel cases involve complex liability and damages issues which will require lengthy investigations and trial preparation. Such cases must be prosecuted as class actions.
Conclusion
The travel consumer's ability to prosecute his claim is essential to the enforcement of rights. Both Small Claims Courts and the class action device allow consumers to assert their claims in a cost effective manner.
Thomas A. Dickerson is a Westchester County Court Judge and author of Travel Law, Law Journal Press, New York, 1981-2000 ( updated biannually ).