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It pays to double-check availability!


This interview deals with booking procedures for travel agents.

Before making a booking, travel agents are well advised to double-check the availability of tours, travel services and the standard of the accommodation. In no circumstances can agents safely rely on a brochure (printed or on a website) as their sole source of information on a tour, a cruise, a resort or a hotel. They should also hold confirmed bookings.

Otherwise … if a client arrives to find that an advertised service isn’t available, or a hotel isn’t open or falls short of the advertised standard, or no room has been booked, then the agent will be responsible to compensate the client, either soley, or jointly with the supplier.

Availability

“Just because the brochure says a ski resort is open on a certain date, doesn’t mean that it will be,” says specialist tourism lawyer Anthony Cordato, author of the book “Australian Travel & Tourism Law”.

“A travel agent found this out to its cost in a case which ended up before the NSW Consumer, Trader and Tenancy Tribunal in 2003.”

That case, outlined in “Australian Travel & Tourism Law”, concerned two travellers who, before booking a holiday in New Zealand, discussed with a representative from the travel agency, their requirement for two days skiing to be included in their two week holiday. They were given a brochure stating that the ski season at Mt Hutt was from “late May to October”. The agent relied entirely on the brochure, and did not check skiing availability with the resort for a date in late May. When the two travellers arrived, they found that no skiing was available, as the ski season had not opened.

The Tribunal awarded $500 for the loss of two days skiing in New Zealand, payable by the agent, because the agent had misled the travellers on the booking. That amount was awarded, rather than the full cost of the holiday, as the holiday was not a total failure because the travelling and sightseeing components were available as booked for the rest of the holiday.

“It’s a difficult one for agents to get around,” Cordato concedes. “I don’t think that agents are forced to check every fact in the tour itinerary in the brochure. But when a client makes a point of wanting some feature in the brochure, the agent can’t rely on the brochure alone when making the booking – they have to take one further step and make an inquiry somehow to confirm the information, to protect themselves. It might entail checking by email or phone.”

Standard

While checking availability is important, checking the standard of accommodation is also important when making the booking. The brochure might feature photographs with luxury fit-outs in hotels. The reality could be quite different. The booked accommodation might be less luxurious than advertised – being of a three-star standard, instead of the advertised four-star property, for instance.

“Checking the standard of accommodation is often difficult to do. They can’t visit all the properties to check them out, emailing or telephoning the accommodation won’t give a different impression, and it is often difficult to independently verify standards.”

The law does recognise that ‘reasonable reliance on information provided’ is an answer to a claim against an agent for misleading standard of accommodation (and brochure information generally).

Confirmed Bookings

Another case, heard by the NSW Consumer, Trader and Tenancy Tribunal in 2004, illustrates how the law looks at compensation in a case where confirmed accommodation was not available.

A married couple booked through their travel agent a package holiday at the Angasana Resort in the Maldives, as advertised in a tour operator’s brochure. The booking included accommodation in a beachfront villa for six nights. Upon arrival, they were told that the accommodation had not in fact been confirmed, and they were placed in alternative accommodation in a so-called garden villa, as an interim measure for three nights before being transferred to the beachfront villa for the last three nights of their stay.

While they were there, the couple accepted in writing an offer of compensation of $550 from the resort, representing what the resort stated to be the difference in price between the garden villa accommodation for the first three nights and the beachfront villa for the last three nights.

When they arrived home, the couple had second thoughts and did not bank the cheque. Instead, they claimed $4,000 as compensation for spending three nights in the garden villa out of a price of $9,060 (which included airfares and accommodation).

The tour operator defended the claim on two bases:
  1. The $550 had been accepted in satisfaction of the claim. The NSW Consumer, Trader and Tenancy Tribunal rejected this defence, stating that the $550 was accepted under duress, as the couple believed that if they did not accept that money, they would have had to stay in the garden villa for the whole of the holiday.
  2. The $550 paid was adequate compensation for the inconvenience, given that they were still able to use all the facilities of the resort, and enjoy their holiday despite the difference in the accommodation.

In considering this defence, the Tribunal found that the type of accommodation booked, which was described as “being private, luxurious and beach frontage”, was critical. The garden villa lacked the seclusion, privacy and direct beach access of the beachfront villas. The Tribunal found that the garden villas were not offered as tourist accommodation (it seems the garden villas were employee accommodation) and were not considered by the Tribunal to be acceptable for international tourists.

“Australian Travel & Tourism Law” relates that the Tribunal awarded damages for the loss of holiday, calculated as follows: the accommodation represented 62% of the total holiday price, and because the couple enjoyed the promised accommodation for half of the time, then the damages awarded were 31% of the price, namely $2,808.60. The Tribunal took into account the anxiety of being stranded late at night at a foreign airport (because initially, the resort denied the booking), the uncertainty as to the final arrangements, the inconvenience of having to unpack and repack and unpack again due to the move between villas, and the anxiety, disappointment and distress caused by the failure to provide the promised accommodation. In the outcome, the Tribunal did not offset any amount as the cost of the stay in the garden villa accommodation for the first three days.

In this case, the travel agent was able to breathe easily, having done their job properly. The agent was not responsible because the booking had been made as promised and beachside villas were available, in the standard represented in the brochure. The problem lay at the door of the tour operator, which was unable to explain why a beachfront villa was not available, even though confirmed bookings were held.

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Note: this was the fifth in a series of five interviews in which specialist tourism lawyer Anthony Cordato discusses issues of vital importance to travel agents.

Published with the kind permission of e-travel blackboard, where the article was first published in August 2007, and with the kind permission of Peter Needham.

© Copyright 2016 Cordato Partners