Mark Pestronk is a Washington-based lawyer
specializing in travel law.
Q:In corporate travel, more and more transactions use agency online book- ing tools such as Concur, Get There,
RESX and Nu Travel. In a recent column
[“Hotel websites’ terms can leave consumers without recourse,” March 12] you wrote
that these systems do not require travelers
to agree to hotel chains’ onerous terms and
conditions. Would the same reasoning apply
to airlines’ terms and conditions?
passenger, that is not quite true. The Airline Deregulation Act and a DOT rule allow airlines to incorporate their terms and
conditions by reference, but only if there
is a ticket (or e-ticket) and a “conspicuous
notice” that certain terms of the conditions
of carriage are incorporate by reference.
sonable communicativeness” test would
also come into play. Even if there is no
ticket or notice whatsoever, the passenger
could still be bound if he or she is “an experienced commercial air traveler,” which
would probably be the case for the majority
of corporate employees using these tools.
ing the same booking system would pro
ably not be bound by the airline’s term
and conditions. In travel law, ignorance ca
be an excuse.
However, the second prong of the “rea-
Conversely, an inexperienced traveler us-
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email Mark Pestronk at mark@pestron
A:That is a very good question. Could American Airlines’ 7,700-word Con- ditions of Carriage, for example, apply to a traveler who books on a site that
does not show, link or even refer to them?
To find the answer, we look at the case
law concerning the “reasonable communicativeness” test that the federal courts have
enunciated. This is a complicated, legalistic
formula that tries to justify when a passenger can be held to a contract that he has
never seen, read or even thought about.
In a recent case, the court outlined the
test’s two-pronged approach: “First, the
court is to assess the physical characteristics
of the ticket/contract, including features
such as size of type, conspicuousness and
clarity of notice on the face of the ticket,
and the ease with which a passenger can
read the provision in question.
“Next, the court is to examine the circumstances surrounding the passenger’s
purchase and retention of the ticket/con-tract. The surrounding circumstances to be
considered include the passenger’s famil-
Only the carriers themselves
notice of their
A THANK YOU
iarity with the ticket, the time and incentive
under the circumstances to study the provisions of the ticket and any other notice
that the passenger received outside of the
ticket. Important is whether the passenger
is an experienced commercial air traveler.”
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In online bookings using corporate
booking tools, a carrier’s attempt to enforce
its conditions of carriage would clearly fail
the first prong of the test. There is no “
tick-et/contract,” no document with any “size of
type,” no “conspicuousness,” no “clarity of
notice,” as the conditions of carriage do not
appear on the booking website.
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Interestingly, although the Department
of Transportation (DOT) recently adopted
a rule requiring agencies to include, in e-ticket confirmations, each carrier’s carry-on and checked-baggage allowances and
fees, there is no rule requiring agencies to
provide any notice of conditions of carriage in those confirmations. Only the carriers themselves are required to provide
notice of their conditions of carriage.
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Although the airlines would argue that
their conditions of carriage apply to every
transaction regardless of any notice to the