Mark Pestronk
Q:Adventure or expedition travel is increasingly popular. I notice that all tour operators that organize these trips have extensive waivers that participants must agree to. Do these documents protect our agency and our advisors as well as the operator itself? If not, do we need our own waiver when we sell such a trip? If so, what should it provide, other than our usual verbiage for disclaimers and insurance waivers?
A: Typically, tour operators’ waivers cover the operator and “its employees, officers, directors and agents.” Since you are the agent of the operator, the waiver probably covers you.
However, you can’t really count on such coverage in all cases, as a court may decide that your agency was not legally the agent of the operator or that the operator’s waiver is legally unenforceable for a variety of reasons. The law of waivers varies from state to state, and tour operators’ efforts to comply with all states’ laws are sometimes unsuccessful. For example, in some states, a waiver of negligence will not be upheld under any circumstances.
By the way, by “waiver,” I assume you mean a document in which the tour participant releases the operator from liability in advance of the trip. Synonyms for waiver are “release” and “hold harmless agreement.” A waiver is in contrast to a disclaimer, which is a statement that simply explains that your agency is not liable for what happens on a trip.
Because of the legal uncertainties inherent in operator’s waivers, it’s a good idea for your agency to have its own disclaimer for adventure trips. Your disclaimer is more likely to be enforced than the operator’s waiver because you don’t need to have the client agree to release your agency from its own negligence. You only need to make clear that you aren’t responsible for what happens to the client on the trip.
You could start with the model retail agency disclaimer that you can find at www.pestronk.com/resources. You would then want to add some specifics about the particular trip you are selling. The more specific the injury you mention, the more likely it is that your disclaimer will be upheld if that injury occurs.
For example, in the paragraph stating that you are not responsible for things that happen on a trip, such as acts of God, you could add the following: “We are not responsible for personal injuries such as broken arms and legs occurring during your Alpine ski tour.”
If you want to try a waiver, you could also use the one at the end of the same paragraph. It could serve as a useful deterrent to litigation — but don’t count on it being enforced.
One more thing: You need to make sure the operator’s name appears on the itinerary, as you should not give the impression that your agency is the operator. Otherwise, a court could hold that, as the agent for an undisclosed principal, you stand in the shoes of the operator for liability purposes.