Airline held liable to passenger for travel agent negligence

Rottman v. El Al Israel Airlines (N.Y. City Civil Ct. Jan. 14, 2008).  The parties in this case reprised a battle that has been fought in many passenger cases over the years:  whether a travel agent was acting as an agent of an airline or as an independent contractor when the travel agent sold the passenger a ticket.  In this case, the passenger prevailed.

The passenger had bought tickets from a travel agent for travel between Baltimore and Tel Aviv.  The passenger was to take a flight from BWI to JFK on a domestic airline and then from JFK to Tel Aviv on El Al.  However, the BWI-JFK ticket issued by the travel agent did not allow the passenger sufficient time to comply with El Al’s rule requiring that passengers check in at least three hours before departure.  As a result, El Al deemed the passenger a “no show,” causing the passenger to forfeit his seat on the flight.  The passenger bought a one-way ticket on a different airline and traveled to Tel Aviv three days later.

The passenger sued El Al for breaching the parties’ contract by refusing to transport him and for the travel agent’s negligence in issuing a ticket that made it impossible for the passenger to comply with the advance check-in rule.  The court held that the airline did not breach the contract because the passenger did not attempt to check in until less than an hour before the flight’s departure, thus violating the check-in rule and allowing the airline to deny him transportation on the flight.

As to the negligence claim, the airline claimed that it was not liable because the travel agent was the airline’s independent contractor, not its agent.  The court disagreed.  Citing two 30-plus year-old cases and the Restatement of Agency, the court held that the travel agent was acting as the airline’s agent when it sold the tickets to the passenger and, thus, that the airline was responsible for the travel agent’s error.  The court awarded the passenger a judgment in the amount of the one-way ticket that the passenger had bought.

Note:  The court’s opinion does not contain any indication that the court, in deciding whether an agency relationship existed between El Al and the travel agent, considered the degree of control that the airline actually had over the travel agent.  As the Ninth Circuit correctly held in Harby v. Saadeh and Kuwait Airways, in passenger lawsuits against airlines, an agency relationship between the airline and a travel agent only exists where the passenger has met the burden of proving that the airline had agreed to allow the travel agent to act on its behalf and subject to its control.  In Harby, the court held that Kuwait Airways was not liable for a travel agent’s negligence in failing to warn the passenger about the airline’s infrequent flight schedule because the passenger had failed to meet his burden of proving that the airline actually controlled such agent, thus leading the court to conclude that the agent had simply acted as a broker, i.e., an independent contractor.

In Rottman, the court concluded that El Al and the travel agent stood in an agency relationship simply because, in the court’s view, all airlines and travel agents that issue tickets for them do so.  In support of its conclusion, the court in Rottman cited the following sentence from the Restatement of Agency:  “Analogizing them to insurance agents, travel agents have been characterized as the agents of airlines and other service providers for whom they issue tickets to customers.”  But, later in the same paragraph, the Restatement of Agency also states:  “In other situations, courts have analogized a travel agent to an insurance broker or, reasoning differently, have characterized a travel agent as the customer’s agent.”  As Harby and the Restatement indicate, in passenger lawsuits against airlines, an agency relationship does not always exist between the airline and a travel agent that sells tickets for that airline.

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