Chapter § 1.01 THE NATURE OF THE TRAVEL INDUSTRY

• Jurisdiction: United States
• Publication year: 2021

§ 1.01 The Nature of the Travel Industry

The travel industry markets and delivers travel services including transportation, hotel accommodations, resort time-shares, entertainment, advice and recommendations, among other services. The travel industry consists of three basic components:

[1] Suppliers

Suppliers include air carriers, cruise lines, railroads, buses, rental cars, hotels, resorts, casinos, theme parks and resort time-share developers and promoters. Suppliers are entities that are ultimately responsible for the delivery of transportation, accommodations and entertainment to the traveling public.

[2] Tour Operators

Tour operators purchase large blocks of travel services from suppliers and combine these services into discrete units referred to as a package tour. These tours as well as the services offered directly by suppliers are marketed through a retail distribution system.

[3] Travel Sellers

Travel agents promote and sell the tours and services offered by a variety oF. Suppliers and tour operators. Travel agents not only sell tours and services but also render advice, calculate expenses, plan itineraries and perform other individualized services for the traveling public. In addition to professional travel agents there are other travel sellers including consolidators, pseudo travel agents, outside sales representatives, independent contractors, telemarketing "boiler rooms," time share salesmen, Internet websites, travel clubs, and informal travel promoters.

Taken as a whole, the component parts of the travel industry constitute an integrated and inter-related system. It is impossible to properly evaluate and analyze a travel case without first considering how the particular travel services was marketed and delivered to the injured traveler. This is true not only for plaintiff's counsel but for the courts as well.

[4] Recent Developments That Have Reshaped the Travel Industry

[a] September 11, 2001, Disaster and Terrorism

The most important recent development that has reshaped the travel industry was the September 11, 2001, disaster when some 3,000 people died as the result of four terrorist hijackings of commercial aircraft and the subsequent destruction of the World Trade Center Towers in New York City and damage to the Pentagon in Washington, D.C. The September 11, 2001, disaster has dramatically changed security measures implemented by airlines,¹ cruise lines,² railroads and bus companies,³ hotels,⁴ resorts, casinos, theme parks and time share facilities,⁵ tour operators, travel agents and Internet travel sellers⁶ and increased the traveler's discomfort level with airport and other security delays.⁷ Security concerns, including racial profiling⁸ and liability,⁹ will remain ongoing issues for the foreseeable future.¹⁰

In recent years there have been an extraordinary number of terrorist suicide attacks in the United States, the United Kingdom, France, and in many other locations where tourists congregate. These attacks have been carried out by Islamic extremists (ISIL) and homegrown terrorists in the United States and elsewhere. For example, in Dickerson, "Las Vegas Massacre," New York Law Journal, January 17, 2018, it was noted that on October 1, 2017, Stephen Paddock while a guest at the Mandalay Bay Resort & Casino in Las Vegas, Nevada, and occupying a suite on the 32nd floor, with a "Do Not Disturb" sign on the door for three days¹¹ broke open two windows and opened fire on a crowd of some 22,000 people attending the Route 91 Harvest Festival across Las Vegas Strip, killing 59 people and injuring more than 450. It appears that Mr. Paddock was a VIP guest of the hotel and during his stay was able to use a service elevator and transport 17 firearms and hundreds of rounds of ammunition to his suite undetected.¹² For discussion of the Las Vegas Massacre, see Section 4.01[2][c], infra.

While hotels and concert venues are favorite targets for terrorists both home¹³ and abroad,¹⁴ the Las Vegas incident appeared to be unique featuring a VIP hotel guest turning his suite into a shooting platform to kill and wound hundreds of non-guests enjoying a concert across the street from the hotel. These terrorist attacks have had a profound effect on travel and consumers should inform themselves of dangerous destinations.¹⁵

[b] Selling Travel on the Internet

A second important development has been the rapid proliferation and ever-increasing consumer acceptance of the sale of travel services over the Internet by suppliers, tour operators, travel agents and Internet travel sellers.¹⁶ The impact upon the marketing of travel services and upon the assertion of personal jurisdiction has been profound and, is itself, an area of ongoing development.¹⁷

[c] Traveler Reviews and TripAdvisor

There was a time not long ago when consumers interested in taking a vacation would consult their local retail travel agent and/or purchase a guide book featuring a particular destination and its hotels, restaurants and local sites of interest. The information provided the curious traveler may or may not have been accurate and was often self serving. Hotel ratings are virtually meaningless. Nevertheless, travelers rely on these self-descriptions as if they were accurate evaluations of the true nature of the hotel. In addition, most countries have their own independent rating system for hotels, making it impossible to compare hotels as between countries.¹⁸ Further, whether superlatives such as "first class," "special," "luxurious" and "best in the world" have any practical or legal meaning depends on whether a court finds them to be "actionable"¹⁹ or mere "puffing."²⁰

[i] The Online Revolution

The Internet has not only added a host of online travel sellers stimulating the development of new marketing models (e.g., Priceline, Travelzoo, Hotwire, Tingo, Guestmob and Site59's "last-minute-air-plus-land-packages"), but an ever increasing number of specialized travel websites such as Farecast.com, Farecompare.com, Google. com, Kayak.com, Hipmonk.com, Vayable.com, TheSuitest.com, and Tripshare.com, which help the traveler obtain accurate information, do comparison shopping and obtain the best price.²¹ And lastly, traveler generated reviews are now posted on Internet websites. As noted in the New York Times, "[a] study conducted by eMarketer suggested that nearly two-thirds of all travelers today research online before they book. Even 10 years ago that was probably in the single digits."²²

[ii] TripAdvisor.com

As stated by the Court in Seaton v. TripAdvisor, LLC,²³ "TripAdvisor, LLC . . . does business throughout the United States and worldwide by means of an internet website located at www.TripAdvisor.com [and provides] travel research information, including reviews, reports, opinions, surveys . . . regarding hotels, resorts, restaurants and other similar businesses of interest to persons traveling or making travel plans worldwide. [TripAdvisor] advertises that it adheres to certain rules and regulations of fairness in its ratings and reports concerning the hotels and restaurants it surveys. Its website proclaims that . . . TripAdvisor provides the world's 'most trusted travel advice.' . . . Visitors to TripAdvisor's website use its forums to exchange information relating to travel issues. TripAdvisor users are further encouraged to post comments and reviews and to answer surveys regarding hotels, resorts, restaurants and other such places of interest."

[iii] The Dirtiest Hotels List

"TripAdvisor also creates and publishes on its website various lists, reports and rankings [including] the 'Dirtiest Hotels' list created, published and distributed annually by TripAdvisor from 2006 to 2011 [and features] a list of ten hotels, ranked from one through ten with number 'one' designated as the 'dirtiest hotel.' When compiling its 'Dirtiest Hotels' list, TripAdvisor relies solely on customer reviews; it does not inquire about, investigate or consider any hotels except those receiving comments or reviews on the TripAdvisor website."²⁴

In 2010, the New York Times noted the language used in TripAdvisor reviews in describing some British hotels including "Cradle of Filth: The Worst, Worst, Worst Hotel in the World," "Slept in my clothes" and "Made me think of my own grave." "Those are just a few excerpts from reader-generated reviews of various hotels in Britain, culled from the '2010 Dirtiest Hotels' list published recently by Tripadvisor.com. . . . Tripadvisor says it has reviews from more than 450,000 hotels around the world."²⁵

It is not surprising that a hotel receiving an unfavorable review would sue TripAdvisor alleging defamation. Such was the case after TripAdvisor published its " '2011 Dirtiest Hotels' list report[ing] that [Hotel X] was 'the dirtiest hotel in America.' . . . The survey was published via TripAdvisor's website and several media entities. . . . The list incorporated a photograph and a quote from TripAdvisor users about each of the ten hotels, as well as a link to hotel's page on TripAdvisor's website. The user quote for [Hotel X] was "There was dirt at least ½[x] thick in the bathtub which was filled with lots of dark hair.' The photograph for [Hotel X] was a ripped bedspread."²⁶

[iv] The Lawsuit

The "sole proprietor" of Hotel X brought suit in Tennessee Circuit Court and the action was removed to the United States District Court, Eastern District of Tennessee. The original complaint alleged that TripAdvisor was "liable for 'maliciously and wrongfully contriving, designing and intending to cause respected customers to lose confidence in [Hotel X and causing] great injury and irreparable damage to and to destroy [Hotel X's] business and reputation by false and misleading means. . . . [Hotel X] further alleges that [TripAdvisor] 'defam[ed] the [Hotel X's] business with unsubstantiated rumors and grossly distorted ratings and misleading statements to be used by consumers, . . .' used a rating system which is flawed and...