Chapter § 5.07 INFORMAL TRAVEL PROMOTERS AND SPONSORS

• Jurisdiction: United States
• Publication year: 2021

§ 5.07 Informal Travel Promoters and Sponsors

Annually, numerous non-profit organizations sponsor or promote alumni reunions, conventions and group travel to their memberships. It is not uncommon to receive from local bar associations, colleges,¹¹¹⁴ churches, medical professional groups,¹¹¹⁵ art groups,¹¹¹⁶ cultural groups,¹¹¹⁷ villages, running clubs and veteran's organizations,¹¹¹⁸ handicapped sports clubs,¹¹¹⁹ federal government,¹¹²⁰ schools,¹¹²¹ all terrain vehicle clubs,¹¹²² automobile race sponsors,¹¹²³ ski associations,¹¹²⁴ World Wildlife Federa- tion,¹¹²⁵ radio stations,¹¹²⁶ sail training associations,¹¹²⁷ park districts,¹¹²⁸ police associa- tions,¹¹²⁹ off road bicycle associations,¹¹³⁰ wineries,¹¹³¹ military organizations,¹¹³² insurance companies,¹¹³³ Murder Mystery Weekends,¹¹³⁴ bass fishing organizations,¹¹³⁵ book clubs,¹¹³⁶ religious organizations¹¹³⁷ and other groups, a brochure which proclaims that the organization is presenting or sponsoring a one or two week vacation package featuring a convention, reunion, special travel program or a series of educational lectures. Typically, these organizations known as informal travel promoters or sponsors, will interface with a professional travel agent or tour operator who will make the actual arrangements for the travel vacation package offered.

[1] Relationship with Travel Agents

An analysis of liability requires awareness of the actual relationship between the informal travel promoter and the travel agent or tour operator making the arrangements. The nature of these relationships run the spectrum from active participation in the planning and organization of the vacation package to include sharing in the profits to a relatively passive involvement wherein the sponsoring organization, simply, sells a membership list to a tour operator who does all the planning, organization and solicitation functions.¹¹³⁸ A case which discusses the relationship between an informal travel promoter and a tour operator involved a dispute over trade secrets and the solicitation of plaintiff's membership, and is highly informative as to the nature of the involvement of some sponsoring organizations in group travel.¹¹³⁹ A not-for-profit organization had entered into a contract with a tour operator wherein the latter had the exclusive right to make travel arrangements for the organization's tours. Both parties participated in the design of the itinerary for the tours as well as in the development, promotion and operation of the tour program. The tour operator would expend sums in the preparation of glossy tour brochures and in making advance bookings for blocks of air transportation and hotel accommodations. The sponsoring organization would distribute the brochures to its membership and accept tour reservations. Upon receipt of the reservation and booking fees from a prospective traveler, the sponsor would turn the information over to the tour operator for whatever further arrangements had to be made. On the profit side this arrangement became a substantial source of revenue for the sponsor. Each traveler would be required to join the sponsoring organization and pay a membership fee. In addition, the sponsor would receive 7% of the tour price from each package tour sold to its members. Although the court did not rule on the precise nature of this type of relationship, it is clear that a joint-venture relationship¹¹⁴⁰ is a distinct possibility.¹¹⁴¹

The relationship between informal travel promoters and tour operators may be less formal. Although most informal travel promoters will participate in the planning of the itinerary and the scheduling of group activities, they may not, in fact, be directly involved in making a profit from the venture. Indirect benefits would include, however, advertising of the existence and purpose of the organization directed towards, in the case of alumni or religious organizations, increasing the membership and encouraging contributions. Some sponsoring organizations utilize the brochure advertising to encourage the sale of their products.¹¹⁴² For example, there are several cases¹¹⁴³ involving physical injuries sustained by spectators and participants of soap-box derbies.¹¹⁴⁴ Typically, an automotive manufacturer will sponsor a soap-box derby in cooperation with local dealerships and local not-for-profit organizations such as the Kiwanis Club. Generally, the sponsoring organizations have been held to a standard of reasonable care and have been found liable for their own negligent acts as well as the negligence of others with whom they cooperated in organizing the derby. The courts, however, usually spend a good deal of time in unearthing the nature of the contacts or dealings between the various defendants in these cases.¹¹⁴⁵ The most common focus of the court's attention is upon whether the sponsoring organization had some power to supervise and control the planning and organization of the function in question.¹¹⁴⁶

[2] Consumer Reliance on Brand Names

From the traveler's standpoint the apparent involvement of the sponsoring organization whether it is a bar association, alumni organization or religious organization adds credibility to the often fatuous promises which appear in travel brochures. The traveler may never have heard of ABC tour operator but if his local alumni organization is sponsoring the package tour he is more inclined to believe that the services will, actually, be delivered as promised. This reliance upon the apparent integrity of well-known organizations is analogous to consumer reliance upon brand names. For example, as between these two promises: (a) your vacation includes a free rental car and (b) your vacation includes use of a Ford Escort, it can be demonstrated that the latter generates greater sales because people often believe that Ford cars are trustworthy. The same is true with the involvement of a sponsoring organization. The traveler properly assumes that his or her organization has made a reasonable effort to select responsible and solvent tour operators and has made an effort to verify the truth and accuracy of the promises¹¹⁴⁷ which appear in travel brochures bearing the organization's name.

[3] Contract Liability of Informal Travel Promoters

Informal travel promoters are not professional travel agents or tour operators and are, primarily, in the business of operating organizations serving the interests of their memberships. Informal travel promoters will retain the services of a professional travel agent or tour operator to do the actual planning and the making of the arrangements with various travel suppliers.¹¹⁴⁸ The contract liability of the informal travel promoter may be premised upon breach of warranty or assumed duties, concepts discussed previously.¹¹⁴⁹ In addition, it may be possible to demonstrate a joint venture relationship with the travel agent. Alternatively, the liability of the informal travel promoter may be premised upon the contractual duties of a surety.

[a] Joint Ventures

Some informal travel promoters are deeply involved in most phases of the group travel program including selecting and developing the itinerary, selecting suppliers to provide the services, creating and distributing brochures, active solicitation of the membership, part interest in the tour operator, and sharing in the profits of the venture.¹¹⁵⁰ To this extent informal travel promoters may be categorized as joint venturers¹¹⁵¹ with the professional travel agent or tour operator and, hence, may be just as liable as these other entities for travel defaults.

[b] Surety

The informal travel promoter has a special relationship with its membership. In "sponsoring" membership group travel the informal travel promoter lends its name and credibility to the often unsupported promises made by tour operators or travel agents. On the theory that one's religious organization would not possibly recommend or "sponsor" a package tour organized by ABC tour operator without first investigating and checking out the reliability of ABC, members may purchase a package tour solely because their organization "sponsors" it. Therein is the basis for asserting that informal travel promoters are sureties vis-a-vis their memberships and are liable for guaranteeing the faithful performance of travel agents and tour operators. In one case,¹¹⁵² a not for profit organization of psychiatrists "sponsored" a thirty day African safari featuring educational programs. The safari failed to live up to a host of advertised services and facilities and the victimized psychiatrists sued their "sponsoring" organization. In an extraordinary decision on the issue of liability, the court found that the informal travel promoter was liable as a surety.¹¹⁵³

A surety's liability is absolute and, hence, this decision can be read as imposing strict liability upon informal travel promoters or "sponsors" for the defaults of travel agents, tour operators and suppliers. This is as it should be since the members of such organizations rely upon the apparent involvement of their organizations in promoting the group travel program.¹¹⁵⁴ Such organizations were created to act in the best interests of their memberships and must be held responsible when their members are victimized by travel entities which were introduced and recommended by the informal travel promoter.

[4] Tort Liability of Informal Travel Promoters

Consumers rely upon the apparent involvement of the sponsoring organization and assume that the sponsor is involved in arranging the tour program.¹¹⁵⁵ Consumers may assume that the sponsor has done a background check of the travel agent assigned the duties of making the actual travel arrangements. In a class action involving expensive history tours which were not delivered,¹¹⁵⁶ the travel agent's brochures used the sponsor's name prominently. For example, the brochures stated "History Tours presented by History Book Club" and "Join the History Book Club for holidays designed...