Kenneth F. Whitman Esq., Senior Program Manager Travel Agents and Tour Operators Professional Liability

More than two thirds (71%) of this planet is covered with water. Without water life would cease to exist.  Water is the lifeblood of all living creatures. It filters through everything that is alive. It adds comfort, beauty and purpose to everyday living. 
 
Water is a huge component of travel and the travel industry. World cruises, flights that cross the oceans, destinations on beautiful islands, and inland lakes, riverboat cruises in remote destinations, naturally beautiful waterfalls, beautiful sandy beaches bordering amazing bodies of water and wonderful resorts with palatial swimming pools all touch travel. There are, in fact, countless ways in which water will affect people’s travel plans in the most positive of ways. Water is especially important during the hot summer.
 
Despite water being the travel industry’s good friend and an intricate part of most itineraries, it can also be, at times, the industry’s enemy and the cause of problems, headaches, claims or even lawsuits. The most common way in which water can be a nuisance to the travel industry is via inclement weather. Hurricanes and tropical storms can cancel and delay flights or other modes of transportation, ruin a beautiful, sunny vacation and long planned activities, and sometimes even result in flooding which causes tragedy and widespread devastation.
 
While your Travel Agents and Tour Operators Professional Liability (TAPL) policy does not cover the potential direct losses suffered as a result of inclement weather, water or flooding, if you are accused of some form of negligence in connection with the weather and travel, the policy may be triggered and you may have coverage for losses claimed against you or your company by third parties.  
 
We’ve seen agents sued because they never told the customer that the time of year they picked to travel to a certain region was the rainy season. Traveling to a beach resort destination during that region’s rainy season completely defeated the purpose of scheduling that vacation. It was probably very disappointing for that vacationer to sit in their room for five continuous days of rain, and not the kind of vacation that they had planned.   
 
While in that case the unwanted rainwater resulted in a claim against the booking agent, there are so many other ways that water can wreak havoc. Fortunately, your TAPL policy may be your saving grace. 
 
Having offered insurance solutions to travel professionals for over forty-plus years we have seen how water has affected our valued customers in so many ways. We have also seen how our clients’ insurance policies have responded, and the lessons that can be learned from these experiences. This has enabled us to help guide you through unfortunate and uncomfortable situations, and to provide up-to-date risk management techniques to help avoid these problems in the future.
 
You may wonder, “what are the different ways that water can affect me” as a tour operator or travel agent in my specific business?
 

Drownings or Water Related Accidents

Tragically, drownings have been known to occur while people are vacationing. It could be an ocean drowning in rough surf, a snorkeler that has a medical emergency, or even a mishap in a hotel pool. Our claims personnel have handled claims related to jelly fish and manta ray stings. Lately, the news has been filled with stories of shark attacks, which are also possible. 
 
For travel agents there is very little that can be done ahead of time to reduce the risk of drownings or other water-related accidents. Sometimes travel agents chose to reference those risks in their Terms and Conditions and this can be helpful in certain situations where an appropriate responsibility statement was present. 
 
Tour operators, on the other hand, should endeavor to assure the locations they pick for swimming during a scheduled tour are generally safe locations, without reputations for dangerous riptides, and situated with lifeguards that keep watch over the swimmers. When the activity involves snorkeling or other watersports they must be able to show that they exercised due diligence in the selection of that vendor with respect to the safety of its operations, their ability to respond to medical emergencies, and even their maintenance of appropriate and adequate insurance policies.
 

Fire Sprinkler Claims

Despite education throughout the travel industry, we continue to receive claims because of extensive water damage to hotel properties, which occur from the discharge of fire sprinkler systems in hotel rooms. We’ve found that students often damage the in-room sprinkler heads by hanging clothing from them, or at other times during general horseplay. 
 
From a general risk management standpoint, tour operators should make arrangements on each trip to remind and educate the participants to avoid any contact with sprinkler heads. Sprinkler discharge water damage claims tend to cost thousands of dollars to repair the damaged property. Many student tour operators are, by contract, required to indemnify the hotel for damages caused by the groups brought to their hotels. 
 
One of the best risk management practices for a tour operator to avoid such losses would be to remove such provisions from their agreement with the hotel, especially since most tour operators do not have direct supervision over anyone staying in a room. Since hotels may not receive any identifying information for those group members staying in the room, or if those group members are children, they often will not do business with a group without an appropriate indemnification clause. 
 
For tour operators that are required to indemnify a hotel for damage caused by students staying in their rooms, it is imperative that the agreements with the group and its individual students/parents contain corresponding indemnification provisions, so the involved students and parents are in-turn responsible to the tour operator for any damages incurred.  
 
With adult groups, neither screening nor supervision of adult participants is a component of the adult tour business. Therefore, tour operators need to consider resisting provisions inserted by hotel vendors that shift responsibility to a tour operator for damage caused by an adult group member.
 

Leakage of Equipment or Machinery

Water leakage from insureds’ premises into a neighboring premise has often been a source of claims experienced in the travel agent and tour operator program. From leaking coffee machines, ice and filtered water systems, to faulty air conditioning systems, whose maintenance may be the responsibility of your company, problems or defects with this equipment has resulted in claims brought under the TAPL policy. Regular maintenance and scheduled inspections is a best practice to avoid these types of losses.
 

Water Contaminants

Claims involving water can be of a typical nature as set forth above, but they can also involve more odd or bizarre facts and circumstances which make for claims which are unique, interesting and often disturbing.
 
Travel agents and tour operators insured by our program have been sued for traveler/participant illness as a result of exposure to contaminated water. During the life of this program, we have seen claims for flesh eating bacterial infections, brain eating amoeba and Legionnaires’ disease, all resulting in very serious injury or death. Each one of these horrific illnesses emanated from a destination’s water source during the travel itinerary.  
 
Claims of negligence involving these types of incidents will potentially fall within the coverage of the TAPL policy, usually due to a ‘failure to warn theory’ or some other theory of negligence. Risk management for these types of exposures is very difficult unless they are known risks of a particular destination or activity. If arranging or providing travel to destinations where these events have occurred, disclosure in promotional materials and/or Terms and Conditions may benefit your overall risk management program.
 

A Lack or Absence of Water

For travel agents and tour operators that book or arrange riverboat cruises, we have seen claims against them because the travelers were forced to see the scheduled itinerary by motor coach instead of cruising the Rhine or Danube by riverboat. Water levels, at times, will not support navigation by those vessels. 
 
Although considered an act of God when there is no longer enough water to navigate the rivers, the customers may somehow blame the travel agent or tour operator. Fortunately, a riverboat company’s Terms and Conditions often address such a condition and contingency plans. Nevertheless, our travel agents and tour operators are often protected when coverage is triggered under the policy with a zealous defense by appointed defense counsel.
 

“Traveling” Water

One of the oddest claims ever seen under the TAPL policy occurred when someone inhabiting a room booked by one of our insured tour operators left the water running in a hotel room bathroom. The water leaked through the floor of the room into the bathroom of the hotel room directly below. Water began to slowly accumulate on the marble floors of the downstairs bathroom. The occupant of that room slipped and fell in a puddle in the bathroom, injuring herself. Strangely enough, claims made against the hotel were then referred to the tour operator that had booked the upstairs room, coverage was triggered under the TAPL policy, and a successful defense was mounted.
 
Water is wonderful part of our lives. It provides avenues of travel and transport, scenic beauty, recreational opportunities, functionality for energy, industry and commerce and most importantly it is vitally important to the health and sustenance of all living creatures. In this edition of the TAPL Newsletter, we will highlight several types of claims that involved water and how the TAPL policy responded.

Water can be our best friend. When it’s not, tour operators and travel agents can turn to their Travel Agents and Tour Operators Professional Liability Policy for help!
 
Kenneth F. Whitman, Esq.
Senior Program Manager
Professional Liability
Aon Affinity Travel Practice
 
_{This article is provided for general informational purposes only and is not intended to provide individualized business, insurance or legal advice. You should discuss your individual circumstances thoroughly with your legal and other advisors before taking any action with regard to the subject matter of this article. Only the relevant insurance policy provides actual terms, coverages, amounts, conditions, and exclusions for an insured.}