Special Civil Part Division of Small Claims
This case involves the legal issue of the liability of an independent travel agent to his client when the charter air carrier selected by the agent becomes insolvent. The fact pattern is simple. Jacinto Cardona is president of defendant company; he is an independent travel agent. Plaintiff Gladys Rodriguez, wishing to fly to and from Puerto Rico with her four children, requested defendant's services in arranging the airline accommodations. He arranged the requested round-trip reservations for her on a charter air carrier, and she paid him $811 for the tickets. He received his commission, about 5%, from that sum. Plaintiff and her children flew to Puerto Rico without incident. When they went to the airport for their return trip, they found that the air carrier "went out of business and closed their doors." She bought a new set of return tickets for herself and her four children for $996.60 on another airline. Plaintiff sued defendant for $996.60.
The life of the law is not logic, but experience and justice. Cf. Holmes, The Common Law, 1, 244. Logic, experience and justice dictate liability here based on the duty of an agent to his principal.
Plaintiff, in soliciting the services of defendant travel agent, put herself in his hands for a particular purpose. She relied on him to obtain round-trip tickets for her. There was no testimony that she imposed any restrictions or conditions on him. He
was free to select the airline which he thought would best suit his principal's requirements, or for such reasons as he may have thought proper, to decline the agency. However, in undertaking the agency, he became a fiduciary and therefore owed his principal the highest duty. There was no testimony of the efforts made to assure the performance of his undertaking, and no testimony that the agent advised his principal of any risks to be undertaken by the principal attributable to the agent's performance. In fact, defendant testified that he explained that it was a charter airline, at a low fare for that season, but that he did not explain the hazards of contracting with a charter carrier "because I didn't expect it to go bankrupt." The consequence is that the agent subjected his principal to the risks of a charter carrier, rather than a scheduled air carrier, without an explanation of the hazards. Likewise, there was no testimony that the agent advised his principal of any way to avoid, or insure against the risks of contracting with a charter carrier, such as trip cancellation insurance, which is available at a nominal cost to cover such hazards. In this instance, defendant-agent did not suggest to plaintiff that such insurance was available.
The travel agent received a commission from the transaction with the traveler. This benefit gave rise to a legal duty owed by the travel agent to the traveler. It is immaterial who pays the commission to the agent; it could be the traveler or the carrier. Regardless of who pays this commission, it remains true that "[t]he pecuniary benefit bestowed on defendant by ...