China Says It Has World's Fastest Train

China has unveiled what it says is the world's fastest rail link in the world, a train connecting the cities of Guangzhou and Wuhan, with an average speed of 217 miles per hour. The super-high-speed train reduces the 1,069 km journey to a three hour ride and cuts the previous journey time by more than seven and a half hours. Work on the project began in 2005 as part of plans to expand a high-speed network aimed at eventually linking the business hub of Guangzhou with Beijing. Test runs for the service began earlier in December and the link officially went into service last Saturday. Beijing has an ambitious rail development program aimed at increasing the national network from the current 86,000 km to 120,000km, making it the most extensive rail system outside the US.
ARTA E-NEWS FOR December 29, 2009 www.artaonline.com

USA: Internet travel agents sue New York City over hotel room occupancy tax

A group of major Internet travel firms as well as the American Society of Travel Agents (ASTA) and the U.S. Tour Operators Association (USTOA) filed a law suit against New York City to stop the extension of a hotel tax on their clients. They allege that the law extending the city's hotel room occupancy tax to "third-party travel intermediaries" is "unconstitutional and illegal" as the city "has no inherent power to tax."

Source: marketwatch.com, find article here>>.

India faces protests against tigthened visa rules

Indian government in Delhi introduced rules barring tourists from returning to the country within two months of any visit. Both, U.K. and the US have lodged a diplomatic protest.

Source: eTurboNews; find article here>>.

USA: new DOT rule limits airline tarmac delays

Under a new rule the U.S. Department of Transportation will limit airline tarmac delays to three hours after which U.S. airlines must allow passengers to deplane. Airlines also must provide adequate food and water for passengers within two hours of a plane being delayed on a tarmac and maintain operable lavatories and must provide medical attention when necessary. .

The new rule will become effective in April and applies to domestic flights only. The rule may be obtained on the Internet at www.regulations.gov, docket DOT-OST-2007-0022.

Source: DOT press release; find full text here>>.

German Supreme Court: No exclusive "forum rei sitae" in dispute over membership in timesharing association

Plaintiff, an Austrian timesharing association, sued a German member for annual maintenance fees which were due according to the bylaws. Courts of first and second instance (AG Oranienburg/Brandenburgisches OLG) dismissed the claim because of lacking international jurisdiction of German courts.

Upon further appeal of plaintiff, BGH held that membership in a timesharing association was not closely enough connected to the use of real estate property to constitute exclusive jurisdiction of the courts of the Member State in which the property is situated as provided by Art. 22 of the Brussels I Regulation (44/2001/EC): the member's rights and obligations would go beyond the mere right to use of some real estate property. Membership in teh association therefore could not be compared with a tenancy contract. Supreme Court assigned the court of second instance with further proceedings and decision.

Source: BGH press release re case VII ZR 119/08, available in German here>>.

Germany: No Supreme Court decision on compensation for discontinued flight

Plaintiffs had booked a flight from Frankfurt to the Maldives with a stopover in the United Arab Emirates. When they landed in the Emirates the flight was discontinued and they were re-routed and arrived at the Maldives with a delay of more than 30 hrs. The claimed for compensation under Reg. 261/2004. As both first instance (AG Rüsselsheim) and second instance (LG Darmstadt) dismissed the claim they filed a further appeal to German Supreme Court (BGH) in which they explicitly referred to the ECJ's most recent decision in cases C-402/07 - Sturgeon/Condor and C-432/07 - Böck u. Lepuschitz/Air France (see related news item).

However, before scheduled date of Supreme Court's decison the claim was settled!

Source: BGH press release re cases Xa ZR 72/09 and 86/09; text available in German here>>.

UK: High Court blocks British Airways strike

The UK High Court has blocked a 12-day Christmas walkout by British Airways cabin crew after ruling that the strike ballot was illegal. The high court granted BA's request for an injunction against the strike after around 900 cabin crew were balloted despite taking voluntary redundancy. Mrs Justice Cox ruled that the balloting error breached the 1992 Trade Union Act.

The decision means nearly a million BA passengers can complete their journeys as planned over Christmas unless there are wildcat walkouts by the 12,700 cabin crew who supported industrial action.

Source: eTurboNews; find article here>>.

Scotland: airline bankruptcy leaves thousands of passengers stranded

The demise of Scottish carrier Flyglobespan leaves about 4,000 passengers stranded abroad. Around 1,300 people were due to fly tomorrow. The accounting firm brought in to take control of the failed airline, told passengers to stay at home and warned that the Civil Aviation Authority was only responsible for financially bailing out 1,000 people who have booked package holidays.

Source: The Guardian; find article here>>.

UNWTO: New Travel & Tourism Climate Initiative launched in Copenhagen

"Live the Deal", an innovative, global campaign to help travel companies and destinations respond to Climate Change, reduce their carbon footprint and move to the Green Economy, was launched this week during the Copenhagen Climate Summit. Announcing the new initiative, long time green tourism campaigner Geoffrey Lipman UNWTO Assistant Secretary-General said: “What Copenhagen represents is a new commitment by the world community towards sustainable low carbon growth patterns. The targets and mitigation actions that countries develop and negotiate through this process will be a new base for travel industry action. What we are providing is a very simple way to get behind the evolving government initiatives, to keep pace with changing patterns and to demonstrate that our sector is acting, not simply talking.” He added ”We should not be ashamed to promote the growth of smart travel – clean green, ethical and quality - it’s the lifeblood of trade, commerce and human connection”.

“Live the Deal” follows the pattern established in the UN led Copenhagen Seal the Deal campaign by its single minded focus, its simplicity and its broad based engagement goals. It will seek to encourage the sector directly and through representative organizations.

Source: UNWTO press release; find full text here>>.

ITB World Travel Trends Report predicts worldwide increase in airline ticket prices

According to the ITB World Travel Trends Report, commissioned by the world’s leading travel trade show and compiled by the consultancy IPK International, a short- to mid-term rise in the price of airline tickets is to be expected worldwide. The ITB World Travel Trends Report states that in order to become profitable again, airlines will have to significantly adjust their ticket prices. The findings are based on the assessments of 60 tourism experts from 30 countries.

Source: ForImmediateRelease.net; find article here>>.

ITB World Travel Trends Report 2009 available for download as pdf here>>.

Caribbean: quiet hurricane season

The six-month hurricane season that ended Nov. 30 saw only nine named storms formed in the Atlantic and for the first time in three years, no hurricane struck the U.S. mainland or a Caribbean island.

Source: Travel Weekly; find article here>>.

USA: DOT ruling against airline pricing mistakes

British Airways last month published an unusually low fare from the United States to India. The base was $40 round trip. Although BA doesn't include its $370 fuel surcharge in that amount but passes it on as a "tax" rather than as part of the ticket price, and the actual taxes were an additional $150, the total $560 was still several hundred dollars less than a regular advance-purchase fare to India.

The fare stayed on the market only for one day, but that was enough time for hundreds of tickets to be purchased. Three days later, BA unilaterally canceled all those tickets because a mistake had been made.

The U.S. Department of Transportation (DOT) said it conducted a full investigation over the cause, magnitude and consequences of this incident and determined that BA's unilateral cancellation had caused financial harm to a large number of consumers.

The Department ruled that British Airways should compensate affected consumers - which BA agreed to do - but refused to force British Airways to restore the canceled tickets.

Sources: The Washington Times; DOT press release 183-09

Austrian Supreme Court clarifies information duties in regard to entry requirements

Mr. F had booked a package tour to Morocco for himself, his wife and his eight year old son. At the time of booking he did not ask for entry requirements, only leafed through the pages of the tour organiser's brochure without looking for the respective information and didn't take the brochure along. The booking confirmation issued by the travel agent included the advice that information about entry requirements was avialable in the tour organizers brochure, at the website of the Austrian Ministry of Foreign Aiffairs at<www.reiseinformation.at> or at the embassy of the respective country.

At home he looked up the website of the Austrian Ministry of Foreign Aiffairs and found the information that to enter into Morocco for tourist purposes and a period not exceeding three month, Austrian citizens didn't need visa but were required a passport valid throughout their stay. In a guidebook he read that children either needed their own passport or had to be registered in a parent's passport.

At the airport he was told that his son would need his own passport and registration in the mother's passport (without foto) was not sufficient. F. decided to book a 'last minute' package tour to Mallorca. To show goodwill the tour organiser refunded 50 % of the travel price without accepting responsibility.

Back home F. assigned his claim to Austrian Federal Chamber of Labour which filed a law suit against the tour organiser.

Both first instance and second instance (Commercial Court Vienna) dismissed the claim: it was common knowledge that travelling to another country usually requires a passport. From the website of the Ministry of Foreign Aiffairs F. had learned about the requirements but ignored same. He therefore was responsible for contributory neglicence of 50 %. As the tour organiser had refunded 50 % there was no further claim.

Upon appeal of the Federal Chamber of Labour, Austrian Supreme Court held that tour organiser and travel agent had failed to fulfill their information duties: The advice given at the booking confimation was insufficient as the brochure was not handed out and the request to look at a certain website of the Ministry of Foreign Aiffairs or ask an embassy would impose a responsibility on the consumer which information duties of the tour organiser and the travel agent are aimed to avoid. There was no contributory negligence if F. had misunderstood the information given at the website of the Ministry of Foreign Aiffairs. Judgement was therefore given in favour of the claimant.

Supreme Court Judgement 6 Ob 142/09i of Sep.18, 2009 available in German here>>.

Compensation in the Event of Airline Bankruptcy

Motion for a Resolution by European Parliament

Mathieu Grosch, Artur Zasada on behalf of the PPE Group

Saïd El Khadraoui on behalf of the S&D Group

Dirk Sterckx on behalf of the ALDE Group

Michael Cramer, Frieda Brepoels on behalf of the Verts/ALE Group

B7-0153/2009

European Parliament resolution on passenger compensation in the event of airline bankruptcy

The European Parliament, – having regard to the oral question of 15 October 2009 to the Commission on passenger

compensation in the event of airline bankruptcy (O-0089/09 – B7-0210/2009),

– having regard to Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours,

– having regard to Regulation (EC) No 2027/97 of the European Parliament and of the Council of 9 October 1997 on air carrier liability in the event of accidents,

– having regard to Regulation (EC) No 785/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators,

– having regard to Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91,

– having regard to Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community,

– having regard to Rule 115(5) of its Rules of Procedure,

A. whereas Council Directive 90/314/EEC regulates aspects of the package holiday business and provides for appropriate compensation and repatriation of consumers in the event of the bankruptcy of package holiday firms,

B. whereasRegulation(EC)No2027/97establishesthenatureofaircarriers'liabilityinthe event of accidents and compensation arrangements for passengers,

C. whereasRegulation(EC)No785/2004laysdowntheinsurancerequirementsaircarriers and aircraft operators must meet,

D. whereas Regulation (EC) No 261/2004 provides for compensation for and assistance to passengers who are denied boarding or whose flights are subject to cancellation or long delay,

E. whereasRegulation(EC)No1008/2008establishesstringentfinancialrulesforaircraft operators,

PE428.771v01-00 2/3 RE\796786EN.doc

F. whereastherehasbeensubstantialgrowthinthelastdecadeinthenumberofrelatively small low-cost carriers flying to recognised holiday destinations and the number of passengers they carry,

G. whereas there have been 77 bankruptcies in the aviation sector in the last nine years, resulting in some instances in many thousands of passengers being stranded at their destinations and unable to use the return portion of their flight ticket,

1. Notes that the Commission has undertaken wide-ranging consultation of stakeholders on the question of airline bankruptcy;

2. Recalls that the Commission undertook a major study of the difficulties surrounding airline bankruptcy and its impact on passengers and forwarded its findings to Parliament in February 2009;

3. Notes the findings of that study and the range of options which it examines;

4. Recalls in this regard that there are a number of options which the Commission could pursue to strengthen the position of passengers of bankrupt airlines, including compulsory insurance for airlines, a voluntary insurance arrangement for passengers which airlines would be required to propose, and the establishment of a guarantee fund;

5. Calls on the Commission to examine the possibility of a legislative proposal and submit it, if it considers it appropriate, by 1 July 2010 which has as its specific objective the provision of compensation for passengers of airlines which go bankrupt and establishes financial and administrative arrangements, including the principle of mutual responsibility for passengers of all airlines flying in the same direction with available seats, which would ensure repatriation for passengers who are stranded at non-home airports in the event of airline bankruptcy; asks the Commission to propose, when reviewing Travel Package Directive 90/314/EC, an extension for repatriation or rerouting for the passengers concerned;

6. Calls on the Commission to consider the possibility of extending such measures to airlines which have ceased operations and caused passengers similar inconvenience to that caused by airlines which go into bankruptcy;

7. Calls on the Commission to investigate the quick release of impounded aircraft by national regulatory bodies so that those aircraft can be used to bring stranded people home;

8. Instructs its President to forward this resolution to the Council, the Commission and the parliaments and governments of the Member States.

New Commissioners / Speech Kuneva

Meglena Kuneva, the leaving commissioner for Consumer Policy held a press conference regarding the "Revision of the Package Travel Directive" (see below)

Along the way: The new designated commissioner for Consumer Policy is John Dalli (MT) and for Transport (and as VicePresident) Siim Kallas (EE)

Press conference speaking points

Brussels, 26 November 2009

SPEECH/09/559

Ladies and gentleman,

It is my great pleasure today to announce that we intend to review the current EU rules on package travel to give millions of consumers better protection if their holiday goes wrong.

Why do we feel that the current rules need a makeover?

First of all, our current EU law on package travel - the Package Travel Directive - was written almost 20 years ago, in 1990.

Back in those days, millions of European holidaymakers picked their package holiday from a glossy brochure and booked at a travel agent on the local high street.

The Package Travel insisted on:

- clear information in brochures,

- gave people the right to assistance if they had difficulties on the spot,

- gave them protection for substandard services,

- And it put in place insolvency protection if the tour operator or airline went bust.

But the 1990 Package Travel Directive is no longer suited for today’s travel market.

Increasingly large volumes of bookings are made by consumers putting together their own packages, often online.

Today, 56% of EU citizens organise their holidays themselves, so the number of those opting for a traditional pre-arranged package has fallen dramatically.

Just to give you one example, in 1997, 98 % of passengers travelling from the UK on leisure flights were protected by the Directive, now less than 50% are protected.

Fewer and fewer people are getting the holiday protection they deserve. That is NOT good enough. There are 3 main areas I want to focus on in this review:

1. The first, is the central issue of the Scope of the Directive.

Simply put, which of new kinds of package holidays should be covered by EU protection?

Most pressingly, we need to look at adapting the rules to take account of the "next generation" of "dynamic packages". This is where consumers make up their own package choosing two or more services, for example a flight and a hotel, either from one supplier – like Expedia or Opodo. Or from different suppliers that are commercially linked.

In the past 2 years, almost 1 in 4 EU citizens have booked these new "dynamic packages." In some countries, like Sweden and Ireland, the figure is as high as 40%!

My starting point is that we should look to extend the protection in the current directive as far as possible to cover all the new kinds of ‘dynamic packages.’ That way, we can provide more legal certainty for businesses and tough protection for consumers.

Of course we are looking forward to getting detailed feedback from industry and all stakeholders before taking final decisions on this issue.

Package Travel Label

Speaking of legal certainty, I want to draw your attention particularly, to the new ‘Travel Protection Label’ which we are considering introducing. The idea is to have a logo which makes it absolutely clear for consumers and businesses which holidays are covered by this Package Holiday Protection. I hope that this initiative will gain widespread support during the consultation.

2. Legal Responsibility

The second big issue we need to get right in this consultation is the issue of legal responsibility.

Simply put, who is responsible for what when things go wrong? Is it the carrier, is it the travel agent, is it the tour operator?

Today the old distinctions between carriers, tour operators and travel agents are often blurred. It is often not all that clear who is actually responsible for making sure that everything that is the holiday contract which the consumer signs has been properly carried out.

We urgently need to clarify these legal responsibilities.

3. Insolvency Finally, I want to come to the critical issue of protection for consumers in the

case of insolvency – in particular, what do when airlines go bust.

I know that many of you, like me, will have watched with great concern the TV pictures, as Sky Europe, XL, Future, Zoom and other airlines went bankrupt in recent months and years.

Thousands of airline passengers were stranded in airports across Europe, with worthless tickets, unable to get home. Like me, I am sure many of you watched with dismay and thought, how can this be legal? How can this be right?

Bankruptcy has become an increasing concern for European consumers. The rise of airline insolvencies has grown substantially. Between November 2005 and September 2008 alone, 29 airlines went bust.

In far too many cases European consumers found themselves "left out in the cold" unprotected and with no way of getting home.

Now is the right time to the ask the tough questions about the need to extend basic protection against airline bankruptcy to consumers across the board, including to stand alone airline tickets.

Ladies and gentlemen,

I Iook forward with great interest to getting feedback from industry, consumer organisations and the public on this consultation.

Armed with that feedback, I am confident we can get the right solutions and deliver: more low cost holidays; more competition; and more value for money and choice for consumers.

Thank you, now I am happy to take any questions you might have.

USA: Delta denies infringement of data privacy

In proceedings concerning a lawsuit accusing the airline of hacking into a computer of a passenger advocacy organization (see previous post), Delta has asked the federal court to dismiss the claim on the grounds that the plaintiff, FlyersRights.org founder Kate Hanni, had made the allegedly stolen emails public by forwarding them to an industry discussion group.

The lawsuit claims that Delta used stolen email to harm FlyersRights.org by derailing the group’s efforts to push through legislation aimed at limiting airplane tarmac delays to three hours.

Source: Travel Weekly; find article here>>.

Australia: no exemption of Age Discrimination Act for cruise line

Australia's largest pleasure cruise company, Carnival Australia, a subsidiary of global Carnival Corp., demands that young adults aged 18 to 21 are accompanied by a parent or guardian if they book one of a range of South Pacific cruises from Australian ports from November through January. The policy aims to exclude large groups of students who celebrate the end of the school or college year usually by excessive drinking.

A rejected passenger lodged an age discrimination complaint with the Australian Human Rights Commission which Carnival responded by asking for an exemption from its so-called under-21 policy of the Age Discrimination Act.

The commission, however, rejected the exemption application as such exemption would undermine the law's aim of eliminating age discrimination in the provision of goods and services.

Source: msnbc; find article here>>.

European Court of Justice rules on differentiation between cancellation and long delay

In joined cases C‑402/07 and C‑432/07, the European Court of Justice today ruled as follows:

1. Articles 2(l), 5 and 6 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, must be interpreted as meaning that a flight which is delayed, irrespective of the duration of the delay, even if it is long, cannot be regarded as cancelled where the flight is operated in accordance with the air carrier’s original planning.

2. Articles 5, 6 and 7 of Regulation No 261/2004 must be interpreted as meaning that passengers whose flights are delayed may be treated, for the purposes of the application of the right to compensation, as passengers whose flights are cancelled and they may thus rely on the right to compensation laid down in Article 7 of the regulation where they suffer, on account of a flight delay, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier. Such a delay does not, however, entitle passengers to compensation if the air carrier can prove that the long delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances beyond the actual control of the air carrier.

3. Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that a technical problem in an aircraft which leads to the cancellation or delay of a flight is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision, unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control.

Obviously the court wanted to avoid the consequences of declaring substantial provisions of the Regulation void, as had been suggested by Advocate General Sharpston. Even if the result may be regarded satisfying, the interpretation by the court seems a bit like squaring the circle.

Judgement available for download here>>.

European court of Justice: Sardinian regional tax on touristic stopovers infringes Community law

Legislation adopted by the Region of Sardinia introduced, as from 2006, a regional tax on stopovers for tourist purposes by aircraft used for the private transport of persons or by pleasure boats over fourteen metres in length. The tax is payable by natural or legal persons who have their tax domicile outside the territory of the region. With regard to the pleasure boats, the tax applies to undertakings which carry out transport operations for remuneration or free of charge. With regard to the aircraft, on the other hand, the tax is payable only by undertakings which carry out air transport operations free of charge, for reasons connected with their business activities.

In the course of two actions brought against that law by the Italian President of the Council of Ministers, the Italian Constitutional Court made its first reference to the Court of Justice for a preliminary ruling.

In his judgment in Case C-169/08 the Court considered that the difference between residents and non-residents constituted a restriction on freedom of movement since there was no objective difference in their situations which could justify the difference in treatment as between the various categories of taxpayer.

The fact that taxpayers in Sardinia contribute, through income tax, to the activities of the region, even those for the protection of the environment, was irrelevant since the tax on stopovers was not of the same nature and did not pursue the same objectives as the other taxes paid by Sardinian taxpayers.

According to the Court, it is common ground that the tax concerns trade between Member States (since it applies to services provided in connection with stopovers by aircraft and recreational craft and concerns intra-Community trade) and it may distort competition (since it grants an economic advantage to operators established in Sardinia). In addition, the regional tax law which grants certain undertakings exclusion from the obligation to pay the tax in question involves a renunciation by the region of tax revenue which it would normally have received. Lastly, the tax confers a selective fiscal advantage only on enterprises established on the territory of the region, as compared with undertakings which do not have their tax domicile there, since those two categories of undertaking are in a comparable factual and legal situation when they receive stopover services in Sardinia.

Source: ECJ press release 101/09 of Nov. 17, 2009

Austria: Supreme Court decides on information duties with regard to hurricane hazard

Plaintiff and his fiancé wanted to go on vacation in late October 2005 and asked their travel agency for a destination of fair weather. The agency inter alia offered Yucatan/Mexico which they chose and booked a package tour for Oct. 16 to 30. When they left for Yucatan on Oct. 16, a tropical depression had developed in the Carribean which on Oct. 18 turned into hurricane Wilma. Plaintiff and his fiancé enjoyed their vacations until Oct. 19 when heavy wind came up and the hotel staff began to nail up windows. From Oct. 20 they were asked not to leave their room. The storm calmed down on Oct. 23 and left much of the neighbourhood of the hotel and most of the surrounding infrastrcuture destroyed. Plaintiff and his fiancé were flown home on Oct. 27.

They sued for refund of the full package price, compensation for loss of holiday enjoyment and some minor damages: the tour operator had been at fault because of failing to warn them from the upcoming hurricane. The tour operator argued the general hazard of hurricanes in the Carribean was a fact of general knowledge and hurricane Wilma had only developed after they had arrived.

Supreme Court upheld the decision of the court of appeal that plantiff was entitled to a partly refund of the package price (except for the first three days) as well as to compensation for loss of holiday enjoyment and further damages. Even though the general hazard of hurricanes in the Carribean indeed was a fact of general knowledge and the development of hurricane Wilam and its track not foreseeable at the time of booking nor at the time of departure, the tour operator should have informed about the duration of the hurricane season when hurricanes are more likely.

Although it was only ascertained that plaintiff had booked for fair weather, Supreme Court concluded that it was likely that he would have booked another destination if properly informed. Even though plaintiff and his fiancé neither would have enjoyed the particular package tour if information had been given they probably would have enjoyed another one of equal shape which therefore also constiuted loss of holiday enjoyment.

Supreme Court again opposed a conceptional formula to detetermine immaterial damages. Courts rather had to assess these damages due to the cicumstances of each individual case.

Judgement 4 Ob 130/09k of Sep. 29, 2009 is not published yet.

Germany: German courts have jurisdiction over airlines in other member states in regard to unfair terms

In a decision dated July 9, 2009, German Supreme Court (BGH) held that German Courts have jurisdiction over over an airline in another member state in regard to a law suit filed by a consumer protection association to cease in order to interdict the use of unfair terms in General Conditions of Contract.

However, whereas with regard to such infringement of consumer interests, the law of that state applies in which due to the statement of claim collective consumer interestes have been affected, validity of such General Conditions of Contract was subject to the law governing the contract.

BGH decision Xa ZR 19/08 of July 9, 2009 available for download in German here>>.

Florida: law suit against Expedia and Orbitz over hotel taxes

Florida’s Office of Attorney General has sued Expedia and Orbitz, the leading internet travel companies, claiming that these companies violated state law by failing to remit the appropriate amount of taxes on hotel room rentals. The lawsuit states that while Expedia and Orbitz have been collecting taxes from consumers, they have only been remitting a portion on the taxes based on the wholesale rate the online sellers get from hotels, not the retail rate consumers pay.

Source: Attorney General Bill McCollum News Release of Nov. 3, 2009

Florida: Injunction Sought Against Timeshare Resale Companies

Attorney General Bill McCollum on Nov. 2nd announced that his office has filed a lawsuit and has requested an emergency injunction against two related South Florida timeshare resale marketing companies. Universal Marketing Solutions, Creative Vacation Solutions, and owner/manager Jennifer Kirk allegedly collected over $4 million in marketing fees on a monthly basis, but rarely if ever marketed, advertised, or facilitated sales for the timeshare owners who had contracts with the companies. The injunction requests the companies’ cease doing any timeshare business while the lawsuit is pending.

In a statement released Nov. 3rd, the American Resort Development Association (ARDA) welcomed the move to seek an emergency injunction: Although there were many reputable companies that provided resale services, the largely unregulated secondary market also included some that used unscrupulous tactics to take advantage of owners who may wish to sell their timeshares.

Sources: Attorney General Bill McCollum News Release, ARDA press release.

Austrian Supreme Court: compensation for loss of holiday enjoyment does not depend on certain percentage of price reduction granted for malperformance

Contrary to settled jurisdiction of Commercial Court Vienna, Austrian Supreme Court (OGH) in a recently published decision held that compensation for loss of holiday enjoyment would not depend on a certain percentage of price reduction granted for malperformance. Commercial Court Vienna had usually only granted compensation for loss of holiday enjoyment in cases were malperformance of the package tour contract entitled to a price reduction of at least 50 percent. In two previous decisions Supreme Court had not referred to a certain percentage of price reduction but argued that compensation for loss of holiday enjoyment could only be granted if a (not to low) treshold of relevant malperfomance was exceeded.

The new decision now emphasizes the different purposes of compensation for loss of holiday enjoyment on the one hand and price reduction for malperformance on the other hand and favours a position that compensation for loss of holiday enjoyment was only excluded in bagatelle cases. A treshold of entitlement to 50 percent price reduction would limit compensation for loss of holiday enjoyment to cases of massive annoyance which would not be in line with art. 5 of the European Package Travel Directive.

Full text of OGH decision 6 Ob 231/08a of Sep. 18, 2009 available in German here>>.

Greece: reference for preliminary ruling concerning hotel TV

Greek court "Arios Pagos" has filed a reference for preliminary ruling on wether the mere installation of television sets by a hotelier in hotel rooms and their connection to the central antenna installed in the hotel, without any other action, intermediation or intervention by the hotelier, constituted communication of the work to the public within the meaning of Article 3(1) of Directive 2001/29/EC, and, in particular, in accordance with the aforementioned judgment of the Court of Justice of 7 December 2006 in Case C-306/05 Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SA, and whether this would involve the distribution of a signal, via television sets, to customers who stay in the hotel rooms, by means of the technical intervention of the hotelier.

ECJ Case 136/09 - Organismos Sillogikis Diakhirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon v. Divani Acropolis Hotel and Tourism AE;
reference published in Official Journal of the European Union of 20.06.2009.

Brazil: 2007 Sao Paulo's crash caused by pilot error?

A military investigation into Brazil's deadliest air disaster reached no conclusion on blame, but officials said Saturday that pilot error rather than mechanical failure was the more likely cause.

A separate police investigation into the 2007 jetliner crash that killed 199 people blamed government and airline officials and recommended charges against 10 people — a case that is still tied up in courts.

Source: eTurboNews; full article by Bradley Brooks available here>>.

Space hotel to open in 2012

A first hotel in space will be open for business and accepting tourists by 2012 after an anonymous billionaire space enthusiast granted $3billion to finance the project. The Space Resort will charge 3 million euros for a three-night stay and eight-week training course on a tropical island before the trip.

Source: dailymail.co.uk; find article here>>.

European Union: Commissioner Kuneva welcomes new report on airline charges

The report, which will be presented by the Norwegian Ombudsman Bjørn Erik Thon, is the result of a year long investigation by 11 national enforcement authorities (led by Norway). The in-depth study found that airlines are frequently including parts of their basic operational costs (handling charges, fuel charges, booking fees) into what appears to be obligatory "taxes and charges" – this can mislead consumers and falsely attract consumers to buying seemingly cheaper tickets.

The study covered 281 flights, 24 leading European airlines, as well as 34 major European airports.
The results of the investigation will feed into the industry agreement currently being elaborated following the EU enforcement sweep on airline ticket selling websites (see IP/09/783).

Source: Press release by Commissioner Kuneva; report on airline charges available here>>.

USA: HIV travel ban terminated

The U.S. federal government is removing HIV/AIDS from the list of communicable diseases that can keep a foreign visitor or immigrant from getting a visa or entering the U.S. Termination of the ban which has been in effect since 1987 will become effective by Jan. 4, 2010.

Source: Travel Weekly; find article here>>.

International Tourism Law Seminar @ Beja (Portugal)

Next Friday, November 6th, the Polytechnic of Beja, in Portugal, will hold an International Seminar on Tourism Law.

Organized with the support of the University of the Balearic Island, in Spain, the event will be focused on the regulation of hospitality, in Portugal and Spain.

The event counts with presentations by some of the most known lecturers of Portugal and Spain, namely Professors:
José Ángel Torres Lana, María Nélida Tur Faúndez, Antonia Paniza Fullana and María Belén Ferrer Tapia, from the University of the Balearic Islands, Spain;
Verónica San Julián, from the University of Navarre, Spain;
Virgílio Machado, João Almeida Vidal and Afonso Ribeiro Café, from the University of the Algarve, Spain;
Manuel David Masseno, from the Polytechnic of Beja.

SIDETUR - the IberoAmerican Society for Tourism Law is supporting this Seminar.

USA: Lawsuit against pilots dismissed

Continental Airlines alleged that nine pilots obtained "sham" divorces from their spouses for the purpose of withdrawing pension funds early. However, US District Judge Gray H. Miller held that ERISA, the federal statute governing pensions, does not authorize corporate human resources departments to second-guess the validity of a lawful family court divorce judgments. The pilots have countersued for allegedly illegal invasions of privacy, including humiliating and intrusive questioning about their domestic arrangements, medical conditions, intimate relationships, and financial circumstances.

Source: eTurboNews; find article here>>.

European Union: European Consumer Consultive Group publishes opinion on Commission Proposal for a Directive on Consumer Rights

The European Consumer Consultative Group (ECCG), the Commission's main forum to consult national and European consumer organisations, on Oct. 6 published a prelimniary opinion on the Commission Proposal for a Directive on consumer rights.

Interestingly, ECCG does not believe the minimum harmonisation approach of the current directives has genuinely created barriers to cross-border trade and feels that other reasons such as differences in language, tax regimes, the lack of redress systems are much more relevant in this context.

The ECCG regrets that the proposal:

• does not provide for a high level of consumer protection, but rather requires Member States to reduce well-established consumer protection levels, including in some cases, to levels below those provided in the current directives. In addition, ECCG is concerned that Member States will be prevented from increasing these levels in future;
• includes only a few laudable improvements such as a common 14 days cooling-off period and the regime for the passing of risks;
• fails to introduce the promised clarifications and coherence of the consumer acquis, not least because it is limited to just four directives only;
• is unclear on a series of key issues such as the relationship with national
• general contract law and other relevant EU legislation;
• fails to respond adequately to the challenges of modern markets and new technologies and in fact may prevent national developments to address these concerns – especially those related to digital content.

Full text of ECCG opinion available for download in pdf here>>.

Japan: arline asks passengers to use toilet before boarding

From Oct. 1st All Nippon Airways has started to ask passengers to use the toilet before boarding, to reduce carbon emissions. If only half of the passenger followed the advice, the airline hopes that the weight saved will lead to a five-tonne reduction in carbon emissions over a month.

Source: telegraph.co.uk; find article here>>.

USA: passenger rights group sues Delta for alledged email hacking

FlyersRights.org sued Delta and an FAA contractor on Tuesday, alleging that the companies conspired to derail the group’s efforts to persuade Congress to enact a passenger rights bill that would limit tarmac delays to three hours.

The lawsuit, filed in U.S. District Court in Houston, alleges that Delta and the contractor, Metron Aviation of Dulles, Va., used "hacked" emails in an attempt to discredit the group and to fire a Metron employee who had been passingFAA data on delays to FlyersRights.org.

Source: Travel Weekly; find article here>>.

Austria: misrepresentation by agent attributable to timesharing contractor

Plaintiff had entered into a timesharing contract through an agent whom he (also) had assigned himself. The agent had falsely stated plaintiff's usage rights would be safeguarded by registration in the land register. Trusting the agent, plaintiff didn't read the contract carefully. As there was no registration of his rights he contested the validity of the contract based on deception. Austrian Supreme Court in decision 6 Ob 109/09m of July 2, 2009 confirmed judgements of the lower instances attributing the misrepresentation by the agent to the timeshare contractor.

Supreme Court decision available for download in German here>>.

USA: DOT warns airlines to follow lost luggage-rules

In a newly issued notice, the U.S. Department of Transportation (DOT) reminded airlines that they may not arbitrarily limit compensation for passengers who purchase necessities because their baggage is lost or delayed. A number of carriers have policies stating that they will reimburse passengers only for buying necessities purchased more than 24 hours after arrival and limiting such reimbursements to the outbound legs of trips. This is in violation of DOT regulations which require that airlines cover all expenses caused by lost or delayed baggage up to $3,300 per passenger on domestic flights.

Source: DOT Office of Public affairs; read message here>>; DOT Guidelines on Reimbursement of Passenger Expenses incurred as a result of lost, damaged or delayed baggage available for download in pdf here>>.

Bust airlines

MEPs back compensation for grounded passengers:

If your airline goes bankrupt and leaves you stranded what are your legal rights? Members of the Parliament's Transport Committee want grounded passengers to have access to a special compensation fund. In the last decade almost 100 airlines across the European Union have gone bankrupt - leaving thousands of holiday makers and business flyers out of pocket and stuck at a foreign airport.

Sabena, Sky Europe and Olympic Airlines are just three of the large carriers that have gone bankrupt due to a combination of high fuel costs, competition and new security measures after 9/11.

Transport Chair Brian Simpson speaks of "clear loophole"

On 7 October during the plenary session in Brussels, the Chair of the all-party Transport Committee, Brian Simpson (Labour, North West of England), formally asked the European Commissioner for Transport Antonio Tajani to set up "a reserve compensation fund" and consider updating passengers' rights legislation.

He told fellow MEPs that "here we have a clear loophole and it would be preferable for all if we could work together and fill it in".

He added: "We have also floated the idea of establishing a reserve compensation fund, but this must not be seen as a demand. We merely wish to open up the debate as to what mechanism will help us best solve this problem."

Transport Commissioner Tajani backs compensation

Commissioner Tajani told Members that "passengers should indeed receive compensation. We are working on specific measures to find the best solution. One solution is a compensation fund derived from airlines' contributions. Another would be changes in bankruptcy law in the member states".

There is a consensus across the Parliament's main political groups that the European Union needs to do more to help passengers stranded by bankrupt airlines. A Parliamentary resolution is due to be tabled later in the autumn.

Source: 20091002STO61739

Alaska: Cruise Association files law suit over passenger head tax

The Alaska Cruise Association filed a federal lawsuit challenging Alaska's head tax on the approximately 1 million cruise-ship passengers who arrive in the state each year. The lawsuit is seeking relief from the $50 fee imposed on each passenger arriving aboard large cruise ships, a fee which was approved by Alaska voters in 2006.

The association argues that the head tax by far exceeds the expenses of services and facilities provided to cruise ships, and in some cases the money is going to fund projects that do not directly benefit cruise-ship passengers.

Source: The Seattle Times; find article here>>.

Addendum: Links

You can find the press release in German over here (The judgement has not been published yet!):

and a translation in English over here:

Airlines can not claim fees of 50 eur for a reversal booking operation

Germans Highest Court (Bundesgerichsthof) decided yesterday on the complaint of a consumer organisation (Verbraucherzentrale Nordrhein-Westfalen)against the airline Germanwings, with the omission of the use of a clause within general terms and conditions.

Citation: BGH 17.09.2009, Xa ZR 40/08

The "charging order" ("Entgeltordnung") stated, inter alia:

"Fee for a reversal booking operation is: € 50.00 per booking"

As Germanwings tried to get the ticket prize by direct debiting but due to the lack of balance of the passenger's account, the debiting failed.

You can find the press release in German over here (The judgement has not been published yet!):

and a translation in English over here:

Kind regards from Cologne!

Stephan

USA: railroad passengers allowed to transport guns in checked bags

The Senate voted Wednesday to permit passengers on the Amtrak passenger railroad to transport handguns in their checked baggage. The proposal, approved by a 68-30 vote, seeks to give Amtrak riders rights comparable to those enjoyed by airline passengers, who are permitted to transport firearms provided that they declare they are doing so and that the arms are unloaded and in a securely locked container.

Source: USA Today; find article here>>.

Panic on an Aer Lingus flight to Paris

Passengers on the Aer Lingus flight from Dublin to Paris began shouting out and crying as they thought their plane was about to ditch. The crew accidentally played out a recorded emergency landing warning in French as the plane headed south over the Irish Sea. Around 70 French passengers were reported to be "freaked out" on hearing the warning. The cabin crew quickly realised their mistake and swiftly apologised in French.

Source: SkyNews; find article here>>.

IATA: Airline Losses at $11 Billion in 2009

The International Air Transport Association (IATA) announced a revised global financial forecast predicting airline losses totaling $11 billion in 2009. This is $2 billion more than the previously projected $9 billion loss due to rising fuel prices and exceptionally weak yields. Industry revenues for the year are expected to fall by $80 billion to $455 billion, a 15 percent drop from 2008 levels. IATA also revised its loss estimates for 2008 from a loss of $10.4 billion to a loss of $16.8 billion. This revision reflects restatements and clarification of the accounting treatment of very large revaluations to goodwill and fuel hedges. IATA industry profit figures strip-out such extraordinary items which are not realized in cash terms.

Source: IATA press release 37 of Sep. 15, 2009

USA: continuing debate on passenger rights

While the legal debate is continued, the National Business Travel Association last month switched its position and now supports federal legislation on airline passenger rights. Two airline CEOs speaking in August at NBTA's convention in San Diego disagreed with the need for such laws, which have been proposed by the U.S. Department of Transportation and Congress.

The Airline Passengers Bill of Rights would require airlines during lengthy delays to provide food, drinking water, clean restrooms and comfortable cabin conditions; airports to develop federally approved contingency plans for long delays; and DOT to establish a consumer complaint hotline.

Source: Management Travel; find article here>>.

Iraq: new focus on religious tourism

Hundreds of thousands of Shia Muslims, particularly from Iran, visit the city of Najaf, which hosts the tomb of Ali bin Abi Talib, cousin and son-in-law of the Prophet Muhammad. Though religious tourism brings millions of dollars of revenue every year, local merchants have complained that Iranian companies have monopolised the industry.

Source: eTurboNews; find article here>>.

European Commission hosts Global Health Security conference on Influenza A(H1N1)

Health ministers from the G7 countries (Canada, France, Germany, Italy, Japan, UK, US), Mexico and the World Health Organisation meet today in Brussels for a special ministerial meeting of the Global Health Security Initiative (GHSI) hosted by the European Commission. The meeting will focus on effective public health measures to respond to the influenza A (H1N1) virus. The timing of this meeting is crucial with respect to the potential for a more virulent wave of the virus in the months ahead. A common statement (or communiqué) setting out the common approaches adopted by the G7 countries plus Mexico and next steps of joint work on pandemic (H1N1) 2009 will be adopted at the meeting followed by a press conference.

Source: EU press release IP/09/1306 of Sept. 11, 2009

EU protests against fees imposed on tourists by new US travel bill

The European Union is upset about plans by the United States to implement new travel fees for visa-waiver tourists. The $10 fee is part of the Travel Promotion Act which would be put in place in order to help fund a world tourism project that would increase the number of visitors to the US by better communicating America's security policies and competing for visitors. EU is considering retaliatory stances if this new fee is put into place.

Source: examiner.com; find article here>>.

21st IFTTA Annual Conference: Brazil - Sao Paulo/Ilhabela

Again this year, IFTTA is organizing its “21st International annual Conference on Travel and Tourism Law” with the themes “”1.Accidents in travel and tourism sector: prevention, risk management and liability, 2.Recent national and international developments in travel and tourism law, and 3.Tourism and its impact on the environment". The conference will happen on October 3rd - 6th, 2009 at Parque do Ibirapuera, São Paulo-Brazil and Pier 151, Ilhabela. Held in a pleasant environment, the IFTTA's conferences became a traditional center of reference on travel and tourism law worldwide among its members. Also, it provides a good opportunity for networking with the global professionals of these industries. The conference will offer outstanding infrastructure of services and will be available simultaneous translation Portuguese/English/Portuguese. In the last edition in Beijing the international IFTTA conference on travel and tourism attracted participants from different countries and was one of the appealing encounters of the academics, authorities, experts and professionals in the areas travel and tourism, distinguishing itself by promoting debates and pointing high important questions about the sector growth and development.Please visit the conference website http://www.ifttabrasil.org/ where you will find the conference program, hotel information, and online registration.

Kenya: new tourism law

Kenyan government is said to have agreed on the text of a new tourism law, which will, when passed and made operational, provide for the formation of new bodies as a new Tourism Authority, likely to be a licensing and inspection platform, and a Tourism Finance Corporation, likely a successor to the Kenya Tourist Development Corporation.

The new law would also provide for regional tourist offices to be opened to facilitate a greater spread of tourism activities across the country. The cabinet also gave the thumbs up for a new comprehensive tourism policy, which will, when passed, guide the sector over the next decade and beyond.

Source: eTurboNews; find article here>>.

USA: questions remaining about NewYork's hotel remarketer’s tax

The hotel remarketer tax will require any reseller of a New York hotel room to remit a tax based on the full amount paid by the customer, including service fees and charges. A representative of the city’s law department said a statement of audit procedure will provide more information about the law and give guidance related to more specific business models, including guidance on unbundling packages.

According to the memorandum, the tax on net and additional hotel room rent will apply to New York hotel rooms booked on or after Sept. 1. Hotel room resellers must complete and file a "certificate of registration" with the finance department by Sept. 3.

Source: Travel Weekly; find article here>>.

Samoa: protests against upcoming side switch of road traffic

The small Pacific island country of Samoa is due to change from driving on the right-hand side to the left on September 7, in the first switch since Nigeria, Ghana and Yemen shifted to the right in the 1970s and Sweden did so in 1967.

Since the government announced the plan in 2007, huge protest marches have been held, more than a sixth of the population of around 180,000 people has signed a petition calling for the changeover to be reversed, and a court is expected to rule on its legality later this week.

Source: AFP; read article here>>.

USA: Lawsuit on Border Laptop Searches

The American Civil Liberties Union (ACLU) has filed a lawsuit in the U.S. District Court for the Southern District of New York demanding that U.S. Customs and Border Protection (CBP) release details of its policy that allows the agency to search travelers' laptops at U.S. borders without suspicion of wrongdoing. The law suit is an effort to get CBP to respond to a Freedom of Information Act (FOIA) request that the civil liberties group filed in June about the laptop-search policy. Though the FOIA law requires it to give a response within 30 days the agency has not supplied information.

Source: The New York Times; find article here>>.

USA: Scotland boycott threat following al-Megrahi release

Protesters in the USA angered by the release of the Libyan Basset Ali al-Megrahi, the only man convicted of the 1988 bombing of Pan Am flight 103 over Lockerbie launched a "Boycott Scotland" campaign in the internet. The website BoycottScotland.com is an anonymous Internet protest calling upon Americans to avoid Scotland and Scottish products in protest at al-Megrahi’s release.

The anonymous Internet protest is receiving wide publicity in the US media, including the New York Times, Bloomberg, CNN and Forbes magazine. ETOA, the European Tour Operators Association, has announced to closely monitor the campaign and advises against any tourism boycott of Scotland.

Source: ETOA Briefing of Aug. 26, 2009; find full text here>>.

Austria: no liability for depressive mood following massive flight delay

Plaintiff had booked a package tour to Turkey together with his wife and their two children. Because of technical problems, the outward flight to Turkey was delayed for 26 hrs. Plaintiff claimed that because of a depressive psychosis he was suffering from, the fligth delay had caused a depressive mood which had prevented him from enjoying his holidays. Even his wife had not been able to enjoy the holidays as she had to look after him. Both of them had hardly left the hotel room.

Back home in Austria he sued for compensation for loss of holiday enjoyment and some minor expenses he had had becuase of the flight delay.

Upon defendant's appeal Regional Court (Landesgericht Innsbruck) in judgement 2 R 170/09b of June 19, 2009 for the most part dismissed the claim: plaintiff had not mentioned his disease when booking the package tour and same had not been offered as being specifically suitable for mentally ill persons. The depressive mood therfore could not be regarded an adequate consequence of the flight delay. Plaintiff also had failed to explain why he needed specific care.

Bangladesh: new tourist police

Bangladesh has formed a police unit to better protect local and foreign tourists and tourism spots. Another main task for this particular unit will be to look after the nature and wildlife in the tourist spots.

Due to the country's National Tourism Authority (NTA), a total of 349,837 foreign tourists visited Bangladesh in 2008, about 21 percent more than in 2007.

The lack of security and poor infrastructure were largely blamed for lower tourist arrivals in the country's remote tourism spots. It is the purpose of the new police unit to change that.

Source: www.xinuanet.com; find article here>>.

Austrian Supreme Court addresses excessive term of timesharing contract

In July 2003 plaintiffs had acquired timesharing rights (right to use an appartement one week per year) in defandants' hotel at CHF 10.000 and a yearly contribution of CHF 490. The contract term was scheduled until 20.01.2050 (!). In their law suit filed in 2008, plaintiffs sought for termination of their contract by 20.01.2015 and refund of EUR 5.297. They claimed that due to settled case-law the term of a timesharing contract must not exceed 10 to 15 years. As thus their contract therefore was partly void they were entitled to the refund claimed for.

The claim was dismissed by all levels of jurisdiction: Supreme Court (OGH) confirmed the view of the lower instances that it was not the excessive term of contract itself that had to be regarded void but the lack of a right to terminate the contract after expiration of a reasonable term. Even if notice of termination can be given long time in advance, the legal consequences of termination will only become effective at the time of termination. Thus there was no claim to the declare the contract void "pro futuro" and no due claim for refund.

OGH judgement 8 Ob 147/08p of April 4, 2009 available in German here>>.