European Union: updated airline blacklist bans airlines from Philippines and Sudan

To improve safety in Europe, the European Commission – in consultation with Member States’ aviation safety authorities – has decided to ban airlines found to be unsafe from operating in European airspace. The 'blacklist' was established in 2006 and is updated annually.

The latest update of March 30, 2010 imposes an operating ban on all airlines from Sudan and the Philippines due to noncompliance with international safety conditions. Some Iran Air jets will also be banned from flying to Europe while North Korea's state-owned carrier Air Koryo has received a partial exemption from the airline blacklist.

Source: EC press release of March 30, 2010

Find updated list here>>.

USA: Supreme Court refuses to hear Frequent Flyer Depot case

American Airlines' frequent flyer program prohibits the purchase or sale of the program’s mileage credit or award tickets and makes such mileage or tickets void if transferred for cash or other consideration. American sued Frequent Flyer Depot, and its owners for brokering AAdvantage mileage credit and award tickets. In September 2008, the trial court granted the airline’s request for a temporary injunction and issued an order enjoining the brokers from purchasing, brokering, bartering, selling, offering for sale or soliciting AAdvantage mileage credit or award tickets through the completion of the trial. The appeals court rejected Frequent Flyer Depot’s appeal and held that the airline’s contract with its frequent flyer program members is based on mutuality of obligation and thus is enforceable.

The US Supreme Court has now refused to lift the temporary injunction against Frequent Flyer Depot.

Case: Frequent Flyer Depot v. American Airlines, 09-815

Sources: The NV Flyer, eTurboNews

Qatar Airways announces new South American flights.

Qatar Airways announced that it will begin daily flights to Brazil and Argentina from June 24, marking the airline’s first online operations to South America. With the airline’s acquisition of two brand new Boeing 777-200 Long Range aircraft in the last three months, these will be deployed on the two South American routes – to the Brazilian city of Sao Paulo and Argentine capital Buenos Aires this summer.

The date announcement comes just weeks after the airline revealed plans to serve South America, and spread its wings to yet another Continent. The flights will offer convenient connections from key markets across Asia and the Gulf to South America.

Source: TravelDailyNews; find article here>>.

USA/Texas: limited airline liability for injury caused by other passenger

In Wright v. American Airlines, Inc. (N.D. Tex. Feb. 8, 2010), during the aircraft’s climb flight, and while the “fasten seat belt” light was on, a passenger stood up to remove an item from an overhead compartment. An object fell down and struck another passenger on his head, injuring him.

The injured passenger sued American under the Montreal Convention, alleging that the airline was liable for damages “exceeding 100,000 SDRs as provided in Article 21.” American moved for partial summary judgment, contending that, under Article 21(2), it should not be held liable for any damages in excess of 100,000 SDRs because the plaintiff’s injuries had not been caused by the airline’s negligence but solely by a third party, the other passenger.

The court found that the airline had presented sufficient evidence to prove that the injuries were not caused by any negligence, omission, or other wrongful act on its part or on the part of its flight crew. In particular, court found that the airline had done all that it could do by making a preflight announcement that the “fasten seat belt” sign had been turned on and that passengers should be careful when opening an overhead compartment. Accordingly, the court held that plaintiff could not recover damages from American in excess of 100,000 SDRs.

Source: The NV Flyer; find article here>>.

German Supreme Court: no compensation for flight cancellation due to bad weather condidtions

Plaintiff had booked a flight from XRY (Jerez, Spain) to HHN (Hahn, Germany) for himself and his wife for Oct. 25, 2007 with Ryan Air. Departure was scheduled 10:00 a.m.. Due to foggy conditions at XRY, the flight was cancelled. The aircraft landed in SVQ (Sevilla, Spain) and returned to HHN from there. Plaintiff and his wife were offered an alternative flight on Oct. 27 which they refused. They booked a flight from MAD (Madrid, Spain) to FFM (Frankfurt, Germany) for Oct. 25 instead.

Plaintiff sued for compensation of EUR 400 each under Art. 7 Reg. (EC) 261/2004 as well as additional costs of the flight MAD-FFM.

First instance court (Amtsgericht Simmern) dismissed the claim. Appellate court granted the claim to a large extent.

Upon appeal by Ryan Air, German Supreme Court (BGH) dismissed the claim with regard to compensation under Art. 7 and repealed the judgement with regard to additional costs for procedural supplement.

In judgement Xa ZR 96/09 of March 25, 2010, BGH held that whether a cancellation reasonably could have been avoided had to be judged from case to case. Under the particular circumstances it had not been foreseeable how long the foggy conditions would last. Taking into regard the impact on the further flight schedule it would therefore not have been reasonable for Ryan Air to postpone the decision on cancellation.

Anyway, by offering alternative transportation not before Oct. 27, Ryan Air may have failed to comply with its obligation to provide adequate alternative transportation and may be liable for additional costs - which appellate court will have to consider in further proceedings .

Source: BGH press release 64/2010, available in German here>>.

English Holday Camp Case

Atkins v Butlin’s Skyline Ltd., 27 May 2005

A, a blind man, stayed at a holiday camp with his wife and daughter. He was injured in exiting a lift when the lift door closed, trapping his upper arm and shoulder. The lift had been inspected 9 months previously and the contractor had recommended that a sensor should be installed to identify any obstruction to the lift doors closing. This was subsequently fitted after A’s accident. Under examination in court, one of the contractor’s inspectors acknowledged that the lift was safe “if not disabled friendly”. The court held B liable for failing to have carried out a risk assessment and for failing to install the sensor.

B appealed on the grounds that it had met its’ obligations under Section 2 of the Occupiers’ Liability Act 1957 to keep A reasonably safe on the premises. The judge had been wrong to declare that the lift was unsafe given that the only expert evidence heard in court, that of the lift inspector, had acknowledged that the lift was safe for use by disabled persons.

John J Downes

English Hotel Employment Case

Hone v Six Continents Retail Ltd. [2005] EWCA Civ 922

H was employed as a licensed house manager at a hotel for 4 years, when he was moved to another hotel owned by the same company. He began to suffer from headaches and insomnia. After 8 months of working in the new hotel he had a meeting with the operations manager to express his concern about the excessive workload and the need for the appointment of an assistant manager. He had recorded workloads of around 90 hours a week. After 9 months in the new post, he suffered giddiness and chest pain and subsequently collapsed at work. He claimed that this was because of stress due to his excessive workload. He was awarded £21840 (€24396/$32513) damages for psychiatric injury due to stress at work.

The employer appealed. It contested the number of hours work that H claimed but admitted in court that this recording of hours may have been a cry for help. However, S claimed that it could not have reasonably have foreseen, from the time of H’s meeting with the operations manager, that H would suffer psychiatric injury. He had no previous history of mental illness or stress at work.

The Court of Appeal rejected S’s appeal. The employer was aware that H had been working long hours. He had complained about it for a long period and had decided not to sign the opt-out permitted under the Working Time Regulations because of it. There was sufficient evidence of impending harm to health and a reasonable employer would have done something about it.

John J Downes

English Travel Law Case: Coach Travel

Welsh v Messenger, 13 September 2005, [CLYB] 2875

W, aged 68, suffered serious neck and hip injuries when the coach she was travelling on veered off the road and rolled down a bank. She had not been wearing a seatbelt at the time and was thrown from the coach. In 2001, a regulation had been introduced requiring all coaches made after that date to be fitted with 3 point seatbelts. The accident occurred in 2002. The regulation did not require that passengers use the seatbelts but the Highway Code 2004 advised that passengers should do so where they were available. The 2002 version of the code contained no such advice.

M claimed that W had been contributory negligent in that she had not worn a seatbelt. W pointed out that she was a frequent coach traveller and had never been warned of the requirement to wear a seatbelt. Although she always wore a seatbelt when travelling by car, she believed that she was relatively safer in not doing so in the environment of a large car. The court dismissed the claim of contributory negligence. There was no general public perception of the importance of wearing seatbelts in coaches and W had not been negligent.

John J Downes

English Travel Law Case

Clough v First Choice Holidays and Flights Ltd. [2006] EWCA Civ. 15

Whilst on holiday, C slipped from a wall that divided two swimming pools, fell into a paddling pool and broke his neck. He was under the influence of alcohol at the time. The judge agreed that the tour operator had been negligent in that the wall between the two pools had not been coated with non-stick paint. However, it was for C to establish that that had been the cause of the accident and he had failed to do so and so the claim was dismissed. He appealed on grounds that it was not for him to prove that the use of non-slip paint would have prevented the accident. If its use was likely to have made a difference then failure to use it should have been treated by the judge as having made a material contribution to the accident and thereby establishing liability. His counsel argued that there were two distinct concepts: material contribution to damage and material contribution to the risk of damage. All that he had to establish was that F’s negligence (or that of F’s supplier) had made a contribution to the risk that was more than minimal.

The Court of Appeal held that holidaymakers were entitled to a reasonable degree of protection whether they were sober or not. C was owed a duty of care by F. The accident was not an exceptional one. However, the court rejected C’s argument on the distinction between material contribution to damage and material contribution to the risk of damage as irrelevant in a case, such as this, where the injuries arose from a single accident. C was required to show that a breach of duty on the part of F caused or materially contributed to his injury. This had been correctly applied by the judge and he concluded, on the balance of probabilities, that the accident would not have been avoided even if non-stick paint had been used.

John J Downes

Evaluation of Regulation 261/2004/EC

The final report (110 pages) as of February 2010 made by Steer Davies Gleave / London for the European Commission DG Transport can be found and downloaded here:

Report

Travel Law Conference in Portugal

Next 7 May, the University of the Algarve at Faro will held an International Travel Law Conference focused on The 20 Years of the European Package Travel Directive.

With some of the most renown Experts from Portugal, Spain, Austria, Germany and Ireland, but also from the USA and Brazil, as invited Speakers, this intends to be the most relevant Academic event on the current Anniversary of the Directive.

UK lawmakers: privacy fears over body scanners overblown

The privacy fears raised by the deployment of full body scanners at airports are overblown, a committee of British lawmakers said Wednesday, adding that the technology was no more of a threat to passengers' rights than pat-downs or bag searches.

The government promised to install body scanners across Britain's airports after a botched attempt to bring down a Detroit-bound jet on Dec. 25 — allegedly by a terrorist who hid explosives in his underwear.But privacy groups bristled at the prospect of scans that can peer under clothes to reveal hidden items, likening them to a "virtual strip search."

The report welcomed the introduction of the scanners and recommended that other security measures be adopted quickly, including new equipment to sniff out trace levels of explosives.

Source: Los Angeles Times; find article here>>.

USA: new legislation requires disclosure of airline fees

The Federal Aviation Administration reauthorization bill, passed by the Senate earlier this week, contains a new provision that would require airlines and online travel agencies to clearly disclose all fees associated with the cost of a ticket, including holiday surcharges, baggage fees and seat assignments.

The bill also includes the Passenger Bill of Rights, which mandates that aircraft cannot remain delayed on the tarmac for longer than 3 hours before having to return to the gate. Alternatively, the rule allows the airline to send buses to take passengers off the plane so the aircraft doesn't lose its place in line to take off.

In response to recent plane crashes, the bill also

• tightens pilot hiring, testing, training, and rest requirements for large and small airlines
• bans the use of personal electronic devices in the cockpit

The F.A.A. reauthorization bill now has to go into conference committee and be reconciled with the House version of the same bill.

Sources: New York Times "In Transit" Blog; find article here>>.
eTurboNews; find article here>>.

UNWTO: China may become top tourist destination by 2015

China, the world's fourth-most popular tourist destination at present, will surpass France as the largest tourist destination by 2015, according to Taleb Rifai, secretary general of the UNWTO. In the last ten years, the number of foreign tourists to China has increased from 8 to 48 million.

Source: eTurboNews; find article here>>.

Idaho: lawmakers block full-body scanners

The Idaho House of Representatives has voted 58-9 in favor of HB 573, legislation from Rep. Phil Hart, R-Athol, to restrict the use of full-body imaging for airport security in Idaho. Rep. Russ Mathews, R-Idaho Falls, backed the bill, saying Americans shouldn’t sacrifice freedoms in the name of security. The bill now moves to the Senate.

Source: The Spokesman-Review; find article here>>.

England: no tour organizer liability for toboggan accident

Plaintiff (P) and her family booked a skiing holiday at Mayrhofen, Austria with defendant (D). The package included the hotel and the flight but made clear that ski equipment, ski passes and any lessons had to be booked separately. The internet brochure stated that tobogganing was available at the resort. On the third day P asked D's representative at the resort who had welcomed the group on their arrival if a tobogganing event was suitable for their party of adults and children, particularly P's seven year old son Joe and whether it was available that evening. D's representative replied that D had no spaces left. She suggested that she would contact another tour operator called Inghams and get the family party on the event with them which she then did.

The event itself was organised by an Austrian company called Action Club Zillertal (“ACZ”) who took bookings from members of the public as well as from tour operators such as D.The bus from the hotel was provided by ACZ who handed out a docket or ticket to those on the bus entitling its passengers to obtain a toboggan and a ride on the gondola (which took the participants up to the beginning of the toboggan run). Four representatives of D were on the trip and at the toboggan run spread themselves out among the participants. The fast participants went first, the slower ones following. P and a friend arrived safely at the end of the run (although they could not stop until they had passed a red light indicating the end of the run). They got off their toboggan a little beyond the proper end of the run.

After the red light there was a prominent sign stating “Ende der Rodelbahn”. After this sign only just before a snowbank, the road went round a left hand bend quite steeply downhill towards the cable car station and a chalet hotel which was on the right. The accident happened because P and heri friend had remounted their toboggan and came down the lower road from the end of the run to the cable car station too fast. Seeking to avoid the buildings they careered into some straw bales which were hard and frozen. P suffered severe injury to her legs.

The judge of first instance court found that the tour representatives had briefed the participants both on the bus and at the top of the mountain that there was a flashing red light at the end of the run and that they must then get off their toboggans, and walk down the rest of the way to the toboggan shed and the bus. The judge specifically found that this instruction was given several times and that P had heard it. He dismissed the claim.

Upon P's appeal, the High Court of Justice held that it was not entirely easy to determine, on the exiguous evidence before the judge, whether P had a contract with D in relation to the toboggan run.Had there been a contract, the only relevant term would be an implied term that D would exercise due diligence. However, D had assumed responsibility to their customers, and owed them a duty of care in tort.

Anyway, it was not the duty of a tour operator dealing with rational adults on a winter holiday to repeat simple warnings already given with clarity or to point out obvious dangers of ice on the road and the relative safety of snow at its side. So to hold would only encourage potential claimants to believe that whenever an injury occurs someone must be to blame. That is not what the law of negligence is about.

Case Details: Susan Parker v. TUI UK Ltd [2009) EWCA Civ 1261; full text of judgement available here>>.