EU updates aviation security rules

Regulation 300/2008 on aviation security applicable as of 29 April 2010 puts in place new rules to improve, streamline and simplify existing procedures. For example by:

• Eliminating duplication of security controls. For example, reducing costly duplication of checks in strictly controlled areas of EU airports, where there has already been strict screening for access. This is of significant operational benefit for airlines and airports.
• Simplifying procedures. For example, by establishing a single set of standards for the documents you need to get access at airports. The new rules clarify which kinds of identification and authorisations are necessary for access to different restricted areas. This clarifies the situation for authorities making it easier for them to operate the system.
• Harmonising procedures. For example, introducing EU-wide procedures for the recognition of hauliers transporting air cargo consignments. These can be recognised and used by hauliers in all Member States – this reduces restrictions for hauliers and the need for costly re-screening of cargo.
• Introducing common minimum standards as regards security training for all staff that implement security controls.

By 29 April 2013 at the latest, all liquids will be allowed in cabin baggage and will be screened. By that date, the current restrictions on the carriage of liquids in cabin baggage will end. The transition period until 2013 is necessary to allow for a roll-out of liquids screening equipment at all EU airports.

Source: Europa Press relase RAPID IP/10/479 of 29/04/2010

English Contract Law Case

Maggs (Trading as BM Builders) v Mark [2006] EWCA Civ. 1058

The general rule in English Law is that where there is a written contract the court should not look at the subsequent conduct of the parties in order to construe the terms. However, where the contract is partly written and partly oral the court may look at subsequent conduct in order to construe the parties’ original intentions. In determining the terms of an oral contract it is necessary to look at the facts of the case and what was said and done subsequent to the agreement may help to determine what the parties’ original intentions were.

English Case: Unfair Contract Terms

Baybut v Eccle Riggs County Parks Ltd., The Times, 13 November 2006

The court held that it was highly unlikely that the Unfair Terms in Consumer Contracts Regulations 1999 were ever intended to apply to implied terms. They apply only to express terms, whether oral, written, electronic etc.

English Air Law Case: Denied Boarding Regulations

Parker v TUI UK Ltd (Trading as Austravel) 30 October 2006



P had booked a flight from Heathrow to Sydney with TUI trading as Thomsonfly. P claimed that she had been informed by them that she was booked on a scheduled flight with Qantas. On later discovering that she was in fact booked on a chartered flight she paid to be upgraded to “premium economy” at a cost of £325 (€374/$496).

On arrival at Sydney airport, she was told that her return flight was delayed by 24 hours due to mechanical failure. In accordance with the EU Regulation of 2004, she was offered overnight accommodation, free transport to and from the airport, free meals and free telephone calls. She refused these, preferring to stay at a friend’s house in Sydney. She was subsequently told that the return flight would in fact delayed by 49 hours. After the initial 24 hour period expired, and having unsuccessfully tried to contact the defendant, she booked an alternative flight home to Gatwick with Qantas. TUI refunded the cost of the delayed flight to Heathrow in accordance with the Regulations.

C claimed the cost of the upgrade, taxis to and from her friend’s house in Sydney, the taxi from Gatwick to Heathrow and £500 (€576/$763) for loss of enjoyment. She also claimed that she had not been provided with the notice of her rights under the Denied Boarding Regulations.

The court held that the Regulations did not permit a free standing Private Law cause of action. Instead, it provided a Public Law remedy to enforce the rights set out in the Regulations. C could report breaches of the Regulations to the CAA. TUI had reimbursed her for the cost of the flight not made and had met their obligations in respect of accommodation, meals, telephone calls etc. The contract was a contract of carriage, not a contract for a holiday. It was not therefore a contract for enjoyment and therefore the claim for loss of enjoyment failed. The contract was governed by the Carriage by Air Acts, implementing the Montreal Convention, and thus no alternative common law remedy was available.

UK: Aviation Law

Civil Aviation (Contribution to Air Travel Trust) Regulations 2007

This Act requires all Air Travel Organiser Licence (ATOL) holders to contribute to the Air Travel Trust Fund. The amount that they are required to contribute is based upon the number of passengers included in bookings under their licence. The CAA is required to publish the applicable rates of payment, the dates that they are due and the methods of payment. It is an offence for an ATOL holder to knowingly or recklessly supply false information to the CAA under these provisions for the purposes of paying less than they are due to pay. The CAA can refuse to issue, vary, suspend or revoke a licence where the holder is in breach of these Regulations.

Scottish Hotel Law Case

Drake v Dow 2006 SCLR 456

D stayed at a guesthouse. During the night his laptop was stolen from his room. His bedroom door did not have a lock. He claimed damages from the guesthouse owner under the praetorian edit nautae, caupones, stabularii. The Roman Law edict, which is part of Scots Law, imposes strict liability on innkeepers for guest’s property.

The Sheriff Principal held that the edict did not apply as the guesthouse was not an inn or hotel under the provisions of the Hotel Proprietors Act 1956. It was merely a bed and breakfast establishment and thus the owner was not an innkeeper/hotelkeeper for the purposes of the edict. The court applied Watling v McDowall (1825) 4 S 83.

Scottish Insurance Law Case

In Scots Law, a contract of insurance is considered a contract uberrimae fidei i.e. "of the utmost good faith" and those taking out insurance have a duty to disclose all material facts:



Cuthbertson v Friends Provident Life Office 2006 SLT 567



C took out an insurance policy in 1994. It was called a “Homebuyers Plus Policy” and included life assurance and “serious illness and disability benefit”. C also took out an Income Protection Policy which would pay a weekly amount in the event that she would be unable to work due to sickness or accident.



In 1996 she was diagnosed with multiple sclerosis and submitted her claim under both policies in 1999. Her claim was rejected on grounds that she had failed to disclose a material fact at the time of taking out the policies. Prior to doing so, she had attended her general practitioner for a painful left eye and otalgia in her left ear. She did not disclose this or three subsequent visits to her doctor on her proposal form.



The Court of Session held that the test to be applied in this case was that laid down in Foster v Foster (1873) 11 M 351 i.e. would a reasonable person with C’s knowledge have appreciated that these consultation with the doctor would have been considered as material facts by a prudent insurer. The court’s answer was “no”. C was entitled to the insurance benefits.

Scottish Tourist Board

Tourist Boards (Scotland) Act 2006

This Act abolishes the network tourist boards. It renames the Scottish Tourist Board as VisitScotland and increases the maximum membership of the Board from 6 to 11 members. It thereby amends the Development of Tourism Act 1969.

IATA calls for Single European Sky

During the volcanic ash crisis more than 100,000 flights were grounded because individual countries made different decisions over whether or not to open up their airspace. A Single European Sky would put the skies under one regulatory body and act as a crisis management mechanism, which would eliminate confusion. It would also improve Europe’s competitiveness and environmental performance, said IATA.

Europe’s Transport Council is set to meet on May 4 to discuss the issue of implementing a Single European Sky.

Source: eTravelBlackboard; find article here>>.

China lifts ban on tourists with STD, HIV and leprosy

As Shanghai prepares to host the world exposition, China has lifted a two-decade ban on travel to the country by people who carry the virus that causes AIDS or who have other sexually transmitted diseases or leprosy. The ban on travel is now officially limited only to people with infectious tuberculosis, serious mental disorders and “infectious diseases which could possibly greatly harm the public health.”

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

German Supreme Court: flexible pricing in travel brochures admissible

A German association combatting unfair competition sued TUI for not publishing final prices in travel brochures. TUI had published prices with the reservation of a revision of EUR 50 up or down applying to each flight route. The association saw an infringement of pricing rules requiring indication of a binding price.

German Supreme Court (BGH) in judgement I ZR 23/08 - Costa del Sol, of April 29, 2010, however, deemed the reservation to be admissible because of the limitations in range and reasons of potential revision as well as because of a clear reference to potential price changes until conclusion of the contract. Such reservation would allow tour operators a certain fexibility in printed brochures which was a matter of course in internet trading.

Source: BGH press release 92/2010 of April 29. 2010; full text available in German here>>.

Obviously BGH saw no cause to file a reference for preliminary ruling with regard to the interpretation of Art. 3 para 2 PTD.

German Supreme Court decides on cross-ticketing

German Supreme Court (BGH) in today's judgment Xa ZR 5/09 decided that airlines must not declare a ticket void if the flight coupons are not used in their correct order. Such provisions are widely used in general conditions of contract of several airlines to prevent passengers from booking flight segments which they actually don't want to use in order to benefit from a lower price.

In the particular case the German Federal Consumer Protection Association (Bundesverband der Verbraucherzentralen) had sued British Airways and Lufthansa to cease and desist from using such provisions.

BGH acknowledged a legitimate interest of the airlines to avoid evasions of their tariff systems; this purpose, however, could also be achieved by milder means as for instance a surcharge for not having used a coupon for a flight segment. To completely ban the passenger from further contractual services would be disproportionate and against the principle of good faith as the provisions at stake made no distinction on whether the passenger deliberately booked more segments than required or left coupons unused for justified reasons.

Source: BGH press release 91/2010; full text available in German here>>.

English Hotel Case

Lewis v Six Continents PLC (formerly Bass PLC) [2005] EWCA Civ. 1805

While staying at a hotel, L fell from the window of his second floor room. The accident occurred during the course of the night and L had no recall as to how it had happened. He suffered severe head injuries. His claim under section 2 of the Occupiers’ Liability Act 1957 was rejected on the grounds that SC could not be expected to assess the dangers posed by all windows in the hotel. L had probably fallen as a result of leaning out of the window.

The Court of Appeal held that there was nothing exceptional about L’s use of the room and its fixtures and fittings. The window did not present any obvious danger to an adult. There had not been any previous reports of accidents involving that window. It concluded that it was not reasonably foreseeable that an adult would lean out of the window in such a way that the occupier should have restricted the way in which the window could be opened.

Arizona: new immigration law detrimental to tourism?

Many officials in Arizona's tourism and hospitality industry fear that the state's new immigration law is anything but hospitable. Hotel owners, tour operators and convention executives say the law could discourage visitors and companies from meeting there at a time when one of the state's vital industries already is suffering. There are already some calls for an economic boycott.

Source: USA today; find article here>>.

Austrian Supreme Court: no liability for usual conduct on 'battleground' breakfast buffet

Plantiff and defendant both stayed as guests in a health resort. Each morning breakfast buffet was quite crowded as patients' breakfast time was limited and many patients had to start their treatments early. One morning defendant was queuing up behind plaintiff and within the crowd suddenly her leg somehow got between plaintiff's legs. Plaintiff tripped over denfendant's leg, fell down and suffered injury.

First instance court (LG Wels) dismissed the claim, appelate court (OLG Linz) upheld the judgement: Crowding at a breakfast buffet was comparable to taking part in a sporting competition. In both cases there was no liablity for the typical rsiks of usual conduct.

Austrian Supreme Court (OGH) in decision 2 Ob 237/09f of Jan. 1, 2010 confirmed this view and empahsized that plaintiff had failed to produce evidence of any fault on behalf of plaintiff.

Full text of Supreme Court decision avialable in German here>>.

France: Burqa ban to apply to tourists too

France's government announced it would apply a proposed ban on face-covering Islamic veils to visiting tourists as well as residents, even as skepticism mounted over the legality of the plan. The draft bill will be presented to the cabinet next month. France's highest court has already warned the government that a complete ban could be unlawful.

Source: eTurboNews; read article here>>.

USA: exemptions from new tarmac-delay rules denied

The U.S. Department of Transportation has denied the requests of five airlines for a temporary exemption from a new rule limiting tarmac delays to three hours. The new rule goes into effect on April 29. Airlines face fines of up to $27,500 per passenger for planes that sit on the tarmac for more than three hours.

Some airlines requested exemptions for New York's Kennedy Airport arguing their operations would be affected by a runway closure. Other exemptions were requested for neighbouring airports because delays at Kennedy would disrupt operations at the other New York-area airports.

The DOT said it received 125 comments from individuals on the carriers' requests for exemption from the three-hour rule, and that all but two opposed the requests.

Source: Travel Weekly; find article here>>.

UNWTO: Event on Travel and Tourism under Challenging Circumstances

To be better prepared for crisis situations, the World Tourism Organization (UNWTO), with the joint collaboration of the Ministry of Tourism of Malaysia, is convening a review and preparation exercise for the region of Asia and the Pacific which is to take place in Kuala Lumpur, Malaysia on the 3-4 May of 2010.

Primarily aimed at the region of Asia and the Pacific, the objective of this review and preparation exercise is to address the challenges and opportunities that the ongoing pandemic has brought so far onto the tourism industry, with special emphasis on coordination, market intelligence and communications. The analysis of the unfolding pandemic (H1N1) 2009 situation will be also used to better prepare for other crises situations whether of global or regional importance.

The exercise will address the following:

• The current situation of the pandemic (H1N1) 2009 and the possible scenarios of future development.
• Key challenges for the travel and tourism sector with a special emphasis on coordination at national and international level.
• Modern Crisis Communications combining the best of both the classical approach and the modern communications/social networks.
• Strategies to help limit the negative impacts, to best adjust the preparations of the travel and tourism sector and lessons learned since the onset of the pandemic.

Further information to be found here>>.

On the 20th Aniversary of the Package Tours Directive

Possibly, the Academic Event of the Year in the field of Travel and Tourism Law!

Registration here:
http://www.fe.ualg.pt/cidta/index.php

Alaska: cut in cruise tax ratified

The Alaska State Legislature passed a bill that will reduce the state’s cruise passenger head tax from $46 to $34.50, and end a lawsuit the industry filed to overturn the tax. The Alaska Cruise Association signed an agreement last week with the Alaska attorney general to drop the lawsuit if the state passed the measure to reduce the tax.

Source: Travel Weekly; find article here>>.

Air passengers' rights

Reference for a preliminary ruling before the ECJ (Case C-83/10 Rodríguez ea/Air France) from the Juzgado de lo Mercantil de Pontevedra (Spain) regarding the questions,

1. whether the term 'cancellation', defined in Art 2 lit l of Regulation 261/2004/EC has to be interpreted as meaning only the failure of the flight to depart as planned or is it also to be interpreted as meaning any circumstance as a result of which the flight on which places are reserved takes off but fails to reach its destination, including the case in which the flight is forced to return to the airport of departure for technical reasons?
2. whether the term 'further compensation' used in Art 12 has to be interpreted as meaning that, in the event of a cancellation, the national court may award compensation for damage, including non-material damage, for breach of a contract of carriage by air in accordance with rules established in national legislation and case-law on breach of contact or, on the contrary, must such compensation relate solely to appropriately substantiated expenses incurred by passengers and not adequately indemnified by the carrier in accordance with the requirements of Art 8 et seq even if such provisions have not been expressly relied upon or, lastly, are the two aforementioned definitions of the term further compensation compatible one with another?

Bulgaria: reference for a preliminary ruling on PTD

Bulgarian "Varhoven Kasatsionen sad" filed a reference for preliminary ruling on the interpretation of the Package Travel Directive 90/314/EEC (PTD). The court wants to know whether the PTD is applicable to the present case (no details of the case available in ECJ publication). The further questions are:

• How is the term 'other tourist services' in Article 2(1)(c) of Directive 90/314/EEC to be interpreted, and does that term cover the organiser's obligation to insure the consumer?

• - What risks must be covered by the insurance contract concluded, on behalf of the consumer, between the organiser and the insurance company?
• - What type of insurance must be provided by the insurance contract concluded, on behalf of the consumer, between the organiser and the insurance company: a group insurance policy covering all the participants in the package tour or an individual insurance policy covering each individual participant in the package tour?

• Is the organiser's obligation under Article 4(1)(b)(iv) of Directive 90/314/EEC to provide the consumer before the start of the tour with information on the optional conclusion of an insurance policy to cover the costs of assistance, including repatriation, in the event of an accident to be interpreted as meaning that it includes the organiser's obligation to conclude an individual insurance policy with the consumer covering the costs of assistance, including repatriation, in the event of an accident?
• Is the organiser of the tour obliged under Directive 90/314/EEC to provide the consumer with the original insurance policy before the tour commences?
• How is the term 'damage' resulting for the consumer from the failure to perform, or the improper performance of, the contract in Article 5(2) of Directive 90/314/EEC to be interpreted?
• Does the term 'damage' resulting for the consumer from the failure to perform, or the improper performance of, the contract in Article 5(2) of Directive 90/314/EEC also cover liability in respect of non-material damage suffered by the consumer?
• How are the third and fourth subparagraphs of Article 5(2) of Directive 90/314/EEC to be interpreted in the event of claims for compensation in respect of non-material damage on the ground of personal injury which are based on the failure to perform, or the improper performance of, the services under the contract, including the failure to provide the consumer with the original insurance policy, in the case where the latter does not provide for any limitation of liability to pay compensation?

Full text of reference C-32/10 available here>>.
First reported to IFTTA by Stephan Keiler.

IATA: severe criticism on European response to Icelandic volcano eruption

The International Air Transport Association (IATA) sharply criticized European governments for their lack of leadership in handling airspace restrictions in light of the Icelandic volcano eruption, and urged a re-thinking of the decision-making process. IATA in particular criticized Europe’s unique methodology of closing airspace based on theoretical modeling of the ash cloud an that decisions have been taken without adequately consulting the airlines.

Source: IATA press release of April 19, 2010; find full text here>>.

UK: consultation on creating new consumer right

Altough Consumers are protected from traders' misrepresentations and unfair dealing by the Consumer Protection from Unfair Trading Regulations, which implement EU law, they cannot take direct action under these Regulations. The Law Commission and Scottish Law Commission are therefore reviewing whether or not consumers should be able to take direct action against retailers who treat them unfairly. It has asked consumers and businesses if the action would be too severe.

Source: out-law.com; find article here>>.

European Union: Evaluation of Reg. 261/2004

European Commission has published a final report on the evaluation of Reg. 261/2004. Despite some significant improvements in the protection of passenger rights, the report identifies the following remaining problems:

• some carriers are still not consistently complying with the requirements of the Regulation or are interpreting the Regulation in a way which minimises their obligations;
• in many Member States, enforcement is not effective enough to provide carriers with an economic incentive to comply;
• in several Member States, there is no mechanism available by which individual passengers can readily obtain redress from carriers;
• although rulings by the European Court of Justice (ECJ) have addressed some ofthe issues in the Regulation that were unclear, a number of issues have not been addressed and
• in some areas the rights granted by the Regulation can lead to different understandings (for example relating to long delay and cancellation) or do not address all the problems that passengers may face (such as missed connections due to delays).

The report makes a number of recommendations, including improvements to the enforcement of the Regulation, other improvements to the operation of the Regulation which would not require any legislative changes as well as possible changes to the requirements of the Regulation, if a decision is made to revise it.

The study, which was first reported to IFTTA by Stephan Keiler, is avialable for download in pdf here>>.

Kentucky: suit against online travel companies dismissed

Warren County Circuit Court has dismissed a lawsuit filed by the city of Bowling Green against Hotels.com, Orbitz, Expedia and Travelocity claiming that the companies owed back occupancy taxes to the city. The judge agreed with the online travel companies contention that the taxes can be levied only on the physical establishment that provides sleeping accommodations.

Source: travelpulse; find article here>>.

Dubai: appeals court upheld prison sentence for tourist couple

A Dubai appeals court upheld a one-month prison sentence for a British couple convicted of kissing in a restaurant. The tourists landed in court upon complaint of an Emirati woman. Though they insisted the "kiss" was just a peck on the cheek, they were arrested in November and convicted of inappropriate behavior and illegal drinking.

Source: eTurboNews; find article here>>.