Thursday, May 27, 2010

Germany: who can claim compensation for loss of holiday enjoyment?

Plaintiff had booked a Danube cruise arrangement with defendant for himself and his wife. As defendant cancelled the cruise, plaintiff claimed for compensation for loss of holiday enjoyment. Defendant payed a compensation half of the packacke price for one person to plaintiff but refused to pay any compensation in regard to plaintiff's wife, arguing plaintiff had had no authorisation by his wife when asserting the claim. A later assignation of the claim had missed the one month deadline. Plaintiff therefore filed a law suit.

Both, court of first instance (AG Frankfurt am Main) and appelate court (LG Frankfurt am Main) granted the claim: even though until to the assignation only plaintiff's wife herself had been entitled to the claim, the assignation constituted a retroactive authorization of the plaintiff.

In judgement Xa ZR 124/09 of May 26, 2010, German Supreme Court upheld these decisions. Though the court tended to the view that plaintiff as contract partner of defendant was entitled to file an individual suit this issue didn't have to be definitely clarified as the assignation had constituted a retroactive authorization, anyway.

Source: BGH press release 109/2010 of May 26, 2010

Friday, May 21, 2010

Germany: Ryanair must not charge extra fees for credit card payments

Upon law suit of Federal Consumer Asscoiation (Bundesverband der Verbraucherzentralen), German Supreme Court (BGH) in judgement Xa ZR 68/09 of May 20, 2010 decided that Ryanair may exclude chash payment but, however, must not charge extra fees for card payment. BGH held that to receive payments of the customers was one of the basic obligations of an entrepreneur who therefore had to provide a common and reasonable way to pay. If payments are only possible by cards no extra fee can be charged therefore.

Source: BGH press release; available in German here>>.

Italy: Ryanair fined for failing to assist passengers in volcanic ash crisis

Italy has fined Irish low-cost airline Ryanair 3 millon EUR for failing to help passengers after cancelling their flights during the volcanic ash crisis. Italy's civil aviation authority said it knew of 178 cases of passengers who did not receive mandatory assistance, such as food, between 17 and 22 April. Ryanair denies the allegations.

Source: BBC News; find article here>>.

UK: injunction against BA strikes overturned

A court of appeals overturned an injunction against strikes planned by British Airways’ cabin crew, and walkouts will occur unless the two sides reach an agreement. A first block of strike dates (May 18 to 22) was stopped by the injunction, but a walkout is likely to happen during the second block (May 24 to 28).

BA advises customers to check its website "on a regular basis" to see if their flight is still operating. If their flight has been canceled, customers should not come to the airport but contact British Airways or their travel agent, said the airline.

Source: Travel Weekly; find article here>>.

Tuesday, May 18, 2010

European Court of Justice: Advocate General gives opinion on jurisdiction based on website advertising

Advocate General Trstenjak today delivered her opinion in joint cases C-585/08 (Pammer v. Reederei Schlüter) and C-144/09 (Hotel Alpenhof v. Heller). Both cases concern the issue whether the fact that a website of the party with whom a consumer has concluded a contract can be consulted on the internet was sufficient to justify a finding that an activity is being 'directed', within the terms of Article 15(1)(c) of Regulation (EC) No 44/2001 ('the Brussels I Regulation'). Advocate General Trstenjak suggested to answer that the mere accessablity of a website is not sufficient. National courts rather have to take into regard all circumstances including content of the website, hitherto business activities, language, domain name and extent of use of internet advertising opportunites. It should, however, not be decisive whether it was an 'interactive' or 'passive' website as the 'direction' of an activity does not depened on the particular technical means used to conclude the contract.

Case C-585/08 (Pammer v. Reederei Schlüter) in addition involved the issue whether a journey on a cargo ship including accomodation, opportunity of shore leaves and certain leisure facilities on board (swimming pool, gym, deck-chairs, etc.) constitutes a contract which, for an inclusive price, provides for a combination of travel and accommodation according to Art. 15(3) of the Brussels I Regulation. Advocate General Trstenjak suggested to answer this question to the positive.

Full opinion available in German, French, Italian, Slovene and Finnish.

Wednesday, May 12, 2010

USA: Airline loses pet dog

A Canadian couple has turned to the internet for help in finding their pet dog Paco, lost by Delta Airlines, after he was checked in for a flight from Mexico City to Detroit. Delta at first said that the dog remained in its cage at Mexico City airport. But then the airline admitted that Paco had disappeared — and offered a $200 travel voucher in compensation. Delta has meanwhile increased its offer two more $200 vouchers plus $380 to cover the costs of Paco’s shots, food, leash and the kennel.

Source: Times Online; find article here>>.

Tuesday, May 11, 2010

Google to compete against travel agencies?

Google is moving into the area of the travel agency by adding live hotel rates to its popular maps service in order to appeal to business travellers using Google to research their trip. Research from Travelport says that 54% of British business travellers use the internet to research their trips. Most British business travellers use Google or another search engine (51%), followed by the hotel website (40%), the airline website (35%) and general travel sites such as TripAdvisor (28%).

Source: Times Online; read article here>>.

Monday, May 10, 2010

European Court of Justice: liability limit of Montreal Convention includes both material and non-material damage

The Montral Convention provides that the liability of a carrier in the case of destruction, loss, damage or delay of baggage is limited to the sum of 1000 Special Drawing Rights (SDR) for each passenger (a sum equivalent to approximately €1134.71)3, unless a passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case, as a rule a carrier is liable to pay a sum not exceeding the declared sum.

On 14 April 2008, Mr Walz brought an action against the airline Clickair claiming damages from it for the loss of checked baggage in the context of a flight from Barcelona (Spain) to Oporto (Portugal) operated by that company. In that action, Mr Walz claimed total damages of €3200: €2700 for the value of the lost baggage and €500 for non-material damage resulting from that loss. The Juzgado de lo Mercantil nº 4 de Barcelona (Commercial Court No 4, Barcelona, Spain), before which the proceedings were brought, asks whether the limit of air carriers’ liability set by the Montreal Convention in the case of loss of baggage includes both material and non-material damage or whether, on the contrary, material damage is subject to the limit of 1000 SDR, while, on the other hand, non-material damage is subject to a further limit of the same amount, so that the total combined limit for material and non-material damage is 2000 SDR.

European Court of Justice on May 6, 2010 ruled that for the purposes of determining the limit of an air carrier’s liability for the damage resulting, inter alia, from the loss of baggage, the term ‘damage’ in the Montreal Convention must be interpreted as including both material and non-material damage.

Source: ECJ press release 43/10
Full text of judgement Walz v Clickair C-63/09 available here>>.

Tuesday, May 04, 2010

European Union: Consumer Centres act together to help ash crisis passengers

On 4 May 2010, the Network of European Consumer Centres (ECC-Net), supported by the European Commission and operating in all EU Member States (as well as Iceland and Norway), published a practical complaint package, which is designed to help consumers affected by recent flight disruptions to exercise their consumer rights guaranteed under EU laws. The package includes a standard complaint letter, contact details of all airlines and other practical advice.

Source: Europa Press Releases RAPID, Reference: IP/10/492, Date: 04/05/2010

Australia: Federal Court rules agains Qantas in fuel surcharge case

Australian Federal Court today ruled the fuel surcharge the airline charges passengers is not a tax, but simply part of the fare. Qantas will therefore be made to repay years of disputed commission fees to travel agents of tens of millions of dollars at least.

The court upheld an appeal by Leonie's Travel, forcing airlines to include the fuel surcharge in their base figure for calculating commissions paid to agents. The case will now return to the original judge to determine how much Qantas owes the agents.

Source: The Sidney Morning Herald; find article here>>.

Full text of Fedreral Court Judgement Leonie's Travel Pty Ltd v Qantas Airways Limited
[2010] FCAFC 37 available here>>.

Monday, May 03, 2010

U.S. Travel Association Calls for End to Arizona Travel Boycott

Roger Dow, president and CEO of the U.S. Travel Association, today called for an end of all Arizona travel boycotts and urged Washington policymakers to do what their constituents have repeatedly asked them to do and address the complex issue of immigration. “We call for an end to counterproductive Arizona travel boycotts. Immigration reform is an important and sensitive topic for Arizona and the country at large. This complex issue should be resolved on the merits of various proposals, not by holding an industry and its 300,000 employees hostage to politics.", Dow said.

Source: U.S. Travel Association press release; find full text here>>.

Kenya: unlicensed Mara lodges closed

Kenyan government has shut down a number of safari lodges and camps in the wider Masai Mara area which were operating without licenses. More investigations are also underway into properties under construction to establish that they, too, have all relevant licenses, including clearance from National Environment Management Authority (NEMA) and Kenya Wildlife Service (KWS), and these findings are likely to produce more action against offenders.

The Masai Mara is one of Kenya’s best known tourism attractions and forms the extension into Kenya of the Tanzanian Serengeti National Park, and the annual migration of the wildebeest and zebras moves between the two parks every year, when the big herds follow the rains to find fresh pastures.

Source: eTurboNews, find article here>>.

Germany: reference for preliminary ruling of the ECJ in regard to travel agency taxation

German Federal Financial Court (Bundesfinanzhof) filed a reference for preliminary ruling on whether the 'special scheme for travel agents' in Article 26 of Directive 77/388/EEC on the harmonisation of the laws of the Member States relating to turnover taxes also applies to the sale by a travel agent of opera tickets in isolation, without the provision of additional services (Case C-31/10 - Minerva Kulturreisen).

Art 26 of the directive provides as follows:
1. Member States shall apply value added tax to the operations of travel agents in accordance with the provisions of this Article, where the travel agents deal with customers in their own name and use the supplies and services of other taxable persons in the provision of travel facilities. This Article shall not apply to travel agents who are acting only as intermediaries and accounting for tax in accordance with Article 11 A (3) (c). In this Article travel agents include tour operators.
2. All transactions performed by the travel agent in respect of a journey shall be treated as a single service supplied by the travel agent to the traveller. It shall be taxable in the Member State in which the travel agent has established his business or has a fixed establishment from which the travel agent has provided the services. The taxable amount and the price exclusive of tax, within the meaning of Article 22 (3) (b), in respect of this service shall be the travel agent's margin, that is to say, the difference between the total amount to be paid by the traveller, exclusive of value added tax, and the actual cost to the travel agent of supplies and services provided by other taxable persons where these transactions are for the direct benefit of the traveller.
3. If transactions entrusted by the travel agent to other taxable persons are performed by such persons outside the Community, the travel agent's service shall be treated as an exempted intermediary activity under Article 15 (14). Where these transactions are performed both inside and outside the Community, only that part of the travel agent's service relating to transactions outside the Community may be exempted.
4. Tax charged to the travel agent by other taxable persons on the transactions described in paragraph 2 which are for the direct benefit of the traveller, shall not be eligible for deduction or refund in any Member State.