IFTTA - International Travel and Tourism News

USA: Delta denies infringement of data privacy

2009-11-20T15:31:00.003Z

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

2009-11-19T17:19:00.004Z

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

2009-11-19T10:42:00.004Z

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

2009-11-18T08:20:00.003Z

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

2009-11-16T17:57:00.002Z

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

2009-11-16T09:22:00.005Z

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

2009-11-10T16:27:00.003Z

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

2009-11-06T14:12:00.003Z

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

2009-11-05T17:25:00.003Z

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

2009-11-05T16:58:00.004Z

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?

2009-11-05T16:50:00.003Z

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

2009-11-05T16:45:00.003Z

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

2009-11-05T16:37:00.004Z

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

2009-11-05T16:32:00.001Z

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)

2009-10-30T14:40:00.002Z

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

2009-10-20T16:14:00.002Z

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

2009-10-16T11:23:00.003Z

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

2009-10-15T13:48:00.005Z

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

2009-10-15T12:05:00.003Z

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

2009-10-13T15:55:00.002Z

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

2009-10-12T12:06:00.002Z

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

2009-10-11T15:54:00.002Z

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

2009-09-22T07:04:00.004Z

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

2009-09-18T13:02:00.001Z

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

2009-09-18T12:33:00.005Z

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