Recent postings on IFTTA News

• German Supreme Court: tour organizer must not reserve alterations of the flying times;
• Austrian Supreme court asks CJEU for interpretion of Reg. 785/2004 and the Montreal Convention;
• Aviation Safety Network: accident fatalities at record low in 2013; 
•  UK: Supreme Court finds refusal of double room to same sex couple discriminatory;
•  U.S. Supreme Court refuses to hear appeal in West Caribbean Airways crash case; 
• Austrian Supreme Court: hotelier liable for legionella disease; 
• Canada: Ontario Superior Court of Justice decides on Montreal Convention exclusivity; 
• Australia: Supreme Cout of Queensland decides in 'cramped' air passenger case; 
• U.S. Jurisdiction re Eurail Pass; 
• Article on hotel classification in Ireland; 
• IFTTA Law Review 3-2013 now available online;
• UK: Court of Appeal decides in broken glass door case; 
• Australia to abolish travel agents licensing; 
• CJEU decides on jurisdiction in package travel case; 
• European Court of Human Rights: few hours' detention of airline passenger for airport security checks not excessive ; 
• Conference on latest developments in European Travel Law at ERA in Trier, Dec. 5-6, 2013; 
• CJEU: Including fingerprints in passports is lawful; 
• USA: DOT fines United Airlines USD 1.1 million for lengthy tarmac delays; 
• European Court of Human Rights affirms internet news portal's liability for offensive online comments of its readers about a ferry company; 
• USA: Appelate court decides on angry passenger's Facebook and Twitter posts about an airline employee; 
• Master program in International Tourism Management and Analysis (ITMA); 
• France: Court of Appeal affirms fine for price fixing in the leisure and tourism sector; 
• UK: Court of Appeal clarifies "accident" according to Article 17 of the Montreal Convention;         

Update on IFTTA News

• German Court challenges EU Regulation on security standards for passports and travel documents; 
• UK: airlines to include debit card surcharges in headline prices;
• Canada: Transportation Agency decides in flight cancellation and overbooking cases; 
• Germany: lugagge to be carried on a later flight is no legitimate reason to deny boarding; 
• Denmark: passengers of a cancelled flight entitled to rerouting at the earliest opportunity; 
• New Body Scanners at Scottish Airports; 
• Netherlands: new reference for ECJ preliminary ruling regarding air passenger rights; 
• German Supreme Court: no compensation for flight cancellation caused by strike; 
• EU Economic and Social Committee publishes opinion on passenger rights in all transport modes; 
• Egypt: new tourism minister appointed; 
• IFTTA Law Review 2-2012 available online; 
• USA: DOT fines companies for violating Consumer Protection and Price Advertising Rules; 
• UK: Bad Taste Tweets Not Criminal; 
• USA: Airlines lose appeal against DOT fare rules;
• EU Commission publishes consumer tips for visitors to the 2012 Olympic Games; 
• UK and Unfair Contract Terms Reforms; 
• CJEU: inclusion of flight cancellation insurance as a default setting unlawful when selling air tickets over the internet;
• UK: British Airways to check passengers on Google?; 
• Austria: regulation on proper rail passenger behaviour; 
• USA: new law to require airlines to seat families together?; 
•  Scottish Jurisdiction over Shetland; 
• Austria: Appelate court decides on "fly all or pay up" clauses; 
• Spain: Court of Appeal of Barcelona regards Ryanair's boarding pass printing policy lawful; 

Recent IFTTA News Postings

• Germany: appellate court upholds denial of injunction against hotel review website;
  
• USA: DOT fines Spirit Airlines over handling of disability complaints and Finnair for violating price advertising rules;
  
• USA: Costa Concordia victims sue for USD 460 milion in Florida;
• European Economic and Social Committee publishes opinion on the ‘functioning and application of air passenger rights';
• USA: New York law firms file class action against Costa;
  
• Canada: change in airline pet policies ordered by CTA;
• European Union: Costa Concordia accident and Commission review of passenger ship safety legislation;
  
• Austria: tour organiser not liable for costs of extended stay caused by flight cancellation due to the ash cloud crisis;
  
• Germany: railway company liable for black ice accident on platform;
  
• USA: deplaned passenger's complaint fails to state a viable cause of action under the Montreal Convention;
  
• Austrian Supreme Court: no liability of the tour operator for rare injury caused by narrow seating in a coach;
  

More news items at IFTTA website

• USA: Oklahoma's lawsuit against online travel companies dismissed
• Germany: Montreal liabilty limit for lost baggage applies per passenger regardless of number of checked pieces of baggage
• UNWTO: tourism a vehicle for gender equality
• Egypt: Minister of Tourism initiates new tourism campaign
• Ireland: Eyjafjallajökull eruption referred to the ECJ
• Finland: new reference for ECJ preliminary ruling regarding Reg. 261/2004 and "denied boarding"
• Austria: Supreme Court refers Pammer case back to court of first instance
• Mexico: President Calderon signs National Agenda for Tourism

Austria: new Supreme Court decision on loss of holiday enjoyment

A couple booked a package holiday arrangement for their honeymoon in Egypt at EUR 1.448. Back home they complained about improper performance and assigned their claims to a consumer protection association (Verein für Konsumenteninformation - VKI) which sued for a price reduction of EUR 1.320,90 and compensation for loss of holiday enjoyment of EUR 560 (deducting a refund of EUR 141 by the tour operator).

First instance court (Bezirksgericht für Handelssachen Wien) granted additional EUR 150,60 comprising of a price reduction of 5 % for a defect air condition, 5 % for construction noise and another 10 % for an insufficient beach space (contrary to promises in the brochure) but dismissed the claim for compensation for loss of holiday enjoyment.

Appelate court (Commercial Court Vienna - Handelsgericht Wien) doubled the price reduction by granting additional 5 % for bad water quality of the pool, 5 % for ponding the room when flowers were watered and another 10 % for noise during the night. However, appelate court upheld dismissal of the claim for compensation for loss of holiday enjoyment: the shortcomings had not exceeded the threshold of relevance.

Upon further appeal by the plaintiff, Supreme Court in judgement 2 Ob 45/10x of June 17, 2010 emphasized the different legal nature and purpose of price reduction on the one hand and compensation for loss of holiday enjoyment on the other. Following a previous decision, Supreme Court decided in favour of a rather low threshold of relevance and granted the claim for compensation for loss of holiday enjoyment. However, Supreme Court disagreed with the view that the threshold of relevance with regard to loss of holiday enjoyment should be equated with any shortcoming more than negligible under warranty law.

The total grant thus amounted to EUR 1.002,20. Supreme Court noted that the price reduction granted by the appelate court (which was not subject of his decison) was "very generous" in favour of the claimants.

Note:
1) Even given this generous grant, the consumer protection association only succeeded with roughly 58 % of the claim - which proves a tendency of the assocoation to sue for excessive amounts.
2) The fact that it was a honeymoon trip was not decisive.

Full text of judgement 2 Ob 45/10x of June 17, 2010 available in German here>>.

Austria: bonus miles earned through business trips are subject to income tax

In a recently published judgement, Austrian Admnistrative Court (VwGH) decided that bonus miles of a frequent flyer programme earned by an employee on business trips are a taxable benefit arising from the employer-employee relationship, if used for the employee's private purposes: even if only individual persons are eligable to participate in frequent flyer programmes while companies are excluded, miles earned on business trips are occasioned in the context of the employer-employee relationship and therefore constitute income from employment if used privately.

However, these benefits do neither constitute any wage tax liabilities of the employer nor any obligation of the employer to monitor the use of bonus miles.

Income tax therefore must be paid by the employee himself as soon as the bonus miles are redeemed for goods or services. The mere credit of miles doesn't create any tax obligation.

Judgment 2007/15/0293 of April 29, 2010 available in German 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>>.

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>>.