Thursday, July 29, 2010

IFTTA Brasil has its first meeting

The Sao Paulo Convention & Visitors Bureau (SPCVB), received on July 14th at its headquarters, the first meeting of IFTTA Brasil - the International Forum of Travel and Tourism Advocates ( IFTTA ). The group will engage among other activities in development of technical and legal material, monitoring of bills (a draft of a proposed act of parliament), identifying colleges and universities specializing in previous studies, in addition to developing sustainable tourism projects in the country.

Brazil has consolidated its participation in the forum after the 21st World Conference of the Association, held in Sao Paulo and Ilhabela in October 2009. On this occasion the IFTTA license issued to establish the Brazilian chapter in the state capital. " We are happy to welcome the IFTTA and its proposals, involving a key issue especially for a town with intense tourist activity , "says Toni Sando, CEO of SPCVB .

The IFTTA Brasil is in training and brought associate attorneys from Minas Gerais, Parana and Sao Paulo , in addition to Ricardo Shimosakai consultant, specializing in tourism adapted. The participants were welcomed by Elizabeth Sorrentino, international events manager of SPCVB, who made a brief presentation of the entity.

(Source: Hotelier News. Text with adaptations)

See also:

IFTTA happens for the first time in Brazil in October

Tourism law is the theme of the congress in Buenos Aires

Tuesday, July 27, 2010

USA: Airline sued for USD 5 million over bag fee

Danielle Covarrubias of Pierce County, Washington, wants American Airlines to pay USD 5 million.

The airline "has breached its agreements with its passengers every time they have lost or delayed luggage and failed to refund the passengers their baggage fee," according to a class action complaint Covarrubias filed in federal court earlier this month.

American Airlines is disputing her version of events and stressing that passengers can always request a fee refund as part of a baggage claim.

Source:; find article here>>.

Friday, July 16, 2010

Ryanair to pay libel damages to easyJet founder

Irish budget airline Ryanair has agreed to pay libel damages of 50,100 pounds to the founder of rival carrier easyJet after running advertisements picturing him with a long Pinocchio nose. Stelios had accepted and would donate to his philanthropic foundation.

The settlement was announced in court Thursday.

Source: AP; find article here>>.

USA: Government Accountability Office investigating tarmac rule's effect on airline operations

The U.S. Government Accountability Office - "the investigative arm of Congress" - is investigating how the new tarmac-delay rule is affecting air travel. The new Transportation Department rule caps tarmac delays at three hours and sets minimum requirements for proper care of passengers while they’re stuck on the plane. The rule took effect at the end of April.

Source: Travel Weekly; find article here>>.

Thursday, July 15, 2010

USA: summary judgement for airline in overbooking case upheld

Andrew P. Kalick purchased tickets for a North West Airlines flight from Kansas City to Philadelphia and was denied boarding as the flight was full. An NWA agent advised Kalick that she had instead booked him on an American Airlines flight to Philadelphia with a layover in Dallas. For reasons that are unclear from the record, Kalick missed his connecting flight and had to stay in the Dallas airport overnight and arrived in Philadelphia one day later.

Kalick filed a suit in the District Court alleging that NWA violated Department of Transportation regulations concerning compensation of passengers bumped from oversold flights. In addition, Kalick asserted state common law claims for breach of contract and fraud. He requested compensatory and punitive damages totaling $163,000.

The District Court entered an order concluding that the DOT regulations do not create a private right of action. Determining that any punitive damages claims based on Kalick’s state claims were pre-empted and, therefore, that Kalick could not meet the $75,000 amount in controversy requirement for diversity jurisdiction, the District Court declined to exercise supplemental jurisdiction over Kalick’s remaining state law claims. As a result, the District Court dismissed the case for lack of jurisdiction without prejudice to Kalick’s right to litigate the contract and fraud claims in state court.

Upon appeal by Kalick, the Third Circuit Court upheld the trial court’s order. First, the appeals court held that federal question jurisdiction was lacking because Section 250.9 does not create a private right of action, noting that every other circuit addressing this issue had ruled in the same manner. Next, the appeals court agreed that diversity jurisdiction was also lacking because the plaintiff had failed to show, by a preponderance of the evidence, that he could recover an amount exceeding $75,000 on his contract and fraud claims. Finally, the appeals court upheld the trial court’s refusal to exercise supplemental jurisdiction over the plaintiff’s state law claims, holding that the plaintiff had failed to prove the “exceptional circumstances” necessary for the exercise of such jurisdiction.

Case Kalick v. Northwest Airlines Corp. (3d Cir. (N.J.) No. 09-3608, Mar. 29, 2010)
Full opinion available here>>.

Wednesday, July 14, 2010

USA: Court rejects airline challenge to airport congestion pricing

The U.S. Court of Appeals for the District of Columbia rejected an airline industry challenge to a regulation letting airport operators charge more at busy times of the day to reduce delays.

The carriers argued the July 2008 regulation by the Transportation Department was discriminatory and unreasonable. The airlines also claimed the regulation wrongfully allowed state and local airport authorities to charge fees preempted by federal law and provided inadequate guidance to the airports on how the Department of Transportation would evaluate the reasonableness of the fees.

The court denied the petition by the Air Transport Association, which represents companies including Delta Air Lines Inc. and AMR Corp., the owner of American Airlines.

The full opinion in case Air Transport Association of America Inc. v. U.S. Department of Transportation, 08-1293, U.S. Court of Appeals for the District of Columbia is available for download here>>.

China: ban on fake historic tourism

The Chinese government has banned the use of "negative historical figures or literary works" to boost tourism, a new decree says.

The Ministry of Culture and the state Administration of Cultural Heritage also said places cannot claim to be the birthplaces or hometowns of characters from fiction or legend, Xinhua, the official government news agency, said. The decree also bans the construction of fake historic buildings.

Source:; find full article here>>.

Thailand: tourists warned not to feed street elephants

Tourists in Bangkok are being warned not to buy food for street elephants or risk a 10,000 baht (310 dollars) fine in the latest clampdown on begging by owners of the animals.

The Thai authorities have repeatedly attempted to stamp out the problem of elephant handlers, known as mahouts, walking the creatures in the capital and selling bananas and sugar cane for people to feed them. Street begging cuts an elephant's life expectancy by at least half, according to the Elephant Nature Foundation, a non-profit organisation which campaigns for elephant rights.

Source: AFP

EU executive clears BA, American, Iberia deal

British Airways, American Airlines and Iberia won EU antitrust clearance on Wednesday to deepen their Oneworld alliance on transatlantic routes and better compete with rival groups.

The airlines want to broaden their pact to take advantage of the "Open Skies" agreement between the United States and the European Union, which liberalizes transatlantic aviation.The carriers offered in March to give up a number of lucrative transatlantic slots in a bid to ease competitive concerns by the European Commission.

Source: Reuters

IFTTA Europe: position paper on PTD review online

In a working group chaired by Stephan Keiler and finalised in intensive discussions during the workshop held in Moscow this April, IFTTA Europe has elaborated a position paper on the review of the European Package Travel Directive which was presented to the European Commission at a stakeholders' workshop in Brussels.

This position paper which is focussing on improving legislative technique rather than on merely political issues is now available online here>>.

Monday, July 12, 2010

Thomas Cook agreed to buy Öger Tours

Thomas Cook Group PLC - Europe's second-largest travel company - agreed to buy the German tour operator Öger Tours GmbH, a specialist in package holidays and tours to Turkey
(about 400.000 passengers; revenues: about 250 millionen Euro in 2009).

Vural Oeger, founder and manager, plans to sell 100 percent of the company's shares to Thomas Cook for about 30 million Euro but will join the supervisory board of Thomas Cook's German branch.

The brand Öger Tour and its Hamburg headquarters will remain. The acquisition is conditional upon antitrust clearance. The companies expect it to be completed by September 2010.


Friday, July 09, 2010

England: Package Holiday Case

Evans v Kosmar Villa Holidays PLC [2006] EWHC 3417 (QBD)

E, a 17 year old, dived into the shallow end of a pool in the early hours of the morning. He fractured his cervical vertebrae rendering him tetraplegic. The resort premises were exclusively contracted for K’s use. K argued that its duty in respect of those premises was similar to that owed by an occupier under the Occupiers’ Liability Act 1957. It cited cases under that Act claiming that it had no need to tell people what they ought to know already and that E had exercised his own free will in ignoring warnings.

The court pointed out that the claim as made in respect of improper performance of the contract and not under the 1957 Act. It was the PT Regulations that applied. The “free will” argument based on cases under the 1957 Act was not relevant. In any case, there was no proper informed consent on E’s part. The pool did not comply with the FTO’s Health and Safety Handbook. Damages were reduced by 50% for contributory negligence.

This decision was overturned in the Court of Appeal. The FTO handbook has no legal force, it merely provides guidance. It applied the principles laid down by the House of Lords in the case of Tomlinson v Congleton DC [2004] AC 46 in interpreting the 1957 Act. The risk arose out of what C had chosen to do not as a result of the state of the premises and therefore there was no breach of duty. In the case of obvious risks or self-inflicted harm there is only a duty of care where there is no genuine informed choice. K did not have a duty of care to prevent E from diving.

England: Package Holiday Case

Lambert v Travelsphere [2005] CLYB 957

L had booked a package tour in January 2003 which included flights to Beijing, a tour of China and a three day stopover in Hong Kong on the way back. In March that year the World Health Organization issued a warning about SARS for those travelling to Hong Kong. They and the UK Department of Health strongly advised against travel there. On 8 April T wrote to L stating that some of the itinerary had been changed but that the Hong Kong stopover may still take place. L cancelled on 12 April and claimed a full refund including the cancellation fee chargeable under T’s terms and conditions. On 23 April, T cancelled the tour and fully refunded other holidaymakers under Regulations 12 and 13 of the Package Travel Regulations.

T argued that it was entitled to retain the cancellation charge as, at the time that L cancelled, T’s notice of 8 April was still in effect and it had expected to provide the tour including the stopover in Hong Kong. Furthermore, even if Hong Kong had been excluded it was not an essential term of the contract.

On appeal it was held that the letter of 8 April was merely a statement that T might be constrained to alter the tour, not that T was actually altering it. Any uncertainty in L’s mind was due to the publicity concerning SARS and not because of the letter of 8 April. Thus, Regulation 12 did not apply.

The court went on in obiter, to say that the Hong Kong stopover was an essential term. Also for T to be considered as “constrained” to alter the terms meant that it had to be absolutely inevitable and unavoidable.

UK. Airline Catering Staff. Working Time Regulations

Gallagher v Alpha Catering Services Ltd (Trading as Alpha Flight Services) [2005] ICR 673

Catering services employees were required to spend “downtime” at airports while waiting for aircraft to be serviced. The place that they were required to wait in only had basic facilities such as a toilet. They might be required to service an aircraft at any moment. This downtime was therefore held not to be a “rest-break” for the purposes of the Working Time Regulations 1998. The company could not claim retrospectively that they had had a 20 minute break if they had not been required to service an aircraft during that time.

UK. Car Hire. Distance Selling

Easycar (UK) Ltd. V OFT (C 336/03) [2005] All ER (EC) 835

E provided car hire services in the UK and other Member States. Customers could book the services on the Internet. E’s terms and conditions only permitted cancellations by consumers in very exceptional circumstances. The Office of Fair Trading brought the action on grounds that E was not complying with the provisions of Article 6 of the Distance Selling Directive which permits a cooling-off period.

The ECJ held that car-hire was a form of transport service and therefore exempt under the provisions of Article 3(2) of the Directive. Providing a car-hire service was the provision to consumers with a means of access to transport.

England: Agency Law

Moran v First Choice Holidays & Flights Ltd. [2005] EWHC 2478

C was injured when she fell off a quod bike being driven by her husband. The quad bike was provided as part of an excursion purchased at the resort in the Dominican Republic. The husband had failed to control the bike and it veered off the road, descending down a drop of 13-14 feet. The court held that F was liable as it had acted as the undisclosed agent of the company providing the excursion.

UK. Airline - Religious Discrimination

Eweida v BA PLC [2009] ICR 303

BA’s uniform policy prohibited the visible wearing of jewellery or personal items unless the wearing of the item was scripturally mandated and could not be concealed under the uniform. Even in the case of this exception, permission from management was required. E, a practising Christian, was sent home after she insisted on wearing a plain silver cross over her uniform. She remained off work for 4 weeks. She was not paid during that period. BA then changed its policy and permitted staff to display a faith or charity symbol with their uniform, provided that they first obtained management’s permission.

E appealed against a tribunal’s decision that BA’s previous policy did not put Christians at a particular disadvantage compared to other persons. The EAT dismissed the appeal. The protection afforded those with a religious or philosophical belief was broad. That belief might be intensively personal and subjective. It was not a legal requirement that that belief is shared by others or mandated y an established religion. A provision may amount to indirect discrimination of it adversely affected a group, even if they complied with it. The strongly held view amongst some staff that they should be allowed to openly wear jewellery was not confined to those who held a religious beliefs. The law required E to establish that the provision disadvantaged a particular group. She had not established that there were others who, though they complied with BA’s policy, objected to having to do so on religious grounds.

Scotland. Montreal Convention Damages

O’Carroll v Ryanair 2009 SCLR 125

O, a married couple, successfully claimed against Ryanair in the Sheriff Court for a 48 hour delay in delivery of their luggage. The sheriff awarded £215 in compensation for out of pocket expenses and £535 for stress and inconvenience. R appealed on grounds that the latter was excluded by the Montreal Convention (implemented in the UK by the International Carriage by Air Act 1999) as this amounted to exemplary or non-compensatory damages. The Sheriff Principal rejected the appeal. The £ 535 damages for stress and inconvenience were plainly compensatory under the Law of Scotland and did not amount to punitive damages, which Scots Law does not permit

England and Wales. Protection of the Environment

The Conservation of Habitats and Species Regulations 2010

The EC Habitats Directive was implemented in the UK by a series of Habitats Regulations. The Directive aims to protect biodiversity by conservation of natural habitats and species of wild flora and fauna. The aim of the 2010 Regulations is to consolidate more than 30 amendments introduced over the last 16 years. It applies to England and Wales only. Scotland and Northern Ireland will consolidate their legislation later.

Reform of Scottish Arbitration Law

Arbitration (Scotland) Act 2010

The aim of the Act was to “set the scene for a renaissance of Scottish arbitration” and to provide a “modern, impartial and efficient arbitration regime”. It codifies existing Scots legislation and Case Law on arbitration.

The New York Convention on Recognition and Enforcement of Arbitration Awards 1958 requires contracting states to give effect to private agreements to go to arbitration and to recognise and enforce arbitration made in other contracting states. There are 142 contracting state, including the UK. The Arbitration Act 1975 gave effect to this in Scotland.

The Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 adopted the UNCITRAL Model Law on International Commercial Arbitration in Scots Law but its provisions were not applied to domestic arbitration. The model law assisted states in reforming and modernising their law or arbitral procedures so as to take into account the needs of international commercial arbitration. This model was repealed in Scotland by the 2010 Act.

This Act has similar objectives to the Arbitration Act 1996 in England, Wales and Northern Ireland. Sections 89-91 of the 1996 Act dealt with consumer arbitration agreements and these also apply to Scotland and will continue to do so as Consumer Law is not a devolved matter. Those provisions protect those that might inadvertently agree to unfair, low-value consumer arbitration clauses.

The 2010 Act replaces the dual arbitration system that existed in Scotland with a single codified set of rules that now apply to domestic, cross-border and international arbitration proceedings. Though it abolished the UNCITRAL Model Law in Scotland, the Act is based on those model law principles. It aims to encourage trades, professions and industries to establish their own low cost arbitration schemes like that provided by ABTA.

The Act sets out the following founding principles:

• The object of arbitration is to resolve disputes fairly, impartially and without unnecessary delay or expense;
• Parties should be free to agree how to resolve disputes subject only to safeguards that are necessary in the public interest;
• Courts should not intervene in arbitration except as provided for by the Act.

The Scottish Arbitration Rules are set out in a Schedule to the Act. They are divided into mandatory rules that must be followed and cannot be altered even by consent of the parties and non-mandatory rules that can. There is a presumption of confidentiality in relation to the matters in dispute, the arbitral proceedings and the arbitral award unless the parties agree otherwise. Breach of this provision entitles the other party to seek an interdict and/or damages.

It is for the arbitrators to determine whether or not they have jurisdiction to determine the case; though a party may object if they act beyond their powers or where they do not have jurisdiction. The Act enshrines the “separability doctrine” i.e. an arbitration agreement is not affected by the alleged invalidity of the commercial contract. The agreement to arbitrate is distinct and separate from the contract or agreement of which it forms part.

The “stated case” procedure provided by Section 3 of the Administration of Justice (Scotland) Act 1972 was abolished. This had made it too easy for a party to invoke spurious points of law for referral to the Court of Session, thereby considerably delaying the proceedings and substantially increasing the costs. The 2010 Act provides a more limited procedure whereby a party can challenge errors in law made by the arbitrator.

The only valid grounds for challenging a decree arbitral are:

• the arbitrator(s) did not have jurisdiction to make the award;
• “serious irregularity” that has caused or will cause substantial injustice to the appellant;
• The arbitrators erred on a point of Scots Law.

Where an appeal is made to the court the identity of the parties must not, generally, be disclosed outside of the court. An arbitral award may be enforced in the sheriff court or the Court of Session.

The Scottish Government intend to establish a self-financing Dispute Resolution Centre in Scotland to attract international arbitration business.

UK. Disabled Persons Rights to Access Aircraft

Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007

These set out offences and penalties for non-compliance with EC Regulation 1107/2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air. The CAA is responsible for enforcement. Complaints are dealt with by the CEHR and the General Consumer Council for Northern Ireland.

The Disability Discrimination Act applies to airport facilities and boarding facilities but not to services provided in board an aircraft. The aim of the EC Regulation is to prevent airlines from refusing to carry persons on grounds of their disability or reduced mobility. It requires the provision of assistance, free of charge, which meets their needs. It applies to airports, travel agents, tour operators and airlines. It also covers people with reduced mobility because of their age, reduced mental capacity or illness.

It requires airport managing bodies to make provision for disabled persons and those with reduced mobility to enable them to pass through airports, board, disembark and transit. It guarantees assistance from a designated point of arrival at the airport to the aircraft and from the aircraft on arrival at the destination to a designated point at the exit to the terminal. This must be provided free of charge to the passenger but the airport may recover the cost from airlines proportionate to the total number of passengers that airline carries. Airlines must provide free assistance on board the aircraft. The only exemption is where there are well-founded safety reasons.

England and Wales: Tort Law Reform

Compensation Act 2006

This Act applies to England and Wales only. The aim, amongst other things, was to allay the common misperceptions that might lead to a disproportionate fear of litigation. Such fears were leading to the cancellation or withdrawal of otherwise normal activities. It applies to the Occupiers’ Liability Acts 1957 and 1974 and to other Acts that impose a standard of reasonable care. Section 1 provides that, in dealing with a claim for negligence or breach of statutory duty, in determining whether there was a breach of a standard of care, the court may take into account that a requirement to take those steps might prevent an activity which is desirable from taking place (either at all, to a certain extent, or in a particular way). This in fact reflects the existing law.

Section 2 provides that an apology, offer of treatment or other redress does not amount to an admission of negligence or breach of statutory duty.

Welsh Government

Government of Wales Act 2006

The Government of Wales Act 1998 did not establish the Welsh Administration as a separate entity from the National Assembly for Wales. This changes that by creating the Welsh Assembly Government as a separate entity from the National Assembly. The Government is accountable to the National Assembly in the same way that the UK Government is answerable to the British Parliament. The First Minister (formerly “First Secretary”) is appointed by the Queen on the recommendation of the National Assembly. He/she appoints the Ministers and Deputy Ministers of the Welsh Government.

The Act also created the post of the Counsel General to the Welsh Assembly Government. It created the Welsh Seal and designated the First Minister (Prif Weinidog Cymru) as its keeper. It grants the Assembly new powers to enact legislation, subject to the approval of the UK Parliament. These are known as Assembly Measures. There are provisions in the Act for the holding of a referendum in Wales as to whether the National Assembly should acquire more extensive powers, including the right to enact primary legislation.

There are detailed provisions governing elections in Wales. The Secretary of State for Wales may participate in Assembly proceedings but is not entitled to vote. He/she is also required to consult the Assembly about the UK Government’s legislative programme.

The National Assembly must, so far as is reasonably practicable, adhere to the principle of equality of the Welsh and English languages.

Section 61 empowers Welsh Ministers to do anything that they consider appropriate to support archaeological remains, ancient monuments, buildings and places of historic or architectural interest, historic wrecks, museums, galleries and libraries in Wales; to support arts and crafts, archives and historical records, other cultural activities and projects, sport and recreation and to support the Welsh language.

Ministers are required to adopt a Welsh Language Strategy for promoting and facilitating the Welsh language. They must also adopt a sustainable development scheme and submit an annual report to the Assembly.

UK: Equality Act

Equality Act 2006

This Act established the Commission for Equality and Human Rights (CEHR) and sets out its purpose, functions and powers. It takes over the functions and powers of the Commission for Racial Equality, Equal Opportunities Commission and the Disability Rights Commission. It is responsible for promoting equality and combating unlawful discrimination on grounds of sexual orientation, religion or belief, or age. It acquired the existing provisions in respect of sex, race and disability from the CRE, EOC and DRA. It is also responsible for promoting human rights, except in respect of matters falling within the competence of the Scottish Parliament as Scotland has its own Scottish Human Rights Commission.

The Act makes it unlawful to discriminate, on grounds of religion or belief, in the provision of goods and services, education, the use and disposal of premises and the exercise of public functions. Public authorities have a duty to promote equality of opportunity for men and women and prohibit sex discrimination and harassment in the exercise of public functions.

UK: Age Discrimination

Employment Equality (Age) Regulations 2006

These Regulations prohibit unreasonable discrimination against employees, jobseekers or trainees on grounds of age unless that discrimination can be objectively justified. Similar provisions were introduced for Northern Ireland. The Regulations have the same framework as other anti-discrimination legislative measures i.e. provisions on direct and indirect discrimination, victimization, harassment etc.

It also covers discrimination on grounds of the apparent age of a person. It covers all age groups, not just older people. All workplace benefits based on age are prohibited. So too are training courses that are only available to certain age groups.

The Regulations remove the existing age limits for unfair dismissal or rights on redundancy. The default retirement age is set at 65 but employers may set the retirement age at 65 or above. An employee, on approaching retirement age, may request to continue working beyond that age and the employer must give due consideration to this request. If granted, the employer may keep the extended employment under review. If the employer decides to terminate the extension he/she must give the employee 6 months notice. In that event, the employee may request another extended period and the employer again must give it due consideration.

Unlike similar provisions on sex, race, sexual orientation etc. these Regulations do not cover age discrimination in the provision of goods and services.

It is not illegal to discriminate on grounds of age in respect of employees, jobseekers or trainees where:

• there is an objective justification for it e.g. it would be legitimate for an employer not to send an employee on a training course a few months before that person is due to retire;

• an applicant for a job has reached, or will reach within 6 months, the normal retirement age set by the employer;

• there is a legal exemption e.g. that related to young persons under the minimum wage legislation;

• there is a genuine occupational qualification e.g. an actor required to play a character of a certain age.

The Regulations prohibit harassment on grounds of age i.e. behaviour that is offensive, frightening or distressing. It does not matter whether or not there was an intention to harass, certain behaviour may amount to harassment e.g. telling ageist jokes all the time.

UK: Civil Aviation. Bonding

Civil Aviation Act 2006

This empowered the Secretary of State to require the Civil Aviation Authority (CAA) to provide advice and assistance with respect to the health of people on board aircraft.

It also made alterations to the Air Travel Organisers’ Licensing (ATOL)system. The Secretary of State may, by regulations, require ATOL applicants and holders to make contributions to the Air Travel Trust (ATT). It also sets out the factors that the CAA is required to apply in calculating the amount that applicants must pay to the Trust. It is the CAA’s responsibility for setting the rates and dates for payment. It may require existing ATOL holders seeking a variation on their licensable business to make additional contributions. They may impose interest charges for late payments.

The CAA may suspend the requirement to make contributions to the ATT for a period for all, or for a particular category of, ATOL holders. It may also exempt a category of licence holders from the requirement to make a contribution. Non-payment entitles the CAA to refuse to issue, vary, suspend or revoke a licence.

UK: Supreme Court of the United Kingdom

Constitutional Reform Act 2005

This Act created the Supreme Court of the United Kingdom and abolished the appellate function of the House of Lords. It also established the Judicial Appointments Commission for the appointment of judges and members of certain tribunals in England and Wales. It provides a disciplinary framework for the English and Welsh judiciary. The judicial function of the Lord Chancellor was also abolished.

It created a Northern Ireland Judicial Appointments Ombudsman and provides a mechanism for the removal of judicial appointments holders in Northern Ireland.

The Lord Chief Justice acquired the additional titles of President of the Courts of England and Wales and Head of the Judiciary of England and Wales. The new offices of Heads and Deputy Heads of Criminal Justice and of Family Justice respectively were established.

The Supreme Court has a President, Deputy President and 12 judges appointed by the Queen. The number of judges can be increased by Order in Council. The title of the judges is Justice of the Supreme Court. The Act contains provisions to ensure that the three jurisdictions of England and Wales, Northern Ireland and Scotland are properly represented on the court. The Lord Chancellor, First Minister of Scotland, First Secretary in Wales and the Secretary of State for Northern Ireland are all consulted on appointments to the court.

The Supreme Court acquired the powers of the Judicial Committee of the Privy Council in relation to devolution issues under the Scotland Act 1998, Wales Act 1998 and the Northern Ireland Act 1998.

It hears appeals on criminal and civil matters from the courts of England, Wales and Northern Ireland and on civil matters only from the Scottish courts. When hearing a case from Scotland it sits as a Scottish court and the case is determined according to the Law of Scotland.

The Supreme Courts of England and Wales were renamed the Superior Courts of England and Wales and the Supreme Court of Adjudicature of Northern Ireland became the Court of Judicature of Northern Ireland.

UK: Railways Act

Railways Act 2005

This wound up the Strategic Rail Authority, transferring most of its functions to the Department of Transport and some to the Scottish Government and to the Welsh Assembly Administration. Safety provisions in relation to the railways were transferred from the Health and Safety Commission and Executive to the Office of Rail Regulation.

The Secretary of State is empowered to provide financial assistance for any railway related purpose. The Scottish Government and National Assembly for Wales have similar powers in respect of railway freight services. The Scottish Government also acquired additional powers in respect of passenger railway services and railway infrastructure in Scotland. The National Assembly for Wales acquired additional powers in respect of passenger services only.

Passenger Transport Executives (PTEs) can now enter into franchise agreements and agreements related to the quality of franchised rail services, subject to the approval of the Secretary of State. Transport for London was given equivalent powers to the PTEs. The Secretary of State must consult PTEs where he or she intends to grant a franchise for railway services to, from or within the area of the PTE.

The Regional Rail Passengers’ Committees were replaced by the Rail Passenger Council that reports to the Secretary of State.

Railway operators are empowered to make bylaws governing the conduct of persons using the railways, subject to the approval of the Secretary of State or of the Scottish Government, as the case may be. The Scottish Government may also introduce penalty fare regulations and to establish a Code of Conduct for Protecting the Rights of Disabled Rail Users in Scotland.

Scotland: Carriage By Road

Cheeseman v International Travel Services Ltd. [2008] Rep. LR 66

C booked a coach holiday excursion with X. The excursion was organised by X through sub-contractor V, which supplied the coach. C tripped on board the coach and sustained a fractured ankle. The cause was a defect in the carpet. C argued that X had accepted liability for transport suppliers under the terms and conditions of the contract.

The Court of Session held that, on balance of probabilities, the defect in the carpet had been there for a considerable period of time before C’s accident. It should have been apparent to the coach company when inspecting the vehicle for any defects, as required by law, and when the driver was cleaning the coach. X was liable for its suppliers and C was awarded £5750 for solatium.

Northern Ireland: Taxis

Taxis Act (Northern Ireland) 2008

The aim is to create a more effective and equitable regulatory framework that would promote road and personal safety, improve accessibility and facilitate fair competition in the taxi industry. The Department of the Environment is responsible for licensing taxi operators and taxi drivers. It lays down standards for obtaining licences and for providing taxi services. The Department is empowered to issue regulations concerning fares and the duties of taxi drivers to their passengers.

Northern Ireland: Hotel - Discrimination Against "Travelling People"

McDonagh v Thom (Trading as Royal Hotel Dungannon) [2007] NICA 3

M was a member of the Irish travelling community (these are itinerant people, similar to the Romany people but of Irish extraction). They had pre-booked functions at the hotel for January, April and September. During the function in January there was an outbreak of violence that included the use of knives. Because of this staff at the hotel refused to work at any function involving this group. T cancelled the April and September bookings.

The Northern Irish Court of Appeal held that the functions were cancelled because of the previous violence and not on grounds of racial or ethnic discrimination. The Irish travellers were permitted to use other facilities at the hotel.

England: Sexual Orientation Discrimination

English v Thomas Sanderson Blinds Ltd. [2008] EWCA Civ. 1421

E, a married man, had a contract of services with T for 9 years. He claimed that he had been subjected to homophobic banter over the years. It arose because a colleague had discovered that he had attended a private boarding school. In fact E was not gay and he didn’t think that his colleagues that engaged in the banter thought that he was. Nonetheless, he claimed that he had been subject to harassment on grounds of sexual orientation.

The EAT held that, on the basis of the facts established, the unwanted conduct on the part of his colleagues was not on grounds of sexual orientation as they did not think that E was gay.

The Court of Appeal held that E had been taunted as gay and it did not matter whether he was gay or not. The aim of the taunts was to insult his dignity and create a degrading and hostile environment on grounds of sexual orientation. What was required in order to establish discrimination was that someone’s orientation, real or supposed, was the basis of the harassment directed at him or her.

England: Article 17 of the Montreal Convention

Barclay v British Airways PLC [2008] 1 Lloyds Rep. 661

B was flying from Phoenix to Heathrow. She slipped on a plastic strip embedded in the floor of the aircraft as she was making her way along a row of seats to her own seat. She claimed under the provisions of the Montreal Convention. BA claimed that she had failed to establish that she had sustained her injury as a result of “an accident” on board the aircraft. The Convention required that what happened had to be more than a mere event or occurrence and the accident and the injury had to be separate things.

The court held that the fall had to have been caused by an unusual or unexpected event external to B. The mere fact that she fell was not external to B for the purposes of the Convention. She had not established that the plastic strip had caused her fall and even if she had there was nothing unusual or unexpected about its presence.

The Court of Appeal dismissed her appeal. Article 17 of the Montreal Convention required there to be an unexpected and unusual event or happening external to the passenger. There was no accident external to B and no event which happened independently of her. The accident occurred as a result of the passenger’s particular, personal or peculiar reaction to the normal operation of the aircraft.

England: Hot Air Balloon - Carriage By Air

Laroche v Spirit of Adventure (UK) Ltd [2008] EWCA Civ. 12

The court held that there was no logical reason to hold that a hot air balloon was not an aircraft for the purposes of the Carriage by Air Acts, which implements the Montreal Convention in the UK. A hot air balloon is designed for the carriage of passengers and thus any claim made for injury must be made within the framework of the Carriage by Air Acts.

The Court of Appeal held that the purpose for which the passenger was taking the flight (in this case, recreational purposes) had no bearing on whether the Convention (as implemented in the UK) applied or not. It did not matter that the flight route was not predetermined. The court applied the decision in Fellowes v Clyde Helicopters. The natural and ordinary meaning of the word “aircraft” was wide enough to include a passenger hot air balloon. It was designed for and capable of carrying passengers from one place to another. It was capable of being used for international air transport and was so used from time to time. A contract of carriage does not require a specification as to departure and destination. The purpose of Article 1(2) of the Convention was merely to define the carriage as international. It does not provide that the two points within the territory of a single State had to be agreed beforehand for the Convention to apply.

L was a passenger on board the aircraft. He was not on board as a pilot under instruction, did not contribute to the flight in any way and was not therefore a crew member

Scotland: Contract Law

DFR Properties Ltd. v Glen House Properties 2007 SC 74.

The Court of Session held that a term can only be implied to be part of a contract insofar as it is not inconsistent with the express terms.

England: Occupiers' Liability Act

Tysall Ltd v Snowdrome, 28 July 2006.

T was injured on S’s premises whilst tobogganing. T set off sequentially with four others from the top of the slope. 50 metres down the slope there was a bend where one had to change direction and perform a 90 degree left hand turn. T’s toboggan struck the outside barrier and she fell off. She was struck by one of the four that were following her and she sustained injuries to her left ankle and thigh.

The group had been given safety instructions on how to use the equipment but not on what to do if you fell off. There were supervisors present at the start and at the bend. T claimed that S was in breach of a duty of care under the Occupiers’ Liability Act 1957.

The court held that S was not in breach of its duty of reasonable care under the 1957 Act. The sport involved an element of risk and that was part of the thrill. Although S could have taken further steps to prevent the accident that would have adversely affected the enjoyment of the sport.

England: Travel Agent's Duty of Care

Crosby v Fleetwood Travel [2007] CLYB 2127

C booked an all-inclusive package holiday for himself and his family at Sharm El Sheikh. The day before departure there had been a terrorist attack but C was nonetheless told by the tour operator to go to the airport the next day. On arrival at the airport he was told that the flight had been cancelled and so he arranged an alternative holiday over the phone with F. He had made plain that he wanted a destination where there was an opportunity for diving and an all-inclusive holiday that was equivalent in standard and quality to that booked at Sharm El Sheikh (i.e. 4 star or higher). He was willing to pay extra for this. The original holiday had cost £3620 and he was required to pay an additional £ 1600 for the alternative holiday in Cyprus. F assured him that this alternative would meet all of his specifications.

On arrival, he discovered that they were accommodated in a three star hotel; he had to pay an additional supplement for all-inclusive provision; and the nearest diving was 15 miles away. The hotel was overcrowded and as a result the family were not able to enjoy its facilities.

F claimed that though the hotel was classed as a three star it had four star facilities. C could not reasonably expect that a 4 star in Egypt would be equivalent to a four star in Cyprus. F had been misled by its agent about the Cypriot hotel and had acted in good faith.

The court held F in breach of contract and liable for the acts and omissions of its agent. It was not a defence to claim that they had acted in good faith. Travel agents had a higher duty of care in providing information to their clients, especially in a situation where the client was totally reliant on the information that the travel agent had provided over the phone. C could not be expected to know the different standards used in allocating star ratings in Egypt and Cyprus. The travel agent should have explained this to him. C was awarded £1600 for breach of contract and £250 per person for loss of enjoyment.

England: Hotel Contract

Bedford v TUI UK Ltd. (Trading as Austravel) 12 October 2006.

B booked a trip that included stays at various cities in the Far East and Australia, including a 5 night stay at a 4 star hotel in Sydney. The total cost was £4203. At the time of booking it was made clear that this latter hotel was “on request” only. The booking conditions specified that there was no contract to provide accommodation at this hotel until B received confirmation in writing that the accommodation was available. Three days prior to departure T informed B that the hotel was unavailable and offered an alternative hotel at £445 extra cost. Having already paid for the holiday, B sought to cancel and asked for a full refund. This was refused by T on grounds that the booking conditions entitled them to charge a 100% cancellation fee at such a late date before departure. B paid the extra £445 and claimed a refund of it on his return.

The court held that, as T had not confirmed the original hotel, it did not form part of the contract and that B was therefore entitled to a refund of the price of that part of the holiday. B had entered into a separate contract with T for the alternative hotel and that cost the amount of the refund to which B was entitled plus £445. If T had refused the refund of the amount for the original hotel, B would have been entitled to claim that he had entered into the subsequent contract under duress. But T had not refused the original refund and so B entered into the subsequent contract freely.

Package Holiday Case

Bellinger v TUI UK Ltd. [2007] CLYB 2125

B made a telephone booking for a package holiday which included half-board provision at a hotel. The brochure indicated that this included breakfast plus lunch or dinner and that a supplement was payable. There was no reference to the number of courses served at lunch or dinner. On arrival at the hotel they were informed that the meal only included a main course. They complained and were provided with a starter course but were told they would have to pay for deserts. They refused this and chose only to eat breakfast at the hotel. On the third day of the holiday B contracted food poisoning after eating dinner at a local restaurant.

The court held that it was reasonable to presume that a lunch or dinner would involve three courses, including a starter, main course and desert, unless the brochure indicated otherwise. However, by refusing the hotel’s offer of providing two courses, B had failed to mitigate her loss. Had she accepted their offer she could have claimed for the costs of the deserts. T was not responsible for the local independent restaurant at which B chose to dine.

Thursday, July 08, 2010

Alaska Cruise Association lawsuit terminated

Attorney General Dan Sullivan announced last Thursday that the Alaska Cruise Association (ACA) has officially terminated its lawsuit against the state's excise tax on cruise ship passengers.

A stipulation filed with the U.S. District Court for Alaska dismisses with prejudice the lawsuit that was filed against the state last September. In a settlement agreement reached between the state and ACA in April, ACA agreed to dismiss its lawsuit if the governor signed into law a bill passed by the Legislature that reduced the commercial passenger excise tax from $46 per passenger to $34.50 and also provided an offset for passenger taxes paid to local governments.

On June 24, Governor Parnell signed into law Senate Bill 312, passed by the Legislature in April, that contained the elements necessary to trigger dismissal of ACA's lawsuit. The stipulation filed today permanently resolves the legal issues.

Source: State of Alaska Department of Law press release of July 1, 2010

Wednesday, July 07, 2010

European Union: airline blacklist updated

The European Commission has updated the list of airlines banned in the European Union to include one carrier from Surinam and to expand the operating restrictions on Iran Air. In addition, two carriers from Indonesia have been removed from the list of banned airlines.

Source: EU Press Release IP/10/892 of July 6, 2010

Updated blacklist available here>>.

European General Court: prohibition of Ryanair’s takeover of Aer Lingus valid

Following the privatisation of Aer Lingus by the Irish Government in 2006, Ryanair acquired a shareholding of 19.16 % in the share capital of that company. On 23 October 2006, Ryanair launched a public bid for the entire share capital of Aer Lingus and notified the Commission a week later of its planned takeover, in accordance with the Merger Regulation. During the public bid, Ryanair bought further shares and on 26 November 2006 it held 25.17 % of Aer Lingus’s share capital.

On 27 June 2007 the Commission adopted a decision declaring that Ryanair’s planned takeover of Aer Lingus was incompatible with the common market. Ryanair brought an action against that decision before the General Court (Case T-342/07). Following the Commission’s decision Ryanair bought further shares bringing its shareholding in Aer Lingus’s capital to 29.3 %.

Both during the procedure which led to the prohibition decision and following that decision, Aer Lingus requested the Commission to order Ryanair to divest all of its shares in Aer Lingus. In its decision dated 11 October 2007, the Commission refused to grant that request, stating that it was not in its power under the Merger Regulation to order Ryanair to divest its shareholding since the planned takeover had not been implemented and Ryanair only held a minority shareholding which did not enable it to exercise either de jure or de facto control over Aer Lingus. Aer Lingus brought an action against that decision before the General Court (Case T-411/07). By order of 18 March 2008, the President of the General Court rejected the parallel application made by Aer Lingus for interim measures to prevent Ryanair from exercising its voting rights.

In judgments of July 6, 2010, the General Court confirmed the two Commission decisions. The merger would create dominant positions on a number of routes from or to Dublin, Cork and Shannon which would be monopolistic or very significant and thus sufficient, in themselves, to validate the Commission’s finding that the implementation of the merger must be declared incompatible with the common market. On the other hand, the General Court concluded that the Commission justified to the required legal and factual standard its decision not to order Ryanair to divest its shareholding in Aer Lingus.

Both, Ryanair and Aer Lingus can now bring an appeal, limited to points of law only, before the European Court of Justice.

Source: General Court Press Release 72/10

Full text of judgement T-342/07 available here>>.
Full text of judgement T-411/07 available here>>.

Tuesday, July 06, 2010

USA and Barbados Reach Open-Skies Aviation Agreement

The United States and Barbados have reached an Open-Skies Agreement that will liberalize U.S.-Barbados air services for airlines of both countries. Barbados will become the 99th U.S. Open-Skies partner. Upon signature of the agreement, airlines from both countries will be allowed to select routes, destinations and prices for both passenger and cargo service based on consumer demand and market conditions. The agreement, which was reached on July 1, for the first time provides airlines of both countries with code-sharing and intermodal rights.

Source: DOT press release 132-10 of July 2, 2010

Argentina: New Ministry of Tourism

Argentinean President, H.E. Cristina Fernández de Kirchner, announced the move to separate the Ministry of Tourism from the existing Ministry of Industry and Tourism and named Carlos Enrique Meyer, previously Secretary of State for Tourism, as Minister of Tourism.

UNWTO welcomes that several countries have recently placed tourism higher on their national political and economic agendas. Argentina is the most recent example with the establishment of the first Argentinean Ministry of Tourism. The move represents a further step towards mainstreaming tourism as an industry that delivers on economic growth, job creation and sustainable development.

Source: UNWTO press release of July 1, 2010; find full text here>>.

Europe: Commission launches campaign to inform passengers about their rights

A Europe-wide publicity campaign in 23 languages launched by the European Commission is meant to provide passengers with easier access to information about their rights when travelling by rail or air. As part of the "Your Passenger Rights At Hand" campaign a website has been launched. Here people are able to find out what their rights are for each of the transport modes.

Source: European Commission Newsroom

European Commission: New strategy for stimulating tourism in Europe

The commission’s tourism development plan features 21 proposals, many aimed at attracting more visitors to Europe from fast-developing countries like China, Russia and Brazil. But it also spells out ways to increase travel within the EU, including greater coordination of school holidays to lengthen the holiday season.

The commission is proposing a label scheme to give recognition to high-quality services. It also plans to establish a charter with criteria for sustainable tourism and award a prize to destinations that meet them. To promote travel and tourism, it will encourage better use of technology – including centralised booking services accessible via mobile phone – and more theme-based tourism (spas, gastronomic excursions, sports vacations, etc.)

The EU also has to put more effort into making tourist sites accessible to people with reduced mobility, along with adjusting services to an older clientele.

Source: European Commission News; find full article here>>.

Friday, July 02, 2010

Israeli tour guides permitted to return to Bethlehem

According to an agreement between the Israel Ministry of Tourism and tourism officials in the Palestinian Authority, Israeli tour guides and tour operators have been permitted to return to Bethlehem for the first time in nearly a decade. Prior to this agreement, Israeli guides were not allowed to work in the West Bank but were replaced by Palestinian guides when tours crossed into the West Bank from Israel.

Source: Travel Weekly; find article here>>.

USA: Cruise Line Vessel Security and Safety Act passes the House

The Cruise Line Vessel Security and Safety Act of 2009 passed the House on Wednesday evening; the Senate has already unanimously approved the bill. The approved legislation is a significant victory for cruise passengers’ rights and is now being sent to President Barack Obama for his signature.

The bill requires the cruise industry to comply with a number of security provisions that mandate ship rail heights, peep holes in cabin doors and video surveillance systems. Crews are required to record alleged crimes and report all serious crimes to the Coast Guard and FBI.

Source:; find article here>>.

Thursday, July 01, 2010

UNWTO Reports International Tourist Arrivals Up 7 Percent

International tourist arrivals grew by 7 percent in the first four months of 2010 according to the latest issue of the UNWTO World Tourism Barometer. This growth confirms the recovery trend beginning in the last quarter of 2009 and comes despite the challenging conditions of recent months. While April’s results were affected by the week-long closure of European airspace, globally the pace of recovery is faster than initially expected, driven largely by emerging markets. For the full year 2010, UNWTO forecasts international tourist arrivals to grow by 3 percent to 4 percent.

Source: UNWTO press release of June 29, 2010

USA: law suit against government bodies over "No Fly List"

The American Civil Liberties Union (ACLU) filed a first-of-its-kind lawsuit on behalf of 10 US citizens and lawful residents who are prohibited from flying to or from the United States or over US airspace because they are on the government's "No Fly List" against the US Department of Justice, the FBI, and the Terrorist Screening Center in US District Court for the District of Oregon. None of the individuals in the lawsuit have been told why they are on the list or given a chance to clear their names.

The ACLU's complaint is available online at:

More information about the ACLU's lawsuit is available online at:


Germany: ban of external guided tours at "documenta" exhibition justified

"Documenta" is one of the most important exhibitions of modern and contemporary art which takes place in Kassel, Germany every five years. In a judgement of May 4, 2010, OLG Frankfurt (Case 11 U 70/09) decided that the managing company of the event is allowed to ban external suppliers, in particular tour operators, from offering guided tours at the exhibition: the company had a legitimate interest to cover the costs of the exhibition by providing its own guided tours which constituted a justified reason to exclude external organisers. The ban could not be regarded a misuse of a market dominance.

Full text of judgement available in German here>>.