IFTTA - International Travel and Tourism News: Cases

Showing posts with label Cases. Show all posts

Thursday, October 03, 2013

Thursday, January 03, 2013

Friday, January 13, 2012

New postings on IFTTA News

European Council decides on accession of the European Union to the Athens Protocol;
Austria: Supreme Court decides on innkeeper's liability with regard to theft from hotel garage;
USA: DOT fines AirTran for deceptive price advertising;
European Economic and Social Committee: opinion on tourism in Europe published;
USA: man who helped to stop "underwear bomber" sues for USD 10 million;
IFTTA Law Review 3-2011 now available;
European Court of Justice: The directive including aviation activities in the EU’s emissions trading scheme is valid;
Australia: Quantas succeeds against registration of "Flying Kangaroo" wines;
USA: District Court upholds fine for traveler to Cuba who did not answer OFAC queries;
European Union: Commission starts public consultation on the possible revision of the air passenger rights Regulation;
Austria: new reference for ECJ preliminary ruling regarding rail passenger rights;
U.S. Court of Appeals: violation of a government regulation no prerequisite to a claim under Article 17 Montreal Convention;
EU Commission announces "Better Airports" package;

Tuesday, April 12, 2011

Tuesday, August 17, 2010

Australia: compensation for inhaling smoke from pyrolysed oil in cabin of aircraft

The New South Wales Court of Appeal has dismissed an appeal by East-West Airlines against a flight attendant who inhaled smoke in an aircraft cabin 18 years ago and had developed a persistent cough. The New South Wales Dust Diseases Tribunal had previously found that due to the smoke from pyrolysed oil she was exposed to dust, which caused her to develop her cough and awarded the flight attendant $139,000.

East West Airlines Ltd v. Turner [2010] NSWCA 53; BC201001873 - 01 Apr 2010 - Supreme Court of New South Wales, Court of Appeal.

Judgement available here>>.

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>>.

Thursday, August 05, 2010

Canada: class action against Air Canada over price disclosure

A motion filed on July 16, 2010 by Union des consommateurs du Québec against Air Canada (proposing that the action cover all residents of the province of Québec who have purchased tickets directly from Air Canada since June 30), alleges that Air Canada failed to disclose the complete price of its tickets in its paper and electronic advertisements as well as on its website.; in particular additional charges such as airport improvement fees and 9/11 security charges were added to the advertised prices.

The motion claims for reimbursement of all fees and charges paid beyond the advertised price and the payment of $100 in punitive damages for each affected consumer.

Source: Union des consommateurs du Québec (French)

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: CNN.com; 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>>.

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>>.

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 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>>.

Thursday, July 01, 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: www.aclu.org/national-security/latif-et-al-v-holder-et-al-complaint

More information about the ACLU's lawsuit is available online at: www.aclu.org/national-security/aclu-challenges-government-no-fly-list-0

Source: aclu.org

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.

Source: www.olg-frankfurt.justiz.hesse.de
Full text of judgement available in German here>>.

Wednesday, June 23, 2010

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>>.

Wednesday, June 16, 2010

European Court of Justice: no obligation to reimburse patient for costs of unscheduled hospital care during a temporary stay in another Member State

Following a complaint from a person insured under the Spanish national health system who had had to be admitted to hospital unexpectedly during a stay in France and who, on his return to Spain, was refused reimbursement of the portion of the hospital costs which, in accordance with French legislation, he had been left to pay, the Commission decided to bring action against Spain for failure to fulfil obligations. The Commission maintains that the Spanish legislation is in breach of the principle of freedom to provide services, since it refuses persons insured under the national health system reimbursement for that portion of the costs of care which is not covered by the institution of the Member State of stay. In that way, the effect of the legislation in question is to restrict not only the provision of hospital care, but also the provision of tourist or educational services, the obtaining of which can be the reason for a temporary stay in another Member State.

In its judgment in Case C-211/08 - Commission v Spain, delivered June 15, 2010, the Court of Justice held that the freedom to provide services encompasses the freedom of an insured person established in a Member State to travel – as a tourist or student, for example – to another Member State for a temporary stay and to receive hospital care there from a provider established in that Member State, where the need for such care during that stay arises because of his state of health. Nevertheless, the Court considers that, viewed globally, the Spanish legislation cannot be regarded as restricting the freedom to provide hospital care services, tourist services or educational services.

The fact of imposing on a Member State the obligation to guarantee to persons insured under the national system that the competent institution will provide complementary reimbursement whenever the level of cover applicable in the Member State of stay in respect of the unscheduled hospital treatment in question proves to be lower that that applicable under its own legislation would ultimately undermine the very fabric of the system which Regulation No 1408/71 sought to establish. In every such case, the competent institution of the Member State of affiliation would be systematically exposed to the highest financial burden, whether through the application of the legislation of a Member State of stay under which the level of cover is higher than that provided for under its own or through the application of its own legislation in the contrary situation.

The Court therefore dismissed the action brought by the Commission.

Source: ECJ press release No 56/10 of June 15, 2010

Full text of judgement available here>>.

Wednesday, June 09, 2010

US Supreme Court: amendment of complaint admissible in case of identifiable mistake in choosing defendant

Wanda Krupski of Michigan tripped over a camera cable and broke her leg while on a cruise ship. Her passenger ticket, which was issued by Costa CruiseLines,

identified respondent Costa Crociere S. p. A. as the carrier;
required an injured party to submit to the carrier or its agent written notice of a claim;
required any lawsuit to be filed within one year of the injury; and
designated a specific Federal District Court as the ex-clusive forum for lawsuits such as Krupski’s.

The front of the ticket listed Costa Cruise’s Florida address and made references to “Costa Cruises.”

After Krupski’s attorney notified Costa Cruise of her claims but did not reach a settlement, Krupski filed a diversity negligence action against Costa Cruise. Over the next several months — after the limitations period had expired — Costa Cruise brought CostaCrociere’s existence to Krupski’s attention three times, including in its motion for summary judgment, in which it stated that Costa Crociere was the proper defendant. Krupski responded and moved to amend her complaint to add Costa Crociere as a defendant.

The District Court denied Costa Cruise’s summary judgment motion without prejudice and granted Krupski leave to amend. After she served Costa Crociere with an amended complaint, the court dismissed Costa Cruise from the case. Thereafter, Costa Crociere — represented by the same counsel as Costa Cruise — moved to dismiss, contending that the amended complaint did not satisfy the requirements of Federal Rule of Civil Procedure 15(c), which governs when an amended pleading “relates back” to the date of a timely filed original pleading and is thus timely even though it was filed outside an applicable limitations period. The Rule requires, inter alia, that within the Rule 4(m) 120-day period for service after a complaint is filed, the newly named defendant “knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.” Rule 15(c)(1)(C)(ii). The District Court found this condition fatal to Krupski’s attempt to relate back. It concluded that she had not made a mistake about the proper party’s identity because, although Costa Cruise had disclosed Costa Crociere’s role in several court filings, she nonetheless delayed for months filing an amended complaint. The Eleventh Circuit affirmed, finding that Krupski either knew or should have known of Costa Crociere’s identity as a potential party because she furnished the ticket identifying it to her counsel well before the limitations period ended. It was therefore appropriate to treat her as having chosen to sue one potential party over another. Additionally, the court held that relation back was not appropriate because of Krupski’s undue delay in seeking to amend the complaint.

U.S. Supreme Court held that the question under Rule 15(c)(1)(C)(ii) was not whether Krupski knew or should have known Costa Crociere’s identity as the proper defendant, but whether Costa Crociere knew or should have known during the Rule 4(m) period that it would have been named as the defendant but for an error. Nothing in Krupski’s conduct during the Rule 4(m) period suggested that she failed to name Costa Crociere because of anything other than a mistake. In addition, Costa Crociere’s own actions contributed to passenger confusion over “the proper party”.

Supreme Court in opinion of June 7, 2010 therefore unanimously decided to reverse the judgment of the Court of Appeals.

Full Supreme Court opinion in case Wanda Krupski v. Costa Crociere SpA available here>>.

Tuesday, June 08, 2010

European Court of Justice: Directive on unfair terms in consumer contracts allows stricter consumer protection rules by member states

The Tribunal Supremo (Spanish Supreme Court) asked the Court of Justice, in essence, whether the Directive on unfair terms in consumer contracts precludes a Member State from providing in its legal system, for the benefit of consumers, for an assessment as to the unfairness of contractual terms which relate to the definition of the main subject-matter of the contract or to the adequacy of the price and remuneration, on the one hand, as against the services or goods to be supplied in exchange, on the other hand, even in the case where those terms are drafted in plain, intelligible language.

In judgement of June 3, 2010 in Case C-484/08 (Caja de Ahorros v. Ausbanc), ECJ held that the Directive carried out only a partial and minimum harmonisation of national legislation concerning unfair terms, while recognising that Member States have the option of affording consumers a higher level of protection than that for which the Directive provides. Member States therefore may retain or adopt, throughout the area covered by the Directive, rules which are stricter than those provided for by the Directive. Consequently, the Directive does not preclude national legislation which authorises judicial review as to the unfairness of contractual terms which relate to the definition of the main subject-matter of the contract or to the adequacy of the price and remuneration, on the one hand, as against the services or goods to be supplied in exchange, on the other hand, even in the case where those terms are drafted in plain, intelligible language.

Source: ECJ press release No 52/10 of June 3, 2010

Tuesday, June 01, 2010

UK: law suit over flight bans caused by volcanic ash?

EasyJet reportedly is planning to bring a class action lawsuit to win compensation for flight bans imposed by Europe’s air safety authorities. Most of Europe’s airspace was closed for nearly a week from April 15 after a huge ash cloud from the eruption of Eyjafjallajökull stranded millions of passengers and paralysed freight and businesses.

Source: Times online; find article here>>.

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