Bulgaria: reference for a preliminary ruling on PTD

Bulgarian "Varhoven Kasatsionen sad" filed a reference for preliminary ruling on the interpretation of the Package Travel Directive 90/314/EEC (PTD). The court wants to know whether the PTD is applicable to the present case (no details of the case available in ECJ publication). The further questions are:

• How is the term 'other tourist services' in Article 2(1)(c) of Directive 90/314/EEC to be interpreted, and does that term cover the organiser's obligation to insure the consumer?

• - What risks must be covered by the insurance contract concluded, on behalf of the consumer, between the organiser and the insurance company?
• - What type of insurance must be provided by the insurance contract concluded, on behalf of the consumer, between the organiser and the insurance company: a group insurance policy covering all the participants in the package tour or an individual insurance policy covering each individual participant in the package tour?

• Is the organiser's obligation under Article 4(1)(b)(iv) of Directive 90/314/EEC to provide the consumer before the start of the tour with information on the optional conclusion of an insurance policy to cover the costs of assistance, including repatriation, in the event of an accident to be interpreted as meaning that it includes the organiser's obligation to conclude an individual insurance policy with the consumer covering the costs of assistance, including repatriation, in the event of an accident?
• Is the organiser of the tour obliged under Directive 90/314/EEC to provide the consumer with the original insurance policy before the tour commences?
• How is the term 'damage' resulting for the consumer from the failure to perform, or the improper performance of, the contract in Article 5(2) of Directive 90/314/EEC to be interpreted?
• Does the term 'damage' resulting for the consumer from the failure to perform, or the improper performance of, the contract in Article 5(2) of Directive 90/314/EEC also cover liability in respect of non-material damage suffered by the consumer?
• How are the third and fourth subparagraphs of Article 5(2) of Directive 90/314/EEC to be interpreted in the event of claims for compensation in respect of non-material damage on the ground of personal injury which are based on the failure to perform, or the improper performance of, the services under the contract, including the failure to provide the consumer with the original insurance policy, in the case where the latter does not provide for any limitation of liability to pay compensation?

Full text of reference C-32/10 available here>>.
First reported to IFTTA by Stephan Keiler.

Germany: no insurance protection for accident due to excessive sun exposure

During her holidays on the beach, plaintiff doze off under an umbrella. As the shadow moved she got exposed to sunshine for several hours. When she got up she suffered a circular collapse, fell and banged her head against the concrete border of a flowerbed.

Her claim against the accident insurance was dismissed by German Supreme Court (BGH) as due to General Conditions of the insurance contract an exemption apllied to accidents caused by reduced conciousness.

German text of decision IV ZR 219/07 of Sep. 24, 2008 available for download at http://www.bundesgerichtshof.de/.

Austria: Parents not bound to check hotel facilities for possible sources of danger to their children

A nine year old girl was injured in a "familiy hotel" when running against a glass door which due to lightning conditions was hardly visible when shut and not made of safety glass. She successfully claimed for compensation for pain and suffering against the tour operator. Court held that even when her mother had been negligent by not warning her daughter of the dangers of the glass door, this could not be attributed to the claimant as contributory negligence.
Following this decision the tour operator's insurer claimed back half of the compensation paid to the girl from her mother, arguing that due to the judgement she had contributed to the accident at fault. Reasonings of the jugdement against the tour operator were binding for her as she had been given third party notice.
Austrian Supreme Court (OGH) at the contrary held that there was no binding character of the specific reason as it had not been relevant for the decision against the tour operator. There was no negligence of the mother as parents were not bound to check hotel for any possible source of danger to their children.

OGH 11.12.2007, 4 Ob 211/07v; decision available in German here.

European Union: Good news for claimants injured in road traffic accidents

In a recent decision (C-463/06 of 13. December 2007) European Court of Justice held that an injured party in a road traffic accident may bring an action directly against the insurer before the courts for the place in a Member State where that injured party is domiciled, provided that such a direct action is permitted and the insurer is domiciled in a Member State. ECJ came to this conclusion due to a purposive or “teleological” interpretation of the Jurisdiction Regulation (EC 44/2001).
Travelers within the EU injured in a road traffic accident in another member state may therefore sue "back home" provided that their national law permits direct action against the insurer and the latter is domiciled in an EU member state.

Source: ECJ Press Release No 92/07.

Space Tourism faces challenges from insurance companies

The personal spaceflight business — also known as space tourism — will face high hurdles from the insurance business in its early years, according to several industry experts.
Policy costs will be extremely high until companies fly without incident at least three times. And a string of early failures may well doom startups to business failure, one of three insurance experts on a panel about the subject said during a panel discussion at the Federal Aviation Administration's annual Commercial Space Transportation Conference.

Source: foxnews.com; read full article here.

"Terror alert puts cloud over Bali travel cover"

As reported by Clive Dorman, at The Age, "A Travel law specialist has warned that government advice about travel to Indonesia may technically invalidate travel insurance for trips to the holiday island of Bali.
Even though insurers continue to cover travellers to Bali, Tony Cordato, of Sydney's Cordato Partners Tourism Lawyers, believes the Department of Foreign Affairs and Trade's advice for travel to Bali triggers the exclusion clause in travel insurance policies that disqualifies covering anyone who ignores government warnings.
The department advises that people should 'reconsider their need' to travel to Indonesia, including Bali, 'because of the very high threat of terrorist attack'. It is the second-highest category, a so-called level four warning. Mr Cordato said that while the issue had not been tested in court, 'the conclusion must be that there is no travel insurance coverage for travel to countries where level four travel advisories apply'.
Travel insurers and the Insurance Council of Australia have so far been unwilling to weigh in on the issue. But the industry is already facing a dramatic increase in disputes over travel insurance policies as more Australians, particularly older Australians, travel overseas."

"Travel Lawyer highlights black hole in Travel Insurance Cover"

"In giving a presentation to the Diploma Travel Annual Conference last Saturday on the Gold Coast, Travel Lawyer, Anthony Cordato, highlighted the black hole that exists in Travel Insurance cover.
'What we are talking about is that if a traveller visits certain high-risk countries, then they are not covered for medical and hospital expenses, medical evacuation, financial loss (including cancellation and trip disruption) and accidental death or total permanent disability', Cordato says.
'It’s like using a mobile phone when driving, as soon as you enter some areas, there is no coverage.'
The black hole is the exclusion found in Travel Insurance policies that you did not follow advice in the mass media of a government or other official body’s warning against travel to a particular country or parts of a particular country." Read more >>

Source: eTravel Blackboard.