Choice of Law and Forum - The Red Seal Experience

1. Red Seal is an Ontario (Canada) tour operator. 2. It entered into three "Guarantee Contracts" with the Ontario-based representative of six Caribbean hotels. The Guarantee Contracts dealt with general issues such as no black-out periods, no bumping of Red Seal pax, no better terms to a Red Seal competitor, etc. None of these Guarantee Contracts contained a choice of law or a choice of forum clause. 3. After the first two of them were signed, Red Seal entered into a separate "Operating Contract" (i.e. for specific space on particular dates) with each of the six Caribbean hotels. Each specified that the law of Florida and the Courts of Aruba would apply. 4. Disputes arose, and Red Seal sued the Ontario "rep" company in the Courts of Ontario. 5. That company sought to oust Ontario law and Courts, and bounce the case to Aruba pursuant to Florida law, based on the terms of the Operating Contracts. 6. In a mid-September decision, the Ontario Courts ruled that one of the disputes involved site-specific issues and thus was governed by the relevant Operating Contract. Florida/Aruba applied to it. 7. But it ruled that the balance of the disputes related to the subject matter of the Guarantee Contracts. The Florida/Aruba provisions of the Operating Contracts were thus irrelevant. As the Guarantee Contract was silent re courts and law, the Ontario Court was free to determine (as it did) that there was a sufficient nexus with Ontario to allow Red Seal to maintain those actions in the Ontario courts.

(Originally posted by Doug Crozier)

First Mercosur Tourism Law Congress

First Mercosur Tourism Law Congress: Radisson Hotel, Montevideo, 9-10 November 2006 Tourism advocates of Uruguay, Argentina, Brazil, Paraguay, Chile, Mexico, Spain, Venezuela and Bolivia. Further information: www.fcu.com.uy

(Originally posted by Diego Benítez)

USA: New 'e-passports'

A new generation of United States passports, equipped with short-range radio tags, are beiing distributed . More than 15 million Americans are expected to apply for and receive the high-tech document in the next year. Within a decade, every US passport will contain an RFID (radio frequency identification) chip.
Privacy advocates are raising concerns that the passports make Americans more vulnerable to attacks from thieves and terrorists.
For details look here.

Ancient Thai city destroyed

Officials in Thailand say three months of flooding have turned the foundations of the ancient city of Wiang Kum Kam into mud. Wiang Kum Kam was originally founded around 1286 by King Meng Rai and became the capital of the Lanna kingdom before flooding forced the ruler to move his capital to Chiang Mai. The city was unearthed in 1984 and was opened in 2004 as a tourist attraction
Further information here.

New adventure tourism operators law in Western Australia

The Western Australia government has imposed new strict standards for adventure tourism operators, in a move to protect tourists following some near tragedies in the state's wilderness areas.
Under the new legislation, accreditation will be compulsory for all adventure tourism operators. Details here.

Europe's largest national park to be established in Iceland

Iceland's government announced a plan to build what the prime minister referred to as soon-to-be Europe's largest national park.
The establishment of Vatnajokull national park is the largest nature protection project in Iceland to date. The national park will not only provide a platform for protection of the unique nature of the area, but also create new opportunities in tourism in the vicinity of the park and thus strengthen habitation along the outskirts of Vatnajokull glacier.
The Ministry of Environment, in 2002, began negotiations with farmers living next to the glacier to establish a nature reserve. The negotiations did not materialize as land ownership issues delayed the process. The plan to include the entire glacier as well is more recent.
Icelandic nature continues to be the main attraction for foreign visitors to the country, according to annual research done by the Icelandic Tourist Board. Therefore, it is important for the tourism industry that steps are taken to protect it. The establishment of Vatnajokull national park would mean that Iceland will have the largest protected wilderness in Europe.
The establishment of Vatnajokull national park would also mean that glacier river Jokulsa a Fjollum will not be harnessed for the production of electricity. This issue is of great concern for nature conservationists.
More details here.

The Hospitality Loss Prevention Conference: Boston, the 6th December

New airline tax for health care to poor countries

Nineteen states including include Brazil, Britain, Chile, Cambodia, Cameroon, Congo, Cyprus, France, Gabon, Guinea, Ivory Coast, Jordan, Luxembourg, Madagascar, Mali, Mauritius, Nicaragua, Norway and South Korea are committed to levying a tax on airline tickets as part of a new way to treat people in poor countries for AIDS, tuberculosis and malaria under a program called UNITAID which brings together countries, U.N. agencies, international organizations and others to tackle some of the world's worst diseases. UNITAID plans initially to spend €50 million (US$63 million) this year and about €300 million next year to give 100,000 children access to anti-retroviral treatment and 150,000 children treatment against tuberculosis.
Further details here.

EUTO convention in Malta

During the last week of October, the Malta Tourism Society will be hosting delegates from the European Union of Tourism Officers (EUTO) to a convention and study visit. This annual event is part funded through the Leonardo da Vinci mobility initiatives which promote cultural and educational exchange across Europe.
Themed Developing Sustainable Tourism Reviving the Past to Build the Future, an exchange of best practice, this year s convention and study visit will take place between October 22 to 29. The focus will be on creating a unique experience for visitors to the island by capitalizing on all the possible cultural, social and historical resources which these small islands can offer. A number of local and international speakers are being invited to contribute to the convention and also to the study visits included in the program.
The convention will be addressed by the Maltese Tourism and Culture Minister Francis Zammit Dimech on October 23.
EUTO is an organization that fosters trans-national networking between all European middle and top managers principally engaged in the work of tourism promotion and development. Further details to be found here.

Misleading airline advertising

Airlines continue to engage in misleading price advertising. (See my paper at the 17th IFTTA Conference 2005, available at http://www.iftta.org/web/2005AirAdEUIrsh.html). Among other things and according to the website of the Advertising Standards Authority of Ireland (http://www.asai.ie/) airlines continue to be in breach of the advertising industry’s own code of advertising by - claiming that emails sent to consumer subscribers who have indicated they wish to receive special offers etc are not subject to the Code (Ref AC/0605/0505; AC/0502/0122) - claiming that the term ‘Free’ can be used although the consumer still has to pay taxes, charges (AC/0512/1384) - claiming that taxes, charges etc. do not have to be included in the advertised air fare (Ref GM/0602/0219). (References traceable through http://www.asai.ie/)
Perhaps the most significant recent development concerns the attempt by the advertising industry self-regulator to bring clarity to the vexed question of how many seats an airline should make available when it advertises a low fare. Rule 2.44 of the Irish Code in insists in effect that the supply must be in reasonable proportion to the demand. This is a vague rule and heretofore airlines have been left free to interpret it themselves.
In a recent case (AC/0504/0310) an airline sought advice in advance from the self regulator on this point and was told such advice was not given. When the airline then provided only 4% of its seats at the advertised low fare complaints were made that the advertisement was misleading. The self regulator rejected the complaint apparently because the airline had tried to seek guidance. But more importantly the self regulator also stated: ‘Going forward and in order to provide clarity for advertisers, the Committee considered that at least 10% of tickets should be available at the lead in price.’ The choice of 10% is not explained. At first glance it is difficult to see how anyone could say that 10% is a reasonable figure. One might have thought of a figure of at least 50% if not higher.
However, the self regulator presumably chose the figure of 10% to reflect the interests of all parties, including airlines and the fact that consumers can be expected to realise an airline could not be expected to sell a lot of its seats at low fares.
From a purely legal point of view, whether 4% or 10% or some other figure complies with the present or future law banning misleading price advertising depends on European Community law and how the criterion of meaning (the average person) interprets the advertisement.
The recent EC Directive 2005/29 on unfair commercial practices (to be implemented by end-2007) contains an equivalent requirement that airlines provide seats in reasonable proportion to an advertisement of low air fares. Point 5 of the blacklist in the Annex includes among practises to be banned: ‘Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply … those products … at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).’
This Directive also makes clear that the criterion of meaning is the careful reader of advertisements, not the hasty one. One can therefore expect a judge to say a careful reader will be aware that airlines cannot commercially operate flights if all seats are sold at the advertised low fare and that consumers surely understand this. But the judge may equally consider that consumers also know low fares do not prevent airlines from making a profit.
Given that airlines now have the technology to change fares very quickly and increase the fares if they wish, it may be that the figure of 10% is much too low.

(Originally posted by Marc Mc Donald)

No Deal on Passenger Data Transmission to US Authorities

The United States and the European Union failed to reach a new deal on sharing air passenger data before a Saturday deadline. Reaching an agreement before the deadline was an EU priority to ensure that airlines could continue to legally submit data about passengers flying from Europe to the United States. These data - including credit card details - must be transferred to the U.S. authorities within 15 minutes of a flight's departure to the U.S.. The European Court of Justice, in May ruled that the deal, put in place after the terror attacks of Sept. 11, 2001, was illegal because it had not used the correct basis in EU law. However, court allowed the data to keep flowing until Saturday to give officials time to negotiate a new agreement. Washington has warned that airlines failing to share the data will face fines and the loss of U.S. landing rights. Without the deal, airlines that provide the data to the U.S. authorities could face legal action from the national data protection authorities in EU states. Officials said negotiations would continue. Source: http://www.travelindustryreview.com/news/3215.

(Originally posted by Michael Wukoschitz)

Compensation and assistance to air passengers

Article 16 of EC Regulation 261/2004 on confers increased protections on most air passengers flying into or out of Community airports for delay caused by denied boarding, cancellation or long delay. Article 16 requires member states to ‘designate a body responsible for the enforcement of this Regulation … Where appropriate, this body shall take the measures necessary to ensure that the rights of passengers are respected.’ Given that the consumer rights are intended to deal with the immediate effects of flight delays, Article 16 might be understood as meaning that certainly in larger airports the ‘enforcer’ should actually be located in the airport so as to be able to receive, respond and intervene on behalf of air passengers with airlines.
However, the Irish government has not taken this view and has designated a state aviation body (the Commission for Aviation Regulation, rather than the consumer protection body) whose offices are based in downtown Dublin, as the enforcer. The public has been informed of this by the same newspaper and website notice http://www.aviationreg.ie/rights/notices.htm which says passengers may complain in writing or electronically to the city centre address. Fax will also be accepted.
Does the failure to locate the enforcer at a busy airport like Dublin amount to a failure to implement Article 16?

(Originally posted by Marc Mc Donald)

The Great Barrier Reef will not be closed to tourism

Responding to a recent report related to several world heritage sites being taken off the tourism map, the Queensland Tourism Industry Council has rejected the opinion that suggests closing off most of the Great Barrier Reef to tourism.
According to The Courier Mail in Australia, coral reef expert Terry Hughes, the Great Barrier Reef was a big place and the tourism industry had little impact. Source: http://travelwirenews.com/eTN/02OCT2006.htm

Female lifeguards at Goa's beaches

The popular tourist destination in India is set to hire women to patrol its white-sand beaches as lifeguards for the first time. Goa will train women and men from the local fishing community to serve as lifeguards. This is remarkable as women in India going out to beaches in swimsuit is surely not a common sight. Details here.

"One Price Policy" - a Victory for Consumers

The U.S. Department of Transportation (DOT), announced earlier this week that "public interest will best be served by maintaining the status quo" insofar as maintaining its air-transportation price-advertising rule. The DOT's decision was in keeping with the American Society of Travel Agents' (ASTA) comments , in which the Society argued for maintaining governmental restrictions on airline pricing in place to protect consumers. The DOT had solicited comments as to whether it should relax or possibly eliminate enforcement of its "One-Price Policy".
The "One-Price Policy" was established by the DOT in 1984 with the intent of clarifying what is and is not a deceptive price advertisement. The policy mandates how airfares are advertised, allowing only for the exclusion from the total price of fees that are just paid to governments and those paid for agency services that are not part of the transportation service. Everything else, including fuel surcharges, must be incorporated into the quoted price. The DOT had proposed that changes to the policy be made on the grounds that (1) a long time has passed since the original rule was adopted, and (2) electronic communications have led to changes in (a) marketing practices and (b) consumer sophistication. (70 Fed. Reg. 73961-73962).
Source: http://travelwirenews.com/eTN/21SEPT2006.htm)

(Originally posted by Michael Wukoschitz)

"High-level conference discusses future of aviation regulation" in Europe

According to the EU Press Room, "Fragmentation of the aviation regulation system still remains a problem. Today high level representatives of the national civil aviation administrations, aviation industry and the Commission met in Brussels to find ways to improve the efficiency of the system, cut costs and cover possible gaps in safety. The conference brought together the highest executives of both regulators and the industry stakeholder to formulate new and more efficient policies.
Vice-President Jacques Barrot, Commissioner in charge of Transport stated: “This conference builds on the recent successes of the Community initiatives in aviation and aims to bring us from the current patchwork approach to an integrated framework that gives Europe the regulatory capabilities it needs in a globalising world”.
Rapidly growing traffic and the success of air transport liberalisation in Europe have changed the environment where national legislators operate. The aviation industry is becoming more and more cross-border in its operations, but Europe’s regulatory structures have not kept up with the challenge. Many actors take responsibility for parts of the aviation system, in a way that is not always clear or efficient.
The European Community has already taken action by tackling some of the most burning problems, be they in passenger rights or creating capacity and maintaining safety in an evolving market
In order to modernise the European air traffic management sector, the Commission has also launched measures and initiatives such as the Single European Sky or SESAR, a new-generation air traffic management system (IP/05/1435). The extension of tasks of the European Aviation Safety Agency also aims to bridge existing gaps by including issues such as flight crew licensing, operations, airports and air traffic management (IP/05/1422).
Further Information on the Conference will be made available on the following webpage:
http://ec.europa.eu/transport/air_portal/2006_09_20_conference_en.htm"

Service Tax on Air Travel Impedimentary to Tourism?

The Civil Aviation Ministry in India has expressed concern over the impact of imposition of service tax on air travel on tour and travel business. In conjunction with the Tourism Ministry, Civil Aviation Ministry is intending to ask India's Finance Minister to reconsider the decision to impose service tax on air travel, which is now being charged on flying business class and first class on any airline.

(Originally posted by Michael Wukoschitz)

U.S. District Court Blocks Job Actions by Flight Attendants

United States District Court for the Southern District of New York overturned a bankruptcy court decision and granted Northwest Airlines' request for a preliminary injunction to prevent a threatened strike or work action by the company's flight attendants, represented by the Association of Flight Attendants.
For details see http://www.travelindustrydeals.com/news/875

(Originally posted by Michael Wukoschitz)

Government Imposes New Visa Regulations for Tourists

Thai government on Friday announced new visa regulations for tourists limiting the foreign visitors to a maximum stay of 90 days each every six months in order to ease social problems and crime in the country. For details see http://www.travelindustryreview.com/news/3059

(Originally posted by Michael Wukoschitz)

Tourists to sign up for values?

Australian lawmakers are in a heated debate over a proposal that would require visitors to Australia to sign an 'Australian values' pledge before being granted a visa to enter the country, according to published reports. "It's wrong to expect tourists to sign up to a country s values for a visit," said Australian Prime Minister John Howard. Prime Minister Howard was replying to proposals by opposition leader Kim Beazley, who had proposed visa reforms to include a section for people to sign up to Australian values, laws and institutions of democracy (http://travelwirenews.com/eTN/14SEPT2006.htm).

(Originally posted by Michael Wukoschitz)

Final Call - The Anthony G. Marshall Award (USA)

From HospitalityLawyer.com, I've just recieved this information request:

"HOUSTON - The nominations are winding down. Thank you for the tremendous response thus far, though there is still time left to recognize general counsel and private attorneys for the 2007 Anthony G. Marshall Award. One deserving person who has made a significant impact in the hospitality legal, safety or security arenas will be recognized at The 5th Annual Hospitality Law Conference, February 8th and 9th, 2007 in Houston, Texas.
The Hospitality Law Conference brings together over 350 general counsel, private attorneys, hospitality executives and industry experts from across the nation. The award, given in recognition of pioneering and lasting contributions to the fields of hospitality law, safety or security, was first given to Anthony G. Marshall, a renowned educator, author, speaker and columnist, at the 2005 conference. Banks Brown, a partner in the firm of McDermott, Will & Emery, was the honored recipient in 2006.
'We honor Anthony Marshall for his pioneering and continuing contributions to the field of hospitality law. He was the first to define reasonable care in a way that the average hotel manager, who is not a lawyer, could understand,' states Stephen Barth, founder of HospitalityLaw.com.
To nominate an individual for this prestigious honor, please submit by September 21st, 2006

• Nominee
• Brief biography of nominee
• Contact information of submitter & nominee

HospitalityLawyer.com is an efficient, cost-effective way for law firms, litigation support businesses and vendors of safety and security products to reach a large audience of hospitality industry decision makers; providing the access to build relationships and share knowledge with other experts in the field.

To submit a nomination, please contact Jeanie Gibbs at 713-963-8800, or email her at jeanie@hospitalitylawyer.com"

"How to fight terrorism and crime more effectively and enhance protection for citizens? The Commission adopts a green paper on detection technologies"

As stated by the EU Press Room, "The Commission has adopted a Green Paper on detection technologies for law enforcement, customs and other security authorities to further enhance the interaction between public and private sectors and help Member States acquire the best tools available at the lowest possible cost.
'Recent events in the UK have further underlined that detection devices must be continuously improved in order to reflect the ever changing threat posed by terrorists and criminals and to ensure that people are able to travel safely. Modern detection technologies have therefore an important role to play in the fight against crime and terrorism', said Vice-President Franco Frattini, Commissioner responsible for Justice, Freedom and Security.
Vice-President Frattini believes it is vital to establishing an effective public-private dialogue on security for better focussing investments on standardisation, research, certification and interoperability of detection systems and for transforming research results into useful and applicable tools. From this perspective the Vice-President attached great importance to a conference on 'Enhancing the Security of Explosives' that will be held in Brussels 9-10 October 2006, and which he will open formally. It will bring together the public and private sectors to tackle areas such as: components of explosives including liquids, detection, traceability and transport & storage.
The Green Paper aims at further stimulating the public-private partnership, in order to promote the development of an advanced market in certified detection technology which should lead to greater availability of products and services at lower cost, more effectiveness and better protection of privacy.
Detection technologies are increasingly used in the daily work of law enforcement authorities to fight terrorism and other forms of crime and play an important role in the daily lives of Europeans (boarding airplanes, taking a ferry, attending sports events, drinking water and food supply safety etc) as these technologies are used to protect our borders and check goods entering the territory of the European Union. Moreover they are essential for guarding private property and critical infrastructure.
The Green Paper is available at the website."

ACI/IATA Friction

Airports Council International is to Airports what IATA is to carriers. The two international trade associations are at odds over several issues regarding airport costs, responsibility for pre-boarding security costs, etc. Earlier this year, ACI issued a report that dealt in detail with what it calls the three weak links in pre-boarding security....processes, people and equipment. Improvements in all three areas will require money and airport/airline co-operation. However, in a July 2006 speech to The Aviation Club of the UK, ACI's Director General called for IATA to disengage from any role in such discussions, suggesting that IATA does not really want the principals to meet directly. ACI denounced IATA for engaging in a "phoney war", "distortions", "empty rhetoric" and "an anti-airports agenda". It called on IATA to become a partner, and not an adversary.

(Originally posted by Doug Crozier)

Supreme Court (OGH) partly dismissed injunction against no-frills airline

OGH had to decide whether low price advertising of a no-frills airline was misleading. Plaintiff (another airline) claimed that defendant was promoting low price ticktes on his website although these tickets were not avialable on each flight, sometimes not even over the period open for online-booking, or only available for the outward but not the return flight. Plaintiff therefore moved for interim injuncion to interdict such misleading advertising. OGH held that consumers concerned were well aware that flight seats are sold at different fares and categories and they therefore knew that the cheapest fares normally have to be booked several months in advance. However, OGH prohibited to advertise low fares on the website if, over the period bookable there, no flight could be booked at these fares at all (but at higher fares only) or only outward but no return flights were available for booking (OGH 20.04.2006, 4 Ob 265/05g)

(Originally posted by Michael Wukoschitz)

Supreme Court (BGH) affirmed liability for water slide accident

Supreme Court (BGH) affirmed liability for water slide accident and dismissed tour operator's appeal. Plaintiffs' eleven year old child was killed at a holiday resort in Greece when his arm got trapped in a water slide's suction pipe which was not protected by a grating. The water slide had been built up without permission of the competent authority. BGH held that even though the water slide was not mentioned in the tour operators brochure and tourists had to pay the hotel seperately for using it, it still had been part of his performance under the package tour contract. As the tour operator had failed to provide reasonable security and to check construction permit he was liable for the accident. Plaintiffs were granted a compensation of EUR 40.000 in total. (BGH 18.07.2006, X ZR 142/05; press release 105/2006).

(Originally posted by Michael Wukoschitz)

"The Commission opens a formal enquiry into restrictions to air services to Sardinia"

According to the EU Press Room, "The Commission has decided to open a formal investigation into the rules imposed by Italy on 2 May 2006 on 16 air routes between three Sardinian airports and important airports on the Italian mainland. The Commission has serious doubts as to the conformity of the Italian public service obligations with the aviation market rules and considers that they may close the market to Sardinia. Italy has to react within two months upon receiving the Commission's notice.
'This possible abuse threatens the principle of public services that I strongly support. The European Commission must ensure that public services are not used to close a profitable market from competition', said Jacques Barrot, Vice-President of the European Commission in charge of transport. 'This is what the European Commission must check in this case'."

This Press Release is available in full text.

European " Community code on short-stay visas"

As stated by the EU Press Room, "The European Commission has adopted today a proposal for a Regulation of the European Parliament and of the Council establishing a Community Code on Visas.
This proposal incorporates all legal instruments governing decisions in relation to the conditions and procedures for issuing visas into one Code on Visas. This contributes to enhance transparency and to clarify the existing rules, increases the harmonisation of procedures and strengthens legal certainty and procedural guarantees.
The proposal is part of the objectives of the Hague programme to facilitating legitimate travel and to tackle illegal immigration through further harmonisation of national legislation and handling practices at local consular missions."

This Press Release is available in full text.

European "Cooperation agreement with the USA on modernising air traffic management"

According to the EU Press Room, "Vice-President Jacques Barrot, the Commissioner responsible for transport, and Marion C. Blakey of the US Federal Aviation Administration (FAA), recently signed a cooperation agreement that will ensure coordination between their respective programmes for the modernisation of air traffic control, SESAR on the European side, and NGATS ('Next Generation Air Transport System') on the American side.
'We must have compatible technologies and standards between Europe and the United States. This is obviously a question of good economic sense but also a safety issue: you cannot ask an aircraft to change over its equipment in the middle of the Atlantic depending on whether it is being controlled by the USA or Europe', said Jacques Barrot. 'With this agreement, we will be sure that the technological choices made on the two sides of the Atlantic are coordinated for the benefit of the aviation industry'.
'As FAA moves forward its aggressive air traffic modernization efforts, it’s vital that we coordinate with our global partners,' said Federal Aviation Administration (FAA) Administrator Marion C. Blakey. 'This memorandum provides the framework for a more effective, performance-based air transportation system between the United States and Europe.
'As FAA moves forward its aggressive air traffic modernization efforts, it’s vital that we coordinate with our global partners,' said Federal Aviation Administration (FAA) Administrator Marion C. Blakey. 'This memorandum provides the framework for a more effective, performance-based air transportation system between the United States and Europe.'
SESAR (Single European Sky ATM Research Programme) is currently in its definition phase which has been entrusted to a consortium of 30 companies. On 9 June 2006 the Council of Ministers adopted general guidelines for the next phase of SESAR, the 'development phase', during which all the new technologies and systems will be constructed. Ministers approved the principle of creating a 'SESAR Joint Undertaking' which will be responsible for managing the development phase.

The cooperation agreement signed by the Commission and the FAA at the Farnborough airshow will not only make it possible to put in place the mechanisms for coordinating the two programmes but also includes a reciprocity clause that will allow European industry to participate in the American programme and American industry to participate in SESAR.

For more information, see:
- 'MEMO' SESAR :
http://ec.europa.eu/transport/air/single_sky/sesame/doc/2005_11_memo_sesar_fr.pdf

- Air Transport
http://ec.europa.eu/transport/air/single_sky/sesame/index_en.htm"

DG SANCO publishes industry questionnaire on timeshare

The questionnaire is designed to collect the views of industry stakeholders on the administrative costs of current legislation, as well as the impacts of possible forms of future legislation in the field of timeshare. The aim of DG SANCO in distributing the questionnaire is to elicit a large range of industry views on the topics asked, and use the responses received as evidence in the impact assessment, which will accompany a possible proposal to revise the directive. The questionaire is available here Submissions to sanco-b2@ec.europa.eu are welcome by 11 September 2006.


(Originally posted by Michael Wukoschitz)

Union workers threaten with airport strike

Union workers are threatening with strike action at the country's national airport on 14th July, demanding airport management offer more overtime pay and better working schedules in new contract talks.

(Originally posted by Michael Wukoschitz)

"Interoperability of European air traffic management systems: towards a Single European Sky"

As stated by the EU Press Room, "The European Commission has adopted two Regulations concerning the interoperability of European air traffic management systems. The two actions aim at modernising air traffic management systems.
Vice-President Jacques Barrot, Commissioner in charge of Transport said: 'These legal instruments are milestones in the implementation of the Single Sky, as they establish clear interoperability requirements for the systems used by service providers to run their business to high safety and efficiency standards; for civil and military airspace users to make best use of congested skies, and for the air traffic controllers who handle over 27,000 flights a day.'
The 'co-ordination and transfer' Regulation establishes the requirements for automatic systems for the exchange of flight data that notify, co-ordinate and transfer flights between air traffic control units. The aim is to ensure a high level of safety and efficiency of the systems located in the same or in different Member States.
This regulation also applies to flight data exchange systems supporting the co-ordination procedures between air traffic services units and controlling military units, in accordance with the 'flexible use of airspace' Regulation.
The ‘flight plans’ Regulation sets out the procedural requirements for flight plans in the pre-flight phase. The aim is to ensure that all parties involved in submitting, modifying, accepting and distributing flight plans (i.e. aircraft operators, pilots and air traffic service units) will have the same flight plan before take off. It defines the obligations of a centralised flight planning processing and distribution service, provided through the Integrated Initial Flight Plan Processing System (IFPS), established under the authority of Eurocontrol.
The Regulation also defines the obligations in the case of flights entering European airspace without a flight plan.
Further Information on the single European sky is available on:
http://ec.europa.eu/transport/air/single_sky/index_en.htm"

"Transfer of passenger name records (PNR): The Commission adopts two initiatives to comply with the Ruling of the ECJ"

According to the EU Press Room, "The European Commission adopted today two initiatives to put a legally sound framework in place for the transfer of PNR data to the United States. These initiatives are the first European answers to correct the legal basis for the Agreement with the US that was struck down by the European Court of Justice on 30 May 2006. The Court ruled that the Article 95 EC-Treaty was not an appropriate legal basis for the transfer of PNR data which are essentially aiming to ensure public security and activities by public authorities in areas of criminal law.
As the Agreement with the United-States remains in force under international law for a period of 90 days after it is denounced by either Party, the Commission recommends to the Council to terminate the Agreement with the US before the end of this month.
At the same time the Commission asks the Council for an authorisation to open negotiations for an Agreement with the United States of America on the use of PNR data to prevent and combat terrorism and transnational crime, including organised crime."

This Press Release is available in full text.

"Who Takes the Haircut When a Carrier Fails?"

When Canada 3000 ("C3") failed in late 2001, it owed CDN$34m. to various Canadian Airport Authorities and to NAV Canada ("Authorities"). Its planes were leased from a variety of legal titleholders ("Owners"). The Authorities exercised statutory powers to seize the C3 aircraft on account of the debts. The Owners went to Court to recover "their" planes. The Authorities sued the Owners, contending they were jointly and severally liable with C3 for the debts. The Supreme Court ruled on June 9 that: a) The Owners were not jointly and severally liable for the debts; b) The Authorities' rights take priority and they CAN look to the aircraft (or the security that was posted to allow for their release) to satisfy the debts. The Court found the Owners to be sophisticated business people quite able to assess (and bear) risk. Conversely, the Authorities are obliged by law to provide services to all carriers, regardless of their solvency.
See http://scc.lexum.umontreal.ca/en/2006/2006scc24/2006scc24.html

(Originally posted by Doug Crozier)

The Court annuls Council decision concerning transfer of personal data to U.S. authorities

Following the terrorist attacks of 11 September 2001, the United States passed legislation providing that air carriers operating flights to, from or across United States territory have to provide the United States authorities with electronic access to the data contained in their reservation and departure control systems, called ‘Passenger Name Records’ (PNR). Following negotiations with U.S. authorities the Commission adopted, on 14 May 2004, a decision (the decision on adequacy) finding that the United States Bureau of Customs and Border Protection (CBP) ensures an adequate level of protection for PNR data transferred from the Community. On 17 May 2004, the Council adopted a decision approving the conclusion of an agreement between the European Community and the United States on the processing and transfer of PNR data by air carriers. The Court has now annulled both decisions. (Press relase 46/06 of European Court of Justice,
http://curia.eu.int/en/actu/communiques/cp06/aff/cp060046en.pdf)

(Originally posted by Michael Wukoschitz)

House of Lords dismissed DVT Group Action

Claimants (or their relatives) had been passengers on international flights with the defendant carriers. In each case a DVT had resulted in serious injury or death. It was assumed that DVT was caused by the flight, defendants had known about the rsik of DVT and failed to warn of such rsik or advise passengers how to avoid or minimize it. The House of Lords unanimously found that, where a passenger suffered DVT on a flight during which nothing out of the ordinary had occurred, this did not amount to an accident capable of founding recovery under Article 17 of the Warsaw Convention as the term "accident" denoted an event or occurrence having a particular quality or characteristic. For the purposes of Article 17, it was the cause of the harm which constituted the accident, not the harm itself. These requirements ruled out Article 17 recovery in DVT cases where no more can be said than that the cramped seating arrangements in the aircraft were a causative link in the onset of the DVT. Not warning of the risk and not advising passengers of precautions which might be taken to minimize the risk were non-events which could not properly be described as accidents.

(Originally posted by Michael Wukoschitz)

Commission proposes new EU plan to halt biodiversity loss

The European Commission adopted a Communication which sets out an ambitious policy approach to halting the loss of biodiversity by 2010. In particular, it provides an EU Action Plan which proposed concrete measures and outlines the responsibilities of EU institutions and Member States, respectively. It also specifies indicators to monitor progress, and a timetable for evaluations. It spells out what needs to be done to halt biodiversity loss in the EU and to meet the international commitments to reduce biodiversity worldwide. It furthermore creates an advisory mechanism to help decision-makers make better use of existing knowledge. (Press release IP/06/667 of 22 May 2006)

(Originally posted by Michael Wukoschitz)

Hawaii Tourism Authority Releases Resident Sentiments Survey Results

As long-term trend the report noted a declining belief that tourism has been “mostly good for you and your family,” although the shift has been more to perceptions of “mixed” than to “mostly bad” impacts. The survey found widespread appreciation of positive economic impacts but more questions about social and environmental impacts. For the first time, a definite majority has agreed that “this island is being run for tourists at the expense of local people.” Because past surveys have shown positive feelings towards visitors, the analysis suggests this agreement may reflect frustration over the failure of the infrastructure to keep pace with growth. The full report can be downloaded at http://www.hawaii.gov/tourism.

(Originally posted by Michael Wukoschitz)

New standard signalling for trains

The Commission has adopted Technical Specifications for Interoperability for control/command and signalling on the conventional trans-European railway network. At the moment, more than twenty different signalling and speed control systems are used in Europe, which means that most international passenger and goods trains still have to stop at the border station to change locomotive. The adopted Decision will allow these incompatible systems to be gradually replaced by a single system known by its abbreviation ERTMS (press release IP/06/404 of European Comission, see here.

(Originally posted by Michael Wukoschitz)

Aviation blacklist published

The EU Commission's Aviation Blacklist has been published in the Official Journal 24 March 2006 (see http://europa.eu.int/comm/transport/air/safety/doc/flywell/2006_03_22_flywell_list_en.pdf) The publication of the list will allow passengers to make informed choices even when they travel outside the EU, in countries where these flight bans do not apply. The preparation and finalisation of the list is the result of successful co-operation between the Commission, the Member States and the European Parliament. The Commission and the “Air Safety” Committee will continue to monitor airlines and national civil aviation authorities to ensure their adherence to internationally-agreed air safety standards. It will continue to address new threats to European air safety by updating the list when necessary, as well as recognise the progress made by airlines on the list, in order to ensure their removal once their safety deficiencies have been rectified.

(Originally posted by Michael Wukoschitz)

"European sky protected against unsafe airlines"

As stated by the EU Press Room, "The European Commission has today adopted the first EU list of airlines which are banned in the European Union. This black list of unsafe airlines will now be published on the Commission’s website. The black list has been compiled on the basis of national contributions and after an in-depth analysis with Member State experts. The list consists of 92 companies which face a complete ban and 3 companies which face operational restrictions. From now on the principle will apply that companies banned in one Member State are banned in the whole EU."

This Press Release is available in full text.

Commission tables new strategy to boost tourism in EU

The main elements of the new policy:

1. More policy-coordination: to make sure that policy initiatives affecting tourism do not hamper the competitiveness of the sector. Member States and tourism stakeholders will be regularly consulted, as for example, on the forthcoming Green Paper on Maritime Affairs covering coastal and marine tourism.
2. Improved use of available European financial instruments: Tourism will continue to benefit greatly from the financial support offered by the various European financial instruments .
3. “A European Agenda 21 for Tourism” to promote tourism sustainability: The Commission will present a proposal for an Agenda 21 , by 2007, based on input from the Tourism Sustainability Group, composed of the tourism stakeholders.
4. Better regulation: Tourism-related legislation will be part of the Better Regulation process (see Memo 05/340).
5. Enhancing the understanding of the importance of tourism by providing all decision-makers with high quality data.
6. Better promotion of European destinations: Globalisation has opened up new opportunities to attract tourists from new markets (such as China, Russia and India) able to afford high value vacations.
7. Improving the visibility of tourism: The Commission will continue to work in close partnership with all involved actors to promote the visibility of this important industry through events organised by the EU Presidencies and the Annual European Tourism Forum.
   

Press release IP/06/344 of 2006-03-21; see it here.

No subsequent review of decisions contrary to Community Law

In judgement C-234/04 of 16th March 2006 European Court of Justice ruled that a national court does not have an obligation under EC law to re-open and set aside a judicial decision which has become final, even if that decsision turns out to be contrary to Community Law.

(Originally posted by Michael Wukoschitz)

Northumbria University - Sixth International Travel and Tourism: Policy, Law and Management Conference

Copthorne Hotel, Quayside, Newcastle upon Tyne, England 17th - 19th May 2006

The Travel Industry has had a turbulent year, coping with not only the Tsunami disaster, but also what seemed to be a never ending hurricane season in Florida, the Carribean and Mexico. While all this was happening, the legislators, the regulators, the lawyers and the courts have all been busy. The ATOL scheme - the cornerstone of consumer protection in the industry, is about to undergo a radical review. The High Court has pronounced on the fundamental issue of 'What is a package?'. The EU and the US Supreme Court have had important things to say about disability discrimination in the travel industry, and the EU has brought forth more controversial legislation in the form of the new Denied Boarding, Delay and Cancellation Regulation.
All these topics are of vital importance to the travel industry, to policy makers and to travel lawyers and will be discussed at length in this, the sixth conference in this series hosted jointly by Northumbria University and Nova Southeastern University.
As usual, our prestigious panel of international speakers has been given time to debate the topics at length. The purpose is to provide delegates not only with an in-depth approach to the issues but also for them to be able to enter into a dialogue with speakers.
Additionally, the social programme, the lunches and the conference dinner will give delegates the chance to converse with each other and mingle with the speakers in a more relaxed environment.
Please download the conference brochure, which gives further details on the programme, social events and also a booking form.
To find out more about what the region has to offer in terms of accommodation, events and tourist attractions, please visit the Northumbria Tourist Board's website.

Canadian Transportation Agency and check-in times

In a January 31, 2006 decision, the Canadian Transportation Agency ruled on the efficacy of a carrier's rules regarding check-in times and gate appearance times. It decided that Air Canada: a) did not have the right to deny boarding to passengers who arrived after the carrier's "recommended" target of checking in at least 60 minutes prior to departure, but b) would have had the right to deny boarding to a passenger who did not comply with the carrier's rule that he "must" be at the gate at least 25 minutes prior to flight. The decision can be found at
http://www.cta-otc.gc.ca/rulings-decisions/decisions/2006/A/C/54-C-A-2006_e.html.
Shortly after the decision was released, news coverage of it caused the CTA concern that its ruling had been interpreted as meaning that check-in times need not be honoured. As a result, it issued a clarifying Press Release, which can be found at
http://www.cta-otc.gc.ca/media/communique/2006/060203_e.html

(Originally posted by Doug Crozier)

Authorisation to shoot down aircrafts void

German Federal Contitutional Curt held that § 14.3 of the German Aviation Security Act (Luftsicherheitsgesetz – LuftSiG), which authorised armed forces to shoot down aircrafts intended to be used as weapons against human lives, was incompatible with the Basic Law and hence void. This was decided by the First Senate of the Court in its judgment 1 BvR 357/05 of 15 February 2006. The Federal Constitutional Court held that the Federation lacks legislative competence to issue such regulation in the first place. According to the Court, Article 35.2 sentence 2 and 35.3 sentence 1 of the Basic Law (Grundgesetz – GG), which regulates the employment of the armed forces for the control of natural disasters or in the case of especially grave accidents, does not permit the Federation to order missions of the armed forces with specifically military weapons. Moreover, § 14.3 of the Aviation Security Act is incompatible with the fundamental right to life and with the guarantee of human dignity to the extent that the use of armed force affects persons on board the aircraft who are not participants in the crime. By the state’s using their killing as a means to save others, they are treated as mere objects, which denies them the value that is due to a human being for his or her own sake (Press release no. 11/2006 - for full text of judgement see
http://www.bverfg.de/entscheidungen/rs20060215_1bvr035705.html)

Airline Blacklist Regulation in force

By February 16 2006 each EU member state will have to communicate to the commission all air carriers that are subject to an operating ban in its territory. Within one month the commission will then decide on the imposition of an operating ban throughout the EU and establish a joint list. At least every three months, the commission should consider whether the list needs to be updated. For this reason, member states and the European Aviation Safety Agency should communicate all relevant information to the commission. The list will be published on the Internet and in the Official Journal. Air carriers, tour operators and ticket sellers), national civil aviation authorities, the European Aviation Safety Agency and all European airports should bring the list to the attention of passengers. Furthermore the regulation gives passengers a right to be informed of the identity of the operating air carrier at the time of reservation and of any subsequent change. Passengers will have a right to reimbursement or re-routing from their air carriage contractor if their flight is operated by a listed carrier. The new regulation will apply to all airlines, including non-EU airlines where the carriage started in the European Union, and irrespective of whether the flight in question departed from an EU airport. The provisions relating to information of passengers will come into force July 16th 2006. Member states have to ensure compliance with these rules and to implement penalties for non-compliance. The regulation is published online here.

(Originally posted by Michael Wukoschitz)

Order against human rights campaigner to stay away from Frankfurt Airport confirmed

German Supreme Court (BGH) confirmed an order by Frankfurt Airport against a human rights campaigner to stay away from the airport premises. The campaigner had handed out flyers to passengers containing a protest against deportation of a foreigner and asking passengers to refuse to turn off their cell phones in order to impede take off. BGH held that the airport was entitled to prevent the campaigner from entering its premises as she caused disruption of the airport operation. The campaigner could not rely on her freedom of free speech as there was no obligation of the airport to tolerate interferences in air traffic (BGH 20.01.2006, V ZR 134/05).

(Originally posted by Michael Wukoschitz)

Regulation on Compensation and Assistance for Air Passengers is valid

The International Air Transport Association (IATA)and the European Low Fares Airline Association (ELFAA), which represents the interests of 10 low-fare airlines from nine European countries, contested the United Kingdom’s implementation of the regulation before the High Court of Justice of England and Wales. They raised before the High Court questions concerning the validity of the regulation, in particular of the provisions relating to cancellations, delay and compensation. The High Court referred those questions to the Court of Justice of the European Communities. With regard to the compatibility of the regulation with the Montreal Convention, the Court of Justice established that this international Convention, which regulates, amongst other things, the liability of air carriers in the event of delay, binds the Community. The Court held that the assistance and ‘care’ for passengers prescribed by the Community regulation in the event of a long delay to a flight constituted standardised and immediate compensatory measures. They were not among the measures whose institution is regulated by the Convention and cannot therefore be considered inconsistent with the Montreal Convention. With regard to compliance with the obligation to state reasons and observance of the principle of legal certainty, the Court stated that the provisions of the regulation that are at issue lay down precisely and clearly the obligations owed by air carriers, clearly disclose the essential objective pursued and are unambiguous. With regard to observance of the principle of proportionality, the Court held that the compensation which passengers may claim when they have been informed of a flight cancellation too late did not appear manifestly inappropriate to the objective pursued, given the existence of a ground for exemption upon which carriers may rely and of the conditions restricting the application of this obligation on carriers. With regard to observance of the principle of equal treatment, the Court held that the situation of undertakings operating in each of the different transport sectors was not comparable. Passengers whose flights are cancelled or subject to a long delay were in an objectively different situation from that of passengers on other means of transport in the event of incidents of the same nature. The Court concluded, therefore, that its examination had revealed no factor of such a kind as to affect the validity of the provisions of the regulation that are at issue. (PRESS RELEASE No 1/06 of the ECJ; see http://curia.eu.int/en/actu/communiques/cp06/aff/cp060001en.pdf)

(Originally posted by Michael Wukoschitz)

Switzerland joins European Aviation Safety Agency

Switzerland today officially became a member of the European Aviation Safety Agency. It is the fourth non-EU country to adopt European Union aviation safety legislation after Norway, Iceland and Liechtenstein. Patrick Goudou, Executive Director of the Agency, said: “I welcome Switzerland’s membership. It is an important step towards a more integrated safety system in Europe and underlines the key role of the Agency in this system”. The four non-EU countries are represented in the Agency’s Management Board and nationals of these countries are eligible to work for the Agency.
Source: EASA-Press release 2006-11-30

(Originally posted by Michael Wukoschitz)

Tsunami Recovery Program

Four international organisations have given the green light to a natural restoration of the coastal areas in Asia. The goal is to rehabilitate the ecosystems in these areas and, as a result, to guarantee the local population income from natural resources and a safe living environment. The project was developed in response to the tsunami that hit the region on 26 December 2004. In places where mangroves, coastal forests and coral reefs were still intact, the effects were less disastrous. Through this project, the organisations want to work with governments and the local population to achieve sound coastal development. For details see
http://www.wetlands.org/greencoast/en/news.aspx?id=f634f6f1-27d3-43ae-8f9f-9b8435fa88d8

(Originally posted by Michael Wukoschitz)

Assessment of Best practices in Fairgrounds and Amusement Parks in relation to safety of Consumers

The Directorate General Health and Consumer Protection has commissioned Risk & Policy Analysts to undertake an assessment of the best practices for consumer safety in fairgrounds and amusement parks, as during the last 20 years, there has been a constant growth in large amusement parks with ever more extreme rides and it is estimated that there are numerous accidents leading to approx. 19 000 injuries per year most of which involve children (under 15). The Analysts inter alia recommend the establishment of a multi-stakeholder group (involving regulators, industry and consumers) to discuss how measures (particularly relating to staff training and provision of safety information) could be developed and applied across the EU-25 member states. For details see
http://europa.eu.int/comm/consumers/cons_safe/serv_safe/reports/amusement_parks_en.htm

(Originally posted by Michael Wukoschitz)

Forum Non Conveniens-Doctrine inconsistant with Brussels Convention

Mr Owusu, a British national domiciled in the United Kingdom, suffered a very serious accident during a holiday in Jamaica. He walked into the sea, and when the water was up to his waist he dived in, struck his head against a submerged sand bank and sustained a fracture of his fifth cervical vertebra which rendered him tetraplegic. Following that accident, he brought an action in the United Kingdom for breach of contract against Mr Jackson, who is also domiciled in that State. Mr Jackson had let to Mr Owusu a holiday villa in Mammee Bay (Jamaica). Mr Owusu claims that the contract, which provided that he would have access to a private beach, contained an implied term that the beach would be reasonably safe or free from hidden dangers. Mr Owusu also brought an action in tort in the United Kingdom against several Jamaican companies, which were involved in access to or control and upkeep of the beach. The Court of Appeal (England and Wales) stated that, in this case, the competing jurisdictions were a Contracting State and a non-Contracting State. The question of the application of forum non conveniens in favour of the courts of a non-Contracting State, when one of the defendants is domiciled in a Contracting State, was not a matter on which the Court of Justice had ever given a ruling. ECJ held: Nothing in the wording of Article 2 of the Brussels Convention suggested that the application of the general rule of jurisdiction laid down by that article solely on the basis of the defendant’s domicile in a Contracting State was subject to the condition that there should be a legal relationship involving a number of Contracting States. for the jurisdiction rules of the Brussels Convention to apply at all the existence of an international element is required It must be observed, first, that Article 2 of the Brussels Convention is mandatory in nature and that, according to its terms, there can be no derogation from the principle it lays down except in the cases expressly provided for by the Convention. It is common ground that no exception on the basis of the forum non conveniens doctrine was provided for by the authors of the Convention, although the question was discussed. Respect for the principle of legal certainty, which is one of the objectives of the Brussels Convention would not be fully guaranteed if the court having jurisdiction under the Convention had to be allowed to apply the forum non conveniens doctrine. (ECJ 01.03.2005, C-281/02).

(Originally posted by Michael Wukoschitz)

No legal Basis for Transfer of Data from Airline Passenger Name Records to US Authorities?

In his opinion of 22 November 2005 (Cases C-317, 318/04) European Advocate General Léger proposed anullment of Commission and Council decisions on transfer to the American authorities of personal information concerning air passengers. Following the terrorist attacks of 11 September 2001, the United States adopted legislation to require airlines carrying passengers to, from or across United States territory to give the American authorities electronic access to the data contained in their Passenger Name Records. After negotiations with US authorities the Commission adopted a decision (the adequacy decision), holding that the US Bureau of Customs and Border Protection (CBP) offered a sufficient level of protection for personal data transferred from the Community whereas the Council adopted a decision approving the conclusion of an agreement between the European Community and the United States on the transfer of data from Passenger Name Records by airlines. Both decisions were challenged by the European Parliament before the European Court of Justice (ECJ). In his opinion the Advocate General concluded that the adequacy decision infringed the underlying measure, namely Directive 95/46, and proposed to annul that decision. Concerning the Council’s decision he considerd that Article 95 EC which concerns the adoption of measures for approximating the legal, regulatory and administrative provisions of Member States which have as their object the establishment and functioning of the internal market, did not constitute an appropriate legal basis and proposed that the Court should annul that decision as well. Although Opinions of the Advocate General are not binding, ECJ judgements at a high percentage follow these proposals.

(Originally posted by Michael Wukoschitz)

New Consumer's Code

It has been approved the Code of the Consumption, a complex job, by the precious contribution of the Commission of study presided from prof. Guido Alpa and other experts of the matter, with the collaboration of the mainly representative consumer’s associations. With the decree legislative n. 206 of the 6 september 2005 (published in italian Official Gazzette G.U. n. 235 of 8-10-2005 – S.O. n.162) has been reordered and simplified the norm on the protection of the consumers, in coordination with the principles and the addresses of the law n. 229/2003, in accordance of the obligation of semplification ordered by comunitarian law. The purpose of the code is to favor the information and the protection of the consumer, with the assurance of the correctness of the processes negotiation. The code also defines the rights and the interests of the consumers and the customers, the protection system in national and local center and the class action. There are also some dispositions in competition matter, transparency and information in the market and in the quality of the products and the services and about the liability of the producer. Regarding tourism law, it has to point out that from the date of entrance in vigor of the present code the decree legislative 17 march 1995, n. 111 (in accomplishment of the directive 90/314/CEE, concerning the travels, the vacations and the circuits "all comprising") is repealed.

(Originally posted by Gianluca Rossoni)

Kaprun-Accident: Sentence of Acquittal confirmed

In November 2000 155 people - mostly tourists who went for skiing - died when a cablecar at the Kaprun Glacier burned down. The fire was caused by a defective radiant heater in one of the carriages. In February 2004 all of the accused (including directors of the cablecar company, the company which produced the cablecar and official experts who were responsible for the operating permit)were found not guilty because a danger of a fire had not been forseeable. Court of Appeal (Oberlandesgericht Linz) now dismissed the appeal filed by public prosecutor who blamed the judgement for being remote from every day life. However, with the decision of the Court of Appeal the acquittals have now become final.

(Originally posted by Michael Wukoschitz)

Airline black list?

Following the recent aircraft crashes EU-Commission is considering to publish a black list of those airlines which lost their flight permission into one of the member states in the internet . According to British newspaper "The Guardian", traffic commissioner Jacques Barrot would prefer to activate the website as early as October 2005, but final decision may take until the end of the year.

(Originally posted by Michael Wukoschitz)

EU-Parliament voted against transfer of flight passenger data to Canda

The vote was meant as a protest against the fact that EU-Council and Commission are still refusing to grant the Parliament any right of codetermination in security issues. A similiar data transfer agreement with the U.S. has been challenged by the Parliament before the European Court of Justice.The judgement is expected by the end of the year.

(Originally posted by Michael Wukoschitz)

No tour operator liability for an accident

No tour operator liability for an accident of a two year old boy who slipped through the banisters of the hotel stairs: in a recent decision Austria's Supreme Court confirmed judgements of lower instance courts who both had dismissed a claim for compensation for pain and suffering based on the allegation that the tour operator had not provided sufficient security for children. Supreme court held that an advertisement emphasising favorable family rates would not justify increased expectations in regard to child security. Contractual safeguard obligations must not be overdrawn. Constructional condition of the accomodation basically only had to comply with local standards. Regular inspections of this compliance and necessary adjustments to possibly increased local security standards would exempt tour operator from liability (OGH 07.06.2005, 5 Ob 108/05a).

(Originally posted by Michael Wukoschitz)

Passengers' Rights Survey

A recently published survey carried out by the EU Commission showed that almost four out of ten citizens are not aware that they conclude a conctract with a transport company when purchasing a ticket and a majority doesn't know about the rights and obligations contained in such contract. The most used means of transport, namely local urban transport and inter-city rail transport have a more negative image whereas air transport has a posive image among most Europeans. However, despite the recent reinforcement of air passengers' rights in the EU, only one third of the citizens are aware of these rights (Special Eurobaromater 228 / Wave 63.2).

(Originally posted by Michael Wukoschitz)

Brisbane World's best Airport

IATA has chosen Brisbane Airport as world's best airport and bestowed the "Eagle Award". The airport is expecting 15 million passengers this year.

(Originally posted by Michael Wukoschitz)

Visitors Delayed

According to documents recently released, some visitors to the U.S. were delayed by immigration officers because the fingerprints in their passports were mismatched or smudged. However, Homeland Security Department pointed out that only a tiny fraction of visitors was affected by such problems.

(Originally posted by Michael Wukoschitz)

Liability for an accident at a water slide

Liability for an accident at a water slide was repudiated by Austria's Supreme Court (OGH): a swimming baths offering a water slide was not obliged to provide permanent supervision by its staff or video cameras. A stoplight system regulating access to the slide and sliding instructions displayed directly at the entrance of the slide were sufficent security measures. Safeguard obligations of a swimming baths must not be overdrawn. The claim for compensation filed by a boy who was hurt at an accident which occured when a group of other boys were blocking the lower part of the water slide was therefore dismissed (OGH 23.11.2004, 10 Ob 26/04b).

(Originally posted by Michael Wukoschitz)

Seaquake alert via text message

A German company has developed a system to forewarn tourists against seaquakes via text message to their cell phones. The system is based on data provided by international seismological institutes.

(Originally posted by Michael Wukoschitz)

Machine-readable passport required

From 26. June 2005 all foreign travellers to USA who don't need visa must produce machine-readable passports, otherwise they may be rejected by immigration officers.

(Originally posted by Michael Wukoschitz)

No right of withdrawal from car hire contracts

Interpreting Art. 3(2) of the European Directive 97/7/EC on the protection of consumers in respect of distance contracts, European Court of Justice in a recent preliminary judgement (easyCar UK Ltd v. Office of Fair Trading) held that the exemption made in regard to "provison of transport services" includes contracts for the provision of car hire services. Consumers therefore have no unrestricted right of withdrawal within a specific period after conclusion of contract, even if same was concluded as a "distance contract" via the internet (ECJ 2005-03-10, C-336/03)

(Originally posted by Michael Wukoschitz)

New Travel and Tourism Law Blog

Since last week, is On-line "Lex Turistica" http://lexturistica.blogspot.com/ a Travel and Tourism Law Blog built by Portuguese Speaking Professors, from both Portugal and Brazil As far as we know it's the first Travel and Tourism Law Blog ever. All contributions are welcome!

IFTTA Argentina (Regional Organization)

Next April 7th. will take place in Buenos Aires the first meeting to establish IFTTA Argentina, a regional organization. In these meeting it will be elected the Board of Directors and will considerate the IFTTA ARGENTINA BY-LAWS accord the IFTTA BY-LAWS original. After these date we will give you the Members elected and other news.

(Originally posted by Juan Carlos Fairstein)

Lufthansa: New Check-In Machines

By the end of March 2005 Lufthansa will indroduce new check-in machines which will allow to scan passengers' passports. Due to legal obligations the Airline has to collect passengers' passport data for each flight to USA, Canada, Korea or Mexico. Up to now these data have beeen collected manually. The new machines will be a further step towards self-service by passengers.

(Originally posted by Michael Wukoschitz)

Remarable Boost in Tourism

Due to figures published by WTO this February, Central American states have achived an remarkable increase of Tourism. Espescially Panama substantially invested in touristic infrastructure and advertisment for its historical sites, beaches and national parks. Thus in 2004 number of tourists increased by about 20%.

(Originally posted by Michael Wukoschitz)

Ticket lost - still entitled to carriage?

"No compensation will be granted if tickets were stolen or lost ." Such provision used in the general condiditons of contract of a German coach tour company was held ineffective by Germany's Supreme Court: the provision was inappropriate as it would frustrate purpose of contract when ticket got lost, even though a register of passengers allowed bus driver to verify passgenger's right to carriage.(Press release 17/2005 by BGH/German Supreme Court)

(Originally posted by Michael Wukoschitz)

Increasing The Cases In Which Damages Resulting From Food Poisoning Are Recovered

There is an incresing number of Spanish cases in which restaurants are found liable by the Courts because of serving unsafe food. When a person becomes ill after ingesting contaminated food, he/she can be compensated for the damage. In some cases victims also receive a compensation for mental distress, particularly when foodborne illness occurs in a wedding banquet (e.g SAP Asturias, 14-10-2004, Sección 7ª, AC 20042040; SAP Álava, 14-5-2004, Sección 2ª, JUR 2004279526; SAP Granada, 2-2-2004, Sección 4ª, JUR 2004102397; SAP Burgos, 8-7-2003, Sección 2ª, JUR 200446581; SAP Salamanca, 19-6-2002 Sección Única, JUR 2002193204; SAP Murcia, 4ª 2-11-2001, JUR 200240201; SAP Las Palmas, 9-7-2001, Sección 3ª, JUR 200229831; SAP Burgos, 29-3-2001, Sección 2ª, JUR 2001141464)

(Originally posted by Josep M. Bech Serrat)

Railway Compensation Scheme

Austrian Federal Railways have introduced a new compensation scheme for railway delays. According to this scheme any delay exceeding 1 hour will entitle passengers to a refund of 20% of the payed fare. If the delay should lead into arrival after midnight, passengers can also claim for refund of taxi or accomodation fees up to EUR 80. However, this scheme falls behind expectations as EU commission had demanded a refund of 50% for delays exceeding 1 hour or even 100% for delays exceeding 2 hours.

(Originally posted by Michael Wukoschitz)

Book on U.S. passport law

My book, Krueger on United States Passport Law (2nd ed. 1997 & supps. 1999-2004), is available. Stephen Krueger dailidvpalau@yahoo.com.tw

(Originally posted by Stephen Krueger)

Law Office of Can & Partner

Law Office, working on the private law and commercial law fields, with an international quality. Our main office is in Ýzmir, however we cooperate with the law offices in Ýstanbul and Alanya. Our office was founded in 1993 by the At. At Law Nevin Ersavaþ We give since 11 years our consultations on several branches and importances to national , international companies. We also represent clients needing our legally support.

(Originally posted by Nevin Can Ersavas)

National Security and Data Protection

Since 5 March 2003, an agreement between the European Commission and United States Customs gives the USA online access to passenger name record (PNR) data of all Europe-based airline carriers for flights that go to, from or through the USA. European privacy protection groups are deeply concerned as airline companies disclose Passenger Name Record data to United States authorities without obtaining passengers' explicit consent. They have launched a campaign encouraging passengers to send complaint letters to airlines and national data protection authorities to claim back privacy rights (http://www.edri.org/)

(Originally posted by Michael Wukoschitz)

Security, Terrorism and Tourists

Since the beginning of March 2003 US immigration authorities are checking all tourists for radioactive material as there is increasing concern of new terrorist activities.

(Originally posted by Michael Wukoschitz)

Freedom of Tourism and Travel Services

Austria’s Administrative Court recently came up with a principle decision regarding freedom to provide services of couriers, escorting travel groups from other EU-countries. Administrative Court held, that such couriers are free to show and explain any national sights to their group, with the only reservation made in regard to museums or historical monuments, which require a specific knowledge of the guide, exceeding the proof of qualification required for tourist guides in general (VwGH 04 Sept.2002, 2000/04/0066)

(Originally posted by Michael Wukoschitz)

Unidroit Hotel Contracts

The Governing Council of Unidroit at its 80th Session has approved the issue of hotel contracts being put on its reserve list with a view to future work on it if resources are available. It now appears on the reserve list for the Unidroit Work Programme for 2002-2004.

(Originally posted by John Downes)

World Travel and Tourism Council: Forecast Growth in 2003

The WTTC released a series of reports on 8.11.02 predicting a strong forecast for the last quarter of 2002 and strong growth in 2003. “The relative strength in consumer spending in many countries compared with expectations earlier in the year has helped maintain personal Travel and Tourism spending”. Despite the Bali bombings and uncertainty caused by potential military action against Iraq the WTTC/Oxford Economic Forecasting reports a forecast of 4.1% real growth in 2003.

(Originally posted by John Downes)

Lockerbie: Compensation

UK families have treated, with some scepticism, claims by US lawyers that they have negotiated a new settlement for families of the victims of the Lockerbie bombing. The settlements are said to amount to £6.4m (€10.08m or $10.12m) per family. However, there have been previous claims of settlement but these have failed to materialize.

(Originally posted by John Downes)

Lockerbie: Appeal

Abdelbaset Megrahi has lodged an appeal to the European Court of Human Rights alleging breaches of his human rights in his trial by the Scottish High Court of Justiciary and in his imprisonment in Glasgow.

(Originally posted by John Downes)

Payment of Hotel Bill

In R v Vincent [2001] CA, V stayed for a week at one hotel and shortly afterwards he stayed for a month at another. In both cases he left without paying his bills. He told the court that he had told the owners of both hotels that he was waiting to receive some money and would then pay them. Thus, he believed that they had accepted the arrangement that he would make payment when he was able to do so. The Court of Appeal (Criminal Division) upheld an appeal that V was not guilty of an offence under Section 2 of the Theft Act. Although hotels normally required “on the spot payment”, that expectation did not apply where an agreement had been reached to pay later. Whether or not that agreement had been induced by deception, it did not amount to theft of services under the Theft Act.

(Originally posted by John Downes)

EU Commission Approves Passenger Vessel Subsidy

The Commission has approved a Finnish scheme providing a subsidy to passenger vessels. This permits a 97% reduction of withholding tax on the marine work income of European seafarers working on board Finnish passenger vessels. This allows Finland to align with similar measure in neighbouring countries.

(Originally posted by John Downes)

UK Scheme to aid Airlines

The EU Commission has approved an UK Scheme which compensates airlines for the costs incurred 11-15th September after the attacks in New York and Washington. Those are for costs occured as a result of flights cancelled or delayed by national authorities. The scheme applies to all UK airlines and is expected to cost £45m ($72m). A similar French scheme was approved in January.

(Originally posted by John Downes)

Airline Trade War

Loyola de Palacio, the EU Transport Commissioner, has put forward proposals to the Commission to hit state-aided airlines flying into the EU with penalties, including duties and landing right restrictions. Although it is stressed that this is not aimed at a particular country, it is viewed by some observers as retaliation against the USA, which provided $15bn in aid to carriers following September 11th. There have been complaints by EU airlines that this has been used as a means of unfair competition.

(Originally posted by John Downes)

September 11th - Flying School receives notice of Approval of Hijackers' Visas

The Huffman international Flying School, where two of the September 11th hyjackers trained, have just received letters from the INS (US Immigration Dept.) that their visa applications have been approved. The INS said that the original approval had been granted on 17 July and that the school had been notified in the summer. These letters were merely a "backup notification". They blamed a backlog of paperwork at their processing centre in Kentucky for the delay. The papers relate to Mohammed Atta and Marwan Al-Shehhi. Atta is believed to have been the ring-leader of the group. He, along with three others, seized American Airlines Flight 11 from Boston-Los Angeles and flew it into the North Tower of the World Trade Center. Al-Shehhi is believed to have piloted United Airlines Flight 75, also from Boston-Los Angeles, into the South Tower 17 minutes later.

(Originally posted by John Downes)

Demolition of Famous Hotel

Work has begun on the demolition of the Intourist Hotel, one of Moscow's most famous landmarks. It was erected in 1970 to cater for foreign tourists. It was notorious for its Cold War standards, with surly staff, buged hotel rooms and illegal money changers. It was also the setting for many spy novels. The hotel is no longer needed as there is a plethora of western style hotels in the city. The hotel will be mourned by few as it was a large concrete and glass monstrosity.

(Originally posted by John Downes)

Lockerbie Conviction Upheld

Abdelbaset ali Mohmed al-Megrahi, the Libyan man found guilty of the Lockerbie bombing, has lost his appeal against conviction. The High Court of Justiciary jailed him for life in January 2001 for the bombing of Pan Am Flight 103 over Lockerbie in December 1988. 270 people were killed, including all those on board and others in the small Scottish border town.

(Originally posted by John Downes)

Plan to Lure Tourists Back

Mike Watson, the Tourism Minister, has unveiled "The Tourism Framework for Action" in Oban, which aims to make Scotland a world-class tourism destination. The document is the outcome of a 5-month consultation excercise following the decline in tourist arrivals. Scotland lost £500m ($800m) last year, exacerbated by the aftermath of September 11th. Tourism employs 193,000 people in Scotland.

(Originally posted by John Downes)

Lufthansa's First Full Year Losses for a Decade

Lufthansa has suffered a pre-tax loss of 745m euros ($660m). Its operating profits plummeted from 1bn euros to 20m euros. It has announced that it will not be paying shareholders a dividend. The results follow the aftermath of September 11th, the economic downturn and a series of pilot strikes.

(Originally posted by John Downes)

Slump in Tourist Arrivals

Nepal has experienced a 10% decline in tourist arrivals in 1999, with a 30% decline in the important Indian market. Tourism is an important industry for the mountain kingdom and the principal source of foreign currency. The reasons given for the decline is the number of general strikes, including threatened strikes in the hotel sector. The highjacking of the Indian airlines plane at Kathmandu in 1999 also deterred some visitors.

(Originally posted by John Downes)

Bathing Water Directive

The Bathing Water Directive 1976 is to be reviewed. A key aim is to improve information available to the public. It will also bring in more robust standards. the new proposal is expected to be published in June or July 2001. See http://europa.eu.int/water/water-bathing/index_en.html

(Originally posted by John Downes)

Airlines Price Fixing to be Reviewed

The Commission issued a consultation paper on 8 February 2001 indicating that it intends to review the block exemption from EU Competition Rules given to airlines.This would affect the "passenger tariff conferences" held by IATA to deal with interlining agreements. The exemption will continue until June 2002 when the new policy should be announced. See
http://europa.eu.int/comm/competition/antitrust/others/#consultation_interlining_feb_2001

(Originally posted by John Downes)

Languages

A Eurobarometer survey (16000 people in EU interviewed) reveals that English is the most widely-spoken second language in the EU (41%). 53% have a second language. French is second in the league (19%), German (10%) and Spanish (7%). 2001 is European Year of Languages.

(Originally posted by John Downes)

IATA: Deep Vein Thrombosis and Air Travel

IATA Director General, Pierre J Jeanniot, stated in letters to the Vice President of the European Commissioner and Commissioner for Transport, Mme Loyola de Palacio and US Secretary of Transport, Mr Norman Mineta, "At the present time, there is no conclusive medical evidence supporting the alleged connection of deep vein thrombosis (DVT) with long distance travel. Nonetheless, a number of further studies are underway and IATA Members are very much aware of the need to minimise any potential risks". IATA is organising a worldwide conference on cabin health in Geneva 17-18 May 2001.

(Originally posted by John Downes)

STB Chief Stands Down

Lord Gordon, chairman of the Scottish Tourist Board, has stood down, following a troubled year for the Scttish tourism sector. The number of foreign visitors to Scotland fell by 11% in 1999. The First Minister of Scotland, Henry McLeish, commissioned PriceWaterhouseCoopers to undertake an independent review of the STB. The Report recommended a radical shakeup and a change of name to "visitscotland".

(Originally posted by John Downes)

Afghahistan: Statues of Budha Attacked

It has been reported that the Taleban have begun the demolition of two statues of the Budha, the largest rock hewn in the world. The statues date back to 2-5th centuries, when Afghanistan was an important centre of Budhism. The Taleban have condemned the statues as "idols" and an "insult to Islam". They have also begun to destroy statues in the country's museums. UNESCO chief, Koichiro Matsuura, has condemned these as acts of vandalism.

(Originally posted by John Downes)