The Victoria Falls World Heritage Site was proclaimed in 1989. When the governments of Zambia and Zimbabwe signed the agreement with UNESCO, they committed themselves to work together for the protection of the Victoria Falls and its surrounding area.
UNESCO required the governments to form a Joint Management Team and an Integrated Management Plan for the site. It also requested that certain issues were addressed. The report was first requested by UNESCO in 2002 and then again in 2006. Various deadlines have been passed and extensions given. The latest deadline of February 1, 2010 has again passed, and UNESCO has received no document.
The governments now are in a hurry to complete a document to be given to UNESCO on the Victoria Falls World Heritage Site. They want to take their last chance to submit the report before the 2010 session of the World Heritage Committee; all documents have to reach UNESCO by March 15.
Source: eTurboNews; find article here>>.
Monday, March 01, 2010
USA: Congress passes disputed Travel Promotion Act
The Senate voted 78 to 18 for the legislation, which sets up a nonprofit corporation for travel promotion. It now goes to President Barack Obama for signature.
The necessary money would come from a $10 fee levied on travelers from the 35 (mostly European) countries participating in a visa waiver program. The United States now requires people who don't need visas to register online at least 72 hours before travel and to renew their registration every two years. They would have to pay the new fee when they register. The European Union has protested against the new fee and has announced it would consider retaliatory stances if this new fee was put into place (see earlier post of Sep. 9, 2009).
Supporters denied that the new fee could discourage possible visitors, pointing out that many countries charge $25 to $50 in exit and entry fees and that $10 was insignificant compared to the average $130 cost of obtaining a visa.
Source: abc News; find article here>>.
The necessary money would come from a $10 fee levied on travelers from the 35 (mostly European) countries participating in a visa waiver program. The United States now requires people who don't need visas to register online at least 72 hours before travel and to renew their registration every two years. They would have to pay the new fee when they register. The European Union has protested against the new fee and has announced it would consider retaliatory stances if this new fee was put into place (see earlier post of Sep. 9, 2009).
Supporters denied that the new fee could discourage possible visitors, pointing out that many countries charge $25 to $50 in exit and entry fees and that $10 was insignificant compared to the average $130 cost of obtaining a visa.
Source: abc News; find article here>>.
Thursday, February 25, 2010
Brazil: Distribution of slots from Congonhas airport scheduled for trial this Thursday
The ministers of the Court of the Superior Court of Justice (STJ) are set on Thursday, March 25, the distribution by the National Civil Aviation Agency (ANAC) of the slots (spaces at the airport used by airlines to park / park aircraft) from Congonhas Airport (SP) will or not with the spaces in the Pantanal Linhas Aereas SA
ANAC rescheduled for the 1st of March, at 14h, in Brasilia, the public hearing for the distribution of 355 slots (time of takeoff and landing) that are not being used at the airport. The expectation of the regulatory agency is to include the redistribution of 61 slots that operated on the Pantanal Congonhas, which are of direct interest to TAM, in the process of acquisition of the company, the session was scheduled for February 10, after the postponement of the scheduled distribution, initially, to February 1.
Last December, the president of the STJ, Minister Cesar Rocha, guaranteed to make the distribution ANAC, suspending the decision of the 2nd Bankruptcy Court and Judicial Recoveries. That decision permitted the holding of judicial auction sale to the Isolated Productive Unit (IPI) of the Pantanal, whose plan of reorganization provides for the integration of the slots as intangible assets of the company.
Its release was scheduled for 1st of February but was postponed after the minister, based on enterprise resource - a special appeal [kind of action against all appropriate internal decision-person] - have determined that the regulatory agency to refrain from distributing the slots of the Pantanal.
The regulatory agency provided the information requested by the court in the last days 8 days. Two days later, the ANAC also brought special appeal, this time challenging the decision beneficial to the Pantanal. Minister Cesar Rocha Asfor will take your vote in both features to trial in the Special Session of the next 25 days.
Pending the decision from the Supreme Court on the right of ANAC include the redistribution of 61 slots that operated on the Pantanal Congonhas, which are of direct interest to TAM, in the process of acquisition of the company, the agency rescheduled for the 1st of March, the 14h, in Brasilia, the public hearing for the distribution of 355 slots (times of takeoff and landing) that are not being used at Congonhas Airport.
Reported to IFTTA by Ronaldo Armond
Wednesday, February 24, 2010
UNWTO: Statement on Madeira
UNWTO Secretary-General Taleb Rifai today issued the following statement on the events of Autonomous Region of Madeira:
“We are deeply saddened by the tragic events that struck Madeira Island last Saturday 20th February and have already expressed our full support ,as well as our commitment to help in any way considered, to the government of Portugal and to the regional government of Madeira.
The quick response action undertaken by the competent authorities at local and national levels, together with the support of the EU, have been instrumental in this catastrophe.
As for the tourism sector, according to the information provided by the regional government, the hotel industry of Madeira was not affected and maintains all operating conditions safely. Hotel establishments, in general, are operational and there were not reported any difficulties or problems. The Madeira International Airport is also operational.
I am confident that Madeira will continue to count on its solid tourism infrastructure and services which have made it the destination of excellence it is today.”
Source: UNWTO press release
Source: UNWTO press release
Tuesday, February 23, 2010
European Union: Workshop on the revision of the Package Travel Directive in April 2010
The European Commission will hold a full-day stakeholders' workshop on the revision of the Package Travel Directive (90/314/EEC) on 22 April 2010. The workshop will take place at the Albert Borschette Conference Centre in Brussels. It will primarily aim at hearing and collecting stakeholders' views on the impacts of identified policy options for a revision of the Directive.
Interested parties are invited to express their interest in participating at the workshop by 19 March 2010 sending an e-mail to sanco-b2@ec.europa.eu .For more information click here>>.
UNWTO: International Summit on Tourism, Sport and mega-Events to be held in South Africa
The United Nations World Tourism Organisation (UNWTO) in collaboration with the Ministry of Tourism in South Africa is organizing the International Summit on Tourism, Sport and Mega-events in Johannesburg, South Africa from 24 to 26 February 2010.
The Summit will provide a forum to consider the impact of mega events - particularly sport, culture, exhibitions and entertainment - from a tourism perspective. The Summit will be held parallel to the annual Meetings Africa hosted by South Africa Tourism.
More information available here>>.
The Summit will provide a forum to consider the impact of mega events - particularly sport, culture, exhibitions and entertainment - from a tourism perspective. The Summit will be held parallel to the annual Meetings Africa hosted by South Africa Tourism.
More information available here>>.
Friday, February 19, 2010
Airline Insolvency-Pasenger Rights
On the collapse of the Scottish airline, FlyGlobespan, previously reported, those customers who had booked a package holiday with the company were protected by the Civil Aviation Authority's Air Travel Organiser's Licensing scheme (ATOL). This enabled those abroad to continue with their holiday and arrangements were made to provide them with alternative flights home at the end of it. Those that had yet to travel were entitled to a refund.
Those who had booked a flight-only deal were not covered by the ATOL system, however. If they paid for the flight by credit card they could obtain a refund from the credit card company under Section 75 of the Consumer Credit Act 1974. This does not apply to charge cards (e.g. American Express, Diners etc.) or to debit cards but some of the companies that issue these do provide protection under their terms and conditions of issue. It did not matter whether the customer paid for the flight in total with a credit card: provided that even part of the payment was by credit card and that this amount was £100 or more then they were covered for a full refund.
There was some confusion in this case, however, as FlyGlobespan used the ATOL logo on their website leading to some travel agents and customers to think that all bookings, including flight-only were covered. The CAA stated that they were entitled to do this and that it was for the customer to read the terms and conditions to see which travel arrangements were and which were not included.
John
Those who had booked a flight-only deal were not covered by the ATOL system, however. If they paid for the flight by credit card they could obtain a refund from the credit card company under Section 75 of the Consumer Credit Act 1974. This does not apply to charge cards (e.g. American Express, Diners etc.) or to debit cards but some of the companies that issue these do provide protection under their terms and conditions of issue. It did not matter whether the customer paid for the flight in total with a credit card: provided that even part of the payment was by credit card and that this amount was £100 or more then they were covered for a full refund.
There was some confusion in this case, however, as FlyGlobespan used the ATOL logo on their website leading to some travel agents and customers to think that all bookings, including flight-only were covered. The CAA stated that they were entitled to do this and that it was for the customer to read the terms and conditions to see which travel arrangements were and which were not included.
John
Collapse of Scottish Airline
As previously reported, FlyGlobespan, Scotland's largest independent airline, based in Edinburgh, went into administration in December. Initially, it was thought that it had fallen victim to the economic downturn. However, despite the recession, airport passenger traffic has continued to grow at Edinburgh; the only major UK airport where this has been the case. Furthermore, air freight traffic grew by 135% in 2008. Edinburgh hotels have also had a good winter season.
It now appears that the collapse of the airline was due to cash flow problems created by the failure of E-Clear, the company that handled FlyGlobespan's credit card bookings, to hand over £35m (€40.23m/$54.75m) collected from the airline's customers. In my previous report I pointed out that E-Clear and similar companies delayed payments to airlines unril the passengers had taken their flights as an insurance against the airline's collapse. It now traspires that this was not the reason for E-Clear's failure to hand the money over. It appears that the money was being used to to meet financial obligations arising from the previous collapse of two other airlines.
E-Clear itself, has now gone into administration, after it failed to produce evidence that it still had the funds collected from FlyGlobespan's customers at a High Court hearing in England (where the company is based). A BBC investigation revealed that the company owes creditors approximately £100m (€114.94m/ $156.43m) but had only approximately £100,000 (€114,940/ $156,430) in its cash accounts. The BBC also reported that E-Clear had used £1.5m (€1.7235m/ $2.3465m) of its cash to prop up a tour operations business owned by E-Clear's CEO. That business has also gone into administration. The Independent newspaper has reported that the Serious Fraud Office is considering starting a formal investigation.
This whole debacle has raised the question of why the financial regulators had failed to prevent this. The Scottish Government are pressing the UK Government to investigate this.
John
It now appears that the collapse of the airline was due to cash flow problems created by the failure of E-Clear, the company that handled FlyGlobespan's credit card bookings, to hand over £35m (€40.23m/$54.75m) collected from the airline's customers. In my previous report I pointed out that E-Clear and similar companies delayed payments to airlines unril the passengers had taken their flights as an insurance against the airline's collapse. It now traspires that this was not the reason for E-Clear's failure to hand the money over. It appears that the money was being used to to meet financial obligations arising from the previous collapse of two other airlines.
E-Clear itself, has now gone into administration, after it failed to produce evidence that it still had the funds collected from FlyGlobespan's customers at a High Court hearing in England (where the company is based). A BBC investigation revealed that the company owes creditors approximately £100m (€114.94m/ $156.43m) but had only approximately £100,000 (€114,940/ $156,430) in its cash accounts. The BBC also reported that E-Clear had used £1.5m (€1.7235m/ $2.3465m) of its cash to prop up a tour operations business owned by E-Clear's CEO. That business has also gone into administration. The Independent newspaper has reported that the Serious Fraud Office is considering starting a formal investigation.
This whole debacle has raised the question of why the financial regulators had failed to prevent this. The Scottish Government are pressing the UK Government to investigate this.
John
Sturgeon v. Condor: German Supreme Court grants compensation to plaintiffs
Following the preliminary ruling of the ECJ in Case C-402/07 - Sturgeon v. Condor, German Supreme Court (BGH) in judgement Xa ZR 95/06 delivered Feb. 18. 2010, granted plaintiffs' claim for compensation. BGH saw no reason for another reference for preliminary ruling as requested by Condor: there were no doubts that Reg. (EC) 261/2004 was valid and compatible with the Montreal Convention. ECJ had made clear that the Regulation provides for compensation in cases of inordinate delay if interpreted according to the principle of equal treatment.
As Condor had failed to prove extraordinary circumstances decision had to made in favour of plaintiffs.
Source: BGH press release 40/2010 of Feb 19, 2010. Find full text in German here>>.
As Condor had failed to prove extraordinary circumstances decision had to made in favour of plaintiffs.
Source: BGH press release 40/2010 of Feb 19, 2010. Find full text in German here>>.
Thursday, February 18, 2010
Germany: Lufthansa facing a four-day strike of its pilots
German pilots’ union Vereinigung Cockpit has called on Lufthansa pilots to participate in a four-day strike from Feb. 22 to 25. Lufthansa said the decision was made despite willingness shown by the airline to reach a negotiated settlement. Vereingung Cockpit tries to explain their reasons in a passenger information sheet.
Lufthansa's German website provides a link to their passenger information ("Informationen zum angekündigten Pilotenstreik"); however there is no such link or information in the English version. The information provided in German claims that in case of a strike and resulting irregularities passenger care will rank first for Lufthansa. At the current stage they grant free re-booking to other Lufthansa flights subject to certain conditions and restrictions. In case of a strike they announce to allow free cancellation or re-routing.
There is no mentioning of compensation for cancelled flights according to Reg. 261/2004, though. Media report that Lufthansa intends to rely on "extraordinary circumstances". However, in C-549/07 - Wallentin-Hermann ECJ has taught us that the term "extraordinary circumstances" requires a narrow interpretation an that recital 14 of the Regulation did not mean that the events listed there themselves constitute extraordinary circumstances, but only that they may produce such circumstances. Even though "strike" is mentioned as a potential reason for extraordinary circumstances in recital 14 of the Regulation, thus there remains doubt whether a strike of the operating carrier's own staff can amount to this exoneration.
A new reference for preliminary ruling seems a likely consequence ...
Lufthansa's German website provides a link to their passenger information ("Informationen zum angekündigten Pilotenstreik"); however there is no such link or information in the English version. The information provided in German claims that in case of a strike and resulting irregularities passenger care will rank first for Lufthansa. At the current stage they grant free re-booking to other Lufthansa flights subject to certain conditions and restrictions. In case of a strike they announce to allow free cancellation or re-routing.
There is no mentioning of compensation for cancelled flights according to Reg. 261/2004, though. Media report that Lufthansa intends to rely on "extraordinary circumstances". However, in C-549/07 - Wallentin-Hermann ECJ has taught us that the term "extraordinary circumstances" requires a narrow interpretation an that recital 14 of the Regulation did not mean that the events listed there themselves constitute extraordinary circumstances, but only that they may produce such circumstances. Even though "strike" is mentioned as a potential reason for extraordinary circumstances in recital 14 of the Regulation, thus there remains doubt whether a strike of the operating carrier's own staff can amount to this exoneration.
A new reference for preliminary ruling seems a likely consequence ...
Wednesday, February 17, 2010
European Court of Justice has no jurisdiction to interpret Warsaw Convention
Reference to ECJ was made in the course of proceedings brought by Ms Bogiatzi against Société Luxair, société luxembourgeoise de navigation aérienne SA (‘Luxair’), and Deutscher Luftpool, an association under German law, concerning joint and several liability to compensate her for the injury she suffered as a result of an accident which occurred while boarding a Luxair aeroplaneon 21 Dec. 1998.
On 22 December 2003, Ms Bogiatzi brought proceedings for damages against Deutscher Luftpool – an association of aviation insurers which is governed by German civil law – and Luxair before the tribunal d’arrondissement de Luxembourg (District Court, Luxembourg), relying on Regulation No 2027/97 and the Warsaw Convention. Ms Bogiatzi’s claim, brought five years after the events at issue took place, was held inadmissible. The court held that the two-year limitation period provided for in Article 29 of the Warsaw Convention for bringing actions for damages is predetermined and may not be suspended or interrupted. The inadmissibility of the claim was confirmed on appeal. Ms Bogiatzi then appealed on a point of law to the Cour de cassation (Court of Cassation) which decided to stay proceedings and file a reference for preliminary ruling to the ECJ.
In its judgement of 22 October 2009 ECJ rejected jurisdiction for the following reasons:
Pursuant to Article 234 EC, the Court has jurisdiction to give preliminary rulings concerning the interpretation of the EC Treaty and on the validity and interpretation of acts of the institutions of the Community. According to settled case-law, an agreement concluded by the Council, in accordance with Articles 300 EC and 310 EC, is, as far as the Community is concerned, an act of one of the institutions of the Community, within the meaning of subparagraph (b) of the first paragraph of Article 234 EC. The provisions of such an agreement form an integral part of the Community legal order as from its entry into force and, within the framework of that order, the Court has jurisdiction to give preliminary rulings concerning the interpretation of such an agreement. However, as the Community is not a contracting party to the Warsaw Convention the Court does not, in principle, have jurisdiction to interpret the provisions of that convention in preliminary ruling proceedings.
Even though the Court has jurisdiction to interpret an international convention which has not been ratified by the Community where and in so far as, pursuant to the Treaty, the Community has assumed the powers previously exercised by the Member States in the field to which such convention applies, in absence of a full transfer of the powers previously exercised by the Member States to the Community, the latter cannot, simply because at the material time all those States were parties to the Warsaw Convention, be bound by the rules set out therein, which it has not itself approved.
The Warsaw Convention therefore does not form part of the rules of the Community legal order which the Court of Justice has jurisdiction to interpret under Article 234 EC.
Regulation No 2027/97 must be interpreted as not precluding the application of Article 29 of the Warsaw Convention to a situation in which a passenger seeks to establish the liability of the air carrier on account of harm suffered by him when flying between Member States of the Community.
Full text of judgement C‑301/08 of Oct. 22, 2009 available here>>.
On 22 December 2003, Ms Bogiatzi brought proceedings for damages against Deutscher Luftpool – an association of aviation insurers which is governed by German civil law – and Luxair before the tribunal d’arrondissement de Luxembourg (District Court, Luxembourg), relying on Regulation No 2027/97 and the Warsaw Convention. Ms Bogiatzi’s claim, brought five years after the events at issue took place, was held inadmissible. The court held that the two-year limitation period provided for in Article 29 of the Warsaw Convention for bringing actions for damages is predetermined and may not be suspended or interrupted. The inadmissibility of the claim was confirmed on appeal. Ms Bogiatzi then appealed on a point of law to the Cour de cassation (Court of Cassation) which decided to stay proceedings and file a reference for preliminary ruling to the ECJ.
In its judgement of 22 October 2009 ECJ rejected jurisdiction for the following reasons:
Pursuant to Article 234 EC, the Court has jurisdiction to give preliminary rulings concerning the interpretation of the EC Treaty and on the validity and interpretation of acts of the institutions of the Community. According to settled case-law, an agreement concluded by the Council, in accordance with Articles 300 EC and 310 EC, is, as far as the Community is concerned, an act of one of the institutions of the Community, within the meaning of subparagraph (b) of the first paragraph of Article 234 EC. The provisions of such an agreement form an integral part of the Community legal order as from its entry into force and, within the framework of that order, the Court has jurisdiction to give preliminary rulings concerning the interpretation of such an agreement. However, as the Community is not a contracting party to the Warsaw Convention the Court does not, in principle, have jurisdiction to interpret the provisions of that convention in preliminary ruling proceedings.
Even though the Court has jurisdiction to interpret an international convention which has not been ratified by the Community where and in so far as, pursuant to the Treaty, the Community has assumed the powers previously exercised by the Member States in the field to which such convention applies, in absence of a full transfer of the powers previously exercised by the Member States to the Community, the latter cannot, simply because at the material time all those States were parties to the Warsaw Convention, be bound by the rules set out therein, which it has not itself approved.
The Warsaw Convention therefore does not form part of the rules of the Community legal order which the Court of Justice has jurisdiction to interpret under Article 234 EC.
Regulation No 2027/97 must be interpreted as not precluding the application of Article 29 of the Warsaw Convention to a situation in which a passenger seeks to establish the liability of the air carrier on account of harm suffered by him when flying between Member States of the Community.
Full text of judgement C‑301/08 of Oct. 22, 2009 available here>>.
Tuesday, February 16, 2010
ECJ Advocate General Mazák: liability limits of Montreal Convention cover both, non-material and material damage
Mr. Walz' checked suitcase was lost on 4 June 2007 during a flight from Barcelona to Porto operated by Clickair. Mr Walz claimed damages of EUR 3 200: EUR 2 700 for the value of the lost baggage and EUR 500 for non-material damage resulting from that loss. Clickair challenged the amount of the damages claimed because it exceeded the limit for liability for lost baggage laid down by Article 22.2 Montreal Convention.
The referring court (Juzgado de lo Mercantil No 4 de Barcelona) observed that the Montreal Convention did not draw any distinction according to the type of damage to which the carrier’s liability relates, and took the view that the limitation on the carrier’s liability should cover both non-material and material damage. However, it indicated that a number of interpretations of Article 22.2 of the Montreal Convention were possible.
In his opinion delivered on 26 January 2010, Advocate General Mazák proposed that the Court should answer the question referred as follows:
The referring court (Juzgado de lo Mercantil No 4 de Barcelona) observed that the Montreal Convention did not draw any distinction according to the type of damage to which the carrier’s liability relates, and took the view that the limitation on the carrier’s liability should cover both non-material and material damage. However, it indicated that a number of interpretations of Article 22.2 of the Montreal Convention were possible.
In his opinion delivered on 26 January 2010, Advocate General Mazák proposed that the Court should answer the question referred as follows:
- Article 22(2) of the Convention for the Unification of Certain Rules for International Carriage, signed in Montreal on 28 May 1999, must be interpreted as meaning that, in the transport of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1 000 Special Drawing Rights per passenger in total, whatever the type of damage and the method of providing compensation.
Monday, February 15, 2010
USA: 2009 showed improved airline on-time performance and decreased rate of mishandled baggage
The nation’s largest airlines had an on-time performance rate in 2009 that was their best since 2003, according to the Air Travel Consumer Report released today by the U.S. Department of Transportation (DOT). In addition, the report shows that the carriers’ rate of mishandled baggage last year was the lowest recorded since 2004.
According to information filed with the Bureau of Transportation Statistics (BTS), a part of DOT’s Research and Innovative Technology Administration (RITA), the 19 carriers reporting on-time performance recorded an overall on-time arrival rate of 79.5 percent in 2009, an improvement over 2008’s rate of 76.0 and the best annual record since the 82.0 percent on-time rate of 2003. In addition, the carriers recorded a mishandled baggage rate of 3.91 per 1,000 passengers in 2009, an improvement over 2008's 5.26 and the best mark for a calendar year since the rate of 3.84 recorded in 2002.
Source: RITA press release of Feb 12, 2010; find full text here>>.German Supreme Court: statutory period of limitation of Montreal Convention not applying to claims under Reg. (EC) 261/2004
On April 2, 2008, plaintiff had filed a claim for compensation under Reg. (EC) 261/2004 because of cancellation of his scheduled flight from FRA to PMI on Nov. 19, 2005. The statement of claim had been delivered to defendant on May 5, 2008.
Both, first instance court (AG Rüsselsheim) and court of appeal (LG Darmstadt) dismissed the claim. Court of appeal argued that Reg. 261/2004 did not contain any statute of limitation. This loophole had to be filled by applying the limitation period of Art. 35 Montreal Convention as Reg. 261/2004 was supplementing the Convention with regard to passenger rights. As plaintiff's law suit had missed this limitation period, the claim had to be dismissed.
In judgement Xa ZR 61/09 of Dec. 10, 2009 German Supreme Court rejected application of the limitation period under the Montreal Convention: Montreal did not cover cancellation and the compensation under Reg. 261/2004 was not a claim for damages in the meaning of Art. 19 and 29 Montreal Convention. Though Reg. 261/2004 was supplementing the Convention, the two legal acts did not constitute a consistent legal system. Therefore not Montreal but the limitation period under national law was applicable.
Supreme Court thus repealed the judgement remanding the case to the court of appeal.
Judgement Xa ZR 61/09 of Dec. 10, 2009 available in German here>>.
Both, first instance court (AG Rüsselsheim) and court of appeal (LG Darmstadt) dismissed the claim. Court of appeal argued that Reg. 261/2004 did not contain any statute of limitation. This loophole had to be filled by applying the limitation period of Art. 35 Montreal Convention as Reg. 261/2004 was supplementing the Convention with regard to passenger rights. As plaintiff's law suit had missed this limitation period, the claim had to be dismissed.
In judgement Xa ZR 61/09 of Dec. 10, 2009 German Supreme Court rejected application of the limitation period under the Montreal Convention: Montreal did not cover cancellation and the compensation under Reg. 261/2004 was not a claim for damages in the meaning of Art. 19 and 29 Montreal Convention. Though Reg. 261/2004 was supplementing the Convention, the two legal acts did not constitute a consistent legal system. Therefore not Montreal but the limitation period under national law was applicable.
Supreme Court thus repealed the judgement remanding the case to the court of appeal.
Judgement Xa ZR 61/09 of Dec. 10, 2009 available in German here>>.
Friday, February 12, 2010
ECJ Joined Cases C‑402/07 and C‑432/07 (Sturgeon ea)
Defendant (Condor Flugdienst GmbH) is of the opinion that ECJ exceeded it's competence when deciding indemnities to be paid in case of a delay of 3 or more hours under Air Passengers' Rights Regulation 261/2004/EC (judgement as of November 19, 2009). German's Highest Court BGH reopened the proceedings (Case 2 BvE 2 / 08) to debate a new preliminary ruling before the ECJ in the light of the Lisbon Judgment of German's Federal Constitutional Court (BVerfG) as of June 30, 2009 (Cases 2 BvE 2/08, 2 BvE 5/08, 2 BvR 1010/08, 2 BvR 1022/08, 2 BvR 1259/08, 2 BvR 182/09).
Austria: city trips offered in conncetion with a student exchange programme do not constitute a "package"
Defandant, an Austrian association organising international student exchanges including free accomodation with host families, was offering a 6 day city trip to New York for students participating in the exchange programme in the U.S. and a 3 day city trip to London for students participating in the exchange programme in U.K. The trips included accomodation, sightseeing and recreational activities as well as workshops to prepare the students for their stay in the respective country. The trips were offered at fair market value. Defandant also offered flight tickets in connection with said trips.
Plaintiff, an Austrian association to combat unfair competition, filed a law suit requiring defendant to cease and desist from
Upon further appeal by defendant, Austrian Supreme Court (OGH)
Concerning the flight tickets, Supreme Court considered defendants objection that the tickets were organised and issued by a licenced travel agent. As there were no findings on who really organised and issued the tickets, in further proceedings court of first instance will have to take evidence in this regard. If it turned out that they were indeed organised and issued by a licenced travel agent, defendant could have a strong argument to have acted based on a justifyable legal opinion.
Full text of judgement 4 Ob 70/09m of Nov. 19, 2009 available in German here>>.
Plaintiff, an Austrian association to combat unfair competition, filed a law suit requiring defendant to cease and desist from
- pursuing travel business in connection with international student exchanges by offering city trips of several days duration, including transportation, accomodation and other tourist services (sightseeing) beyond the period of school attendance or stay with host families at an inclusive price and thus organising packages without tour organiser licence and/or insolvency coverage and/or
- pursuing travel business in connection with international student exchanges without travel agency licence by providing flight tickets from/to Austria and/or within country of destination.
Upon further appeal by defendant, Austrian Supreme Court (OGH)
- revised the judgements and dismissed the claim in regard to package tours
- repealed the judgements remanding the case to the court of first instance in regard to flight tickets.
- comprising student exchanges of about six months' or a year's duration;
- the purpose of which is attendance by the student at an educational establishment in the host country in order to familiarise himself with its people and culture; and
- during which the student stays with a host family as if he were a member thereof free of charge.
Concerning the flight tickets, Supreme Court considered defendants objection that the tickets were organised and issued by a licenced travel agent. As there were no findings on who really organised and issued the tickets, in further proceedings court of first instance will have to take evidence in this regard. If it turned out that they were indeed organised and issued by a licenced travel agent, defendant could have a strong argument to have acted based on a justifyable legal opinion.
Full text of judgement 4 Ob 70/09m of Nov. 19, 2009 available in German here>>.
Germany: new Supreme Court decision on liability under Reg. 261/2004
Plaintiff had booked a round trip flight FMO-FRA-GRU-FLN-GRU-MUC-FMO with defendant air carrier (LH). The section GRU-MUC was a codesharing flight with RG, recognizable by indication of both flight numbers (LH/RG) and the note "operated by RG". The flight GRU-MUC was cancelled and plaintiff rerouted to a later LH flight to FRA. Due to delayed departure of the latter flight of more than 4 hrs, plaintiff missed her connecting flight to FMO. As the next available flight FRA-FMO was also cancelled she was rerouted once more to CGN.
Plaintiff sued LH for compensation of EUR 600 under Reg. (EC) 261/2004. First instance court granted the claim, court of appeal dismissed same. Upon further appeal of plaintiff, German Supreme Court (BGH) repealed the judgement remanding the case to the court of appeal:
"Operating carrier" in art. 5 par. 1 lit c of Reg. 261/2004 had to be interpreted the same way as "actual carrier" in art. 39 Montreal Convention, thus meaning the carrier which actually operated the flight regardless of an exclusive contractual relationship with another carrier. The purpose of a high level of consumer protection would not require a different interpretation. In case of code sharing only the carrier actually operating the flight was able to influence its performance. The purpose of the provision would not allow to regard the other cooperation partner of the code share flight as being "operating" same as well.
Operating carrier of the flight GRU-MUC had therefore only been RG resulting into no liabilty of LH under Reg. 261/2004 for the cancellation of the original flight GRU-MUC.
Anyway, this was not sufficient to dismiss the claim as the LH flight GRU-MUC which plaintiff was rerouted to was delayed for more than 4 hrs resulting into a delayed arrival of considerably more than 3 hrs. Given ECJ decision C-402, 432/7 (Sturgeon/Condor and Böck/Air France), passengers suffering such delay had a similar claim for compensation like passengers of cancelled flights. The claim for compensation could therefore be based on the delay of the substitue flight.
Court of appeal will therefore have to render a new judgement which will have to consider whether the technical problems - which due to its conclusions had caused the delay - had been of a nature that would constitute "extraordinary circumstances" under art. 5 par. 3 of Reg. 261/2004.
Full text of BGH judgement Xa ZR 132/08 of Nov. 26, 2009 available in German here>>.
Plaintiff sued LH for compensation of EUR 600 under Reg. (EC) 261/2004. First instance court granted the claim, court of appeal dismissed same. Upon further appeal of plaintiff, German Supreme Court (BGH) repealed the judgement remanding the case to the court of appeal:
"Operating carrier" in art. 5 par. 1 lit c of Reg. 261/2004 had to be interpreted the same way as "actual carrier" in art. 39 Montreal Convention, thus meaning the carrier which actually operated the flight regardless of an exclusive contractual relationship with another carrier. The purpose of a high level of consumer protection would not require a different interpretation. In case of code sharing only the carrier actually operating the flight was able to influence its performance. The purpose of the provision would not allow to regard the other cooperation partner of the code share flight as being "operating" same as well.
Operating carrier of the flight GRU-MUC had therefore only been RG resulting into no liabilty of LH under Reg. 261/2004 for the cancellation of the original flight GRU-MUC.
Anyway, this was not sufficient to dismiss the claim as the LH flight GRU-MUC which plaintiff was rerouted to was delayed for more than 4 hrs resulting into a delayed arrival of considerably more than 3 hrs. Given ECJ decision C-402, 432/7 (Sturgeon/Condor and Böck/Air France), passengers suffering such delay had a similar claim for compensation like passengers of cancelled flights. The claim for compensation could therefore be based on the delay of the substitue flight.
Court of appeal will therefore have to render a new judgement which will have to consider whether the technical problems - which due to its conclusions had caused the delay - had been of a nature that would constitute "extraordinary circumstances" under art. 5 par. 3 of Reg. 261/2004.
Full text of BGH judgement Xa ZR 132/08 of Nov. 26, 2009 available in German here>>.
Thursday, February 11, 2010
Main St / FFD
: FYI -- Main St / FFD
2010 WL 265805 (Kan.Dist.Ct.) (Trial Order) District Court of Kansas.
Johnson County
Zachary FEE, Plaintiff,
v.
EXPEDIA, INC., d/b/a Hotels.com, Defendant.
No. 09-CV-8466.
January 25, 2010.
Order on Motion to Dismiss for Improper Venue
David W. Hauber, District Court Judge.
The Court has before it defendant Expedia, Inc.'s ("Expedia") motion to dismiss plaintiff Zachary Fee's ("Fee") petition, filed pursuant to K.S.A. 60-212(b),
which asserts that plaintiff's claims, including those under the Kansas Consumer Protection Act ("KCPA"), K.S.A. 50-623 /et seq./ /,/ should be dismissed in favor of venue in Dallas County Texas, where defendant is based, because of a "clickwrap" agreement that is embedded with a forum selection clause when a consumer uses defendant's website, Hotels.com.
/Factual Basis for the Motion/
Plaintiff Zachary Fee asserts that he was damaged in connection with a hotel room reservation he made through Hotels.corm's website in that he was wrongfully relocated from a four-star hotel to a three-and-a-half star hotel when the original hotel could not accept his reservation.
Plaintiff contends that this relocation constitutes, among other things, "bait and switch selling" in violation of the KCPA. Defendant contends that this case should be dismissed for improper venue and that the Court should enforce the forum selection clause and dismiss this matter. Oral argument was held on this matter and the parties have fully briefed the issues. No supplemental authority has been provided to the Court.
Plaintiff is a resident of Johnson County, Kansas. Petition ("Pet.") at ¶ 1. He filed this lawsuit September 16, 2009. (Pet.). He alleges that, on June 25, 2009, he used Hotels.com. to reserve "hotel accommodations at the '4 Star' Hotel Phillips in Kansas City, Missouri" for the night of July 31, 2009. Pet. at ¶ 5. Plaintiff alleges that, on July 27, 2009, he received an e-mail from Hotels.com advising him that the Hotel Phillips was unable to accept his reservation. Pet. at ¶ 7. At that time, Hotels.com requested that Plaintiff contact its Hotel Partner Support Department, so it might assist him in finding alternate accommodations. Pet. at ¶ 7. Plaintiff further alleges that, on July 27, 2009, he obtained an alternative reservation from Hotels.com "at the
'3.5 Star' Westin Crown Center in Kansas City, Missouri." Pet. at ¶ 8.
Hotels.com is a Texas limited partnership, with its principal place of business in the State of Texas. Affidavit of Greg Lambert, at ¶ 2.^[FN1] The company operates the Hotels.com website, which offers hotel reservation services to its customers. Ex. A at ¶ 2. To make a hotel reservation using Hotels.com, a customer first chooses a hotel, and then inputs guest information, room preferences, and payment information.
/Id./ at 4. Before the reservation can be completed, however, a customer must agree to the Hotels.com User Agreement by means of a "clickwrap"
agreement. /Id./
FN1. As outlined in Greg Lambert's Affidavit, Hotels.com, L.P. is a
wholly-owned subsidiary of Expedia, Inc. not, as alleged in the
Petition, a d/b/a of Expedia, Inc. Accordingly, this motion is made
on behalf of Hotels.com only.
A clickwrap agreement "appears on an internet webpage, and requires that a user consent to any terms or conditions by clicking on a dialog box on the screen in order to proceed with the internet transaction." /Feldman v. Google, Inc.,/ 513 F. Supp.2d 229, 236 (E.D. Pa. 2007).
On Hotels.com, the clickwrap agreement appears immediately above the words "Book Reservation." /Id../ The customer must check a click-box
stating: "I agree to the Terms & Conditions." /Id../ The "Terms & Conditions" text is a hyperlink that will take the customer directly to the Hotels.com User Agreement. /Id../ Only after accepting the terms and conditions of the Hotels.com User Agreement by selecting the click-box, will the customer be able to complete the transaction. In other words, use of the Hotels.com website is conditioned upon the customer's acceptance of the Hotels.com User Agreement.
The Hotels.com User Agreement contains a mandatory forum selection clause which states that "this Agreement is governed by the laws of the State of Texas, U.S.A. You hereby consent to the exclusive jurisdiction and venue of the courts in Dallas County, Texas, U.S.A., in all disputes arising out of or relating to the use of this Website." The Hotels.com User Agreement further provides that "[b]y accessing or using this Website in any manner, you agree to be bound by the Agreement." Thus, the Hotels.com User Agreement offers customers use of the Hotels.com website conditioned only upon their "acceptance without modification of the terms, conditions, and notices," set forth in that agreement.
While plaintiff attacks, factually, the affidavit of defendant's corporate representative about his personal knowledge as to the Fee transaction, the affidavit establishes the agreement itself and that the user must agree to its terms - particularly the venue selection clause, before he can book a reservation. The affiant, Greg Lambert, is the director of customer care at Hotels.com, and has knowledge of this website requirement. There is no doubt that plaintiff used the website, see Ex. A to Petition, and his counsel admitted the same at oral argument.
Accordingly, what is pertinent to the Court, factually, is whether the agreement is enforceable and broad enough to cover the claims asserted under the KCPA. For reasons that will be discussed below, the Court concludes that the venue selection clause is enforceable.
/The Standard for a Motion to Dismiss/
On a motion to dismiss, the Court must presume the well-pleaded facts of the petition. However, when deciding a dismissal for improper venue, the standard is the same as for deciding a motion to dismiss for lack of personal jurisdiction. /Financial Sys. & Equip., Inc. v. Easy Sys., Inc.,/ 2000 WL 714331, at *1 (D. Kan. May 17, 2000).^[FN2]
That standard is well-established:
FN2. Because Fed. R. Civ. Pro. § 12(b) is essentially identical to
K.S.A. 60-212(b)(3)
,
the court finds federal decisions to be persuasive.
The plaintiff bears the burden of establishing personal jurisdiction over the defendant. Prior to trial, however, when a motion to dismiss for lack of jurisdiction is decided on the basis of affidavits and other written materials, the plaintiff need only make a prima facie showing.
The allegations in the complaint must be taken as true to the extent that they are uncontroverted by the defendant's affidavits. If the parties present conflicting affidavits, all factual disputes are resolved in the plaintiffs favor, and the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party.
/Behagen v. Amateur Basketball Ass'n,/ 744 F.2d 731, 733 (10^th
Cir.1984)
,
/cert. denied,/ 471 U.S. 1010 (1985)
(citations omitted).
DISCUSSION
Plaintiff contests the motion to dismiss, principally, on two grounds.
The first is the venue provision of the KCPA, K.S.A. 50-638(b),
which provides:
Every action pursuant to this act shall be brought in the district court of any county in which there occurred an act or practice declared to be a violation of this act, or in which the defendant resides or the defendant's principal place of business is located. If the defendant is a non-resident and has no principal place of business in this state, then the non-resident can be sued either in the district court of Shawnee County or in the district court of any county in which there occurred an act or practice declared to be a violation of this act.
The second is that plaintiff contends his claims originate subsequently and independently from usage of the Hotels.com website and its User Agreement because his reservation was cancelled after confirmation at one hotel, but placed at another. In this regard, he points to the failure of defendant to supply the Hotel.com's referenced "Supplier Rules and Restrictions." In the User Agreement is a provision which
states: "Separate terms and conditions will apply to your reservation and purchase of travel related goods and services that you select.
Please read these separate terms and conditions carefully." This pertains to the rules of any participating hotel. In this regard, plaintiff contends that he became "aggrieved," pursuant to K.S.A. 50-634,
as a consumer, on July 27, 2009, when he received a notice for cancellation of his reservation, for which he had paid $94.06. This occurred a month after his website use, which did not provide him additional separate terms.
From the foregoing, plaintiff argues that the KCPA governs conduct before, during and after a consumer transaction and that the forum selection clause only covers "disputes arising out of or relating to the use of the Website." Plaintiff does not dispute, however, his assent to the website agreement or the terms referenced.
/I. THE ENFORCEABILITY OF THE CLICKWRAP AGREEMENTS./
Defendant urges that numerous courts, including regional federal district court decisions, have found clickwrap agreements to be valid, enforceable agreements when the customer chooses to use the website.
/Burcham v. Hotels.com, Inc.,/ No.4:07CV1963CDP, 2009 WL 586513 at * 2 (E.D. Mo. March 6, 2009)(citing
cases)(enforcing clickwrap agreement and noting "such agreements have been routinely upheld by circuit and district courts"); /see also / /Mortgage Plus, Inc. v. Docmagic, Inc.,/ No. 03-2582-GTV-DJW, 2004 WL 2331918, at *5 (D. Kan. Aug. 23, 2004)
(holding that clickwrap agreement is a valid contract); /see e.g., / /Seibert v. Amateur Athletic Union of U.S., Inc.,/ 422 F.Supp.2d 1033,
1040 (D. Minn. 2006)
("Most
courts which have considered the issue have upheld arbitration and forum selection clauses in so-called "clickwrap" or "shrinkwrap" form contracts."); /DeJohn v. The TV Corp. Int'l,/ 245 F. Supp.2d 913, 921 (N.D. III. 2003)(enforcing
click-wrap forum selection clause).
In /Docmagic,/ the agreement is identical to the one at bar and was held to be valid and enforceable. /See/ 2004 WL 2331918 at *5.
The /Docmagic/ plaintiff was required to click on a box indicating his agreement to the terms of use before he could complete his transaction.
/Id./ That clickwrap agreement contained a forum selection clause that required any suit arising from the agreement to be brought in a court in Los Angeles, California. /Id./ at *7. Plaintiff also argued that the clickwrap agreement did not create an enforceable contract. /Id./ at *2.
The court rejected this argument, holding that the plaintiff "had a choice as to whether to download the software and utilize the related services..." /Id./ at *5.
An identical user agreement was held valid and enforceable in /Burcham v. Expedia, Inc.,/ 2009 WL 586513 at *3 (E.D.Mo. 2009).
In /Burcham/ the plaintiff was required to accept Expedia's user agreement before completing the hotel reservation. /Id./ at *2. The agreement was identical to the Hotels.com agreement, except that it required actions to be brought in King County, Washington. The court enforced the agreement. /Id./ at *4.
/A. The Reasonable Relationship Caveat to Forum Selection Clauses./
Kansas has followed the enforcement of contractual forum-selection clauses and the rationale of /The / /Bremen v. Zapata Off-Shore Co.,/
407 U.S. 1(1972)
.
/See / /Vanier v. Ponsoldt,/ 251 Kan. 88, 99, 833 P.2d 949, 958 (1992)
(enforcing installment purchase and security agreement forum selection clause). The only /caveat/ to enforcement of such provisions is that they must be fair and reasonable, they must bear a reasonable relationship to the transaction and they must not be the result of fraud, duress or overreaching. /Id./ at 101.
Likewise, arbitration clauses with KCPA claims are enforced. /Packard v.
Credit Solutions of America, Inc.,/ 42 Kan. App. 2d 382, 213 P.3d 437
(2009)
(reversing district court on failure to grant motion to compel arbitration). In /Packard,/ the plaintiffs claimed violations of the KCPA against the defendant, a credit debt reduction company, which allegedly engaged in deceptive practices by taking debit transaction amounts from plaintiffs' bank accounts. It was not authorized to do business in Kansas. The agreement contained the following provisions:
/Arbitration of Dispute.-If/ there is /any dispute between the parties arising out of this agreement,/ the parties agree to submit that dispute to binding arbitration under the auspices of the American Arbitration Association (AAA).
/Choice of Law and Jurisdiction.-In/ the event of any dispute regarding this AGREEMENT including but not limited to service fees and costs, CLIENT and CSA agree that venue of resolution shall be in the county and city of Dallas, Texas. Both CSA and CLIENT agree that the laws of the State of Texas /shall govern any disputes arising from this AGREEMENT./
42 Kan. App. 2d at 383-84
(emphasis added).
The Packards argued that the conduct at issue did not "arise out this agreement" but the court noted that the plaintiffs did not "satisfactorily explain how their statutory claims do not arise out of the agreement, when, for example, in order to establish violations of the KCPA, they must show CSA's [defendant's] performance /under and pursuant to the agreement/ constituted material misrepresentations or deceptive acts and practices." 42 Kan. App. 2d at 441.
The Court did not address the forum selection clause directly, because its ruling on the arbitration clause was dispostive, /id./ at 387, except for the fact that it significantly noted that such clauses may be enforced if they bear a reasonable relationship to the transaction. /Id.
(citing / /Aylward v. Dar Ran Furniture Industries, Inc.,/ 32 Kan. App.
2d 697,700, 87 P.3d 341 (2004)
).
Presumably the /Packard/ court was fully cognizant of the KCPA's venue provision, even though it was decided under federal preemption.^[FN3]
FN3. /Packard/ does not suggest that absent the federal preemption
which existed there, pursuant to the Federal Arbitration Act, 9
U.S.C. §§ 1
-16
(2000)
,
the result would be any different. On the contrary, its specific
reference to the forum selection clause suggests its intent to
demonstrate both clauses would be enforceable.
/1. Whether the KCPA venue provision trumps the forum selection clause./
The KCPA venue clause, K.S.A. 50-638(b),
uses "shall," and not "may," to direct the filing of KCPA actions. The Court believes this is intended to contrast the word "may" which otherwise appears in ordinary venue provisions for civil actions against corporations, non-residents or non-qualified corporations, as referenced in K.S.A. 60-604
and 60-605
.
This limits where KCPA actions may be brought within the state, but does not otherwise speak to the enforceability of contract provisions. On the contrary, while the KCPA directs that a consumer "may not waive or agree to forego rights or benefits under this act," K.S.A. 50-625(a),
the act allows the enforcement of contractual settlements that are not unconscionable. K.S.A. 50-625(c).
The mere fact that a consumer may waive a right is not, in itself, unconscionable. /Farrell v. General Motors Corp.,/ 249 Kan. 231, 242,
815 P.2d 538 (1991)
.
Our courts, by definition, have precluded the concept of unconscionability by requiring forum selection clauses to be reasonably related to the transaction.
Similarly, the court in /Billings, M.D. v. Clinitec Intern., Inc.,/ 2000 WL 1072167, *3 (D. Kan., July 25, 2000),
considering K.S.A. 50-638(a)
,
construed that plaintiff, by signing an agreement containing a forum selection clause, did not waive or agree to forego any rights or benefits under the act, rather, he agreed to litigate them in Pennsylvania.
Plaintiff argues that it is unreasonable to force him to travel to Texas to litigate his KCPA claims because of the policy to liberally construe and protect Kansas consumers. K.S.A. 50-623(b);
/Ray v. Ponca/Universal Holdings, Inc.,/ 22 Kan. App. 2d 47, 49, 913P.2d
209 (1995). /Vanier,/ however, held that a forum selection clause was reasonable if the forum selected was the home of one of the parties.
/Vanier,/ 251 Kan. at 101, 833 P.2d at 959
("We find the forum - selection clause fair and reasonable. The forum selected is the home of one of the parties to the contract and, thus, has a reasonable relationship to the transaction."). Moreover, the Court would note that plaintiff already has traveled to Texas to depose defendant's corporate representative, which, no doubt, would have been required if the case remained here. This is a consequence of longstanding rules enforced in this and federal courts, under the interpretation of FED. R. Civ. PRO. § 30(b)(6) [which is identical to K.S.A. 60-230(b)(5)]
that requires corporate representatives to be deposed at defendant's corporate headquarters.^[FN4] This, essentially, is a fairness rule to a compelled litigant.
FN4. As a general rule, the court has "substantial discretion to
specify the place of the deposition."^FN23 The Tenth Circuit has
stated that the "deposition of a corporation by its agents and
officers should ordinarily be taken at its principal place of
business." ^FN24 For a corporation, this rule "translates to a
presumption that officers, directors and managing agents should be
available for deposition at the company's headquarters." ^FN25
FN23. /Stone v. Morton Int'l,/ 170 F.R.D. 498, 504 (D.Utah 1997)
(citing /In re Standard Metals Corp.,/ 817 F.2d 625 (10th Cir .1987)
).FN24.
/Thomas v. IBM,/ 48 F.3d 478, 483 (10th Cir.1995)
(citing 8A Charles Alan Wright, Arthur R. Miller & Richard L.
Marcus, Federal Practice and Procedure: Civil 2112 at 81 (1994)
).FN25.
/Payne v. McKune,/ No. 06-3010, 2007 U.S. Dist. LEXIS 77553, at *7,
2007 WL 3036190 (D.Kan. Oct. 16, 2007)
.
However, "[u]nderlying this rule appears to be the concept that it
is the plaintiff who brings the lawsuit and who exercises the first
choice as to the forum. The defendant, on the other hand, is not
before the court by choice." ^FN26 Indeed, in discussing the rules
surrounding the designation of place for a deposition, Moore's
Federal Practice states: "[t]here is a general presumption that a
defendant's deposition will be held in the /district/ of the
defendant's residence" and places the burden of deviating from this
presumption on the noticing plaintiff.^FN27 Depositions of a
corporate defendants' representatives presumptively take place at
the corporation's headquarters not, as plaintiff advocates, to allow
plaintiff ready access to documents located at a corporation's
facility, but rather to afford the corporate defendant and its
representatives, who did not have the first choice as to forum, a
measure of convenience.
FN26. /Payne,/ 2007 U.S. Dist. LEXIS 77553 at *6-7, 2007 WL 3036190
(citing /Farquhar v. Shelden,/ 116 F.R.D. 70, 72 (E.D. Mich.1987)
).
FN27.6-2 Moore's Federal Practice-Civil § 26.105 (emphasis added).
/ICE Corp. v. Hamilton Sundstrand Corp./ WL 4334918, 5 -6 (D.
Kan.,Dec. 6, 2007)
Thus, in terms of whether plaintiff will expend large sums of money to travel long distances, it is apparent that the rules anticipate that the mere fact that travel may be anticipated is not inherently unfair, particularly when it is the plaintiff who has chosen to litigate, such as in this case, over whether he received a four-star or a three-and-a-half star hotel room.
Here, Hotels.com is headquartered in Dallas County, Texas. Ex.. A at ¶ 2. Further, many (if not all) of its witnesses and relevant documents are likely located there. Accordingly, the forum selection clause at issue is reasonable.
/II. WHETHER THE SUBSEQUENT CANCELLATION WAS INDEPENDENT OF THE CONTRACT./
Next, the Court must consider plaintiff's argument that the cancellation of his reservation and decision to book an alternate hotel, was, somehow, a different transaction that is not governed by the User Agreement. There is little doubt that but for his reservation on the Hotels.com website, Fee would not have engaged in the transaction for which he now claims a violation of the KCPA. Indeed, one hinges on the other. The language of the User Agreement, however, uses broad language the is typical of an arbitration agreement, requiring the forum selected to address matters "arising out of or relating to" use of the website.
The parties agreed to arbitrate "[a]ny controversy or claim /arising out of or relating to/ payments to [Chelsea] by Medco." (Emphasis added).
The ordinary meaning of the phrase "relating to" is broad.^FN9 /Morales v. Trans World Airlines, Inc.,/ 504 U.S. 374, 383-84, 112 S.Ct. 2031,
119 L.Ed.2d 157 (1992)
;
/Coregis Ins. Co. v. Am. Health Found., Inc.,/ 241 F.3d 123, 128-29 (2d
Cir.2001)
;
/see also / /Prima Paint Corp. v. Flood & Conklin Mfg. Co.,/ 388 U.S.
395, 398, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967)
(construing an arbitration clause with the language "[a]ny controversy or claim arising out of or relating to this Agreement" as a broad one).
FN9. Because "relating to" is broader than "arising out of," we need not consider the scope of the phrase "arising out of" in isolation. /See / /Coregis Ins. Co. v. Am. Health Found., Inc.,/ 241 F.3d 123, 128 (2^nd
Cir.2001)
("[T]he ordinary meaning of the term 'related to' ... is broader than the term 'arising out of'...."); /Mediterranean Enters., Inc. v.
Ssangyong Corp.,/ 708 F.2d 1458, 1464 (9th Cir.1983)
(explaining that inclusion of the term "relating to" makes an arbitration clause broader than one including only the term "arising under").
/Chelsea Family Pharmacy, PLLC v. Medco Health Solutions, Inc.,/ 567 F.3d 1191, 1199 (10th Cir. 2009).
Because the language of the forum selection clause sweeps broadly, it encompasses subsequent transactions that might involve a cancellation or modification of prior arrangements. There is little doubt that the subsequent, and alternate reservation, is a transaction "relating to"
the earlier transaction. Accordingly, the Court rejects plaintiff's argument that an independent and subsequent cancellation negates the User Agreement and its forum selection clause.
For the foregoing reasons, the Court will grant the defendant's motion to dismiss.
IT IS SO ORDERED.
___________________________________________________________________________________________________________________________________________________________________________________
Dated
___________________________________________________________________________________________________________________________________________________________________________________
DAVID W. HAUBER
District Court Judge, Div. 7
Fee v. Expedia, Inc.
2010 WL 265805 (Kan.Dist.Ct.) (Trial Order)
--
Respectfully,
David J. Moraine, J.D., LL.M.
Texas State Bar Number 00795830
New York Bar Number 763095
MARCHAND & MORAINE, L.L.P.
Attorneys At Law
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2010 WL 265805 (Kan.Dist.Ct.) (Trial Order) District Court of Kansas.
Johnson County
Zachary FEE, Plaintiff,
v.
EXPEDIA, INC., d/b/a Hotels.com, Defendant.
No. 09-CV-8466.
January 25, 2010.
Order on Motion to Dismiss for Improper Venue
David W. Hauber, District Court Judge.
The Court has before it defendant Expedia, Inc.'s ("Expedia") motion to dismiss plaintiff Zachary Fee's ("Fee") petition, filed pursuant to K.S.A. 60-212(b)
which asserts that plaintiff's claims, including those under the Kansas Consumer Protection Act ("KCPA"), K.S.A. 50-623 /et seq./ /,/ should be dismissed in favor of venue in Dallas County Texas, where defendant is based, because of a "clickwrap" agreement that is embedded with a forum selection clause when a consumer uses defendant's website, Hotels.com.
/Factual Basis for the Motion/
Plaintiff Zachary Fee asserts that he was damaged in connection with a hotel room reservation he made through Hotels.corm's website in that he was wrongfully relocated from a four-star hotel to a three-and-a-half star hotel when the original hotel could not accept his reservation.
Plaintiff contends that this relocation constitutes, among other things, "bait and switch selling" in violation of the KCPA. Defendant contends that this case should be dismissed for improper venue and that the Court should enforce the forum selection clause and dismiss this matter. Oral argument was held on this matter and the parties have fully briefed the issues. No supplemental authority has been provided to the Court.
Plaintiff is a resident of Johnson County, Kansas. Petition ("Pet.") at ¶ 1. He filed this lawsuit September 16, 2009. (Pet.). He alleges that, on June 25, 2009, he used Hotels.com. to reserve "hotel accommodations at the '4 Star' Hotel Phillips in Kansas City, Missouri" for the night of July 31, 2009. Pet. at ¶ 5. Plaintiff alleges that, on July 27, 2009, he received an e-mail from Hotels.com advising him that the Hotel Phillips was unable to accept his reservation. Pet. at ¶ 7. At that time, Hotels.com requested that Plaintiff contact its Hotel Partner Support Department, so it might assist him in finding alternate accommodations. Pet. at ¶ 7. Plaintiff further alleges that, on July 27, 2009, he obtained an alternative reservation from Hotels.com "at the
'3.5 Star' Westin Crown Center in Kansas City, Missouri." Pet. at ¶ 8.
Hotels.com is a Texas limited partnership, with its principal place of business in the State of Texas. Affidavit of Greg Lambert, at ¶ 2.^[FN1] The company operates the Hotels.com website, which offers hotel reservation services to its customers. Ex. A at ¶ 2. To make a hotel reservation using Hotels.com, a customer first chooses a hotel, and then inputs guest information, room preferences, and payment information.
/Id./ at 4. Before the reservation can be completed, however, a customer must agree to the Hotels.com User Agreement by means of a "clickwrap"
agreement. /Id./
FN1. As outlined in Greg Lambert's Affidavit, Hotels.com, L.P. is a
wholly-owned subsidiary of Expedia, Inc. not, as alleged in the
Petition, a d/b/a of Expedia, Inc. Accordingly, this motion is made
on behalf of Hotels.com only.
A clickwrap agreement "appears on an internet webpage, and requires that a user consent to any terms or conditions by clicking on a dialog box on the screen in order to proceed with the internet transaction." /Feldman v. Google, Inc.,/ 513 F. Supp.2d 229, 236 (E.D. Pa. 2007)
On Hotels.com, the clickwrap agreement appears immediately above the words "Book Reservation." /Id../ The customer must check a click-box
stating: "I agree to the Terms & Conditions." /Id../ The "Terms & Conditions" text is a hyperlink that will take the customer directly to the Hotels.com User Agreement. /Id../ Only after accepting the terms and conditions of the Hotels.com User Agreement by selecting the click-box, will the customer be able to complete the transaction. In other words, use of the Hotels.com website is conditioned upon the customer's acceptance of the Hotels.com User Agreement.
The Hotels.com User Agreement contains a mandatory forum selection clause which states that "this Agreement is governed by the laws of the State of Texas, U.S.A. You hereby consent to the exclusive jurisdiction and venue of the courts in Dallas County, Texas, U.S.A., in all disputes arising out of or relating to the use of this Website." The Hotels.com User Agreement further provides that "[b]y accessing or using this Website in any manner, you agree to be bound by the Agreement." Thus, the Hotels.com User Agreement offers customers use of the Hotels.com website conditioned only upon their "acceptance without modification of the terms, conditions, and notices," set forth in that agreement.
While plaintiff attacks, factually, the affidavit of defendant's corporate representative about his personal knowledge as to the Fee transaction, the affidavit establishes the agreement itself and that the user must agree to its terms - particularly the venue selection clause, before he can book a reservation. The affiant, Greg Lambert, is the director of customer care at Hotels.com, and has knowledge of this website requirement. There is no doubt that plaintiff used the website, see Ex. A to Petition, and his counsel admitted the same at oral argument.
Accordingly, what is pertinent to the Court, factually, is whether the agreement is enforceable and broad enough to cover the claims asserted under the KCPA. For reasons that will be discussed below, the Court concludes that the venue selection clause is enforceable.
/The Standard for a Motion to Dismiss/
On a motion to dismiss, the Court must presume the well-pleaded facts of the petition. However, when deciding a dismissal for improper venue, the standard is the same as for deciding a motion to dismiss for lack of personal jurisdiction. /Financial Sys. & Equip., Inc. v. Easy Sys., Inc.,/ 2000 WL 714331, at *1 (D. Kan. May 17, 2000)
That standard is well-established:
FN2. Because Fed. R. Civ. Pro. § 12(b) is essentially identical to
K.S.A. 60-212(b)(3)
the court finds federal decisions to be persuasive.
The plaintiff bears the burden of establishing personal jurisdiction over the defendant. Prior to trial, however, when a motion to dismiss for lack of jurisdiction is decided on the basis of affidavits and other written materials, the plaintiff need only make a prima facie showing.
The allegations in the complaint must be taken as true to the extent that they are uncontroverted by the defendant's affidavits. If the parties present conflicting affidavits, all factual disputes are resolved in the plaintiffs favor, and the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party.
/Behagen v. Amateur Basketball Ass'n,/ 744 F.2d 731, 733 (10^th
Cir.1984)
/cert. denied,/ 471 U.S. 1010 (1985)
(citations omitted).
DISCUSSION
Plaintiff contests the motion to dismiss, principally, on two grounds.
The first is the venue provision of the KCPA, K.S.A. 50-638(b)
which provides:
Every action pursuant to this act shall be brought in the district court of any county in which there occurred an act or practice declared to be a violation of this act, or in which the defendant resides or the defendant's principal place of business is located. If the defendant is a non-resident and has no principal place of business in this state, then the non-resident can be sued either in the district court of Shawnee County or in the district court of any county in which there occurred an act or practice declared to be a violation of this act.
The second is that plaintiff contends his claims originate subsequently and independently from usage of the Hotels.com website and its User Agreement because his reservation was cancelled after confirmation at one hotel, but placed at another. In this regard, he points to the failure of defendant to supply the Hotel.com's referenced "Supplier Rules and Restrictions." In the User Agreement is a provision which
states: "Separate terms and conditions will apply to your reservation and purchase of travel related goods and services that you select.
Please read these separate terms and conditions carefully." This pertains to the rules of any participating hotel. In this regard, plaintiff contends that he became "aggrieved," pursuant to K.S.A. 50-634
as a consumer, on July 27, 2009, when he received a notice for cancellation of his reservation, for which he had paid $94.06. This occurred a month after his website use, which did not provide him additional separate terms.
From the foregoing, plaintiff argues that the KCPA governs conduct before, during and after a consumer transaction and that the forum selection clause only covers "disputes arising out of or relating to the use of the Website." Plaintiff does not dispute, however, his assent to the website agreement or the terms referenced.
/I. THE ENFORCEABILITY OF THE CLICKWRAP AGREEMENTS./
Defendant urges that numerous courts, including regional federal district court decisions, have found clickwrap agreements to be valid, enforceable agreements when the customer chooses to use the website.
/Burcham v. Hotels.com, Inc.,/ No.4:07CV1963CDP, 2009 WL 586513 at * 2 (E.D. Mo. March 6, 2009)
cases)(enforcing clickwrap agreement and noting "such agreements have been routinely upheld by circuit and district courts"); /see also / /Mortgage Plus, Inc. v. Docmagic, Inc.,/ No. 03-2582-GTV-DJW, 2004 WL 2331918, at *5 (D. Kan. Aug. 23, 2004)
(holding that clickwrap agreement is a valid contract); /see e.g., / /Seibert v. Amateur Athletic Union of U.S., Inc.,/ 422 F.Supp.2d 1033,
1040 (D. Minn. 2006)
courts which have considered the issue have upheld arbitration and forum selection clauses in so-called "clickwrap" or "shrinkwrap" form contracts."); /DeJohn v. The TV Corp. Int'l,/ 245 F. Supp.2d 913, 921 (N.D. III. 2003)
click-wrap forum selection clause).
In /Docmagic,/ the agreement is identical to the one at bar and was held to be valid and enforceable. /See/ 2004 WL 2331918 at *5
The /Docmagic/ plaintiff was required to click on a box indicating his agreement to the terms of use before he could complete his transaction.
/Id./ That clickwrap agreement contained a forum selection clause that required any suit arising from the agreement to be brought in a court in Los Angeles, California. /Id./ at *7. Plaintiff also argued that the clickwrap agreement did not create an enforceable contract. /Id./ at *2.
The court rejected this argument, holding that the plaintiff "had a choice as to whether to download the software and utilize the related services..." /Id./ at *5.
An identical user agreement was held valid and enforceable in /Burcham v. Expedia, Inc.,/ 2009 WL 586513 at *3 (E.D.Mo. 2009)
In /Burcham/ the plaintiff was required to accept Expedia's user agreement before completing the hotel reservation. /Id./ at *2. The agreement was identical to the Hotels.com agreement, except that it required actions to be brought in King County, Washington. The court enforced the agreement. /Id./ at *4.
/A. The Reasonable Relationship Caveat to Forum Selection Clauses./
Kansas has followed the enforcement of contractual forum-selection clauses and the rationale of /The / /Bremen v. Zapata Off-Shore Co.,/
407 U.S. 1(1972)
/See / /Vanier v. Ponsoldt,/ 251 Kan. 88, 99, 833 P.2d 949, 958 (1992)
(enforcing installment purchase and security agreement forum selection clause). The only /caveat/ to enforcement of such provisions is that they must be fair and reasonable, they must bear a reasonable relationship to the transaction and they must not be the result of fraud, duress or overreaching. /Id./ at 101.
Likewise, arbitration clauses with KCPA claims are enforced. /Packard v.
Credit Solutions of America, Inc.,/ 42 Kan. App. 2d 382, 213 P.3d 437
(2009)
(reversing district court on failure to grant motion to compel arbitration). In /Packard,/ the plaintiffs claimed violations of the KCPA against the defendant, a credit debt reduction company, which allegedly engaged in deceptive practices by taking debit transaction amounts from plaintiffs' bank accounts. It was not authorized to do business in Kansas. The agreement contained the following provisions:
/Arbitration of Dispute.-If/ there is /any dispute between the parties arising out of this agreement,/ the parties agree to submit that dispute to binding arbitration under the auspices of the American Arbitration Association (AAA).
/Choice of Law and Jurisdiction.-In/ the event of any dispute regarding this AGREEMENT including but not limited to service fees and costs, CLIENT and CSA agree that venue of resolution shall be in the county and city of Dallas, Texas. Both CSA and CLIENT agree that the laws of the State of Texas /shall govern any disputes arising from this AGREEMENT./
42 Kan. App. 2d at 383-84
(emphasis added).
The Packards argued that the conduct at issue did not "arise out this agreement" but the court noted that the plaintiffs did not "satisfactorily explain how their statutory claims do not arise out of the agreement, when, for example, in order to establish violations of the KCPA, they must show CSA's [defendant's] performance /under and pursuant to the agreement/ constituted material misrepresentations or deceptive acts and practices." 42 Kan. App. 2d at 441.
The Court did not address the forum selection clause directly, because its ruling on the arbitration clause was dispostive, /id./ at 387, except for the fact that it significantly noted that such clauses may be enforced if they bear a reasonable relationship to the transaction. /Id.
(citing / /Aylward v. Dar Ran Furniture Industries, Inc.,/ 32 Kan. App.
2d 697,700, 87 P.3d 341 (2004)
Presumably the /Packard/ court was fully cognizant of the KCPA's venue provision, even though it was decided under federal preemption.^[FN3]
FN3. /Packard/ does not suggest that absent the federal preemption
which existed there, pursuant to the Federal Arbitration Act, 9
U.S.C. §§ 1
(2000)
the result would be any different. On the contrary, its specific
reference to the forum selection clause suggests its intent to
demonstrate both clauses would be enforceable.
/1. Whether the KCPA venue provision trumps the forum selection clause./
The KCPA venue clause, K.S.A. 50-638(b)
uses "shall," and not "may," to direct the filing of KCPA actions. The Court believes this is intended to contrast the word "may" which otherwise appears in ordinary venue provisions for civil actions against corporations, non-residents or non-qualified corporations, as referenced in K.S.A. 60-604
and 60-605
This limits where KCPA actions may be brought within the state, but does not otherwise speak to the enforceability of contract provisions. On the contrary, while the KCPA directs that a consumer "may not waive or agree to forego rights or benefits under this act," K.S.A. 50-625(a)
the act allows the enforcement of contractual settlements that are not unconscionable. K.S.A. 50-625(c)
The mere fact that a consumer may waive a right is not, in itself, unconscionable. /Farrell v. General Motors Corp.,/ 249 Kan. 231, 242,
815 P.2d 538 (1991)
Our courts, by definition, have precluded the concept of unconscionability by requiring forum selection clauses to be reasonably related to the transaction.
Similarly, the court in /Billings, M.D. v. Clinitec Intern., Inc.,/ 2000 WL 1072167, *3 (D. Kan., July 25, 2000)
considering K.S.A. 50-638(a)
construed that plaintiff, by signing an agreement containing a forum selection clause, did not waive or agree to forego any rights or benefits under the act, rather, he agreed to litigate them in Pennsylvania.
Plaintiff argues that it is unreasonable to force him to travel to Texas to litigate his KCPA claims because of the policy to liberally construe and protect Kansas consumers. K.S.A. 50-623(b)
/Ray v. Ponca/Universal Holdings, Inc.,/ 22 Kan. App. 2d 47, 49, 913P
209 (1995). /Vanier,/ however, held that a forum selection clause was reasonable if the forum selected was the home of one of the parties.
/Vanier,/ 251 Kan. at 101, 833 P.2d at 959
("We find the forum - selection clause fair and reasonable. The forum selected is the home of one of the parties to the contract and, thus, has a reasonable relationship to the transaction."). Moreover, the Court would note that plaintiff already has traveled to Texas to depose defendant's corporate representative, which, no doubt, would have been required if the case remained here. This is a consequence of longstanding rules enforced in this and federal courts, under the interpretation of FED. R. Civ. PRO. § 30(b)(6) [which is identical to K.S.A. 60-230(b)(5)
that requires corporate representatives to be deposed at defendant's corporate headquarters.^[FN4] This, essentially, is a fairness rule to a compelled litigant.
FN4. As a general rule, the court has "substantial discretion to
specify the place of the deposition."^FN23 The Tenth Circuit has
stated that the "deposition of a corporation by its agents and
officers should ordinarily be taken at its principal place of
business." ^FN24 For a corporation, this rule "translates to a
presumption that officers, directors and managing agents should be
available for deposition at the company's headquarters." ^FN25
FN23. /Stone v. Morton Int'l,/ 170 F.R.D. 498, 504 (D.Utah 1997)
(citing /In re Standard Metals Corp.,/ 817 F.2d 625 (10th Cir .1987)
/Thomas v. IBM,/ 48 F.3d 478, 483 (10th Cir.1995)
(citing 8A Charles Alan Wright, Arthur R. Miller & Richard L.
Marcus, Federal Practice and Procedure: Civil 2112 at 81 (1994)
/Payne v. McKune,/ No. 06-3010, 2007 U.S. Dist. LEXIS 77553, at *7,
2007 WL 3036190 (D.Kan. Oct. 16, 2007)
However, "[u]nderlying this rule appears to be the concept that it
is the plaintiff who brings the lawsuit and who exercises the first
choice as to the forum. The defendant, on the other hand, is not
before the court by choice." ^FN26 Indeed, in discussing the rules
surrounding the designation of place for a deposition, Moore's
Federal Practice states: "[t]here is a general presumption that a
defendant's deposition will be held in the /district/ of the
defendant's residence" and places the burden of deviating from this
presumption on the noticing plaintiff.^FN27 Depositions of a
corporate defendants' representatives presumptively take place at
the corporation's headquarters not, as plaintiff advocates, to allow
plaintiff ready access to documents located at a corporation's
facility, but rather to afford the corporate defendant and its
representatives, who did not have the first choice as to forum, a
measure of convenience.
FN26. /Payne,/ 2007 U.S. Dist. LEXIS 77553 at *6-7, 2007 WL 3036190
(citing /Farquhar v. Shelden,/ 116 F.R.D. 70, 72 (E.D. Mich.1987)
FN27.6-2 Moore's Federal Practice-Civil § 26.105 (emphasis added).
/ICE Corp. v. Hamilton Sundstrand Corp./ WL 4334918, 5 -6 (D.
Kan.,Dec. 6, 2007)
Thus, in terms of whether plaintiff will expend large sums of money to travel long distances, it is apparent that the rules anticipate that the mere fact that travel may be anticipated is not inherently unfair, particularly when it is the plaintiff who has chosen to litigate, such as in this case, over whether he received a four-star or a three-and-a-half star hotel room.
Here, Hotels.com is headquartered in Dallas County, Texas. Ex.. A at ¶ 2. Further, many (if not all) of its witnesses and relevant documents are likely located there. Accordingly, the forum selection clause at issue is reasonable.
/II. WHETHER THE SUBSEQUENT CANCELLATION WAS INDEPENDENT OF THE CONTRACT./
Next, the Court must consider plaintiff's argument that the cancellation of his reservation and decision to book an alternate hotel, was, somehow, a different transaction that is not governed by the User Agreement. There is little doubt that but for his reservation on the Hotels.com website, Fee would not have engaged in the transaction for which he now claims a violation of the KCPA. Indeed, one hinges on the other. The language of the User Agreement, however, uses broad language the is typical of an arbitration agreement, requiring the forum selected to address matters "arising out of or relating to" use of the website.
The parties agreed to arbitrate "[a]ny controversy or claim /arising out of or relating to/ payments to [Chelsea] by Medco." (Emphasis added).
The ordinary meaning of the phrase "relating to" is broad.^FN9 /Morales v. Trans World Airlines, Inc.,/ 504 U.S. 374, 383-84, 112 S.Ct. 2031,
119 L.Ed.2d 157 (1992)
/Coregis Ins. Co. v. Am. Health Found., Inc.,/ 241 F.3d 123, 128-29 (2d
Cir.2001)
/see also / /Prima Paint Corp. v. Flood & Conklin Mfg. Co.,/ 388 U.S.
395, 398, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967)
(construing an arbitration clause with the language "[a]ny controversy or claim arising out of or relating to this Agreement" as a broad one).
FN9. Because "relating to" is broader than "arising out of," we need not consider the scope of the phrase "arising out of" in isolation. /See / /Coregis Ins. Co. v. Am. Health Found., Inc.,/ 241 F.3d 123, 128 (2^nd
Cir.2001)
("[T]he ordinary meaning of the term 'related to' ... is broader than the term 'arising out of'...."); /Mediterranean Enters., Inc. v.
Ssangyong Corp.,/ 708 F.2d 1458, 1464 (9th Cir.1983)
(explaining that inclusion of the term "relating to" makes an arbitration clause broader than one including only the term "arising under").
/Chelsea Family Pharmacy, PLLC v. Medco Health Solutions, Inc.,/ 567 F.3d 1191, 1199 (10th Cir. 2009)
Because the language of the forum selection clause sweeps broadly, it encompasses subsequent transactions that might involve a cancellation or modification of prior arrangements. There is little doubt that the subsequent, and alternate reservation, is a transaction "relating to"
the earlier transaction. Accordingly, the Court rejects plaintiff's argument that an independent and subsequent cancellation negates the User Agreement and its forum selection clause.
For the foregoing reasons, the Court will grant the defendant's motion to dismiss.
IT IS SO ORDERED.
___________________________________________________________________________________________________________________________________________________________________________________
Dated
___________________________________________________________________________________________________________________________________________________________________________________
DAVID W. HAUBER
District Court Judge, Div. 7
Fee v. Expedia, Inc.
2010 WL 265805 (Kan.Dist.Ct.) (Trial Order)
--
Respectfully,
David J. Moraine, J.D., LL.M.
Texas State Bar Number 00795830
New York Bar Number 763095
MARCHAND & MORAINE, L.L.P.
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Thursday, February 04, 2010
Taiwan: Travel restrictions on Chinese tourists to be eased
Travel agents on Taiwan's outlying islands of Kinmen and Matsu will be allowed from May to apply online for travel permits on behalf of Chinese tour groups who want to visit the two islands via direct ferry services across the Taiwan Strait, the National Immigration Agency (NIA) said yesterday.
Chinese tourists who have already visited Taiwan over the past five years and who want to visit Kinmen and Matsu as part of a tour group of between five and 40 members can apply online for travel permits through Tourism Bureau-sanctioned travel agencies on the two islands.
Source: Taiwan News; find article here>>.
Wednesday, February 03, 2010
ICAO: revision of Limits of Liability under the Montreal Convention
Article 24 of the Montreal convention provides that the limits of liability are to be reviewed by the International Civil Aviation Organisation (ICAO) at five-year intervals by reference to an inflation factor which corresponds to the accumulated rate of inflation since the date of entry into force of the Convention. In the absence of disapproval by a majority of State Parties the revised limits become effective six months after their notification to State Parties by ICAO. The limits are expressed in Special Drawing Rights (SDR), a unit of account established by the International Monetary Fund. The SDR is defined as a basket of currencies, today consisting of the Euro, Japanese Yen, Pound Sterling and U.S. Dollar.
The following revised limits of liability established under Articles 21 and 22 of the Montreal Convention came into force on 30th December 2009:
The following revised limits of liability established under Articles 21 and 22 of the Montreal Convention came into force on 30th December 2009:
| Montreal Convention | Old limit (Special Drawing Rights) | Revised limit (Special Drawing Rights) |
|---|---|---|
| Article 21, paragraph 1 | 100,000 | 113,100 |
| Article 22, paragraph 1 | 4,150 | 4,694 |
| Article 22, paragraph 2 | 1,000 | 1,131 |
| Article 22, paragraph 3 | 17 | 19 |
California: Ruling on Online Booking Tax overturned
A Los Angeles Superior Court judge has overturned an earlier ruling that would have given the city of Anaheim $21.3 million in back taxes and penalties from online travel companies such as Expedia and Travelocity. (See posting of Feb. 20, 2009)
The city in 2007 had sued the online travel companies for a larger share of hotel-bed fees – so-called transient occupancy taxes – collected through online booking. The law suit was based on the argument that he online companies were collecting taxes from customers on the retail price of hotel rooms, but only paying the city the tax on the wholesale price. However, superior court agreed with the defendants that the plain meaning of this type of occupancy tax stature simply did not cover online-travel companies.
The ruling in the Anaheim case is likely to set a precedent for several similar cases.
Source: The Orange County Register; find article here>>.
The city in 2007 had sued the online travel companies for a larger share of hotel-bed fees – so-called transient occupancy taxes – collected through online booking. The law suit was based on the argument that he online companies were collecting taxes from customers on the retail price of hotel rooms, but only paying the city the tax on the wholesale price. However, superior court agreed with the defendants that the plain meaning of this type of occupancy tax stature simply did not cover online-travel companies.
The ruling in the Anaheim case is likely to set a precedent for several similar cases.
Source: The Orange County Register; find article here>>.
Friday, January 29, 2010
German BGH: Airline bonus points
Germany Highest Court (BGH) ruled yesterday about the forfeiture of Airline bonus points (BGH 28.01.2010, Xa ZR 37/09):
Plaintiff was a participant of the flight awards program of the defendant airline. Under this program, travelers were able to collect a number of bonus points dependent on the route booked that could be redeemed within five years after the flight for bonus tickets. In the conditions of the program (CoP), the defendant retained the right to terminate the program at any time. In September 2007 defendant announced the ending of the rewards program by 31 October 2007 and admitted to the participants the option to transfer the points collected to another airline’s program. At the same time defendant terminated plaintiff’s participation contract and informed the plaintiff that he may book flights on the bases of the current CoP until 30 April 2008 only and which shall take place until 31 October 2008.
Plaintiff considered that defendant’s CoP shall be null and void in this regard and he claimed that he could still redeem the bonus points within five years after the flight date.
Both, the district court and the court of appeal dismissed the action and considered the CoP of the defendant still to be in force and binding.
The BGH did not follow this point of view. Defendant may terminate the flight rewards program at any time, however, in the case at hand the CoP providing a right to decrease the period of the initial validity of the bonus points of up to one tenth can not be justified.
This may cause difficulties for the defendant when booking appropriate bonus flights only six months in advance. Bonus points are a not a voluntary service provided by the defendant, since the bonus points are a kind of discount agreed which is applicable for future flights. The defendant is obliged to grant bonus points for flights that have taken place after termination the program, unless they have been booked prior to its termination on the basis of the CoP.
The offered transfer to another airline’s awards program is not an alternative, because it is not equivalent in every respect.
Friday, January 15, 2010
USA: DOT Unveils Improved Aviation Consumer and Enforcement Website
Air travelers will find it easier to file complaints with the U.S. Department of Transportation (DOT) about airline service, compare the historical on-time and baggage mishandling records of airlines, and find helpful tips about air travel thanks to a redesigned, more user-friendly aviation consumer web site unveiled today by the Department. The web site can be found at http://airconsumer.dot.gov .
The improved site contains useful information about the Department’s complaint handling system for consumers who experience air travel service problems, including a web form that consumers can use to file a complaint with DOT about airline service. The site also offers guidance regarding aviation rules and statutes, advice concerning airlines that have stopped operating or filed for bankruptcy protection, and travel tips and publications related to air travel, such as the Air Travel Consumer Report, Fly-Rights and the annual report on disability-related air travel complaints.
Source: DOT press release of Jan. 14, 2010; find full text here>>.
The improved site contains useful information about the Department’s complaint handling system for consumers who experience air travel service problems, including a web form that consumers can use to file a complaint with DOT about airline service. The site also offers guidance regarding aviation rules and statutes, advice concerning airlines that have stopped operating or filed for bankruptcy protection, and travel tips and publications related to air travel, such as the Air Travel Consumer Report, Fly-Rights and the annual report on disability-related air travel complaints.
Source: DOT press release of Jan. 14, 2010; find full text here>>.
USA: Airbus sued over Sudan Airways crash?
Reportedly several families of victims of the Sudan Airways crash, while landing in the Sudanese capital a year ago, have filed a law suit in the Circuit Court of Cook County, Illinois. The flight which originated in Amman, passed through Damascus, and landed in Khartoum. Twenty-nine passengers and crew died in the accident.
Source: eTurboNews; find article here>>.
Source: eTurboNews; find article here>>.
UNWTO: Statement on Haiti
The UNWTO is deeply saddened by the losses of lives and devastation caused by the earthquake that struck Haiti and expresses its support to its people and sincere condolences to those who lost their loved ones. The severity of yet another natural disaster poses a new challenge for the international community and the UN World Tourism Organization wishes to show its solidarity with the people and the Government of Haiti.
UNWTO stands ready to lend its support during this difficult time by collaborating in the assessment of the damages caused, especially in the tourism sector, and contributing to a recovery plan in the conviction that tourism can become a useful instrument for the necessary reconstruction process.
Source: UNWTO press release of Jan. 14, 2010, find full text here>>.
UNWTO stands ready to lend its support during this difficult time by collaborating in the assessment of the damages caused, especially in the tourism sector, and contributing to a recovery plan in the conviction that tourism can become a useful instrument for the necessary reconstruction process.
Source: UNWTO press release of Jan. 14, 2010, find full text here>>.
Tuesday, January 12, 2010
Canada: visa-free privilege to be withdrawn from Hungarian tourists?
The federal government of Canada is considering withdrawing from Hungarian tourists the privilege to enter Canada without a temporary resident visa. The plan to require visas from Hungarian tourists follows a similar move made by Ottawa a few months ago to impose visa requirements on tourists from Mexico and the Czech Republic. The stringent measure was made to curb abuse of Canada's asylum system.
Source: eTurboNews; find article here>>.
Source: eTurboNews; find article here>>.
Finland: New logo for package travel
The Finnish Consumer Agency will launch a logo to be used on package travel documents and advertisements.
The logo was designed closely with the travel industry in Finland and we hope it will be used on most of the package travels sold in Finland starting from this year. The logo should make it easier for traveler to know which packages are sold as package travels and which are not.
The logo will be revealed at the Travel fare 2010 which will start on the 21st of January. With the logo the Consumer Agency will also promote the new tour organizer registry which you will find at www.valmismatka.fi (=package travel). The site will also open on the 21st. Trade mark registration is pending for the logo.
Reported to IFTTA by Petteri Lehtonen
Friday, January 08, 2010
Lockerbie Part 1
Dear Friends
At the IFTTA congress in Brazil I promised to update members on the Lockerbie legal issues in Scotland. Below, I have summarised the political and constitutional background to the case and in the next few days I will provide the latest update and a clarification on some matters.
Please be patient with me while I explain a little of the constitutional and political background. There was confusion in some of the foreign press about the role of the Scottish Government, UK Government, Scottish courts etc. Some thought that the Scottish Government had done some kind of deal with Libya: it was the UK Government. Some criticised the UK Prime Minister re the decision to repatriate al-Megrahi: it was a decision for the Scottish Government etc.
It is important to understand at the outset the constitutional framework. In 1603, the Scottish King James VI inherited the English throne, following the death of Elizabeth I of England. He thereby became James I of the United Kingdom. Scotland and England remained separate countries but with the same monarch, in the same way that the UK and Canada share the same monarch today. On 1 May 1707, the Scottish and English Parliaments were abolished and replaced by a British Parliament. This was created under the Treaty of Union between the two countries. The provisions of the Treaty, amongst other things, guaranteed the independence of the separate Scottish legal system, including its courts. Hence there is no appeal from Scotland to the House of Lords in Criminal matters. The Scottish Court of Criminal Appeal is the highest court. Furthermore, Scots Law is very distinctive from that of England. The terminology (e.g. homicide not murder, fire raising not arson), juries (15 not 12) and procedures are all different.
In 1999, the new Scottish Parliament was established, with control over most domestic matters, including justice. Matters such as trade, taxation, defence and foreign affairs are dealt with by the UK Parliament, to which Scotland also elects members. Indeed, the current Prime Minister, Gordon Brown represents a Scottish constituency.
The Labour Party forms the UK Government. In 1999, the Labour Party was also in power as the Scottish Government. In 2003 they formed a coalition in Scotland with the Scottish Liberal Democrats. However, in 2007 the Scottish National Party formed the Scottish Government. The SNP is a social democratic party. It wants an independent Scotland within the EU. As it poses a direct challenge to Labour in areas where Labour were traditionally popular, there is great deal of animosity between the two parties. The SNP, supported by the Scottish Green Party, plan to put a referendum for total independence to the Scottish people in 2012. The Labour, Liberal Democrats and Conservatives totally oppose this, though the Liberal Democrats are wavering.
At the IFTTA congress in Brazil I promised to update members on the Lockerbie legal issues in Scotland. Below, I have summarised the political and constitutional background to the case and in the next few days I will provide the latest update and a clarification on some matters.
Please be patient with me while I explain a little of the constitutional and political background. There was confusion in some of the foreign press about the role of the Scottish Government, UK Government, Scottish courts etc. Some thought that the Scottish Government had done some kind of deal with Libya: it was the UK Government. Some criticised the UK Prime Minister re the decision to repatriate al-Megrahi: it was a decision for the Scottish Government etc.
It is important to understand at the outset the constitutional framework. In 1603, the Scottish King James VI inherited the English throne, following the death of Elizabeth I of England. He thereby became James I of the United Kingdom. Scotland and England remained separate countries but with the same monarch, in the same way that the UK and Canada share the same monarch today. On 1 May 1707, the Scottish and English Parliaments were abolished and replaced by a British Parliament. This was created under the Treaty of Union between the two countries. The provisions of the Treaty, amongst other things, guaranteed the independence of the separate Scottish legal system, including its courts. Hence there is no appeal from Scotland to the House of Lords in Criminal matters. The Scottish Court of Criminal Appeal is the highest court. Furthermore, Scots Law is very distinctive from that of England. The terminology (e.g. homicide not murder, fire raising not arson), juries (15 not 12) and procedures are all different.
In 1999, the new Scottish Parliament was established, with control over most domestic matters, including justice. Matters such as trade, taxation, defence and foreign affairs are dealt with by the UK Parliament, to which Scotland also elects members. Indeed, the current Prime Minister, Gordon Brown represents a Scottish constituency.
The Labour Party forms the UK Government. In 1999, the Labour Party was also in power as the Scottish Government. In 2003 they formed a coalition in Scotland with the Scottish Liberal Democrats. However, in 2007 the Scottish National Party formed the Scottish Government. The SNP is a social democratic party. It wants an independent Scotland within the EU. As it poses a direct challenge to Labour in areas where Labour were traditionally popular, there is great deal of animosity between the two parties. The SNP, supported by the Scottish Green Party, plan to put a referendum for total independence to the Scottish people in 2012. The Labour, Liberal Democrats and Conservatives totally oppose this, though the Liberal Democrats are wavering.
Lockerbie - Part 3
The Scottish Government has issued an order under the Criminal Procedure Act 1995 that will allow the Scottish Criminal Cases Review Commission (SCCRC) to release some of the details of the review of the al-Megrahi case. The SCCRC cannot reveal all of the details as the law requires the consent of all the parties involved.
Following on from my explanation re the constitutional and political context; the Scottish Affairs Committee of the Westminster Parliament has invited the Scottish First Minister (Head of the Scottish Government), Alex Salmond, the Permanent Secretary to the Scottish Government, Sir John Elvidge, and the Scottish Justice Secretary, Kenny MacAskill, to give evidence on the state of cooperation between the Scottish Government and the UK Government. The hearing will take place on 11 January. Inevitably, Lockerbie will be a particular focus.
Meanwhile, a BBC investigation has cast doubt on a key piece of evidence used to convict al-Megrahi. The programme conducted tests to replicate the explosion. The result was that the tiny fragment identified as part of the bomb timer, and which was used to link al-Megrahi to the attack, could not have survived the mid-air explosion. It casts doubt on the forensics used to identify the fragment as part of the circuit board. This fragment had been found three weeks after the bombing. This was nonetheless ignored for months before being used by the prosecution as a central plank in the case against al-Megrahi. It was embedded in a piece of clothing, labelled "made in Malta". This piece of evidence led to an investigation as to who had purchased the clothing. Years later, a Maltese shopkeeper identified the purchaser as al-Megrahi. However, this was after he had seen him pictured in a magazine as a suspect in the case.
Al-Megrahi has placed hundreds of documents on a website stating, "I will do everything in my power to persuade the public, and in particular the Scottish public, of my innocence". The Scottish Lord Advocate, Elish Angiolini, has condemned this saying that it is a selective view of the evidence and that a court is the only place to determine al-Megrahi's guilt or innocence. His defence lawyers say that this is the only way of continuing to protest his innocence given that he had to abandon his appeal in order to be considered for compassionate release.
There have been calls for the UN to establish an inquiry into the Lockerbie case. This is supported by Hans Koechler, the UN observer at the original trial. It is also supported by Professor Robert Black, Emeritus Professor of Law at Edinburgh University. Professor Black was born in Lockerbie and attended Lockerbie Academy. Needless to say, he took a keen interest in the case. As holder of the Chair in Scots Law at Edinburgh University. Professor Black has been described as the architect of the legal framework enabling the case to take place in the Netherlands under Scots Law but without the usual jury of 15 persons.
Professor Black has expressed disbelief that the three judges convicted al-Megrahi on the evidence before them. In an interview with The Scotsman on 1 November 2005 Professor Black said Megrahi's conviction was "the most disgraceful miscarriage of justice in Scotland for 100 years." In addition to the failure to disclose the secret document, referred to in my previous account, questions about the forensics and the way evidence was handled, there are major concerms about the Maltese shopkeeper witness.
Professor Black regrets having proposed the special procedure that provided for a non-jury trial at Camp Zeist. He has stated: "If they had been tried by an ordinary Scottish jury of 15, who were given standard instructions about how they must approach the evidence, standard instructions about reasonable doubt and what must happen if there is a reasonable doubt about the evidence, no Scottish jury could have convicted Megrahi on the evidence led at the trial."
Following on from my explanation re the constitutional and political context; the Scottish Affairs Committee of the Westminster Parliament has invited the Scottish First Minister (Head of the Scottish Government), Alex Salmond, the Permanent Secretary to the Scottish Government, Sir John Elvidge, and the Scottish Justice Secretary, Kenny MacAskill, to give evidence on the state of cooperation between the Scottish Government and the UK Government. The hearing will take place on 11 January. Inevitably, Lockerbie will be a particular focus.
Meanwhile, a BBC investigation has cast doubt on a key piece of evidence used to convict al-Megrahi. The programme conducted tests to replicate the explosion. The result was that the tiny fragment identified as part of the bomb timer, and which was used to link al-Megrahi to the attack, could not have survived the mid-air explosion. It casts doubt on the forensics used to identify the fragment as part of the circuit board. This fragment had been found three weeks after the bombing. This was nonetheless ignored for months before being used by the prosecution as a central plank in the case against al-Megrahi. It was embedded in a piece of clothing, labelled "made in Malta". This piece of evidence led to an investigation as to who had purchased the clothing. Years later, a Maltese shopkeeper identified the purchaser as al-Megrahi. However, this was after he had seen him pictured in a magazine as a suspect in the case.
Al-Megrahi has placed hundreds of documents on a website stating, "I will do everything in my power to persuade the public, and in particular the Scottish public, of my innocence". The Scottish Lord Advocate, Elish Angiolini, has condemned this saying that it is a selective view of the evidence and that a court is the only place to determine al-Megrahi's guilt or innocence. His defence lawyers say that this is the only way of continuing to protest his innocence given that he had to abandon his appeal in order to be considered for compassionate release.
There have been calls for the UN to establish an inquiry into the Lockerbie case. This is supported by Hans Koechler, the UN observer at the original trial. It is also supported by Professor Robert Black, Emeritus Professor of Law at Edinburgh University. Professor Black was born in Lockerbie and attended Lockerbie Academy. Needless to say, he took a keen interest in the case. As holder of the Chair in Scots Law at Edinburgh University. Professor Black has been described as the architect of the legal framework enabling the case to take place in the Netherlands under Scots Law but without the usual jury of 15 persons.
Professor Black has expressed disbelief that the three judges convicted al-Megrahi on the evidence before them. In an interview with The Scotsman on 1 November 2005 Professor Black said Megrahi's conviction was "the most disgraceful miscarriage of justice in Scotland for 100 years." In addition to the failure to disclose the secret document, referred to in my previous account, questions about the forensics and the way evidence was handled, there are major concerms about the Maltese shopkeeper witness.
Professor Black regrets having proposed the special procedure that provided for a non-jury trial at Camp Zeist. He has stated: "If they had been tried by an ordinary Scottish jury of 15, who were given standard instructions about how they must approach the evidence, standard instructions about reasonable doubt and what must happen if there is a reasonable doubt about the evidence, no Scottish jury could have convicted Megrahi on the evidence led at the trial."
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