England: no tour organizer liability for toboggan accident

Plaintiff (P) and her family booked a skiing holiday at Mayrhofen, Austria with defendant (D). The package included the hotel and the flight but made clear that ski equipment, ski passes and any lessons had to be booked separately. The internet brochure stated that tobogganing was available at the resort. On the third day P asked D's representative at the resort who had welcomed the group on their arrival if a tobogganing event was suitable for their party of adults and children, particularly P's seven year old son Joe and whether it was available that evening. D's representative replied that D had no spaces left. She suggested that she would contact another tour operator called Inghams and get the family party on the event with them which she then did.

The event itself was organised by an Austrian company called Action Club Zillertal (“ACZ”) who took bookings from members of the public as well as from tour operators such as D.The bus from the hotel was provided by ACZ who handed out a docket or ticket to those on the bus entitling its passengers to obtain a toboggan and a ride on the gondola (which took the participants up to the beginning of the toboggan run). Four representatives of D were on the trip and at the toboggan run spread themselves out among the participants. The fast participants went first, the slower ones following. P and a friend arrived safely at the end of the run (although they could not stop until they had passed a red light indicating the end of the run). They got off their toboggan a little beyond the proper end of the run.

After the red light there was a prominent sign stating “Ende der Rodelbahn”. After this sign only just before a snowbank, the road went round a left hand bend quite steeply downhill towards the cable car station and a chalet hotel which was on the right. The accident happened because P and heri friend had remounted their toboggan and came down the lower road from the end of the run to the cable car station too fast. Seeking to avoid the buildings they careered into some straw bales which were hard and frozen. P suffered severe injury to her legs.

The judge of first instance court found that the tour representatives had briefed the participants both on the bus and at the top of the mountain that there was a flashing red light at the end of the run and that they must then get off their toboggans, and walk down the rest of the way to the toboggan shed and the bus. The judge specifically found that this instruction was given several times and that P had heard it. He dismissed the claim.

Upon P's appeal, the High Court of Justice held that it was not entirely easy to determine, on the exiguous evidence before the judge, whether P had a contract with D in relation to the toboggan run.Had there been a contract, the only relevant term would be an implied term that D would exercise due diligence. However, D had assumed responsibility to their customers, and owed them a duty of care in tort.

Anyway, it was not the duty of a tour operator dealing with rational adults on a winter holiday to repeat simple warnings already given with clarity or to point out obvious dangers of ice on the road and the relative safety of snow at its side. So to hold would only encourage potential claimants to believe that whenever an injury occurs someone must be to blame. That is not what the law of negligence is about.

Case Details: Susan Parker v. TUI UK Ltd [2009) EWCA Civ 1261; full text of judgement available here>>.

USA: Greece joins Visa Waiver Program

Greece has become a member of the Visa Waiver Program, enabling Greeks to travel to the U.S. for up to 90 days with just a valid passport. Greece joins 35 other nations already participating in the Visa Waiver Program.

Source: Travel Weekly; find article here>>.

Uganda: World Heritage site burned down

The nearly 130 years old Kasubi Tombs in Kampala , where several of the late Kings of Buganda are laid to rest and which was a focal point for tourists and the kingdom’s subjects for visits, burned down. It has been recognized as a UNESCO World Heritage Site since 2001, and has always had a special place in the itineraries for tourists.

Source: eTurboNews; find article here>>.

European Union / USA: New 'Open Skies' Deal?

European Union and U.S. negotiators will push hard to complete long-running negotiations to open markets in transatlantic air travel. Talks will resume in Brussels on March 23. The EU in particular wants the U.S. to end restrictions on EU investment in U.S. airlines.

An EU and U.S. agreement would build on an initial ground breaking "Open Skies" deal concluded two years ago which finally broke through the stranglehold that flag carriers had over their domestic markets.

Source: The Wallstreet Journal; find article here>>.

European Union: List on responses to public consultation on the PTD revision

European commission has published a list on responses to the public consultation on the PTD revision. The list which provides links to the respective responses covers both the responses to the questionnaire in the IPM-tool (online questionnaire) and e-mail contributions and is available here>>.

Spain: Court ruling on missed connecting flight and lost baggage

Plaintiffs purchased flight tickets from Barcelona to Mexico City via London. The initial flight to London took off 30 minutes delayed. As a consequence, plaintiffs missed their connecting flight to Mexico City. The airline placed the plaintiffs on an alternative flight, which arrived in Mexico City more than nine hours later than originally planned. On arrival a piece of plaintiffs' luggage was lost.

First instance court granted €1,200 in damages for the delay under EU Regulation 261/2004 and €1,150 in compensation for the lost suitcase, pursuant to Article 22 of the Montreal Convention.

On appeal of both parties, Barcelona Provincial Court ruled that

• the original flight could not be divided into two separate flights (ie, Barcelona to London and London to Mexico City), but must be considered as a whole (ie, Barcelona to Mexico City) compensate plaintiffs in the amount determined at first instance and
• compensation for material and non material damages together may not exceed the limit established in the Montreal Convention and again confirmed the amount of compensation determined at first instance.

Source (Copyright): ILO Newsletter; find article by Miguel Gordillo here>>.

Summary posted with kind permission of author and pursuant to ILO copy right information.

USA: DOT fines US Airways for fare ad violation

The U.S. Department of Transportation (DOT) has assessed a $40,000 civil penalty against US Airways for violating rules that require airline price advertisements to disclose the full price consumers must pay for air transportation.

The DOT's Aviation Enforcement Office found that when consumers searched US Airways' website for one-way flights sorted by schedule, the airline provided a set of fares that did not include additional applicable taxes and fees or any notice on that page that the additional charges would be required. Under DOT’s requirements for Internet advertising displays, the full fare must either be listed on the first screen that provides fare quotes, or the existence of additional government-imposed per-passenger charges must be prominently disclosed along with a hyperlink that takes consumers to a page that describes the additional charges.

The consent order is available on the Internet at www.regulations.gov, docket DOT-OST-2010-0005.

Source: DOT press release 44-10 of March 8, 2010

English Holiday Case

Gow v TUI UK Ltd. (Trading as Crystal Holidays) [2006] CLYB 1071

G booked a package holiday with T through a travel agent (X). He made the booking over the telephone and paid during the call. On arrival at the hotel G discovered that he was allocated a room in the hotel annexe as he had not paid the supplement required to be accommodated in the main building. T’s terms and conditions made clear that a supplement was payable. Though G was unaware of this at the time of the booking there was a reference to the terms and conditions on X’s invoice provide to G prior to travel.

The court held that, although X was T’s agent, the contact had not been formed over the phone. X was merely conveying to G T’s provisional acceptance of the booking. This was standard practice in the industry. X’s invoice was the contractual document and thereby incorporated the terms and conditions into the contract.

UK: Race Discrimination Law

English Case: Serco Ltd. V Redfearn [2006] EWCA Civ. 659

R was employed as a bus driver and escort for people with disabilities. A local newspaper revealed that he had become a candidate in the local council elections for the British National Party (BNP). The BNP campaigns against immigration and, until forced by the courts to do so, prohibited those that are “not native” to these islands from membership. Trade unions and other employees made representations to the employer expressing their concern about the employment of a BNP candidate in a firm where a substantial part of the workforce, and in an area where a substantial part of the population, were of Asian origin. He was elected as a councillor and was then dismissed from his job on grounds that he would represent a health and safety risk to employees and passengers and would jeopardise his employer’s reputation.

The Court of Appeal rejected his claim that his dismissal was due to racial discrimination. The reason for his complaint was that he was dismissed because of his political affiliation and that was not covered by the Race Relations Act. He was not dismissed on grounds that he was white but because he was a representative of the BNP

UK: Race Discrimination Law

The Race Relations Act 1976 and Equality Act 2006

In Great Britain (Scotland, England and Wales) the Race Relations Act 1976 prohibits discrimination on grounds of race, colour, national or ethnic origin, or nationality. Discrimination on the grounds of language is not directly prohibited, but may amount to ‘indirect discrimination’. The Act is complemented by a code of practice: the Code of Practice for the Elimination of Racial Discrimination and the Promotion of Equality of Opportunity in Employment, prepared by the then Commission for Racial Equality.

Employers who fail to observe the statutory provisions are not liable to criminal prosecution but it is not advisable, though, for an employer to ignore the recommendations laid down in the codes of practice, as this may be used as evidence in a complaint to an employment tribunal.

The Race Relations Act prohibits discriminatory acts in relation to applicants and employees.

· It is unlawful to discriminate in the arrangements made for recruiting. Questions during the course of recruitment indicating an intention to discriminate, and the employer making prejudicial assumptions based on race, could lead to allegations of discrimination.

· It is unlawful to discriminate against a person in the terms on which employment is offered.

· It is unlawful to segregate people in the same racial group.

· There must be equal opportunity in access to promotion, transfer and training.

· Assistance with training for particular work may be offered to a racial group under-represented in that work in the preceding 12 months.

The Equality Act 2006 abolished the Commission for Racial Equality and two other bodies and replaced them with the Commission for Equality and Human Rights. It also introduced new provisions in respect of discrimination on grounds of religion and belief.

UK: Disability Discrimination Law

Greenhoff v Barnsley Metropolitan Borough Council [2006] IRLR 98

G suffered from clinical depression. On return to work he was offered a lesser role than he previously held. He resigned and claimed disability discrimination and unfair constructive dismissal. The employment tribunal held that Barnsley MBC had breached the provisions of the Disability Discrimination Act 1995 by failing to make reasonable adjustments that would have enabled G to continue in his former role. However, it rejected his claim for unfair constructive dismissal.

The Employment Appeal Tribunal held that Barnsley MBC’s failure to make the reasonable adjustments as required by the 1995 Act amounted to breach of their implied duty of maintaining trust and confidence and thereby amounted to unfair constructive dismissal.

UK: Disability Discrimination Law

UK: Disability Discrimination Law

The Disability Discrimination Act 1995 deals with discrimination against disabled people. The Act applies throughout the UK. It outlaws such discrimination in relation to employment, the provision of goods, facilities and services and the sale and letting of property. The UK Government is empowered to make regulations setting minimum standards for the accessibility of land-based public transport for disabled people. It also established the National Disability Council and the Northern Ireland Disability Council to advise the Government on discrimination against disabled people.

Part I of the Act defines disability as a physical or mental impairment which has, or has had, a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.

It is unlawful for an employer, who has 15 or more employees, to discriminate against a disabled employee or job applicant by treating that person less favourably than the employer treats or would treat others. The reason for the less favourable treatment must relate to the person’s disability. Discrimination may be justified, however, if the reason for it is both material to the circumstances of the particular case and is substantial.

Employers have a duty to make reasonable adjustments to working practices and to the physical environment where these would place a disabled employee or job applicant at a substantial disadvantage in comparison with people who are not disabled. Where the employer fails to make such adjustment, this will amount to unlawful discrimination. If the employer leases premises, the landlord must not unreasonably refuse to consent to alterations made by the employer to comply with the obligations imposed by the Act.

The Disability Discrimination Act 2005 applies to England, Scotland and Wales. The Act amends or extends existing provisions in the DDA 1995, including:

making it unlawful for operators of transport vehicles to discriminate against disabled people
making it easier for disabled people to rent property and for tenants to make disability-related adaptations
making sure that private clubs with 25 or more members cannot keep disabled people out, just because they have a disability
extending protection to cover people who have HIV infection, cancer and multiple sclerosis from the moment they are diagnosed
ensuring that discrimination law covers all the activities of the public sector
requiring public bodies to promote equality of opportunity for disabled people.

The Disability Rights Commission (DRC) was set up by the government to help secure civil rights for disabled people and produces guidance and further information on which areas are covered by anti-discrimination law for disabled people.

The development of legislation to improve the rights of disabled people is an ongoing process. From 1 October 2004, Part 3 of the DDA 1995 has required businesses and other organisations to take reasonable steps to tackle physical features that act as a barrier to disabled people who want to access their services. This may mean to remove, alter or provide a reasonable means of avoiding physical features of a building which make access impossible or unreasonably difficult for disabled people. Examples include:

putting in a ramp to replace steps
providing larger, well defined signs for people with a visual impairment
improving access to toilet or washing facilities

Businesses and organisations are called 'service providers' and include shops, restaurants, leisure centres and places of worship.

England: Air Law Case: DVT

Deep Vein Thrombosis v Air Travel Group Litigation, Re [2005] UKHL 72

The group appealed against a decision of the English Court of Appeal made in 2003 that the development of deep vein thrombosis (DVT) on board an international flight did not amount to an “accident” under Article 17 of the Warsaw Convention 1929. The House of Lords rejected the appeal. It held that an event or occurrence that was no more than the normal operation of the aircraft did not constitute an “accident” for the purpose of the convention. The onset of DVT did not amount to an accident. The event or the damage complained of had to be external to the passenger. The court applied the decision in Air France v Saks 470 US 392. Cramped conditions on an aircraft may be a causative link to the DVT suffered by the passengers but they did not constitute an accident.

Scotland: Hotel Premises

Bass Taverns Ltd v Secretary of State for Scotland 2000 SLT 775

An enforcement notice was served on the owners of a hotel alleging that they were in breach of planning consent. They had had permission to have a beer garden as an ‘incidental use’ of the hotel premises. They extended the use of the beer garden by increasing the number of tables. The enforcement notice alleged that they had thereby breached their planning permission, causing a detriment to the amenity of local residents due to the increased noise and nuisance. They successfully appealed against the notice.

The Court of Session held that, as the beer garden had existed for some years, it was covered by existing planning permission. The fact that they had increased its use did not stop it being ‘incidental’ to the main hotel premises.

UK Planning Law Framework for Tourism and Leisure Premises

Planning Law Framework for Tourism and Leisure Premises in the UK

The law governing planning in England and Wales is contained mainly in the Town and Country Planning Acts 1947 to 2004. In Scotland the main provisions are found in the Town and Country Planning (Scotland) Act 1997. There is also a large amount of subordinate legislation. Generally, English, Scots and Northern Irish planning law is similar, and for the most part the implications of the legislation for travel or tourism are the same under all three legal systems.

One of the matters planning legislation covers is the use to which land and/or buildings are to be put. Planning permission is required if a material change is to be made in the use of land or buildings. It is a matter of fact whether a change of use is 'material'. One of the criteria for judging this is the primary use to which a building is put, rather than any ancillary use. This was discussed by me in a previous post in respect of the English case of R (on the Application of I’m Your Man Ltd.) v North Somerset Council. [2004] EWHC 342.

A modification to this requirement that planning permission is required for all material changes of use is that the Use Classes Order will generally permit changes of use within a particular class (defined in the Order) without planning permission. This is because changes within classes defined in the Order have little (if any) impact on the community.

The 'use class' to which a travel agency belongs is A1 (shops). In Scotland the category is Class 1 (shops) (Town and Country Planning (General Permitted Development) (Scotland) Order 1992). This class includes shops, hairdressers, undertakers, post offices, repair and pet shops. It does not include garages, petrol stations, car showrooms, restaurants and cafes, betting shops, hotels or licensed premises. Organisations such as banks, estate agents and building societies are classified as 'financial, professional and other services'. Car hire and driving instructors' establishments are categorised as offices rather than shops.
If a change of use is trivial, planning consent will not be required.

Similar provisions are set out in the Planning (Use Classes) Order (Northern Ireland) 2004.

The Town and Country Planning (Use Classes) (Amendment) (England) Order 2005 provides that Internet cafes are now included in use class A (shops). Class A£ (food and drink) is now subdivided into three categories: A3 - restaurants and cafes; A4 - pubs and wine bars; A5- hot food takeaways. This applies to England only.

The National Assembly for Wales has recently acquired regulatory powers in respect of planning orders.

New Zealand: German tourist jailed for smuggling geckos

A German tourist was sentenced to jail after he admitted trying to smuggle native New Zealand geckos out of the country — the second such case in five weeks. He was caught with 13 adult geckos and three immature animals in the southern city of Christchurch on Feb. 16 by Conservation Department inspectors. The District Court in Christchurch was told nine of the 11 females were pregnant and expected to give birth to one or two young in the next few weeks. The animals had a value of 192,000 New Zealand dollars ($134,000) on the European market.

Source: Christchurch Court News; find article here>>.

Brazil: interactive online tourism experience

The Brazilian Tourist Board, EMBRATUR, announced the world's first Google/YouTube brand channel combining videos and Google maps to provide an interactive online Brazilian tourism experience. Accessible at www.youtube.com/visitbrasil, the site features more than 85 videos from Brazil. This is the first convergence of its kind involving Google Maps into YouTube to date.

Source: Brazilian Minstry of Toursim; find announcment in Portuguese here>>.

England: Transport Museum Planning Permission

R (On the Application of I’m Your Man Ltd.) v North Somerset Council [2004] EWHC 342

Planning permission had been obtained for the erection of a helicopter museum. Some time after it opened it began to increase the number of helicopter flights at the site. M sought judicial review of the planning authority’s decision not to take enforcement action against the museum. The court held that helicopter flights are an incidental purpose to the running of a helicopter museum and therefore covered by the planning permission. However, the planning authority should continue to monitor the number of flights at the site.

UK Transport Law - Accessibility

Public Service Vehicles Accessibility (Amendment) Regulations 2005

These Regulations, made under the provisions of the Disability Discrimination Act 1995, provide wheelchair accessibility and general accessibility requirements for disabled persons on buses and coaches.

Northern Ireland Equality Law

Employment Equality (Sex Discrimination) Regulations (Northern Ireland) 2005

These Regulations bring Northern Ireland into line with Scotland, England and Wales in respect of equal treatment of men and women in employment and working conditions. They also bring in definitions of indirect discrimination, harassment and genuine occupational qualifications. It also clarified a previous confusion in the law by providing that discrimination on grounds of pregnancy amounts to unlawful sex discrimination.

English Case

Derbyshire First Choice Holidays & Flights Ltd. 5 October 2004

D suffered injuries during a skiing accident on holiday. D could have booked the “ski pack” at the time of booking the package holiday but did not do so. Instead, D booked the ski package through F’s representative at the resort. The package was provided by an independent company but D paid F’s representative for it and received a receipt bearing the name of the supplier but also containing F’s logo. F had an arrangement with that company to provide ski packs to all of F’s clients that wanted one.

The injuries were caused by defects in the skiing equipment. D claimed under the provisions of the Package Travel Regulations and under F’s terms and condition. Alternatively, D claimed that there was a separate and parallel contract to the package holiday contract with F for the hire of the skiing equipment which F provided by the supplier. F had been negligent in the choice of the supplier.

The court held that the hire of the ski pack was not part of the package holiday contract and therefore did not come under the provisions of the Package Travel Regulations. It was not pre-arranged nor inclusively priced. The ski package was sold outside of the territory of the UK. D’s contact was with the independent ski hire company and F was merely the agent. The display of F’s logo and the fact that D paid F did not detract from F’s role as agent in this transaction. There was no evidence that F had been negligent in its selection of a supplier. The accident was as a result of an isolated lapse in checking the equipment.

English Holiday Case

Samuels v MyTravel Tour Operations Ltd. (Trading as Cresta Holidays), 27 February 2004

S made an online booking for a holiday at a luxury 4 star hotel in Mauritius. On arrival, S discovered that there was construction going on at the hotel from early morning till late at night, under floodlit conditions. MTO Ltd’s representative was unhelpful and said that there was no suitable alternative accommodation to be found. S pent considerable time in sorting it out and found and paid for alternative accommodation. The court held that he was entitled to a full refund of the £3778 (€4164/$5644) plus £1000 (€1102/$1494) for loss of enjoyment and £135 (€149/$202) for taxi fares and telephone calls.

Cherry v Malta Bargain Ltd [2005] CLYB 958

C booked a holiday including flights and a 3 star hotel in Malta for herself, her husband and 4 children. The total cost was £1848 (€2037/$2761). On arrival she discovered that the bedding was stained and that the bathroom and bedrooms were dirty. She was offered an upgrade by the tour operator for £546 (€602/$816). She accepted this but it involved a move in the midday sun and cost her £10 for taxis and £3 for drinks (total €14.33/$19.42). However, they discovered that this second hotel was not really suitable for a family holiday and after 3 days they moved to a more suitable hotel.

The court held that MB Ltd was responsible for the state of the hotel. Cleanliness was a basic requirement irrespective of the star rating and the standards of cleanliness in Malta should be the same as those in the UK. Damages were awarded at £1207 (€1330/$1803) which included £546 (€602/$816) for the upgrade costs; £13 (€14.33/$19.42) for the transfer; £198 (€218/$296) for diminution in the value of the holiday and £450 (€496/$672) for loss of enjoyment (£25 per person per day). The calculation for diminution in value related to the accommodation which is generally held to account for 25% of the total value of the holiday in the English courts.

UNWTO: Solidarity with Chile after Earthquake

In a letter to the Chilean tourism authorities, the UNWTO Secretary-General, Taleb Rifai, conveyed the Organization’s “solidarity with the people of Chile” after the earthquake that hit Chile on 27 February. Through its Regional Representation for the Americas, “UNWTO will deal extensively with the issue of natural disasters”, he added. Mr. Rifai underscored his conviction that Chile “will be able to recover and return to the path of growth and wellbeing it has experienced in the past”.

Source: UNWTO press release of March 1, 2010