Austria: bonus miles earned through business trips are subject to income tax

In a recently published judgement, Austrian Admnistrative Court (VwGH) decided that bonus miles of a frequent flyer programme earned by an employee on business trips are a taxable benefit arising from the employer-employee relationship, if used for the employee's private purposes: even if only individual persons are eligable to participate in frequent flyer programmes while companies are excluded, miles earned on business trips are occasioned in the context of the employer-employee relationship and therefore constitute income from employment if used privately.

However, these benefits do neither constitute any wage tax liabilities of the employer nor any obligation of the employer to monitor the use of bonus miles.

Income tax therefore must be paid by the employee himself as soon as the bonus miles are redeemed for goods or services. The mere credit of miles doesn't create any tax obligation.

Judgment 2007/15/0293 of April 29, 2010 available in German here>>.

USA and Switzerland sign enhanced Open Skies Transport Agreement

Officials of the United States and Switzerland have signed an enhanced Open Skies Air Transport Agreement, replacing the previous agreement signed in 1995. The new agreement entered into force upon signature. The new agreement includes all of the essential elements of Open Skies and adds the right for airlines of both countries to operate all-cargo flights to third countries without a connection to the home country (“7th freedom rights”). In addition, the new agreement permits Swiss airlines to be owned and controlled by nationals of any member state of the European Union and extends to Swiss airlines the opportunity to compete under the “Fly America Act” for certain U.S. government civilian agency-funded passenger and cargo traffic between the United States and Switzerland and between non-U.S. points.

Source: travelpulse; find article here>>.

USA: DOT extends ADA protections to maritime passengers

As the 20th anniversary of the Americans with Disabilities Act approaches -- July 26 -- the Department of Transportation announced the first federal rule to specifically provide ADA protections to people with disabilities who travel on boats and ships. The rule covers vessels, like public ferry systems, operated by public entities. It also covers vessels, like cruise ships, operated by private entities primarily for transporting people.

First and foremost, its purpose is to make sure that boat and ship operators don't deny access to passengers based on their disability and that those passengers, once aboard, are treated fairly.

According to the new rule, passengers with disabilities cannot be charged extra for accessibility-related services and are not required to furnish their own attendants. It requires boat and ship operators to inform passengers of vessel accessibility and services, and it requires operators to have a knowledgeable person available to help passengers with disabilities resolve their concerns.

The new rule will become effective 120 days after it is published. There will be a 90-day comment period concerning three issues: whether vessel operators should be required to allow passengers with disabilities to bring emotional support animals on board, requirements operators must follow concerning the use of mobility aids, and the relationship of DOT and DOJ disability rules. The rule is available at www.regulations.gov, docket DOT-OST-2007-26829.

Source: DOT announcement of June 17, 2010. Full text available here>>.

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

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

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

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

The Court therefore dismissed the action brought by the Commission.

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

Full text of judgement available here>>.

Brazil: ANAC extends the rights of air passengers.

The ANAC – National Civil Aviation Agency, tied to the Ministry of Defence, has enacted the Resolution 141 which enters into force on June 13th. It broadens the rights of passenger flights delayed, cancelled or in case of breach (preventing the need for boarding aircraft or exchange overbooking). The main innovations are reducing the period within which the company must assist the passenger, the expansion of the right to information and immediate rearrangement in cases of cancelled flights, disrupted, and passengers unsuccessful boarding flights with confirmed reservations.
















The air companies are prohibits to sale tickets for the next company's flights to the same destination until all passengers affected by delay cancellation or breach is rearrange themselves.
Breaking the rules infraction ANAC general conditions of carriage and may result in fines ranging from BR$ 4000 to BR$ 10,000 per occurrence.

Resolution No. 141 partially replaces Ordinance No. 676-5/2000, as regards the rights and guarantees of when the passenger transport contract signed with the airline is reneging on grounds of delay, flight cancellation or breach of passengers. The full text of the new resolution is available (in portuguese) on the ANAC on the Internet: http://www.anac.gov.br/biblioteca/resolucao/2010/RA2010-0141.pdf

Source in portuguese: http://www.anac.gov.br/imprensa/direitoPassageiro.asp

USA: Senate approves cruise safety bill

The Senate voted unanimously Thursday to require the cruise industry to be more transparent in reporting cruise ship crime and comply with new cabin security and surveillance measures. The House must approve some legislative changes the Senate made to the bill, before it goes to the president for his signature.

Source: Travel Weekly; find article here>>.

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

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

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

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

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

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

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

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

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

Australia: advertising campaign to accompany tough new laws on sex tourism

The Australian government has promised to fight the sexual exploitation of children wherever it occurs. Adverts have been placed in national newspapers that warn offenders they can be prosecuted in Australia even if their crimes are committed elsewhere. The measures include jail terms of up to 25 years for Australians found guilty of sex crimes against children in foreign countries.

Source: bbc.co.uk; find article here>>.

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

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

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

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

Saudi Arabia: International Conference for Urban Heritage in the Islamic Countries

The first International Conference for Urban Heritage in the Islamic Countries, which was held in Riyadh during the period from May 23-28, 2010, has concluded its events with a number of recommendations, which were focused on the importance of preservation of the urban heritage of the Islamic countries and to develop it economically and culturally.

Source: Saudi Commission for Tourism and Antiquities; find full text of report here>>.

USA: DOT Proposes Additional Consumer Protections for Air Travelers

U.S. Transportation Secretary Ray LaHood today proposed new consumer protections for air travelers, building on the Department of Transportation’s recent rule banning carriers from subjecting passengers to long tarmac delays and other deceptive practices.

Specifically, the new proposed rule would:

• increase compensation for passengers involuntarily bumped from flights
• allow passengers to make and cancel reservations within 24 hours without penalty
• require full and prominently displayed disclosure of baggage fees as well as refunds and expense reimbursement when bags are not delivered on time
• require fair price advertising
• prohibit price increases after a ticket is purchased
• mandate timely notice of flight status changes
  

Comments on the proposal are due in 60 days. The text of the proposed rule and comments are available on the Internet at www.regulations.gov, docket DOT-OST-2010-0140.

Source: DOT press release of June 2, 2010; find full text here>>.

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

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

Source: Times online; find article here>>.

USA: DOT fines AirTran and Delta for price advertising rule violations

The U.S. Department of Transportation (DOT) assessed civil penalties against AirTran Airways and Delta Air Lines for violating rules that require airline price advertisements to disclose the full price consumers must pay for air transportation. The action against AirTran resulted from it advertising a fare that was not available, the action against Delta involved the carrier’s failure to provide adequate notice of taxes and fees that were not included in certain base fares at the first point they were advertised on its website. AirTran was fined $20,000 and Delta $40,000.

Source: travelpulse; find article here>>.

Germany: who can claim compensation for loss of holiday enjoyment?

Plaintiff had booked a Danube cruise arrangement with defendant for himself and his wife. As defendant cancelled the cruise, plaintiff claimed for compensation for loss of holiday enjoyment. Defendant payed a compensation half of the packacke price for one person to plaintiff but refused to pay any compensation in regard to plaintiff's wife, arguing plaintiff had had no authorisation by his wife when asserting the claim. A later assignation of the claim had missed the one month deadline. Plaintiff therefore filed a law suit.

Both, court of first instance (AG Frankfurt am Main) and appelate court (LG Frankfurt am Main) granted the claim: even though until to the assignation only plaintiff's wife herself had been entitled to the claim, the assignation constituted a retroactive authorization of the plaintiff.

In judgement Xa ZR 124/09 of May 26, 2010, German Supreme Court upheld these decisions. Though the court tended to the view that plaintiff as contract partner of defendant was entitled to file an individual suit this issue didn't have to be definitely clarified as the assignation had constituted a retroactive authorization, anyway.

Source: BGH press release 109/2010 of May 26, 2010

Germany: Ryanair must not charge extra fees for credit card payments

Upon law suit of Federal Consumer Asscoiation (Bundesverband der Verbraucherzentralen), German Supreme Court (BGH) in judgement Xa ZR 68/09 of May 20, 2010 decided that Ryanair may exclude chash payment but, however, must not charge extra fees for card payment. BGH held that to receive payments of the customers was one of the basic obligations of an entrepreneur who therefore had to provide a common and reasonable way to pay. If payments are only possible by cards no extra fee can be charged therefore.

Source: BGH press release; available in German here>>.

Italy: Ryanair fined for failing to assist passengers in volcanic ash crisis

Italy has fined Irish low-cost airline Ryanair 3 millon EUR for failing to help passengers after cancelling their flights during the volcanic ash crisis. Italy's civil aviation authority said it knew of 178 cases of passengers who did not receive mandatory assistance, such as food, between 17 and 22 April. Ryanair denies the allegations.

Source: BBC News; find article here>>.

UK: injunction against BA strikes overturned

A court of appeals overturned an injunction against strikes planned by British Airways’ cabin crew, and walkouts will occur unless the two sides reach an agreement. A first block of strike dates (May 18 to 22) was stopped by the injunction, but a walkout is likely to happen during the second block (May 24 to 28).

BA advises customers to check its website "on a regular basis" to see if their flight is still operating. If their flight has been canceled, customers should not come to the airport but contact British Airways or their travel agent, said the airline.

Source: Travel Weekly; find article here>>.

European Court of Justice: Advocate General gives opinion on jurisdiction based on website advertising

Advocate General Trstenjak today delivered her opinion in joint cases C-585/08 (Pammer v. Reederei Schlüter) and C-144/09 (Hotel Alpenhof v. Heller). Both cases concern the issue whether the fact that a website of the party with whom a consumer has concluded a contract can be consulted on the internet was sufficient to justify a finding that an activity is being 'directed', within the terms of Article 15(1)(c) of Regulation (EC) No 44/2001 ('the Brussels I Regulation'). Advocate General Trstenjak suggested to answer that the mere accessablity of a website is not sufficient. National courts rather have to take into regard all circumstances including content of the website, hitherto business activities, language, domain name and extent of use of internet advertising opportunites. It should, however, not be decisive whether it was an 'interactive' or 'passive' website as the 'direction' of an activity does not depened on the particular technical means used to conclude the contract.

Case C-585/08 (Pammer v. Reederei Schlüter) in addition involved the issue whether a journey on a cargo ship including accomodation, opportunity of shore leaves and certain leisure facilities on board (swimming pool, gym, deck-chairs, etc.) constitutes a contract which, for an inclusive price, provides for a combination of travel and accommodation according to Art. 15(3) of the Brussels I Regulation. Advocate General Trstenjak suggested to answer this question to the positive.

Full opinion available in German, French, Italian, Slovene and Finnish.

USA: Airline loses pet dog

A Canadian couple has turned to the internet for help in finding their pet dog Paco, lost by Delta Airlines, after he was checked in for a flight from Mexico City to Detroit. Delta at first said that the dog remained in its cage at Mexico City airport. But then the airline admitted that Paco had disappeared — and offered a $200 travel voucher in compensation. Delta has meanwhile increased its offer two more $200 vouchers plus $380 to cover the costs of Paco’s shots, food, leash and the kennel.

Source: Times Online; find article here>>.

Google to compete against travel agencies?

Google is moving into the area of the travel agency by adding live hotel rates to its popular maps service in order to appeal to business travellers using Google to research their trip. Research from Travelport says that 54% of British business travellers use the internet to research their trips. Most British business travellers use Google or another search engine (51%), followed by the hotel website (40%), the airline website (35%) and general travel sites such as TripAdvisor (28%).

Source: Times Online; read article here>>.

European Court of Justice: liability limit of Montreal Convention includes both material and non-material damage

The Montral Convention provides that the liability of a carrier in the case of destruction, loss, damage or delay of baggage is limited to the sum of 1000 Special Drawing Rights (SDR) for each passenger (a sum equivalent to approximately €1134.71)3, unless a passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case, as a rule a carrier is liable to pay a sum not exceeding the declared sum.

On 14 April 2008, Mr Walz brought an action against the airline Clickair claiming damages from it for the loss of checked baggage in the context of a flight from Barcelona (Spain) to Oporto (Portugal) operated by that company. In that action, Mr Walz claimed total damages of €3200: €2700 for the value of the lost baggage and €500 for non-material damage resulting from that loss. The Juzgado de lo Mercantil nº 4 de Barcelona (Commercial Court No 4, Barcelona, Spain), before which the proceedings were brought, asks whether the limit of air carriers’ liability set by the Montreal Convention in the case of loss of baggage includes both material and non-material damage or whether, on the contrary, material damage is subject to the limit of 1000 SDR, while, on the other hand, non-material damage is subject to a further limit of the same amount, so that the total combined limit for material and non-material damage is 2000 SDR.

European Court of Justice on May 6, 2010 ruled that for the purposes of determining the limit of an air carrier’s liability for the damage resulting, inter alia, from the loss of baggage, the term ‘damage’ in the Montreal Convention must be interpreted as including both material and non-material damage.

Source: ECJ press release 43/10
Full text of judgement Walz v Clickair C-63/09 available here>>.

European Union: Consumer Centres act together to help ash crisis passengers

On 4 May 2010, the Network of European Consumer Centres (ECC-Net), supported by the European Commission and operating in all EU Member States (as well as Iceland and Norway), published a practical complaint package, which is designed to help consumers affected by recent flight disruptions to exercise their consumer rights guaranteed under EU laws. The package includes a standard complaint letter, contact details of all airlines and other practical advice.

Source: Europa Press Releases RAPID, Reference: IP/10/492, Date: 04/05/2010

Australia: Federal Court rules agains Qantas in fuel surcharge case

Australian Federal Court today ruled the fuel surcharge the airline charges passengers is not a tax, but simply part of the fare. Qantas will therefore be made to repay years of disputed commission fees to travel agents of tens of millions of dollars at least.

The court upheld an appeal by Leonie's Travel, forcing airlines to include the fuel surcharge in their base figure for calculating commissions paid to agents. The case will now return to the original judge to determine how much Qantas owes the agents.

Source: The Sidney Morning Herald; find article here>>.

Full text of Fedreral Court Judgement Leonie's Travel Pty Ltd v Qantas Airways Limited

[2010] FCAFC 37 available here>>.

U.S. Travel Association Calls for End to Arizona Travel Boycott

Roger Dow, president and CEO of the U.S. Travel Association, today called for an end of all Arizona travel boycotts and urged Washington policymakers to do what their constituents have repeatedly asked them to do and address the complex issue of immigration. “We call for an end to counterproductive Arizona travel boycotts. Immigration reform is an important and sensitive topic for Arizona and the country at large. This complex issue should be resolved on the merits of various proposals, not by holding an industry and its 300,000 employees hostage to politics.", Dow said.

Source: U.S. Travel Association press release; find full text here>>.

Kenya: unlicensed Mara lodges closed

Kenyan government has shut down a number of safari lodges and camps in the wider Masai Mara area which were operating without licenses. More investigations are also underway into properties under construction to establish that they, too, have all relevant licenses, including clearance from National Environment Management Authority (NEMA) and Kenya Wildlife Service (KWS), and these findings are likely to produce more action against offenders.

The Masai Mara is one of Kenya’s best known tourism attractions and forms the extension into Kenya of the Tanzanian Serengeti National Park, and the annual migration of the wildebeest and zebras moves between the two parks every year, when the big herds follow the rains to find fresh pastures.

Source: eTurboNews, find article here>>.

Germany: reference for preliminary ruling of the ECJ in regard to travel agency taxation

German Federal Financial Court (Bundesfinanzhof) filed a reference for preliminary ruling on whether the 'special scheme for travel agents' in Article 26 of Directive 77/388/EEC on the harmonisation of the laws of the Member States relating to turnover taxes also applies to the sale by a travel agent of opera tickets in isolation, without the provision of additional services (Case C-31/10 - Minerva Kulturreisen).

Art 26 of the directive provides as follows:
1. Member States shall apply value added tax to the operations of travel agents in accordance with the provisions of this Article, where the travel agents deal with customers in their own name and use the supplies and services of other taxable persons in the provision of travel facilities. This Article shall not apply to travel agents who are acting only as intermediaries and accounting for tax in accordance with Article 11 A (3) (c). In this Article travel agents include tour operators.
2. All transactions performed by the travel agent in respect of a journey shall be treated as a single service supplied by the travel agent to the traveller. It shall be taxable in the Member State in which the travel agent has established his business or has a fixed establishment from which the travel agent has provided the services. The taxable amount and the price exclusive of tax, within the meaning of Article 22 (3) (b), in respect of this service shall be the travel agent's margin, that is to say, the difference between the total amount to be paid by the traveller, exclusive of value added tax, and the actual cost to the travel agent of supplies and services provided by other taxable persons where these transactions are for the direct benefit of the traveller.
3. If transactions entrusted by the travel agent to other taxable persons are performed by such persons outside the Community, the travel agent's service shall be treated as an exempted intermediary activity under Article 15 (14). Where these transactions are performed both inside and outside the Community, only that part of the travel agent's service relating to transactions outside the Community may be exempted.
4. Tax charged to the travel agent by other taxable persons on the transactions described in paragraph 2 which are for the direct benefit of the traveller, shall not be eligible for deduction or refund in any Member State.

EU updates aviation security rules

Regulation 300/2008 on aviation security applicable as of 29 April 2010 puts in place new rules to improve, streamline and simplify existing procedures. For example by:

• Eliminating duplication of security controls. For example, reducing costly duplication of checks in strictly controlled areas of EU airports, where there has already been strict screening for access. This is of significant operational benefit for airlines and airports.
• Simplifying procedures. For example, by establishing a single set of standards for the documents you need to get access at airports. The new rules clarify which kinds of identification and authorisations are necessary for access to different restricted areas. This clarifies the situation for authorities making it easier for them to operate the system.
• Harmonising procedures. For example, introducing EU-wide procedures for the recognition of hauliers transporting air cargo consignments. These can be recognised and used by hauliers in all Member States – this reduces restrictions for hauliers and the need for costly re-screening of cargo.
• Introducing common minimum standards as regards security training for all staff that implement security controls.

By 29 April 2013 at the latest, all liquids will be allowed in cabin baggage and will be screened. By that date, the current restrictions on the carriage of liquids in cabin baggage will end. The transition period until 2013 is necessary to allow for a roll-out of liquids screening equipment at all EU airports.

Source: Europa Press relase RAPID IP/10/479 of 29/04/2010

English Contract Law Case

Maggs (Trading as BM Builders) v Mark [2006] EWCA Civ. 1058

The general rule in English Law is that where there is a written contract the court should not look at the subsequent conduct of the parties in order to construe the terms. However, where the contract is partly written and partly oral the court may look at subsequent conduct in order to construe the parties’ original intentions. In determining the terms of an oral contract it is necessary to look at the facts of the case and what was said and done subsequent to the agreement may help to determine what the parties’ original intentions were.

English Case: Unfair Contract Terms

Baybut v Eccle Riggs County Parks Ltd., The Times, 13 November 2006

The court held that it was highly unlikely that the Unfair Terms in Consumer Contracts Regulations 1999 were ever intended to apply to implied terms. They apply only to express terms, whether oral, written, electronic etc.

English Air Law Case: Denied Boarding Regulations

Parker v TUI UK Ltd (Trading as Austravel) 30 October 2006



P had booked a flight from Heathrow to Sydney with TUI trading as Thomsonfly. P claimed that she had been informed by them that she was booked on a scheduled flight with Qantas. On later discovering that she was in fact booked on a chartered flight she paid to be upgraded to “premium economy” at a cost of £325 (€374/$496).

On arrival at Sydney airport, she was told that her return flight was delayed by 24 hours due to mechanical failure. In accordance with the EU Regulation of 2004, she was offered overnight accommodation, free transport to and from the airport, free meals and free telephone calls. She refused these, preferring to stay at a friend’s house in Sydney. She was subsequently told that the return flight would in fact delayed by 49 hours. After the initial 24 hour period expired, and having unsuccessfully tried to contact the defendant, she booked an alternative flight home to Gatwick with Qantas. TUI refunded the cost of the delayed flight to Heathrow in accordance with the Regulations.

C claimed the cost of the upgrade, taxis to and from her friend’s house in Sydney, the taxi from Gatwick to Heathrow and £500 (€576/$763) for loss of enjoyment. She also claimed that she had not been provided with the notice of her rights under the Denied Boarding Regulations.

The court held that the Regulations did not permit a free standing Private Law cause of action. Instead, it provided a Public Law remedy to enforce the rights set out in the Regulations. C could report breaches of the Regulations to the CAA. TUI had reimbursed her for the cost of the flight not made and had met their obligations in respect of accommodation, meals, telephone calls etc. The contract was a contract of carriage, not a contract for a holiday. It was not therefore a contract for enjoyment and therefore the claim for loss of enjoyment failed. The contract was governed by the Carriage by Air Acts, implementing the Montreal Convention, and thus no alternative common law remedy was available.

UK: Aviation Law

Civil Aviation (Contribution to Air Travel Trust) Regulations 2007

This Act requires all Air Travel Organiser Licence (ATOL) holders to contribute to the Air Travel Trust Fund. The amount that they are required to contribute is based upon the number of passengers included in bookings under their licence. The CAA is required to publish the applicable rates of payment, the dates that they are due and the methods of payment. It is an offence for an ATOL holder to knowingly or recklessly supply false information to the CAA under these provisions for the purposes of paying less than they are due to pay. The CAA can refuse to issue, vary, suspend or revoke a licence where the holder is in breach of these Regulations.

Scottish Hotel Law Case

Drake v Dow 2006 SCLR 456

D stayed at a guesthouse. During the night his laptop was stolen from his room. His bedroom door did not have a lock. He claimed damages from the guesthouse owner under the praetorian edit nautae, caupones, stabularii. The Roman Law edict, which is part of Scots Law, imposes strict liability on innkeepers for guest’s property.

The Sheriff Principal held that the edict did not apply as the guesthouse was not an inn or hotel under the provisions of the Hotel Proprietors Act 1956. It was merely a bed and breakfast establishment and thus the owner was not an innkeeper/hotelkeeper for the purposes of the edict. The court applied Watling v McDowall (1825) 4 S 83.

Scottish Insurance Law Case

In Scots Law, a contract of insurance is considered a contract uberrimae fidei i.e. "of the utmost good faith" and those taking out insurance have a duty to disclose all material facts:



Cuthbertson v Friends Provident Life Office 2006 SLT 567



C took out an insurance policy in 1994. It was called a “Homebuyers Plus Policy” and included life assurance and “serious illness and disability benefit”. C also took out an Income Protection Policy which would pay a weekly amount in the event that she would be unable to work due to sickness or accident.



In 1996 she was diagnosed with multiple sclerosis and submitted her claim under both policies in 1999. Her claim was rejected on grounds that she had failed to disclose a material fact at the time of taking out the policies. Prior to doing so, she had attended her general practitioner for a painful left eye and otalgia in her left ear. She did not disclose this or three subsequent visits to her doctor on her proposal form.



The Court of Session held that the test to be applied in this case was that laid down in Foster v Foster (1873) 11 M 351 i.e. would a reasonable person with C’s knowledge have appreciated that these consultation with the doctor would have been considered as material facts by a prudent insurer. The court’s answer was “no”. C was entitled to the insurance benefits.

Scottish Tourist Board

Tourist Boards (Scotland) Act 2006

This Act abolishes the network tourist boards. It renames the Scottish Tourist Board as VisitScotland and increases the maximum membership of the Board from 6 to 11 members. It thereby amends the Development of Tourism Act 1969.

IATA calls for Single European Sky

During the volcanic ash crisis more than 100,000 flights were grounded because individual countries made different decisions over whether or not to open up their airspace. A Single European Sky would put the skies under one regulatory body and act as a crisis management mechanism, which would eliminate confusion. It would also improve Europe’s competitiveness and environmental performance, said IATA.

Europe’s Transport Council is set to meet on May 4 to discuss the issue of implementing a Single European Sky.

Source: eTravelBlackboard; find article here>>.

China lifts ban on tourists with STD, HIV and leprosy

As Shanghai prepares to host the world exposition, China has lifted a two-decade ban on travel to the country by people who carry the virus that causes AIDS or who have other sexually transmitted diseases or leprosy. The ban on travel is now officially limited only to people with infectious tuberculosis, serious mental disorders and “infectious diseases which could possibly greatly harm the public health.”

Source: The New York Times; find article here>>.

German Supreme Court: flexible pricing in travel brochures admissible

A German association combatting unfair competition sued TUI for not publishing final prices in travel brochures. TUI had published prices with the reservation of a revision of EUR 50 up or down applying to each flight route. The association saw an infringement of pricing rules requiring indication of a binding price.

German Supreme Court (BGH) in judgement I ZR 23/08 - Costa del Sol, of April 29, 2010, however, deemed the reservation to be admissible because of the limitations in range and reasons of potential revision as well as because of a clear reference to potential price changes until conclusion of the contract. Such reservation would allow tour operators a certain fexibility in printed brochures which was a matter of course in internet trading.

Source: BGH press release 92/2010 of April 29. 2010; full text available in German here>>.

Obviously BGH saw no cause to file a reference for preliminary ruling with regard to the interpretation of Art. 3 para 2 PTD.

German Supreme Court decides on cross-ticketing

German Supreme Court (BGH) in today's judgment Xa ZR 5/09 decided that airlines must not declare a ticket void if the flight coupons are not used in their correct order. Such provisions are widely used in general conditions of contract of several airlines to prevent passengers from booking flight segments which they actually don't want to use in order to benefit from a lower price.

In the particular case the German Federal Consumer Protection Association (Bundesverband der Verbraucherzentralen) had sued British Airways and Lufthansa to cease and desist from using such provisions.

BGH acknowledged a legitimate interest of the airlines to avoid evasions of their tariff systems; this purpose, however, could also be achieved by milder means as for instance a surcharge for not having used a coupon for a flight segment. To completely ban the passenger from further contractual services would be disproportionate and against the principle of good faith as the provisions at stake made no distinction on whether the passenger deliberately booked more segments than required or left coupons unused for justified reasons.

Source: BGH press release 91/2010; full text available in German here>>.

English Hotel Case

Lewis v Six Continents PLC (formerly Bass PLC) [2005] EWCA Civ. 1805

While staying at a hotel, L fell from the window of his second floor room. The accident occurred during the course of the night and L had no recall as to how it had happened. He suffered severe head injuries. His claim under section 2 of the Occupiers’ Liability Act 1957 was rejected on the grounds that SC could not be expected to assess the dangers posed by all windows in the hotel. L had probably fallen as a result of leaning out of the window.

The Court of Appeal held that there was nothing exceptional about L’s use of the room and its fixtures and fittings. The window did not present any obvious danger to an adult. There had not been any previous reports of accidents involving that window. It concluded that it was not reasonably foreseeable that an adult would lean out of the window in such a way that the occupier should have restricted the way in which the window could be opened.

Arizona: new immigration law detrimental to tourism?

Many officials in Arizona's tourism and hospitality industry fear that the state's new immigration law is anything but hospitable. Hotel owners, tour operators and convention executives say the law could discourage visitors and companies from meeting there at a time when one of the state's vital industries already is suffering. There are already some calls for an economic boycott.

Source: USA today; find article here>>.

Austrian Supreme Court: no liability for usual conduct on 'battleground' breakfast buffet

Plantiff and defendant both stayed as guests in a health resort. Each morning breakfast buffet was quite crowded as patients' breakfast time was limited and many patients had to start their treatments early. One morning defendant was queuing up behind plaintiff and within the crowd suddenly her leg somehow got between plaintiff's legs. Plaintiff tripped over denfendant's leg, fell down and suffered injury.

First instance court (LG Wels) dismissed the claim, appelate court (OLG Linz) upheld the judgement: Crowding at a breakfast buffet was comparable to taking part in a sporting competition. In both cases there was no liablity for the typical rsiks of usual conduct.

Austrian Supreme Court (OGH) in decision 2 Ob 237/09f of Jan. 1, 2010 confirmed this view and empahsized that plaintiff had failed to produce evidence of any fault on behalf of plaintiff.

Full text of Supreme Court decision avialable in German here>>.

France: Burqa ban to apply to tourists too

France's government announced it would apply a proposed ban on face-covering Islamic veils to visiting tourists as well as residents, even as skepticism mounted over the legality of the plan. The draft bill will be presented to the cabinet next month. France's highest court has already warned the government that a complete ban could be unlawful.

Source: eTurboNews; read article here>>.

USA: exemptions from new tarmac-delay rules denied

The U.S. Department of Transportation has denied the requests of five airlines for a temporary exemption from a new rule limiting tarmac delays to three hours. The new rule goes into effect on April 29. Airlines face fines of up to $27,500 per passenger for planes that sit on the tarmac for more than three hours.

Some airlines requested exemptions for New York's Kennedy Airport arguing their operations would be affected by a runway closure. Other exemptions were requested for neighbouring airports because delays at Kennedy would disrupt operations at the other New York-area airports.

The DOT said it received 125 comments from individuals on the carriers' requests for exemption from the three-hour rule, and that all but two opposed the requests.

Source: Travel Weekly; find article here>>.

UNWTO: Event on Travel and Tourism under Challenging Circumstances

To be better prepared for crisis situations, the World Tourism Organization (UNWTO), with the joint collaboration of the Ministry of Tourism of Malaysia, is convening a review and preparation exercise for the region of Asia and the Pacific which is to take place in Kuala Lumpur, Malaysia on the 3-4 May of 2010.

Primarily aimed at the region of Asia and the Pacific, the objective of this review and preparation exercise is to address the challenges and opportunities that the ongoing pandemic has brought so far onto the tourism industry, with special emphasis on coordination, market intelligence and communications. The analysis of the unfolding pandemic (H1N1) 2009 situation will be also used to better prepare for other crises situations whether of global or regional importance.

The exercise will address the following:

• The current situation of the pandemic (H1N1) 2009 and the possible scenarios of future development.
• Key challenges for the travel and tourism sector with a special emphasis on coordination at national and international level.
• Modern Crisis Communications combining the best of both the classical approach and the modern communications/social networks.
• Strategies to help limit the negative impacts, to best adjust the preparations of the travel and tourism sector and lessons learned since the onset of the pandemic.

Further information to be found here>>.

On the 20th Aniversary of the Package Tours Directive

Possibly, the Academic Event of the Year in the field of Travel and Tourism Law!

Registration here:
http://www.fe.ualg.pt/cidta/index.php

Alaska: cut in cruise tax ratified

The Alaska State Legislature passed a bill that will reduce the state’s cruise passenger head tax from $46 to $34.50, and end a lawsuit the industry filed to overturn the tax. The Alaska Cruise Association signed an agreement last week with the Alaska attorney general to drop the lawsuit if the state passed the measure to reduce the tax.

Source: Travel Weekly; find article here>>.

Air passengers' rights

Reference for a preliminary ruling before the ECJ (Case C-83/10 Rodríguez ea/Air France) from the Juzgado de lo Mercantil de Pontevedra (Spain) regarding the questions,

1. whether the term 'cancellation', defined in Art 2 lit l of Regulation 261/2004/EC has to be interpreted as meaning only the failure of the flight to depart as planned or is it also to be interpreted as meaning any circumstance as a result of which the flight on which places are reserved takes off but fails to reach its destination, including the case in which the flight is forced to return to the airport of departure for technical reasons?
2. whether the term 'further compensation' used in Art 12 has to be interpreted as meaning that, in the event of a cancellation, the national court may award compensation for damage, including non-material damage, for breach of a contract of carriage by air in accordance with rules established in national legislation and case-law on breach of contact or, on the contrary, must such compensation relate solely to appropriately substantiated expenses incurred by passengers and not adequately indemnified by the carrier in accordance with the requirements of Art 8 et seq even if such provisions have not been expressly relied upon or, lastly, are the two aforementioned definitions of the term further compensation compatible one with another?

Bulgaria: reference for a preliminary ruling on PTD

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

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

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

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

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

IATA: severe criticism on European response to Icelandic volcano eruption

The International Air Transport Association (IATA) sharply criticized European governments for their lack of leadership in handling airspace restrictions in light of the Icelandic volcano eruption, and urged a re-thinking of the decision-making process. IATA in particular criticized Europe’s unique methodology of closing airspace based on theoretical modeling of the ash cloud an that decisions have been taken without adequately consulting the airlines.

Source: IATA press release of April 19, 2010; find full text here>>.

UK: consultation on creating new consumer right

Altough Consumers are protected from traders' misrepresentations and unfair dealing by the Consumer Protection from Unfair Trading Regulations, which implement EU law, they cannot take direct action under these Regulations. The Law Commission and Scottish Law Commission are therefore reviewing whether or not consumers should be able to take direct action against retailers who treat them unfairly. It has asked consumers and businesses if the action would be too severe.

Source: out-law.com; find article here>>.

European Union: Evaluation of Reg. 261/2004

European Commission has published a final report on the evaluation of Reg. 261/2004. Despite some significant improvements in the protection of passenger rights, the report identifies the following remaining problems:

• some carriers are still not consistently complying with the requirements of the Regulation or are interpreting the Regulation in a way which minimises their obligations;
• in many Member States, enforcement is not effective enough to provide carriers with an economic incentive to comply;
• in several Member States, there is no mechanism available by which individual passengers can readily obtain redress from carriers;
• although rulings by the European Court of Justice (ECJ) have addressed some ofthe issues in the Regulation that were unclear, a number of issues have not been addressed and
• in some areas the rights granted by the Regulation can lead to different understandings (for example relating to long delay and cancellation) or do not address all the problems that passengers may face (such as missed connections due to delays).

The report makes a number of recommendations, including improvements to the enforcement of the Regulation, other improvements to the operation of the Regulation which would not require any legislative changes as well as possible changes to the requirements of the Regulation, if a decision is made to revise it.

The study, which was first reported to IFTTA by Stephan Keiler, is avialable for download in pdf here>>.

Kentucky: suit against online travel companies dismissed

Warren County Circuit Court has dismissed a lawsuit filed by the city of Bowling Green against Hotels.com, Orbitz, Expedia and Travelocity claiming that the companies owed back occupancy taxes to the city. The judge agreed with the online travel companies contention that the taxes can be levied only on the physical establishment that provides sleeping accommodations.

Source: travelpulse; find article here>>.

Dubai: appeals court upheld prison sentence for tourist couple

A Dubai appeals court upheld a one-month prison sentence for a British couple convicted of kissing in a restaurant. The tourists landed in court upon complaint of an Emirati woman. Though they insisted the "kiss" was just a peck on the cheek, they were arrested in November and convicted of inappropriate behavior and illegal drinking.

Source: eTurboNews; find article here>>.

European Union: updated airline blacklist bans airlines from Philippines and Sudan

To improve safety in Europe, the European Commission – in consultation with Member States’ aviation safety authorities – has decided to ban airlines found to be unsafe from operating in European airspace. The 'blacklist' was established in 2006 and is updated annually.

The latest update of March 30, 2010 imposes an operating ban on all airlines from Sudan and the Philippines due to noncompliance with international safety conditions. Some Iran Air jets will also be banned from flying to Europe while North Korea's state-owned carrier Air Koryo has received a partial exemption from the airline blacklist.

Source: EC press release of March 30, 2010

Find updated list here>>.

USA: Supreme Court refuses to hear Frequent Flyer Depot case

American Airlines' frequent flyer program prohibits the purchase or sale of the program’s mileage credit or award tickets and makes such mileage or tickets void if transferred for cash or other consideration. American sued Frequent Flyer Depot, and its owners for brokering AAdvantage mileage credit and award tickets. In September 2008, the trial court granted the airline’s request for a temporary injunction and issued an order enjoining the brokers from purchasing, brokering, bartering, selling, offering for sale or soliciting AAdvantage mileage credit or award tickets through the completion of the trial. The appeals court rejected Frequent Flyer Depot’s appeal and held that the airline’s contract with its frequent flyer program members is based on mutuality of obligation and thus is enforceable.

The US Supreme Court has now refused to lift the temporary injunction against Frequent Flyer Depot.

Case: Frequent Flyer Depot v. American Airlines, 09-815

Sources: The NV Flyer, eTurboNews

Qatar Airways announces new South American flights.

Qatar Airways announced that it will begin daily flights to Brazil and Argentina from June 24, marking the airline’s first online operations to South America. With the airline’s acquisition of two brand new Boeing 777-200 Long Range aircraft in the last three months, these will be deployed on the two South American routes – to the Brazilian city of Sao Paulo and Argentine capital Buenos Aires this summer.

The date announcement comes just weeks after the airline revealed plans to serve South America, and spread its wings to yet another Continent. The flights will offer convenient connections from key markets across Asia and the Gulf to South America.

Source: TravelDailyNews; find article here>>.

USA/Texas: limited airline liability for injury caused by other passenger

In Wright v. American Airlines, Inc. (N.D. Tex. Feb. 8, 2010), during the aircraft’s climb flight, and while the “fasten seat belt” light was on, a passenger stood up to remove an item from an overhead compartment. An object fell down and struck another passenger on his head, injuring him.

The injured passenger sued American under the Montreal Convention, alleging that the airline was liable for damages “exceeding 100,000 SDRs as provided in Article 21.” American moved for partial summary judgment, contending that, under Article 21(2), it should not be held liable for any damages in excess of 100,000 SDRs because the plaintiff’s injuries had not been caused by the airline’s negligence but solely by a third party, the other passenger.

The court found that the airline had presented sufficient evidence to prove that the injuries were not caused by any negligence, omission, or other wrongful act on its part or on the part of its flight crew. In particular, court found that the airline had done all that it could do by making a preflight announcement that the “fasten seat belt” sign had been turned on and that passengers should be careful when opening an overhead compartment. Accordingly, the court held that plaintiff could not recover damages from American in excess of 100,000 SDRs.

Source: The NV Flyer; find article here>>.

German Supreme Court: no compensation for flight cancellation due to bad weather condidtions

Plaintiff had booked a flight from XRY (Jerez, Spain) to HHN (Hahn, Germany) for himself and his wife for Oct. 25, 2007 with Ryan Air. Departure was scheduled 10:00 a.m.. Due to foggy conditions at XRY, the flight was cancelled. The aircraft landed in SVQ (Sevilla, Spain) and returned to HHN from there. Plaintiff and his wife were offered an alternative flight on Oct. 27 which they refused. They booked a flight from MAD (Madrid, Spain) to FFM (Frankfurt, Germany) for Oct. 25 instead.

Plaintiff sued for compensation of EUR 400 each under Art. 7 Reg. (EC) 261/2004 as well as additional costs of the flight MAD-FFM.

First instance court (Amtsgericht Simmern) dismissed the claim. Appellate court granted the claim to a large extent.

Upon appeal by Ryan Air, German Supreme Court (BGH) dismissed the claim with regard to compensation under Art. 7 and repealed the judgement with regard to additional costs for procedural supplement.

In judgement Xa ZR 96/09 of March 25, 2010, BGH held that whether a cancellation reasonably could have been avoided had to be judged from case to case. Under the particular circumstances it had not been foreseeable how long the foggy conditions would last. Taking into regard the impact on the further flight schedule it would therefore not have been reasonable for Ryan Air to postpone the decision on cancellation.

Anyway, by offering alternative transportation not before Oct. 27, Ryan Air may have failed to comply with its obligation to provide adequate alternative transportation and may be liable for additional costs - which appellate court will have to consider in further proceedings .

Source: BGH press release 64/2010, available in German here>>.

English Holday Camp Case

Atkins v Butlin’s Skyline Ltd., 27 May 2005

A, a blind man, stayed at a holiday camp with his wife and daughter. He was injured in exiting a lift when the lift door closed, trapping his upper arm and shoulder. The lift had been inspected 9 months previously and the contractor had recommended that a sensor should be installed to identify any obstruction to the lift doors closing. This was subsequently fitted after A’s accident. Under examination in court, one of the contractor’s inspectors acknowledged that the lift was safe “if not disabled friendly”. The court held B liable for failing to have carried out a risk assessment and for failing to install the sensor.

B appealed on the grounds that it had met its’ obligations under Section 2 of the Occupiers’ Liability Act 1957 to keep A reasonably safe on the premises. The judge had been wrong to declare that the lift was unsafe given that the only expert evidence heard in court, that of the lift inspector, had acknowledged that the lift was safe for use by disabled persons.

John J Downes

English Hotel Employment Case

Hone v Six Continents Retail Ltd. [2005] EWCA Civ 922

H was employed as a licensed house manager at a hotel for 4 years, when he was moved to another hotel owned by the same company. He began to suffer from headaches and insomnia. After 8 months of working in the new hotel he had a meeting with the operations manager to express his concern about the excessive workload and the need for the appointment of an assistant manager. He had recorded workloads of around 90 hours a week. After 9 months in the new post, he suffered giddiness and chest pain and subsequently collapsed at work. He claimed that this was because of stress due to his excessive workload. He was awarded £21840 (€24396/$32513) damages for psychiatric injury due to stress at work.

The employer appealed. It contested the number of hours work that H claimed but admitted in court that this recording of hours may have been a cry for help. However, S claimed that it could not have reasonably have foreseen, from the time of H’s meeting with the operations manager, that H would suffer psychiatric injury. He had no previous history of mental illness or stress at work.

The Court of Appeal rejected S’s appeal. The employer was aware that H had been working long hours. He had complained about it for a long period and had decided not to sign the opt-out permitted under the Working Time Regulations because of it. There was sufficient evidence of impending harm to health and a reasonable employer would have done something about it.

John J Downes

English Travel Law Case: Coach Travel

Welsh v Messenger, 13 September 2005, [CLYB] 2875

W, aged 68, suffered serious neck and hip injuries when the coach she was travelling on veered off the road and rolled down a bank. She had not been wearing a seatbelt at the time and was thrown from the coach. In 2001, a regulation had been introduced requiring all coaches made after that date to be fitted with 3 point seatbelts. The accident occurred in 2002. The regulation did not require that passengers use the seatbelts but the Highway Code 2004 advised that passengers should do so where they were available. The 2002 version of the code contained no such advice.

M claimed that W had been contributory negligent in that she had not worn a seatbelt. W pointed out that she was a frequent coach traveller and had never been warned of the requirement to wear a seatbelt. Although she always wore a seatbelt when travelling by car, she believed that she was relatively safer in not doing so in the environment of a large car. The court dismissed the claim of contributory negligence. There was no general public perception of the importance of wearing seatbelts in coaches and W had not been negligent.

John J Downes

English Travel Law Case

Clough v First Choice Holidays and Flights Ltd. [2006] EWCA Civ. 15

Whilst on holiday, C slipped from a wall that divided two swimming pools, fell into a paddling pool and broke his neck. He was under the influence of alcohol at the time. The judge agreed that the tour operator had been negligent in that the wall between the two pools had not been coated with non-stick paint. However, it was for C to establish that that had been the cause of the accident and he had failed to do so and so the claim was dismissed. He appealed on grounds that it was not for him to prove that the use of non-slip paint would have prevented the accident. If its use was likely to have made a difference then failure to use it should have been treated by the judge as having made a material contribution to the accident and thereby establishing liability. His counsel argued that there were two distinct concepts: material contribution to damage and material contribution to the risk of damage. All that he had to establish was that F’s negligence (or that of F’s supplier) had made a contribution to the risk that was more than minimal.

The Court of Appeal held that holidaymakers were entitled to a reasonable degree of protection whether they were sober or not. C was owed a duty of care by F. The accident was not an exceptional one. However, the court rejected C’s argument on the distinction between material contribution to damage and material contribution to the risk of damage as irrelevant in a case, such as this, where the injuries arose from a single accident. C was required to show that a breach of duty on the part of F caused or materially contributed to his injury. This had been correctly applied by the judge and he concluded, on the balance of probabilities, that the accident would not have been avoided even if non-stick paint had been used.

John J Downes

Evaluation of Regulation 261/2004/EC

The final report (110 pages) as of February 2010 made by Steer Davies Gleave / London for the European Commission DG Transport can be found and downloaded here:

Report

Travel Law Conference in Portugal

Next 7 May, the University of the Algarve at Faro will held an International Travel Law Conference focused on The 20 Years of the European Package Travel Directive.

With some of the most renown Experts from Portugal, Spain, Austria, Germany and Ireland, but also from the USA and Brazil, as invited Speakers, this intends to be the most relevant Academic event on the current Anniversary of the Directive.

UK lawmakers: privacy fears over body scanners overblown

The privacy fears raised by the deployment of full body scanners at airports are overblown, a committee of British lawmakers said Wednesday, adding that the technology was no more of a threat to passengers' rights than pat-downs or bag searches.

The government promised to install body scanners across Britain's airports after a botched attempt to bring down a Detroit-bound jet on Dec. 25 — allegedly by a terrorist who hid explosives in his underwear.But privacy groups bristled at the prospect of scans that can peer under clothes to reveal hidden items, likening them to a "virtual strip search."

The report welcomed the introduction of the scanners and recommended that other security measures be adopted quickly, including new equipment to sniff out trace levels of explosives.

Source: Los Angeles Times; find article here>>.

USA: new legislation requires disclosure of airline fees

The Federal Aviation Administration reauthorization bill, passed by the Senate earlier this week, contains a new provision that would require airlines and online travel agencies to clearly disclose all fees associated with the cost of a ticket, including holiday surcharges, baggage fees and seat assignments.

The bill also includes the Passenger Bill of Rights, which mandates that aircraft cannot remain delayed on the tarmac for longer than 3 hours before having to return to the gate. Alternatively, the rule allows the airline to send buses to take passengers off the plane so the aircraft doesn't lose its place in line to take off.

In response to recent plane crashes, the bill also

• tightens pilot hiring, testing, training, and rest requirements for large and small airlines
• bans the use of personal electronic devices in the cockpit

The F.A.A. reauthorization bill now has to go into conference committee and be reconciled with the House version of the same bill.

Sources: New York Times "In Transit" Blog; find article here>>.
eTurboNews; find article here>>.

UNWTO: China may become top tourist destination by 2015

China, the world's fourth-most popular tourist destination at present, will surpass France as the largest tourist destination by 2015, according to Taleb Rifai, secretary general of the UNWTO. In the last ten years, the number of foreign tourists to China has increased from 8 to 48 million.

Source: eTurboNews; find article here>>.

Idaho: lawmakers block full-body scanners

The Idaho House of Representatives has voted 58-9 in favor of HB 573, legislation from Rep. Phil Hart, R-Athol, to restrict the use of full-body imaging for airport security in Idaho. Rep. Russ Mathews, R-Idaho Falls, backed the bill, saying Americans shouldn’t sacrifice freedoms in the name of security. The bill now moves to the Senate.

Source: The Spokesman-Review; find article here>>.