Lambert v Travelsphere [2005] CLYB 957
L had booked a package tour in January 2003 which included flights to Beijing, a tour of China and a three day stopover in Hong Kong on the way back. In March that year the World Health Organization issued a warning about SARS for those travelling to Hong Kong. They and the UK Department of Health strongly advised against travel there. On 8 April T wrote to L stating that some of the itinerary had been changed but that the Hong Kong stopover may still take place. L cancelled on 12 April and claimed a full refund including the cancellation fee chargeable under T’s terms and conditions. On 23 April, T cancelled the tour and fully refunded other holidaymakers under Regulations 12 and 13 of the Package Travel Regulations.
T argued that it was entitled to retain the cancellation charge as, at the time that L cancelled, T’s notice of 8 April was still in effect and it had expected to provide the tour including the stopover in Hong Kong. Furthermore, even if Hong Kong had been excluded it was not an essential term of the contract.
On appeal it was held that the letter of 8 April was merely a statement that T might be constrained to alter the tour, not that T was actually altering it. Any uncertainty in L’s mind was due to the publicity concerning SARS and not because of the letter of 8 April. Thus, Regulation 12 did not apply.
The court went on in obiter, to say that the Hong Kong stopover was an essential term. Also for T to be considered as “constrained” to alter the terms meant that it had to be absolutely inevitable and unavoidable.
Friday, July 09, 2010
UK. Airline Catering Staff. Working Time Regulations
Gallagher v Alpha Catering Services Ltd (Trading as Alpha Flight Services) [2005] ICR 673
Catering services employees were required to spend “downtime” at airports while waiting for aircraft to be serviced. The place that they were required to wait in only had basic facilities such as a toilet. They might be required to service an aircraft at any moment. This downtime was therefore held not to be a “rest-break” for the purposes of the Working Time Regulations 1998. The company could not claim retrospectively that they had had a 20 minute break if they had not been required to service an aircraft during that time.
Catering services employees were required to spend “downtime” at airports while waiting for aircraft to be serviced. The place that they were required to wait in only had basic facilities such as a toilet. They might be required to service an aircraft at any moment. This downtime was therefore held not to be a “rest-break” for the purposes of the Working Time Regulations 1998. The company could not claim retrospectively that they had had a 20 minute break if they had not been required to service an aircraft during that time.
UK. Car Hire. Distance Selling
Easycar (UK) Ltd. V OFT (C 336/03) [2005] All ER (EC) 835
E provided car hire services in the UK and other Member States. Customers could book the services on the Internet. E’s terms and conditions only permitted cancellations by consumers in very exceptional circumstances. The Office of Fair Trading brought the action on grounds that E was not complying with the provisions of Article 6 of the Distance Selling Directive which permits a cooling-off period.
The ECJ held that car-hire was a form of transport service and therefore exempt under the provisions of Article 3(2) of the Directive. Providing a car-hire service was the provision to consumers with a means of access to transport.
E provided car hire services in the UK and other Member States. Customers could book the services on the Internet. E’s terms and conditions only permitted cancellations by consumers in very exceptional circumstances. The Office of Fair Trading brought the action on grounds that E was not complying with the provisions of Article 6 of the Distance Selling Directive which permits a cooling-off period.
The ECJ held that car-hire was a form of transport service and therefore exempt under the provisions of Article 3(2) of the Directive. Providing a car-hire service was the provision to consumers with a means of access to transport.
England: Agency Law
Moran v First Choice Holidays & Flights Ltd. [2005] EWHC 2478
C was injured when she fell off a quod bike being driven by her husband. The quad bike was provided as part of an excursion purchased at the resort in the Dominican Republic. The husband had failed to control the bike and it veered off the road, descending down a drop of 13-14 feet. The court held that F was liable as it had acted as the undisclosed agent of the company providing the excursion.
C was injured when she fell off a quod bike being driven by her husband. The quad bike was provided as part of an excursion purchased at the resort in the Dominican Republic. The husband had failed to control the bike and it veered off the road, descending down a drop of 13-14 feet. The court held that F was liable as it had acted as the undisclosed agent of the company providing the excursion.
UK. Airline - Religious Discrimination
Eweida v BA PLC [2009] ICR 303
BA’s uniform policy prohibited the visible wearing of jewellery or personal items unless the wearing of the item was scripturally mandated and could not be concealed under the uniform. Even in the case of this exception, permission from management was required. E, a practising Christian, was sent home after she insisted on wearing a plain silver cross over her uniform. She remained off work for 4 weeks. She was not paid during that period. BA then changed its policy and permitted staff to display a faith or charity symbol with their uniform, provided that they first obtained management’s permission.
E appealed against a tribunal’s decision that BA’s previous policy did not put Christians at a particular disadvantage compared to other persons. The EAT dismissed the appeal. The protection afforded those with a religious or philosophical belief was broad. That belief might be intensively personal and subjective. It was not a legal requirement that that belief is shared by others or mandated y an established religion. A provision may amount to indirect discrimination of it adversely affected a group, even if they complied with it. The strongly held view amongst some staff that they should be allowed to openly wear jewellery was not confined to those who held a religious beliefs. The law required E to establish that the provision disadvantaged a particular group. She had not established that there were others who, though they complied with BA’s policy, objected to having to do so on religious grounds.
BA’s uniform policy prohibited the visible wearing of jewellery or personal items unless the wearing of the item was scripturally mandated and could not be concealed under the uniform. Even in the case of this exception, permission from management was required. E, a practising Christian, was sent home after she insisted on wearing a plain silver cross over her uniform. She remained off work for 4 weeks. She was not paid during that period. BA then changed its policy and permitted staff to display a faith or charity symbol with their uniform, provided that they first obtained management’s permission.
E appealed against a tribunal’s decision that BA’s previous policy did not put Christians at a particular disadvantage compared to other persons. The EAT dismissed the appeal. The protection afforded those with a religious or philosophical belief was broad. That belief might be intensively personal and subjective. It was not a legal requirement that that belief is shared by others or mandated y an established religion. A provision may amount to indirect discrimination of it adversely affected a group, even if they complied with it. The strongly held view amongst some staff that they should be allowed to openly wear jewellery was not confined to those who held a religious beliefs. The law required E to establish that the provision disadvantaged a particular group. She had not established that there were others who, though they complied with BA’s policy, objected to having to do so on religious grounds.
Scotland. Montreal Convention Damages
O’Carroll v Ryanair 2009 SCLR 125
O, a married couple, successfully claimed against Ryanair in the Sheriff Court for a 48 hour delay in delivery of their luggage. The sheriff awarded £215 in compensation for out of pocket expenses and £535 for stress and inconvenience. R appealed on grounds that the latter was excluded by the Montreal Convention (implemented in the UK by the International Carriage by Air Act 1999) as this amounted to exemplary or non-compensatory damages. The Sheriff Principal rejected the appeal. The £ 535 damages for stress and inconvenience were plainly compensatory under the Law of Scotland and did not amount to punitive damages, which Scots Law does not permit
O, a married couple, successfully claimed against Ryanair in the Sheriff Court for a 48 hour delay in delivery of their luggage. The sheriff awarded £215 in compensation for out of pocket expenses and £535 for stress and inconvenience. R appealed on grounds that the latter was excluded by the Montreal Convention (implemented in the UK by the International Carriage by Air Act 1999) as this amounted to exemplary or non-compensatory damages. The Sheriff Principal rejected the appeal. The £ 535 damages for stress and inconvenience were plainly compensatory under the Law of Scotland and did not amount to punitive damages, which Scots Law does not permit
England and Wales. Protection of the Environment
The Conservation of Habitats and Species Regulations 2010
The EC Habitats Directive was implemented in the UK by a series of Habitats Regulations. The Directive aims to protect biodiversity by conservation of natural habitats and species of wild flora and fauna. The aim of the 2010 Regulations is to consolidate more than 30 amendments introduced over the last 16 years. It applies to England and Wales only. Scotland and Northern Ireland will consolidate their legislation later.
The EC Habitats Directive was implemented in the UK by a series of Habitats Regulations. The Directive aims to protect biodiversity by conservation of natural habitats and species of wild flora and fauna. The aim of the 2010 Regulations is to consolidate more than 30 amendments introduced over the last 16 years. It applies to England and Wales only. Scotland and Northern Ireland will consolidate their legislation later.
Reform of Scottish Arbitration Law
Arbitration (Scotland) Act 2010
The aim of the Act was to “set the scene for a renaissance of Scottish arbitration” and to provide a “modern, impartial and efficient arbitration regime”. It codifies existing Scots legislation and Case Law on arbitration.
The New York Convention on Recognition and Enforcement of Arbitration Awards 1958 requires contracting states to give effect to private agreements to go to arbitration and to recognise and enforce arbitration made in other contracting states. There are 142 contracting state, including the UK. The Arbitration Act 1975 gave effect to this in Scotland.
The Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 adopted the UNCITRAL Model Law on International Commercial Arbitration in Scots Law but its provisions were not applied to domestic arbitration. The model law assisted states in reforming and modernising their law or arbitral procedures so as to take into account the needs of international commercial arbitration. This model was repealed in Scotland by the 2010 Act.
This Act has similar objectives to the Arbitration Act 1996 in England, Wales and Northern Ireland. Sections 89-91 of the 1996 Act dealt with consumer arbitration agreements and these also apply to Scotland and will continue to do so as Consumer Law is not a devolved matter. Those provisions protect those that might inadvertently agree to unfair, low-value consumer arbitration clauses.
The 2010 Act replaces the dual arbitration system that existed in Scotland with a single codified set of rules that now apply to domestic, cross-border and international arbitration proceedings. Though it abolished the UNCITRAL Model Law in Scotland, the Act is based on those model law principles. It aims to encourage trades, professions and industries to establish their own low cost arbitration schemes like that provided by ABTA.
The Act sets out the following founding principles:
• The object of arbitration is to resolve disputes fairly, impartially and without unnecessary delay or expense;
• Parties should be free to agree how to resolve disputes subject only to safeguards that are necessary in the public interest;
• Courts should not intervene in arbitration except as provided for by the Act.
The Scottish Arbitration Rules are set out in a Schedule to the Act. They are divided into mandatory rules that must be followed and cannot be altered even by consent of the parties and non-mandatory rules that can. There is a presumption of confidentiality in relation to the matters in dispute, the arbitral proceedings and the arbitral award unless the parties agree otherwise. Breach of this provision entitles the other party to seek an interdict and/or damages.
It is for the arbitrators to determine whether or not they have jurisdiction to determine the case; though a party may object if they act beyond their powers or where they do not have jurisdiction. The Act enshrines the “separability doctrine” i.e. an arbitration agreement is not affected by the alleged invalidity of the commercial contract. The agreement to arbitrate is distinct and separate from the contract or agreement of which it forms part.
The “stated case” procedure provided by Section 3 of the Administration of Justice (Scotland) Act 1972 was abolished. This had made it too easy for a party to invoke spurious points of law for referral to the Court of Session, thereby considerably delaying the proceedings and substantially increasing the costs. The 2010 Act provides a more limited procedure whereby a party can challenge errors in law made by the arbitrator.
The only valid grounds for challenging a decree arbitral are:
• the arbitrator(s) did not have jurisdiction to make the award;
• “serious irregularity” that has caused or will cause substantial injustice to the appellant;
• The arbitrators erred on a point of Scots Law.
Where an appeal is made to the court the identity of the parties must not, generally, be disclosed outside of the court. An arbitral award may be enforced in the sheriff court or the Court of Session.
The Scottish Government intend to establish a self-financing Dispute Resolution Centre in Scotland to attract international arbitration business.
The aim of the Act was to “set the scene for a renaissance of Scottish arbitration” and to provide a “modern, impartial and efficient arbitration regime”. It codifies existing Scots legislation and Case Law on arbitration.
The New York Convention on Recognition and Enforcement of Arbitration Awards 1958 requires contracting states to give effect to private agreements to go to arbitration and to recognise and enforce arbitration made in other contracting states. There are 142 contracting state, including the UK. The Arbitration Act 1975 gave effect to this in Scotland.
The Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 adopted the UNCITRAL Model Law on International Commercial Arbitration in Scots Law but its provisions were not applied to domestic arbitration. The model law assisted states in reforming and modernising their law or arbitral procedures so as to take into account the needs of international commercial arbitration. This model was repealed in Scotland by the 2010 Act.
This Act has similar objectives to the Arbitration Act 1996 in England, Wales and Northern Ireland. Sections 89-91 of the 1996 Act dealt with consumer arbitration agreements and these also apply to Scotland and will continue to do so as Consumer Law is not a devolved matter. Those provisions protect those that might inadvertently agree to unfair, low-value consumer arbitration clauses.
The 2010 Act replaces the dual arbitration system that existed in Scotland with a single codified set of rules that now apply to domestic, cross-border and international arbitration proceedings. Though it abolished the UNCITRAL Model Law in Scotland, the Act is based on those model law principles. It aims to encourage trades, professions and industries to establish their own low cost arbitration schemes like that provided by ABTA.
The Act sets out the following founding principles:
• The object of arbitration is to resolve disputes fairly, impartially and without unnecessary delay or expense;
• Parties should be free to agree how to resolve disputes subject only to safeguards that are necessary in the public interest;
• Courts should not intervene in arbitration except as provided for by the Act.
The Scottish Arbitration Rules are set out in a Schedule to the Act. They are divided into mandatory rules that must be followed and cannot be altered even by consent of the parties and non-mandatory rules that can. There is a presumption of confidentiality in relation to the matters in dispute, the arbitral proceedings and the arbitral award unless the parties agree otherwise. Breach of this provision entitles the other party to seek an interdict and/or damages.
It is for the arbitrators to determine whether or not they have jurisdiction to determine the case; though a party may object if they act beyond their powers or where they do not have jurisdiction. The Act enshrines the “separability doctrine” i.e. an arbitration agreement is not affected by the alleged invalidity of the commercial contract. The agreement to arbitrate is distinct and separate from the contract or agreement of which it forms part.
The “stated case” procedure provided by Section 3 of the Administration of Justice (Scotland) Act 1972 was abolished. This had made it too easy for a party to invoke spurious points of law for referral to the Court of Session, thereby considerably delaying the proceedings and substantially increasing the costs. The 2010 Act provides a more limited procedure whereby a party can challenge errors in law made by the arbitrator.
The only valid grounds for challenging a decree arbitral are:
• the arbitrator(s) did not have jurisdiction to make the award;
• “serious irregularity” that has caused or will cause substantial injustice to the appellant;
• The arbitrators erred on a point of Scots Law.
Where an appeal is made to the court the identity of the parties must not, generally, be disclosed outside of the court. An arbitral award may be enforced in the sheriff court or the Court of Session.
The Scottish Government intend to establish a self-financing Dispute Resolution Centre in Scotland to attract international arbitration business.
UK. Disabled Persons Rights to Access Aircraft
Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007
These set out offences and penalties for non-compliance with EC Regulation 1107/2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air. The CAA is responsible for enforcement. Complaints are dealt with by the CEHR and the General Consumer Council for Northern Ireland.
The Disability Discrimination Act applies to airport facilities and boarding facilities but not to services provided in board an aircraft. The aim of the EC Regulation is to prevent airlines from refusing to carry persons on grounds of their disability or reduced mobility. It requires the provision of assistance, free of charge, which meets their needs. It applies to airports, travel agents, tour operators and airlines. It also covers people with reduced mobility because of their age, reduced mental capacity or illness.
It requires airport managing bodies to make provision for disabled persons and those with reduced mobility to enable them to pass through airports, board, disembark and transit. It guarantees assistance from a designated point of arrival at the airport to the aircraft and from the aircraft on arrival at the destination to a designated point at the exit to the terminal. This must be provided free of charge to the passenger but the airport may recover the cost from airlines proportionate to the total number of passengers that airline carries. Airlines must provide free assistance on board the aircraft. The only exemption is where there are well-founded safety reasons.
These set out offences and penalties for non-compliance with EC Regulation 1107/2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air. The CAA is responsible for enforcement. Complaints are dealt with by the CEHR and the General Consumer Council for Northern Ireland.
The Disability Discrimination Act applies to airport facilities and boarding facilities but not to services provided in board an aircraft. The aim of the EC Regulation is to prevent airlines from refusing to carry persons on grounds of their disability or reduced mobility. It requires the provision of assistance, free of charge, which meets their needs. It applies to airports, travel agents, tour operators and airlines. It also covers people with reduced mobility because of their age, reduced mental capacity or illness.
It requires airport managing bodies to make provision for disabled persons and those with reduced mobility to enable them to pass through airports, board, disembark and transit. It guarantees assistance from a designated point of arrival at the airport to the aircraft and from the aircraft on arrival at the destination to a designated point at the exit to the terminal. This must be provided free of charge to the passenger but the airport may recover the cost from airlines proportionate to the total number of passengers that airline carries. Airlines must provide free assistance on board the aircraft. The only exemption is where there are well-founded safety reasons.
England and Wales: Tort Law Reform
Compensation Act 2006
This Act applies to England and Wales only. The aim, amongst other things, was to allay the common misperceptions that might lead to a disproportionate fear of litigation. Such fears were leading to the cancellation or withdrawal of otherwise normal activities. It applies to the Occupiers’ Liability Acts 1957 and 1974 and to other Acts that impose a standard of reasonable care. Section 1 provides that, in dealing with a claim for negligence or breach of statutory duty, in determining whether there was a breach of a standard of care, the court may take into account that a requirement to take those steps might prevent an activity which is desirable from taking place (either at all, to a certain extent, or in a particular way). This in fact reflects the existing law.
Section 2 provides that an apology, offer of treatment or other redress does not amount to an admission of negligence or breach of statutory duty.
This Act applies to England and Wales only. The aim, amongst other things, was to allay the common misperceptions that might lead to a disproportionate fear of litigation. Such fears were leading to the cancellation or withdrawal of otherwise normal activities. It applies to the Occupiers’ Liability Acts 1957 and 1974 and to other Acts that impose a standard of reasonable care. Section 1 provides that, in dealing with a claim for negligence or breach of statutory duty, in determining whether there was a breach of a standard of care, the court may take into account that a requirement to take those steps might prevent an activity which is desirable from taking place (either at all, to a certain extent, or in a particular way). This in fact reflects the existing law.
Section 2 provides that an apology, offer of treatment or other redress does not amount to an admission of negligence or breach of statutory duty.
Welsh Government
Government of Wales Act 2006
The Government of Wales Act 1998 did not establish the Welsh Administration as a separate entity from the National Assembly for Wales. This changes that by creating the Welsh Assembly Government as a separate entity from the National Assembly. The Government is accountable to the National Assembly in the same way that the UK Government is answerable to the British Parliament. The First Minister (formerly “First Secretary”) is appointed by the Queen on the recommendation of the National Assembly. He/she appoints the Ministers and Deputy Ministers of the Welsh Government.
The Act also created the post of the Counsel General to the Welsh Assembly Government. It created the Welsh Seal and designated the First Minister (Prif Weinidog Cymru) as its keeper. It grants the Assembly new powers to enact legislation, subject to the approval of the UK Parliament. These are known as Assembly Measures. There are provisions in the Act for the holding of a referendum in Wales as to whether the National Assembly should acquire more extensive powers, including the right to enact primary legislation.
There are detailed provisions governing elections in Wales. The Secretary of State for Wales may participate in Assembly proceedings but is not entitled to vote. He/she is also required to consult the Assembly about the UK Government’s legislative programme.
The National Assembly must, so far as is reasonably practicable, adhere to the principle of equality of the Welsh and English languages.
Section 61 empowers Welsh Ministers to do anything that they consider appropriate to support archaeological remains, ancient monuments, buildings and places of historic or architectural interest, historic wrecks, museums, galleries and libraries in Wales; to support arts and crafts, archives and historical records, other cultural activities and projects, sport and recreation and to support the Welsh language.
Ministers are required to adopt a Welsh Language Strategy for promoting and facilitating the Welsh language. They must also adopt a sustainable development scheme and submit an annual report to the Assembly.
The Government of Wales Act 1998 did not establish the Welsh Administration as a separate entity from the National Assembly for Wales. This changes that by creating the Welsh Assembly Government as a separate entity from the National Assembly. The Government is accountable to the National Assembly in the same way that the UK Government is answerable to the British Parliament. The First Minister (formerly “First Secretary”) is appointed by the Queen on the recommendation of the National Assembly. He/she appoints the Ministers and Deputy Ministers of the Welsh Government.
The Act also created the post of the Counsel General to the Welsh Assembly Government. It created the Welsh Seal and designated the First Minister (Prif Weinidog Cymru) as its keeper. It grants the Assembly new powers to enact legislation, subject to the approval of the UK Parliament. These are known as Assembly Measures. There are provisions in the Act for the holding of a referendum in Wales as to whether the National Assembly should acquire more extensive powers, including the right to enact primary legislation.
There are detailed provisions governing elections in Wales. The Secretary of State for Wales may participate in Assembly proceedings but is not entitled to vote. He/she is also required to consult the Assembly about the UK Government’s legislative programme.
The National Assembly must, so far as is reasonably practicable, adhere to the principle of equality of the Welsh and English languages.
Section 61 empowers Welsh Ministers to do anything that they consider appropriate to support archaeological remains, ancient monuments, buildings and places of historic or architectural interest, historic wrecks, museums, galleries and libraries in Wales; to support arts and crafts, archives and historical records, other cultural activities and projects, sport and recreation and to support the Welsh language.
Ministers are required to adopt a Welsh Language Strategy for promoting and facilitating the Welsh language. They must also adopt a sustainable development scheme and submit an annual report to the Assembly.
UK: Equality Act
Equality Act 2006
This Act established the Commission for Equality and Human Rights (CEHR) and sets out its purpose, functions and powers. It takes over the functions and powers of the Commission for Racial Equality, Equal Opportunities Commission and the Disability Rights Commission. It is responsible for promoting equality and combating unlawful discrimination on grounds of sexual orientation, religion or belief, or age. It acquired the existing provisions in respect of sex, race and disability from the CRE, EOC and DRA. It is also responsible for promoting human rights, except in respect of matters falling within the competence of the Scottish Parliament as Scotland has its own Scottish Human Rights Commission.
The Act makes it unlawful to discriminate, on grounds of religion or belief, in the provision of goods and services, education, the use and disposal of premises and the exercise of public functions. Public authorities have a duty to promote equality of opportunity for men and women and prohibit sex discrimination and harassment in the exercise of public functions.
This Act established the Commission for Equality and Human Rights (CEHR) and sets out its purpose, functions and powers. It takes over the functions and powers of the Commission for Racial Equality, Equal Opportunities Commission and the Disability Rights Commission. It is responsible for promoting equality and combating unlawful discrimination on grounds of sexual orientation, religion or belief, or age. It acquired the existing provisions in respect of sex, race and disability from the CRE, EOC and DRA. It is also responsible for promoting human rights, except in respect of matters falling within the competence of the Scottish Parliament as Scotland has its own Scottish Human Rights Commission.
The Act makes it unlawful to discriminate, on grounds of religion or belief, in the provision of goods and services, education, the use and disposal of premises and the exercise of public functions. Public authorities have a duty to promote equality of opportunity for men and women and prohibit sex discrimination and harassment in the exercise of public functions.
UK: Age Discrimination
Employment Equality (Age) Regulations 2006
These Regulations prohibit unreasonable discrimination against employees, jobseekers or trainees on grounds of age unless that discrimination can be objectively justified. Similar provisions were introduced for Northern Ireland. The Regulations have the same framework as other anti-discrimination legislative measures i.e. provisions on direct and indirect discrimination, victimization, harassment etc.
It also covers discrimination on grounds of the apparent age of a person. It covers all age groups, not just older people. All workplace benefits based on age are prohibited. So too are training courses that are only available to certain age groups.
The Regulations remove the existing age limits for unfair dismissal or rights on redundancy. The default retirement age is set at 65 but employers may set the retirement age at 65 or above. An employee, on approaching retirement age, may request to continue working beyond that age and the employer must give due consideration to this request. If granted, the employer may keep the extended employment under review. If the employer decides to terminate the extension he/she must give the employee 6 months notice. In that event, the employee may request another extended period and the employer again must give it due consideration.
Unlike similar provisions on sex, race, sexual orientation etc. these Regulations do not cover age discrimination in the provision of goods and services.
It is not illegal to discriminate on grounds of age in respect of employees, jobseekers or trainees where:
• there is an objective justification for it e.g. it would be legitimate for an employer not to send an employee on a training course a few months before that person is due to retire;
• an applicant for a job has reached, or will reach within 6 months, the normal retirement age set by the employer;
• there is a legal exemption e.g. that related to young persons under the minimum wage legislation;
• there is a genuine occupational qualification e.g. an actor required to play a character of a certain age.
The Regulations prohibit harassment on grounds of age i.e. behaviour that is offensive, frightening or distressing. It does not matter whether or not there was an intention to harass, certain behaviour may amount to harassment e.g. telling ageist jokes all the time.
These Regulations prohibit unreasonable discrimination against employees, jobseekers or trainees on grounds of age unless that discrimination can be objectively justified. Similar provisions were introduced for Northern Ireland. The Regulations have the same framework as other anti-discrimination legislative measures i.e. provisions on direct and indirect discrimination, victimization, harassment etc.
It also covers discrimination on grounds of the apparent age of a person. It covers all age groups, not just older people. All workplace benefits based on age are prohibited. So too are training courses that are only available to certain age groups.
The Regulations remove the existing age limits for unfair dismissal or rights on redundancy. The default retirement age is set at 65 but employers may set the retirement age at 65 or above. An employee, on approaching retirement age, may request to continue working beyond that age and the employer must give due consideration to this request. If granted, the employer may keep the extended employment under review. If the employer decides to terminate the extension he/she must give the employee 6 months notice. In that event, the employee may request another extended period and the employer again must give it due consideration.
Unlike similar provisions on sex, race, sexual orientation etc. these Regulations do not cover age discrimination in the provision of goods and services.
It is not illegal to discriminate on grounds of age in respect of employees, jobseekers or trainees where:
• there is an objective justification for it e.g. it would be legitimate for an employer not to send an employee on a training course a few months before that person is due to retire;
• an applicant for a job has reached, or will reach within 6 months, the normal retirement age set by the employer;
• there is a legal exemption e.g. that related to young persons under the minimum wage legislation;
• there is a genuine occupational qualification e.g. an actor required to play a character of a certain age.
The Regulations prohibit harassment on grounds of age i.e. behaviour that is offensive, frightening or distressing. It does not matter whether or not there was an intention to harass, certain behaviour may amount to harassment e.g. telling ageist jokes all the time.
UK: Civil Aviation. Bonding
Civil Aviation Act 2006
This empowered the Secretary of State to require the Civil Aviation Authority (CAA) to provide advice and assistance with respect to the health of people on board aircraft.
It also made alterations to the Air Travel Organisers’ Licensing (ATOL)system. The Secretary of State may, by regulations, require ATOL applicants and holders to make contributions to the Air Travel Trust (ATT). It also sets out the factors that the CAA is required to apply in calculating the amount that applicants must pay to the Trust. It is the CAA’s responsibility for setting the rates and dates for payment. It may require existing ATOL holders seeking a variation on their licensable business to make additional contributions. They may impose interest charges for late payments.
The CAA may suspend the requirement to make contributions to the ATT for a period for all, or for a particular category of, ATOL holders. It may also exempt a category of licence holders from the requirement to make a contribution. Non-payment entitles the CAA to refuse to issue, vary, suspend or revoke a licence.
This empowered the Secretary of State to require the Civil Aviation Authority (CAA) to provide advice and assistance with respect to the health of people on board aircraft.
It also made alterations to the Air Travel Organisers’ Licensing (ATOL)system. The Secretary of State may, by regulations, require ATOL applicants and holders to make contributions to the Air Travel Trust (ATT). It also sets out the factors that the CAA is required to apply in calculating the amount that applicants must pay to the Trust. It is the CAA’s responsibility for setting the rates and dates for payment. It may require existing ATOL holders seeking a variation on their licensable business to make additional contributions. They may impose interest charges for late payments.
The CAA may suspend the requirement to make contributions to the ATT for a period for all, or for a particular category of, ATOL holders. It may also exempt a category of licence holders from the requirement to make a contribution. Non-payment entitles the CAA to refuse to issue, vary, suspend or revoke a licence.
UK: Supreme Court of the United Kingdom
Constitutional Reform Act 2005
This Act created the Supreme Court of the United Kingdom and abolished the appellate function of the House of Lords. It also established the Judicial Appointments Commission for the appointment of judges and members of certain tribunals in England and Wales. It provides a disciplinary framework for the English and Welsh judiciary. The judicial function of the Lord Chancellor was also abolished.
It created a Northern Ireland Judicial Appointments Ombudsman and provides a mechanism for the removal of judicial appointments holders in Northern Ireland.
The Lord Chief Justice acquired the additional titles of President of the Courts of England and Wales and Head of the Judiciary of England and Wales. The new offices of Heads and Deputy Heads of Criminal Justice and of Family Justice respectively were established.
The Supreme Court has a President, Deputy President and 12 judges appointed by the Queen. The number of judges can be increased by Order in Council. The title of the judges is Justice of the Supreme Court. The Act contains provisions to ensure that the three jurisdictions of England and Wales, Northern Ireland and Scotland are properly represented on the court. The Lord Chancellor, First Minister of Scotland, First Secretary in Wales and the Secretary of State for Northern Ireland are all consulted on appointments to the court.
The Supreme Court acquired the powers of the Judicial Committee of the Privy Council in relation to devolution issues under the Scotland Act 1998, Wales Act 1998 and the Northern Ireland Act 1998.
It hears appeals on criminal and civil matters from the courts of England, Wales and Northern Ireland and on civil matters only from the Scottish courts. When hearing a case from Scotland it sits as a Scottish court and the case is determined according to the Law of Scotland.
The Supreme Courts of England and Wales were renamed the Superior Courts of England and Wales and the Supreme Court of Adjudicature of Northern Ireland became the Court of Judicature of Northern Ireland.
This Act created the Supreme Court of the United Kingdom and abolished the appellate function of the House of Lords. It also established the Judicial Appointments Commission for the appointment of judges and members of certain tribunals in England and Wales. It provides a disciplinary framework for the English and Welsh judiciary. The judicial function of the Lord Chancellor was also abolished.
It created a Northern Ireland Judicial Appointments Ombudsman and provides a mechanism for the removal of judicial appointments holders in Northern Ireland.
The Lord Chief Justice acquired the additional titles of President of the Courts of England and Wales and Head of the Judiciary of England and Wales. The new offices of Heads and Deputy Heads of Criminal Justice and of Family Justice respectively were established.
The Supreme Court has a President, Deputy President and 12 judges appointed by the Queen. The number of judges can be increased by Order in Council. The title of the judges is Justice of the Supreme Court. The Act contains provisions to ensure that the three jurisdictions of England and Wales, Northern Ireland and Scotland are properly represented on the court. The Lord Chancellor, First Minister of Scotland, First Secretary in Wales and the Secretary of State for Northern Ireland are all consulted on appointments to the court.
The Supreme Court acquired the powers of the Judicial Committee of the Privy Council in relation to devolution issues under the Scotland Act 1998, Wales Act 1998 and the Northern Ireland Act 1998.
It hears appeals on criminal and civil matters from the courts of England, Wales and Northern Ireland and on civil matters only from the Scottish courts. When hearing a case from Scotland it sits as a Scottish court and the case is determined according to the Law of Scotland.
The Supreme Courts of England and Wales were renamed the Superior Courts of England and Wales and the Supreme Court of Adjudicature of Northern Ireland became the Court of Judicature of Northern Ireland.
UK: Railways Act
Railways Act 2005
This wound up the Strategic Rail Authority, transferring most of its functions to the Department of Transport and some to the Scottish Government and to the Welsh Assembly Administration. Safety provisions in relation to the railways were transferred from the Health and Safety Commission and Executive to the Office of Rail Regulation.
The Secretary of State is empowered to provide financial assistance for any railway related purpose. The Scottish Government and National Assembly for Wales have similar powers in respect of railway freight services. The Scottish Government also acquired additional powers in respect of passenger railway services and railway infrastructure in Scotland. The National Assembly for Wales acquired additional powers in respect of passenger services only.
Passenger Transport Executives (PTEs) can now enter into franchise agreements and agreements related to the quality of franchised rail services, subject to the approval of the Secretary of State. Transport for London was given equivalent powers to the PTEs. The Secretary of State must consult PTEs where he or she intends to grant a franchise for railway services to, from or within the area of the PTE.
The Regional Rail Passengers’ Committees were replaced by the Rail Passenger Council that reports to the Secretary of State.
Railway operators are empowered to make bylaws governing the conduct of persons using the railways, subject to the approval of the Secretary of State or of the Scottish Government, as the case may be. The Scottish Government may also introduce penalty fare regulations and to establish a Code of Conduct for Protecting the Rights of Disabled Rail Users in Scotland.
This wound up the Strategic Rail Authority, transferring most of its functions to the Department of Transport and some to the Scottish Government and to the Welsh Assembly Administration. Safety provisions in relation to the railways were transferred from the Health and Safety Commission and Executive to the Office of Rail Regulation.
The Secretary of State is empowered to provide financial assistance for any railway related purpose. The Scottish Government and National Assembly for Wales have similar powers in respect of railway freight services. The Scottish Government also acquired additional powers in respect of passenger railway services and railway infrastructure in Scotland. The National Assembly for Wales acquired additional powers in respect of passenger services only.
Passenger Transport Executives (PTEs) can now enter into franchise agreements and agreements related to the quality of franchised rail services, subject to the approval of the Secretary of State. Transport for London was given equivalent powers to the PTEs. The Secretary of State must consult PTEs where he or she intends to grant a franchise for railway services to, from or within the area of the PTE.
The Regional Rail Passengers’ Committees were replaced by the Rail Passenger Council that reports to the Secretary of State.
Railway operators are empowered to make bylaws governing the conduct of persons using the railways, subject to the approval of the Secretary of State or of the Scottish Government, as the case may be. The Scottish Government may also introduce penalty fare regulations and to establish a Code of Conduct for Protecting the Rights of Disabled Rail Users in Scotland.
Scotland: Carriage By Road
Cheeseman v International Travel Services Ltd. [2008] Rep. LR 66
C booked a coach holiday excursion with X. The excursion was organised by X through sub-contractor V, which supplied the coach. C tripped on board the coach and sustained a fractured ankle. The cause was a defect in the carpet. C argued that X had accepted liability for transport suppliers under the terms and conditions of the contract.
The Court of Session held that, on balance of probabilities, the defect in the carpet had been there for a considerable period of time before C’s accident. It should have been apparent to the coach company when inspecting the vehicle for any defects, as required by law, and when the driver was cleaning the coach. X was liable for its suppliers and C was awarded £5750 for solatium.
C booked a coach holiday excursion with X. The excursion was organised by X through sub-contractor V, which supplied the coach. C tripped on board the coach and sustained a fractured ankle. The cause was a defect in the carpet. C argued that X had accepted liability for transport suppliers under the terms and conditions of the contract.
The Court of Session held that, on balance of probabilities, the defect in the carpet had been there for a considerable period of time before C’s accident. It should have been apparent to the coach company when inspecting the vehicle for any defects, as required by law, and when the driver was cleaning the coach. X was liable for its suppliers and C was awarded £5750 for solatium.
Northern Ireland: Taxis
Taxis Act (Northern Ireland) 2008
The aim is to create a more effective and equitable regulatory framework that would promote road and personal safety, improve accessibility and facilitate fair competition in the taxi industry. The Department of the Environment is responsible for licensing taxi operators and taxi drivers. It lays down standards for obtaining licences and for providing taxi services. The Department is empowered to issue regulations concerning fares and the duties of taxi drivers to their passengers.
The aim is to create a more effective and equitable regulatory framework that would promote road and personal safety, improve accessibility and facilitate fair competition in the taxi industry. The Department of the Environment is responsible for licensing taxi operators and taxi drivers. It lays down standards for obtaining licences and for providing taxi services. The Department is empowered to issue regulations concerning fares and the duties of taxi drivers to their passengers.
Northern Ireland: Hotel - Discrimination Against "Travelling People"
McDonagh v Thom (Trading as Royal Hotel Dungannon) [2007] NICA 3
M was a member of the Irish travelling community (these are itinerant people, similar to the Romany people but of Irish extraction). They had pre-booked functions at the hotel for January, April and September. During the function in January there was an outbreak of violence that included the use of knives. Because of this staff at the hotel refused to work at any function involving this group. T cancelled the April and September bookings.
The Northern Irish Court of Appeal held that the functions were cancelled because of the previous violence and not on grounds of racial or ethnic discrimination. The Irish travellers were permitted to use other facilities at the hotel.
M was a member of the Irish travelling community (these are itinerant people, similar to the Romany people but of Irish extraction). They had pre-booked functions at the hotel for January, April and September. During the function in January there was an outbreak of violence that included the use of knives. Because of this staff at the hotel refused to work at any function involving this group. T cancelled the April and September bookings.
The Northern Irish Court of Appeal held that the functions were cancelled because of the previous violence and not on grounds of racial or ethnic discrimination. The Irish travellers were permitted to use other facilities at the hotel.
England: Sexual Orientation Discrimination
English v Thomas Sanderson Blinds Ltd. [2008] EWCA Civ. 1421
E, a married man, had a contract of services with T for 9 years. He claimed that he had been subjected to homophobic banter over the years. It arose because a colleague had discovered that he had attended a private boarding school. In fact E was not gay and he didn’t think that his colleagues that engaged in the banter thought that he was. Nonetheless, he claimed that he had been subject to harassment on grounds of sexual orientation.
The EAT held that, on the basis of the facts established, the unwanted conduct on the part of his colleagues was not on grounds of sexual orientation as they did not think that E was gay.
The Court of Appeal held that E had been taunted as gay and it did not matter whether he was gay or not. The aim of the taunts was to insult his dignity and create a degrading and hostile environment on grounds of sexual orientation. What was required in order to establish discrimination was that someone’s orientation, real or supposed, was the basis of the harassment directed at him or her.
E, a married man, had a contract of services with T for 9 years. He claimed that he had been subjected to homophobic banter over the years. It arose because a colleague had discovered that he had attended a private boarding school. In fact E was not gay and he didn’t think that his colleagues that engaged in the banter thought that he was. Nonetheless, he claimed that he had been subject to harassment on grounds of sexual orientation.
The EAT held that, on the basis of the facts established, the unwanted conduct on the part of his colleagues was not on grounds of sexual orientation as they did not think that E was gay.
The Court of Appeal held that E had been taunted as gay and it did not matter whether he was gay or not. The aim of the taunts was to insult his dignity and create a degrading and hostile environment on grounds of sexual orientation. What was required in order to establish discrimination was that someone’s orientation, real or supposed, was the basis of the harassment directed at him or her.
England: Article 17 of the Montreal Convention
Barclay v British Airways PLC [2008] 1 Lloyds Rep. 661
B was flying from Phoenix to Heathrow. She slipped on a plastic strip embedded in the floor of the aircraft as she was making her way along a row of seats to her own seat. She claimed under the provisions of the Montreal Convention. BA claimed that she had failed to establish that she had sustained her injury as a result of “an accident” on board the aircraft. The Convention required that what happened had to be more than a mere event or occurrence and the accident and the injury had to be separate things.
The court held that the fall had to have been caused by an unusual or unexpected event external to B. The mere fact that she fell was not external to B for the purposes of the Convention. She had not established that the plastic strip had caused her fall and even if she had there was nothing unusual or unexpected about its presence.
The Court of Appeal dismissed her appeal. Article 17 of the Montreal Convention required there to be an unexpected and unusual event or happening external to the passenger. There was no accident external to B and no event which happened independently of her. The accident occurred as a result of the passenger’s particular, personal or peculiar reaction to the normal operation of the aircraft.
B was flying from Phoenix to Heathrow. She slipped on a plastic strip embedded in the floor of the aircraft as she was making her way along a row of seats to her own seat. She claimed under the provisions of the Montreal Convention. BA claimed that she had failed to establish that she had sustained her injury as a result of “an accident” on board the aircraft. The Convention required that what happened had to be more than a mere event or occurrence and the accident and the injury had to be separate things.
The court held that the fall had to have been caused by an unusual or unexpected event external to B. The mere fact that she fell was not external to B for the purposes of the Convention. She had not established that the plastic strip had caused her fall and even if she had there was nothing unusual or unexpected about its presence.
The Court of Appeal dismissed her appeal. Article 17 of the Montreal Convention required there to be an unexpected and unusual event or happening external to the passenger. There was no accident external to B and no event which happened independently of her. The accident occurred as a result of the passenger’s particular, personal or peculiar reaction to the normal operation of the aircraft.
England: Hot Air Balloon - Carriage By Air
Laroche v Spirit of Adventure (UK) Ltd [2008] EWCA Civ. 12
The court held that there was no logical reason to hold that a hot air balloon was not an aircraft for the purposes of the Carriage by Air Acts, which implements the Montreal Convention in the UK. A hot air balloon is designed for the carriage of passengers and thus any claim made for injury must be made within the framework of the Carriage by Air Acts.
The Court of Appeal held that the purpose for which the passenger was taking the flight (in this case, recreational purposes) had no bearing on whether the Convention (as implemented in the UK) applied or not. It did not matter that the flight route was not predetermined. The court applied the decision in Fellowes v Clyde Helicopters. The natural and ordinary meaning of the word “aircraft” was wide enough to include a passenger hot air balloon. It was designed for and capable of carrying passengers from one place to another. It was capable of being used for international air transport and was so used from time to time. A contract of carriage does not require a specification as to departure and destination. The purpose of Article 1(2) of the Convention was merely to define the carriage as international. It does not provide that the two points within the territory of a single State had to be agreed beforehand for the Convention to apply.
L was a passenger on board the aircraft. He was not on board as a pilot under instruction, did not contribute to the flight in any way and was not therefore a crew member
The court held that there was no logical reason to hold that a hot air balloon was not an aircraft for the purposes of the Carriage by Air Acts, which implements the Montreal Convention in the UK. A hot air balloon is designed for the carriage of passengers and thus any claim made for injury must be made within the framework of the Carriage by Air Acts.
The Court of Appeal held that the purpose for which the passenger was taking the flight (in this case, recreational purposes) had no bearing on whether the Convention (as implemented in the UK) applied or not. It did not matter that the flight route was not predetermined. The court applied the decision in Fellowes v Clyde Helicopters. The natural and ordinary meaning of the word “aircraft” was wide enough to include a passenger hot air balloon. It was designed for and capable of carrying passengers from one place to another. It was capable of being used for international air transport and was so used from time to time. A contract of carriage does not require a specification as to departure and destination. The purpose of Article 1(2) of the Convention was merely to define the carriage as international. It does not provide that the two points within the territory of a single State had to be agreed beforehand for the Convention to apply.
L was a passenger on board the aircraft. He was not on board as a pilot under instruction, did not contribute to the flight in any way and was not therefore a crew member
Scotland: Contract Law
DFR Properties Ltd. v Glen House Properties 2007 SC 74.
The Court of Session held that a term can only be implied to be part of a contract insofar as it is not inconsistent with the express terms.
The Court of Session held that a term can only be implied to be part of a contract insofar as it is not inconsistent with the express terms.
England: Occupiers' Liability Act
Tysall Ltd v Snowdrome, 28 July 2006.
T was injured on S’s premises whilst tobogganing. T set off sequentially with four others from the top of the slope. 50 metres down the slope there was a bend where one had to change direction and perform a 90 degree left hand turn. T’s toboggan struck the outside barrier and she fell off. She was struck by one of the four that were following her and she sustained injuries to her left ankle and thigh.
The group had been given safety instructions on how to use the equipment but not on what to do if you fell off. There were supervisors present at the start and at the bend. T claimed that S was in breach of a duty of care under the Occupiers’ Liability Act 1957.
The court held that S was not in breach of its duty of reasonable care under the 1957 Act. The sport involved an element of risk and that was part of the thrill. Although S could have taken further steps to prevent the accident that would have adversely affected the enjoyment of the sport.
T was injured on S’s premises whilst tobogganing. T set off sequentially with four others from the top of the slope. 50 metres down the slope there was a bend where one had to change direction and perform a 90 degree left hand turn. T’s toboggan struck the outside barrier and she fell off. She was struck by one of the four that were following her and she sustained injuries to her left ankle and thigh.
The group had been given safety instructions on how to use the equipment but not on what to do if you fell off. There were supervisors present at the start and at the bend. T claimed that S was in breach of a duty of care under the Occupiers’ Liability Act 1957.
The court held that S was not in breach of its duty of reasonable care under the 1957 Act. The sport involved an element of risk and that was part of the thrill. Although S could have taken further steps to prevent the accident that would have adversely affected the enjoyment of the sport.
England: Travel Agent's Duty of Care
Crosby v Fleetwood Travel [2007] CLYB 2127
C booked an all-inclusive package holiday for himself and his family at Sharm El Sheikh. The day before departure there had been a terrorist attack but C was nonetheless told by the tour operator to go to the airport the next day. On arrival at the airport he was told that the flight had been cancelled and so he arranged an alternative holiday over the phone with F. He had made plain that he wanted a destination where there was an opportunity for diving and an all-inclusive holiday that was equivalent in standard and quality to that booked at Sharm El Sheikh (i.e. 4 star or higher). He was willing to pay extra for this. The original holiday had cost £3620 and he was required to pay an additional £ 1600 for the alternative holiday in Cyprus. F assured him that this alternative would meet all of his specifications.
On arrival, he discovered that they were accommodated in a three star hotel; he had to pay an additional supplement for all-inclusive provision; and the nearest diving was 15 miles away. The hotel was overcrowded and as a result the family were not able to enjoy its facilities.
F claimed that though the hotel was classed as a three star it had four star facilities. C could not reasonably expect that a 4 star in Egypt would be equivalent to a four star in Cyprus. F had been misled by its agent about the Cypriot hotel and had acted in good faith.
The court held F in breach of contract and liable for the acts and omissions of its agent. It was not a defence to claim that they had acted in good faith. Travel agents had a higher duty of care in providing information to their clients, especially in a situation where the client was totally reliant on the information that the travel agent had provided over the phone. C could not be expected to know the different standards used in allocating star ratings in Egypt and Cyprus. The travel agent should have explained this to him. C was awarded £1600 for breach of contract and £250 per person for loss of enjoyment.
C booked an all-inclusive package holiday for himself and his family at Sharm El Sheikh. The day before departure there had been a terrorist attack but C was nonetheless told by the tour operator to go to the airport the next day. On arrival at the airport he was told that the flight had been cancelled and so he arranged an alternative holiday over the phone with F. He had made plain that he wanted a destination where there was an opportunity for diving and an all-inclusive holiday that was equivalent in standard and quality to that booked at Sharm El Sheikh (i.e. 4 star or higher). He was willing to pay extra for this. The original holiday had cost £3620 and he was required to pay an additional £ 1600 for the alternative holiday in Cyprus. F assured him that this alternative would meet all of his specifications.
On arrival, he discovered that they were accommodated in a three star hotel; he had to pay an additional supplement for all-inclusive provision; and the nearest diving was 15 miles away. The hotel was overcrowded and as a result the family were not able to enjoy its facilities.
F claimed that though the hotel was classed as a three star it had four star facilities. C could not reasonably expect that a 4 star in Egypt would be equivalent to a four star in Cyprus. F had been misled by its agent about the Cypriot hotel and had acted in good faith.
The court held F in breach of contract and liable for the acts and omissions of its agent. It was not a defence to claim that they had acted in good faith. Travel agents had a higher duty of care in providing information to their clients, especially in a situation where the client was totally reliant on the information that the travel agent had provided over the phone. C could not be expected to know the different standards used in allocating star ratings in Egypt and Cyprus. The travel agent should have explained this to him. C was awarded £1600 for breach of contract and £250 per person for loss of enjoyment.
England: Hotel Contract
Bedford v TUI UK Ltd. (Trading as Austravel) 12 October 2006.
B booked a trip that included stays at various cities in the Far East and Australia, including a 5 night stay at a 4 star hotel in Sydney. The total cost was £4203. At the time of booking it was made clear that this latter hotel was “on request” only. The booking conditions specified that there was no contract to provide accommodation at this hotel until B received confirmation in writing that the accommodation was available. Three days prior to departure T informed B that the hotel was unavailable and offered an alternative hotel at £445 extra cost. Having already paid for the holiday, B sought to cancel and asked for a full refund. This was refused by T on grounds that the booking conditions entitled them to charge a 100% cancellation fee at such a late date before departure. B paid the extra £445 and claimed a refund of it on his return.
The court held that, as T had not confirmed the original hotel, it did not form part of the contract and that B was therefore entitled to a refund of the price of that part of the holiday. B had entered into a separate contract with T for the alternative hotel and that cost the amount of the refund to which B was entitled plus £445. If T had refused the refund of the amount for the original hotel, B would have been entitled to claim that he had entered into the subsequent contract under duress. But T had not refused the original refund and so B entered into the subsequent contract freely.
B booked a trip that included stays at various cities in the Far East and Australia, including a 5 night stay at a 4 star hotel in Sydney. The total cost was £4203. At the time of booking it was made clear that this latter hotel was “on request” only. The booking conditions specified that there was no contract to provide accommodation at this hotel until B received confirmation in writing that the accommodation was available. Three days prior to departure T informed B that the hotel was unavailable and offered an alternative hotel at £445 extra cost. Having already paid for the holiday, B sought to cancel and asked for a full refund. This was refused by T on grounds that the booking conditions entitled them to charge a 100% cancellation fee at such a late date before departure. B paid the extra £445 and claimed a refund of it on his return.
The court held that, as T had not confirmed the original hotel, it did not form part of the contract and that B was therefore entitled to a refund of the price of that part of the holiday. B had entered into a separate contract with T for the alternative hotel and that cost the amount of the refund to which B was entitled plus £445. If T had refused the refund of the amount for the original hotel, B would have been entitled to claim that he had entered into the subsequent contract under duress. But T had not refused the original refund and so B entered into the subsequent contract freely.
Package Holiday Case
Bellinger v TUI UK Ltd. [2007] CLYB 2125
B made a telephone booking for a package holiday which included half-board provision at a hotel. The brochure indicated that this included breakfast plus lunch or dinner and that a supplement was payable. There was no reference to the number of courses served at lunch or dinner. On arrival at the hotel they were informed that the meal only included a main course. They complained and were provided with a starter course but were told they would have to pay for deserts. They refused this and chose only to eat breakfast at the hotel. On the third day of the holiday B contracted food poisoning after eating dinner at a local restaurant.
The court held that it was reasonable to presume that a lunch or dinner would involve three courses, including a starter, main course and desert, unless the brochure indicated otherwise. However, by refusing the hotel’s offer of providing two courses, B had failed to mitigate her loss. Had she accepted their offer she could have claimed for the costs of the deserts. T was not responsible for the local independent restaurant at which B chose to dine.
B made a telephone booking for a package holiday which included half-board provision at a hotel. The brochure indicated that this included breakfast plus lunch or dinner and that a supplement was payable. There was no reference to the number of courses served at lunch or dinner. On arrival at the hotel they were informed that the meal only included a main course. They complained and were provided with a starter course but were told they would have to pay for deserts. They refused this and chose only to eat breakfast at the hotel. On the third day of the holiday B contracted food poisoning after eating dinner at a local restaurant.
The court held that it was reasonable to presume that a lunch or dinner would involve three courses, including a starter, main course and desert, unless the brochure indicated otherwise. However, by refusing the hotel’s offer of providing two courses, B had failed to mitigate her loss. Had she accepted their offer she could have claimed for the costs of the deserts. T was not responsible for the local independent restaurant at which B chose to dine.
Thursday, July 08, 2010
Alaska Cruise Association lawsuit terminated
Attorney General Dan Sullivan announced last Thursday that the Alaska Cruise Association (ACA) has officially terminated its lawsuit against the state's excise tax on cruise ship passengers.
A stipulation filed with the U.S. District Court for Alaska dismisses with prejudice the lawsuit that was filed against the state last September. In a settlement agreement reached between the state and ACA in April, ACA agreed to dismiss its lawsuit if the governor signed into law a bill passed by the Legislature that reduced the commercial passenger excise tax from $46 per passenger to $34.50 and also provided an offset for passenger taxes paid to local governments.
On June 24, Governor Parnell signed into law Senate Bill 312, passed by the Legislature in April, that contained the elements necessary to trigger dismissal of ACA's lawsuit. The stipulation filed today permanently resolves the legal issues.
Source: State of Alaska Department of Law press release of July 1, 2010
Wednesday, July 07, 2010
European Union: airline blacklist updated
The European Commission has updated the list of airlines banned in the European Union to include one carrier from Surinam and to expand the operating restrictions on Iran Air. In addition, two carriers from Indonesia have been removed from the list of banned airlines.
Source: EU Press Release IP/10/892 of July 6, 2010
Updated blacklist available here>>.
European General Court: prohibition of Ryanair’s takeover of Aer Lingus valid
Following the privatisation of Aer Lingus by the Irish Government in 2006, Ryanair acquired a shareholding of 19.16 % in the share capital of that company. On 23 October 2006, Ryanair launched a public bid for the entire share capital of Aer Lingus and notified the Commission a week later of its planned takeover, in accordance with the Merger Regulation. During the public bid, Ryanair bought further shares and on 26 November 2006 it held 25.17 % of Aer Lingus’s share capital.
On 27 June 2007 the Commission adopted a decision declaring that Ryanair’s planned takeover of Aer Lingus was incompatible with the common market. Ryanair brought an action against that decision before the General Court (Case T-342/07). Following the Commission’s decision Ryanair bought further shares bringing its shareholding in Aer Lingus’s capital to 29.3 %.
Both during the procedure which led to the prohibition decision and following that decision, Aer Lingus requested the Commission to order Ryanair to divest all of its shares in Aer Lingus. In its decision dated 11 October 2007, the Commission refused to grant that request, stating that it was not in its power under the Merger Regulation to order Ryanair to divest its shareholding since the planned takeover had not been implemented and Ryanair only held a minority shareholding which did not enable it to exercise either de jure or de facto control over Aer Lingus. Aer Lingus brought an action against that decision before the General Court (Case T-411/07). By order of 18 March 2008, the President of the General Court rejected the parallel application made by Aer Lingus for interim measures to prevent Ryanair from exercising its voting rights.
In judgments of July 6, 2010, the General Court confirmed the two Commission decisions. The merger would create dominant positions on a number of routes from or to Dublin, Cork and Shannon which would be monopolistic or very significant and thus sufficient, in themselves, to validate the Commission’s finding that the implementation of the merger must be declared incompatible with the common market. On the other hand, the General Court concluded that the Commission justified to the required legal and factual standard its decision not to order Ryanair to divest its shareholding in Aer Lingus.
Both, Ryanair and Aer Lingus can now bring an appeal, limited to points of law only, before the European Court of Justice.
Source: General Court Press Release 72/10
Full text of judgement T-342/07 available here>>.
Full text of judgement T-411/07 available here>>.
Both, Ryanair and Aer Lingus can now bring an appeal, limited to points of law only, before the European Court of Justice.
Source: General Court Press Release 72/10
Full text of judgement T-342/07 available here>>.
Full text of judgement T-411/07 available here>>.
Tuesday, July 06, 2010
USA and Barbados Reach Open-Skies Aviation Agreement
The United States and Barbados have reached an Open-Skies Agreement that will liberalize U.S.-Barbados air services for airlines of both countries. Barbados will become the 99th U.S. Open-Skies partner. Upon signature of the agreement, airlines from both countries will be allowed to select routes, destinations and prices for both passenger and cargo service based on consumer demand and market conditions. The agreement, which was reached on July 1, for the first time provides airlines of both countries with code-sharing and intermodal rights.
Source: DOT press release 132-10 of July 2, 2010
Source: DOT press release 132-10 of July 2, 2010
Argentina: New Ministry of Tourism
Argentinean President, H.E. Cristina Fernández de Kirchner, announced the move to separate the Ministry of Tourism from the existing Ministry of Industry and Tourism and named Carlos Enrique Meyer, previously Secretary of State for Tourism, as Minister of Tourism.
UNWTO welcomes that several countries have recently placed tourism higher on their national political and economic agendas. Argentina is the most recent example with the establishment of the first Argentinean Ministry of Tourism. The move represents a further step towards mainstreaming tourism as an industry that delivers on economic growth, job creation and sustainable development.
Source: UNWTO press release of July 1, 2010; find full text here>>.
UNWTO welcomes that several countries have recently placed tourism higher on their national political and economic agendas. Argentina is the most recent example with the establishment of the first Argentinean Ministry of Tourism. The move represents a further step towards mainstreaming tourism as an industry that delivers on economic growth, job creation and sustainable development.
Source: UNWTO press release of July 1, 2010; find full text here>>.
Europe: Commission launches campaign to inform passengers about their rights
A Europe-wide publicity campaign in 23 languages launched by the European Commission is meant to provide passengers with easier access to information about their rights when travelling by rail or air. As part of the "Your Passenger Rights At Hand" campaign a website has been launched. Here people are able to find out what their rights are for each of the transport modes.
Source: European Commission Newsroom
Source: European Commission Newsroom
European Commission: New strategy for stimulating tourism in Europe
The commission’s tourism development plan 
features 21 proposals, many aimed at attracting more visitors to Europe from fast-developing countries like China, Russia and Brazil. But it also spells out ways to increase travel within the EU, including greater coordination of school holidays to lengthen the holiday season.
The commission is proposing a label scheme to give recognition to high-quality services. It also plans to establish a charter with criteria for sustainable tourism and award a prize to destinations that meet them. To promote travel and tourism, it will encourage better use of technology – including centralised booking services accessible via mobile phone – and more theme-based tourism (spas, gastronomic excursions, sports vacations, etc.)
features 21 proposals, many aimed at attracting more visitors to Europe from fast-developing countries like China, Russia and Brazil. But it also spells out ways to increase travel within the EU, including greater coordination of school holidays to lengthen the holiday season.The commission is proposing a label scheme to give recognition to high-quality services. It also plans to establish a charter with criteria for sustainable tourism and award a prize to destinations that meet them. To promote travel and tourism, it will encourage better use of technology – including centralised booking services accessible via mobile phone – and more theme-based tourism (spas, gastronomic excursions, sports vacations, etc.)
The EU also has to put more effort into making tourist sites accessible to people with reduced mobility, along with adjusting services to an older clientele.
Source: European Commission News; find full article here>>.
Friday, July 02, 2010
Israeli tour guides permitted to return to Bethlehem
According to an agreement between the Israel Ministry of Tourism and tourism officials in the Palestinian Authority, Israeli tour guides and tour operators have been permitted to return to Bethlehem for the first time in nearly a decade. Prior to this agreement, Israeli guides were not allowed to work in the West Bank but were replaced by Palestinian guides when tours crossed into the West Bank from Israel.
Source: Travel Weekly; find article here>>.
Source: Travel Weekly; find article here>>.
USA: Cruise Line Vessel Security and Safety Act passes the House
The Cruise Line Vessel Security and Safety Act of 2009 passed the House on Wednesday evening; the Senate has already unanimously approved the bill. The approved legislation is a significant victory for cruise passengers’ rights and is now being sent to President Barack Obama for his signature.
The bill requires the cruise industry to comply with a number of security provisions that mandate ship rail heights, peep holes in cabin doors and video surveillance systems. Crews are required to record alleged crimes and report all serious crimes to the Coast Guard and FBI.
Source: sun-sentinel.com; find article here>>.
Thursday, July 01, 2010
UNWTO Reports International Tourist Arrivals Up 7 Percent
International tourist arrivals grew by 7 percent in the first four months of 2010 according to the latest issue of the UNWTO World Tourism Barometer. This growth confirms the recovery trend beginning in the last quarter of 2009 and comes despite the challenging conditions of recent months. While April’s results were affected by the week-long closure of European airspace, globally the pace of recovery is faster than initially expected, driven largely by emerging markets. For the full year 2010, UNWTO forecasts international tourist arrivals to grow by 3 percent to 4 percent.
Source: UNWTO press release of June 29, 2010
Source: UNWTO press release of June 29, 2010
USA: law suit against government bodies over "No Fly List"
The American Civil Liberties Union (ACLU) filed a first-of-its-kind lawsuit on behalf of 10 US citizens and lawful residents who are prohibited from flying to or from the United States or over US airspace because they are on the government's "No Fly List" against the US Department of Justice, the FBI, and the Terrorist Screening Center in US District Court for the District of Oregon. None of the individuals in the lawsuit have been told why they are on the list or given a chance to clear their names.
The ACLU's complaint is available online at: www.aclu.org/national-security/latif-et-al-v-holder-et-al-complaint
More information about the ACLU's lawsuit is available online at: www.aclu.org/national-security/aclu-challenges-government-no-fly-list-0
Source: aclu.org
Germany: ban of external guided tours at "documenta" exhibition justified
"Documenta" is one of the most important exhibitions of modern and contemporary art which takes place in Kassel, Germany every five years. In a judgement of May 4, 2010, OLG Frankfurt (Case 11 U 70/09) decided that the managing company of the event is allowed to ban external suppliers, in particular tour operators, from offering guided tours at the exhibition: the company had a legitimate interest to cover the costs of the exhibition by providing its own guided tours which constituted a justified reason to exclude external organisers. The ban could not be regarded a misuse of a market dominance.
Source: www.olg-frankfurt.justiz.hesse.de
Full text of judgement available in German here>>.
Source: www.olg-frankfurt.justiz.hesse.de
Full text of judgement available in German here>>.
Tuesday, June 29, 2010
IATA criticizes European Union’s response to Volcano crisis
The International Air Transport Association (IATA) criticized the European Union’s response to the eruption of the Iceland volcano in April, saying that it cost the European economy 5 billion euros. Giovanni Bisignani, IATA's Director General and CEO during a meeting of EU Transport Ministers also said Europe must review its compensation regulations for flight cancellations and delays which were applied in a way never intended by the original legislation. Finally, Bisignani reiterated his call for a real European Single European Sky (SES).
Source: IATA press release 31 of June 25, 2010
Source: IATA press release 31 of June 25, 2010
USA and Europe sign new Open Skies Agreement
The U.S. and Europe have signed an agreement expanding the 2007 U.S.-EU Open-Skies Accord. The new agreement also affirms that the terms of the 2007 accord will remain in place indefinitely. It deepens U.S.-EU cooperation in aviation security, safety, competition and ease of travel, and provides greater protections for U.S. carriers from local restrictions on night flights at European airports. It also includes a ground-breaking article on the importance of high labor standards in the airline industry. The new agreement also underscores the importance of close transatlantic cooperation on aviation environmental matters in order to advance a global approach to global challenges.
Source: DOT press release of June 24, 2010
Source: DOT press release of June 24, 2010
USA: airline food unsafe?
Food and Drug Administration (FDA) reports found that many meals served to passengers on major airlines are prepared in unsanitary and unsafe conditions. The FDA reports say many facilities store food at improper temperatures, use unclean equipment and employ workers who practice poor hygiene. At some, there were cockroaches, flies, mice and other signs of inadequate pest control.
Source: USA today; find article here>>.
Wednesday, June 23, 2010
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.
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>>.
Tuesday, June 22, 2010
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>>.
Source: travelpulse; find article here>>.
Monday, June 21, 2010
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>>.
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>>.
Wednesday, June 16, 2010
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>>.
Tuesday, June 15, 2010
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
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
Monday, June 14, 2010
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>>.
Source: Travel Weekly; find article here>>.
Wednesday, June 09, 2010
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,
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>>.
- 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.
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>>.
Source: bbc.co.uk; find article here>>.
Tuesday, June 08, 2010
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
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
Wednesday, June 02, 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>>.
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>>.
Source: DOT press release of June 2, 2010; find full text here>>.
Tuesday, June 01, 2010
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>>.
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>>.
Source: travelpulse; find article here>>.
Thursday, May 27, 2010
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.
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
Friday, May 21, 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>>.
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>>.
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.
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>>.
Tuesday, May 18, 2010
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.
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.
Wednesday, May 12, 2010
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>>.
Source: Times Online; find article here>>.
Tuesday, May 11, 2010
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>>.
Source: Times Online; read article here>>.
Monday, May 10, 2010
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>>.
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>>.
Tuesday, May 04, 2010
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
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>>.
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
Monday, May 03, 2010
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>>.
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.
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.
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