Germany: another Supreme Court decision on a missed connecting flight

Following its decision of April 30, 2009, German Supreme Court(BGH) in a recent decision of May 28, 2009 (Xa ZR 113/08) confirmed that the miss of a connecting flight due to a delay of the feeding flight does not constitute "denied boarding" under Reg. 261/2004.

Furthermore there was no claim for price reduction based on the delay as a delayed fligth could not be regarded "defective". Plaintiffs therefore could only have sued for compensation of damages caused by the delay, which they, however, had not claimed for.

BGH therefore upheld the dismissal of the claim by the lower courts.

Source: BGH press relase of 28.05.2008; find full text in German here>>.

Illinois: another law suit aganist YTB

The Califonia law suit was barely setteled when Illinois Attorney General Lisa Madigan filed a similar law suit against YTB: again YTB is charged with operating an "unlawful pyramid sales scheme." Illinois charged that YTB violates the state’s Consumer Fraud Act by misrepresenting that it is a travel agency "when in fact the primary function of the business is building a downline." Illinois is seeking civil penalties of $50,000 for each violation of the Consumer Fraud Act.

Source: Travel Weekly; find article here>>.

South Korea: specific Visa for Medical Tourists

South Korean government is introducing a new category of visa for tourists who visit the country for medical purposes. The foreign medical tourist visa, M, is adopted in a bid to boost the nation's medical tourism industry as local hospitals and medical institutes have strongly requested the government to simplify the visa issuance process. According to the Ministry for Health, Welfare and Family Affairs, the new visa will be issued from Monday in two forms, C3 (M), a 90-day visa for those with short-term treatment purposes, and G1 (M), a one-year visa for those who need long-term care.

Source: www.xihunaet.com; find article here>>.

European Union: Airlines move to clean up ticket selling websites

New EU results published yesterday show a "step change" in airline ticket selling websites across Europe in terms of compliance with consumer protection rules. The findings feature in a final report on an 18 month EU-wide process to crackdown on misleading advertising and unfair practices. As a result of an EU enforcement investigation started in September 2007 – with 15 EU national authorities and Norway - 115 airline websites out of the 137 websites investigated have been corrected. Following an additional "health check" process involving independent mystery shopping in March 2009 on 67 major airlines, 52 airlines have either been given a "clean bill of health" and undertaken to maintain the same standards or immediately responded to the Commission's consultation with undertakings to remedy outstanding issues. The health check process checked websites against a comprehensive 14 point checklist, which was previously agreed with the airline industry. The Commission is now working to put in place an industry wide agreement to provide a level playing field for airlines across the EU and to maintain sites to a high standard.

Source: EU press release IP/09/783; find full text here>>.

California: YTB case settled

The state of California's lawsuit against the multilevel marketing travel company YTB and its founders (see posting of Jan. 8, 2009) has been settled.

In addition to paying $1 million in penalties costs and restitution, YTB will have more difficulty selling websites to prospective travel sellers. Plus, limits were imposed on recruiters’ earning potential. YTB also has to register with California as a franchise business.

Source: Travel Weekly; find article here>>.

Australia: holiday makers warned on using unlicensed travel agents

The Australian Travel Compensation Fund says booking with a licensed agent is “more important than ever'”as more businesses struggle in the tough economic climate. The TCF has exceeded $50 million in payments to Australian travellers who have been left out of pocket after their travel agencies collapsed. However, travellers are eligible for financial protection only if they used a licensed agent. The TCF was set up in 1986 to provide a safety net for travellers who would lose money if a travel agency collapsed or became insolvent.

Source: news.com.au; find article here>>.

USA: FlyersRights.org accuses some airlines of trapping passengers during diversions

As the U.S. Department of Transportation (DOT) released its sixth monthly data installment for diverted commercial airline flights – flights that make unscheduled stops before they reach their final destinations, either to refuel, or because of a weather problem or some other in-flight emergency - a FlyersRights.org analysis shows that some airlines routinely denied passengers the opportunity to deplane at a diverted airport, while others almost always gave passengers the option to wait out the diversion in the comfort of an airport terminal.

FlyersRights.org is lobbying Congress to adopt a rule that would allow passengers the opportunity to deplane if delayed on the ground for 3 hours or more for any reason, including flight diversions.

Source: FlyersRights.org

European Union: airline take-off slot rules to be changed

Current rules force airlines to use the time slots at busy airports at least 80 percent of the time or face losing them the following season. After the European Parliament agreed to loosen these "use-or-lose rules", airlines will gain more flexibility in how they use take-off and landing slots: They will be entitled to the same series of slots during the summer 2010 season as were allocated in 2009, regardless of how much they use them.

Source: AEA information

UNWTO: Taleb Rifai to be Secretary-General 2010-2013

The 85th session of the UNWTO Executive Council, meeting in Mali, recommended Taleb Rifai for the post as Secretary-General for the four-year-period starting January 2010. The candidature of Mr. Rifai (Jordan) was supported by the Executive Council, in accordance with the UNWTO statutes. The recommendation will be presented for ratification by the UNWTO General Assembly, meeting the first week of October in Astana, Kazakhstan.

Mr. Rifai has an extensive background in international and national public service, the private sector and academia.

Source: UNWTO press release of May 7, 2009

German Supreme Court: No Compensation under Reg. 216/2004 if Connecting Flight is Missed due to Delay of Feeder

In a judgment of April 30, 2009 (Xa ZR 78/08), German Supreme Court (BGH) held that the miss of a connecting flight due to a delay of the feeder (both flights operated by the same airline and jointly booked as parts of one and the same contract for carriage) would not constitute "denied boarding" under Reg. 261/2004.

BGH reasoned that a right to compensation would require the passenger to

• prove confirmed booking
  
• have appeared at check-in in time and
• a refusal of carriage against the passenger's will despite him being present at the gate.

These requirements were not fulfilled if the passenger due to the delay of the feeder did not present himself for check-in and/or boarding in time.

Despite of the different view of some other German courts (LG Berlin, RRa 2008, 42; OLG Hamburg, 6 U 94/07; LG Leipzig 6 S 319/08), BGH regarded the issue as "non-ambiguous" and therefore saw no reason to make a reference fo preliminary ruling of the European Court of Justice.

Source: press release 93/2009 by BGH; available in German here>>.

USA: FAA publishes Bird Strike Database

The Federal Aviation Administration (FAA) has made its entire Bird Strike database available on a public website by April 24. Portions of the database have been publicly available since the information was first collected in 1990, but the public is now able to access all of the database's fields. Over the next four months, the FAA will make significant improvements to the database to improve the search function and make it more user-friendly. In its current format, users will only be able to perform limited searches online, but will be able to download the entire database.

The FAA also plans to work with the aviation community to find ways to improve and strengthen bird strike reporting.

Source: FAA press release of April 22, 2009
Database available here>>.

Namibia: new Tourism Bill on the way

The Namibia Tourism Board (NTB), a statutory body to regulate and market the tourism industry established by an Act of Parliament (Act 21 of 2000), has introduced a number amendments to the Namibian Tourism Board Act, 2000 ( Act no. 21 of 2000), key elements of which are
• Fostering of corporate governance by introducing fiduciary duties and responsibilities of the
Board, as well as stipulating Audit Committee and Remuneration Committee as two standing
committees of the Board;
• disciplinary procedures for operators that are involved in unethical business conduct to
safeguard the tourists;
• enhancements of Levy section to allow the Board to appoint auditors to audit books of the
registered clients to ensure that proper levies are being declared to NTB, as at present
operators, currently required by the ACT, (i.e. accommodation businesses), proved beyond
reasonable doubt not to declare correct levy amount to NTB so is the tax to the Inland
Revenue;
• assigning Peace Officer powers to the Tourism inspectors to grant spot fines;
• allowing Board to recruit other staff on part‐time basis to expand inspectorate staff, which
will be cheaper option in the long run;
• provision of Licensed person that will pave the way for licensing of Tour Guides, and
• Introduction of annual renewal fees to increase NTB’s budget income.

Source: NTB; Background report and text of bill available for download here>>.

USA: Starwood v. Hilton on alledged theft of proprietary information

Starwood Hotels & Resorts has filed a lawsuit in the U.S. District Court for the Southern District of New York accusing Hilton Hotels Corp. and two former Starwood executives of corporate espionage in the development of Hilton’s new lifestyle brand "Denizen Hotels".

Starwood is seeking preliminary and permanent injunctive relief plus compensatory and punitive damages from Hilton and the individual defendants. The lawsuit seeks a court order prohibiting Hilton from using or benefiting from Starwood’s confidential information and requiring Hilton and the individual defendants to return all Starwood confidential information as well as to certify the destruction of all materials derived from Starwood confidential information, including plans for the promotion and roll-out of Hilton’s Denizen brand.

Hilton said the lawsuit was without merit and that the company would vigorously defend itself.

Source: Travel Weekly; find article here>>.

ECJ: Art 22.2 Montreal Convention - material/non-material damage

Reference for a preliminary ruling from the Juzgado de lo Mercantil 4, Barcelona

Case C-69/09 (Walz/Clickair)

Question referred:

Does the limit of liability referred to in Article 22.2 of the Convention for the Unification of Certain Rules for International Carriage, signed in Montreal on 28 May 1999, include both non-material damage and material damage resulting from the loss of baggage?

California: Court extends Restaurant Tipping Pool

In a 2-1 split decision, the California court of appeal for the appellate district that includes Los Angeles expanded the class of restaurant employees who can participate in an employer’s tip pool. Following the decison in Etheridge v. Reins International California, Inc. the tipping pool is no longer dedicated only to restaurant employees, such as servers or bussers, who provide "direct table service" to patrons but includes all employees in the "chain of service"—meaning any employee who contributes to the service a restaurant patron receives.

The issue on appeal was whether a mandatory tip pool, in which tips are shared with employees who do not provide direct table service, violated California Labor Code Section 351, which states: "Every gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for."

It is likely that the case will be brought to the California Supreme Court for review.

Opinion available for download here>>.

USA: Airline passenger's lawsuit over a tarmac delay dismissed

Plaintiff had filed a lawsuit against American Airlines over a Dec. 29, 2006 flight diverted from Dallas-Fort Worth to Austin because of weather issues. After landing, passengers sat in the plane for 9.5 hours, unable to leave despite overflowing toilets and little food or water.

US District Judge Robert T. Dawson said airlines are not legally bound to provide a "stress-free environment" when a delay occurs, even if passengers are stuck in an aircraft on the tarmac for more than nine hours.

Judge Dawson pointed out that plaintiff and other passengers were given opportunities to get off the plane. The judge acknowledged that she felt she had to stay on the plane because she said she was told by airline personnel she would be "on her own" if she got off the plane, but that did not mean she was imprisoned.

The decision is reviving the discussion on a need for federal legislation.

Source: Travel Weekly; find article here>>.

"Commission updates the list of airlines banned from European airspace"

As stated by the EU Press Room, "The European Commission today adopted the update of the so-called blacklist of airlines that are banned from flying into the European Union due to safety concerns. The Commission has imposed a ban on six airlines from Kazakhstan, one airline certified in Thailand, one additional Ukrainian air carrier and on operations of all carriers certified in Benin.
'The Commission will continue to actively pursue a dialogue with everyone involved in aviation to ensure that all aircraft and air carriers conform to internationally required levels of air safety. Air passengers are entitled to feel safe and be safe when their plane takes off,' said Antonio Tajani, Commission Vice-President in charge of transport.
The new list, which replaces the previous one published in November 2008, can be consulted on the Commission’s website. Following the unanimous opinion of the Air Safety Committee, the Commission updated the list and decided to expand the list and impose an operating ban for safety reasons on the following air carriers:

• Air Company Kokshetau, ATMA Airlines, Berkut Air, East Wing, Sayat Air and Starline KZ (Kazakhstan)
• One Two Go Airlines (Thailand)
• Motor Sich Airlines (Ukraine)
• All airlines certified in the Republic of Benin on the basis of the negative results of an audit by the International Civil Aviation Organisation (ICAO).
  

The Commission noted good progress in relation to the measures taken by Angola in order to improve the safety situation. In particular, it took note of the progress report drawn up by the aviation authorities of Angola on the implementation of corrective actions following the visit of a team of European experts in February 2008 and the publication of the ICAO safety audit report in October 2008.
A report of the visit of a European team of experts to Indonesia in February 2009 showed considerable improvements. The Commission will continue close consultations with the aviation authorities with a view to re-assessing the safety situation at the next meeting of the Air Safety Committee.

Hence from today the Community list imposes a ban on:

All carriers from Angola, Benin, Equatorial Guinea, Indonesia, the Kyrgyz Republic, Liberia, Sierra Leone, Swaziland, the Democratic Republic of Congo (DRC) and Gabon save for Gabon Airlines and Afrijet, which have exemptions for a small number of aircraft.

Sixteen individual carriers:

• Afghanistan – Ariana Afghan Airlines
• Cambodia - Siem Reap Airways International
• Democratic People's Republic of Korea - Air Koryo
• Kazakhstan - Air Company Kokshetau, ATMA Airlines, Berkut Air, East Wing, Sayat Air, Starline KZ
• Rwanda - Silverback Cargo Freighters
• Sudan - Air West
• Thailand - One Two Go Airlines
• Ukraine - Motor Sich Airlines, Ukraine Cargo Airways, Ukraine Mediterranean Airlines and Volare Aviation"

USA: class action against British Airways admitted

United States District Judge Nicholas Garaufis of United States District Court for the Eastern District of New York, denied British Airways' motion to dismiss a consumer class action, filed in 2007, which seeks to recover travelers' actual losses rather than a US$1,500 cap the airline uses to limit damages. The court noted and rejected the airline's "extreme position" that it was not responsible for actual losses for lost baggage unless its mishandling rate was worse than 50%.
The suit seeks to represent American passengers who flew internationally on British Airways and had their luggage lost, damaged or delayed between September 5, 2005 and September 5, 2007.

Source: eTurboNews; find article here>>.

Austria: Hospital or Hotel?

An Austrian hotelier let some parts of his hotel to a doctor to run her surgery. The doctor offered health treatments related to cardiovascular diseases to the hotel guests as well as outsiders whereas the appointments were to be made through the hotel recpetion and - as far as hotel guests were concerned - treatments were billed together with the room fee.
Local authorities accused the hotelier of having turned his hotel into a hospital or sanatorium without the necessary licence and imposed administrative fines on him. He appealed to the Austrian Administrative Court. In a decison of Dec. 12, 2008 (Case 2006/11/0093), Administrative Court held that the services rendered by the hotelier would not amount to the typical services of a hospital or sanatorium and there was no evidence that the furnishing of the hotel had been similar to such institutions. The Court therefore repealed the penalty as unlawful.

"First European airlines offering in-flight use of mobile phones thanks to EU-wide ground rules"

According to the EU Press Room, "More and more European air passengers are being offered the choice to use their normal mobile phone to send text messages, browse the web or even make calls on board airplanes. One year after the European Commission put in place common rules for safe use of mobile phones on aircrafts and for simple and non-bureaucratic authorisations of this essentially cross border service, 27 European aircraft have been equipped to allow the secure use of standard GSM handsets onboard aircraft while flying in European airspace. The number of aircrafts enabled for in-flight use of mobile phones is expected to double by the end of the year.
'The possibility to use a mobile phone onboard an aircraft is particularly sought after by business travellers and younger passengers. In addition, in-flight GSM offers are an interesting business model for European companies. This is why a year ago, the European Commission created a legal framework for companies who want to offer mobile communications on-board aircrafts in a safe and simple way in European skies without having to go through 27 different national authorisation procedures,' said Viviane Reding, the EU's Telecoms Commissioner. 'I welcome the fact that the first airlines in Europe are now offering in-flight mobile phone use. There are two conditions for a further successful take-up of this new service: first of all, in-flight mobile phone use should not disturb other passengers, for example by leaving ample room for quiet zones during air travel, just like in trains. Secondly, attention should be paid by the operators that prices for these services remain at a reasonable level. If these two conditions are met, then offering on-board mobile phone services can be a bonus for European companies in the competitive global air travel market'."

This release is available in full text.