Case studies on personal injury in Spanish (and European) travel law ANTONIA PANIZA FULLANA Doctor of Law Lecturer (Civil Law) at University of Balearic

Case studies on personal injury Case studies on personal injury

in Spanish (and European) travel in Spanish (and European) travel

lawlaw

ANTONIA PANIZA FULLANAANTONIA PANIZA FULLANADoctor of LawDoctor of Law

Lecturer (Civil Law) at University of Balearic IslandsLecturer (Civil Law) at University of Balearic Islands

IFTTA EUROPE IFTTA EUROPE WORKSHOPWORKSHOP University of Balearic Islands

INTRODUCTIONINTRODUCTION- Regulation in Spain and Europe about personal injury in

travel law

- Personal injury: the duty to give a compensation:- Who? Organiser or retailer?

- Where are the limits?

- Force majeure and travel law:- Concept of “force majeure”- Force majeure vs information- Burden of the proof

Act of God


INTRODUCTIONINTRODUCTION- Analysis in different situations: travel package and...

- Hurricanes

- Earthquakes

- Food poisoning during the travel- Road accidents- Illness and risk countries- Injuries and sea animals; private beach- Terrorism

(The solution of the Spanish jurisprudence in this cases)


IntroductionIntroduction

LIABILITY

TRAVEL AGENCY TRAVEL PACKAGE

Organiser Retailer

Consumer/Tourist

Force majeure (¿?)


European RegulationEuropean RegulationDirective on Package Travel: Article 5 “1. Member States

shall take the necessary steps to ensure that the organizer and/or retailer party to the contract is liable to the consumer for the proper performance of the obligations arising from the contract, irrespective of whether such obligations are to be performed by that organizer and/or retailer or by other suppliers of services without prejudice to the right of the organizer and/or retailer to pursue those other suppliers of services.

2. With regard to the damage resulting for the consumer from the failure to perform or the improper performance of the contract, Member States shall take the necessary steps to ensure that the organizer and/or retailer is/are liable unless such failure to perform or improper performance is attributable neither to any fault of theirs nor to that of another supplier of services, because:

- the failures which occur in the performance of the contract are attributable to the consumer,

- such failures are attributable to a third party unconnected with the provision of the services contracted for, and are unforeseeable or unavoidable,

- such failures are due to a case of force majeure such as that defined in Article 4 (6), second subparagraph (ii), or to an event which the organizer and/or retailer or the supplier of services, even with all due care, could not foresee or forestall”.


European RegulationEuropean Regulation ART. 4 (6) ii: force majeure: what is?

(ii) cancellation, excluding overbooking, is for reasons of force majeure, i.e. unusual and unforeseeable circumstances beyond the control of the party by whom it is pleaded, the consequences of which could not have been avoided even if all due care had been exercised.


Spanish RegulationSpanish Regulation Art. 162.2 Consumer Protection Act 2007:

The organiser and retailer of package travels are liable to the consumer for any damage caused to him by the failure to perform the contract or the improper performance of the contract unless the failure or the improper performance is due neither to any fault of that other party nor to that of another supplier of services, because:

(a) the failures which occur in the performance of the contract are attributable to the consumer;

(b) such failures are attributable to a third party unconnected with the provision of the services contracted for, and are unforeseeable or unavoidable; or

(c) such failures are due to force majeure, unusual and unforeseeable circumstances beyond the control of the party by whom this exception is pleaded, the consequences of which could not have been avoided even if all due care had been exercised; or

(d) an event which the other party to the contract or the supplier of services, even with all due care, could not foresee or forestall.


Spanish RegulationSpanish Regulation Arts. 1101 and 1902 Spanish Civil Code. Art. 1105 Spanish Civil Code: nobody is

responsible of the injuries caused by unusual and unforeseeable circumstances beyond their control, the consequences of those circumstances could not be avoided if all due care had been exercised, or an event that has caused the failure which even with all due care could not have been foreseen or forestalled.


Spanish RegulationSpanish Regulation About article 1105 Spanish Civil Code and

the concept of force majeure and Act of God in the Supreme Court Resolutions: STS 2002, july 15th STS 2003, february 21st STS 2004, november 23rd. STS 2006, february 2nd

Act of God: SAP of Santa Cruz de Tenerife 2000, november 4th: tourist who falls down during a trip: no negligence of the guide.


WORKING DOCUMENT OF THE COMMISSIONResponses to the consultation on the Council Directive 90/314/EEC of 13

June 1990on package travel, package holidays and package tours

SUMMARY OF RESPONSES

Issue brought forward in the consultation replies:

The establishment of partial refund in the case of force majeure. Need for interpretation of the term "force majeure" which is often used to justify noncompensation.


Force majeure and the burden of Force majeure and the burden of the proofthe proof

In general, article 217 LEC

SAP of Vizcaya 2005, march 10th is clear: burden of the proof: It is easier for the organiser because he is the stronger part in the process.

SAP de Vizcaya 2007, may 23rd: Case about travel package and hurricane. Organiser alleges force majeure. Court establishes that the burden of the proof is on the organiser and besides it is the stronger part.

And, SAP of Bizkaia 2007, may 23rd, etc.

Organiser and retailer can provide evidence of extraordinary circumstances which could not have been avoided.

CASE STUDIESCASE STUDIES


HurricanesHurricanes

SAP of Cantabria 2007, november 7th.

Travel package to Punta Cana (in setember) Package holidays in Punta Cana are usually sold

by this retailer. So, weather forecast in that zone in this month is known by the retailer.

Retailer has a legal and contractual obligation to communicate to the client, before the conclusion of the contract, the risk of hurricanes in that zone (Law of Package Travel now in Consumer Protection Act 2007).

Only the retailer is compelled to inform about the weather situation, not the tourist.


HurricanesHurricanes SAP of Vizcaya 2007, may 23rd

No force majeure breach of contract Organiser /retailer: no information about hurricane Extraordinary circumstances which not have been

avoided? Not in this case It is not an unforeseen event in october in Mexico Organiser and retailer liability

In the same way: SAP of Madrid 2007, june 7th (cruise); SAP of Cáceres 2006, may 31st; SAP of Barcelona 2000, june 27th.


HurricanesHurricanes DIFFERENT SITUATIONDIFFERENT SITUATION: SAP of Málaga 2007,

may 14th Retailer informs about the hurricane in Cancún Retailer offers two possibilities to the clients:

- Cancellation of the travel package or - Changing the travel to Cancun for other to Cuba, and if the transfer was possible, they would go from Cuba to Cancun

The clients choose Cuba. The hurricane in Mexico is very strong and the transfer is not possible. So, they sue travel agency.

Travel agency: in this case, no liability. No breach the contract.


Climatological adverse conditionsClimatological adverse conditions

- SAP of Sevilla 2004, july 29th

- Travel package in Prague

- Concurrent faults

- Organiser and retailer liability: they did not advice the client not to go to Prague.

- No force majeure


EarthquakesEarthquakes

- SAP of Madrid 2004, june 28th

- Earthquake in Turkey during a package travel.

- No information to the travellers about the situation Breach of contract.

- No Act of God


Food poisoningFood poisoning SAP of Asturias 2007, october 5th

Food poisoning in a hotel “all included” during a package travel.

Connection between the damages and meal, drinks served by the hotel.

No Act of God Negligence in the meal preparation by the hotel Organiser and Retailer liability in front of the tourist

SAP of Madrid 2006, december 15th Food poisoning in a hotel during honeymoon Travel as a all unit/Breach of contract Honeymoon/moral damages


Food poisoningFood poisoning

SAP of Madrid 2005, october 20th Fodd poisoning during a dinner the last day of

the travel Travel agency is the organiser of the travel and

the dinner Organiser is liable. Spanish Law about travel

package establishes that: the organiser -in this case- of package travels are liable to the consumer for any damage caused to him by the failure to perform the contract or the improper performance of the contract.


Road accidents Road accidents

- SAP of Asturias 1998, december 11th- Liability of the organiser, not the retailer- Contract was fullfilled by the organiser and bus company, but not by the retailer.

- SAP of Barcelona 2002, may 29th- Optional trip during a package holidays. - Road accident in Sahara- No Act of God (Organiser does not proof the Act of

God or force majeure).- Injuries has to be compensated by the organiser


IllnessIllness- SAP of Alicante 2000, december 7th

- A person who takes a legal action because her daughter fall ill during a journey in India.

- Problem: risk countriesrisk countries:- Who is responsible?- The organiser, the retailer or the consumer? - The travel agency is not responsible.


Injuries and sea animalsInjuries and sea animals- SAP of Pontevedra 2003, march 18th.

- Injuries caused to blind tourist by a sea animal in the private beach of the hotel

- Act of God or Force Majeure?- Inevitable accident?

- No Act of God, no force majeure. It is not unforeseeable event.

- Safety measures taken by the hotel are not enough.

- Retailer and organiser are liable


Accident in a private beachAccident in a private beach

- SAP of Murcia 2006, september 18th

- Injuries caused by an accident in a hotel private beach in Caribbean sea (The beach is only used by the clients of the hotel).

- Bad weather conditions/Death of a client in the sea- Safety measures in the beach are not enough- Information on the beach is not enough

- Who is liable? The Organisers, but not the retailer. Besides, this hotel was managed by the organisers


TerrorismTerrorism

STS 2005, October 11th: terrorist attack to Spanish tourist in Egypt:

Package travel Liability: Organiser and retailer/ but the

situation in this country must be known by the tourist

No inevitable accident/ No force majeure: art. 1105 Civil Code


TerrorismTerrorism

STS 2006, february 2nd: travel to Egypt. Death and injury caused by terrorist attack in Egypt.

- Previous warning of the dangerous in that zone (by Spanish Ministry of Tourism)

- Liability: organiser and retailer

- No force majeure

- ¿Risk countries?


REFLECTIONSREFLECTIONS

INJURY/LIABILITY/COMPENSATION:

- Duty to inform /force majeure: who can know the risk?

- SAP of Soria 2003, september 1st.: organiser is not liable in the case of a strike during the package holidays. This kind of information is not avalaible by the travel agency when the contract is fulfilled.

- What is the real scope of the force majeure in the travel law?


CONCLUSIONSCONCLUSIONS- Strict liability in the Spanish and European travel

law.- Liability will stop only in the specific cases

foreseen by the law. - Restrictive scope of the force majeure and Act

of God: unusual and unforeeseable failure:- Hurricanes in Caribbean sea in september or

october are not unforeeseable.- If there are not safety measures, there is

liability- Illness or terrorist attacks, in countries where

the risk is very high, are not inevitable cases.

Case studies on personal injury Case studies on personal injury

in Spanish (and European) travel in Spanish (and European) travel

lawlaw

ANTONIA PANIZA FULLANAANTONIA PANIZA FULLANADoctor of LawDoctor of Law

Lecturer (Civil Law) at University of Balearic IslandsLecturer (Civil Law) at University of Balearic Islands

Documents

Case studies on personal injury in Spanish (and European) travel law ANTONIA PANIZA FULLANA Doctor of Law Lecturer (Civil Law) at University of Balearic