Case studies on personal injury in Spanish and European travel law

1
Case studies on personal injury in Spanish (and
European) travel law

• ANTONIA PANIZA FULLANA
• Doctor of Law
• Lecturer (Civil Law) at University of Balearic
  Islands

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INTRODUCTION

• 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

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INTRODUCTION

• - 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)

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Introduction

• LIABILITY
• TRAVEL AGENCY TRAVEL PACKAGE
• Organiser Retailer
• Consumer/Tourist
• Force majeure (?)

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European Regulation

• Directive 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.

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European 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.

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Spanish 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.

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Spanish 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.

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Spanish 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.

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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 toursSUMMARY 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.

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Force majeure and the burden of the 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.

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• CASE STUDIES

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Hurricanes

• 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.

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Hurricanes

• 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.

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Hurricanes

• DIFFERENT 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.

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Climatological 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

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Earthquakes

• 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

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Food 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

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Food 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.

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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

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Illness

• 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 countries
• Who is responsible?
• The organiser, the retailer or the consumer?
• The travel agency is not responsible.

22
Injuries 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

23
Accident 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

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Terrorism

• 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

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Terrorism

• 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?

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REFLECTIONS

• 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?

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CONCLUSIONS

• - 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.

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Case studies on personal injury in Spanish (and
European) travel law

• ANTONIA PANIZA FULLANA
• Doctor of Law
• Lecturer (Civil Law) at University of Balearic
  Islands