Exclusion Limitation of Tour Operators Liability for Personal

Exclusion & Limitation of Tour Operator’s Liability for Personal Injuries Europe - USA 21 st IFTTA Conference, Brazil Dr. Uta Stenzel, Germany

Europe Directive 90/314/EEC on package travel, package holidays and package tours (Package Tour Directive)

Europe package tour �a pre-arranged combination � not fewer than two travel services as ◦ (a) transport ◦ (b) accommodation ◦ (c) other tourist services not ancillary to transport or accommodation � more than 24 hours or overnight accommodation

Europe organizer � person, who, other than occasionally, organizes packages and sells them for sale, directly or through a retailer � person, who sells or offers for sale the package put together by the organizer consumer � person, who takes or agrees to take the package

Europe Art. 5 Package Tour Directive � liability of organizer and/or retailer � physical injuries � non-physical injuries

Europe Art. 5 Package Tour Directive � Art. 5 para 1 strict liability/liability without fault � Art. 5 para 2 reverses burden of proof 3 defences = restricted liability based on fault

Europe Art. 5 para 2 –defences The contract failure is: � attributable to the consumer � attributable to a third party unconnected with the performance of the services and is unforeseeable or unavoidable � due to force majeure or to an event which the organizer or retailer or the supplier, even with all due care, could not foresee

Europe Art. 5 para 2 –defences The contract failure is: � attributable to the consumer � attributable to a third party unconnected with the performance of the services and is unforeseeable or unavoidable � due to force majeure or to an event which the organizer or retailer or the supplier, even with all due care, could not foresee.

Europe Art. 5 para. 2 sent. 3 � limitation of liability - personal injuries: International Conventions governing travel services � no contractual limitations of compensation for personal injuries/ physical damages

Europe Art. 5 para. 2 sent. 3 � Warsaw Convention of 1929 on the International Carriage by Air/ Montreal Convention of 1999 � Berne Convention of 1961 on Carriage by Rail (now COTIF of 1980, as amended 1999) � Athens � Paris Convention of 1974 on Carriage by Sea Convention of 1962 on the Liability of Hotelkeepers

USA Federal law � e. g. , Code of Federal Regulations – Public Charters, CFR 14. 380 � federal maritime law State law � statutes � common law

USA Liability for performance of the tour �non-injury claims/ non-physical injuries = strict liability

USA Liability for performance of the tour �physical injuries = fault base–liability (tort, negligence)

USA Duty of care (negligence) �tour operator – own negligence �supplier – independent contractors �disclaimer

USA Shifting liability theories (e. g. ) � breach � duties of warranty, assumed duty of care (pre-contractual) ◦ misrepresentation ◦ duty to disclosure ◦ negligent selection of supplier ◦…

Brazil Muito obrigada