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Exclusion & Limitation of Tour Operator’s Liability for Personal Injuries in Europe - USA: IFTTA Conference 21st, Brazil

Explore the liability regulations for personal injuries under the Europe Package Tour Directive and relevant international conventions, comparing with USA federal and state laws. Discuss strict liability, defences, and limitation of liability, including duty of care and shifting liability theories.

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Exclusion & Limitation of Tour Operator’s Liability for Personal Injuries in Europe - USA: IFTTA Conference 21st, Brazil

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

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

  3. 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 • morethan 24 hoursorovernightaccommodation

  4. Europe organizer • person, who, other than occasionally, organizes packages and sells them for sale, directly or through a retailer 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

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

  6. Europe Art. 5 Package Tour Directive • Art. 5 para 1 strictliability/liabilitywithout fault • Art. 5 para 2 reversesburdenofproof 3 defences = restrictedliabilitybased on fault

  7. 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

  8. 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.

  9. 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

  10. 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 Convention of 1974 on Carriage by Sea • Paris Convention of 1962 on the Liability of Hotel-keepers

  11. USA Federal law • e.g., Code of Federal Regulations – Public Charters, CFR 14.380 • federal maritime law State law • statutes • common law

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

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

  14. USA Duty of care (negligence) • tour operator – own negligence • supplier – independent contractors • disclaimer

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

  16. Brazil Muito obrigada

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