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

2. 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 University of Balearic Islands

3. 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) University of Balearic Islands

4. Introduction LIABILITY TRAVEL AGENCY TRAVEL PACKAGE Organiser Retailer Consumer/Tourist Force majeure (¿?) University of Balearic Islands

5. 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”. University of Balearic Islands

6. 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. University of Balearic Islands

7. 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. University of Balearic Islands

8. 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. University of Balearic Islands

9. 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. University of Balearic Islands

10. 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. University of Balearic Islands

11. 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. University of Balearic Islands

12. CASE STUDIES

13. 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. University of Balearic Islands

14. 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. University of Balearic Islands

15. 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 transferis not possible. So, they sue travel agency. • Travel agency: in this case, no liability. No breach the contract. University of Balearic Islands

16. 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 University of Balearic Islands

17. 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 University of Balearic Islands

18. 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 University of Balearic Islands

19. 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. University of Balearic Islands

20. 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 University of Balearic Islands

21. 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. University of Balearic Islands

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 University of Balearic Islands

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 University of Balearic Islands

24. 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 University of Balearic Islands

25. 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? University of Balearic Islands

26. 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? University of Balearic Islands

27. 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. University of Balearic Islands

28. 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