21st IFTTA Conference, BrazilDr. Uta Stenzel, Germany

Exclusion & Limitation of Tour Operator’s Liability for Personal

InjuriesEurope - USA

Directive 90/314/EEC on package travel, package holidays

and package tours

(Package Tour Directive)

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

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

Art. 5 Package Tour Directive

liability of organizer and/or retailer

physical injuries

non-physical injuries

Art. 5 Package Tour Directive

Art. 5 para 1strict liability/liability without fault

Art. 5 para 2reverses burden of proof3 defences

= restricted liability based on fault

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

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.

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

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

Federal law e.g., Code of Federal Regulations – Public

Charters, CFR 14.380 federal maritime law

State law statutes common law

Liability for performance of the tour

non-injury claims/ non-physical injuries

= strict liability

Liability for performance of the tour

physical injuries

= fault base–liability (tort, negligence)

Duty of care (negligence)

tour operator – own negligence

supplier – independent contractors

disclaimer

Shifting liability theories (e.g.)

breach of warranty, assumed duty

duties of care (pre-contractual)◦misrepresentation◦duty to disclosure◦negligent selection of supplier◦…

Muito obrigada