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21st IFTTA Conference, Brazil Dr. Uta Stenzel, Germany

Exclusion & Limitation of Tour Operator’s Liability for Personal Injuries Europe - USA. 21st 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

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21st IFTTA Conference, Brazil Dr. Uta Stenzel, Germany

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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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