21st IFTTA Conference, Brazil Dr. Uta Stenzel, Germany Exclusion & Limitation of Tour Operator’s Liability for Personal Injuries Europe - 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 1 strict liability/liability without fault  Art. 5 para 2 reverses burden of proof 3 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  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 ◦ …

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