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