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. University of Balearic Islands
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
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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)
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Introduction
LIABILITY
TRAVEL AGENCY TRAVEL PACKAGE
Organiser Retailer
Consumer/Tourist
Force majeure (¿?)
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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”.
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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.
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Spanish Regulation
Art 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.
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Spanish Regulation
Arts and 1902 Spanish Civil Code.
Art 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.
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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.
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WORKING DOCUMENT OF THE COMMISSION Responses to the consultation on the Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours SUMMARY 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.
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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.
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12. CASE STUDIES

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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.
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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.
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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 transfer is not possible. So, they sue travel agency.
Travel agency: in this case, no liability. No breach the contract.
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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
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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
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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
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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.
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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
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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.
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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
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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
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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 Civil Code
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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?
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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?
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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.
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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