127 / 448
GAZETTE
APRIL /MAY 1996
Holidays Wi ll Never Be the
Same Again
by Richard Lee
The area of 'Holiday Law' has seen
some radical changes in the past year
with significant consequences for
holidaymakers, tour operators and
travel agents. Social, sporting and
voluntary clubs organising outings
should also pay special attention.
With a preference for the practical
over and ábove the academic I set out
below some interesting
considerations.
New Law
In 1995 two important pieces of
legislation came into operation which
I would say substantially changed the
law relating to holidays, giving
holidaymakers significant rights and
imposing stern obligations on package
organisers, tour operators and travel
agents. The two pieces of legislation
were:
a. The Package Holiday and Travel
Trade Act 1995 which effectively
came into operation on 1 October
1995 and,
b. The European Communities
(Unfair Terms in Consumer
Contracts) Regulations 1995 which
apply to all contracts concluded
after 31 December 1994.
Liability
A heavy burden has now been placed
on the shoulders of package
organisers and tour operators in that,
loosely speaking, they are now
primarily responsible for anything that
goes wrong in connection with a
package holiday. If, for example, a
hotel fails or improperly performs its
part of the holiday contract then the
package organiser or tour operator
may be liable for damages. If a
holidaymaker suffers injury caused as
result of the failure or improper
performance of a hotel or apartment in
the provision of services then the
Richard Lee
package organiser or tour operator
could face a claim. Of particular
concern to package organisers and
tour operators should be a failure or
improper performance in the transport
element of a package holiday as
accidents can happen with planes,
trains, boats and buses. Some measure
of liability limitation is permitted to
package organisers and tour operators
with regard to transport services.
Limitation
The recent legislation prevents any
limitation on liability where death or
personal injury is a consequence of a
failure or improper performance of the
services involved in a package holiday
or if there is gross negligence or
wilful misconduct on the part of the
package organiser. Otherwise liability
may be limited to not less than twice
the cost of the package holiday for an
adult and not less than the cost of the
package holiday in respect of a person
under eighteen years of age.
Package Organiser
The recent legislation applies not just
to tour operators but to all 'package
organisers'. For example a bus
company that organises overnight
accommodation could be a package
organiser as could a guest house or
hotel that organises local tours.
Loosely speaking an "organiser"
means a person who organises
packages which include two out of the
following three components:
a. transport;
b. accommodation;
c. other tourist services, not ancillary
to transport or accommodation,
accounting for a significant
proportion of the package.
The definition is very wide and could,
for example, include conferences
organised by the Law Society. Social
and sporting clubs organising outings,
educational trips, pilgrimages and so
forth could all be caught by the
definition of "organiser" with the
consequence of onerous liability. It is
important to be aware that the term
'package' includes all travel within
Ireland, as well as travel abroad.
Exemption
The legislation permits an exemption
for an 'occasional organiser'. On 29
September 1995 the Minister for
Transport, Energy and
Communications officially sealed
Statutory Instrument No. 271 of 1995
which sets out who may be classed as
an 'occasional organiser'. The
Instrument includes professional,
medical, scientific, cultural or trade
associations or societies, social and
sporting clubs, voluntary
organisations, schools and educational
institutions, religious groups and
charities. While the above groups are
included in the Statutory Instrument
they could fall outside its ambit
should the exact wording of the
Statutory Instrument not be observed.
Brochure
The recent legislation also sets out
requirements for a package or holiday
111