31 Jan Damages for ruined holidays: conditions and limitations
Know your rights after a ruined holiday
By Avv. Michele Capecchi, LL.M.
When summer ends the number of claims for damages caused by contractual breaches of tour operators and travel agents increases dramatically. These situations are referred to as “damages for ruined holidays”. Have you ever had a bad experience during a so-called all-inclusive travel package?
All-inclusive travel packages are a service offered by travel agencies, through which, for a pre-set price, all transportation (flight, ship, train), accommodation, food and other services are covered. Increasingly, however, tourists are frustrated with the all-inclusive travel package: deficiencies or inaccuracies in the nature and quality of the services do not meet the standards promised and advertised. Imagine newlyweds on their honeymoon or a family eagerly embarking on a long-awaited trip to an exotic place: they find that the hotel rooms are dirty, or that the beach is inaccessible, or maybe they get food poisoning. What are the foreseeable and practicable damages that are possible to recover? Most travelers are aware of the process for recovering damages for a cancelled flight or loss of luggage, but not many likely know that it is also possible to recover the non-economic damages suffered during a pre-arranged, all-inclusive trip.
Two recent incidents have brought these questions to the forefront of vacationer’s minds: the Costa Concordia shipwreck off the Tuscan coast, in which people died, and the fire on the Costa Allegra, which resulted in 12 hours at sea without electricity, air conditioning or toilet facilities.
I will not entertain the delicate subject of those passengers’ claims, but these recent incidents are a good opportunity to discuss travelers’ rights when something goes wrong during package holidays. It is also a very current topic for another reason: less than one year ago, the Italian government passed a new National Tourism Code (decree 79/2011), which consolidates all previous provisions relating to the recoverable damages that occur during organized trips or holidays.
Let’s start with the law. What does the National Tourism Code offer the traveler in the case of a ruined holiday? The European Directive on Package Travel (n. 90/314) sets the standards that all European Union countries must implement in their legislation, and it attributes to consumers the right of compensation (article 5) for ‘every form of damage,’ including non-material damages resulting from the non-performance or improper performance of the services constituting a package holiday.
The forms of damage that the new National Tourism Code provides for:
- Damages to persons
- Damages to baggage and possessions
- Patrimonial damages (such as the cost of cruise, expenses incurred after shipwreck)
- Moral damages
- Damages from ruined vacation
The directive has been applied in Italy since 1995 (legislative decree n. 111/95), but it was only with the 79/2011 that Italy has, for the first time, an explicit mention of the damages for ‘vacanza rovinata,’ ruined holiday (art. 47). This form of damage is calculated in addition to an injury, directly related to an accident (food poisoning, smaller rooms or without the advertised view), and it takes into account the fact that, because of those accidents and inconveniences, the client did not achieve the goals of rest and relaxation that he or she expected when purchasing the package. This provision recognizes that holiday time is a good, with a specific intangible value, for people who spend most of their time working.
HOW TO MANAGE THE CLAIM IN CASE YOUR HOLIDAY IS RUINED.
While still on a trip, travelers should immediately communicate, in writing, to the organizers the problems they encountered (lost luggage, poor food quality or accommodation, delays, loss of vacation days, and so forth). Identify any witnesses who can confirm the facts, take pictures, and assemble any other documentation that would help support the claim. If the trip involved air travel, once back at home, the traveler should contact the airline and apply for compensation for damages suffered (as always, in case of lost luggage, report the loss immediately, while still at the airport). The traveler must also send the organizer or retailer a letter of complaint (by registered delivery) within 10 days of returning to the place of departure.
WHO IS RESPONSIBLE FOR THE DAMAGES?
Allowing for the interpretation given by the judges to the directive and the national laws, the term ‘organizer’ covers not only the tour operators who sell pre-arranged packages via travel agencies and other retailers, but also travel agencies and even Internet platforms that, at the specific request of the consumer, combine several tourist services offered by different service providers, and thereby fulfill the definition of ‘package.’ In this case, both the organizer and the retailer must pay damages according to their respective liabilities, unless circumstances beyond their control made it impossible to perform the services.
WHAT ARE THE LIMITS OF THE COMPENSATION?
The law stresses clearly that not every small inconvenience encountered during a trip qualifies the holiday as ruined. Indeed, the law requires that in order to be considered a damage, the non-performance of the tour operator must be ‘relevant’ and ‘not of little importance.’ This also means that it is easier to obtain compensation if the trip is unrepeatable (such as a honeymoon, a graduation trip or a family holiday with elderly grandparents), which causes a relevant sense of frustration and loss of enjoyment.
Where is a client supposed to present their claim? If the package was bought at a European Travel Agency or through European retailers, the tourist can file the claim at the court in the city in which he or she resides, or, if preferred, in the court of the city in which the contract was signed.
READY TO FILE A CLAIM?
Read on. Think twice before suing the travel agency. Even though, with the introduction of this law, tourists have a better chance of recovering damages, not every problem that arises during a trip will qualify for compensation. Anyhow, the damages for ruined holidays are quantified in equity and each case is unique, and the stories that make the newspapers may have important differences from your situation. Therefore, it is always recommendable to ask for professional advice before filing a claim.
Disclaimer: The information provided in this article does not constitute legal advice and should not substitute for counsel. The information is based on the opinion of an independent expert and does not claim to be complete or definitive.
Originally published by Michele Capecchi on The Florentine (http://www.theflorentine.net/lifestyle/2012/03/the-costa-concordia-conundrum/).