The Costa Concordia conundrum

The Costa Concordia conundrum

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

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Thu 15 Mar 2012 1:00 AM

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, 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 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 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 ‘of not little importance.’ This also means that it is easier
to obtain compensation if the trip is unrepeatable (a honeymoon, a graduation
trip or a family holiday with elderly grandparents), which causes a relevant
sense of frustration and loss of enjoyment.

 

JURISDICTION.

Where is a client supposed to present their claim? If the package was
bought at a European Travel Agency or 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 is 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.

 

 

As always, this article is intended for informational purposes only. It
is not intended to give legal advice and should not be considered as such. None
of these materials are offered, nor should be construed, as legal advice. The
communication of this information or use of such information is not intended to
create an attorney-client relationship. We always recommend that you
specifically seek professional legal advice. The description anywhere on this
page of the results of any specific case does not mean or suggest that similar
results can or could be obtained in any other matter. Each legal matter should
be considered unique and subject to varying results. Also, the information
herein provided is based on the current regulations enforced in Italy and
therefore is subject to continuous changes and updates.

 

 

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