Collective Commentary about the New Package Travel Directive

MALTA | JACQUELINE TANTI-DOUGALL 1043 The Court quoted Article 1132 of the Civil Code 28 whereby it stipulates that “ the degree of diligence to be exercised in the performance of an obligation, whether the object thereof is the benefit of only one of the parties, or of both, is, in all cases, that of a bonus paterfamilias as provided in Article 1032. ” 29 The Court stipulated that this diligence must be considered, particularly because it was the company itself which had organized all the travel arrangements for the cruise in question. Consequently, it was not acceptable that this risk would be passed on to the consumer who is deemed in good faith, and who has relied on the knowledge and diligence of the organiser in order to have a holiday without any disturbances and to enjoy it totally. The Court concluded that irrespective of the fact that the travel agent was not directly at fault for such an event, yet, it was responsible to fulfil all the obligations so committed thereby, whether the fault lies with a third party with whom it has contracted or otherwise. The travel agent has assumed the responsibility of the airline when it had contracted with it so that the airline would take the passengers to Gatwick (U.K), and so the defendants besides paying each of the four couples the sum awarded by the Tribunal, had to pay for Court expenses. Should a similar case arise, would the Tribunal or the Court describe the flight delay as “ unavoidable and extraordinary circumstance ” in line with the definition of Regulation 2 of S.L. 409.19 (Regulation 3 of the EU Directive) (as in the case George Winston Schembri versus SMS Mondial) or would it once again uphold this Court’s line of reasoning, citing not only the Package Travel Regulations but also being guided by the Civil Code’s interpretation? In the Maltese Legal system, there is no rule of precedence. 8. CONCLUSION The Package Travel and Linked Travel Arrangements Regulations (S.L. 409.19) has proved to be useful in respect of a travel agent or any organiser in so far as providing wide protection for travellers. However, it is the author’s opinion that it cannot stand on its own. 28 Chapter 16 of the Laws of Malta (based on the Napoleonic Code). 29 A person shall be deemed to be in fault if, in his own acts, he does not use the prudence, diligence, and attention of a bonus paterfamilias”.