Collective Commentary about the New Package Travel Directive

464 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE that in the example given above, where a consumer requests interconnecting rooms but an error occurs and he or she is given entirely separate rooms, the travel agent will be liable for the error, whether it occurred at the time of booking or thereafter, and even where it was not due to anything he did or failed to do. He may well then have a remedy against the responsible supplier, but the consumer need not be concerned with that. This protects the consumer in that he or she may sue the travel agent directly for the error without needing to prove that he was directly responsible for it. Article 21 therefore represents a significant alteration in the nature of the obligations owed by a travel agent to a consumer; the latter need no longer prove fault on the part of the former in undertaking the booking process, and the agent cannot now defend a claim for booking errors on the basis that it was acting as an agent for either the consumer or the holiday supplier, and not as an entity in his own right, at the time the error was made. 4. THE EFFECT OF ARTICLE 21 OF THE NEW DIRECTIVE: THE LIMITATION OF THE DUTY The authors of Article 21 did recognise, however, that there will be situations in which it would be unfair to impose liability for booking errors. The trader will escape liability where the error is either attributable to the traveller or is caused by unavoidable and extraordinary circumstances. It is not explicitly stated, but can safely be assumed, that the burden of proving how and why the error occurred will fall upon the trader. It will be for the consumer to prove that an error was made, therefore, but the burden of proof will then shift to the trader to prove the defence contained within Article 21. It is self-evidently just for the trader to escape liability for booking errors where these are attributable to the traveller him – or herself. Indeed, it is difficult to imagine a situation where such an “error” could truly be said to arise, since where a traveller provides erroneous information as a result of which a booking is made which he or she subsequently realises to be wrong, the booking itself is not made in error. Where, for example, a traveller wishes to stay at the Queens Hotel in Sharm El Sheikh, but absent-mindedly requests a room at the Kings Hotel in the same resort, and a booking is duly made at the Kings Hotel, it cannot really be said that there has been an error in the booking process, as opposed to an error prior to the booking process. However, for what it is worth