Sustainable Tourism Law

THE IMPLEMENTATION OF THE NEW PTD IN FRANCE 583 – attributable to the purchaser of the package; – attributable to a third party unconnected to the provision of the travel services and was unforeseeable and unavoidable; – attributable to a case of force majeure. In which case, the organiser or the retailer will be able to reduce or to avoid liability. However, the evidence that they did not commit themselves a breach is not relevant. Since 2009, it is possible for the organiser or the retailer to invoke the limitations mentioned in international conventions, such as the Montreal Convention of 1999. In addition, the right of recourse against a travel service provider has been recognised. In practice, the organiser or the retailer will have to establish that in such a case the fault was committed by the service provider… but in most cases this would be subject to local standards. The provisions of Article L.211-16 of the tourism code are often applied strictly by French courts. For instance, a travel agent has been held liable for the moral damage sustained by the travellers who were detained by pirates on the Jolo Island for more than four months. The Court considered that such an event was not unforeseeable, as the French government (the foreign office) published a note a few days before the start of the package about potential risks at the destination. The Court further ruled that no action was taken by the travel agent to avoid such a risk 21 . Another example showing the severity of French courts: Travellers had a package holiday to India. Their flight departing from Paris via Frankfurt was cancelled because of snow in Germany that disorganised air traffic. For the Court, the travel agent has to compensate the travellers, as it was not demonstrated that the presence of snow in Germany in March was neither unforeseeable nor unavoidable 22 . In practice, case law is quite reluctant to exonerate the travel agent, unless the harmful event took place “outside” the performance of the travel services agreed in the package, for instance during an excursion which was not included in the package. This was the case, for example, of a couple who booked a package for holidays in Morocco and who then decided to purchase a further excursion at destination. 21 CA Paris, 23 January 2009, JCP G 2009 II 10083. 22 Cass. Civ. 1, 5 Nov. 2009, nr. 08-20385.