Sustainable Tourism Law

712 SUSTAINABLE TOURISM LAW It was not at issue before the Hong Kong Court of Appeal that the tour guide was also negligent in “…not preventing the speedboat from being driven by someone who was not seen to be reasonably competent and qualified to do so” . The question on final appeal to the Privy Council of the United Kingdom was whether the 1 st defendant was also negligent – and it was. This is because, in construing the travel contract, it was held that the 1 st defendant had undertaken to: “…provide [the Deceased] and not merely to arrange all the services included in the tour, even if some activities were to be carried out by others…it was an implied term of the contract that…reasonable skill and care would be used in rendering the services to be provided under the contract” 23 . Therefore, whether a duty of reasonable care and skill arises depends on the physical circumstances and contractual context of the parties involved, and the precise scope and standard of such duty is determined on a case-by-case basis. Outbound tour escorts, who are and must have been accredited by the Travel Industry Council of Hong Kong, are bound by its house rules, one of which being the Code of Conduct for Outbound Tour Escorts . A contravention attracts sanctions such as suspension or revocation of their permits (see further below on the mechanism of the Travel Industry Council). Part 3 paragraph 4 spells out in detail what such tour escort is required to do to protect the safety of tour groups: in case of accidents or illness, arrange professional and/or medical treatment without delay, arrange emergency rescue service if necessary, and report the accidents to police and their travel agent 24 . Inbound tourists guides, under their Code of Conduct for Tourist Guides, have a similar duty 25 . I.2. Duty and liability as a tourist Mainland China While it is usual, as provided in Article 2 of the CTL 26 , for outbound tourism activities to also be governed by the laws of the origin location (such that the tourists can have recourse to legal remedies within their hometown, putting aside issues on conflicts of laws and forum conveniens ), this is one striking feature 23 [1996] 1 WLR 38, 46D-H. 24 Part 3 paragraphs 4.2-4.3 of Code of Conduct for Outbound Tour Escorts. 25 Part 3 paragraph 11 of Code of Conduct for Tourist Guides. 26 The CTL, as the relevant part of Article 2 reads, applies to “ …tours, vacations, recreations and other forms of tourism activities within the territory of the [PRC] and the said forms of tourism activities that are outbound but organized within the territory of [PRC] and the business activities providing relevant services for tourism activities”.