Sustainable Tourism Law

LAW ON TOURISM IN CHINA – MAINLAND CHINA AND HONG KONG 723 agency. The travel agency will not be liable if this is caused by the tourist’s own fault 90 . When there is more than one travel agency involved in the provision of the tourism services (i.e. an organising agency 91 at the origin and a receiving agency/ performance supporter 92 at the destination), it is the choice of the injured tourist as to who to sue in tort 93 . If the organising agency undertakes liability, it is entitled to demand compensation from the receiving agency on a joint and several liability basis. Whereas, for breach of travel contract caused by the receiving agency/performance supporter, the organising agency shall undertake primary liability for such breach, but it is equally entitled to seek compensation from the receiving agency/performance supporter 94 . In a case decided by the Guangdong Huidong People’s Court in 2015 95 , the claimant tourist, who participated in river drifting at Huidong China, suffered from bone fracture at the left humerus upon slamming into the rocks on the river after the drift boat capsized. The 1 st Defendant was the activity organizer; whereas the 2 nd Defendant was the alleged travel agency (since there were disputes as to forgery of documents). The court, inter alia, held that since the claimant pursued a tortuous claim against the 1 st Defendant as performance supporter for compensation of injury, the contractual claim against the 2 nd Defendant should be dismissed. This part of the decision was not appealed 96 . It seems to be that a tourist so injured in such a way must elect whether to bring a claim in tort or contract; and if sole liability is found against the receiving agency/performance supporter, the organising agency will not be found liable at all under breach of contract (whether liability being joint and several or not). Hong Kong Tourist’s right to legal recourse arises, as aforementioned, from the breach of various statutory or common law duties owed by travel agents, operators, 90 Article 70 paragraph 2 of CTL. 91 Or so-called “entrusting agency”. 92 As defined under Article 111 (6) of the CTL, a “legal…or natural person that has a contractual relationship with the travel agency, and assists it in the fulfillment of the obligations under the organized travel contract, and actually provides the relevant services” . Examples are local operators, travel activities service providers. 93 Article 71 paragraph 2 of the CTL, Article 37 paragraph 3 of RTA, and Articles 3 of the Provisions 94 Article 71 paragraph 1 of the CTL and Article 37 paragraph 2 of RTA. 95 廣東省惠東縣人民法院 (2015) 惠東法稔民初字第 85 號民事判決 . 96 廣東省州市中級人另法院 (2016) 粵 13 民終字第 894 號民事判決 .