SOuTHERN AFRICA’S TRAVEL NEWS WEEKLY
April 28 2010 I No. 2104
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INSIDE
TRAVEL NEWS WEEKLY
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NEWS
orTIA Is reADy for worLD cup President Zuma opens new CTB
NEWS
NEWS
LooneyTIc gAmes
AgenT eDucATIonALs
The day the trade went crazy
Costs hit fam trips
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pain in the ash! Hilka Birns
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RAVEL agents and tour operators may well be within their rights to retain their professional consultants’ fees and non-refundable deposits, following the volcanic ash airspace shutdown. This is the advice from travel industry legal expert, Adv. Louis Nel, who, however, warns that “all travel agents and tour operators will have to look very carefully at their contracts with passengers on the one hand (e.g. does it state that they are acting as agents of the passenger?) and those between them and third party service providers”. Each case will depend on its facts and the applicable contract. According to Louis, there are basically two legal scenarios: those governed by European law and jurisdiction and those governed by South African law and jurisdiction. The European Community (EC) has specific directives aimed at airlines and tour operators. EC regulations apply to aircraft departing from EC airports and EC-registered aircraft flying from a non-EC country to an EC country. The good news is that, in practice, most airlines have been offering either a full refund or an alternative flight. Legally, in the current circumstances, the airlines
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are not obliged to compensate but they must re-route/rebook stranded passengers and provide them with “adequate care” while they are waiting. This is because compensation obligations as spelled out in the EC regulations do not apply if cancellation is due to “extraordinary conditions which could not have been avoided even if reasonable measures had been taken, such as meteorological conditions incompatible with flights and if such conditions are deemed to exist if an air traffic management decision results in long or overnight delays or cancelled flights”. Bad news for South African travellers is that package holidays bought from a European tour operator are not refundable. European law – The Council of the European Communities’ Directive 90/314/EEC on package travel, package holidays and package tours – says consumers are not entitled to compensation if a package holiday is cancelled because of a so-called ‘force majeure’ or ‘act of God’ – unusual and unforeseeable circumstances beyond anyone’s control. Louis says in the SA situation, contracts entered into before the volcanic ash shutdown happened are subject to ‘force majeure’, which nullifies the rights and
obligations of a contract because the contract cannot be performed. This means SA-based suppliers should reimburse their customers, less a reasonable and commensurate administration fee. “Failing to do so could result in actions for unjustified enrichment, especially where service providers are compensated by insurers,” he says. “Any service provider who proceeded ‘willy nilly’, well aware of the situation, may well be accused of misrepresentation.” What are the chances of a passenger getting insurance to pay out and then also claim back from SA-based suppliers? While leading travel insurer TIC has no ‘force majeure’ exclusions in its policies, those of other insurers may differ in this situation, says Louis, adding that it’s best for customers to check their travel insurance policy and speak to their insurer. However, he added, it would be unjust for a passenger to be reimbursed by insurers and then to claim full compensation from their service provider. “Clearly there is no ‘one fits all’ answer to this complex matter – each situation will depend on its own facts and this article is merely a guideline,” says Louis. “Parties should obtain independent legal advice.” n
mother’s Day madness Thompsons Holidays is offering a Blue Train Mother’s Day Special from R3 839pps. The offer includes a oneway flight from Johannesburg to Durban (excl. airport taxes), one night on board the Blue Train from Durban to Pretoria with all meals and local drinks. The special is based on a set departure on May 9. Pictured here are product co-ordinators, Charity Tlhopane (left), Saadiya Arbee (front) and Catia Neves Photo: Tijana Huysamen
TIc extends cover Hilka Birns LEADING travel insurer, Travel Insurance Consultants (TIC), says South Africans with TIC policies, who are unable to travel abroad due to the volcanic ash shutdown, can either change their travel dates on their policies or cancel their policies with a full refund. TIC has also decided to extend, at no additional cost, the policies of all TIC policyholders stranded abroad. Says md, George Novis: “We feel this is the correct thing to do so that all our clients will be covered for medical incidents and other insurance
risks. We cannot leave them stranded without cover. Even though the cost implications of these decisions are significant to TIC, our ability to provide this travel insurance solution is quite manageable given our leadership position in the industry and our financial security.” If a scheduled departure is delayed for more than six hours, TIC policyholders are entitled to reimbursement of reasonable expenses incurred for meals, drinks, travel costs and accommodation – if the airline does not provide it – up to the limit on their schedule of insurance. n