Details of this Paper

international tourism research paper




1.0;INTRODUCTION;Allowing the consumer to bring a claim for damages for disappointment, is a;necessity when the travel industry portrays images of perfect holidays when in truth;they dont always happen the way they are supposed to. It may be;The experience of a package holiday begins with the build up or expectations before;departure, is delivered or not delivered as the components of the holiday are;consumed in combination and then is rekindled from time to time thereafter whenever;the holiday is remembered;2;2.0;DISCUSSION;2.1. TRAVEL INDUSTRY DAMAGES FOR DISAPPOINTMENT;The travel industry may portray images of perfect holidays, but in truth this does not;always happen. Holidays arent just a package of basic commodities, including;transport, food and shelter (hotel, motel and services etc.). The travel industry isnt;just selling the perfect holiday package they are also selling an experience. After the;experience is used, there is nothing to repair, return or refund.;Many wronged consumers believe that, even though they have no physical injuries or;psychological impairments from their holiday, they deserve compensation as a result;of any inconvenience, disappointment, distress or annoyance arising from the actions;of the tourist operators. As these sorts of compensation claims have no identifiable;injuries, they are simply a claim for general damages and do not require any medical;reports, they generally remain as small claims1.;Throughout the world damages for physical loss, naturally arising, are generally;awarded in the common law, they are then usually restricted to actually monetary loss;of the consumer. In Australia, we have Trade Practices Act 1974 Cth2 as the main;regulatory system3.;2.1.1 PACKAGE HOLIDAYS;The Competition and Consumer Protection Commission of Ireland defines a package;holiday as;11;2 Trade Practices Act 1974 Cth;32;3;Under consumer law, a package holiday is defined as a pre-arranged holiday;that is sold at an inclusive price, which must last more than 24 hours or;include an overnight stay. It must also include at least two of the following;1. Transport;2. Accommodation;3. A tourist service or activity (for instance golf, hill-walking) not directly;linked to transport or accommodation, but which makes up a significant;part of the package4.;When shopping for a package holiday product, you cannot see, feel, touch or sample;the products before you purchase them, they are no more then ideas. Therefore;consumers rely upon the travel agents brochures and audio-visual selling tools.;Making the package holiday product intangible and perishable5.;2.2 LIABILITY OF AGENTS;2.2.1 CONTRACT;The majority of people believe that you need a signed piece of paper, outlining the;terms before a contract is formed. In relation to contract law and tourism, generally;two or more people form an agreement, there is an offer, an acceptance and an;intention to be legally bound by a contract. When a breach of contract occurs, the;parties will go to court as seen in Jarvis v Swans Tours Ltd6. Remedies will be;awarded to the person who is judged to be the aggrieved. Contract law is not always;applicable in damages for disappointment cases.;4;52;69;4;2.2.2 TORT;Where as tort law, there may not be any agreement between the two parties, but one;party suffers a loss and/or damage due to the actions of the opposing party, they have;committed a civil wrong, negligence. Negligence is committed when there is a breach;of duty of care, which caused the plaintiff to suffer damages7.;If an agent commits a tortious act (negligence or deceit) the victim can sue the;agent and, if the agent was acting within actual or apparent authority, the;victim can also sue the principal vicariously8.;2.2.3 MISREPRESENTATION;There are three types of misrepresentations;1. Innocent misrepresentation;If all elements for misrepresentation are present but it is not possible to;establish any fraud or negligence, then the statement is an innocent;misrepresentation9.;2. Fraudulent misrepresentation;Where there is evidence that the statement was made knowing that is was false;or recklessly as to whether it was true or false, then this is fraudulent;misrepresentation10.;3. Negligent misrepresentation;7 Book;8 Book 258;9 Book 84;10 Book 84;5;Negligent misrepresentations or misstatements are an aspect of negligence in;the law of torts11.;Negligent misrepresentation is seen in Pellegrini v Landmark Travel Group, where;the travel agent informs Pellegrini that he will receive all his money back, if he;cancels his tour with Apple Tour12.;2.4 TRAVEL AGENTS;At common law, an agent is a person who agrees and is authorised to act on behalf of;another, which is a principal, to legally transact an individual in some business;between a third party and that principal.(legal dictionary). A travel agent has some;general authority, to deal with contracts that bind the individual to the tourism;operators13.;A travel agent is a professional travel advisor, influencing consumers when selecting;their travel arrangements. [see C.A.B. Order 70-12-165 (Dec 31, 1970) at p. 7];The travel agent... is not a mere dispenser of tickets his role is more;analogous to that of a fiduciary in whom the client places his trust14.;Consumers rely upon the travel agent15 to give their expertise in order to book their;dream holidays, e.g., most consumers seek advice from the travel agent for their;11 Book 84;12 Pellegrini v landmark Travel Group;13 book;14;15 Bucholtz v Sirotkin Travel Services, Ltd, 363 N.Y.S 2d 415 (1986);6;selection of hotels and resorts [70%], package tours [69%], cruises [68%];destinations [61%], airlines [60%], car rentals [58%] and side trips [54%]16. It is;interesting to notice the extent of influence travel agents have on consumers choices.;2.4.1 PELLEGRINI V LANDMARK TRAVEL GROUP;For example, in Pellegrini v Landmark Travel Group17 the plaintiff wanted to take a;Caribbean vacation, he contracted the defendant to buy a package tour, which;included round trip air transport, three nights at a hotel, and two meals a day provided;by Apple Vacations for $1032, for two persons. The defendants breached their;contract with the plaintiff, by failing to perform their duty to verify and confirm the;availability of the Apple tour with the components advertised and for the stated price;was available before they sold it. Pellegrini was entitled to recover the cost of the;holiday package. The duties and obligations owed to consumers by travel agents have;expanded dramatically to provide all relevant and necessary information18. Amongst;these increasing obligations are the duties to investigate destinations, suppliers and;tour operators and the act of conveying all needed and relevant information to the;consumers19. As a travel agent Felsen should have completed his duties and;obligations owed to the plaintiff, and informed him of all the information, which;would impact the travel contract, he and Landmark Travel Group were found liable;for negligently failing to perform their duties20.;16 Travel Weekly's 2000 U.S. Travel Agency Survey, August 24, 2000, p. 190.;17 PvL;18 Pellegrini v Landmark Travel Group;19 Ibs;20 ibis;7;Pellegrinis claim of negligent misrepresentation arose when Felsen assured the;plaintiff that the Apple Tour tickets were refundable, when in fact they were nonrefundable. He relied upon Felsens misrepresentation and cancelled his tour loosing;his full payment of $1,032. The court held that this amounted to negligent;misrepresentation, including the special fiduciary relationship between Pellegrini and;the travel agents21. The court found that;The failure of the defendants to investigate and determine the availability and;determine the availability of an Apple Tour as promised and to inform;Pellegrini that the Apple tickets were non-refundable constituted a breach of;fiduciary duty22.;The court found the defendants are liable to all causes of action bought against them;and awarded the plaintiff the damages including the purchase price of $1.032 and;damages for the harassment and annoyance of $25023.;2.4.2 JARVIS V SWANS TOURS24;Mr. Jarvis booked and paid for a two-week skiing holiday in Switzerland. The;information brochure supplied by Swans Tours, speaks of the charming Englishspeaking owner, proximity to the snowfields, welcome party on arrival, afternoon tea;and cake for seven days, Swiss dinner by candle light and a farewell party in the bar.;Mr. Jarvis booked his holiday based on the brochure provided but was very;disappointed with his experience. His experience was far from what he expected;21 P v land;22 Ibs;23 ibis;24 [1973] QB 233.;8;based on the information in the brochure. The issue to be decided by the court was;the amount of damages to which Mr. Jarvis was entitled as compensation for Swan;Tours breach of contract. The court unanimously held that where the object of the;contract is relaxation and enjoyment, then damages can be awarded for the;disappointment, distress, upset and frustration caused by the breach25. Mr. Jarvis was;awarded double the amount the original cost of the holiday.;2.4.3 TRAVEL COMPENSATION FUND;Until 30 June 2014, the Travel Compensation Fund continued to deliver compensation;to travel consumers who suffer a loss when a travel agent breakdown and fails to;credit the consumer by providing the relevant travel arrangements or a refund26.;This allows consumers to access funds if their travel plans fall through when away;from home. They then will be able to bring a claim against their travel agency, for the;recovery of costs.;2.5 SPOILT HOLIDAYS;A spoilt holiday or part of a holiday is spoiled, cannot be repaired and a replacement;holiday is not likely to be appropriate.;2.5.1 BALTIC SHIPPING V DILLON27;Mrs. Dillon was a passenger on the cruise ship Mikhail Lermontov. It departed from;Sydney and was scheduled for a fourteen-day cruise. Ten days into the cruise the ship;25 [1973] QB 233, 238.;26;27 (1993) SASR 264;9;struck a shoal and sank, Dillon claimed compensatory damages for disappointment;and distress28. The shipping company refunded A$788 of the A$2205 ticket price.;Mrs. Dillon brought on proceedings in her name on behalf of 122 other passengers, all;who were claiming damages for personal injuries, loss of personal belongings;disappointment and return of the balance of the fare29. The defendants admitted;liability for a breach of the cruise contract, specifically the breach of the implied term;that reasonable care would be exercised by the ship owner in the navigation of the;vessel. At trial Mrs Dillion was awarded an amount of $1,417 described as restitution;of fare and $5,000 as compensation for disappointment and distress at the loss of;entertainment.;The High court held that to award plaintiff restitution of the cruise fare in addition to;damages for disappointed feelings would overcompensate the plaintiff, particularly in;view of the damages for disappointment, which was twice the cruise fare30.;In its reasoning, the High Court determined there were three categories where;damages could be recovered under contracts for mental distress, that is31;1. Distress caused by breach of contract;28 Baltic shipping v Dillon the Mikhail Lermontov (1993), 176 CLR 344.;29 2;30 (1993) SASR 264;31 (1993) 176;10;2.6 CONSUMER PROTECTION LAW;An agent who makes a misrepresentation or provides misleading information to a;third party will also be liable under the Australian Consumer Law 32. Trade practices;act 197433 which covers misleading and deceptive conduct;2.6 NEED FOR TRAVEL INSURANCE;At present there is no duty or obligation for travel agent to advise the consumers of;the need and availability of appropriate travel insurance. It is interesting that at;common law, there is a pattern of travellers needing travel insurance. In America;Rodriquez v Cardona Travel Bureau34 found that the travel agent failed to advise the;consumer of the need for travel insurance and Markland v Travel Travel Southfield35;held that a travel agent was not liable for the default of a tour operator and the travel;agent advised the consumer to buy travel insurance but they chose not to.;A good travel insurance policy can be as valuable as a parachute on a;plummeting plane or a lifeboat on a sinking ship36.;Encouraging consumers to insure himself or herself while they travel, with greatly;reduce the liability of the travel agents and tourism operators.;32 Book 258;33;34 Rodriquez v. Cardona Travel Bureau, 216 N.J. Super. 226, 523 A. 2d 281, 282 (1986).;35 Markland v. Travel Travel Southfield, 810 S.W. 2d 81, 84 (Mo. App. 1991).;36 book;11;2.3 DAMAGES FOR DISAPPOINTMENT;Generally damages for disappointment or distress follow a breach of contract will not;be awarded to the innocent party under the common law. However where the object;of the contract is to provide relaxation or enjoyment, damages maybe also awarded in;Australia under the Consumer Protection provisions of the Trade practices Act 1974;(Cth)37. Consumers may seek damages for distress or disappointment, refunds for any;part of the holiday they did not receive, lost or delayed luggage, additional expenses;and physical inconvenience.;2.3.3 CONTRACTS TO PROVIDE ENTERTAINMENT OR ENJOYMENT;When the disappointment is not merely a response to a breach of contract but is by;itself the resulting damage, damages for disappointment may be recovered38.;Stedman v Swans Tour39 the plaintiff made arrangements with travel agents that his;party of six would be taken by air to Jersey to a first class hotel, with superior rooms;with a sea view. On arrival in Jersey, the party found that the rooms booked for them;were inferior with no sea view. They were unable to find accommodation elsewhere;and believed the whole holiday was spoilt. The plaintiff was awarded damages for;appreciable inconvenience and discomfort, in the amount of 63 pounds40.;37 Trade practices Act;38 3;39 (1951) 95 Sol Jo 727.;40 3;12;2.5 LIMITATION ON DAMAGES;2.5.1 CONTRACT;It would be neither just nor practical to hold the party in breach for every;consequence of a breach of contract no matter how unusual or unexpected those;consequences may be. Consequently at common law damages are limited to;consequences that are not too remote and damages will only be recoverable for losses;that;1. Arise naturally from the breach, or;2. Are actually contemplated as a probable result(3);2.5.2 NEGLIGENCE;2.6 DIFFICULTIES IN QUANTIFICATIONS;In each of the cases discussed above, the general question of how the courts were;going to work out or put a number damages for disappointment and loss of comfort;was an issue. Determining the amount of compensation awarded to the plaintiff;because of the defendant breach is tremendously difficult to prove. The courts;requires the plaintiff to put a number on damages, when it is to difficult or where the;loss is of a speculative manner, the court will determine the amount of damages by;the exercise of a sound imagination and the practice of the broad axe.41;The courts need to consider the appropriate award in respect of loss include;41 (1920) 29 CLR 71;13;-;The type of holiday, whats the special occasion?;-;The nature of the breach;In assessing damages, it is vital to compare the expectations of the defendant and the;actual experience provided42.;42 7;14;3.0;CONCLUSION;In summary, the principle applies whenever a promise is made by a tour or event;organiser, hotelier or transport carrier to provide the consumer with a service;involving an element of pleasure, entertainment, relaxation or the like. If a consumer;complains of overbooking, overcrowding or delay, then disappointment, anxiety;distress and frustration is probably lurking in the background and may soon ripen into;a claim for damages for disappointment.;15;4.0;16;APPENDIX;5.0;17;REFERENCES;View Full Attachment;Additional Requirements;Min Pages: 16;Level of Detail: Only answer needed;Other Requirements: Double space and the word limit is 4000


Paper#15925 | Written in 18-Jul-2015

Price : $57