Travel/Tourist law – special and general damages for a wasted vacation

Room with a view of the trash instead of the sea? Reduced hotel standard because there were no vacancies in the hotel specified in the agreement and already paid for? In many cases, only after you arrive at your holiday destination that it turns out that what was meticulously written down on paper is not reflected in reality. Instead of a relaxing vacation, we gain nerves, stress and growing frustration – this is not how our long-awaited holiday was supposed to look like. It seems obvious that clients seek compensation for such a wasted vacation.

Most tourists, however, do not realise that regardless of general damages, they are also entitled to compensation for the wasted vacation, which is a pecuniary compensation for the harm suffered, resulting from negative experiences related to a vacation differing from the originally planned schedule.

The RPMS Staniszewski & Partners Legal Office provides comprehensive services in claiming compensation for a wasted vacation. We successfully support our clients in fighting for their rights, assisting in the following areas:

  • legal assistance in drafting claims on the provision of travel services,
  • conducting conciliatory negotiations with travel agencies,
  • Representing clients of travel agencies in pre-court, court and enforcement proceedings,
  • conducting proceedings before civil courts and consumer protection authorities.

SPECIAL DAMAGES OR COMPENSATION FOR A WASTED VACATION - WHAT AM I ENTITLED TO? 

According to Article 14 of Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and related travel services, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC:

“Member States shall ensure that the traveller is entitled to an appropriate price reduction, for any period, during which a nonconformity occurred, unless the tour operator proves that the responsibility for nonconformity can be attributed to the traveller. The traveller is entitled to receive compensation, from the tour operator, for any damages the traveller had suffered as a result of any nonconformity. The traveler receives compensation without undue delay ”

Its implementation into the Polish law constitutes Article 50 of the Act on Tourist Events and Related Tourist Services of 24 November 2017. (Journal of Laws of 2017, item 2361, as amended).

1

The traveller is entitled to a price reduction for each period during which the unconformity is found, unless the nonconformity was caused by the sole act or omission of the traveller.

2

The traveler is entitled to general damages or special damages for injury or harm suffered as a result of non-compliance. The tour operator pays the indemnity or compensation immediately.

3

The traveller is not entitled to nonconformity compensation, if the tour operator proves that: 1) the nonconformity is at the traveller’s fault;

2) the nonconformity is at the fault of a third party, not related to the performance of travel services covered by the package travel contract, and the non-conformity could not have been predicted or avoided;

3) the non-conformity was caused by unavoidable and extraordinary circumstances.

4

The claims referred to in paragraphs 1 and 2 shall expire after 3 years.

GENERAL DAMAGES VS. SPECIAL DAMAGES 

Special damages and general damages are completely different institutions; however, they are often confused. In order to effectively pursue claims from the tour operator, it is important to know to whom and in what case special damages are due, and when we can count on general damages. 

The essence of general damages is compensation for non-pecuniary damage, while special damages cover pecuniary loss. The definition of the latter type of damage is relatively simple: it is any loss in property, including both the loss suffered by the injured party and the lost profits, so e.g. the necessity to rent a room in another hotel because the hotel provided by the travel agency did not meet the expected standards. Special damages may also result from the fact that due to the poor service standard, we paid more for the vacation than we should have.

PROPERTY DAMAGE

Suffering property damages as a result of the non-performance or the improper performance of the package travel contract, for which compensation is due, is a completely different matter.  

The traveller is not entitled to compensation for nonconformance, if the tour operator proves that: 

  • the nonconformity is at the traveller’s fault; 
  •  the nonconformity is at the fault of a third party, not related to the performance of travel services covered by the package travel contract, and the non-conformity could not have been predicted or avoided; 
  •  the non-conformity was caused by unavoidable and extraordinary circumstances. 

THE VACATION IS NOT GOING ACCORDING TO THE CONTRACT

Please remember that if the travel services are not performed in accordance with the contract, the traveller, whilst still on tour, should immediately, if possible, notify the tour operator. If any of the services are not carried out in accordance with the contract, the tour operator is obliged to remedy the nonconformity, unless proven impossible or involves expenses that are disproportionate to the extent of the nonconformity and the value of the relevant travel services. If the tour operator fails to remedy the lack of conformity within a reasonable time period set by the traveller, the traveller may do it themselves and claim compensation for the necessary expenses. The traveller is not obliged to set a deadline, if the tour operator refuses to remove the nonconformity or if the circumstances indicate that the nonconformity must be removed immediately. 

If the traveller fails to notify the tour operator, in a situation where such a notification would have avoided or limited the damage, it shall be considered as a contribution of the injured party (Article 362 of the Civil Code) and may lead to a reduction in the amount of the due compensation.

REPLACEMENT SERVICES – WHEN MAY THE TRAVEL AGENT PERFORM THEM?  

The tour operator, who fails to perform services provided for in the agreement and constituting an essential part of the package holiday, shall, without charging the traveller additional costs, provide replacement services. 

In case the quality of the replacement services is lower than the service’s specified in the package holiday, the tour operator shall make an appropriate price reduction. 

The traveller may only refuse the proposed replacement services if they are not equivalent to that specified in the travel contract or if the granted price reduction is inadequate. 

If it is not possible to offer replacement services or the traveller rejects them, the traveller is entitled to price reductions, damages, or compensation.

 

PRICE REDUCTION, DAMAGE COMPENSATION 

The price reduction is granted to the traveller for any period during which the nonconformity was indicated, unless it was caused by the sole act or the traveller’s omission. Therefore, the amount claimed must depend on the type and degree of nonconformity and its duration. The traveller may request a price reduction if e.g., the hotel accommodation is of a lower standard than what the traveller had paid for. 

The traveller is entitled to compensation for damage or harm sustained as a result of nonconformity. The tour operator should pay the damage or non-pecuniary loss immediately. The Act does not contain a comprehensive regulation of the liability provisions for damages in the event of failure to perform the package vacation contract. In matters not regulated by the Act on Package Travel and related Travel services, the relevant provisions of the Civil Code shall apply. 

Special damage is awarded for property damage. It covers both the incurred damage, i.e., the losses suffered by the injured party, and any profit loss. In order for the travel agency (tour operator) to be liable for the damage inflicted upon the client, there must exist – as in any legal relationship- general liability preconditions. The damage must be sustained by the traveller (or relatives indirectly injured as a result of his death) resulting from the non-performance or improper performance of an obligation or a tort, and a causal link must exist between the damage and the legal event for which the law makes the person liable. The injured party is responsible for proving the event, damage and causal link. 

 In the package travel contract, the parties may restrict the scope of compensation to be paid, by the tour operator, in the event of non-performance or improper performance of the contract. However, this limitation may not apply to personal injury or damage caused intentionally or as a result of negligence. Furthermore, the contractual limitation may not be lower than three times the total price of the package tour.

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