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Atherton, Trudie-Ann; Atherton, Trevor C --- "The Legalities of Overbooking, Overcrowding, Delay and Disappointment: Lessons for the Sydney 2000 Olympics" [1999] UNSWLawJl 33; (1999) 22(3) UNSW Law Journal 858

[∗] Trudie Atherton BA LLB (Hons) (UQ) LLM (Tourism Law) (Bond) is a solicitor in Australia, England and Wales. She is co-author of Tourism & Hospitality Law 1998 LBC and teaches Tourism Law in the law program at the University of Technology, Sydney.

[∗∗] Trevor Atherton BCom LLB (Hons) (UQ) MSc (Tourism Management) (Surrey University) LLM (Tourism Law) (Bond) is a solicitor/barrister in Australia, England and Wales and Cambodia. He is co-author of Tourism, Travel & Hospitality Law 1998 LBC and an international consultant to the Asian Development Bank in tourism and laws in developing countries.

1 Trade Practices Act 1974 (Cth), s 52.

[2] Ibid, s 56.

[3] MacRobertson Miller Airlines v Cssr of Taxation WA [1975] HCA 55; (1975) 133 CLR 125. Barwick CJ said ticket is mere receipt; Stephen J suggested ticket is an offer; and Jacobs J said ticket is a voucher.

[4] Not applicable in US and other non-ratifying states.

[5] [1976] USSC 104; (1976) 426 US 290.

[6] (1976) WLR 13.

[7] [1995] FCA 1304; (1995) 55 FCR 147.

[8] For further discussion see “Consumer Protection”, in TC and T Atherton, Tourism, Travel & Hospitality Law LBC (1998).

[9] 501 P 2d 368 (Hawaii 1972).

[10] For further discussion on innkeepers’ liability see chapter 13, note 8 supra.

[11] For further discussion of these issues see Building Corp (Marott Hotel) v Deutsch 385 N E 2d 1189 (Ind, 1979).

[12] Note 8 supra.

[13] Previously Trade Practices Commission

[14] Trade Practices Commission, Media Release MR 82/5, 9 July 1982.

[15] In part it states that the Trade Practices Commission “understands and appreciates the commercial need for this policy...[and advises] airlines should make travellers aware that confirmed seats do not necessarily guarantee the holder of a seat on a particular flight”.

[16] That is, inter industry agreement between IHA and UFTAA, sponsored by UNIDROIT (IHA/UFTAA Hotel Convention)

[17] Art 10 IHA/UFTAA Hotel Convention, Other provisions include: Art 11, the hotelier has right to require advance payment or deposit; Art 12, if does not require payment per Art 11, obliged to accept a voucher; Art 26, if hotelier does not honour a confirmed and accepted reservation, must indemnify travel agent for actual loss and arrange superior accommodation and bear extra cost; Art 27, force majeure exoneration: and Art 42, 51, 55, which provide that travel agents are to compensate for late cancellation or ‘no show’.

[18] Under the IATA General Conditions of Carriage, Art IX states, for example: “if for reasons beyond control [accidentally] carrier fails to provide a confirmed seat, liability is restricted to: carrying passenger on another flight; rerouting at no extra charge; refunding unused ticket”.

[19] Hoteliers’ Voluntary Code of practice, Art 2.

[20] Ibid, Art 3.

[21] For example, in public areas OHS issues dealt with by police, fire brigade, emergency services.

[22] Supported by Crowd Control legislation.

[23] For example, the James Hardy 12 hour race during Easter 1991, and the Toohey’s 1000 car race 1991.

[24] Regulated by Security Industry Act 1997.

[25] See Civic Taverns PtyLtd v Registrar of Liquor Licences [1995] ACT AAT 128.

[26] 283 S E 2d 30 (Ga, 1981).

[27] Alcock v Chief Constable of South Yorkshire Police (1992) 1AC 310.

[28] See EC Directive and Wong Mee Wan v Kwan Kin Travel Services Ltd [1995] 4 All ER 745.

[29] 677 F Supp 181.

[30] 121 Misc 2d, 688.

[31] Council Directive, 13 June 1990. It makes the tour organiser strictly liable to the consumer. Further it prescribes information and procedures for package tours, requires insurance and permits limitation of liability. It applies to all travel promoted or sold in EU countries but because of the practice of seeking indemnities in travel contracts, it has broader applicability.

[32] [1995] 4 All ER 745.

[33] For further discussion, see T Atherton, “Tour Operators’ responsibility for package holidays: common law takes the RC Directive global” (1996) 3 Travel Law Journal 90-96.

[34] [1972] WLR 954.

[35] Indeed these authors would argue that it is The Donoghue v Stevenson of Tourism Law.

[36] Frankfurt District Court awarded AUD$2223 each damages for disappointment. The original cost of the cruise was AUD$6669 each. See also Newell v Canadian Pacific Airlines (1976) in which a court awarded $500 in damages for disappointment to the owners of two pet dogs when one dog died and another was very sick following a flight in which they were carried in the cargo hold. At the time, their owners were talking them on a holiday which was immediately aborted on arrival. The freight charge to carry the two dogs was $50 - a fraction of the final award.

[37] [1993] HCA 4; (1993) 176 CLR 344.

[38] (1989) 21 NSWLR 614.

[39] See Baltic Shipping Co v Marchant & Ors ‘Mikhail Lermontov’.

[40] [1997] 2 Lloyd’s Rep 136.

[41] For example see Trade Practices Act 1974 (Cth), ss 68, 68A,74.