The outbound cruise ship accidentally capsized, and it was found that it was "resold" layer by layer when making a claim, and the court: the group company compensated 200,000 yuan

Mr. Hou, 68, traveled to Thailand with a group of friends, but encountered a dangerous situation during the boat ride, and the boat capsized. Mr. Hou was fortunately saved, but he lost his belongings and left the sequelae of severe deafness.

After returning to China, Mr. Hou filed a lawsuit with the Jing'an District People's Court of Shanghai (hereinafter referred to as the Jing'an District People's Court), demanding compensation from the travel agency, but the trial process was unexpected and full of twists and turns.

Case review

After Mr. Hou retired, he often traveled with his friends, and he became familiar with Manager Ge, the person in charge of Travel Agency, and was able to get the most cost-effective travel information at the first time. One day, Manager Ge said that there was still a vacancy in a low-cost group to travel to Thailand recently, and asked him if he was interested in participating, Mr. Hou immediately agreed, and handed over a total of 10,000 yuan to Manager Ge for a total of 10,000 yuan for him and his friends. Due to their familiarity, the two parties did not sign a written contract, and Manager Ge did not issue a receipt.

The following month, Mr. Hou and his friends embarked on a trip to Thailand full of longing. Unexpectedly, on the 5th day of the trip, on the way to the island sightseeing, the speedboat of the tour group capsized at sea, and 16 tourists and tour guides were rescued after falling into the water, and all documents and luggage were lost, and the follow-up trip was forced to be interrupted.

The local travel agency in charge of reception signed a compensation agreement with the tourists, and paid Mr. Hou 3,200 yuan in property compensation and 1,000 yuan in mental damages. After returning to China, Mr. Hou felt that his hearing had deteriorated severely, so he rushed to the hospital for examination and was diagnosed with extremely severe deafness in his right ear and hearing loss in his left ear, which did not improve after half a year of treatment. The insurance company paid Mr. Hou 2,000 yuan for accident medical insurance and 15,000 yuan for accidental disability insurance.

Mr. Hou believed that the insurance money was far from being able to compensate for his physical and mental injuries, so he filed a lawsuit with the Jing'an District People's Court, demanding that Travel Agency A compensate 290,000 yuan for personal injury related expenses, 33,000 yuan for other property losses, and fully refund the travel expenses.

Plea arguments

In court, Mr. Hou claimed that the tour fee was paid in cash, that he had not signed a written contract, and that the tour notice he received did not have the name or logo of the travel agency.

Travel agency A argued that although travel agency A issued a "certificate of insurance" according to the requirements of the insurance company, there was no travel contract relationship with Mr. Hou, and that it only recommended Mr. Hou and his three people to travel agency B when there was a temporary shortage of people in Thailand organized by travel agency B, and the responsibility should be borne by travel agency B.

Upon the application of travel agency A, the court added travel agency B as a co-defendant to participate in the litigation. Travel agency B argued in court that it had never organized the tour route and had not charged the tour fee, so it should not be held liable. The salesman Hong appeared in court and said that he was a sales salesman of Travel Agency B at that time, and received a business invitation from a third party for a tour of Thailand from 16 people, and transferred the money and tourist information to the salesman of Travel Agency C he knew.

The court also added Travel Agency C as a co-defendant in the proceedings. Travel Agency C admitted that it provided seat services for Mr. Hou and his tour group in Thailand, charging a seat fee of 2,400 yuan per person, but did not provide other travel services. They have no contractual relationship with Mr. Hou and Travel Agency A and should not be held liable.

The court investigates and collects evidence from other persons involved in the formation of the group. The leader and convener of the group, Xu Leader, said that he organized his classmates to travel to Thailand, and together with Mr. Hou and other three people, he formed a group of 16 individual tourists, and after raising the fee, he handed it over to Manager Ge of a travel agency to arrange air tickets and accommodation, and after arriving in Thailand, the local receiving agency arranged a tour guide to receive him.

The people's court hears the case

After trial, the Jing'an District People's Court held that in this case, Mr. Hou claimed that he had established a travel contract relationship with Travel Agency A, and although he could not provide a written contract or a notice of departure, the "Certificate of Adventure" issued by Travel Agency A and stamped with the official seal could prove that the tour in Thailand was organized by Travel Agency A. Among the defendants applied for by travel agency A, the employees of travel agency B issued a payment confirmation, and travel agency C provided seat services for 16 tourists including Mr. Hou, but both travel agencies B and C denied receiving Mr. Hou's travel expenses and providing follow-up travel services. According to the available evidence, Travel Agency A cannot prove that the other defendants have formed a travel contract relationship with Mr. Hou, and it should be determined that Travel Agency A and Mr. Hou have established a travel contract relationship.

In accordance with the relevant provisions of the Tourism Law, combined with the participation of Mr. Hou in the outcome of Mr. Hou's hearing injury caused by the capsizing accident, the Jing'an District People's Court ruled that Travel Agency A should compensate Mr. Hou for various losses of 200,000 yuan (after deducting the insurance claims), and refund Mr. Hou 300 yuan of tour fees in addition to the accommodation, transportation and catering expenses already incurred, and did not support Mr. Hou's litigation claim for other property losses.

What the judge said

Yang Yishen

Jing'an District People's Court

Civil Division

judge

With the improvement of people's living standards, tourism has become an important way for everyone to pursue a better life. However, there are unforeseen circumstances, and all kinds of dangers may occur during travel. How should travel consumers avoid travel risks, and how should they protect their rights and interests after accidents?

1. Choose a regular travel agency and sign a written travel contract

At present, some of the route tourism market is mixed, behind the exciting affordable price, there are often hidden traps such as grouping, tourists are unknowingly "resold" to other travel agencies by the sales staff, so that in the end when there is a problem, I don't know who is the real group company. In order to avoid such risks, tourists should choose a formal travel agency with tourism business qualifications, sign a written travel contract with it, and try to choose to pay to the travel agency's account by bank transfer or online payment when paying the tour fee, and require the other party to issue a formal travel invoice.

2. After the occurrence of a travel accident, clarify the responsible subject and claim the claim in a timely manner

In the process of travel, tourists will have contact with many subjects, such as the tour operator who concludes a package travel contract with the tourist, the local receiving agency entrusted by the tour operator to receive tourists at the destination, and the performance assistant who assists the travel agency in providing the actual services. According to the law, if the breach of contract is caused by the local receiving agency and the performance assistant, the tourist shall directly claim responsibility from the tour operator, and the tour operator can recover from the local receiving agency and the performance assistant after the tour operator assumes responsibility. However, if the tourist's personal injury or property loss is caused by the public transport operator, the public transport operator shall bear the liability for compensation in accordance with the law, and the travel agency shall assist the tourist in claiming compensation from the public transport operator.

3. Purchase sufficient travel insurance before traveling and do a good job of safety protection

Travel insurance is a protection for various accidents that may occur during the trip, including travel personal accident insurance, medical expenses protection, personal property protection, travel delay or cancellation protection, etc., which is characterized by comprehensive liability for travel and high protection coverage, especially for non-travel agency liability accidents have a good protection effect. Travelers can choose to purchase travel products through travel agencies or from insurance companies on their own. Among them, it should be noted that the insurance amount needs to be purchased sufficiently, and some people habitually buy the minimum amount of insurance, although the fee is low, but it does not play a full role in protecting major accidents. If you have purchased travel insurance, you should properly store the policy and other information, and inform your family members in advance of the relevant situation before going out. During the trip, you should choose the right one based on the actual conditions such as age, physical fitness, and experience

[Source: Shanghai Jing'an Court]

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