This series of articles explores the legal aspects associated with the risks of operating an adventure tourism business, with specific relevance to the legal framework applicable to South Africa. Part 1 can be found on page 25 of the June 2016 edition or read the article online here. By ‘Louis The Lawyer’
Clearly the topic gives rise to many issues as the word ‘adventure’ implies a definite element of risk and with it issues such liability, responsibility, accountability and insurance. Furthermore the fact that many of the activities listed in the previous article take place in natural environments means the impact thereof on nature and surrounds need to be addressed – the latter is not only about the participant footprint but also the difficulty of access in the case of an emergency and communications.
Let’s consider the issue of risk and deal with it in the sequence that participation will unfold:
NATIONALITY OF PARTICIPANT (‘Pax’)
Each country has different laws and approaches to risk e.g. in Europe indemnities are frowned upon (Article on recent EC directive to follow soon). It is therefore imperative that the service provider (‘SP’) provides in its terms and conditions (‘T&C’) that South African law and jurisdiction will apply. The impact of the aforementioned can be ameliorated further by the inclusion in the T&C of comprehensive mediation and arbitration clause – this not only is a great plus as far as brand management is concerned but is also less expensive and quicker.
SERVICE PROVIDERS (‘SP’)
Each case may well be different i.e. it may be the pax ‘doing his own thing’ (‘FIT’) thus booking the entire trip from/back to country of origin and participating without a guide/professional assistance; conversely it may involve the pax, a travel agent, tour operator and a guide or a combination of the aforesaid.
The important aspect here from a legal perspective is the network of contracts and ‘cross-indemnities’ involved – between each of the parties mentioned in the preceding paragraph there should be clearly demarcated risk (profile and acceptance) and with it liability, responsibility, accountability and insurance and this should be contained in a written, signed contract.
The booking can be online and/or involving one or more of the SP mentioned above – it is advisable to ensure clear acceptance of risk and an audit trail. It may seem ‘airy fairy’ until an actual claim arises!
As the Consumer Protection Act, Act 68 of 2008 (‘the CPA’) will play a material role in the risk scenario, liability and the indemnity, strict adherence is required to sections pertaining to such as non-refundable deposits/cancellation (17), disclosure/transparency (41 & 49), liability (48, 51 & 61) and the content of the terms per se (Regulation 45) (See discussion in next insert).
Cognizance will also have to be taken of the information disclosed by the Pax and managed by the SP in terms of the Protection of Personal Information Act, Act 4 of 2013 (‘the POPI’) – given the no fault liability approach contained in POPI, insurance is imperative.
TERMS AND CONDITIONS (‘T&C’)
I have from time to time been asked why there is a need for T&C (1) by a travel agent who was under the false impression that it was protected by the supplier/tour operator’s T&C; (2) When there is an indemnity!
Both questions of course are of a serious nature especially when the 1st comes from ‘an old hand’ in tourism and the 2nd from an experienced underwriter!
The answer to the 1st question is that unless very specifically drafted/worded, the supplier/tour operator’s T&C will not extend to/protect the travel agent.
The answer to the 2nd question is that unless very specifically drafted/worded, the indemnity does not usually deal with issues such as limitation of liability, law and jurisdiction, domicilium, interest in late payments, passports and visa, health risks etc – this is usually the domain of the T&C so you need both (T&C & indemnity).
To be continued.
Disclaimer: This article is intended to provide a brief overview of legal matters pertaining to the tadventure tourism industry and is not intended as legal advice. © Adv Louis Nel, ‘Louis The Lawyer’, August 2016.
Download a printable PDF version of the article HERE.