In July, the Moscow City Court issued a precedent-setting ruling protecting the rights of a tourist who had been sold a cruise on a motor ship by Turflot back in December 2015. However, the tour did not take place because the agent, as it became known two days before the scheduled tour, had failed to transfer the funds to the tour operator. Vodohod and the tour booking fell through. The travel agent initially promised to pay the tourists, but broke their word, and then the agency folded and disappeared. As it turns out, there were quite a few such "scammed" and deceived tourists. A criminal case has now been opened against Turflot's management, and investigations are underway. But this doesn't make things any easier for the tourists, as their money hasn't been returned.
Polina Pavlova, a lawyer representing one such defrauded tourist, found a way out of this situation and, through the courts, obtained a double refund and compensation for moral damages.
Circumstances of the case:
On December 9, 2015, a contract was signed between the Tourist and Puteshestviya LLC (Turflot) for the sale of a tourist product in the form of a motor ship cruise from July 22, 2016, to August 1, 2016. In pursuance of the contract, the Tourist paid the full amount. On July 20, 2016 (two days before the cruise), the Tourist received a telegram from Puteshestviya LLC stating that the motor ship tour had not been booked due to a technical failure. If the Tourist declined other itinerary options, he was offered the option to submit a refund request.
The tourist immediately rejected other options and requested a refund. Furthermore, since the tour operator, according to the terms of the contract, was OOO VODOKHOD, the tourist also filed a claim against the tour operator.
The tour operator rejected the tourist's claim, citing that it had not received any funds from the agent for the cruise. Furthermore, the tour operator stated that there was no contractual relationship between the agent and the tour operator at the time of the tour purchase. No funds were received from the agency either.
Legal position:
The tourist filed a lawsuit against three defendants at once: OOO Puteshestvie, OOO VODOKHOD, and SPAO Ingosstrakh, seeking termination of the contract for the provision of tourist services, recovery of funds paid under the contract, compensation for moral damages, penalties, and expenses incurred.
When filing the lawsuit, it was clear that the court would uphold the claims against the Agent in any event, but such a decision would not be enforceable due to the Agent's lack of funds. The goal was to hold the Tour Operator and/or Insurance Company accountable, from whom the claim could then be recovered.
Meanwhile, the court of first instance upheld the claims against the Agent only and awarded the entire amount of the claim. The claims against the insurance company and the tour operator were denied.
In dismissing the Plaintiff's claims against the Tour Operator and the insurance company, the court based its decision on the fact that OOO VODOKHOD had not entered into any agreement with the Plaintiff, was not the tour operator for the tour purchased by the Plaintiff, and that the Travel Agent had not transferred any funds to the Tour Operator, and therefore, there was no fault on the part of the Tour Operator.
The tourist appealed this decision to the Moscow City Court. Following the appeal, the court's decision was overturned. The Moscow City Court awarded the full amount of the debt, as well as penalties equal to the amount owed, and moral damages from the Tour Operator's Insurance Company.
The panel of judges disagreed with the court's conclusion that VODOKHOD LLC did not enter into any agreement with the plaintiff, was not the tour operator for the tour purchased by the plaintiff, and that there were no grounds for holding VODOKHOD LLC and Ingosstrakh Insurance Company liable for the violation of consumer rights.
The court agreed with the arguments of lawyer Pavlova P.A. that the proper defendant in this dispute is the tour operator OOO "VODOKHOD", the arguments of whose representative that the tour operator did not receive funds from the travel agent are not grounds for releasing the tour operator from liability.
According to clause 1.2 of the tourist product sales agreement dated December 9, 2015, the tourist product is created by the tour operator, details of which are contained in the appendix to the agreement. According to this agreement, the tour operator that created the tour is VODOKHOD LLC. The tour operator is the contractor providing the services included in the tourist product and is liable to the customer and tourists for the failure to provide or the improper provision of services included in the tourist product, regardless of who should have refused or provided these services.
A travel agency agreement was concluded between VODOKHOD LLC and Puteshestvie LLC on January 12, 2015.
On the official website of the Internet, OOO VODOKHOD posted information about the termination of cooperation with OOO Puteshestvie on July 27, 2016, that is, after the conclusion of an agreement with the plaintiff and after the refusal to provide a tourist product.
According to paragraph 50 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 28.06.2012 No. 17 "On the consideration by courts of civil cases on disputes regarding the protection of consumer rights", when applying legislation on the protection of consumer rights to relations related to the provision of tourist services, the courts must take into account that the responsibility to the tourist and (or) another customer for the quality of fulfillment of obligations under the contract for the sale of a tourist product concluded by a travel agent both on behalf of the tour operator and on its own behalf, is borne by the tour operator (including for failure to provide or improper provision of services to tourists included in the tourist product, regardless of who should have provided or provided these services).
According to the agreement of December 9, 2015, between the tour operator OOO VODOKHOD and Ingosstrakh Insurance Company, a civil liability insurance contract was concluded for failure to fulfill or improper fulfillment of obligations under the contract for the sale of a tourist product.
The agreement stipulates that the basis for payment of insurance compensation under the tour operator liability insurance agreement is the fact that the tour operator is obligated to compensate the tourist for actual damages arising as a result of the tour operator's failure to perform or improper performance of its obligations under the agreement for the sale of a tourist product, if this constitutes a material breach of the terms of such agreement.
Thus, the appellate court established the guilt of the Tour Operator even in the event that the Agent did not transfer funds for the tourist product, and recovered the entire amount of the claim from the insurance company.
The meaning of the court decision: This court decision is aimed at protecting the rights of the tourist as a weak party who cannot influence the relationship between the Travel Agent and the Tour Operator, in particular, who cannot know with complete certainty about the presence/absence of a contractual relationship between the Travel Agent and the Tour Operator, as well as about the fact of payment of funds by the Travel Agent to the Tour Operator.
Source: tourprom.ru