Safety obligations of tour operators

The security obligation of tour operators comes from Article 1 198 of the Civil Code: if the operators, managers or organizers of mass activities in hotels, shopping malls, banks, stations, airports, stadiums and entertainment places fail to fulfill their security obligations and cause damage to others, they shall bear tort liability.

The first paragraph of Article 7 of the Supreme People's Court's Provisions on Several Issues Concerning the Application of Laws in the Trial of Tourism Dispute Cases stipulates: "If a tourism operator or tourism auxiliary service provider fails to fulfill the obligation of security, causing personal injury or property loss to tourists, the people's court shall support it.

Then how do you generally determine whether the operators of tourism activities have fulfilled their security obligations? We can look at a precedent first.

Details of the case:

2019165438+1October 17. Li signed up for the "Three Huangshan Mountains" tourism project organized by a tourism company. At about 6: 438: 03 pm that day, Li and his party climbed to the top of the mountain under the leadership of two team leaders. During the rest at the top of the mountain, Li went to a big stone on the edge of the cliff to take pictures, and then accidentally fell off the cliff. After Li was in distress, two tour leaders came down the mountain to rescue him, and called 1 19, 120 and the rescue number. Due to the difficulty of mountain rescue, Li was taken to the hospital until about 2 am the next day. The hospital diagnosed it as: death from falling injury. Li's family asked the travel company to bear the medical expenses, death compensation, living expenses of dependents, funeral expenses, mental damages and other * * * 6,543,800 yuan+0.87 million yuan on the grounds that the travel company failed to fulfill its security obligations.

The plaintiff argued that:

As a professional travel company, the defendant chose undeveloped scenic spots as the tourist route, failed to cancel the trip in time when the weather was not suitable for mountaineering and sightseeing, and chose someone with no corresponding qualifications and experience as the tour leader, so the defendant failed to fulfill his security obligations.

The defendant argued that:

Li is the first person responsible for his own safety. Those who fail to perform their duty of care shall bear the consequences of the damage themselves. As a person with full capacity for civil conduct, Li should be aware of the danger of standing on the edge of a cliff, but he still took risks, which led to the accident in this case. His behavior is risky and the defendant should not bear the responsibility.

The defendant has fulfilled his security obligations and should not be liable for compensation. Security obligations should be based on reasonable limits and should not be extended indefinitely. In this case, the defendant has fulfilled his security obligations within a reasonable range before, during and after the event, and should not be liable for compensation.

The court ruled that:

The incident site belongs to an undeveloped informal scenic spot, and there is no specific unit to manage and maintain it. Li's cliff is located at the top of the mountain with rugged terrain. At the time of the incident, the wind on the rugged land reached 4-5, and the wind on the top of the mountain was higher. As a professional tourism operator, the defendant should foresee the risks that organizing outdoor mountaineering tourism projects may endanger personal and property safety, and should stop outdoor activities in mountainous areas according to weather forecast and defense guidelines. However, the defendant ignored the weather and terrain factors and assigned people without local tourism experience and relevant qualifications to lead the team to climb the mountain, which was at fault. When Li left the team to take photos, the team leader failed to stop him in time, and the defendant could not prove that he had fulfilled his safety guarantee obligations such as risk notification and warning to tourists during the tour, so the defendant should be liable for Li's accidental death. However, as a person with full capacity for civil conduct, Li should be the first person responsible for his own safety. When playing at the top of the mountain, he left the team on his own, deviated from the main route of climbing, stood on the rocks on the edge of the cliff regardless of the danger, and finally was in danger. It is at fault, and Li should bear part of the responsibility for its risky behavior. According to the fault degree of both parties, the court found that Li was responsible for 30% of his own damage consequences.

Case study:

In this case, compared with other tourism projects in the city, mountaineering activities in undeveloped scenic spots are relatively more dangerous, and tourism companies should have higher safety care obligations when organizing such tourism activities than other general tourism projects. Therefore, in terms of staffing, equipment configuration, safety tips and warnings, on-site emergency response, etc., it is higher than ordinary tourism projects with relatively low risk level, and terrain, weather and other factors should be fully considered in the selection of tour routes and activity guidance. Generally speaking, the defendant in this case failed to fulfill his security obligations.

The security obligations of tour operators should be limited within a reasonable range, which conforms to the general public's understanding of security, and the standards should also be different according to the different activities and risks. If the responsibility of tourism organizers is too harsh, it is equivalent to the judicial disguised lowering of the requirements for tourists' own duty of care, which not only violates the value concept that the civil law fully endows the parties with the ability of party autonomy, but also allows the right subjects to ignore their own life and health interests at will.

Generally speaking, the security obligations of tourism organizers should include the following aspects:

1 explains the warning obligation. Before and during tourism activities, organizers need to let tourists know the corresponding risks and possible dangers in a clear way.

2. Obligations of prevention and assistance. Organizers of tourism activities should use their professional foresight ability to make full preventive preparations, reduce the occurrence of dangers, and take necessary measures as soon as possible to actively help tourists when dangers occur.

3 obligation to select qualified personnel. According to the needs of activities, tourism organizers need to select qualified personnel who have passed relevant professional examinations to provide services to ensure the smooth progress of tourism activities.

Tourism operators should abide by the statutory safety standards and obligations in the Tourism Law to avoid damage. At the same time, it is hoped that in judicial practice, judges can divide the general standards and special standards of security obligations in tourism activities according to the different dangers of tourism activities, balance the rights and obligations of operators and tourists, and make the judgment fair and just.