A Study On The Operator’s Liability Of The Tourist’s Injury And Death In Cruise Tourism In Which The Travel Agency Books And Sells The Cabins To Tourists

The cruise tourism in which the travel agency books all or part of the cabins on a cruise ship and sells the cabins to tourists(Hereinafter referred to as "cruise tourism in which travel agency books and sells cabins ")is a common mode in China’s cruise tourism.Compared with other cruise tourism modes,the legal relationships between the relevant parties are more complex,and the liabilities of relevant operators for the injured tourists are more chaotic.Therefore,this paper discusses the legal relationships among the relevant parties on the basis of clarifying the three major problems of "unclear contract relationship among relevant subjects,confusion of liability principle of operators’ liabilities and unclear liabilities of operators".In addition,the paper inquire into the operators’ liabilities and put forward some suggestions.First,this paper analyzes the contract relationship between different subjects in the cruise tourism in which travel agency books and sells cabins to tourists.In terms of the legal relationships between the operators of the cruise tourism,this article believes that between travel agency and cruise company,from the perspective of transportation,there is no agency legal relationship under the law of ought but a voyage charter contract legal relationship.However,the existing maritime passenger transportation systems can no longer meet the needs of cruise tourism in which travel agency books and sells cabins to tourists,and therefore need to be improved.From the perspective of tourism,this paper holds that cruise company is the assistant of travel agency.Mixed contract legal relationship is formed between the independent leisure service operator and the cruise company.In addition,there is no contract between the independent leisure service operator and travel agency.So the independent leisure service operator cannot be the fulfillment assistant of the travel agency in the "Tourism Law".In terms of the legal relationship between cruise tour operator and casualty tourist,this article believes that there is a mixed contract legal relationship between travel agency and tourist.The cruise company has become the legal status of the actual carrier of maritime passenger transportation and the legal status of the fulfillment assistant in the leisure service because of the actual provision of transportation services and leisure services.When tourist are injured or killed on the sea voyage due to cruise travel,travel agency and the cruise company may also have infringement legal relationships with tourist.In addition,when an independent operator of leisure services provides additional paid services to tourist,there may be a contractual legal relationship between the two,and there may be a tort legal relationship with tourists who are injured or killed by their leisure services.Secondly,in terms of criterion of liability,this article discusses criterion of liability of different operators to the casualties of tourists from two major aspects.This article believes that under the lawsuit of the contract,the criterion of liability for the liability of travel agencies and cruise companies for the casualties of tourists caused by traditional tourism reasons is doctrine of no-fault liability.At the same time,when a tourist suffers personal injury or death due to passenger transportation by sea,the liability of travel agencies and cruise companies is generally at fault.However,in the personal injury or death of tourists caused by the sinking,collision,stranding,explosion,fire,or defects of the ship,the criterion of liability of travel agencies and cruise companies is the principle of presumed-default liability.The liability of independent operators of leisure services that provide additional leisure and entertainment services shall be subject to different imputation principles based on the specific legal relationship between them and tourists.Under the infringement lawsuit,the travel agency shall bear no-fault liability if it causes personal injury or death of tourists during the activities uniformly arranged by the travel agency.In addition,when the injury or death of a tourist is caused by an employee of a travel agency or performance supporter,the travel agency may be required to bear no fault liability for the injury or death of the tourist.For cruise companies,cruise companies generally adopt the principle of fault liability for tort liability for tourists.As for the leisure service provider,when the leisure service provider has the consequences of personal injury or death of tourists due to general infringement,violation of security obligations,or medical damage infringement,it shall be liable for fault.However,leisure service providers adopt the principle of no-fault liability when it comes to product liability.Thirdly,this article discusses the scope of the operator’s liability for casualties of tourists and related insurance.This article believes that the scope of the liability of the operator in the cruise tourism in which travel agencies charter and sell cabins to tourists will be different due to the influence of the cause of lawsuit.In addition,in the injury or death of tourists due to maritime passenger transportation accidents,the liability of the operator will be affected by the limit of liability of the maritime passenger transportation carrier and the limitation of liability for maritime claims.In terms of insurance related to the insurance of the operator’s liability for the injury and death of tourist tourists,the existing relevant liability insurance in China cannot effectively share the risks of the cruise operator.Finally,based on the above contents,three suggestions are put forward.The first suggestion is to improve the system of voyage charter party from two aspects of cargo transport and passenger transport.The second suggestion is to improve the relevant maritime passenger transport system to adapt to the development of cruise tourism.This article proposes to revise the definition of passenger transportation by sea and increase the liability limit of the carrier of passenger transportation by sea.At the same time,it is also necessary to establish a compulsory liability insurance or financial guarantee system for passenger transportation by sea in the Maritime Law.The third suggestion is to expand the definition of performance supporter to adapt to the cruise travel.