| 17 International Conference
Vienna, August 2005.
Student TravelBy Dr. Juan Carlos Fairstein Attorney at Law – Buenos Aires - Argentina
Student TravelStudent Travel refers to school trips made by both students who finish elementary school at the age of 12 or 13, and students who finish secondary school. The latter are the most dangerous ones as students who are between 17 and 20 years old behave more audaciously, and expose themselves to different hazardous situations. In general, these trips are made during “winter holidays”, that is, July in the case of the Southern Hemisphere, and in mountain areas where students enjoy the snow for the first time. At present, in Argentina there are specific regulations that aim to protect students’ rights when going on this type of trips. The law requests of all travel companies performing this service that they should obtain a National Certificate of Authorisation for Student Travel Agencies. For this reason, before arranging a trip with a certain company both parents and school authorities can and have to make sure that the chosen travel company complies with this regulation in order to ensure the security of the trip. By means of the National Chief Office of Modernisation and Competitivity -Supervision/Students Section- people have access to a list of authorised student travel agencies and other significant pieces of information to be considered when planning school trips.
There are several legal cases arising from student travels that the Courts have had to solve. For this 17th. IFFTA we have brought one case that is really interesting. The ruling belongs to the Commercial and Civil Court of Appeals, Room III, March 23, 2000 about “Monzón Terencio vs. the State”. In this case the judges reached a decision on the basis of the following circumstances of fact and of law: A group of parents hired an end-of-school trip to the city of San Carlos de Bariloche (the most visited lakes and mountains area) from Amitur S.R.L. The parents had the approval of the authorities of the School, which was a state-owned one, the average age of the students was 17 years, and several teachers and one father went with them. Having arrived in the mentioned city, the students had one day that was a free day, as they had no programmed excursion, so the travel agency offered the group to practise rafting. The current drifted one of the boats used in the activity, it overturned, and as a result of this accident, one of the students died. The judges held the travel agency Amitur S.R.L., the insurance company (on the limit of the policy) and the State liable. The co-defendant School Headmistress was dismissed.
The defendants (except for Amitur’s insurance company) appealed, and the following was said: 1º. Amitur stated the differences in meaning of travel and tourism company, travel agency and ticket agency; and argued that Amitur was not liable since it was just a “mere” intermediary between “Cabalgatas Carballo” (this company was the owner of the boat where the students practised rafting) and the travellers. Amitur mentions Section 14, Decree-Law 2182 that states: “All agencies shall be exempted from liability against the traveller provided that there was no fraud or negligence on their part, and provided that they performed their services in accordance with the rules governing such services. 2º. The State denied any responsibility for the event and claimed that it was not an official educational trip but a simple, pleasure end-of-school trip, in which case the School had no obligation to take care of or to provide security to the students. The Room dealt with the said arguments, and it confirmed the trial ruling. In conclusion, the court held: 1º. In this case it has been proved that the company “Cabalgatas Carballo” did not comply with the regulations in force, as the trial judge pointed out. The travel agency “Amitur” did not deny this fact. Among others, “Cabalgatas Carballo” was not authorised to practise rafting; the boat used was not registered in the local file of the Prefectura Naval Argentina, it did not comply with the minimum-safety requirements and did not have life jackets. Moreover, it has been shown in this case that although the accident took place one of the days which were “free days”, it was the partner of Amitur that suggested that the students, parents and teachers go to Cerro Leones ría Ñirihuau upon hiring the services of “Cabalgatas Carballo”. Hence, Amitur’s arguments were dismissed. 2º. What the State -owner of the School- said is not true. It has been proved in this case that the trip was made upon the approval of the School’s Headmistress. Besides, a few teachers went on the said excursion acting as teachers, and the trip was made with educational purposes (see the answer to the complaint of the School’s Headmistress and the answers in the testimony of the parties). Furthermore, the Headmistress admits the educational purpose of the trip, the fact that it needed to be approved to be made, that the teachers who went with the students were suitably trained to participate in that type of trip, and that the file was sent to the superior authority to be ratified. Hence, it can not be argued that the trip was a pleasure one and that the School had no obligation to take care of or to provide security to the students. There is no doubt that both the Headmistress’ approval and the teachers’ participation were decisive since the trip had not taken place without them. Hence, the arguments were dismissed. Even when the judgement makes the decision fall within the scope of the special regulation (section 14, Decree Law 2182), as regards the state-owned School, two relevant circumstances are worth mentioning: Firstly, the consideration of the said School as a co-organiser in accordance with the relevant acts (the teachers’ participation, their suitable training, and the Headmistress’ approval). Secondly, the duty of care and security that is constantly mentioned in order to make the School liable. The following can be added to the Court’s decision: What the Argentine judges passed, by applying specific laws of the country, is in accordance with the rules concerning this issue stated in the International Convention on Travel Contracts, Brussels, 1970. Argentina ratified the said Convention by Law 19.918. Section 15, subsection 2 states that where the travel organiser entrusts to a third party the provision of transportation, accommodation or other services connected with the performance of the journey, the travel organiser shall be liable for any loss or damage caused to the traveller as a result of total or partial failure to perform such services, in accordance with the rules governing such services. The travel organiser shall be liable for any loss or damage caused to the traveller during the performance of the services, unless the travel organiser proves that he has acted as a diligent travel organiser in the choice of the person or persons performing the service. Hence, in accordance with the Brussels Convention, there was no possibility of exempting the organiser from liability either, as the choice of a company such as “Cabalgatas Carballo” was not a good and diligent idea, since this company was not authorised to practise rafting. It is worth mentioning the reason why almost all student travels in Argentina take place in lakes and mountain areas, such as the Nahuel Huapi National Park. Located in southern South America and thus, in the Southern Hemisphere, Argentina has an area of almost 2 million eight hundred square kilometres on the continent. The fundamental characteristic of the configuration of Argentina is the enormous contrast between the immense plains to the East and the impressive mountain range of the Andes to the West. The current population is estimated to be around forty million of which almost sixty percent live around a radio of 100 kilometres to Buenos Aires City. The large distances between the eastern plains and the Patagonian western mountains represent a difficulty for the travellers, especially for young people. There are quite a few students who desire to get to know the Nahuel Huapi National Park and the city of San Carlos de Bariloche, which is the gateway to the Patagonian Andes and a base for exploring the Park. For young people the Alpine and Nordic skiing and the adventure tourism, namely, trekking, mountain walking, climbing, rafting, mountain biking, excursions on horseback or in off-road vehicles and camping are very attractive. For this reason, most graduate student travels have the Nahuel Huapi National Park as their destination. Every year, in winter, during July and August, San Carlos de Bariloche is full of girls and boys who have the opportunity to enjoy the snow for the first time and the various mountains which captivate everyone for their height and beauty. | 
