Transport (Tour Operators and Travel Agents) Act, 1982

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Number 3 of 1982

TRANSPORT (TOUR OPERATORS AND TRAVEL AGENTS) ACT, 1982

ARRANGEMENT OF SECTIONS

PART I

Preliminary and General

PART II

Licences

PART III

The Bond

PART IV

Travellers' Protection Fund

PART V

Miscellaneous

Number 3 of 1982

TRANSPORT (TOUR OPERATORS AND TRAVEL AGENTS) ACT, 1982

AN ACT TO PROVIDE FOR THE REGULATION OF THE TRAVEL TRADE AND FOR THE PROTECTION OF CUSTOMERS OF TOUR OPERATORS AND TRAVEL AGENTS, FOR THOSE PURPOSES TO ENABLE THE MINISTER FOR TRANSPORT TO ISSUE LICENCES TO TOUR OPERATORS AND TRAVEL AGENTS, AND TO REQUIRE TOUR OPERATORS AND TRAVEL AGENTS TO ENTER INTO AND MAINTAIN BONDS, TO PROVIDE FOR THE ESTABLISHMENT OF A FUND TO BE KNOWN AS THE TRAVELLERS' PROTECTION FUND AND FOR THE PAYMENT OF CONTRIBUTIONS BY TOUR OPERATORS TOWARDS THE RESOURCES OF THAT FUND: AND TO PROVIDE FOR OTHER MATTERS CONNECTED WITH THE FOREGOING. [30th March, 1982]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART I

Preliminary and General

Short title and commencement.

1.—(1) This Act may be cited as the Transport (Tour Operators and Travel Agents) Act, 1982.

(2) This Act shall come into operation on such day or days as may be fixed therefor by order or orders of the Minister, either generally or by reference to a particular purpose or provision or mode of transport and different days may be so fixed for different purposes and different provisions of this Act.

Interpretation.

2.—(1) In this Act—

“the Bond” has the meaning specified in section 13 of this Act;

“carrier” means a person whose principal business is the provision of transport by land, sea or air on aircraft, vessels or other modes of transport owned and operated by such person;

“the Fund” means the Travellers' Protection Fund established pursuant to section 15 of this Act;

“the Minister” means the Minister for Transport;

“overseas travel contract” means a contract for the carriage of a party to the contract (with or without any other person) by air, sea or land transport to a place outside Ireland, whether the provision of the carriage is the sole subject matter of the contract or is associated with the provision thereunder of any accommodation, facilities or services;

“tour operator” means a person other than a carrier who arranges for the purpose of selling or offering for sale to the public accommodation for travel by air, sea or land transport to destinations outside Ireland, or who holds himself out by advertising or otherwise as one who may make available such accommodation, either solely or in association with other accommodation, facilities or services;

“travel agent” means a person other than a carrier who, as agent, sells or offers to sell to, or purchases or offers to purchase on behalf of, the public accommodation on air, sea or land transport to destinations outside Ireland or who holds himself out by advertising or otherwise as one who may make available such accommodation, either solely or in association with other accommodation, facilities or services.

(2) For the purpose of this Act, a person shall be deemed to be a customer of a tour operator or travel agent if he has made any payment, either directly or indirectly, to the tour operator or travel agent, under or with the intention of entering into an overseas travel contract.

(3) For the purposes of this Act, a loss or liability incurred by a customer of a tour operator or travel agent is a loss or liability incurred in connection with an overseas travel contract if it results from the inability or failure of the tour operator or travel agent to meet his financial or contractual obligations in relation to the overseas travel contract.

(4) For the purposes of this Act “the inability or failure of a tour operator or travel agent to meet his financial or contractual obligations” means that, in relation to that tour operator or travel agent, one or more of the following events has occurred—

(a) a petition is granted by a court for the compulsory winding up of the business of the tour operator or travel agent,

(b) the tour operator or travel agent by reason of being unable to fulfil his financial obligations seeks a voluntary winding up of his business or has convened a meeting of his creditors for the purpose of considering a settlement of his liabilities to such creditors,

(c) a receiver is appointed over the assets of the tour operator or travel agent,

(d) the tour operator or travel agent has failed to discharge his debts or is unable to discharge his debts or has ceased to carry on business by reason of his inability to discharge his debts,

(e) the tour operator or travel agent has committed an act of bankruptcy,

(f) the Minister has reasonable grounds for believing that, having regard to all the circumstances, the tour operator or travel agent is unable to, or has failed to, carry out his obligations to his customers in relation to an overseas travel contract.

Expenses.

3.—Any expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

PART II

Licences

Restriction on carrying on business as tour operator.

4.—A person shall not carry on business as a tour operator or hold himself out, by advertisement or otherwise, as carrying on such business unless he is the holder of a licence under this Act authorising the carrying on of such business.

Restriction on carrying on business as travel agent.

5.—A person shall not carry on business as a travel agent or hold himself out, by advertisement or otherwise, as carrying on such business unless he is the holder of a licence under this Act authorising the carrying on of such business.

Licences.

6.—(1) The Minister shall grant a licence to carry on business as a tour operator or as a travel agent to a person if he is satisfied that such person complies with the requirements of this Act.

(2) The Minister shall refuse a licence to carry on business as a tour operator or as a travel agent if he is not satisfied that such person complies with the requirements of this Act.

(3) Without prejudice to the generality of subsection (2) of this section, the Minister shall refuse a licence under this Act to a person if he is not satisfied that—

(a) the financial, business and organisational resources of such person and any financial arrangements made or to be made by him are adequate for discharging his actual and potential obligations in respect of the activities (if any) in which he is engaged or in which he proposes to engage if the licence is granted, or

(b) having regard to the past activities of such person or of any person employed by him or, if such person is a body corporate, having regard to the past activities of any director, secretary, shareholder, officer or servant of the body corporate, such person is a fit and proper person to carry on business as a tour operator or travel agent, as the case may be.

(4) A licence granted under this Act may contain such terms and conditions as the Minister may think appropriate and specifies in the licence.

(5) A licence granted under this Act shall remain in force for such period as the Minister thinks fit and specifies in the licence.

Power to make regulations in relation to licences.

7.—The Minister may by regulations made under this section specify—

(a) the conditions that shall be complied with before a licence is granted under this Act,

(b) the manner in which applications for the grant of a licence under this Act shall be made,

(c) the nature and extent of the information required to be furnished by an applicant for the grant of a licence under this Act,

(d) the form in which an application for a licence under this Act shall be made,

(e) the form of licence to be granted under this Act,

(f) the manner in which members of the public shall be made aware that a tour operator or travel agent is the holder of a licence granted under this Act,

(g) the books, accounts and other records required to be maintained by the holder of a licence granted under this Act,

(h) the place where any books, accounts or other records required to be maintained pursuant to this Act shall be kept.

Revocation and varying of terms and conditions of licences.

8.—(1) Where the holder of a licence is in breach of, or fails, neglects or refuses to comply with any term or condition of a licence under this Act, the Minister may—

(a) revoke the licence, or

(b) vary any term or condition of the licence.

(2) Notwithstanding the generality of subsection (1) of this section, the Minister may revoke, or vary the terms and conditions of, a licence granted under this Act if he is no longer satisfied that—

(a) the financial, business and organisational resources of the holder of the licence or any financial arrangements made by him are adequate for discharging his actual and potential obligations in respect of the business for which he has been granted a licence, or

(b) having regard to the manner in which the holder of the licence is carrying on his business, he is a fit and proper person to carry on business as a tour operator or travel agent.

Appeals.

9.—(1) Whenever the Minister proposes to revoke, other than pursuant to section 10 of this Act, or to vary the terms and conditions of, a licence granted under this Act, he shall notify the holder of the licence of his proposal and of the reasons for such proposal and shall, if any representations are made in writing by such holder within seven days, consider the representations.

(2) Whenever the Minister refuses to grant a licence or decides, having considered any representations that may have been made by the holder of a licence, to revoke the licence or to vary any term or condition of the licence, he shall notify the applicant for, or as the case may be, the holder of, the licence of the refusal or decision and such applicant or such holder may within seven days appeal to the High Court against such refusal or such decision.

(3) On the hearing of an appeal under this section in relation to a refusal to grant a licence under this Act or in relation to a decision of the Minister to revoke, or vary the terms and conditions of, a licence granted under this Act, the High Court may either confirm the refusal or decision or may allow the appeal and, where an appeal is allowed, the Minister shall grant the licence or shall not revoke, or vary the terms and conditions of the licence as the case may be.

(4) A decision of the High Court on an appeal under this section shall be final save that, by leave of that Court, an appeal from the decision shall lie to the Supreme Court on a specified question of law.

(5) An appeal shall not lie in any case where the Minister refuses to grant a licence to an applicant who does not comply with the provisions of section 13 of this Act or in any case where the Minister revokes a licence pursuant to section 10 of this Act.

(6) Where, after the commencement of Part III of this Act, a person appeals against a decision of the Minister to revoke or vary any term or condition of a licence or appeals against a refusal of the Minister to grant a licence, such person shall not, pending the determination of the appeal, carry on business as a tour operator or travel agent unless he complies with the provisions of section 13 of this Act.

Revocation of licence in certain circumstances.

10.—Where, owing to the failure or inability of a tour operator or travel agent to meet his financial or contractual obligations, any payment is or falls to be made pursuant to the Bond or from the Fund to a customer, the Minister shall forthwith revoke any licence granted under this Act.

Power of entry and inspection.

11.—A person authorised by the Minister may at any time enter into any premises in which the Minister has reason to believe that a person is carrying on business as a tour operator or travel agent and there inspect and examine books, accounts or records required to be maintained pursuant to this Act.

Fees.

12.—(1) The Minister may, by regulations, made with the consent of the Minister for Finance, specify the scale of fees payable in respect of applications for licences under this Act.

(2) The Minister may make such charges as he considers appropriate in relation to any matter connected with a licence under this Act and the amount of any such charge shall be determined by the Minister, after consultation with the Minister for Finance, and shall be specified in regulations made under subsection (1) of this section.

(3) All fees and charges payable under this Act shall be paid into, or disposed of for the benefit of, the Exchequer in accordance with the directions of the Minister for Finance.

(4) The Public Offices Fees Act, 1879, shall not apply in respect of fees payable pursuant to this Act.

PART III

The Bond

The Bond.

13.—(1) A tour operator or travel agent shall, before a licence is granted to him under this Act, furnish evidence acceptable to the Minister that the tour operator or travel agent, as the case may be, has entered into an arrangement satisfactory to the Minister for the protection of persons who, during the period of validity of the licence, enter into contracts with him relating to overseas travel.

(2) The arrangement referred to in subsection (1) of this section is in this Act referred to as “the Bond”.

(3) The Bond shall provide that, in the event of the inability or failure of the tour operator or travel agent concerned to meet his financial or contractual obligations in relation to overseas travel contracts, a sum of money will become available to the Minister, or to any person nominated or approved of by the Minister, as trustee, to be applied for the benefit of any customer of the tour operator or travel agent concerned who has incurred loss or liability because of such inability or failure to meet financial or contractual obligations.

(4) The sum of money referred to in subsection (3) of this section may be applied for all or any of the following purposes—

(a) to provide travel facilities for any customer of the tour operator or travel agent concerned who is outside Ireland and who is unable to make the return journey provided for in the overseas travel contract by reason of the inability or failure of the tour operator or travel agent concerned to fulfil his financial or contractual obligations in relation to such overseas travel contract;

(b) to reimburse a customer of a tour operator or travel agent for any reasonable expenses necessarily incurred by such customer by reason of the inability or failure of the tour operator or travel agent to meet his financial or contractual obligations in relation to an overseas travel contract;

(c) to refund, as far as possible, to a customer of a tour operator or travel agent any payments made by him to the tour operator or travel agent in respect of an overseas travel contract which could not be completed by reason of the inability or failure of the tour operator or travel agent to meet his financial or contractual obligations in relation to such overseas travel contract;

(d) to defray any reasonable expenses incurred by the Minister, or provide for any payments by the Minister, on behalf of a customer of a tour operator or travel agent in respect of an overseas travel contract which could not be completed by reason of the inability or failure of the tour operator or travel agent to meet his financial or contractual obligations in relation to such overseas travel contract.

(5) The Minister or, as the case may be, the person nominated or approved of by the Minister, as trustee, shall keep all proper and usual accounts, including an income and expenditure account and a balance sheet, of all moneys received by him on foot of a bond and of all disbursements made by him from any such moneys.

(6) As soon as may be after the end of each year, accounts kept in pursuance of this section shall be submitted to the Comptroller and Auditor General for audit and, immediately after the audit, a copy of the income and expenditure account and of the balance sheet and a copy of the report of the Comptroller and Auditor General on the accounts shall be laid before each House of the Oireachtas.

(7) Without prejudice to any existing right of a customer of a tour operator or travel agent to recover damages in relation to the standard of accommodation or service provided pursuant to an overseas travel contract, nothing in this section shall be construed as enabling such customer to recover any damages out of any sum of money made available under the Bond.

Requirements in relation to the Bond.

14.—The Minister may, by regulations, provide that—

(a) arrangements in relation to the Bond shall be entered into only with persons of a class or classes specified in the regulations, and

(b) the Bond shall be for such minimum sum and valid for such minimum period as may be specified in the regulations.

PART IV

Travellers' Protection Fund

Travellers' Protection Fund.

15.—(1) The Minister shall establish a fund to be known as the Travellers' Protection Fund (in this Act referred to as “the Fund”) from which payments may be made in accordance with the provisions of section 18 of this Act in respect of losses or liabilities incurred by customers of tour operators or travel agents who held a licence under this Act or whose licence has been revoked and the revocation is the subject of an appeal to the court, in consequence of the inability or failure of the tour operators or travel agents to meet their financial or contractual obligations in respect of overseas travel contracts.

(2) The collection, retention and disbursement of the resources of the Fund shall be a function of the Minister.

(3) The Minister may by regulations made under this section nominate any person specified in the regulations to carry out any or all of the functions conferred on the Minister by this section.

Contributions to Fund.

16.—(1) A tour operator shall make contributions to the Fund of such amounts and at such times on such basis as may be specified in regulations made by the Minister, with the consent of the Minister for Finance.

(2) Regulations made by the Minister under this section may—

(a) provide that contributions for the Fund may be paid to the Minister or to such other person as may be specified in the regulations;

(b) provide that different contributions may be made by different classes of tour operators having regard to the scale of business of the tour operator and may specify the manner for determining the amounts of different contributions;

(c) specify the time and manner in which payments of sums due in respect of contributions to the Fund may be made.

Resources of the Fund.

17.—(1) The resources of the Fund shall be maintained and administered by the Minister or, as the case may be, by a person nominated by him pursuant to section 15 of this Act.

(2) The costs of administration of the Fund shall be defrayed from the resources of the Fund.

(3) The Minister or, as the case may be, the person nominated by him pursuant to section 15 of this Act, shall keep all proper and usual accounts of all moneys paid into the Fund and of all disbursements from the Fund including an income and expenditure account and a balance sheet.

(4) As soon as may be after the end of each year, accounts kept in pursuance of this section shall be submitted to the Comptroller and Auditor General for audit and, immediately after the audit, a copy of the income and expenditure account and of the balance sheet and a copy of the report of the Comptroller and Auditor General on the accounts shall be laid before each House of the Oireachtas.

Disbursements from Fund.

18.—(1) Payments may be made from the Fund for all or any of the following purposes—

(a) to provide travel facilities for any customer of a tour operator or travel agent who is outside Ireland and who is unable to make the return journey provided for in an overseas travel contract by reason of the inability or failure of the tour operator or travel agent concerned to fulfil his financial or contractual obligations in relation to such overseas travel contract;

(b) to reimburse a customer of a tour operator or travel agent for any reasonable expenses necessarily incurred by such customer by reason of the inability or failure of the tour operator or travel agent to meet his financial or contractual obligations in relation to an overseas travel contract;

(c) to refund, as far as possible, to a customer of a tour operator or travel agent any payments made by him to the tour operator or travel agent in respect of an overseas travel contract which could not be completed by reason of the inability or failure of the tour operator or travel agent to meet his financial or contractual obligations in relation to such overseas travel contract;

(d) to defray any reasonable expenses incurred by the Minister, or provide for any payments by the Minister, on behalf of a customer of a tour operator or travel agent in respect of an overseas travel contract which could not be completed by reason of the inability or failure of the tour operator or travel agent to meet his financial or contractual obligations in relation to such overseas travel contract.

(2) Payments may not be made from the Fund to a person in respect of any loss or liability incurred in connection with an overseas travel contract unless the tour operator or travel agent concerned held, at the time such person entered into the contract, a licence under this Act, or unless the licence of such operator or travel agent was, at that time, revoked and the revocation is the subject of an appeal to the court.

(3) Where money is payable on foot of the Bond to, or for the benefit of, a customer of a tour operator or travel agent for the purpose of compensating such customer for losses or liabilities incurred by him in connection with an overseas travel contract—

(a) a payment shall not be made out of the Fund until all moneys payable under the Bond have been paid to, or for the benefit of, such person, and

(b) a payment shall not be made out of the Fund to any person in respect of losses or liabilities incurred by him in any case where such person has already been reimbursed in full from moneys payable pursuant to the Bond.

(4) If any event occurs which may affect or delay payments pursuant to the Bond, the Minister or any person nominated by him pursuant to this Act, at his discretion, may make payments from the Fund to or for the benefit of any customer of a tour operator or travel agent who may be affected and any amount so paid shall be repaid to the Fund as soon as may be after any funds payable pursuant to the Bond have been realised.

(5) Without prejudice to any existing right of a customer of a tour operator or travel agent to recover damages in relation to the standard of accommodation or service provided pursuant to an overseas travel contract, nothing in this section shall be construed as enabling such customer to recover any such damages from the Fund.

(6) Regulations made by the Minister under this section may—

(a) provide for the determination of the amounts of payments from the Fund,

(b) provide for the terms on which and the manner in which any payments from the Fund may be made in any particular case or classes of case,

(c) specify the manner in which payments are to be made in any case where the amount of the Fund and any sums due pursuant to the Bond of a tour operator or travel agent are insufficient to satisfy the claims of all persons concerned, and, in particular, may specify that in any such case payments shall be made in proportion to the amount established to be due in respect of each claim.

Investment of money of Fund.

19.—(1) Moneys of the Fund shall be maintained in a current account to be managed and controlled by the Minister or in an investment account to be managed and controlled by the Minister for Finance.

(2) Sums payable into the Fund shall be paid into the current account thereof and sums payable out of the Fund shall be paid out of that account.

(3) Moneys standing to the credit of the current account and not required to meet current expenditure shall be transferred to the investment account of the Fund.

(4) Whenever the moneys in the current account of the Fund are insufficient to meet the liabilities of that account, there shall be transferred to that account from the investment account of the Fund such sums as may be necessary for the purpose of discharging those liabilities.

(5) Subject to subsection (4) of this section, moneys standing to the credit of the investment account of the Fund shall be invested by the Minister for Finance, and income arising from any such investment shall be paid into that account.

(6) An investment pursuant to subsection (5) of this section may be in any securities in which trustees are for the time being by law empowered to invest trust funds or in any of the stocks, funds and securities as are for the time being authorised by law as investments for Post Office Savings Bank funds.

PART V

Miscellaneous

Offences and penalties.

20.—(1) Any person who carries on business, or holds himself out as carrying on business, as a tour operator in contravention of section 4 of this Act, or as a travel agent in contravention of section 5 of this Act, shall be guilty of an offence and shall be liable, on conviction on indictment, to a fine not exceeding £100,000 or, at the discretion of the court, to imprisonment for a term not exceeding 5 years, or to both the fine and the imprisonment.

(2) Any person who obstructs or impedes a person authorised by the Minister in the exercise of the powers conferred on him by section 11 of this Act, shall be guilty of an offence and shall be liable on conviction on indictment to a fine not exceeding £10,000 or, at the discretion of the court, to imprisonment for a term not exceeding 2 years or, to both such fine and imprisonment.

(3) Any person who, for the purpose of obtaining for himself or for any other person, a licence under this Act, makes a statement which he knows to be false, or who recklessly makes a statement which is false in a material particular shall be guilty of an offence and shall be liable on conviction on indictment to a fine not exceeding £5,000 or, at the discretion of the court, to imprisonment for a term not exceeding 2 years, or to both the fine and the imprisonment.

(4) A Justice of the District Court shall have jurisdiction to try summarily an offence under this section if—

(a) that Justice is of opinion that the facts proved or alleged against a defendant charged with such an offence constitute a minor offence fit to be tried summarily,

(b) the Director of Public Prosecutions consents, and

(c) the defendant (on being informed by the Justice of his right to be tried by a jury) does not object to being tried summarily,

and, upon conviction under this subsection, the said defendant shall be liable to a fine not exceeding £500 or, at the discretion of the court, to imprisonment for a term not exceeding 12 months, or to both the fine and the imprisonment.

(5) Section 13 of the Criminal Procedure Act, 1967 , shall apply in relation to an offence under this section as if, in lieu of the penalties specified in subsection (3) of the said section 13, there were specified therein the penalty provided for in this section, and the reference in subsection (2) (a) of the said section 13 to the penalties provided for in the said subsection (3) shall be construed and have effect accordingly.

Provisions in relation to offences.

21.—(1) Summary proceedings in respect of an offence under this Act may be brought and prosecuted by the Minister.

(2) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851 , summary proceedings for an offence under this Act may be instituted—

(a) in every case, within two years from the date of the offence, and

(b) if at the expiry of that period, the person to be charged is outside the State, within six months of the date on which he enters the State.

(3) Where an offence under this Act is committed by a body corporate and the offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body or any person who was purporting to act in any such capacity, he, as well as the body, shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

Indictment of bodies corporate.

22.—(1) A body corporate may be sent forward for trial on indictment for an offence under section 20 of this Act with or without recognisances.

(2) On arraignment before the Circuit Court, the body corporate may enter in writing by its representative a plea of guilty or not guilty and, if it does not appear by a representative appointed by it for the purpose, or, though it does so appear, fails to enter any plea, the court shall order a plea of not guilty to be entered and the trial shall proceed as though the body corporate had duly entered that plea.

Provisions as to proceedings in court or in liquidation.

23.—In determining, in proceedings in any court, or in any liquidation, a claim by a person in respect of an overseas travel contract against a tour operator or travel agent, the extent, if any, to which such person may have benefited pursuant to the provisions of this Act shall be taken into account by the court or, as the case may be, by the liquidator.

Payments to Fund and Bond not part of tour operator's or travel agent's assets.

24.—Neither payments made to the Fund pursuant to section 15 of this Act by a tour operator nor any moneys payable on foot of the Bond entered into by such tour operator or by a travel agent pursuant to section 13 of this Act shall be reckoned to be part of the assets of such tour operator or travel agent and none of such moneys shall be used to discharge any liability of the tour operator or travel agent otherwise than in accordance with this Act.

Orders and regulations.

25.—(1) Any order or regulation made by the Minister under this Act may contain such incidental or consequential provisions as appear to the Minister to be necessary or expedient for the purpose of implementing the provisions of this Act.

(2) The Minister may make such orders or regulations as appear to him to be necessary or expedient to implement the provisions of this Act and the Minister may amend or revoke any order made under this section.

(3) Every order and regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution annulling the order or regulation, as the case may be, is passed by either House, within the next subsequent twenty-one days on which that House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.