On Monday, January 31, Poland’s Foreign Ministry warned Polish citizens not to travel to Egypt.

While Poland has not taken the decision to evacuate its citizens from Egypt, other countries have, including the US. In response to the travel warnings most holiday tour operators have since canceled their holiday packages to Egypt through the end of February or March, citing the current civil unrest as an event of force majeure.

But what exactly does force majeure mean? And more importantly, what recourse does a holder of a canceled travel package have against the tour operator in such a case?

Force majeure

Contrary to what some lawyers may think, force majeure does not have one meaning. In its simplest form, force majeure translates into “superior force.” Polish law does not provide for a unified definition. Rather, it is up to the author to define what is meant by force majeure in each and every contract.

Generally, however, force majeure is commonly understood to mean the occurrence of an event beyond the control of the parties to a contract, such as war, civil unrest, strike, riot, or an act of God (think earthquake, volcanic eruption, flooding) that prevents performance of a contract.

The current civil unrest in Egypt falls within the common meaning of force majeure.

Regarding canceled holiday packages to Egypt, a tour operator is able to avoid performance due to a force majeure clause in each of their holiday travel contracts. This doesn’t mean, however, that a tour operator escapes all liability toward its clients.

I want a refund

At the same moment that most tour operators canceled their travel packages to Egypt, they also offered to provide those affected with comparable holiday packages to other destinations, such as Morocco and Cyprus, or alternatively a full refund.

Polish law does not require a tour operator to offer an alternative travel package, but most operators have done so in an effort to satisfy their clients. If a client does not accept another holiday package in lieu of their canceled trip to Egypt, the tour operator is required to refund the purchase price to the client, based in part on the legal doctrine of “unjust enrichment.”

Additional compensation?

What about penalties? Is a tour operator required to pay a monetary penalty to a holiday package ticket holder in case of a last-minute cancelation by the tour operator? After all, an airline is obligated to pay a penalty to a passenger who is involuntarily bumped from a plane, as well as arrange an alternative flight for the passenger. Shouldn’t the same apply to a client who is “bumped” from a holiday package to Egypt?

In short, the answer is no. EC Regulation 261/2004 states that an airline is not required to pay any penalty in the case of a flight delay or cancellation due to an extraordinary circumstance which could not have been avoided even if all reasonable measures had been taken. In other words, an event of force majeure. The same principle applies to holiday packages.

Paul Fogo is a senior attorney with Miller, Canfield, W. Babicki, A. Chelchowski & Partners. fogo@pl.millercanfield.com