United Kingdom

By John Downs

Devolution

The UK Parliament has the power to make laws governing all matters relating to tourism in England and Wales. It also enacts legislation on the British Tourist Authority (VisitBritain), travel documents, regulation of trade associations (for example, ABTA and UKinbound), consumer protection and public service vehicle licensing for the whole of the UK.

The Scottish Parliament has powers in all other tourism matters in Scotland, including setting tourism policy and the functions and powers of the Scottish Tourist Board (VisitScotland). No change can be made to the function or composition of the BTA without prior consultation with Scottish Ministers. Reports of the BTA must also be laid before the Scottish Parliament.

The Welsh National Assembly (Cynulliad Cenedlaethol Cymru) took over functions and powers previously exercised by the Secretary of State for Wales, and this included tourism in the principality. The Assembly has powers to set tourism policy and has a budget to encourage and support tourism development. Since the Government of Wales Act 2006 and a referendum in 2011, the Assembly has the power to enact tourism legislation. The Wales Tourist Board (Transfer of Functions to the National Assembly for Wales and Abolition) Order 2005 transferred the property, rights and functions of the Wales Tourist Board (VisitWales/Creoso Cymru) to the National Assembly.

The Northern Ireland Assembly has similar legislative powers on tourism as those of the Scottish Parliament and provision is made in the Northern Ireland Act 1998for cross-border co-operation on tourism with the Irish Republic.

The Greater London Authority (GLA) was established in 2000, comprising a Mayor of London and an elected London Assembly. The GLA has specific powers and duties in respect of economic development, transport, planning, emergency services, environment and culture. The directly-elected Mayor has executive powers in these matters and sets the budget. The London Assembly scrutinises the Mayor’s policies, decisions and actions. It can reject the Mayor’s budget by a two-thirds majority. The GLA is also responsible for tourism in London.

Establishment of the BTA and the Tourist Boards

The Development of Tourism Act 1969provided for the establishment of the British Tourist Authority (BTA) and Tourist Boards for Scotland, England and Wales. The BTA has responsibility for promoting the development of tourism to and within Great Britain. The Boards have the same duties in their respective countries. The Authority and the Boards were also authorised to provide financial assistance for tourism projects. They may make provision for registration of hotels and similar establishments and for ensuring that notification of the prices of accommodation is given to those who wish to avail themselves of it. The Authority and the Tourist Boards may foster and co-operate with regional and area tourist organisations and provide them with financial or other assistance.

The Act established four bodies, known respectively as the British Tourist Authority, the English Tourist Board (ETB), the Scottish Tourist Board (STB) and the Wales Tourist Board (WTB). In July 1999 the English Tourist Board was officially changed to the English Tourism Council but operates as VisitEngland; and in July 2001, the name of the Scottish Tourist Board was officially changed to VisitScotland. All subsequent references in the text to national tourist boards include Visit England, VisitScotland and VisitWales. The BTA uses the name, VisitBritain. It consists of a Chairman and not more than five other members appointed by the Board of Trade; and the Chairman of VisitEngland, the Chairman of  VisitScotland and the Chairman of VisitWales/Creoso Cymru.

(N.B. References in the Act to a ‘Tourist Board’ include the BTA.)

Composition and Functions of the BTA and the Tourist Boards

The Act provided that each Tourist Board consists of a Chairman and not more than six other members appointed by the Secretary of State for the Environment (ETB), the Secretary of State for Scotland (STB), or the Secretary of State for Wales (WTB). Appointment of the BTA and VisitEngland is now the responsibility of the Secretary of State for Culture, Media and Sport.

The powers and functions of what is now VisitScotland were devolved to the Scottish Parliament and the First Minister now makes the appointments. The First Minister (Prif Weinidog) has taken over the responsibilities previously exercised by the Secretary of State for Wales over VisitWales/Creoso Cymru.

It is the function of the British Tourist Authority:

  • To encourage people to visit Great Britain and people living in Great Britain to take their holidays there;
  • To encourage the provision and improvement of tourist amenities and facilities for Great Britain.

The Tourist Boards have the like functions in their respective countries. The meaning of ‘tourist amenities and facilities’ is contained in Section 2 (9) of the Act.

Each Tourist Board has, for the purpose of discharging the functions conferred on it, the power to promote or undertake publicity in any form; to provide advisory and information services; to promote and undertake research; to establish committees to advise them in respect of these functions; to contribute or reimburse expenditure incurred by any other person or organisation in carrying out any activity which the Board has power to carry on. Only the BTA was given power under the Act to carry on any activities outside the United Kingdom for the purpose of encouraging people to visit Great Britain or any part of it, but the other Tourist Boards were not prevented from engaging in such activities on behalf of the Authority. The Tourist Boards were not empowered, however, to give financial assistance for the carrying out of, or to itself carry out, any project providing or improving tourist amenities in Great Britain.

The Tourism (Overseas Promotion) (Scotland) Act 1984empowered the Scottish Tourist Board to carry out any activities outside the United Kingdom for the purpose of encouraging people to visit Scotland. VisitScotland may only exercise its power with the consent of the First Minister who, in giving or withholding consent, must consult with the BTA. The First Minister may impose conditions on the consent given. The 1984 Act did not affect the BTA’s power to carry out any activities outside the United Kingdom for the purpose of encouraging people to visit Scotland, nor does it prevent VisitScotland from acting on the Authority’s behalf in this regard. VisitScotland is now empowered to give financial assistance for the carrying out of, or itself carry out, any project for providing or improving tourist amenities in Scotland.

The Tourism (Overseas Promotion) (Wales) Act 1992gave VisitWales/Creoso Cymru like functions in respect of Wales along with the power to promote tourism overseas.

The Tourism (Northern Ireland) Order 1992 established the Northern Ireland Tourist Board (NITB). That Order contains the constitution and functions of the Board and deals with matters relating to the granting of assistance to the tourism industry, the regulation of tourist accommodation and the function of district councils in Northern Ireland in relation to tourism. The Northern Ireland Act 1998provides that the First Minister will make the appointments to the board of the NITB. It also provides for co-operation with the Republic of Ireland on tourism matters.

Each Board has the power to do anything that is incidental or conducive to the discharge of the functions conferred on it. Each may charge for its services and receive contributions towards its expenses in carrying out any of its functions.

In discharging its functions, each Board must have regard to the desirability of fostering and, in appropriate cases, co-operating with organisations discharging functions corresponding to those of the Board in relation to particular areas of the country. Each Board has power to provide such organisations with financial or other assistance. The Board must also have regard to the desirability of undertaking appropriate consultation with the other Tourist Boards and with persons and organisations that have knowledge of, or are interested in, any matters affecting the discharge of its functions.

The BTA has a duty to advise Ministers or any public body on such decisions relating to tourism in the UK as a whole, as the Ministerial body may refer to it, or as the Authority thinks fit. Each Tourist Board has a like duty in respect to matters relating to tourism in its country. Provision is made for the keeping of accounts and the provision of information to the First Minister/Secretary of State and the Treasury. Each Board must, as soon as possible after the end of the financial year, make, to the First Minister a report detailing its activities during that year and the First Minister must lay a copy of that report before each House of Parliament, or the relevant devolved parliament or assembly.

General Schemes of Financial Assistance

The BTA may, after consultation with the National Tourist Boards, prepare schemes for the provision of financial assistance by the Boards for the carrying out of projects of such classes as may be specified in the schemes. Projects may also be classified if, in the opinion of the Authority, they will provide or improve tourist amenities and facilities in the UK. Any such schemes must be submitted to the Department for Business, Enterprise and Regulatory Reform which may confirm them, with or without modification. Financial assistance may be given by grant or loan or by a combination of those methods. In making a grant or loan, the Tourist Board may impose such terms and conditions as it thinks fit including conditions for repayment of a grant in specified circumstances.

Each Board has power to give financial assistance for any project that, in the opinion of the Board, will provide or improve tourist amenities and facilities in its respective countries. The Board may itself carry out such a project with the approval of the Secretary of State or First Minister, as the case may be, and the Treasury. The method of assistance may be by grant or loan and the Board may impose such terms and conditions as it thinks fit. Where the project is being, or is to be carried, out by a company incorporated in the UK, financial assistance may be given by way of subscribing for, or otherwise acquiring, shares or stock in the company. The Board may not dispose of any shares or stock so acquired without consultation with the company in which the shares or stock are held; and with the approval of the Secretary of State/First Minister and the Treasury.

Financial Assistance for Hotel Development

Part II of the Development of Tourism Act 1969provides for financial assistance out of public funds for hotel development. This was provided by the Hotel Development Incentive Scheme which was administered by the Scottish, English and Wales Tourist Boards. Grants and loans were made for buildings and fixed equipment. The Scheme operated from 1970 to 1973 and provided a massive increase in investment in the hotel industry. The main objective was to increase rapidly the capacity and quality of hotel stock at a time when demand for hotel accommodation was exceeding supply in a number of locations. The objective was achieved beyond expectation. Two criticisms levied at the Scheme were that it involved larger sums of money of public expenditure than were originally envisaged for investment that probably would have occurred anyway; the Scheme led to much indiscriminate expansion and no special stimulus was provided for particular types of development and for particular locations.

The Scheme has not operated since 1973 but the provisions remain should the government wish to reactivate them. Loans were to be repaid, in respect of new hotels, within 20 years, and in any other case, within 15 years.

Registration of Tourist Accommodation

An Order in Council  may make provision for registration by the Tourist Boards of, or of any class of, hotels and other establishments in the UK at which sleeping accommodation is provided by way of trade or business. This power has not yet been exercised, though the Welsh Assembly and the Scottish Parliament have considered doing so. The Order may make provision:

 

  • As to the form and contents of the register;
  • As to the information to the furnished;
  • For charging registration fees;
  • For the issue and display of certificates of registration and the display of signs indicating that the establishment is registered;
  • For the inspection of hotels etc. with powers of entry;
  • For exemptions;
  • For penalties for non-compliance.

The Order may contain supplementary provisions and may authorise the Secretary of State/First Minister to make regulations in their respective countries for the purposes of the Order. The Order and Regulations may make different provisions for different cases and, in particular, provision may be made for the Order to come into force at different times in relation to, or to different parts of, England, Scotland, Wales or Northern Ireland respectively.

The Order may provide for the classification and grading of hotels and other establishments entered into the register. It must also make provisions for requiring the criteria for accommodation, with which the classification or grading is being carried out, to be determined from time to time by the BTA – after consulting with the Tourist Boards and such other organisations as appear to the Authority to be representative of trade and consumer interests likely to be affected. Provision is also made for the publication of such criteria and for enabling the person carrying on an establishment registered with the Board to make representations, before any classification or grade is accorded to the establishment, or before it is altered or cancelled.

Promotion of Tourism in Scotland

The Local Government (Scotland) Act 1973 provided the Regional, Islands and District Councils with the responsibility for promoting tourism in their areas. Following the recommendations of the Stodart Report (the Report of the Committee of Inquiry into Local Government in Scotland (1981) Cmnd 8115), however, which had the general aim of avoiding concurrence of powers, the Local Government and Planning (Scotland) Act 1982removed the Regional Councils’ responsibility for tourism. The Act provided that an Island or District Council could (either alone or jointly with any other person or body):

  • Encourage persons, by advertisement or otherwise (and whether inside or outside the UK) to visit its area for recreation, for health purposes or to hold conferences, trade fairs and exhibitions in its their area;
  • Provide, or encourage any other person or body to provide, facilities for recreation, conferences, trade fair and exhibitions, or improve or encourage any other person or body to improve any existing facilities for those purposes.

The Island or District Council could not do anything outside the UK, in exercise of this power, without the express or general consent of the Secretary of State for Scotland, or with the expressed consent of such body as s/he may direct the Islands or District Council to consult.

An Island or District Council could contribute towards expenses incurred by any person in its area promoting tourism. Expenditure incurred outside the United Kingdom, either directly or indirectly by way of contributions to expenses incurred by others, required the express and general consent of the Secretary of State or express consent of anybody that the Secretary of State directed the Council to consult.

Following local government reorganisation in Scotland and a review of local tourism provision, 14 new area tourist boards (ATBs) were created by the Local Government (Scotland) Act 1994. These took over local authority functions in respect of tourism. Each ATB was a body corporate. It could not engage in overseas promotion without the prior approval of the Secretary of State.

Tourist Boards (Scotland) Act 2006

In 2005 the 14 existing area tourist boards were replaced by two network tourist boards. This Act abolished the network tourist boards. It renames the Scottish Tourist Board as VisitScotland and increases the maximum membership of the Board from 6 to 11 members plus a chair appointed by the Scottish Government. It thereby amends the Development of Tourism Act 1969.

Hotel Law

The English common law of innkeepers imposes certain duties on hotelkeepers which do not apply to other trades. For example, whereas a shopkeeper or restaurateur can refuse to serve a customer, and does not have to give a reason, provided that there is no discrimination based on sex, race, sexual orientation etc., the hotelkeeper has a duty to receive and accommodate any traveller who is willing and able to pay for the accommodation available.

In Scotland, the duties are based on Roman Law and Acts of the Scottish Parliament in the 15th century. Although the origins of English and Scots Law on the matter are different, in modern times there has been very little substantial difference between the two. In the Scottish case of Rothfield v North British Railway Co. (1920), Lord Anderson stated:

“…there is more authority on the subject in the Law of England than in that of Scotland but, in my opinion, the law is to the same effect in both countries…”

Definitions

Hotels/Inns

The strict obligations to receive and accommodate travellers only apply to hotelkeepers (or ‘innkeepers’). It is important, therefore, to distinguish a hotel from similar establishments.

A hotel is an establishment which is held out by the proprietor as offering food and drink and, if required, accommodation to any traveller who presents himself or herself and is willing and able to pay for what is provided. The traveller is not required to have made a prior reservation. In law, a hotel is considered to be a place of business and not a dwelling-house, even if, the proprietor or staff live there. The main occupation of the premises must be for the purpose of carrying on the business of hotelkeeping.

Traditionally, in English Law, the term ‘common inn’ was used and the proprietor was called an ‘innkeeper’.

Browne v Brandt (1902)

On 19 April 1901, Browne was travelling in a car from Crawley to London. The car broke down in the neighbourhood of Horley. Browne, and a companion travelling with him, pushed the car to Horley where they came to an inn called ‘The Chequers’ of which Brandt was the landlord. They arrived about 2 a.m. Having roused Brandt, Browne demanded a bed or beds for himself and his friend, who were both wet through. Brandt declined to admit them to the inn, saying that it was full. Browne then asked for some refreshment. After some demur, Brandt admitted them into the hotel and provided the refreshment. Browne again asked for a bed and was told that the hotel was full. Browne then stated that he and his friend were willing to spend the night in the coffee room or in a sitting room which was unoccupied. Brandt refused. Browne left the inn and, having failed to obtain shelter elsewhere, procured a brougham (a light four-wheeled horse-drawn carriage) and drove back to Crawley. Browne raised an action for damages sustained by reason of Brandt having failed to give him shelter at his inn.

The Court held that, although an innkeeper has a duty to receive travellers, he has no common law duty to provide shelter and accommodation for travellers wishing to spend the night at his inn when all the rooms ordinarily used for bedrooms for guests are occupied.

There was little difference in the obligations imposed on innkeepers in England, Wales and Northern Ireland from that imposed on hotelkeepers in Scotland. Section 1(1) of the Hotel Proprietors Act 1956makes no distinction between a ‘hotel’ and an ‘inn’. A distinction is made, however, between a hotel/inn and a private (or ‘residential’) hotel. The proprietor of a private hotel does not have to receive all travellers and does not have the strict liability which is imposed on hotelkeepers.

Lodging/Boarding Houses/Guesthouses

The lodging housekeeper does not hold himself or herself out as receiving all travellers in the same way as a hotelkeeper. S/he makes a special contract with each lodger who comes and, therefore, a lodging housekeeper is not a hotelkeeper. Whereas, a lodging housekeeper merely provides accommodation for lodgers, the keeper of a boarding house provides ‘board and accommodation’ and may, in addition, provide communal rooms and ancillary services in exchange for an agreed periodical payment.

In the English case of Wilkes v Goodwin (1923)the word ‘board’ was interpreted as meaning the provision of something substantial. However, recent Scottish decisions have accepted that the provision of a ‘continental breakfast’ served in a dining room, the cost of which was reflected in the rent, amounted to ‘board’.

Drake v Dow (2006) (Scottish Case)

D stayed at a guesthouse. During the night his laptop was stolen from his room. His bedroom door did not have a lock. He claimed damages from the guesthouse owner under the praetorian edit nautae, caupones, stabularii. The Roman Law edict, which is part of Scots Law, imposes strict liability on innkeepers for guests’ property.

The Sheriff Principal held that the edict did not apply as the guesthouse was not an inn or hotel under the provisions of the Hotel Proprietors Act 1956. It was merely a bed and breakfast establishment and thus the owner was not an innkeeper/hotelkeeper for the purposes of the edict.

Hydropathic Establishments and Temperance Hotels

The keeping of a hydro or health spa, although in a somewhat different way, is still the keeping of a hotel to which all the public are invited. A hotel does not cease to be a hotel merely because it is not licensed for the sale of alcoholic liquor. Thus a temperance hotel is still a hotel.

Motels

The physical connection between a motel and a hotel are sufficiently proximate to deem the premises to be a ‘hotel’ within the meaning of Liquor Licensing Acts. However, if no food is provided at the motel, it is doubtful if it would constitute a hotel.

Public Houses/Bars

The term ‘public house’ was originally used to denote an ‘inn, a tavern or a hotel’. A house is ‘public’ in that the public are not only invited, but have a right to resort to it. However, it is the purpose for which people visit a public house which distinguishes it from a hotel. People go to a public house principally for the purpose of consuming alcoholic liquor; to a hotel for accommodation as travellers. It does not matter that the proprietor labels the establishment as a public house, if s/he provides food and accommodation for anyone able and willing to pay for it, it is a hotel. An establishment may be a hotel and a public house. Where a public house is attached to a hotel through which there is only one entrance, that public house is part of the hotel. However, though a public house may be under the same roof as a hotel, if it has a separate entrance to that of the hotel, it is not a hotel and the duties of a hotelkeeper do not attach to it.

R v Rymer (1877)

Rymer visited a hotel, 1200 yards from his house, accompanied by a large, savage dog. He entered a bar attached to the hotel and asked for a drink. The bar tender refused to serve him. The Court held that although the refreshment bar was attached to the hotel, since it had a separate entrance, it did not constitute a common law inn, and the proprietor was, therefore, not liable under the common law regulations of an innkeeper. Furthermore, if a customer enters upon an innkeeper’s premises with a savage or large dog, which in the nature of things is calculated to frighten timid persons or children, the innkeeper has a right to protect himself and his customers against it and may refuse to serve the customer whilst accompanied by his dog. A person living in the same town, 1,200 yards from an inn, and walking about the town for his own recreation and amusement, is not a traveller with a right at common law to be provided with refreshment and entertainment by the innkeeper.

Restaurants and Refreshment Rooms

Restaurants and refreshment rooms do not offer accommodation to travellers and the proprietors have the right to refuse whom they wish. This is, however, subject to the various legislative provisions prohibiting discrimination (see chapters 7 and 12). Thus, these establishments are not hotels. A restaurant or a refreshment room, which is under the same roof as a hotel and which can only be entered through the hotel premises, would constitute part of the hotel. If there is a separate entrance, however, the liabilities of the hotelkeeper do not attach to those premises.

Hotelkeepers/ Innkeepers

The obligations apply to the ‘hotelkeeper’. A hotelkeeper is one who holds out his/her establishment as offering food, drink and, if so required, sleeping accommodation, without special contract, to any traveller presenting himself or herself who appears willing and able to pay a reasonable sum for the services and facilities provided, and who is in a fit state to be received. The keeping of a hotel, therefore, involves the provision of sleeping accommodation for the traveller and not merely the supply of alcoholic liquor and other refreshments. In England, the term ‘innkeeper’ is more commonly used, but the Hotel Proprietors Act 1956refers to the ‘proprietor of a hotel’ and ‘hotelkeeper’ is more in keeping with the modern usage. The definition of the hotelkeeper extends to the keeper of a hydropathic establishment and a motel.

The liabilities of a hotelkeeper do not extend to any public house, refreshment bar, restaurant, dance hall or function room, of which s/he is also the proprietor, but for which there is a separate entrance from the hotel.

Lamond v Richard (1887)

Lamond, a lady “of good position and good character”, came into the Hotel Metropole at Brighton in November 1885. Richard was the Manager of that hotel. She paid her bill regularly and stayed there until 31st August 1886. It was alleged by Richard (and the Gordon Hotels Ltd.) that Lamond was under the illusion that enemies were seeking to injure her, and that complaints had been made by other visitors to the hotel. But it was expressly found by the County Court judge that her conduct and condition were not such as to justify refusing accommodation.

On August 25th the under manager asked Lamond when she was going to leave the hotel, to which she replied that she would stay as long as she liked. He then gave her verbal notice that the room must be vacated by 27th August. She did not leave. On August 31st she was told that she must leave and, if she declined, her bags would be packed by hotel servants, which in fact occurred. There were other vacant rooms and Lamond’s room was not, at that time, required by other guests.

The judge held that the hotel was a ‘common inn’ and that Lamond had ceased to be a traveller and had become a boarder. The hotel proprietors were entitled to require her to leave on reasonable notice. The common law liability of an innkeeper to receive and lodge a guest attaches only so long as the guest is a traveller, and a person who has been received at an inn as a traveller does not necessarily continue to reside there in that capacity. Whether at any time during his residence he is still a traveller is a question of fact, and one of the factors determining this fact is the length of time. If he ceases to be a traveller, the innkeeper may, on giving reasonable notice, require him to leave.

Lord Justice Chitty stated that the claim was founded on the liability imposed by the general custom of England on the keeper of a common inn. There is no question of contract raised between the parties. The custom of England does not extend to persons who are in an inn as lodgers or boarders, and the length of time that a guest has stayed is a material ingredient in determining such a question.

Travellers

The common law duty to receive and accommodate guests attaches only in respect of those guests who are travellers. A traveller is a person, being neither an inhabitant of the hotel, nor a private guest of the hotelkeeper, who has come to the hotel to obtain such services, facilities and accommodation as it affords and for which s/he is willing to pay. It does not matter which mode of transport is used by the traveller nor whether s/he used any transport at all. A person may be a traveller, and, therefore, a guest, even though s/he does not stay overnight at the hotel.

A person may be a guest at a hotel even though s/he is not a traveller. S/he may be a local resident using the hotel restaurant, bar or other facilities. However, a person is not a guest for the purposes of acquiring the particular remedies which the law confers against hotelkeepers, unless s/he is also a traveller. The relationship of hotelkeeper and guest arises as soon as the traveller enters the hotel, with the intention of using it as a hotel, and is received on that basis by the hotelkeeper. The mere signing of a registration card, however, does not necessarily imply that a person is a guest. A traveller may be a guest even where s/he is only provided with a room in which to change, the room having been engaged by another guest who is to occupy it later that day.

Medawar v Grand Hotel Co. (1891)

Medawar went to the hotel at an early hour in the morning and asked for a bedroom. He was told that he could not have a room as the hotel was full, but that there was a room, booked by people who had arrived during the day, which he might use for the purpose of washing and dressing. He was shown up to this room and his luggage (a portmanteau, hat box and dressing bag) were taken there. He washed and dressed in this room, opening his dressing bag for that purpose and taking out of it a dressing case which he placed on the dressing table. He went down to the coffee room to have breakfast, paid for it, and went out, leaving his luggage in the room that he had used, with the dressing bag open and the dressing case on the table. He did not return until late at night.

In the meantime; the persons who had booked the room had arrived, and the whole of Medawar’s luggage was then placed in the corridor by the Grand Hotel’s servants. When he returned at night, he asked for his room and was told that he had none. Ultimately, it was found that a room had been vacated since morning and Medawar’s luggage was brought from the corridor and placed in it. His name was then entered for the first time in the guest book. The next morning he discovered that jewellery had been stolen from an unlocked drawer in his dressing case.

The Court held that assuming the relationship of innkeeper and guest to have existed between Medawar and the Grand Hotel until the arrival of the other guests, the onus was on the Grand Hotel to prove that the loss occurred before the removal of the luggage to the corridor, and consequently, through Medawar’s negligence alone, which they had failed to do; but as to any loss exceeding £30, the onus was on Medawar to show (under the Innkeepers’ Liability Act 1863) that it arose through the wilful act, default, or neglect of the innkeeper or his servants and, as the plaintiff had not shown that the loss had occurred after the removal of the luggage to the corridor, he had not fulfilled the onus and was not entitled to recover more than £30.

Lord Esher stated:

“An innkeeper does not make a specific contract with every individual who comes to his inn. He has no right to refuse anyone;… Of course he is not bound to take anyone if there is no room for him in the inn; in that case, he can do nothing else but to refuse to take him…what is an innkeeper bound to do with respect to a guest’s luggage? He is bound to keep it safely. If a guest’s property is lost while he is in an inn, the innkeeper is prima facie liable, but the innkeeper can get rid of that prima facie case if he shows that the goods were lost by the negligence of the guest. The onus of proof of that is upon him”.

A traveller may be a guest notwithstanding the fact that another person is responsible for the bill. A non-paying guest is still a guest. A person who dines at a hotel at the invitation of a guest may himself or herself be considered as a guest. However, a traveller who illicitly stays in the room of another guest is not a guest.

A person who was received at a hotel as a traveller does not necessarily continue to reside there in that capacity. In the Lamond case Lord Esher MR stated that ‘the mere length of residence is not conclusive of cessation of the status of traveller, for example, a traveller may stay a long time because of illness and still be a traveller. But, lapse of time is one of the circumstances’. Nevertheless, a person who engages accommodation at a hotel for a considerable time, and on special terms, is a lodger and not a guest. The Hotel Proprietors Act 1956did not solve the question as to when a person ceases to be a guest and becomes a lodger.  It is still a question of fact. The person who leaves property at a hotel after ‘checking out’ is no longer a guest.

The duty to receive guests

The hotelkeeper must receive without favour all persons who present themselves and who are prepared to pay for the facilities and services provided by the hotel. In the case of Hawthorne v Hammond (1844), it was held that it was a question of fact whether or not a hotelkeeper, who heard someone knocking at the door during the night, ought to have concluded that the person wished to be admitted as a guest.

The keeping of a hotel involves the providing of accommodation for travellers and not merely the supply of refreshments. But, the hotelkeeper is only bound to supply such accommodation for the traveller and his or her possessions as s/he in fact possesses.

Winkworth v Raven (1931)

Winkworth garaged his car in the building attached to the Grand Hotel, Northampton. He had previously stayed at the hotel and had used the garage, which he knew was a three-sided roofed structure, the fourth side being open, but secured by an iron grill padlocked at night. He stayed at the hotel for about a fortnight. On 10th February, the weather was warm with rain. On 11th February, it began to freeze. At about 6 p.m., Winkworth drained the water from the radiator of the car and poured warm water through it, leaving the drain taps open. On 12th February, he tried to start the car but failed. He then discovered that the water-jacket of the engine was cracked. He claimed damages for repairs on the grounds that the defendant was negligent in accommodating the car and had not taken proper precautions to guard against frost.

The Court held that the innkeeper was bound only to supply such accommodation for the guest and his possessions as he possessed; he undertook that the accommodation was reasonably fit for the purpose, but he did not warrant that it was the best that could be devised, nor promised that it would protect the guest or his goods from every form of danger. There was no proof of negligence on his part. Winkworth was not entitled to damages. An innkeeper is not an insurer of the person of the guest nor of the latter’s goods generally; he is only responsible in case of injury to his guests or his goods if negligence on the part of the innkeeper is proved.

The hotelkeeper is not bound to take anyone if there is no room in the hotel, that is, where all the rooms commonly used as bedrooms for guests are occupied. The traveller is not entitled to select a particular apartment nor to insist upon a bedroom for purposes other than accommodation. The hotelkeeper has fulfilled this duty if s/he provides a bedroom which is a proper room for that purpose. The duty is not fulfilled, however, where a hotelkeeper unreasonably refuses accommodation at one hotel but offers to provide it at another of which s/he is also proprietor.

Rothfield v North British Railway Co. (1920) (Scottish Case)

Rothfield, a money lender, had been refused accommodation at the North British Hotel, Edinburgh. He raised an action against the proprietors seeking a declarator:

‘that when the pursuer, in the course of travelling finds it necessary to stay in Edinburgh, he is entitled as a bona fide traveller to be received, entertained, and lodged by the defenders and their servants as a guest…provided the defenders have sufficient room and accommodation…at such time as he, as a bona fide traveller applies to the defenders and their servants, and requires to be received, entertained and lodged, as aforesaid’.

The Court held that the proprietors of a hotel, in which the business of a large city hotel of the highest class was carried on in all of its branches, were ‘innkeepers’ and subject, as such, to the obligations imposed on innkeepers by the Law of Scotland. In particular, they had a duty to receive without favour all travellers for whom accommodation is available subject, however, to the discretionary right to reject any applicant who is reasonably believed to be undesirable in view of the nature of the establishment and the class of guests by whom it is frequented.

The proprietors were justified in rejecting a money lender whose business activities had been the subject of adverse criticism in the public press, and whose conduct on previous visits and purposes on frequenting the hotel had occasioned comment and complaint on the part of the other guests.

Duty to receive the traveller’s luggage

The hotelkeeper is bound to take in not only the traveller, but also his or her luggage.

Robbins & Co. v Gray (1895)

In April 1894, Green, a commercial traveller in the employment of Robbins & Co., who obtained orders and sold goods on commission for them, went to stay at Gray’s inn for the purposes of his business. He stayed at the inn until the end of July. Robbins & Co. from time to time sent sewing machines to Green, at Gray’s inn, for the purposes of being sold to customers in the district. Green became indebted to Gray in respect of his board and lodgings, and Gray claimed to have a lien (a right of security) over the sewing machines sent to Green by Robbins & Co., and which were at the inn. Before the sewing machines were sent to the inn and before Green had incurred his debt, Gray was told by Robbins & Co. that the goods were their goods. Robbins & Co. sued Gray for the recovery of the sewing machines. Gray claimed that he had a lien over them for Green’s debt.

The Court held that an innkeeper has a lien (that is, a right to withhold them until he has been paid) on all goods brought by a guest to the inn as his luggage and received as such by the innkeeper, although the goods are not, to the knowledge of the innkeeper, the property of the guest, for example, a commercial traveller in possession of his employers’ property for sale.

Lord Esher M R stated:

“if a traveller comes to an inn and brings his luggage with him – I do not mean personal luggage – the innkeeper is bound to take in both him and the luggage which he brings with him. The innkeeper cannot discriminate and say that he will take in the traveller and refuse to take in the luggage. If the traveller brought with him something unusual and unreasonable, such as a tiger or a quantity of dynamite, the innkeeper would not be bound to take in either him or his luggage. The innkeeper has a lien as against the true owner of the goods, and not as against the guest only”.

The hotelkeeper has no right to demand whether the traveller owns the goods brought by him or her to the hotel. Where the traveller brings luggage which is unusual and unreasonable (in the case of Broadwood (1854), a piano), or dangerous, the hotelkeeper is not bound to take in him or her or the luggage.

Duty to provide refreshments

A hotelkeeper is bound to provide reasonable refreshment to any traveller who is prepared to pay for it. As to what amounts to ‘reasonable refreshment’ will vary according to the time of day and the type of hotel which s/he has chosen to visit. A traveller calling at a hotel in the early hours of the morning could not reasonably expect to be provided with a three-course meal. A traveller is entitled to demand alcohol during the stay at the hotel or as an accompaniment with a meal. The hotelkeeper is bound only to provide such food and drink as s/he in fact possesses. S/he is not bound to send out for food and drink and may refuse to supply a traveller with food and drink if there is ‘a reasonable excuse’. Thus, it may be reasonable for a hotelkeeper to reserve the limited supplies of food and drink for existing guests. This would not excuse an incompetent hotelkeeper, however, who had failed to maintain adequate stock of food and drink. A traveller who visits a temperance hotel would not be entitled to demand to be supplied with alcohol.

Right of refusal

The right of the traveller to be received and provided with refreshments or accommodation is not an absolute one. The common law duty to receive and accommodate a guest attaches only in so far as the guest is a traveller. The hotelkeeper may refuse to accommodate the traveller if there is no room available at the hotel. S/he may also refuse to receive a person whose conduct on previous occasions had given rise to comment and complaint from other guests or who is not in a fit state to be received. This is provided by Section 1(3) of the Hotel Proprietors Act 1956. S/he may also refuse to serve a person whose presence would endanger other guests. Thus, a traveller with a highly contagious disease might be rejected. It has also been held that the hotelkeeper is entitled to refuse persons who are accompanied by objectionable friends, unreasonable or dangerous luggage, or by a savage or unsuitable dog. The hotelkeeper may refuse anyone who does not appear to be able or willing to pay a reasonable price for the accommodation or refreshment available; or who refuses or fails to provide security for the bill, if requested to do so.

S/he may not reject a guest without sufficient reason or refuse a traveller on grounds of race, sex, sexual orientation etc. The fact that the traveller could have obtained accommodation elsewhere is not sufficient grounds for refusal to receive him or her.

Section 17 of the Public Health (Control of Disease) Act 1984 provides that it is an offence for a person who knows that s/he is suffering from a notifiable disease to put other persons at risk by his/her presence or conduct.

Creation and performance of the hotelkeeper’s contract

Booking, offer and acceptance

The general principles of the Law of Contract also apply to contracts between hotelkeepers and guests. The rules governing offer and acceptance are the same. In the case of Olley v Marlborough Court Ltd. (1949)the court held that the contract of booking took place at the reception desk and, therefore, a notice in the guest’s room limiting the hotelkeeper’s liability, which is not seen by the guest until after the booking formalities had been completed, was not incorporated into the contract.

The Immigration (Hotel Records) Order 1972 as amended.

This Order applies in the case of any hotel or other premises, whether furnished or unfurnished, where lodging or sleeping accommodation is provided for reward, not being premises certified by the Chief Officer of Police of the area of which they are situated to be occupied for the purposes of a school, hospital, club or other institution or association.

Every person of or over the age of 16 years who stays at any premises to which the Order applies must, on arriving at the premises, inform the keeper of the premises of his or her full name and nationality. ‘Stay’ means to lodge or sleep for one night or more in accommodation provided for reward. In addition, a person who is an alien must inform the keeper of the premises of the number and place of issue of his or her passport, certification of registration or other document establishing his or her identity and nationality. He or she must also provide, on or before their departure from the premises, details of his or her next destination and, if it is known, his or her full address there. The keeper of the premises is required to keep a written record of the information which must be open to inspection to the police and other persons authorised by the Secretary of State for a period of up to 12 months.

The meaning of ‘alien’ is that provided under Sections 50(1) and 51(4) of the British Nationality Act 1981, that is, a person who is neither a Commonwealth citizen, a British protected person nor a citizen of the Republic of Ireland. ‘Nationality’ includes the status of a stateless alien, for example, a Palestinian. Penalties for non-compliance include a fine on summary conviction of not more than £200 or imprisonment for not more than six months or both, if without reasonable excuse, the hotelkeeper fails to comply with any requirements of the Order.

Behaviour of the guest

The guest is under a duty to conduct himself or herself properly whilst on the hotelkeeper’s premises. The hotelkeeper is bound to attend to the decency and order of the establishment and that may require him or her to reject a guest whose manners and habits, or whose moral character, would be objectionable to other residents and prejudicial to the hotelkeeper’s business. This might justify the rejection of guests accompanied by savage or unsuitable animals. In the case of R v Rymer (1877)it was held that, if a customer enters upon an innkeeper’s premises with a savage or large dog, which in the nature of things is calculated to frighten timid persons or children, the innkeeper has a right to protect himself and his customers against it and may refuse to serve the customer whilst accompanied by the dog. But, the court held that he is not under a duty to forbid guests or customers who bring in dogs or insist that they be kept on a lead, unless the dog was making a nuisance of itself. Similarly, a guest who brings objectionable friends to the hotel may find himself or herself justifiably excluded from the premises.

Although the hotelkeeper appears to have wide discretion in the matter, s/he cannot eject a guest unless there is misconduct or impropriety on the part of the guest, or for some other substantial reason.

Liability of the hotelkeeper

Duty of reasonable care

The hotelkeeper has a duty at common law and under the Occupiers’ Liability Act 1957, Occupiers’ Liability (Scotland) Act 1960 (as amended) and under the Health and Safety at Work etc. Act 1974to take reasonable care for guests in respect of the safety of the hotel premises. S/he is also required by food hygiene regulations to provide wholesome food and drink. The hotelkeeper is not an insurer of the person of the guest and is only liable for injury to the guest if negligence is proved. S/he is not liable if the guest is attacked by another guest or by third persons, although it may be argued that there was negligence for failure to keep order in the establishment and in failing to eject a person who was proving to be a nuisance or danger to other guests. It is the hotelkeeper’s duty to ensure that the premises are as safe as reasonable care and skill can make them. Passages and stairways should be adequately lit and adequate fire precautions should be taken. Guests should take reasonable care for their own safety.

Andrews v Patullo (1955)

Andrews claimed damages for injuries which she sustained when she fell over a dog in the unlit hall of a building. She alleged that the dog constituted an unusual danger for which she should have been warned by the occupiers of the building. The Court held that whether or not the dog constituted an unusual danger, the occupier did not know where the dog, which did not belong to him, was. He was not negligent in not giving his mind to the matter, nor was he negligent in not considering that the dog might be a source of danger.

Liability for acts of the guest

The hotelkeeper is not liable for the acts of the guest or of the guest’s dog which has been allowed onto the premises.

Liability for the guest’s debt

The hotelkeeper is not liable for the unpaid debts of the guest unless s/he had expressly guaranteed such debts. In the case of Callard v Whites (1816)the court held that the hotelkeeper was not liable for the unpaid laundry bills of a guest. The legal position may be different if the hotelkeeper was in the habit of discharging bills left unpaid by the guests. The hotelkeeper would also be liable if he or she had expressly guaranteed such debts. A guest’s luggage, in the hands of a hotelkeeper, cannot be arrested under a court order for payment of debts.

Liability for the property of the guest

The hotelkeeper is liable for the loss of property brought to the hotel by a guest. This liability is strict and is incurred even though the guest cannot prove negligence on the part of the hotelkeeper. In Scotland, this obligation arises from a Roman Law Edict ‘nautae, caupones, stabularii’. The principle, however, is effectively the same as under the English common law.

Burns v Royal Hotel (St Andrews Ltd) (1958) (Scottish Case)

Burns brought an action for damages against the proprietors of the hotel in respect of the loss of his motor car, which was destroyed by fire while garaged on the hotel premises. The action was founded upon the Edict. The exact cause of the fire was not ascertained, but there were circumstances which indicated that it might have been caused by the negligence of the defender’s employees.

It was held that, in such circumstances, the defenders, in order to discharge the onus laid upon them by the Edict, must show, not merely that they had exercised all normal precautions against fire, but that the fire had occurred in a way which had excluded the possibility of any cause implying negligence on their part.

The hotelkeeper is not liable if the loss arises from the negligence of the owner, by natural and inevitable accident, an Act of God, or an act of the Queen’s enemies (for example, terrorism). This liability is automatic and is not based on any contract or notice, but merely by a traveller entering the hotel. Liability probably does not arise in respect of damage to a guest’s goods, as distinct from loss or theft, unless it could be established that it was due to the negligence or wilful act of the hotelkeeper or his or her employees.

Strict liability is imposed upon the hotelkeeper only in his or her capacity as a hotelkeeper and not as a restaurateur, garage proprietor or public housekeeper.

Property brought onto the premises by the guest

The strict liability of the hotelkeeper applies in respect of property brought onto the hotel premises by the guest. It does not matter that the hotelkeeper was not aware of the contents of the guest’s luggage. However, s/he may not be liable where the guest has retained control of the property in such a way as to relieve the hotelkeeper from liability in respect of that property. The liability applies only in respect of property brought within the hotel premises or the ‘hospitium’ of the hotel. The hospitium consists of the hotel buildings and those precincts so intimately related to them as to be treated for this purpose as forming part of them e.g. a beer garden or a carpark. An area may form part of the hospitium of the hotel for some purposes but not for others. Liability of the hotelkeeper extends to property brought by the guest and placed in that part of the premises in which such goods are usually placed, that is, within the hotel buildings in the case of luggage. The hotelkeeper does not incur strict liability for the property left at the hotel on the guest’s departure.

Extent of the hotelkeeper’s liability

The standard of care which the hotelkeeper is required to exercise in respect of the guest’s luggage is greater than that of an ordinary, careful person. It is not sufficient for him or her to prove that s/he used all reasonable care or had taken the usual precautions. Liability is not restricted to negligence. Such negligence would, in many cases, be difficult to prove and would impose an impossible burden on the owner of the goods, who does not, and usually cannot, know what precautions are taken by the hotelkeeper to protect him/her. This liability includes liability for the acts of employees. Thus, where the loss occurs due to the failure of an employee to perform his or her duties properly, or by the wilful act of an employee, the hotelkeeper is liable. In the case of:

Kott and Kott v Gordon Hotels (1968)

On September 6th 1960, the plaintiffs, travellers, were received by the defendants as guests in the Mayfair Hotel where they took sleeping accommodation. They alleged that on or about 8th September, and while they were staying as guests at the hotel, the defendants failed to keep certain of the plaintiffs’ goods safely, and the goods were stolen from the plaintiffs’ room by a Mr Harold Richardson, a floor waiter employed by the defendants. Alternatively, they alleged that the goods were stolen by some other employee of the defendants whom the defendants could not identify.

As a further alternative, the plaintiffs contended that the goods were stolen as a result of the defendants’ neglect and/or default of the defendants in that, during a period of approximately nine months immediately preceding the theft of the plaintiffs’ goods, a large number of thefts had taken place at the hotel. The defendants had failed to take any effective steps to apprehend the thief or thieves responsible, nor had they taken any effective steps to protect their guests’ property, and had failed to warn the plaintiffs that thefts had taken place and, further, had failed to warn them that it was not safe to leave valuables in their hotel room.

By their defence the defendants denied that the plaintiffs’ property was stolen as alleged etc.

The Court held that it was clearly established on the balance of probabilities that Richardson stole the plaintiffs’ property; that, accordingly, the property was stolen through the wilful act of the defendants’ employees; and that the hotelkeeper was liable to the plaintiff and was not protected under Section 2 of the Hotel Proprietors Act 1956.

Similarly, the hotelkeeper is liable if the property was stolen by another guest. A hotelkeeper who fails to take adequate steps to prevent theft or to apprehend thieves, is negligent. It does not matter that the hotelkeeper was not aware of the contents of the guest’s luggage, it is enough that he or she knew or ought to have known, that certain effects had been brought to the hotel.

Exceptions to the hotelkeeper’s liability

The hotelkeeper will escape liability if s/he can show that the guest had been negligent. It is technically inaccurate to speak of the guest’s contributory negligence, for it is the guest’s failure to take reasonable care of their own property. The burden of proof that the guest had been negligent lies with the hotelkeeper.

The hotelkeeper must establish that the loss would not have happened if the guest had used the ordinary care that a prudent person may reasonably be expected to have taken under the circumstances. It has been rejected, at an early date, that the innkeeper is exonerated from liability if the property of the guest is lost or stolen from a room for which the guest had a key. This was rejected in Scotland in 1700 in the case of Gooden v Murray. It is not per se negligent for a guest to fail to lock his or her door, in the case of a small hotel, where everyone is under the observation of the staff. A guest who placed a diamond ring into a jewel case and then placed her suitcase in her room, despite a notice advising guests to deposit valuables at the hotel office, was held not to be negligent (Carpenter v Haymarket Hotel (1930))

Force majeure or an Act of God

A hotelkeeper is not liable for the loss of a guest’s property if that loss occurred due to force majeure or, in Scotland, an Act of God. The exception ‘Act of God’, as used in Scots Law with regard to the Edict, has a wider significance than that given to it in other branches of the law. Accidental fire may be construed as being force majeure or an Act of God. However, it is not to be taken that any fire, not wilfully ignited, is a force majeure or an Act of God.

Fire is not necessarily considered an unavoidable accident.

Forward v Pittard (1795)

Pittard was a common carrier from London to Shaftesbury. On Thursday October 14th 1784 Forward delivered to him twelve packets of hops to be carried by him to Andover and to be forwarded to Shaftesbury by his public road wagon, which travelled from London through Andover to Shaftesbury. The wagon was not to leave Andover until the following Saturday evening. In the night of the day following delivery of the hops, a fire broke out in another booth at a distance of 100 yards from the booth in which the defendant had deposited the hops. This fire burnt for some time with inextinguishable violence and, during this time, spread to the booth and entirely consumed the hops, without any actual negligence on the part of Pittard. The fire was not caused by lightning.

It was held that by the custom of the realm, the common law, the carrier is in the nature of an insurer and, therefore, he is liable for all loss or damage to goods he has undertaken to carry unless it is caused by an Act of God. He is liable even if an armed force robs him of the goods.

An accidental fire is one which was neither the result of a deliberate act of the hotelkeeper nor the result of culpable acts or omissions by him or her. The hotelkeeper must have taken all reasonable precautions against the occurrence of the fire. In order to escape liability, the hotelkeeper must prove that the fire occurred in such a way that it excluded the possibility of any cause implying negligence on his or her part or on the part of employees.

Acts of the Queen’s enemies

The hotelkeeper is not liable for loss of the guest’s property if the loss was due to an act of the Queen’s enemies. S/he would not escape liability, however, if s/he had been negligent in dealing with the advanced warnings of bomb threats or other hostile acts. S/he may be under an obligation to exclude from the hotel persons who pose as a threat to the well-being and safety of guests and of their property.

Limitation of liability

The Hotel Proprietors Act 1956

(In Northern Ireland it is the Hotel Proprietors Act (Northern Ireland) 1958.)

The hotelkeeper is not liable to make good to any traveller any loss or damage to property which the traveller brought to the hotel unless, at the time of the loss or damage, sleeping accommodation at the hotel had been engaged for the traveller. That loss or damage must have occurred during the period commencing with the midnight immediately preceding, and ending with midnight immediately following, the period for which the traveller was a guest at the hotel and entitled to use the accommodation so engaged.

Section 2(2) provides that the hotelkeeper is not liable for loss or damage to vehicles or property left in them or to any horse or other live animal, its harness or other equipment. Thus, the decision that a garage may form part of a hospitium of an inn in respect of a car but not in respect of luggage left therein (Gresham v Lyon (1954)) is overruled in respect of strict liability.

Limitation of liability by statutory notice

Section 2(3), subject to a number of exceptions, provides that, where a hotelkeeper is liable to make good the loss or damage to property brought to the hotel, then, provided the statutory notice is properly exhibited, his or her liability to any one guest will not exceed £50 in respect of any one article, or £100 in the aggregate.

The hotelkeeper is not entitled to this protection unless, at the time when the property was brought to the hotel, a copy of the statutory notice was conspicuously displayed in a place where it could be conveniently read by guests at or near the reception office or desk or, where there is no reception office or desk, at or near the main entrance to the hotel.

Circumstances excluding limitation of liability

Where the hotelkeeper is liable to make good the loss or damage to property brought to the hotel, then, provided that a statutory notice is properly exhibited, liability to any one guest will not exceed £50 in respect of any one article or £100 in aggregate, except where:

  • The property was stolen, lost or damaged through the default, neglect or wilful act of the proprietor or an employee;
  • The property was deposited by or on behalf of the guest expressly for safe custody with the proprietor or an employee authorised, or appearing to be authorised for the purpose, and, if so required by the proprietor or that employee, deposited in a container, fastened or sealed by the depositor;
  • At any time after the guest had arrived at the hotel, either the property was offered for deposit and the proprietor or employee refused to receive it, or the guest of some other guest acting on his or her behalf tried to offer the property for deposit but, through the default of the proprietor or of the employee, was unable to do so.

Deposit of goods for safe custody

Goods are deposited expressly for safe custody, if something is said or done by the guest which would convey to the hotelkeeper that the goods are being deposited for safe keeping.

Whitehouse v Pickett (1908) (Scottish Case)

A hotel in Edinburgh exhibited a notice, in conformity with Section 1 of the Innkeepers’ Liability Act 1863, indicating non-liability for valuables left in bedrooms. It also stated that these may be deposited in the office. The notice was exhibited on the wall of the corridor. Buckley, a commercial traveller for Whitehouse, on arriving at that hotel on a Saturday afternoon handed to the hotel porter a bag containing jewels to the value of £1,800, to be placed in the office. The traveller made no statement as to value, but he regularly frequented the hotel and the hotelkeeper knew that he was in the habit of carrying jewellery with him. At 11.30 pm, when he asked for the bag, with a view to taking it to his bedroom with him, it was discovered that the bag had been stolen. Another bag of the same size and appearance had been left at the office by one of three guests in the hotel who disappeared the same evening without paying the bill, but leaving behind him certain burglar’s tools. Whitehouse raised an action against the hotelkeeper for the value of the bag. The hotelkeeper pleaded amongst other things, the statutory limitation of liability to £50.

It was held that the bag had not been deposited ‘expressly’ for safe keeping within the meaning of the Act. The onus of proving that it had been lost through the default or neglect ‘on the part of the defenders or their servants’ lay upon the pursuer, and that the onus had not been discharged; and, therefore, the defenders were entitled to the benefit of the statutory limitation of liability. This judgment was affirmed by the House of Lords.

The intention of the depositor is not enough. The mere handing over of property to the hotelkeeper is not an expressed deposit for safe custody. Where a deposit is proved, the onus of proving restoration lies with the depository.

Rights of the hotelkeeper

Hotelkeepers’ lien

The hotelkeeper, acting in that capacity, has a lien over all goods brought by a traveller. A lien is a right of security to withhold the luggage until payment is received. The goods of the traveller become liable to lien as soon as the traveller enters the hotel with the intention of using it as a hotel and is received on that basis by the hotelkeeper, although the lien is not attached until a debt has been incurred. The fact that some person other than the traveller is to pay for the accommodation does not affect the hotelkeeper’s liability for, and lien upon, the traveller’s goods.

Bermans and Nathans v Weiby (1983) (Scottish Case)

A firm of theatrical costumiers hired costumes to a Canadian company. The company made television films in Scotland. Certain individuals involved with the company in making the films stayed at the hotel in Scotland for a period of some months. During the course of their stay the film company delivered the hire costumes to the hotel. The costumes were stored in a number of chalets on the hotel grounds. At the departure of the individual guests, a number of unpaid bills remained in respect of board and accommodation. The hired costumes remained at the hotel.

The hotelier attempted to assert a right of lien over the costumes in respect of the unpaid hotel bills. The owners of the costumes raised an action of declarator that the defender had no right to exercise any lien, but also sought damages rising from the unjustified retention.

The Court held that the innkeeper’s right of lien was not confined to possessions and baggage owned by the hotel guest and extended to possessions in the ownership of third parties brought with them, but that, in the present case, the costumes were not included in the possessions of any individual guest and the innkeeper’s lien did not cover such goods.

This right of lien is not confined to possessions and baggage owned by the traveller but extends to the possessions in the ownership of third persons brought to the hotel by him. Thus, the hotelkeeper has a lien against the true owner of the goods and not merely against the guest only. The hotelkeeper’s lien is not confined to goods of a kind ordinarily brought by travellers for their use on their journeys. There is no right of lien, however, over vehicles or any property in them, or any horse or live animal or its harness or other equipment. N.B. Section 2 of the Hotel Proprietors Act 1956.

In the Scottish case of Ferguson v Peterkin (1953) it was held that a right of lien is not available to cover damage caused by guests during their stay. In Sunbolf v Alford (1838) the court held that the hotelkeeper had no right to strip a coat off a guest’s back so that he could exercise a lien over it. Neither can s/he detain the guest himself or take luggage from the guest’s possession. The right of lien is over property in the guest’s room or in storage in the hotel.

Power to sell goods left at a hotel

Section 1 of the Innkeepers’ Act 1878provides that in addition to the right of lien, a landlord or keeper or manager of a hotel, has the right absolutely to sell and dispose by public auction any goods, carriages, horses, wares or merchandise which may have been deposited with him or her or left in the hotel or other premises attached to the hotel. This right of sale is also given to the landlord, proprietor, keeper or manager of a licensed public house. ‘Carriages’ includes motor vehicles and trailers under the Road Traffic Act 1972.

This right of sale exists where the person depositing or leaving such goods, vehicles etc. is indebted or will become indebted to the hotelkeeper, either for any board or accommodation or whether the keep of any horse or any animals left with him or standing at the livery in the stables occupied by the hotelkeeper. The debt for payment of which the sale is made must not be any other or greater debt than the debt for which the goods or other articles could have been retained under his lien.

The sale of goods left at the hotel may not be made until they have been six weeks in the hotelkeeper’s charge or custody, or in or upon the premises, without the debt due for the purposes of leaving them having been paid or satisfied. At least one month before the sale, the hotelkeeper must insert an advertisement containing notice of the intended sale, in one London newspaper and in one county newspaper circulating in the district where the goods or articles were deposited or left. The notice must give a short description of the goods and articles to be sold, together with the name, if known, of the owner or person who deposited or left them. The hotelkeeper must pay to that person, on demand, any surplus of the proceeds of sale after he has deducted the amount of debt due to him, together with the costs and expenses of the sale.

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