Matthew Ford, Head of Travel at BLM and Sarah Prager, Senior Travel Barrister at 1 Chancery Lane, talk through the latest on Coronavirus, providing clarity for those working in the travel industry in what can be described as a fast moving and rather uncertain landscape.
With daily reports being issued about the increasing spread of Coronavirus (COVID-19), individuals are becoming more informed about its cause, how it spreads and what precautions they can take to minimise risks to themselves. Many reports are likening it to SARS, a related virus, which infected just over 8,000 people from 2002 to 2004, with 774 fatalities. Whilst COVID-19 has infected many more people, it appears, with a much lower mortality rate.
Whilst there remains uncertainty around how long this may continue, it is becoming increasingly clear that those working in the travel industry, or providing insurance cover for customers, need to be aware of what actions they can and should take right now.
The regions particularly affected are presently the Wuhan and Hubei provinces of China, followed by the rest of China, Thailand, Japan, Taiwan, Singapore, the Republic of Korea and Malaysia; but inevitably the rest of the world will be affected to a greater or lesser degree as the virus spreads.
Key concerns for the travel industry:
Does COVID-19 justify the cancellation of holidays, flights and cruises?
The short answer is that it depends on the destination. As always, it is safest to follow the Foreign & Commonwealth Office (FCO) advice and only cancel or reschedule trips where the FCO recommends that holidaymakers should avoid the destination. Similarly, consumers are justified in cancelling holiday arrangements where the FCO advises against travel. Otherwise, holidays can and should go ahead; but the situation is dynamic, and it would be prudent to monitor both the FCO advice and advice from local suppliers and healthcare providers. If cancellations are required, the ABTA code of conduct confirms at Para 3A(i) that tour operators can cancel travel arrangements after booking, but before travel, where ‘it is necessary to do so as a result of unavoidable and extraordinary circumstances’. There is likely to be some argument as to whether COVID-19 fulfils this criteria, but if the circumstances require cancellation it is justifiable.
What additional assistance should be offered to consumers?
In the first instance, as always with an outbreak of any illness, provision of information is vital and can often bear dividends later. Although the World Health Organisation and FCO guidance is readily available, it is wise to provide it in one short and easily digested factsheet which can be distributed to consumers before travel.
Staff should now have received training in what is known about how the virus spreads and how best to deal with an outbreak; they should be very visible at destination points and in resort, and should be able to reassure holidaymakers that the risk of disruption is low.
If an outbreak does occur, quarantine protocols should be implemented immediately. From experience, tour operators will know that historically some holidaymakers have been notoriously unwilling to cooperate with these procedures and the negative publicity can be significant. Sensitive handling by trained staff has been proven to reduce these issues; where a provider is seen to be proactively managing a situation to minimise disruption, the fallout can be kept to a minimum. For Package holidays, Reg.15(8) Package Travel and Linked Travel Arrangements Regulations 2018 (“PTR’18”), states that where a tour operator is unable to perform a significant proportion of the agreed services of a holiday contract (i.e. the hotel can’t be used due to quarantine), it must provide comparable arrangements at no extra cost or reduce the price of the holiday. The holidaymaker can reject these proposals if s/he feels that they’re inadequate. Also, if the tour operator fails to remedy the issue within a ‘reasonable period’ the customer is entitled to make a claim for compensation. For this reason, it is imperative that tour operators make suitable alternative arrangements and communicate them to customers as soon as possible.
Should the travel industry be worried about claims?
As far as we’re aware, there have been no claims arising from COVID-19 at this stage. It is possible that claims could arise in a package holiday context, where customers allege that they contracted COVID-19 at an infected hotel. The claim could be brought under the PTR’18 if it could be proven that the tour operator had failed to provide services with reasonable care and skill. This could be because the tour operator was (or should have been) aware of an outbreak in a hotel but failed to quarantine it/divert customers to alternative hotels. In reality these claims will be hard to prove because the customer could have contracted the virus anywhere (because it is airborne) and arguably the presence of the virus amounts to ‘extraordinary circumstances’ in any event.
Keep calm and carry on…
COVID-19 is an epidemic of significant proportions; but the industry has become more adept at handling these situations since the SARS epidemic; since that time Middle East Respiratory Syndrome and the Zika virus have joined norovirus on the front pages of the newspapers, but the protocols for those viruses, and in particular norovirus, can readily be adapted to deal with this new threat.
The upside of having dealt with those challenges is that the very extensive experience of the travel industry, with wider support from industry experts, will now come to the fore.
About the authors
Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at 1 Chancery Lane, Matthew Chapman QC and Jack Harding, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade.
Matthew Ford has led BLM’s travel team, which consists of over 30 lawyers across 6 offices, since 2006. BLM advises numerous leading tour operators, insurers and brokers on various travel issues, including claims, regulatory and risk management solutions.
*this information is correct at the time of publication on 19 February 2020