A question raised at the recent 1 Chancery Lane webinar on the future of the travel industry related to the possibility of criminal charges being brought against cruise operators as a result of the Covid-19 pandemic. In this Special Briefing we examine the operation of the criminal law in relation to the travel industry.
The Health and Safety at Work etc Act 1974 and secondary legislation
The H&SAWA is the main piece of legislation governing the duties owed by employers regarding health and safety in the workplace. Like almost all UK legislation, it has limited extra-territorial reach, and so is of relevance only to the operation of tourist services within the jurisdiction.
Pursuant to s.2 of the Act, it is the duty of every employer to ensure so far as is reasonably practicable the health, safety and welfare of all his employees. The government has issued, and continues to issue, guidance on the measures it considers it appropriate for employers to take in response to the pandemic, and it is suggested that if an employer were to follow this guidance, it could not be criticised; if, conversely, it were to ignore government guidance it would surely leave itself open to the possibility of prosecution under the Act. Furthermore, any such failure to follow government guidance would, in this particular industry, almost certainly engage s.3 of the Act, which places an obligation to employers to conduct their business in such a way as to ensure, so far as is reasonably practicable, that people who are not employed by them are not exposed to risks to their health and safety. Tourists, guests, and other consumers clearly come within this class of people, and s.3 has previously been deployed against theme park and fairground operators, whose undertakings obviously have the potential to compromise members of the public not their employees. There is no particular reason why hoteliers and restauranteurs should not also fall within the ambit of the provision.
The penalties for breaches of the Act are set out in s.33, and encompass fines and, in respect of failure to comply with prohibition or improvement notices, imprisonment of up to two years (after trial on indictment).
Owners of UK tourist establishments will also owe various duties in relation to their employees, but these fall outside the scope of this briefing; readers should turn to previous briefings on personal protective equipment and on the control of substances hazardous to health in particular in relation to these duties.
Regulations relating to Cruise Ships
On 3rd March 2020 the International Chamber of Shipping issued Guidance for Ship Operators for the Protection of the Health of Seafarers in order to assist shipping companies in following the International Maritime Organisation and the World Health Organisation advice on dealing with the Covid-19 pandemic. The Guidance sets out basic hand washing and social distancing measures, together with details of what information should be given to passengers and crew, and a protocol for pre-boarding screening of passengers. As one would anticipate, there are isolation and quarantine protocols, as well as measures to clean and disinfest affected areas. On 20th March the WHO published similar guidance. The UK government provided guidance on 26th March which echoes the ICS advice, and emphasises the need for seafarers to be issued with personal protective equipment and for appropriate cleaning to take place at frequent intervals. UK ports require vessels from foreign ports to complete Maritime Declarations of Health in all cases; and some ports require additional safeguards, for example more specific MDHs (Southampton) and daily declarations of health (Tilbury). UK ports have, however, welcomed British ships, which is more than can be said for the many ports elsewhere which have now closed to cruise ships.
Cruise ships registered in the UK and, in some circumstances, foreign registered vessels operating in UK waters, are subject to a constellation of regulations intended to implement the Maritime Labour Convention, to which the UK is a signatory. Of most particular relevance in the current pandemic are the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997, the Merchant Shipping (Maritime Labour Convention) (Minimum Requirements for Seafarers)) Regulations 2014, and Merchant Shipping (Maritime Labour Convention) (Health and Safety) (Amendment) Regulations 2014, which are the principal source of criminal consequences for UK ship owners, employers of crew and owners of vessels in UK waters. There is a general duty to ensure the health and safety of crew and others on board by evaluating and attempting to reduce identified risks (Reg.5 of the 1997 Regulations), and in particular the provision of instruction, training and supervision to crew members, the provision and maintenance of a working environment that is, so far as reasonably practicable, safe and risk-free; and the provision of such PPE as is necessary.
Contravention of Regulation 5 of the 1997 Regulations is an offence punishable by an unlimited fine or a maximum of two years imprisonment, or both (Reg.24(1)). It is a defence to show that all reasonable steps have been taken to ensure compliance; but the burden of proof of doing so is on the Defendant.
Again, it would seem likely that if a cruise operator were to follow the detailed guidance issued both domestically and internationally it would be able to make out the defence of reasonable practicability; on the other hand, if the guidance were not followed the operator would have to show why it was not reasonably practicable to do so in its particular circumstances, for example by reason of the design and layout of the vessel or the particular task undertaken by the crew member.
It is acknowledged that a great deal of work will have to be done before UK registered ships and vessels intending to dock at UK ports will be able to handle any number of passengers; there are obvious difficulties around social distancing on board a cruise ship (although the measures for ships relate to a one metre and not a two metre distance), and there will clearly be concerns around the provision of appropriate ventilation. Furthermore, for those cruise operators catering to the more mature holidaymaker, there will be additional considerations around their passengers’ particular vulnerabilities and requirements. However, one of the greatest difficulties faced by the industry as a whole is a lack of consumer confidence, with a perceived lack of trust in tour operators, and cruise operators have managed to weather the Refund Storm with notable success, albeit largely by providing passengers with the full refunds to which they are entitled. It is tentatively suggested that cruise operators may be able to make a virtue of a necessity by way of publicising their compliance with their various duties under the guidelines, even if this amounts to no more than their legal obligations.
The Offence of Corporate Manslaughter
The statutory offence of corporate manslaughter is a relatively recent one; before the Corporate Manslaughter and Corporate Homicide Act 2007 came into force on 6th April 2008 the common law offence of corporate manslaughter was of potential relevance to the industry, but was in fact hardly ever prosecuted, and even more rarely successfully (only two successful prosecutions for the offence were ever brought).
The CMCHA abolished the common law offence and replaced it with a statutory offence which can only be prosecuted with the permission of the Director of Public Prosecutions. Of particular note to the industry is the fact that, as with the H&SAWA, the Act does not apply outside the UK or its territorial waters unless the harmful event occurs on a UK registered ship or aircraft. In that case, pursuant to s.1, an organisation is guilty of an offence if the way in which its activities are managed or organised—
(a) causes a person’s death, and
(b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.
The conduct alleged to amount to a breach of the duty of care must fall far below what can reasonably be expected of the organisation in the circumstances.
Clearly a travel agent, tour operator, cruise operator or airline would owe a relevant duty within the meaning of the Act.
Pursuant to s.8:
(1) This section applies where—
(a) it is established that an organisation owed a relevant duty of care to a person, and
(b) it falls to the jury to decide whether there was a gross breach of that duty.
(2) The jury must consider whether the evidence shows that the organisation failed to comply with any health and safety legislation that relates to the alleged breach, and if so—
(a) how serious that failure was;
(b) how much of a risk of death it posed.
(3) The jury may also—
(a) consider the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged any such failure as is mentioned in subsection (2), or to have produced tolerance of it;
(b) have regard to any health and safety guidance that relates to the alleged breach.
(4) This section does not prevent the jury from having regard to any other matters they consider relevant.
(5) In this section “health and safety guidance” means any code, guidance, manual or similar publication that is concerned with health and safety matters and is made or issued (under a statutory provision or otherwise) by an authority responsible for the enforcement of any health and safety legislation.
As we have seen in the context of the other legislation, compliance with domestic and, where applicable, international guidance will be key to the prospects of defending any prosecution brought under the CMCHA, the consequences of which include an unlimited fine which, the courts have found, may be calculated in such a way as to put the Defendant company out of business.
Perhaps unsurprisingly, the risk to the travel industry posed by the Covid-19 pandemic can be obviated by strict compliance with the relevant government and industry guidelines. As always, although non-compliance does not of itself prove guilt, it is powerful evidence of it. The prudent practitioner’s advice to tour operators, cruise operators and airlines must therefore be to follow the most recent guidance unless there is an extremely compelling reason not to do so, in which case the most meticulous record of the reason for the departure must be preserved.
About the author
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.