17
Aug
20
Articles, Travel & Cross Border Claims
The Weekly Roundup: a Bad Case of Deja Vu

Regular readers will know that we at 1CL are not ones to criticise, but even our legendary patience is being tested to breaking point by the various rule changes on quarantine. Not only are holidaymakers left scrambling to get back from popular holiday destinations before the new rules take effect, it seems that tour operators and their advisors are having to consider afresh the rules on refunds and compensation on an almost daily basis. And so it is that we find ourselves reporting again on the Great Refund Saga, on an outbreak of illness aboard a cruise ship, and on the possibility of quarantine rules being expanded. It’s almost as if the last five months had never happened.

Refunds in the Context of Ever-Changing FCO Advice

The Great Refund Saga continues to rumble on, apparently without end. Perhaps unsurprisingly, the last couple of weeks have seen an escalation in the Blame Game, with AITO having a go at the FCA, and On the Beach and ABTA seemingly on the brink of a falling-out. Those of us who spent the Sundays of our youth watching John Wayne matinees recognise all the hallmarks of an imminent bar brawl; one more quarantine announcement, and there’ll be consumer groups breaking chairs over the backs of tour operators, whilst ABTA swings from the chandelier, and the FCA falls theatrically down the stairs, breaking every balustrade in the process. The team at 1CL play the role of the placatory barman in this scenario, of course.

The latest round in what appears to be the longest fight since Rocky Balboa soaked up a pounding from Apollo Creed started when AITO accused the FCA of misleading consumers over their rights when FCO guidance changes. AITO, not unreasonably, wants the FCA to tell consumers that they always have the right to cancel package holidays, for any reason, subject only to a regulated cancellation fee. This fee may then be payable by the consumer’s travel insurer, if the cancellation is due to concerns over Covid-19, including an alteration in FCO travel advice. This contractual right to cancel is becoming increasingly important as the government imposes quarantine restrictions at short notice, because some tour operators are taking the stance that notwithstanding the imposition of quarantine on a traveler’s return, the package itself can still take place, and therefore need not be cancelled. Indeed, it is eminently arguable that in the light of the fact that the package can still be provided, and that other countries are still sending tourists to destinations such as Spain and Malta, the tour operator has no right, never mind obligation, to cancel the holiday.

Tourists not wanting to undergo quarantine must therefore cancel their holidays themselves rather than relying on tour operators to do so, but AITO believes that insurance claims for a refund of cancellation costs are being routinely referred back to the tour operator by insurance companies, and that insurers are advising consumers that they have no right to cancel in these circumstances; whereas, of course, they do, under the standard terms of the holiday contract.

It was gratifying to see our friend Noel Josephides, director of AITO, recommending our own preferred option; the use of appropriate insurance:

“We believe that decent travel insurance policies should all include cover in respect of FCO advice against non-essential travel. That way lies protection for travellers and for tour operators, who both currently suffer unfairly and unnecessarily in cases such as the recent last-minute change to FCO advice on travel to Spain and the short-notice introduction of quarantine on return to the UK.”

Meanwhile, ABTA has confirmed that where the FCO advises against travel, tour operators should offer refunds to package holidaymakers, and has announced that it is investigating the refund policies of its members On the Beach and Love Holidays, who offer full refunds for accommodation for customers who don’t wish to travel against FCO advice, but will refund flight costs only where airlines cancel flights and provide refunds. Both tour operators were reported by the Sun newspaper to the Competition and Markets Authority in July in relation to their refund policies.

Simon Cooper, On the Beach’s chief executive, is unrepentant, however. He has pointed out that although historically the industry has treated FCO advice against travel as triggering cancellation and full refunds, there is nothing in the Package Travel and Linked Travel Arrangements 2018 to say that it need do so; and in these particular circumstances, in which the FCO is advising against travel which can in fact take place without difficulty, Regulation 12(7) of the Regulations may well not be engaged.

In the view of the author, Mr Cooper’s analysis of the Regulations is clearly right in these highly unusual circumstances. The right to cancel a package holiday is triggered where the package cannot take place due to unavoidable and extraordinary circumstances at the place of destination; not ever-evolving government policy at the place of departure. Where, therefore, the components of a package can be supplied, the holiday is not cancellable by the tour operator under the terms of the Regulations (although it will be cancellable by the consumer, for a regulated fee, under the terms of the contract).

With what some may feel to be masterly understatement, our old friend Stephen Mason, of travlaw, has commented that ‘consensus among travel firms on responding to Foreign Office advice is breaking down’, and that no doubt the courts will be called upon to determine the parameters of the right to cancel and to a refund and/or compensation. The problem for would-be holidaymakers, of course, is that any determination is likely to be months, if not years, away, and consumers, tour operators and insurers are making decisions about cancellation now, and against a backdrop of highly changeable travel advice and quarantine restrictions. Not for the first time in the course of this saga, the team at 1CL find ourselves crying out for legally accurate comprehensive guidance on refunds and cancellations. And if we’re confused, is it any wonder holidaymakers for whom the Regulations are a closed book are in a state of despair?

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. She was recently named Best Lawyers’ Travel Lawyer of the Year 2020/2021.

 

More Misery for the Cruise Industry

The MSC Magnifica set sail from Genoa, Italy, on 5th January, when “the unknown pneumonia” had infected 59 people in the city of Wuhan.  Pandemonium hit by mid-February when ports started turning away cruise ships for fear that passengers would bring coronavirus.  On 20th April the Magnifica’s last passengers got off at Marseilles, after six weeks at sea.

Fast forward to 3rd August, and 40 passengers and crew on the MS Roald Amundsen have tested positive for Covid-19 just weeks after a handful of oceangoing cruises restarted.  Passengers on board were asked to self-isolate.  Hurtigruten, the Norwegian company which owns the ship, had implemented control measures including social distancing, which reduced the ship’s capacity by at least half; but apparently to no avail.  Chief Executive Daniel Skjeldam said in a statement, “This is a serious situation for everyone involved. We have not been good enough and we have made mistakes”.  The Ponant company’s ship Paul Gaugin also had a positive case of Covid-19, forcing the ship to head back to its home port.

This is yet more dire, unwelcome news for the cruise industry.  We all heard the stories of passengers and crew stranded on cruise ships, confined to their cabins, in the early stages of the pandemic.  It is disheartening (putting it mildly) that with preventative measures in place, and following a three-month break, cruise ships should succumb so quickly to coronavirus, for the second time.  Perhaps in these strange circumstances governments might consider financially propping up ailing travel companies, which have been disproportionately hard hit. In the brave new world of summer 2020 no options should be off the table.

One thing is certain though; if the prevention measures were not robust enough, as Mr Skjeldam’s statement appears to imply, the prospect of further litigation must be approaching the cruise operator like a particularly unappealing iceberg. And other operators must be fuming at what is a public relations disaster for the entire industry.

About the Author

Susanna Bennett was called to the Bar in 2017 and now accepts instructions across all of chambers’ areas of expertise. She is instructed by Claimants, insurers, local authorities and NHS Trusts, and has a particular interest in clinical negligence and travel law.

 

Quarantine Quandaries

There are currently no fewer than 155 countries and territories on the UK government’s quarantine list, many of them popular tourist destinations. On 26th July holidaymakers in Spain were told that they would have to quarantine on their return to the UK; on 8th August Andorra, Belgium and the Bahamas were added to the list; on 15th August Aruba, France, Malta, Monaco, the Netherlands and the Turks and Caicos islands were all added. The move to place France on the list has been particularly unpopular, affecting as it did over 500,000 Britons already in France, all of whom had a day’s notice of the need to return to the UK if they were to avoid spending a fortnight in quarantine. There were reports of the soaring cost of flights home, whilst ferry operators struggled to lay on additional provision to repatriate anxious holidaymakers. But the addition of Malta to the list has particularly exercised travel agents and tour operators, given the sheer number of package holidays under way in that destination.

The government is reviewing the list every Thursday, and there are reports that both Greece and Turkey are next on Grant Shapps’ list for quarantine restrictions; this, notwithstanding the fact that Greece has a far lower incidence of Covid-19 than does the UK. With the Department for Transport apparently hell bent on destroying what is left of the travel industry, Ministers have privately requested that the government rethink its strategy on allowing holidaymakers to depart to tourist hotspots and then surprising them with the news that they will have to quarantine on their return, particularly as the Autumn term approaches and with it the possibility for children to return to education for the first time in six months.

These snap decisions may be medically necessary, if not politically expedient; but they give rise to interesting dilemmas. If a holiday can be provided, but the holidaymaker will have to quarantine on return, the tour operator need not cancel it, and the holidaymaker has no greater right to do so than the one identified by Noel Josephides of AITO contained within the operator’s standard terms and conditions. If the holidaymaker presses on with the holiday in the full knowledge that his or her children will have to quarantine on their return, the family faces a choice between paying a £1,000 fine for breaching quarantine and a £120 fine for missing school. If the holidaymaker is simply unable to return by the deadline imposed by government, due to lack of flight availability, what is he or she to do?

All of these considerations, together with the collapse of Monarch and Thomas Cook, the wider Great Refund Saga, and the news of the Covid-19 outbreak aboard the Roald Amundsen, will inevitably have an effect on consumer confidence in the ability to go on holiday without triggering dire consequences. Is it now time for the British government to do something, anything to support the industry (spoiler: yes, and it has been for months)?

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. She was recently named Best Lawyers’ Travel Lawyer of the Year 2020/2021.

 

…And Finally…

Like all right thinking people, the team at 1CL like nothing better of an evening than to gather around the 1CL telly to watch Love Island. So you can imagine our excitement when we learnt that former contestant Rosie Williams, described (by herself) as a solicitor-turned-social-media-influencer, has branched out into fashion design. The collection, entitled ‘White Collar’, is aimed at the fashionable but formal professional woman, which sounds right up our street. Having investigated further, however, we see that the range features heavily what can only be described as white pin-striped Oxford bags. The mind boggles at what His Honour Judge Gore QC would say to any practitioner appearing before him dressed as an extra from Brideshead Revisited; suffice to say that we at 1CL have no current plans to abandon our historical affiliation with Versace (if it’s good enough for Elton John, it’s good enough for the fashionable but formal professional woman). We look into these things so you don’t have to.

Written by or involving: Sarah Prager, Susanna Bennett

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