20
Jul
20
Articles, Travel & Cross Border Claims
The Weekly Roundup: Powers of Prognostication

Modesty forbids us from pointing out that the FCO has altered its guidance on cruise holidays, only days after last week’s Weekly Roundup was published. A coincidence? We think not! But with great power comes great responsibility, and this week it is our sad duty to report on Fleetway Travel’s demise. Meanwhile, the Great Refund Saga continues to rumble on, apparently without end, albeit somewhat alleviated by the Department for Transport’s recent announcement that package holiday credit notes will be covered by the ATOL scheme.

 

FCO Updated Guidance on Cruise Holidays

The week before last the FCO issued updated guidance in relation to cruise holidays; essentially, it said, don’t do it. The guidance, which extended its advice against cruising from the over 70s to all age groups, was said to be based on advice from Public Health England. We at 1CL questioned the logic of the blanket guidance, which, we noted, failed to distinguish between very small boutique boats and the much larger seagoing ships carrying many thousands of passengers.

Where the FCO advises against travel, it is unlikely that travel insurers will be prepared to cover the cost of medical assistance should something go wrong – whether or not the need for such assistance arises as a result of the issue giving rise to the advice. So anyone thinking of taking a cruise would be well advised to consider whether he or she is prepared to fund treatment, even repatriation, in the event of some unforeseen incident. Further, there may be an argument that where the FCO has warned against travel due to concerns around the Covid-19 pandemic, and a passenger goes on to travel in the face of that advice, he or she has voluntarily assumed the risk of going on to contract the virus – the defence of volenti non fit injuria (to a willing person no harm is done, if my schoolgirl Latin serves). So it is that FCO guidance is of critical importance to the industry.

Last week the FCO updated its advice again, this time to confirm that it applies only to international pleasure carriage aboard a sea-going vessel, thus exempting riverboat cruises, cruises in national rather than international waters, and ferries. Riverboat cruise operators have of course welcomed the news, which they speculate is driven by the fact that riverboats are much smaller than most sea-going cruise ships, and that by their very nature they remain closer to the shore and therefore to medical assistance.

But is the distinction really a valid one? The larger cruise operators have put in place a range of measures designed to make cruising safer, and it is hard to see why a large cruise ship should be any more dangerous than a hotel of similar size. Provided that passenger and crew checks on embarkation are rigorous, the argument can be made that they ought actually to be safer, because they are controlled environments. If a virus doesn’t embark with the cruise, there’s no way of it coming board during the course of the trip. Furthermore, a number of international cruises make their way along coastlines, primary examples being the fjords and the Mediterranean. Can it really be said that they are so far from shore at any given time as to be appreciably more dangerous than a riverboat cruise?

The Cruise Lines International Association has said that it continues to work with the FCO to try and convince the latter that the threat posed by international cruising is not a significant one. The author, who is beginning to wonder just how committed the government is to assisting the travel industry in its hour of need, wishes them luck.

 

‘Fear Cases’ brought against Princess Cruises Dismissed

In another piece of good news for the cruise industry, an American federal court has dismissed the so-called ‘fear cases’ brought by passengers on the Grand Princess against their cruise line. The cruise departed Hawaii on February 21st with 2,422 passengers and 1,111 crew; on 6th March, of 46 people tested, 21 were positive for Covid-19. Three days later, two of the passengers who had not fallen ill filed a claim against the cruise operator for emotional distress arising out of their fear of contracting the illness. In the end the cruise line faced 13 such claims.

The court dismissed all of the claims under US maritime law, observing that to do otherwise would open the floodgates to claims not just against cruise operators, but schools, places of worship, and all managers of places where people congregate.

It is suggested that the result would have been the same in the English courts; it is well established that damages are not available for mere emotional distress, without some further feature, and besides, it is difficult to see what more, at that time in the progression of the pandemic, the cruise operator could have done to allay its passengers’ fears. Presumably, on the passengers’ case, the cruise operator would have been better off if it had suppressed the fact that some passengers had tested positive for the virus, thus preventing the others from becoming upset. This cannot possibly be right.

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.

 

Fleetway Travel: Another Casualty of Covid-19

In the current climate, it is unsurprising for those in the travel industry to hear of a tour operator going bust. With the lack of a government support package, diminishing bookings, and the public’s general reluctance to travel, it seems almost inevitable that some tour operators will plunge into financial ruin. Fleetway Travel is the latest casualty of the COVID-19 pandemic, crashing into administration amid cancellations and a cessation in new bookings.

Despite the travel industry voicing concerns about its viability during the pandemic, ministers have taken little action to provide a much-needed lifeline. Unlike its European counterparts, the UK Government has notably failed to supply the industry with financial aid, neglecting to offer a support package – one which would assist tour operators facing huge losses from the pandemic. Contrasting the UK Government’s apparent disregard for the travel sector, the German Government has approved a bridging loan of €1.8 billion to TUI, ensuring its survival. In addition, the European Commission has also issued guidance documents, proposing a gradual restoration of mobility and connectivity in a bid to help reboot Europe’s tourism. Although the UK Government bowed to pressure to fund the arts, it has given no real indication that it intends to mirror Germany’s, or the European Commission’s, approach in respect of the travel sector.

With the summer tourist season in full swing, and many potential holidaymakers still working from home, the future of the travel industry remains uncertain. Other potential holidaymakers face financial woes, diminishing hopes in the industry for a surge of bookings following the lifting of the mandatory quarantine period. Shockingly, recent reports indicate that 53% of tour operators that bring overseas visitors to the UK do not expect their businesses to survive beyond the end of the year. With that in mind, and the news of Fleetway Travel’s collapse, it begs the question as to whether the Government will continue to stand by and watch the travel industry go under.

For those customers who booked a holiday with Fleetway, there is a silver lining. Whilst many may panic about obtaining a refund in the light of Fleetway’s administration, they have some form of redress with the Civil Aviation Authority (“CAA”). The CAA permits travellers to apply for a full refund before they are due to travel; however, this is on the condition that their holiday was booked with an Air Travel Organiser’s Licence (“ATOL”) member. Alternatively, if they are unable to go through their insurance and the package holiday was paid for on a credit card, customers can make a claim under s.75 of the Consumer Credit Act 1974.

The news of Fleetway’s demise is troubling for the travel industry. One hopes that this news will encourage the government to act and consider a bailout for the remaining UK tour operators. Without it, it seems likely that other tour operators will meet the same fate.

About the author

Dominique Smith was called in 2016 and has a busy practice in travel law. She undertakes work for both Claimants and Defendants in package travel claims, contractual disputes, and other related claims. Dominique has a particular interest in cross-border clinical negligence claims and regularly appears in the Coroners’ Courts.

 

The Great Refund Saga, continued

Regular readers will be all too well aware of the Great Refund Saga currently gripping the nation. The CAA has written to tour operators and airlines effectively urging them to get refunds to passengers unable to travel as a result of the Covid-19 pandemic, but has now been urged by the consumer association Which? to bring enforcement proceedings against the airlines. The group has passed to the CAA a dossier of over 14,000 complaints made to it by disgruntled passengers since 22nd May, which it says relate to some £5.6 million worth of unpaid refunds. The most reported airline was Ryanair, accounting for 44% of the complaints made, and a combined total of £1.15 million owed. The airline predictably points to the fact that it is handling an unprecedented number of requests, and doing so without its usual complement of staff, due to social distancing measures, but Which? retorts that other airlines facing a similar situation are doing much better.

Whatever the rights and wrongs of the inability of many airlines to provide refunds within the periods set out in the Package Travel and Linked Travel Arrangements Regulations 2018 and Denied Boarding Regulation 2004, the fact remains that consumers are not receiving the money to which they are entitled timeously. It has been suggested that a joint trust fund should be set up by the CAA and IATA, so as to ensure that this situation never happens again; but with airlines’ liquidity diminishing by the day, whether the industry would have any enthusiasm for such a scheme is perhaps debatable – even if they were able to fund it at present, which seems unlikely.

The government has now acted to attempt to defuse the refund crisis, announcing that credit notes issued between 10th March and 30th September in respect of package holidays cancelled due to Covid-19 will be covered by the ATOL scheme. Vouchers will not be covered, however, and nor will airlines’ credit notes. This welcome development, limited as it is, is an encouraging start; but it is far from being the panacea the industry would like to see.

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…

Regular readers will know that we at 1CL pride ourselves on having our collective ear to the ground. But even we were impressed to read in The Sun details of the judgment in the Shamima Begum (the ‘ISIS bride’) case before judgment had been handed down. On 16th July 2020 the Court of Appeal handed down its judgment, in which it granted Ms Begum leave to return to the UK in order to challenge the order depriving her of her British citizenship. But by the time judgment was given, it was already old news; by 10pm on 15th July 2020 The Sun had already published the story online, including a reference to the reasoning of the court. The post was soon deleted, however, leading some mischievous lawyers to wonder whether someone who had received an embargoed copy of the judgment had leaked it to the press. Surely not! Breaching an embargo in these circumstances may be treated as contempt of court, which may attract a custodial sentence. We at 1CL are always scrupulously careful to keep embargoed judgments confidential, although some clue as to a result may be garnered from the ebullient popping of champagne corks or the sound of gentle weeping into the chambers port decanter. We can only hope that The Sun’s uncanny prescience is due to the undoubted talents of Mystic Meg.

Written by or involving: Sarah Prager, Dominique Smith

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