01
Sep
20
Articles, Travel & Cross Border Claims
The Weekly Roundup: the Bowie Edition

In an eerie echo of last week’s report that the Portuguese President had rescued a couple of kayaking tourists, this week we read of the small child on an inflatable unicorn pulled from the water off Patras by the crew of the Salaminomachos ferry. Apparently she had been swept out to sea whilst her parents were distracted. We at 1CL are not ones to judge others’ parenting, of course (those drinking gin in glass houses shouldn’t even think about throwing stones), but suffice to say that on our day trips to Clacton we always keep the more wayward participants in check through the judicious deployment of the chambers Collie.

 

We Could Be Heroes

We at 1CL were interested to read that retirees are now considering tackling climbing Everest. It appears that Yuichiro Miura’s achievement in becoming the oldest person to climb the mountain, at the age of 80, has inspired the younger generation.

A University of Washington study, just released, has found that the success rate of summiting Mount Everest has doubled in the last three decades, although the number of climbers has increased enormously. The reasons for the increased prospects of success are many and varied, including better weather forecasting, greater use of oxygen lower down the mountain, and provision of more fixed lines.

The study excluded porters, photographers and support staff, and concentrated only on first-time climbers. It found that an incredible proportion of climbers, two thirds, now reach the summit, and that a 60 year old climber now has the same success rate as a 40 year old climber some 15 years ago. More women, about 14.6%, are making the attempt than in 1990, when about 9.1% of climbers were female.

The death rate for climbers remains approximately 1%, as it has been since 1990. Interestingly, women and men had very similar prospects of both success and death in both periods.

This is adventure tourism at its very limits. We at 1CL have had cause to investigate the dangers of mountaineering, most pertinently in Harrison v Jagged Globe [2015] 5 WLUK 867, in which Simon Lowe, of Jagged Globe, soundly crushed the idea that mountain tour operators should be liable for the decisions taken by mountain guides on the ground. When a tourist signs up for a trip that carries a significant risk of death, particularly for his or her cohort, he or she takes on the risk associated with that trip. Where, however, a tour operator advertises a particular expedition to a particular age group, it probably owes a duty to take all reasonable steps to make that expedition as safe as it can be for that particular group. One way or the other, as more and more people attempt to summit more and more difficult peaks, it is only to be expected that more and more claims will arise.

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.

 

A workplace oddity

I confess to stanning the odd portmanteau word, and one of the upsides of the coronavirus pandemic has been the surge in new opportunities to splice new and unlikely verbal bedfellows into single neologisms: quarantini being a particular highlight. Then, before the establishment of travel corridors, we heard a lot about the joys of staycations and, of course – as inspired by the PM – glamping (in fairness both pre-Covid terms but strong instances of the genre nevertheless).

Which is why I was so disappointed this week to read about the surge in people taking so-called ‘workations’. This seems a catastrophic waste of an opportunity for creativity. Off the top of my head, could we not have had hotoil? Playbour? Paytrip? Day at the offest?

Whatever you decide to call it, the theory behind the work-vacation hybrid is that the past few months have taught a good percentage of the workforce that their connection with their office desk is not so much one of Newtonian gravitation as quantum entanglement – i.e. for many, the job can be done non-locally. And if you can work from home, why not work from Rome? Why not swap remote working for on-boat working?

Some hotels in the Americas it seems appear now to be encouraging holiday makers to do just that, to stay for extended periods and do all of their video conferencing, VOIPing and good old-fashioned emailing from custom equipped pool-side offices, while their kids are offered schooliday educational activities.

So far so idyllic, but a word of caution for those eager to substitute the kitchen table for the beach bench: holidata. Careful what information protected by the GDPR is being carried into countries not covered by EU adequacy decisions (until December 31 this year at least). Worth noting for all those who use American tech companies for their IT needs, on 26 July of this year the CJEU issued a ruling in Schrems II (C-311/18) which declared the Privacy Shield, a mechanism for transferring data between the EU and the US, invalid. The Court of Justice determined that sufficient safeguards were not in place to prevent US public authorities or intelligence services from being able to access the data without specific ringfencing. As things stand, therefore, all data transfers using the Privacy Shield are non-GDPR compliant. The decision in Schrems II, however, did not go so far as to say that Standard Contractual Clauses (SCCs) which many of the big companies rely on governing data transfer were not automatically in breach of the GDPR and the Charter.

This author therefore recommends doing your data due diligence for any readers interested in the idea of their telecons becoming telecondos. 

About the Author

Tom Yarrow was called in 2018. Before joining chambers Tom was a civil servant working in various government departments, including as a policy advisor on the UK-EU Withdrawal Agreement at the Department for Exiting the European Union. During pupillage he worked with the Government Legal Department, practising in public law in the fields of public international law, justice and security, human rights and immigration. He has regularly appeared in judicial review proceedings for the Secretary of State for the Home Department, and as a member of the Attorney General’s ‘junior junior’ scheme, he is able to take instructions directly from government clients. He now practises in all of chambers’ practice areas and is an enthusiastic and valued member of the travel team.

 

Santastic Voyage

It was reported last week that Silversea ship Silver Spirit was awarded a certificate in infection prevention by DNV GL. DNV GL describes itself as “the world’s leading classification society and a recognized advisor for the maritime industry”. The certificate relates to the ship’s onboard sanitation protocols for passengers and crew, and was awarded following an inspection developed from a hospital infection prevention programme.

The extensive details of the certification programme are not yet clear, but it is likely to have addressed infection risk management, cleaning and food preparation procedures, record keeping, and other such matters.

Even certified hospitals have difficulties with outbreaks of communicable diseases, and cruise ships are inherently difficult environments to manage, so travel lawyers will have to wait and see what impact the certification has on performance. Nevertheless, it seems that the intervention of such a reputable advisor should have a positive impact on passenger and crew health, and should further lend weight to Silversea’s defence of any communicable disease-related claims in future.

About the Author

Called in 2011, prior to pupillage Conor Kennedy spent two years working with a leading insurance law firm, gaining experience across regulatory, employment, leisure, travel and public sector teams. He has a varied civil practice and is accredited for Direct Access instruction, but has a particular interest and expertise in claims involving fundamental dishonesty.

 

…And Finally…

In tragic news, Fred Olsen are retiring the Boudicca and the Black Watch. The two heavyweights of the cruising world will be replaced by the Borette and the Borealis, increasing Fred Olsen’s capacity, but depressing us all.  The ships, which were much loved by passengers and legal practitioners alike, will now come out of commission. We at 1CL hope that they will enjoy their retirement in some useful capacity; it would break our hearts if they were to be sent, like the Carnival Imagination, to Turkey. The only silver lining to these painful events is that the cruise industry has never suffered the ignominy of being a Defendant to a Begum v Maran type claim (https://1chancerylane.com/special-briefing-the-decision-in-begum-v-maran-2020-ewhc-1846-qb/), and long may this continue. We are, after all, responsible travellers.

“The truth is of course that there is no journey. We are arriving and departing all at the same time.”

 

Written by or involving: Sarah Prager, Conor Kennedy, Thomas Yarrow

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