CONVENTIONAL WISDOM AN INTRODUCTION TO TRAVEL LAW GRAHAM E. WILLIAMS ORIEL CHAMBERS

Transcription

1 CONVENTIONAL WISDOM AN INTRODUCTION TO TRAVEL LAW BY GRAHAM E. WILLIAMS ORIEL CHAMBERS These notes are based on the writer s understanding of the law as presented in an introductory lecture on the subject of travel law. These notes are not meant to be and should not be construed or relied on as legal advice.

2 THE PACKAGE TRAVEL PACKAGE HOLIDAYS AND PACKAGE TOURS REGULATIONS 1992 The Package Travel Package Holidays and Package Tours Regulations 1992 have been in force since December of that year. There has been anticipation that they will be updated and reformed for many a year. Stop press - they should be next year or the year after, as the EU have, on 28 th May 2015, backed a new package travel Directive - due for implementation within the next 2 years! The talk, hereafter, deals with the law as it is and not as it may be, after the changes. The Regulations apply to business travel as well as leisure travellers and holidaymakers. Whilst the Regulations are very useful don't forget that the travel contract itself may be of use and may perhaps be even more favourable than the Regulations in the event of breach. The Regulations cover the provision of information to consumers, the content and form of regulated packages and clarification of who is regulated, together with civil and criminal remedies, sanctions and the provision of security by the operator in case it becomes insolvent. The Regulations apply to packages sold or even just offered for sale in the United Kingdom. A regulated package is defined by regulation 2(1) as a pre-arranged combination of at least two of the following components:- 1. transport 2. accommodation

3 3. other tourist services (not corollary to transport or accommodation) and accounting for a significant proportion of the package Further the Regulations will only apply where the package meets the following criteria a. sold or offered for sale b. at an inclusive price c. the service covers a period of more than 24 hours or includes overnight accommodation. As you would anticipate that have been arguments as to prearranged, combination, inclusive price, and what constitutes transport and accommodation, even ignoring what other tourist services are not already encompassed by transport or accommodation and still justify being represented as other things that account for a significant proportion of the package. The Regulations apply if the sale or offer of sale of the a regulated package takes place in the United Kingdom and hence continue to apply even where the operator may be based elsewhere than the United Kingdom or even if a package does not involve foreign travel or a holiday. The travel industry has tried to avoid the impact of the Regulations through split contracting, dynamic packaging, off package sales et cetera See ABTA v CAA 2006 EWCA Civ 1356 (which deals with prearranged and inclusive

4 price ) and Titshall v QWERTY Ltd 2011 EWCA Civ 1569, which is a useful case in relation to the identification/ defining of a package holiday. Under the Regulations a tour operator will be responsible for the acts and omissions of staff of its supplier for instance hotel staff where a regulated package includes hotel accommodation as part thereof. Tour operators can seek to incorporate such of the various Conventions as may apply, to limit the potential liability for instance the Montréal Convention - covering carriage by air and the Athens Convention covering carriage by Sea. A benefit of the Regulations is that the tour operator is liable for any improper performance of the contract which may be a far stronger position than where someone has cobbled together their own travel arrangements and where remedies will not be as certain in the event of breach, particularly minor breach. The Regulations apply were the consumer is linked to one or more of the following contracting parties an organiser, a retailer, or both. The Regulations can apply to what may be termed free portions of a package, like a flight with a free hotel or an hotel with a free flight. The burden is on the operator to prove the free element and that it is not part of a package with the money being made up on the charged part.

5 AIR TRAVEL This is largely dealt with by Conventions. Where the Convention applies no other law has effect. The initial Convention was the Warsaw Convention 1929, this was amended in 1955 by the Hague Convention. The most up-to-date Convention dealing with air travel is the Montréal Convention 1999, in force since 4 November Before applying the Montréal Convention to your case it is important to ascertain first of all whether the Convention has been ratified by at least one nation involved in the international travel applicable to your case. Art. 1 of the Convention states the Convention applies to all international carriage of persons baggage or cargo performed by aircraft for reward it also applies to gratuitous carriage by aircraft performed by an air transport undertaking. The expression international carriage means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there is a break in the carriage or transshipment are situated either within the territories of two states parties or within the territory of a single state party if there is an agreed stop in place within the territory of another state even if that state is not a state party. Carriage between two points within the territory of a single state party without an agreed stop in place within the territory of another State is not international carriage for the purposes of the Convention. Carriage to be performed by several successive carriers is deemed to be one undivided

6 carriage if it has been regarded by the parties as a single operation whether it had agreed upon under the form of a single contract or a series of contracts and it does not lose its international character just because one contract or series of contracts is to be performed entirely within the territory of the same state. NB With deference to Saggerson on Travel Law consider return travel London to Outer Mongolia CF return trip Outer Mongolia to London. There are strict circumstances under which the Convention applies. Importantly liabilities that are not covered by the Convention have no remedy (see below) Persons and passengers. - Some Convention headings apply to persons and some to passengers, persons will incorporate all nature of people on board a flight but the passengers obviously don t include on duty flight crew and arguably off duty employees of the airline. The Carriage by Air Acts (Application of Provisions) Order 2004 applies to domestic air travel in rather the same fashion as the Montréal Convention. Aircraft, though not defined in the Convention will include helicopters gliders and, if you can find them, airships. Bizarrely, the Carriage by Air Act 1961, applies to courage a hovercraft as a result of the Hovercraft Act Bear in mind that the Convention makes the carrier liable in the case of death or bodily injury

7 of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking. The latter points require a degree of control being exercised over the passengers and so would appear to apply to commands given to embark as people move towards/ through flight gates et cetera. Accident has been subject to some conjecture although what appears clear is that the accident must be an event which is separate from the actual injury resulting in an American case of Saks v France 1985 (as approved by the House of Lords in the Morris v KLM Royal Dutch Airlines The Saks reasoning relies on the accident being an unexpected, unusual event or happening that is external to the passenger. As a result of this common-law ideas as to negligence do not necessarily apply e.g. such that finding that wetness on the floor by a toilet in an aeroplane is not necessarily something unexpected or unusual for someone to then have a slip and so the definition of accident did not apply, whereas someone would be able to claim under the Convention if they were subject to an incident of air rage or terrorism. The Carriage by Air Acts (Implementation of the Montreal Convention) 2002 have been in force in the UK and EU since 28 June The Convention applies to intended stopovers rather than unintended, perhaps emergency, stopovers that make an otherwise national journey International. Each Carrier is liable for the part of the carriage it has undertaken. A contracting carrier is a principal who makes an agreement with the passenger for carriage, although the actual carrier may be a different organisation performing all or part of the carriage. The contracting carrier is liable for the entire contract and the actual carrier is only liable for the part of the contract

8 it performed. Tour Operators may seek to import the Montréal Convention and its limits into the contract where they act as Carrier. Persons (passengers) who what are subject to but not party to the agreement for carriage can still benefit from the Montréal Convention and so can business travellers and members of groups still benefit The limitation period for a Montréal Convention action is two years from the date the aircraft arrived or ought to have arrived. Because the Convention is freestanding it is not affected by or subject to English law on Limitation under the Limitation Act 1980, so there is no opportunity to extend the limitation period on the basis that the Claimant may be a child or through s 33 LA 1980 attempts to dis-apply limitation period. Amendment to seek to claim from the correct person after an action has been brought against the wrong person will not be allowed - see Hall v Heart of England Balloons. In Sidhu v British Airways 1997 AC 430 the court determined that there is no residual remedy where the Convention does not apply (the family had disembarked and waiting in an airport lounge in Iraq at the time of the first Iraqi invasion - they had no remedy because they were neither onboard the aircraft or in the course of embarking or disembarking). Further psychological injuries allegedly suffered probably did not qualify as bodily injury within the meaning of art. 17 of the Convention. Art. 33 of the Montréal Convention provides that an action for damages for injury or death must be brought subject to the Claimant s choice of which - in the territory of one of the

9 States Parties either before the court of the domicile of the carrier or of its principal place of business or where it has a place of business through which the contract has been made or before the court at the place of destination. Where the claim is for death or injury the plaintiff can also bring an action in a country where he had his main residence and to or from which the carrier operated services for carrying passengers by air. DENIED BOARDING REGULATIONS Denied boarding Regulations came into effect in relation to motorised fixed wing aircraft on 17th of February 2005 and apply to all flights that have taken place after that. The usual Defendant will be the carrier rather than a package operator, unless the Carrier is also the operator. These Regulations apply to:- all flights departing from an EU airport and arriving anywhere in the world, whether or not the carrier is an EU carrier. all flights departing from an airport outside the EU if the carrier is an EU carrier and the passenger has not already received benefits or compensation in the non-eu country from which they departed. Various compensation limits depending on delay and on flight distance etc. e.g. Category a all flights of 1500 km or less Category B all flights inside the EU of more than 1500 km and all flights between 1500 km and 3000 km Category C all flights outside the above categories.

10 Denied boarding, delay and cancellation can all be triggers for these Regulations. THE ATHENS CONVENTION The Athens Convention relating to carriage of passengers and their luggage by sea came into force on 13 December 1974 and has been implemented into UK law by sec 183 of the Merchant Shipping act 1995 which came into force on 1 January Like the Montréal Convention it applies a 2 year limitation period (subject to a possible and unusual 3 year maximum, in certain cases). Like the Montreal Convention it is an exclusive remedy (where the breach is due to the carrier and is not a quality based complaint) in the absence of which no cause of action lies against the carrier, hence there is no crossover with an alternative remedy under package travel Regulations et cetera (subject to above and below). The Athens Convention deals with personal injury as distinct from bodily injury and death and loss and damage to luggage. The Athens Convention does not apply to the quality of the holiday and hence it's exclusivity does not prevent an action under the Package Travel Regulations et cetera where something does not involve personal injury death or lost luggage et cetera arise. The Convention grants jurisdiction to the place of permanent residence or principal place of business of the Defendant or the court of the place of departure or that of the destination according to the contract of carriage all records of the state of domicile or permanent residence of the claimant if the defendant has in place a business there and is subject to the jurisdiction of that state although the court of a state where the contract of carriage was made if the defendant has a place of business there and is subject to the jurisdiction of that state The Convention only applies to international carriage by Sea if:-

11 a. the ship is flying the flag of a state party to the Convention OR b. the contract is made in a state parties to the Convention OR c. the place of departure is in the territory of a state party. The Athens Convention defines things using the word incidents rather than accident and excludes liability when the passenger is in a port installation or on a quay although would allow the situation where the passenger is in the course of embarkation and disembarkation (as well as carriage). Liability is based on the fault of the carrier. There are limits as to recoverable sums based on special drawing rights as defined by the International monetary fund. There are other limitations but limitations can be removed if a carrier s act or omission was done with intent to cause damage or recklessly with the knowledge that such damage would probably result. Carriage within the British Isles is covered by the Merchant Shipping Act 1995 to the effect that the Athens Convention is applied with some modifications to such carriage. THE BERNE CONVENTION The Berne Convention deals with international carriage by rail and has been in force in the UK since The Convention will apply to rail journeys through or between territories of State Parties to the Convention. Liability applies in relation to death or personal injury or any other bodily or mental harm to a passenger caused by an accident arising out of the operation of the railway while the passenger is in entering or alighting from the railway vehicle. The action should be brought against the appropriate railway responsible for the fault.

12 There is a three year limitation period starting from the day after the accident in the case of injury or the earlier of three years from the date of death or five years from the date of accident in a fatal case. ROME II Please note Rome II Regulation (Reg 864/2007) seeks to apply standardisation in the determination of claims in the EU member states. Regulation 4.3(1) states:- Unless otherwise provided for in this Regulation the law applicable to a non-contractual obligation arising out of a tort shall be the law of the country in which the damage was caused irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur. Regulation 4.3(3) states:- Where it is clear from all the circumstances of the case that the tort is manifestly more closely connected a country other than that indicated in paragraphs 1 or 2, the law of the other country shall apply. A manifestly closer connection with another country might be in particular based on a pre-existing relationship between the parties such as contract that is closely connected with the tort. See Winrow v Hemphill 2014 EWHC 3164 QB

13 MOPPING UP 1. Private International Law MiscellaneousProvisions Act 1995 If law under the Conventions or under Rome II is not engaged the General Rule is that applicable law, in relation to a tort committed after 1 st May 1996, is that of the Country where the tort occurred. So even where the English Court have jurisdiction to deal with a claim the law of the country where the tort took place applies. 2. The Sixth European motor directive is a consolidating directive requiring a member state to make motor insurance compulsory, to provide a body to grant compensation to victims of uninsured or uninsured drivers and which allows a member state to avoid payment if someone got into a vehicle in the knowledge it was stolen or uninsured 3. The Foreign Limitation Periods Act 1984 imports the foreign limitation period to the case. 4. Rome I applies to Contractual claims 5. What of the situation concerning Jurisdiction for non Convention regulated claims and where, also, the Package Travel Regulations do not apply e.g. Road traffic accident Proceedings can be issued and a claim proceed in England:-

14 Where the regime of the EU applies as set out in regulation 44/2001 Where the Brussels Lugano Convention applies to the countries of the EFTA Under the modified Brussels regime and at common law in relation to the rest of the world GRAHAM E. WILLIAMS ORIEL CHAMBERS 14 WATER STREET LIVERPOOL L2 8TD IX 2015