Travellers in difficulty – a cautionary tale for tour operators
The following article was written by Claire Mulligan – Partner, of ABTA Partner Kennedys for the Spring edition of Travel Law Today, which can be downloaded here.
Claire will also be speaking on a similar topic at the upcoming virtual Travel Law Seminar on 19 May 2021, visit abta.com/abtaevents to find out more and register.
Regulation 18 of the Package Travel and Linked Travel Arrangements Regulations 2018 (PTR) requires tour operators who provide packages as defined by the PTR, to give assistance to travellers in difficulty. But just what is required of tour operators if their customers find themselves in such a situation? A recent case has provided guidance as to what the courts expect of tour operators.
A family of four with two young children were travelling to Abu Dhabi. Rather than flying via Amsterdam as planned, they were provided with flights to Kenya. Unfortunately, upon arrival at the airport in Kenya, the airline due to fly the family on to Abu Dhabi noticed that one of the children’s passports did not have the required six months’ validity mandated by the United Arab Emirates in order to enter Abu Dhabi. This resulted in the child, who was not yet five years old, not being permitted to board the flight nor entry to Abu Dhabi. The operator’s terms and conditions contained a requirement that customers should check that their passports have six months’ validity at the date of return back to the United Kingdom.
The family were stranded in Kenya. They had no visa to permit them to enter Kenya and so were unable to leave the airport grounds with their young children. Further, with no hotels in the airport, the family had no alternative but to leave the airport grounds to find accommodation. The tour operator declined to give any assistance to the family.
The family contacted the British High Commission to seek assistance but, in the end, the airline organised accommodation for the family whilst sorting flights to return home.
The judge found that the tour operator was in breach of their duty to provide assistance to travellers in difficulty and to give assistance without undue delay (Regulation 16). He referenced Recital 37 of the 2015 Package Travel and Linked Travel Arrangements Directive (the Directive), which states: “If the traveller is in difficulty during the trip or holiday, the organiser should be obliged to give appropriate assistance without undue delay. Such assistance should consist mainly of providing, where appropriate, information on aspects such as health services, local authorities and consular assistance, as well as practical help, for instance with regard to distance communications and alternative travel arrangements.”
The judge went on to reference Article 13(7) of the Directive, which states: “As long as it is impossible to ensure the traveller’s return as agreed in the package travel contract because of unavoidable and extraordinary circumstances, the organiser shall bear the cost of necessary accommodation, if possible of equivalent category, for a period not exceeding three nights per traveller. Where longer periods are provided for in Union passenger rights legislation applicable to the relevant means of transport for the traveller’s return, those periods shall apply.”
The judge then set out Article 16 of the Directive, which states: “Member States shall ensure that the organiser gives appropriate assistance without undue delay to the traveller in difficulty, including in the circumstances referred to in Article 13(7), in particular by:
(a) Providing appropriate information on health services, local authorities and consular assistance; and
(b) Assisting the traveller to make distance communications and helping the traveller to find alternative travel arrangements.
The organiser shall be able to charge a reasonable fee for such assistance if the difficulty is caused intentionally by the traveller or through the traveller’s negligence. That fee shall not in any event exceed the actual costs incurred by the organiser.”
In summary, the judge found that the operator was in breach of Regulations 15 and 18 of the PTR 2018 due to the lack of assistance, and the failure to organise accommodation for the family at the airport. Further, he found that the operator was also in breach of contract for failing to arrange a replacement flight. The judge explained that the operator should have agreed to assist the family and paid for the family’s expenses including food and accommodation.
This case suggests that despite an operator’s terms and conditions, which may absolve them of liability, where customers find themselves in difficulty, the courts expect operators to take steps to provide assistance to their customers. The judge held that the tour operator had been asked by the family for assistance and should not have left the family with two young children stranded. Rather, the tour operator should have stepped in, made alternative plans and paid for the family’s expenses.
It is noteworthy that the 2018 PTR do consider it acceptable for an operator to charge for such assistance, though it should be noted that any charges must be reasonable and not exceed the costs actually incurred by the operator. However, Regulation 18 only applies to packages sold under the PTR and not linked travel arrangements. Therefore, there is no requirement on those that do not sell packages to offer such assistance to customers who find themselves in difficulty. Regardless, it may be that operators decide that in light of customer service and the potential risk of reputational damage, they find benefit in doing so.