This article was written by Matt Gatenby, Senior Partner, Travlaw LLP for ABTA's seventh edition of Travel Law Today which can be downloaded here: abta.com/travellawtoday
In the last edition of Travel Law Today (Issue 6), we discussed transfer services and whether they could be considered ‘carriage of passengers’ as defined by the Package Travel Regulations 2018. The thinking in that article is still valid, so it remains a good read (says I). It is not a prerequisite for what follows, however, which asks the bigger question of never mind just transfers – is all transport, carriage? The reason this is important is that if a service can fall into the definition of Carriage of Passengers (COP) then it can be combined with other travel services to form a regulated package – with everything that comes with it. Conversely, if such a service does not fall under the definition of a COP, liability for a package may not arise because such COP is either one of the other travel services or not a travel service at all.
What was the position under the previous regulations?
The starting point here has to be that under the old Regulations, what is now ‘Carriage of Passengers’ was called ‘Transport’. So, how diﬀerent can it be – it’s just a name, right? Not quite. It’s clear from both the preamble to the Directive and the guidance we have that there was more than just a name change here, in that this was just part of a larger push to try to give enhanced clarity all round. Staying with the preamble for just a moment, it does, however, suggest that lots of forms of transport ‘bus, rail, water or air…’ can be COP. So, how do we now have that actual clarity?
What probably isn’t going to be carriage of passengers?
Under the new Regulations, straight oﬀ the bat, we have Reg 2, which brings something new to the travel services table, and diﬀerentates at least one other Travel Service, which by definition cannot be COP, because it now has its own definition – the rental of cars and motor vehicles etc… However, some examples still fall into a grey area – read on! We also have cruises, which now more than ever are clearly going to be defined as packages in their own right, meaning there is no argument that they can be COP.
Other tricky carriage of passengers situations
Let’s now consider some more difficult situations that we have seen in practice since the new Regulations came into eﬀect:
Diﬀering businesses and products will mean that consideration of what is the carriage of passengers will no doubt continue for a fair while yet, but for now, the lines seem fairly well drawn – and certainly this is one attempt to bring clarity over the old regulations that has succeeded.