Tricky definitions in the PTR – Is all transport the ‘carriage of passengers’?
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:
- Ferries and similar – As a slight aside, it seems like ferries have been a somewhat controversial topic of late, what with Brexit-ferry-shenanigans – but that shouldn’t stop us discussing them!
A more ‘cruise-like’ definition of a straightforward four-hour ferry crossing from, say, the UK mainland to the continent, would almost certainly be COP. However, if the crossing was overnight, and a cabin for sleeping was provided then would it be considered an actual cruise, and therefore a package? Although there is a cruise-like element to the service, the intent of it is to provide an overnight transport, not to have the luxurious room and facilities that full-on cruises promise, so there is the real argument that it could remain COP.
Again, there is welcome assistance in the PTD pre-amble, which says that where ‘…overnight accommodation is provided as part of passenger transport by road, rail, water or air, accommodation should not be considered as a travel service in its own right if the main component is clearly transport.’ This remains a very grey area, however.
- Short or ‘minor’ transfers – We know that the Directive pre-amble similarly suggests that short transfers between, for instance, an airport and hotel are not COP for the purpose of establishing whether a package has been sold. This is a ﬂuid definition as things stand, and whilst common sense can, and usually does, prevail it is easy to see a time when some judicial decisions will start to draw lines to define what is meant by 'minor'.
- Motorhomes – The first of a number of examples in this article where what is ‘carriage of passengers’ might also be accommodation and the lines are blurred. However, the status of a motorhome seems almost certainly likely to be considered a ‘Car & Other Motor Vehicle’ under the travel service definition, and thus cannot come under the COP definition – certainly, that has been the suggestion of the Commission to date.
- Yachts – Similar in a way to motorhomes, but obviously not fitting the ‘Car & Other Motor Vehicle’ definition. Here the situation is more nuanced, with factors including a) whether the yacht is stationary (ie moored in a harbour for the duration), b) whether it is navigating a set tour/route or can be directed by the passengers and c) whether it is in the literal control’ of the passengers – are they skippering it, or is there a crew? There may not be enough here to be a ‘cruise’ and therefore not a package in its own right, but such a yacht could be merely ‘accommodation’ or COP dependent upon the facts.
- Trains – Slightly diﬀerent again, a train journey is typically going to be COP if the ticket is just for a seat between two points. What if a sleeper cabin element is added, however? Here there are echoes of the ferry situation discussed earlier and there is no reason to think diﬀerently despite the diﬀerent mode of travel.
- Bicycles – One of the more problematic situations that have come up so far is of products sold that are for a cycling tour. Participants ﬂy out to the destination under their own arrangements and the travel company provides a) hotels/accommodation along the route and b) the opportunity to ride the route – for example, following part of the route of the Tour de France or Giro d’Italia. For the purposes of a regulated package, accommodation is provided as an element a), but is there a second element at all? How could self-propelled movement on one’s own bike be ultimately considered COP if it is a machine provided by the consumer and powered entirely by them? Possibly the ability to ride the route at all could be ‘Another Tourist Service’ so a regulated package is created.
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.