EU - Rights of Passengers Travelling by Sea and Inland Waterways

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The European Union has historically given greater focus to the legal rights of passengers and tourists travelling by air and railroad, whereas the rights of passengers travelling by sea and inland waterways have received comparatively little attention. In recognition of this, the European Parliament and European Council have formally adopted EU Regulation 1177/2010 which aims to establish a set of rules for the rights of passengers when travelling by water. The aim of the regulation is to achieve a consistent legal framework in the interest of passengers travelling in all modes and to ensure that all passengers are entitled to enjoy the same levels of quality and safety, however and wherever they travel within the European Union.

The Rights

The principal rights afforded under the regulation, amongst others, are (1) non-discriminatory treatment and specific assistance free of charge for disabled persons and persons with reduced mobility at both port terminals and on board ships, as well as financial compensation for loss or damage of their mobility equipment, and (2) a guarantee of compensation in the event of cancellation or delay. The other rights provide that a minimum degree of information is provided to all passengers before and during their journey in addition to general information about their rights in the port terminals and on board ships and non-discrimination between passengers in relation to the transport conditions/contracts they are offered by carriers based upon the nationality of the passenger. In other words, the contract conditions and tariffs applied by carriers or ticket sellers should be offered without any discrimination based on the nationality of the passenger or on the place of establishment of the carriers or ticket seller. The Regulation also provides that an effective and workable complaints mechanism is put in place.

The obligations to provide the above rights fall to every carrier, tour operator/travel agent, ticket vendor and port. It is important therefore that all personnel involved in every stage of the booking are aware of and understand these Regulations.

The Regulation applies to all passengers travelling on the following services in the following circumstances:

i)                    Ferry services where the port of embarkation is situated in the territory of a  Member State;

ii)                   Ferry services where the port of embarkation is situated outside the territory of a Member State and the port of disembarkation is situated in the territory of the Member State, provided the carrier  is established within the territory of a Member State (also known  a “union” carrier); and

iii)                 Cruise services where the port of embarkation is situated in the territory of a Member State.

The Regulation does not apply to the following:

1. ships certified to carry up to 12 passengers;
2. ships which have three operational crew or less;
3. where the passenger service is less than 500 metres, one way;
4. on sightseeing and excursion tours , other than cruises; or
5. ships not propelled by mechanical means or individual replicas of historical ships.

It is clear however that the primary beneficiaries are (1) passengers who are disabled persons or persons with reduced mobility and (2) passengers affected by delay and cancellation of services. These two categories are discussed in further detail below.

Disabled persons or persons with reduced mobility

Article 7 of the Regulation states that a disabled person or person with reduced mobility cannot be prevented from making a reservation, from having a ticket issued or refused embarkation on the grounds of their disability. They are still entitled to these services with the same conditions as those offered to other passengers and these should be provided at no additional cost.

The definition of a disabled person or a person with reduced disability is extremely wide and therefore can apply to many persons and with differing individual circumstances. Essentially though, it extends to any person who is disabled or has a reduced mobility due to any physical disability. The nature of “physical disability” could be permanent or temporary, intellectual impairment, sensory or locomotor, or a disability as a result of age.

Disabled persons or persons with reduced disability are also afforded the following rights under the Regulations;

1)      Right to assistance in ports and on board ships; and

2)      Right to information about Accessibility

In respect of  point 1), carriers and terminal operators are required to provide assistance to disabled and/or reduced mobility persons in ports (of embarkation and disembarkation) and on board ships. This assistance is to be provided free of charge.  In order that the disabled or reduced mobility person can receive such assistance in a timely manner, i.e. at the time they are embarking, they should inform the relevant assistance providers at least 48 hours before the assistance is required.

That said, passengers are not obliged to volunteer any information as regards their disabilities/reduced mobility prior to booking. Under the Regulation, at the time of booking passengers need only notify the carrier/tour operator of their needs in relation to accommodation, seating and such like. Therefore the carrier or travel agent may wish to consider the insertion of a requirement for notification of the disability into the booking conditions. Additionally, although passengers are not required to volunteer any additional information this does not mean that carriers are not entitled seek/request additional information from the passenger at the time of booking. As the carrier still has the obligation to make all reasonable efforts to ensure that such assistance is provided in a way that the disabled person or person with reduced mobility is able to embark, disembark and travel on the ship, it will therefore be in their interests to ensure that as much information as possible is obtained from passengers prior to booking and embarkation. Ultimately this will then serve to avoid instances where the passenger is denied embarkation at the port due to lack of notification of a pre-existing disability or reduced mobility. From a practical perspective, as many bookings are made by telephone, the Club suggests that these issues/questions to be asked of the prospective passenger are made part of the script for telephone bookings before the booking is confirmed.

The Exceptions

As with any Regulation there are always derogations from the main principles. In this case, under Article 8 there are two exceptions which identify two circumstances whereby a carrier, tour operator or travel agent can refuse to accept a reservation or embarkation of a disabled person or person of reduced mobility. The first exception relates to a circumstance in which there  is a need to meet safety requirements as established by international, union or national law or in order to meet safety requirements established by the competent authorities. The second exception is when the design or the passenger ship or port infrastructure and terminals make it impossible to carry out the embarkation, disembarkation or carriage of the disabled/reduced mobility person in a safe and operationally feasible manner.

There are also circumstances in which the carrier, travel agent or tour operator may be within their rights to insist that a disabled person or person with reduced mobility be accompanied by another person who is capable of providing the assistance required by the disabled person or person with reduced mobility. However this requirement has to be based further to one of the Article 8 exceptions mentioned above. In other words, the accompanying person is required in order that the applicable safety law or safety requirements are met or to ensure that due to the design of the passenger ship or port infrastructure the disabled/reduced mobility passenger can still be carried in a safe and operationally feasible manner. Carriers should note that they will need a risk assessment and policy in place as evidence to show that an accompanying person is required.

If a disabled person or persons with reduced mobility are denied a reservation or issuance of a ticket on the grounds of the above mentioned exceptions, then the carrier, travel agent or tour operator is obliged to make all reasonable efforts to propose, where possible, an alternative means of transport that is operated by the carrier which may be acceptable to the passenger. From a practical perspective however, it is difficult to see what alternatives could be offered if the primary carriage was reasonably denied in the first place.

A claim for discrimination may follow if a carriage is denied to a disabled/reduced mobility person for any other reason than the exceptions set out in Article 8.

Cancellations/Delays in Departure

The second primary beneficiaries under the Regulation are those passengers affected by delay and cancellation of services.  Article 16 of the Regulation provides that in the event of a cancellation or delay in departure of a ferry or a cruise, passengers shall be informed as soon as possible and no later than 30 minutes after the scheduled time of departure. Passengers should also be advised of the new estimated departure time and estimated arrival time as soon as this information is available. Additionally, if disabled persons or persons with reduced mobility go on to miss a connecting transport service due to a cancellation or delay, reasonable efforts will have to be made by the carrier to inform those passengers concerned of the alternative connections in accessible formats. Please note this latter point does not apply to cruise passengers as their protection is set out in the EU Package Travel Directive 90/314/EEC (implemented in the UK by the Package Travel Regulations 1992).

Under Article 17 and 18, when a ferry service is over 90 minutes late in its departure, or is cancelled, passengers have the right to be rerouted (in order to reach the destination earlier) or to be reimbursed the price of the ticket paid and either not travel or else to return to the initial port of departure at the carrier’s cost. Again, this provision does not apply to cruises as it is covered by the EU Directive 90/314/EEC. Additionally, it will not apply in the case of weather delays or other conditions which are outside the carrier’s control, such as natural disasters including fires and earthquakes, terrorist attacks, and wars and military or civil armed conflicts to name but a few conditions.  During the cancellation/delay periods, passengers must also be offered snacks, meals or refreshments free of charge in proportion to the delay suffered wherever possible.

In the event that the delay/cancellation is significant enough to necessitate a stay of one or more nights, the carrier shall offer passengers adequate accommodation on board or shore-side, transport to and from the port terminal and place of accommodation and snacks, meals or refreshments. The shore-side accommodation must be free charge but is limited to EUR 80 per night for a maximum of 3 nights. Additionally, particular attention is to be paid to the needs of the disabled/reduced mobility persons and accompanying persons in arranging and transporting the persons to the shore-side accommodation. Any limitation of liability in this respect must be included in the booking conditions and conditions of carriage.

Article 19 sets out the levels of compensation given in the above cancellation/delay scenarios. Passengers will be entitled to compensation of 25% of their ticket price in the event of the following delays;

• One hour delay in a four hour journey
• Two hour delay in a 4-8 hour journey
• Three hour delay in a 8-24 hour journey,  or
• Six hour delay in a journey exceeding 24 hours

If the delay exceeds a period of twice the minimum times set out above, the passengers shall be entitled to a refund of 50% of the ticket price.

Conclusion

These rules will become effective in December 2012. In order to ensure that cruise and ferry operators and port terminal operators, where applicable, are compliant with the Regulation, the clear message seems to be that a thorough risk assessment must be undertaken and, where appropriate, relevant and adequate safety policies should be put in place. Another key requirement for effective implementation will be the adequate training of employees to ensure that all relevant staff maintain a thorough understanding of the Regulation and its policies. Such training should extend from the writers of the booking conditions and conditions of carriage to the persons dealing with bookings, the tour operator, the port terminal operators, the cruise and ferry operators and the shipboard crew. Ultimately the aim of this Regulation is to acknowledge and prevent the maritime and inland waterway passenger from being the weaker party to the transport contract. Like all other passengers (e.g. air/rail), those travelling on water need to be provided with a certain level of safety and security. The Regulation specifies the minimum standard of protection required and it will be for individual carriers to decide whether they wish to offer passengers better contract terms and conditions than those provided for in the Regulation.