On 20th February 2020, Travlaw’s 2019 N-Cov (Coronavirus) Symposium took place in London.
Following weeks of questions, queries and unknowns regarding, let’s face it, unprecedented territory within the travel sector, Travlaw came together with industry specialists to address the tough questions surrounding the legal implications of coronavirus and set about finding answers.
Within this article, written by Travlaw’s Krystene Bousfield, we reflect on the main issues and concerns raised by the industry and discuss how best we can work together to address these issues moving forward.
The seminar commenced with an introductory panel session, during which industry specialists from various sectors discussed how the recent outbreak of coronavirus is affecting their specific model:
Mike Ellis – Group General Counsel at Abercrombie & Kent
“Undoubtedly our brands in Asia have been heavily affected. The virus and its unforeseen impact has come out of the blue and is something that we could not have prepared for. We have DMCs on the ground in Asia and our cruise specific business is avoiding Asia in its entirety.
As a Tour Operator, it is clear that American customers specifically are getting nervous about travel, and that is something we do not like to see. The last thing we want is for Americans to stop flying, however people are very concerned about being ‘locked in a tin can’ with this virus in circulation, be that on a plane or a cruise ship.
European customers seem to be much more resilient and instead of asking to cancel or delay their travel arrangements are simply asking ‘where can we go instead’. We are lucky to have that.
We must remember that the economy is still doing well; people still want to go on holiday, just not to Asia. Both South and Central America, as well as Africa, are pretty much virus free. The recovery figures regarding those that have contracted the virus continue to grow daily, and we must not overlook that”
Julie Jones, Development Director, ABTOT:
“Our members have approached us with various questions and queries regarding their obligations in light of the virus outbreak. Specifically, members want to know whether, if they suspect someone is infected with the virus, do they have the right to tell them that they cannot partake in the trip? Furthermore, what if a Tour Leader becomes suspicious once a trip has commenced, that someone participating has contracted the virus? We are advising members to point any such customers towards their medical insurance provider in the first instance but it does seem to us that there is very much a sense of panic, which is unhelpful and most definitely not helped by the media”.
Clive Wrattan, Chief Executive, BTA:
“Business Travel has seen a slow down, but not a stop, in business travel to China. Many employers are allowing their employees to self-assess the risk and allowing them to refuse travelling to China should they so wish. Again, there has been a hit in the number of business travellers to Hong Kong, but not a complete stop. We must remember that 98% of those who have contracted the virus are recovering, with only 2% of cases proving fatal. The fatality rate from common influenza is much higher.
It is important, and wise, to simply give employees the facts and let them make their own decision as to whether or not to travel. There are always alternatives, including video-conferencing and Skype meetings. An individual should not be penalised by their employer should they choose not to travel”.
The seminar then moved on to discussing more specific topics, including what happens if a tour operator is unable to provide the promised holiday in light of current FCO advice and if a customer chooses not to travel because of personal concerns regarding the virus.
From a legal perspective, have we seen a situation like this before?
Yes, although on a lesser scale. You will recall the SARS outbreak in 2003 – that epidemic affected 26 countries and resulted in approximately 8000 confirmed cases. We know, of course, that as at today’s rate, the number of confirmed coronavirus cases is more than double that number, and continuing to grow.
What is the purpose of the FCO and their advice?
The FCO (the Foreign & Commonwealth Office) is solely concerned with the protection and safety of UK Nationals overseas. They won’t base any of their decisions or advice on money, or the industry, but rather solely the interests of UK nationals whilst abroad.
What if a customer wants to cancel before the start of their package holiday, because of FCO advice and because they are worried about the virus?
A customer can of course choose to cancel their trip at any time, however termination charges (as per your T&Cs) will apply.
If, however, an organiser is ‘constrained’ from providing the package as promised, the Package Travel Regulations (both the 1992 Regs, and the more recent 2018 Regs) state that the organiser must then offer alternatives or a refund.
So, what does ‘constrained’ actually mean?
An organiser is not ‘constrained’ from providing a package if there is a ‘flicker of hope’ that the travel arrangements as sold can still go ahead. However, if and when it becomes obvious that the promised holiday cannot go ahead, then either alternative arrangements or a refund should be offered.
In practice, the travel industry has used a ’21-day rolling period’ to decide whether or not a holiday can go ahead. So, for example, if today is 24th February 2020, and I am due to travel to Beijing on 29th February 2020, then I am within that 21 day rolling period and it is reasonable to say that my holiday will not go ahead as planned. If, however, I am not due to travel until 29th April 2020, it would be acceptable for my package provider to say that there is a realistic chance I will be able to travel as planned and therefore I am not entitled to a refund or an alternative holiday offer at this time.
The 21 day rolling period needs to be assessed on an individual and case-by-case basis. Is it realistic to say to your consumer that there is a real possibility that their booked arrangements will go ahead as planned?
Further specific questions raised by those in attendance included addressing the risk of customers partaking in trips when perhaps they had been to Mainland China, or other notable destinations within the last 14 days.
How much authority does a Tour Operator have to say to passengers, who they suspect or know to have travelled to China in the last 14 days – ‘no, you cannot come on this trip’?
This is an interesting topic and needs to be approached with caution. It is most definitely not for Tour Operators to say ‘because you have a Chinese passport, or because you may have been to China in the past 14 days you cannot travel’ however it is for Tour Operators to risk assess any situation where there are concerns and address the facts on an individual basis.
For example, if you are arranging a tour where numerous people will be living in close proximity for several weeks, and you believe that some of those people may have travelled to Mainland China in the past 14 days, ask them. Many companies are sending out generic letters to all customers in such a scenario simply asking that they confirm this information. If a customer responds ‘yes’, you can then risk assess the trip as a whole and work with the individual customer to come to an amicable conclusion. Would they accept a full refund and not travel? Would they accept an alternative trip, or perhaps delay the same trip for 14 days so that they are out of the standard quarantine period? It is of course good for both PR and customer relations to work in such a way – rather than taking a somewhat less attractive and heavy handed approach. Provided you have risk assessed the situation as a whole, and acted in the interests of your customers, it is unlikely that any decision will result in legal action.
Additionally, many operators have within their T&Cs a clause stating that ‘if a customer impedes the enjoyment or safety of others, they can be asked to leave the trip or not partake in same’. If you do not have such a term already included, this is definitely something worth considering.
In attendance were several representatives from the cruise line industry who have, arguably, been hardest hit by the virus and its affects.
What if, because of the virus and ports being subsequently closed, my passengers have to embark or disembark at a different port?
The question here, is whether such a change would amount to being ‘significant’. But what does that mean?
The answer will undoubtedly turn on the individual facts of each case as what is ‘significant’ will vary for each customer. Put yourself in that customers’s position, is it reasonable to accept the change, or is it significant when questioning the overall impact on the itinerary?
If the change is significant, you have obligation to provide a suitable alternative, at no extra cost to the customer.
It cannot be denied that there is a definite feeling of uncertainty and confusion within the industry regarding what individuals’ obligations are and how they are required to act in the circumstances. The seminar was a great forum to people to raise their questions and queries, in a comfortable and safe environment, where no question was off the table and everyone was able to benefit from the comments and suggestions made by others. Indeed, it was clear that the questions raised applied to many in the room and those in attendance where able to discuss their own experiences with each other, gaining knowledge and confidence in the process.
As has been said for a number of weeks now, coronavirus has taken the industry into a world of known-unknowns, and it is essential for us to work together, as an industry, sharing both information and experience, to ensure that we come out of it both stronger and more knowledgeable than ever.
Should you have any questions in light of the topics discussed, or if there is a query specific to your business on which you require advice, please do not hesitate to get in touch.