THE COPYRIGHT IN THIS MATERIAL IS OWNED BY CAROLINE FANNING SOLICITOR

29/3/2024

High Court of Ireland Admiralty Justice Denis McDonald delivered his judgment on 26/03/2024 in the above cases involving a collision between a 37-metre long Kirrixhi fishing trawler and  a large merchant ship chartered by Hua Sheng Hai Ltd. carrying 44,000 tonne cargo of bauxite to Aughinish Alumina in Limerick on 11/10/2019 off the Kerry coast at hearing in Feb/Mar 2023

The vessel owners sued each other for damages alleging negligence against each other.

The learned Trial Judge found the 2007 English common law case of  The Forest Pioneer (Steel J.) of very persuasive authority having a similar factual matrix and the High Court was able to interpret and apply this case without the assistance of “foreign law” experts and ruled Hua Sheng Hai 15% liable and the fishing trawler Kirrixhi captained by Antelo Malabe 85% liable  (noting same % as in The Forest Pioneer) with the issue of quantum and costs to be adjudicated on at a later date.

One interesting aspect of this case is Order 64, r.36(1) RSC ~ the parties to collision actions of this type are required to deliver “preliminary acts” – contain certain prescribed factual particulars relevant to the collision – within 7 days after the commencement of the action (in the case of a plaintiff) or 7 days from entry of appearance (in the case of a defendant).

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151. There is one further aspect of the evidence which I should identify for completeness. In his closing submissions, counsel for the Hua Sheng Hai sought to rely on the content of the preliminary act of the Kirrixki to suggest that the Hua Sheng Hai had been seen by the Kirrixki five minutes before the collision. That was not something that had been put by him to Captain Antelo Malabe in the course of cross-examination but counsel submitted that he was not obliged to do so.
152. Before considering that submission, it is necessary to explain the purpose and effect of a preliminary act. Under O. 64, r.36(1), the parties to collision actions of this type are required to deliver preliminary acts within 7 days after the commencement of the action (in the case of a plaintiff) or 7 days from entry of appearance (in the case of a defendant). The preliminary acts must contain certain prescribed factual particulars relevant to the collision. These must be delivered in advance of any pleadings and are required to be sealed up and to remain so until ordered to be opened by the trial judge. The parties are accordingly required to provide details of certain key circumstances relating to the collision before they know the detail of the case made by the other shipowner.
153. In practice, the preliminary acts are kept in sealed envelopes in a locked safe in the office of the Admiralty Marshal until they are given to the trial judge. Under the Civil Procedure Rules, they are no longer required to be filed in England & Wales and, for that reason, they are not considered in any detail in the current edition of Marsden & Gault. However, older editions of Marsden provide helpful guidance as to their function and purpose. Thus, in Marsden on Collisions at Sea (12^th Ed, 1998, at para. 18-85), the authors explain that the answers given in the preliminary act have the status of formal admissions by the party filing the preliminary act. On that basis, counsel for the Hua Sheng Hai is legally correct that he was not under an obligation, as a cross-examiner, to put an admitted fact to the skipper of the Kirrixki. In the same paragraph, the authors suggest, citing The Semiramis [1952] 2 Lloyd’s Rep. 86, that the court may hold a party to the admissions made. But the authors also make clear that, as was held in The Geo. McKnight (1947) 80 Lloyd’s Rep. 419, the court is entitled to proceed on the evidence which it deems to be the most accurate and trustworthy. The court is therefore not bound by the admissions made by a party in its preliminary act.
154. In this case, counsel for the Hua Sheng Hai sought to rely on two paragraphs of the Kirrixxki’s preliminary act namely paras. (g) and (j). In para. (g), the Kirrixki was required to state its course and speed when the Hua Sheng Hai was first seen. The answer given was 326° and 7/8 knots. In para. (j), the Kirrixki was required to state when the lights (if any) of the Hua Sheng Hai were first seen. In response, the following answer was given at para. (j) : “The aft spotlights (not the navigation lights) were the first lights the Master saw once passed by the ‘HUA SHENG HAI'” (emphasis added). Counsel for the Hua Sheng Hai argued that, when these answers are read with the AIS records of the Kirrixki’s speed over the ground, it is clear that the Hua Sheng Hai was seen 5 minutes before the collision (which would have been sufficient time for the Kirrixki to take evasive action. For this purpose, he identified that, at 23:45:09, the speed over the ground was recorded at 7.7 knots and the heading was recorded as 327° and that, between then and 23:49:08, the speed over the ground frequently varied between 8 and 9 knots and the heading was frequently 326° or very close to it. While he could not pinpoint an exact time when the trawler’s heading was precisely 326° and the speed was between 7 and 8 knots, he submitted that the coincidence of heading and speed recorded in the preliminary act was likely to have occurred at some point within that timeframe. I have to say that I am not at all sure that this follows from the material before the court. More importantly, I do not believe that the preliminary act can properly be interpreted as suggesting that the Hua Sheng Hai was seen during this period. In my view, the answers must be read as a whole. In the first place, para. (j) identifies that it was the aft lights of the Hua Sheng Hai which were first seen and then only when “once passed by the Hua Sheng Hai”. That plainly suggests that the Hua Sheng Hai was not seen until after the collision. This conclusion is reinforced by the clear terms of para. (k) in answer to the requirement in O. 64, r. 36(1)(l) [9] to state whether any lights of the other vessel, other than those first seen, came into view before the collision. The answer given is that no lights of the Hua Sheng Hai were seen. Taking paras. (j) and (k) together, it is clear that the case made in the preliminary act is that no lights were seen until after the collision. For that reason, it seems to me that the answer at para. (g) must be read as suggesting that the speed and heading stated were those at the time of the collision. In so far as the speed of the Kirrrixki is concerned, that is consistent with the evidence of Captain Antelo Malabe in para. 58 above that the trawler increased speed to “7 to 8, 6 to knots” after the trawl doors have been lowered into the water. As noted, in para. 62 above, that is the activity which the skipper says was underway at the moment of the collision. While the AIS data shows that the speed of the trawler was higher at the time of the collision, the answer given in para. (g) of the preliminary act, when read against the other answers given, is not inconsistent with the case made at trial. Thus, although counsel for the Hua Sheng Hai was legally correct in his submission that he was not required to cross-examine the skipper about the admissions made in the preliminary act, I am of the view that, if he wished to rely on the Hua Sheng Hai’s interpretation of para. (g), he should have put that interpretation to Captain Antelo Malabe so that the latter would have an opportunity to respond to the suggestion that the Hua Sheng Hai had been seen in the five minute period before the collision. In any event, it seems to me that the terms of the preliminary act (considered as a whole) do not support the submission made by counsel for the Hua Sheng Hai. However, the preliminary act may be of some relevance in assessing the credibility of Captain Antelo Malabe’s evidence given that he now says that he saw the Hua Sheng Hai at about seven miles.”

Kimberly Wiegand testified in her video deposition obtained exclusively by DailyMail.com (https://www.dailymail.co.uk/news/article-9270467/Mother-Chloe-Wiegand-describes-breaking-video-deposition.html) that her

“sense of time was really messed up” in the immediate aftermath. The evidence of former Chief Security Office Elton Koopman formed part of the Wiegand case on appeal who “testified that Royal Caribbean knew about the risk of children falling through open windows and adults holding children in front of open windows.” ref https://www.cruiselawnews.com/2023/07/articles/passenger-rights/court-of-appeal-sends-wrongful-death-case-of-toddler-who-was-dropped-from-a-window-on-royal-caribbeans-freedom-of-the-seas-back-to-trial-court/

England and Wales Court of Appeal Lord Justice Ward has stated that

“Perhaps the most acute form of distress is that which is suffered by a parent who has lost a child.”

Caroline Fanning Solicitors sends the Wiegands every fortitude and support and will be following the progress of this case and will post updates that we become aware of.

Holden v. First Choice Holidays (at para. 9 et seq.):

“… Standards of maintenance and cleanliness vary as between countries and continents and indeed what is reasonably to be expected in a five star hotel in a Western European capital differs from what is reasonably to be expected in a safari lodge, however well-appointed.  There may perhaps be certain irreducible standards in relation to life-threatening risks……  An Englishman does not travel abroad in a cocoon”

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Jurisdiction of Irish Courts in Consumer Contracts

Casey v Redspokes LTD trading as Redspokes Adventure Tours (Approved) [2023] IEHC 297 (12 June 2023)

The proceedings take the form of a personal injuries action arising out of an accident in Sri Lanka which is alleged to have occurred while the plaintiff was participating in a cycling holiday organised by the defendant (a company domiciled in the United Kingdom).  The only circumstance which might, potentially, confer jurisdiction upon the Irish Courts is the fact that the plaintiff herself is domiciled in the Irish State.

Court held “It is a question of degree as to whether a trader is directing their commercial activities to a particular Member State.  It is not necessary for a trader to refuse ever to enter into contractual relations with a person in a particular State before it can be said that they are not directing their commercial activities to that State.  However, where a trader, as in the present case, is not only on express notice of the fact that the consumer is resident in and acting from the Irish State, but also took steps to facilitate the consumer travelling from Ireland to join the group cycling holiday, i.e. by arranging land transport from the airport in Sri Lanka, this constitutes evidence of intention.  Finally, the contact telephone number and top-level internet domain name are largely neutral factors in the present case.  Whereas the contact telephone number on the website does include the international dialling code, the domain name is a national one: “.co.uk”.  These two indicia tend to cancel each other out.  It seems from the material exhibited that communications between prospective consumers and the defendant take place mainly by email correspondence, rather than telephone.  The use of a national domain name is probably of less practical significance nowadays than it was when Pammer was decided in 2010 given that most consumers are likely to land on a website by way of an internet search rather than by typing in the domain name. The Irish Courts have jurisdiction, pursuant to Section 4 of Regulation (EU) No 1215/2012, to entertain the plaintiff’s claim for breach of a consumer contract.  In particular, the contract meets the criteria specified at Article 17(1)(c).  It follows, therefore, that the defendant’s motion to dismiss the proceedings must be refused. ”

Crime wave: Gang rape among hidden cruise horrors – NZ Herald

The company should have been well aware, as it had previously reported multiple sex assaults on its ships, as explained by Chief Judge ED CARNES: “Publicly available data reinforces the allegations in the complaint that Royal Caribbean knew or should have known about the danger of sexual assault aboard its cruise ships …

“(It) would be absurd to suggest that a multibillion-dollar business like Royal Caribbean was not aware of congressional reports about the problem of sexual assaults aboard its cruise ships.”

https://www.nzherald.co.nz/travel/crime-wave-gang-rape-among-hidden-cruise-horrors/BFJCU65GGC454LAXN7CNL6O6HU/

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McDonald v. AZ Sint Elisabeth Hospital [2014] IEHC 88, [2014] 1 I.R. 311.  The contractual claim, again, arose out of a medical procedure carried out in Belgium.  The High Court (Hogan J.) held that the Irish Courts had jurisdiction to entertain proceedings against the hospital and that the web-based promotional material (written in English and not in Flemish/French) had been clearly directed at both the UK and Ireland.  The promotional material had indicated consultation address in Dublin at a named medical centre and prospective customers had also been supplied with an Irish telephone number.  The promotional material also contained a testimonial from an Irish-based patient and reference was made to the possibility of pre-travel consultations in Dublin and Cork.  The prices for the initial consultation had been offered in both £ and $.

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Cristiano Committeri v Club Méditerranée SA (T/A Club Med Business) [2018] EWCA Civ 1889 held REGULATION (EC) No 593/2008 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 June 2008 on the law applicable to contractual obligations (“Rome I” -stated to have universal application in Art 2) applied as a matter of autonomous EU law to consumer package holidays. ROME I applies the law of the country where consumer lives when he books package holiday with a company that “pursues his commercial or professional activities in the country where the consumer has his habitual residence“.

Leading Irish case: Supreme Court in SCAIFE v. Falcon Leisure Group (Overseas) Limited [2008] 2 IR 359 (3 Judges) where female plaintiff slipped on liquid food substance on the hard marble floor measuring about 30 inches in diameter which, from its description, could properly be found by him to be a soup or a sauce which had fallen on the floor. She won in the High Court and the appeal by the defendant to the Supreme Court was unsuccessful with the Supreme Court stating
“The learned trial judge had before him evidence that the accident was a wholly foreseeable event on the part of the service supplier, the hotel in Spain, that they had in place a system which could have warned of the hazard and/or prevented the accident, but had not operated that system on the evening in question. In the circumstances, the learned High Court judge was entitled to find that the service in question was not supplied with reasonable skill and care. He was therefore correct to find for the Plaintiff. I would dismiss the appeal and affirm the order of the High Court.”
“The duty of care in tort arises from the proximity created by the contractual relationship. The duty extends to all matters concerning the safety, well being and comfort of the tourists which by the nature of the relationship between the tourists and those providing the service would or should be known to the latter but not to the former. … The defendants in this case were not insurers that nothing would happen to injure the plaintiff. Their obligation stops at taking all reasonable steps to ensure the safety and well being of their customers. … The test is what a reasonably prudent tour operator exercising reasonable care would consider necessary to inform those travelling with it.”

2. Winterthur Swiss Insurance Co v ICI 1990 ILRM P159

3. McMullen v. Ireland [ECHR 422 97/98. 29 July, 2004] – delays

4. Sheridan -v- Kelly & anor Supreme Court decision dated 06/04/2006 [2006] IESC 26
5. Kelly v. Cruise Catering Limited and Kloster Cruise Limited [1994] IESC 3; [1994] 2 ILRM 394 (5th July, 1994) Supreme Court “While it had been contended (by cruiseline) in the High Court that the action was based on tort rather than on contract, Geoghegan J’ s finding against the defendants on this issue was not appealed (by cruiseline).”
6. 2001 English Court of Appeal”cruise ship~large floating commercial enterprise where senior official onboard representing commercial interests of cruise operator=“purser”(hotel manager)who had authority to offer refund to passenger when his cabin refilled after guest left
7. “Regardless of contractual status ascribed to the doctor, for purposes of fulfilling the cruiseline’s duty to exercise reasonable care under #maritimelaw the ship’s doctor is an agent of the cruiseline whose negligence should be imputed to the cruise line.”Ref Carlisle v Carnival (Florida Supreme Court overturned this decision ///U.S. Supreme Court no ruling)
8. Lum v Carnival “Mr. Lum died of retching to death,”Peterson~family’s lawyer. Curtis Mase lawyer~Carnival said in court papers that company was not responsible, contending the death was act of God &Russell Lum’s own negligence contributed to his death and injuries.”
9. Nietes v. American President Lines, Ltd., 188 F.Supp. 219 (http://N.D.Cal .1959) ~the cruise line was held vicariously liable for the negligence of the ship’s doctor who was a member of the crew.
10. In this case the parents of Elizabeth Carlisle, a 14-year-old from Michigan, said she sustained lifelong health problems (including infertility) because a ship’s doctor failed for three days to recognize that her appendix had ruptured.
Cruiseline carrier under no duty to practice medicine but when it undertakes treatment of illness through medical services provided by it aboard ship it assumes duty to treat carefully &vicariously liable for medical malpractice of its doctor ref Carlisle v Carnival
11. Maritime Law embraces the principles of agency (including apparent agency) ref:Cactus Pipe & Supply Co. Inc v V. M/V Montmartre
12. 2016 English Court of Appeal(3 Judges)held failure of cruiseliners to properly implement Hygiene Plan led to passengers winning their claim for contracting Norovirus~Athens Conventions (established fault on part of cruiseline)ref:Swift&OrsvFOCL
http://www.bailii.org/ew/cases/EWCA/Civ/2016/785.html
13. Ship’s Master ignore a weather forecast of such cataclysmic magnitude and sail into that kind of storm
https://www.businesswire.com/news/home/20160212005822/en/Royal-Caribbean-Cruise-Ship-Allegedly-Ignores-Weather
14. UK Claim won based on s.4 Supply of Goods&Services Act~contract for package holiday contains implied condition~food of satisfactory quality=>irrelevant no breach of local standards(as food contaminated¬ of satisfactory quality) ref: Antcliffe v Thomas Cook Tour Operator
15. Athens 2002 applies by operation of law if Art 2 criteria met&provision in contract seeking to impose lower limits of Athens 1974 will be invalid&passenger entitled to higher limits of Athens 2002 (Art 18).Legal costs&interest on damages additional to limits(Art 10)
16. Unfair terms in Cruise Contracts ref: Ferme & Ors v Kimberley Discovery Cruises Pty Ltd. ~clause permitting cruise company to cancel scheduled cruise&forfeit all fare paid was an ‘unfair term’ under the Australian Consumer Law&consequently void&unenforceable.

17. 2019 Kellett v RCL Cruises Ltd. & ors – Cruiseline took over defence on behalf of travel agent/operator and defeated the plaintiffs’ claim for damages for personal injuries using legalistic pleadings failing to give any expert or factual evidence on the liability aspects (only witness was medical expert in relation to the plaintiff’s injuries). High Court Judge Barr held that where a consumer participated in an “adrenaline” White Knuckle Jet Boat Thrill Ride on St. Maartens(involving 360 degree turns at speed) on the open seas they could not blame anyone where they fractured their elbow on this excursion which was deemed to be part and parcel of the “adrenaline” nature of the excursion. The Judge held the boat to be “in good seaworthy condition and was safe for the activities which were proposed for the excursion” from looking at a photo of boats on the website.

The EU package travel legislation currently in force (Directive 2015/2302 – the PTD) replaced rules from 1990 (Council Directive 90/314/EEC) and adapted the scope of travellers’ protection to market and technological developments. It covers not only traditional package holidays but also other
forms of combined travel such as self-customised packages, where the traveller chooses different elements from a single point of sale, online or offline.

“The PTD has two overarching objectives: to ensure that travellers in the EU have a high and uniform level of protection, and to support the proper functioning of the internal market.” ref https://www.europarl.europa.eu/RegData/etudes/BRIE/2024/757785/EPRS_BRI(2024)757785_EN.pdf

The Supreme Court of Ireland (Macken J. -who served as CJEU Justice)  stated in Scaife -v- Falcon Leisure Group [2007] IESC 57 (04 Dec 2007) :

“Section 20(1) of the Act of 1995 [sic PACKAGE HOLIDAYS AND TRAVEL TRADE ACT, 1995] expressly makes the organiser primarily liable to the consumer, and maintains a right of action over in favour of the organiser against the service supplier, in the present case a supplier with whom the appellant entered into arrangements for the provision to the respondent of hotel accommodation in Spain on a half board basis. What requires to be determined is what is meant by “improper performance” of an obligation, and the consequent extent or scope of the liability of the appellant, as organiser, to the respondent, as consumer. ”

The England and Wales Court of Appeal has stated that the defendant (a commercial party in the business of supplying packaged holidays) – typically an insured/well funded litigant – can chose to resist the plaintiff’s claim on its merits and save itself the trouble and expense of joining the third party and avoid the costs risk, where the defendant travel agent who in its own commercial interests chooses to join the supplier of services as a third party,  of being liable for the supplier of services/third party costs.

JULIA LINDSEY WHITCOMB went public in or about May 2020 as a crewmember who wanted to get off a Celebrity cruiseship (owned by Royal Caribbean) and return home after some two months stuck at sea. In her livestream she stated she felt scared and stigmatised when her employer Royal Caribbean Cruises tried to persuade her she needed psychiatric assessment in order to to get her off the ship and ìn her opinion avoid compliance with the CDC guidelines. I say this crewmember was soon thereafter allowed off the ship and travelled home to Illinois by bus.

“You are anxious, are you ok? I said, eh I’m not really doing ok, em I’m anxious. Well why are you anxious? I said well I’m anxious for most reasons and I’m not that comfortable talking about it, but I’m kind of fearful of this process so far, em I don’t know who to believe at this point and it makes me fearful and I want to leave. Em, ok, and she asked me from the hall, she goes well do you want to kill yourself? And I said, not right now! And she goes, well do you want to harm anybody else? And I said no. She goes ok, well I just want to give you the opportunity for something that we are planning, that we want to give you the option to do.

Em, if you feel that you want to be psychiatrically tested, we are willing to take you to a hospital, a hospital in Fort Lauderdale and leave me there for two weeks. They said, they said you can go to this hospital and get psychiatric tests, testing. Em, and then from that point on, they can eh, they’ll do whatever they want with you, I guess. I think that maybe they’ll find a place to quarantine you or something. Em we just want to give you the company, we want to give that you as an option.

And I was like, you already planning on leaving, you already told me I was leaving. So I said, no I think, I think I want to…I think there may be something in Harmony and I rather go home. Em, well are you sure, because are you sure that you can heal at home? Are you sure you have the resources to heal at home? And I said yeah. And she offered me this deal two more times, to get psychiatrically tested, to send me to a hospital, to leave me in a hospital for two weeks, to get away from…this was a way to accommodate me in a sort of way and getting me off the ship and for them to not have to sign this thing that the CBC is a requirement that they signed.

So they tried to wave all of that, at least that’s my impression of what happened. Maybe I’m crazy. But perception if reality and it was minute and it was two hours after we were stated to leave. So it was very sceptical, it was very sketchy, it was very scary, I felt stigmatised as a black woman, I felt very stigmatised, that they just wanted to get rid of me and dispose of me by putting me in a hospital. So that they didn’t have to sign a document, so that they could leave me and I was out of their hair. And it’s very disturbing. I have had a really tough time with this company now. And especially given that incident. I just feel really eager to get off this ship. And I don’t feel comfortable talking to anybody onboard anymore.

So I just really wanted to share that very specific incident, because I found it very disturbing, I found it hurtful, I found it scary. My boyfriend was present too and he echoes all of that. And I think that they are going to whatever they want at this point with me. So therefore that’s why I have been so loud and so vocal online.

So anyway thanks again for helping me through this whole process, I’m pushing, I’m trying, I’ll communicate with you guys the best that I can, it’s been…I have gotten so many messages and it’s so hard to answer all of them. I’m going to try though. But in the meantime, I’ll just keep you updated, about every single thing that happens, especially when it feels icky. Ok, alright, that’s all thank you.

End. “

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Package Holidays and Travel Trade Bill, 1995: Second Stage. – Dáil Éireann (27th Dáil) – Tuesday, 28 Mar 1995 – Houses of the Oireachtas

Seamus Brennan (1948 – 2008 Irish Fianna Fáil politician in opposition in 1995)
I thank the Minister of State for his comprehensive speech and his detailed introduction of the Bill. It is very useful in our discussion of the Bill to have such a detailed introduction and a tracing of the history of the Bill. Also, on behalf of my colleague, Deputy Cowen, I thank the Minister of State for his kind comments in that regard.
The Bill gives effect to a European Union directive on package holidays, package travel and package tours. Indeed, I may have been involved directly in that negotiation at Brussels level during my time as Minister for Tourism. The purpose of the directive is to harmonise aspects of national provisions relating to package travel in the EU. I accept the Bill is designed to improve protection for the consumer. It sets out the information that has to be included in any brochure, lays out the liabilities of tour operators and travel agents and adds to the body of legislation already in existence in this regard.
A package is defined in section 2 as a combination of at least two of the following components, pre-arranged by the organiser when sold or offered for sale at an inclusive price and when the service covers a period of more than 24 hours or includes overnight accommodation; transport, accommodation, other tourist services not ancillary to transport or accommodation accounting for a significant proportion of the package. The Bill sets out the information to be provided to an intending consumer. It lays down the ground rules for regulating the travel contract and deals with the security to be provided by the package provider in the event of insolvency. Some regulation has existed in these areas and the Minister proposes to add to them.
Fianna Fáil will not oppose the Bill on Second Stage because of the reasons I outlined. On Committee Stage, however, the party will propose a number of amendments designed to strengthen and perhaps clarify aspects of the Bill. The number of amendments will depend largely on how Second Stage develops and the Minister’s response to points made by Deputies on this side of the House.
Fianna Fáil believes the Minister should allow three months after enactment of the Bill before it comes into force. This short period will allow the travel trade to achieve compliance with the provisions. It should be remembered that most travel agents at this stage of the year are committed to the 1995 season, and to give them a period of three months from the date of enactment of the Bill would not be unreasonable given the resources, particularly, of small travel agents. The Minister said there are 320 bonded travel agents operating in the State. My assessment is that two-thirds of those have a staff of no more than two or three people. We are talking by and large about small town travel agents and I ask the Minister to consider the three month period before bringing the Bill into effect.
I also ask the Minister to consider amending the definition of “package”, to which he referred at length, so that there is no doubt that business travel is excluded from the provisions. That is not stated unequivocally in the Bill. The Minister suggested that by regulation the definitions might be tightened up, but it would be more sensible if the Bill made it clear that ordinary day-to-day business travel is excluded. I appreciate the Minister’s advice that may be it is not easy to do that in drafting form, but perhaps he will consider this matter with a view to inserting a clause to make clearer the areas that are excluded from the package. I do not wish to refer to specific sections at this stage but I will do so on Committee Stage.
The directive on which this Bill is based was not intended to apply in circumstances where two entities of equal bargaining power — for example, a firm and a travel agent — come together to conclude what is essentially a purely commercial contract. There is no need for the State to interfere in such a contract between two companies with equal bargaining strength. They are well able to look after themselves in that regard and for that reason the business to business type of travel should not be included in the Bill.
The legislation should not apply to brochures already in circulation. A substantial number of brochures have been printed and are at present in circulation, and it is not clear whether they will be included. I do not believe the Minister wishes to include them but clarity in this regard is important. There should be no retrospection and it is not clear from the Bill that retrospection is not intended. The meaning could be taken that the Bill will apply to brochures printed perhaps three, four or six months ago. That would be retrospective legislation and, as a principle, such legislation has never been accepted by the House. I do not believe that is envisaged by the Minister, but it is not clear from the legislation whether that is so.
If that is the intention tour operators would have to reprint existing summer brochures and those in the process of being printed for the winter of 1995. I know it is not the Minister’s intention to disrupt the travel trade at this sensitive time of the year but to put in place additional consumer protection, which I support. I ask him to consider aspects of the Bill from the point of view of it suddenly coming into force and applying to existing brochures. The consequences of that to the trade would be incalculable. Travel agents would have to throw away thousands of brochures, thereby increasing the cost of package holidays to the consumer.
Travel agents should not be liable to compensate consumers for damage caused by misleading brochures. No doubt the Minister has received representations from travel agents on this point. He should ensure he has top class legal advice on the issue. I do not know whether his office consulted the Attorney General’s office on this point, perhaps he will refer to that matter when concluding Second Stage. Is the Minister asking small travel agents who employ two or three people in towns such as Maynooth to be in a position financially to compensate a consumer in circumstances where a 200 page brochure from a multinational tour operator states on page 96 that the apartment shall be 20 feet by 18 feet but instead it is 15 feet by 16 feet?
It is not acceptable that the consumer should claim against a small travel agent in rural areas on foot of a misleading brochure. I ask the Minister to consider between now and Committee Stage whether it is intended that a high street rural travel agent should be totally responsible for every sentence in a holiday brochure produced by a multinational firm. Arguably the Minister could close down a large number of the 320 travel agents. As I stated, of that number, about two-thirds employ only two or three people. How can they be responsible for every line of every brochure, without the resources to check the details? I accept that where a travel agent has the ability to recognise misleading information in a brochure, he should be liable if he does not deal with it. Will the Minister examine again the right to compensation? There is already a right to compensation from the organiser and I would like the Minister to consider again whether there is a need for the additional protection of compensation from the retailer and small travel agent.
The legislation makes it an offence for a travel agent to supply a brochure knowing or having reasonable cause to believe it is not accurate. It is also an offence if a travel agent does not provide the consumer or intending consumer with proper information. It seems, therefore, that there is no real need to make the small travel agent liable for damage caused by misleading information. The consumer already has the right to sue the tour operator in such instances and he may not get additional comfort from being able to sue the two or three persons travel agency. If travel agents are to be liable, it will seriously impinge on the small operators who will be liable for brochures over which they have no control. This is the key and an area where we need legal advice.
Travel agents have no control over what is in the brochure although they promote the holidays in them. How does a person with a small travel agency check out the accuracy of a brochure? For example, if an agent in Maynooth gives out a brochure about an apartment in Athens, I do not see how he can check out and be held responsible, to the extent of having to compensate the individual, for some inadequacy in the apartment in Athens. Will he have to get on a plane and check it out? A two person travel agency could not do that. Is he or she to accept the assurances of the brochure producer? If the producer of the brochure gives assurances on which the travel agent could normally depend, perhaps that would be a better route for the Minister to take. We must consider whether we can blindly make small travel agents responsible for brochures over which they have no control and which they have no way of checking. It will be impossible for them to check every item in every brochure. Small travel agents are now being made responsible for something that passes through their hands. Perhaps large travel agencies are a different matter but I doubt if smaller ones can handle this.
We have to make sure the legislation is realistic and workable. In theory, one should be able to sue the small travel agent if line 64 of the brochure is inaccurate; in practice, it would be very difficult, if not totally unrealistic. A tour operator or travel agent should not have to provide the form of the contract in writing before the contract is made in cases where an intending consumer makes a proposal 14 days before the date of departure. In my view, the period of seven days referred to in the Bill does not allow the organiser sufficient time to comply with section 15 (1) (a). Will the Minister extend that period from seven days to 14 days because there is considerable work involved in drawing up the contract and we must remember that the small travel agent will find it extremely difficult to do that in seven days? This applies in particular when travel contracts are concluded over the telephone and the consumer does not have a copy of the brochure or the terms of the contract in writing. I think extending the period from seven to 14 days would not adversely affect consumer rights but would be more realistic.
The Bill imposes requirements on minimum liability insurance cover. I note what the Minister said in his speech but I believe this Bill will push up insurance costs and introduce a culture of litigation into holiday travel, the like of which we have never seen before. I make this point in the hope that the Minister will see his way to amending this provision on Committee Stage to mitigate the worse effects. I believe this Bill will push up the cost of package holidays. To give an example, an Irish holidaymaker may buy a package holiday to the Bahamas from an Irish tour operator, he may get food poisoning on holidays and he can then sue the hotel in the Bahamas. Has the Minister ever tried suing a hotel in the Bahamas? That would effectively be impossible to carry through. This provision means that the costs of outbound and inbound tour operators will increase significantly.

In Germany, there is similar legislation and consumers have resorted to litigation against tour operators in cases where they have been rained out or fallen off a camel in Tunisia and suffered injury as a result. Incredibly, a case was brought because a holiday-maker suffered psychological stress due to the atmosphere prevailing in a holiday city. It gives me no joy to say that this Bill is a recipe for litigation. Wait until the lawyers get their hands on it. Under its provisions one can sue for defamation while on holiday and take a case against the local travel agent. There is no limit under the Bill when one has suffered defamation. I do not think it is the Minister’s intention to put the culture of litigation in place but this is what happened in Germany and a number of other countries.
The legislation has been fully implemented in Britain, France and the Netherlands and I have checked out what has happened. In his speech the Minister said that some extra insurance by organisers may be necessary but the British and Dutch experience has shown that insurance costs have gone up by 40 per cent in three years. Small operators found it impossible to get insurance and the viability of some operators was threatened because their margins were totally eroded. The Minister should ask the local travel agent in Maynooth the effects of liability increasing by 40 per cent in three years. A travel agent cannot afford to pay huge insurance costs on 5 per cent margins. How will it protect the consumer if there are no travel agents operating at the lower end of the scale, allowing the larger travel agents to mop up the business? That is not what the Minister intends.

Mr. Stagg

I do not believe it will be the effect of the Bill.

Mr. S. Brennan

I know it is not what the Minister intends but the British and Dutch experience has shown that it increased by 40 per cent in three years. I spoke to one large travel agent who said they expected that size of an increase. I am not saying anyone would cry about it but it would spell the end of cheap holidays. In his speech, the Minister of State said the added benefits and security which the consumer will enjoy will more than compensate for any small increase in prices.

Mr. Stagg

Consumers carry most of the insurance already.

Mr. S. Brennan

When a Minister admits there will be a small increase in price the record will show he is only touching the tip of the iceberg. It means he expects an increase in prices. There is no such thing as a small price increase.

Mr. Stagg

The travel trade agrees that it will be a small increase.

Mr. S. Brennan

In Britain and Holland there was a 40 per cent increase in insurance costs. Ask the travel agents whether they expect a dramatic increase in insurance as a result of this Bill and they will say “yes”. It gives me no pleasure to say that. An insurance company is asked to cover the provision of accurate information in brochures, to cover against defamation, repatriation and misleading information.

Mr. Stagg

They are already covered.
I appreciate that but this legislation is an addition to existing legislation. I take the Minister’s point about the Sale of Goods and Supply of Services Act but if he felt there was sufficient protection for the consumer he would not need to include the retailer in this Bill. He could say he was complying with the EU directive but clearly he does not feel that is so which is why he has brought in additional legislation.
The Minister cannot have it both ways. If he argues that the consumer is being given extra protection in this legislation then insurance costs will rise and if that is not his argument then he is not providing extra protection for consumers and insurance costs will not increase.
The legislation will give rise to a dramatic increase in travel related legal cases. Will the Minister consider some form of arbitration procedure for claims? If it rains all the time or someone in Spain falls into the pool having consumed too much alcohol or someone is given a brochure which does not contain the correct health information and contracts a disease, will the only remedy be to take such cases to the High Court or will there be some form of instant arbitration to deal with such cases? Some of these issues are emotional and could be dealt with quickly and coolly by an arbitrator. Let us not forget what happened in the High Court in other jurisdictions.