More than two weeks on from the start of the civil unrest in Egypt, the British Foreign and Commonwealth Office (FCO) is still warning against all but essential travel to Cairo, Alexandria, Luxor and Suez.
Solicitors Berrymans Lace Mawer gives its assessment of what the legal posoition is for UK tour operators after other Europen governments warned against travel to the Red Sea region.
Tour operators’ liability
Whilst travel to the more popular Red Sea area is unaffected at present, the situation in Egypt is constantly changing. In the event that the FCO does advise against all but essential travel to the Red Sea area, for package holidays that have not commenced, tour operators will have to offer consumers suitable alternative arrangements, rebooking for a later date, or if necessary, a full refund.
If the FCO’s advice is to leave an area, then tour operators must effect an early return for customers in resort – but there is no obligation to refund customers for any unused accommodation.
If there is no FCO advice to leave an area, but a consumer chooses to leave, then a tour operator has no liability to put in place plans for their early return. In practice, of course, it is a matter of discretion for each company – a tour operator may want to protect their reputation and ensure optimum customer satisfaction.
The grey area
A grey area for tour operators occurs where there is no FCO advice warning British citizens against travel to an area but other countries are warning their citizens against travel.
A tour operator may arguably be liable if a consumer suffers loss and injury at the destination in question, and it was known to them that there was potential danger and they had either failed to warn of this and/or make appropriate alterative arrangements.
There is little indication of how courts will view any such claims by consumers, however. In a recent unreported case, consumers brought a claim against a tour operator for a breach of the Package Travel Regulations 1992, claiming that they had been flown into a war zone. Liability was denied on the basis that FCO advice had been followed – and this did not advise against travel to the country in question on the date of departure.
The tour operator was successful. The court found the tour operator was not constrained to cancel the holiday; it was not ‘absolutely inevitable and unavoidable’ that the holiday could not be provided and the statutory defence under Regulation 15(2) (c) with regard to Regulation 15, was invoked, as the civil unrest and associated violence was unusual, unforeseeable and outside the tour operator’s control.
Therefore whilst there is an argument that tour operators cannot be liable for destination safety, what is reasonable for the tour operator to do in each case will depend on the circumstances.
It may even be open to a consumer to rely on the advice other countries are giving their citizens. In the absence of FCO advice, then the situation should be constantly reviewed, taking into account the advice of representatives on the ground and in resort.
If there is any indication that there may be a danger to the consumer, then the tour operator should warn them as necessary and take appropriate action.
Beware of the risks
The tour operator should recognise the risks, however, of curtailing a consumer’s holiday. In another unreported case, a consumer was in a resort during a coup d’état. The FCO warning was against all but non-essential travel to the area, but there was no advice to leave.
The tour operator returned the customer to England early and the consumer successfully claimed against the tour operator for diminution in the value of the holiday and for compensation for disappointment and loss of enjoyment.
As such, whilst FCO advice may not be entirely determinative of a tour operator’s rights and duties as regards civil unrest, significant weight is placed on it by the courts. Therefore, in most cases, following FCO advice is likely to be the most prudent course for tour operators, regardless of advice issued by other countries’ governments.
The article is not a substitute for specific legal advice and should not be relied upon as such.