Blocked By Ice

Our goal : 100% reimbursement of the price paid IN ADDITION TO compensation for thwarted dreams

Leading Case

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Lord Denning, Master of the Rolls

Further to our Legal Opinion which has been already e-mailed to everyone, our case has even attracted the attention of the BBC, who have just published an article on the leading authority for compensation in the travel industry, namely Jarvis v. Swans Tours Ltd, by establishing that damages for distress and disappointment are available in holiday contract disputes.  The leading judgment in the Court of Appeal, no less, was given by the Master of the Rolls, Lord Denning, who is universally acclaimed as the most distinguished Judge of modern times and revered by most lawyers.  This case is acknowledged in the travel industry as the primary authority by which claims of this nature are judged.

The BBC article can be viewed by clicking The man who sued over a lack of Christmas cheer, or the full judgment can be downloaded by clicking Jarvis v Swans Tours.pdf.

Alternatively, here is a summary of the most important points :

Advertisement :   No doubt you will be in for a great time, when you book this house-party holiday’…..

Lord Denning :

There were many other matters, too. They appear trivial when they are set down in writing, but I have no doubt they loomed large in Mr. Jarvis's mind, when coupled with the other disappointments.’ 

{Similarly, the Hurtigruten advertisements contained the following claims :

·         Cruise with confidence on Fram

·         Trace history as we sail the route of famous expedition vessels of the past

·         We sail in the wake of the great explorers to discover these renowned waterways

·         After all, you will sail into the North West Passage, something few ships attempt even today

·         Even today, few ships have the capability to navigate this sea passage that cuts through the Arctic regions of North America

·         There may be the added navigational challenge of ice in the water. ..No need to worry, though. MS Fram was purpose built as an expedition vessel with a 1B ice class, ship-depth sounding database, extractable forward-sounding sonar and iceberg search lights – and the Captain and his crew are experienced in sailing treacherous waters.

·         We will be sailing in the midst of ice but we promise a thrilling experience

·         You will sail into the North West Passage, something few ships attempt today - repeated for a second time in the same advertisement”}

Lord Denning concluded :

What is the legal position? I think that the statements in the brochure were representations of warranties. The breaches of them give Mr. Jarvis a right to damages. It is not necessary to decide whether they were representations or warranties: because since the Misrepresentation Act, 1967; there is a remedy in damages for misrepresentation as well as for breach of warranty…. Mr. Jarvis's fortnights winter holiday has been a grave disappointment. It is true that he was conveyed to Switzerland and back and had meals and bed in the hotel. But that is not what he went for. He went to enjoy himself with all the facilities which the defendants said he would have. He is entitled to damages for the lack of those facilities, and for his loss of enjoyment…... The right measure of damages is to compensate him for the loss of entertainment and enjoyment which he was promised, and which he did not get…… In a proper case damages for mental distress can be recovered in contract, just as damages for shock can be recovered in tort. One such case is a contract for a holiday, or any other contract to provide entertainment and enjoyment. If the contracting party breaks his contract, damages can be given for the disappointment, the distress, the upset and frustration caused by the breach. I know that it is difficult to assess in terms of money, but it is no more difficult than the assessment which the courts have to make every day in personal injury cases for loss of amenities. Take the present case. Mr. Jarvis has only a fortnight's holiday in the year. He books it far ahead, and looks forward to it all that time. He ought to be compensated for the loss of it.

Lord Justice Edmund Davies went further :

In assessing those damages the court is not, in my judgment, restricted by the sum paid by the client for his holiday. …..The court is entitled, and indeed bound, to contrast the overall quality of the holiday so enticingly promised with that which the defendants in fact provided…….When a man has paid for and properly expects an invigorating and amusing holiday and, through no fault of his, returns home dejected because his expectations have been largely unfulfilled, in my judgment it would be quite wrong to say that his disappointment must find no reflection in the damages to be awarded.”

Finally, Lord Justice Stephenson added :

The judge has, as I understand his judgment, held that the value of the plaintiff's loss was what he paid under the contract for his holiday; that as a result of the defendants' breaches of contract he has lost not the whole of what he has paid for, but broadly speaking a half of it, and what he has lost and what reduces its value by about one half includes such inconvenience as the plaintiff suffered from the holiday he got not being, by reason of the defendants' breaches, as valuable as the holiday he paid for.

I further agree with my Lords that the judge was wrong in taking, as I think he must have taken, the amount the plaintiff paid the defendants for his holiday as the value of the holiday which they agreed to provide. They ought to have contemplated, and no doubt did contemplate, that he was accepting their offer of this holiday as an offer of something which would benefit him and which he would enjoy, and that if they broke their contract and provided him with a holiday lacking in some of the things which they contracted to include in it, they would thereby reduce his enjoyment of the holiday and the benefit he would derive from it…… The court is entitled, and indeed bound, to contrast the overall quality of the holiday so enticingly promised with that which the defendants in fact provided….. In my judgment, however, the judge seems to have under-valued the loss to the plaintiff from the breaches which he found….. there may be contracts in which the parties contemplate inconvenience on breach which may be described as mental: frustration, annoyance, disappointment; and the damages for breach of it should take such wider inconvenience or discomfort into account.

There are so many parallels with our case that we are greatly encouraged, and it seems the BBC agrees with us !

 

Legal Opinion !

 

 

We have at last received the Legal Opinion from Counsel (i.e. our barrister).

Having carefully considered all the documentation and the evidence, he has concluded that :

I consider them to have good prospects of success in a claim brought under Regulation 12, 13 and 14 of the 1992 Regulations.  Currently I would estimate their prospects of success to be around 70%

As a consequence, we have instructed our solicitors to issue a formal Letter of Claim Prior to Action, as required under the Civil Procedure Rules.  We expect this to be served during the next week, but it needs to be drafted by Counsel which might mean it takes a little longer.

Every members’ circumstances are different and will have to be considered in the light of Counsel’s Opinion.  We will write to each member and inform them in more detail about Counsel’s Opinion, so that everyone knows what needs to be done and what further documentary evidence we will need from you to pursue the claim.

The Court process will take some time to be finalised.  Therefore, you should not yet withdraw your Section 75 or Charge-Back Claim if you have made one already, because such claims can run in parallel to legal action.  As those claims are investigated under the Financial Services Act and the Consumer Credit Act, they are subject to a completely separate process, which generally leads to a quicker resolution than the Court system – but of course you will not be able to recover twice !

If you have not yet made a Section 75 Claim or a Charge-Back Claim on your Debit Card, you should do so immediately.  Whilst there is no time limit in respect of Section 75, you only have until 22nd December to make a Charge-Back Claim against your Debit Card.  So do NOT delay.

One further point in this context is that Charge-Back is not like Section 75 in one good respect :  it does apply to Debit Card transaction with Travel Agents, which is not the case with Section 75.

This will have no impact on the Legal Claim which will proceed in parallel, but it might lead to a quicker resolution.

If you need any further clarification, just let us know.

Good luck to all our members, and may we wish you all a Happy Christmas.

 

Best wishes

 

 

The Blocked By Ice Team

 

Ice Charts

  

One of our membrs on the Westbound Fram has sent us a report of his experience of the cruise from Greenland to the Pond Inlet which was equally as depressing as the Eastbound cruise.  However, they were told on 3rd September that the North West Passage navigation would have to be abandoned due to the ice conditions.

These official Ice Charts from the Canadian Coastguard were presented to the passengers on 3rd September by Karin Strand, from which of course it is abundantly clear that there was no remote possibility of following the itinerary, either Westbound or Eastbound.  Further research of the Canadian Coast Guard Archive, demonstrates that, long before 3rd September,  navigation was impossible.  The Westbound passengers should also have been informed before they left home,  so that they could exercise their right to cancel the cruise in accordance with Clause  8.5 of the Hurtigruten contract (7 of the ROL contract.)

 

Another passenger has drawn attention to the following extract from the itinerary :

At these latitudes, the sea is frozen for most of the year, only opening up in July for a short late-summer season” – how long is short ? – from July to the end of September ? Three months ?

Marvel at the changes in hue of the ice when the iceberg surface is struck by the Midnight Sun” –  We were told to expect Midnight Sun in September to melt the ice ?  Really ?

 

While Fram updates her logo….

 

 

what are Hurtigruten’s competitors up to ?

                                                                                                  

 

Quark’s Kapitan Khlebnikov is a polar-class ICE-Breaker. No passenger ship has transited the Northwest Passage more often than this renowned cruise ship. Originally designed to take on the rigors of northern Siberia, the 24,000 horsepower engine and advanced ice-breaking technology is really able to navigate the North West Passage and has done so more often than any other passenger ship.  What is more, she has her own helicopter on-board with helipad for sight-seeing.  No need to pay the exorbitant prices we were used to.

 

 

French cruiseline PONANT’s  Le Boréal and Le Soréal  hold the record between them of more successful navigations of the North West passage than any other Ice Class 1 cruise ship.  But even this year, they did not succeed and had to turn back in Regency Inlet.

So PONANT have commissioned a new Ice Breaker cruise ship, Le Commandant Charcot, the world’s first electric hybrid polar exploration ship powered by liquefied natural gas. Beginning in 2021, this newest member of the PONANT fleet will offer the chance to really follow in the wake of the great polar explorers unlike someone we know !

 

Legal Update

 

 

Our barrister has now been fully briefed and is currently examining in detail all the evidence and documents from members with which we have provided him.  This is an arduous task but we have been informed  that he will hopefully provide his formal ‘Counsel’s Opinion’ by the end of next week.

The good news is that our solicitors initial assessment of the case was encouraging, and our insurers agreed to fund it.  This is an important step forward, as the insurance company would not involve themselves in this sort of expense unless they felt that there was a real prospect of success.

Counsel’s Opinion requires detailed examination of all the facts, careful evaluation of any legislation and the application of accepted legal principles such as breach of contract, misrepresentation, negligence, and consumer law and protections, giving due consideration to legal cases of a similar nature.  The available evidence, of which thankfully there is an abundance, will play an important role.  Many passengers have already sent us reports of their own experience, both on the Westbound and the Eastbound cruises, and there has been a lot of useful research undertaken by members on the ice conditions and reports.

We already have an excellent “library” of correspondence between members and Hurtigruten, principally concerning formal complaints, and it is important to continue to copy us into any further communications.  You are encouraged to send us any more diaries and accounts of personal experiences, which are always welcome of course; it is not too late to consider them.  Just email them as usual to :

fram@blockedbyice.com

One of the problems we face is that the law is not necessarily international, and the position in the UK may not be the same in North America, Australia or Europe.   But there is still some commonality: in English speaking countries, the legal foundation would have been British Common Law originally, while in the European Union, there is an EU Directive which has been universally incorporated into the law of all Member States, known as Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours.

Every EU country is subject to the same law as a minimum basis. In the UK, for instance, it translates into the Package Travel, Package Holidays and Package Tours Regulations 1992.  In essence, the major provisions are :

Article 3

The particulars contained in the brochure are binding on the organizer or retailer. [One of the items specified in the schedule attached is the Itinerary ! ]

Article 4

5.   If the organizer finds that before the departure he is constrained to alter significantly any of the essential terms ….. he shall notify the consumer as quickly as possible in order to enable him to take appropriate decisions and in particular:

        to withdraw from the contract without penalty

 

6.   If the consumer withdraws from the contract pursuant to paragraph 5, or if, for whatever cause, other than the fault of the consumer, the organizer cancels the package before the agreed date of departure, the consumer shall be entitled:

 (b)      to be repaid as soon as possible all sums paid by him under the contract.

In such a case, he shall be entitled, if appropriate, to be compensated by either the organizer or the retailer, whichever the relevant Member State's law requires, for non-performance of the contract

7.   Where, after departure, a significant proportion of the services contracted for is not provided …. the organizer shall compensate the consumer for the difference between the services offered and those supplied.

If ….such arrangements are not accepted by the consumer for good reasons, the organizer shall, where appropriate, provide the consumer, at no extra cost, with equivalent transport back to the place of departure, ….  and shall, where appropriate, compensate the consumer.

That is just a summary of the main provisions and there is a lot more which serves our cause well.

 

And Finally

Many of us already have legal costs insurance but we know that many do not.  We have made a proposal therefore to our legal team that they should consider extending to any legal action to all members of Blocked By Ice on a “No Win, No Fee” basis. This would of course be of great benefit.  In any case, the outcome of any legal action would provide a precedent for further claims, and additional legal action may not be required.  Whatever happens, we will share the legal advice with everyone.

 

The Media and Social Networking

The ban on Media coverage and Social Networking was lifted last week when Hurtigruten refused to even meet Blocked By Ice.  Coverage has got off to a good start : several reviews have already been published on Cruise Critic.  Cruise Critic is the leading cruise reviews internet site, which hosts the largest cruise community in the world. More than six million people visit Cruise Critic each month. Please also watch the website for further information.

You can read the reviews by clicking here :

https://www.cruisecritic.co.uk/memberreviews/getreviews.cfm?action=ship&ShipID=406

 

 

To access previous updates, click here :

 

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