On 2 September 2021 the Court of Justice of the European Union (the “CJEU”) delivered judgment in Irish Ferries Ltd v National Transport Authority,1 following a request for a preliminary ruling by the Irish High Court in connection with the rights of passengers in relation to cancelled or delayed sailings. This is the first CJEU judgment concerning the interpretation and application of the “Maritime Regulation”,2 and for the first time provides clarity for maritime carriers and passengers in relation to the application of, and interpretation of, certain aspects of the Maritime Regulation. It follows multiple decisions on the equivalent Airline Regulation3 but is a first in the maritime space.
Arising from the late delivery of a new ship, the “WB Yeats”, Irish Ferries had to cancel all bookings on the Dublin – Cherbourg route for the 2018 summer season. Having investigated these cancellations the National Transport Authority (the “NTA”), as the National Enforcement Body for the Maritime Regulation in this jurisdiction, determined that the Maritime Regulation applied to the cancellations and that certain provisions of the Maritime Regulation were being infringed. Irish Ferries challenged the NTA’s decision by way of judicial review in the High Court and the parties asked the Court to refer certain questions relating to the Maritime Regulation to the CJEU.
Main Findings of the CJEU
Applicability of the Maritime Regulation
The CJEU held that the Maritime Regulation applied to the cancellations in this case notwithstanding that Irish Ferries had given the impacted passengers several weeks’ notice of the cancellations. The CJEU confirmed that the application of the Maritime Regulation is not subject to conditions such as those relating to:
- giving passengers a minimum notice period of a cancellation,
- the physical presence of a passenger in the port or on board the vessel, or
- the availability of a vessel.
Right to re-routing in the event of cancelled or delayed departures under Article 18
Under Article 18 of the Maritime Regulation, a passenger whose passenger service has been cancelled or delayed in departure for more than 90 minutes may choose to be re-routed to the final destination, under comparable conditions, as set out in the transport contract, at the earliest opportunity and at no additional cost.
The CJEU held that the concept of ‘re-routing to the final destination’ means that the passenger must be transported to the place set out in their transport contract, without necessarily the itinerary followed and the means of transport being identical to those originally agreed.
The CJEU held that the carrier must bear any ‘additional costs’, such as fuel or road tolls which the passenger incurred in re-routing to the final destination.
The CJEU also stated that re-routing must not place a passenger in a more advantageous position. The passenger must demonstrate the existence of the ‘additional costs’ incurred as a result of re-routing.
The CJEU also held that the re-routing offered must be under comparable and satisfactory (but not identical) conditions to those originally agreed in the transport contract. It said that this entails comparing the essential elements of that transport contract with the re-routing offered, such as:
- the places of departure and arrival at the final destination,
- the days and times of the passenger service and its duration,
- the number of any connecting services,
- the class of the ticket, and
- the type of cabin reserved by the passenger.
It added that this examination must be carried out from the passenger’s point of view.
Right to compensation under Article 19
The CJEU held that a passenger has a right to compensation under Article 19 of the Maritime Regulation, where he or she chooses to be re-routed in accordance with Article 18 and arrives at the final destination with a delay that exceeds the thresholds laid down in Article 19 and in that respect that Article 18 and Article 19 of the Maritime Regulation can apply cumulatively.
The judgment also confirmed that the compensation payable is calculated by reference to the price which the passenger actually paid for the passenger service, which may include the costs of additional optional extras, such as the booking of a cabin or a kennel, or access to premium lounges.
In terms of the timing of a request for compensation under Article 19, it was confirmed that a passenger seeking such is not required to submit a request for compensation within the two month period required for the making of a complaint under Article 24 of the Maritime Regulation.
“Extraordinary Circumstances” do not apply to the cancellations by Irish Ferries
The CJEU also considered whether the late delivery of a vessel, as in this case, fell within the concept of ‘extraordinary circumstances’ (which would exempt the carrier from paying compensation under Article 19). They concluded that this concept must be interpreted strictly and that the delay in delivery of a ship was to be regarded as inherent in the normal exercise of a maritime passenger activity and therefore was not an extraordinary circumstance for these purposes