The National Transport Authority (the “Authority”) is designated pursuant to a 2012 Statutory Instrument as the National Enforcement Body for the enforcement of EU Regulation 1177/2010 concerning the rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004 (the “Maritime Regulation”).
The objective of the Maritime Regulation is to ensure a high level of protection to passengers using waterborne transport anywhere in the European Union.
Under the European Union (Rights of passengers when travelling by sea and inland waterway) Regulations 2012 (SI No. 394 of 2012) (the “2012 Statutory Instrument”), the Authority, either on its own initiative or following a complaint to it by a passenger, being of the opinion that a provider is failing to comply with or is infringing the Maritime Regulation is required to cause to be served on the provider a notice specifying the failure or infringement concerned and requiring the provider to take such measures as are specified in the notice, within such period as may be specified, for the purposes of complying with the notice.
A provider on whom a notice is served may, within 21 days of the service of the notice, make representations to the Authority. The Authority is required to consider any such representations and shall by notice, confirm, modify or withdraw the notice.
On 21st April, 2018, Irish Ferries made a public announcement that they had been informed by the German Shipyard, FSG (which was building the new ferry, ‘WB Yeats’, for Irish Ferries) that its delivery to Irish Ferries was likely to be delayed. Irish Ferries stated that, while this delay was not yet fully confirmed by the shipyard, they had, in the interest of minimising the level of potential disruption to its customers, taken the decision to cancel a number of affected sailings in July, from the 12th to 29th of July inclusive from Dublin to Cherbourg and Cherbourg to Dublin.
Subsequently, on the 12th of June 2018, Irish Ferries further announced that “due to extraordinary circumstances beyond its control, the delivery of the WB Yeats has been further delayed by FSG” and advised that it had no option but to cancel all the planned sailings to France for ‘WB Yeats’ for the Summer.
The National Transport Authority received correspondence from passengers relating to the cancellations.
As the National Enforcement Body, the Authority investigated into the circumstances giving rise to the cancellations that occurred and their consequences to ascertain whether there was compliance with the provisions of the Maritime Regulation, in particular Article 18 and Article 19. The Authority engaged extensively with Irish Ferries in this regard.
Article 18 of the Maritime Regulation relates to what is to be offered by the carrier to impacted passengers in the event of cancelled or delayed departures, namely, the choice between:-
(a) re-routing to the final destination, under comparable conditions, as set out in the transport contract, at the earliest opportunity and at no additional cost,
Article 19 of the Maritime Regulation relates to the payment of compensation if requested by passengers in the event of delay in arrival at the final destination as set out in the transport contract. This is based on a % of the ticket price. Article 19 of the Maritime Regulation sets out that, without losing the right to transport, passengers may request compensation from the carrier if they are facing a delay in arrival at the final destination as set out in the transport contract. Compensation is 25% or 50% of the ticket price depending on the scheduled duration of the journey and extent of the delay experienced.
Article 20(4) of the Regulation provides an exemption to Article 19 for carriers in the event that the carrier proves that the cancellation or delay is caused by weather conditions endangering the safe operation of the ship or by “extraordinary circumstances” hindering the performance of passenger services and which could not have been avoided even if all reasonable measures had been taken.
The Authority was not satisfied that the unavailability of ‘WB Yeats’ is an extraordinary circumstance hindering the performance of the cancelled passenger services which could not have been avoided even if all reasonable measures had been taken.
The Board of the Authority formed the opinions that Irish Ferries failed or is failing to comply with and has infringed or is infringing Article 18 and Article 19 of the Maritime Regulation on the 19th of October 2018 and authorised the serving of notices on Irish Ferries.
Two separate Notices (an Article 18 Notice and an Article 19 Notice) were served on Irish Ferries on the 22nd of October 2018 specifying the failures/infringements in relation to Article 18 and Article 19 of the Maritime Regulation and requiring Irish Ferries to take the measure(s) specified in the Notices, namely to
- pay compensation to impacted passengers who have already requested compensation from Irish Ferries for the delay in arrival at the final destination as set out in the transport contract, where such delay falls within the criteria set out in Article 19(1)(a) – (d) of the Maritime Regulation, in accordance with the provisions of Article 19 of the Maritime Regulation, and
- in relation to passengers impacted by the cancelled sailings, where such impacted passengers had to travel to and from Rosslare (rather than Dublin) and/or to and from Roscoff (rather than Cherbourg), Irish Ferries is to reimburse any additional costs incurred by the impacted passengers in travelling to and from Rosslare rather than Dublin and to and from Roscoff rather than Cherbourg.
Irish Ferries submitted representations to the Authority in response to the Article 18 Notice and Article 19 Notice pursuant to the 2012 Statutory Instrument. These representations were reviewed and discussed by the Board of the Authority.
The Board of the Authority at its Board Meeting on the 25th January 2019 decided to confirm the Article 18 Notice and the Article 19 Notice and notices pursuant to Regulation 4(2) of the 2012 Statutory Instrument were served on Irish Ferries on 28th January 2019. Irish Ferries have a period of 2 months to comply with the Notices.
Further Documentation available below;