Just by looking at the provisions of Regulation 1177/2010 we can see many similarities to Regulation 261/2004. In case of interrupted maritime travel, passengers are also supposed to be properly informed by their carriers about this, have a right to assistance (refreshments and snacks, as well as overnight accommodation, although the latter right is limited, see Art 17(2)), as well as a right to re-routing and reimbursement (Art 18). There is also a right to compensation in case of a delay in arrival - Article 19 - with the extraordinary circumstance releasing the carrier from this obligation, e.g. bad weather conditions or other circumstances which could not have been avoided even if all reasonable measures had been taken (Art 20(4)).
In Irish Ferries a vessel that was to serve a particular maritime route - Dublin (Ireland) and Cherbourg (France) - was not built and deployed on time, despite expectations to the contrary. This meant that although the route has been advertised and tickets for journeys on this ferry have been sold, the company found itself a vessel short and decided to cancel previously made bookings. Affected passengers were notified 7-12 weeks in advance, received full reimbursement or a re-booking option. In the case re-routing was chosen, passengers did not have to pay any additional costs if the ticket price was higher for the new journey, but they were not compensated e.g. for traveling to/from the alternative port of departure (para 24). Passengers who chose to travel via the UK through a land bridge could claim compensation for their fuel costs (paras 29-31). The contested part was that Irish Ferries decided that the awarding passengers with the right to re-routing and reimbursement was mutually exclusive with paying them compensation for a delay. They claimed that Art 18 and 19 did not apply simultaneously.
The Irish National Transport Authority considered that Irish Ferries should have paid compensation to passengers whose journey was delayed - in compliance with Art 19 - and should have compensated all additional costs related to re-routing - in compliance with Art 18.
AG Szpunar's advice is first that Regulation 1177/2010 indeed applies to this case scenario (see for the detailed analysis paras 45-74).
Second, he confirms that re-routing should come at no additional costs to passengers, and costs of travel to/from alternative ports of embarkation and disembarkation should be included in this (paras 84-85, 94).
Third, AG Szpunar confirms that passengers who have been re-routed may claim compensation in the delay of arriving at their final destination, contrary to passengers who chose reimbursement (para 108). Both the legislative history as well as other provisions of the Regulation, e.g. Recital 14, indicate this (paras 105-106). The delay should be calculated by comparing the arrival time laid down in the contract and the actual time of arrival at the final destination - and not at the port of disembarkation (paras 115-116).
The compensation amounts to 25% of the ticket price, and the ticket price should be seen as encompassing all additional optional services chosen by the passenger (e.g. for a booking of a cabin, or a kennel, or access to premium lounges) (para 124). This differs from a standard, flat-rate compensation that air passengers are granted under Regulation 261/2004 (para 125). However, AG Szpunar recognised the option for maritime carriers to separate clearly services provided under the contract that are not part of 'passenger services', which would exclude them from the ticket price (para 126).
Further, the late delivery of the vessel does not amount to extraordinary circumstances, as it should be seen as being inherent in the normal exercise of the activity of the carrier. The concept of extraordinary circumstances is thus the same as under Regulation 261/2004 (paras 134-135). (see for more elaboration on the test under the given circumstances: paras 138-157).
The last two findings pertain to who has jurisdiction over enforcing Regulation 1177/2010 and whether the claim for a right to compensation is time-barred if the passenger did not demand it within two months from the date on which the transport was supposed to be performed.
This is a detailed case law as it explores a new terrain of passengers' rights and treads carefully on it. The interpretation of various provisions of Regulation 1177/2010 is very much welcomed, as it not only introduces more legal certainty to this field, but also allows for an easier comparison between rights of passengers of various modes of transportation. Let's see what the CJEU will have to say in this case!
