Tour Operator liability for Air Safety

With continuing issues surrounding air passenger safety in Nepal this article focuses on a tour operator’s responsibilities in relation to air carrier safety.

Some UK Tour Operators no longer sell package holidays to Everest Base Camp. This might be due to factors such as the environmental impact for the region of such a trip, but a significant consideration in selling such holidays is that there are (at the time of writing) no airlines operating flights between Katmandu and Lukla who are not listed on the UK Air Safety List (or the EU equivalent).

What is the Air Safety List?

The UK Air Safety List is a list of air carriers which do not fulfil the necessary international safety standards, the EU equivalent is the EU Air Safety List. The lists are, at the time of writing, identical. All air carriers with responsibility for regulatory oversight in Nepal appear on the list.

What does this mean?

All air carriers appearing on the list are not permitted to operate in the UK or EU.

However, the list also applies where a “contract of carriage”, meaning a contract including air transport where the carriage is composed of two or more flights operated by the same or different airlines, starts in the UK or the EU, and includes another flight to/from/in a third country.

It is a requirement that passengers are notified of:

1. the operating air carrier of a particular flight;
2. the list(s) and the fact that any carriers included on the list are subject to an operating ban in the UK/EU as applicable.

The addition of an air carrier to the list would entitle a passenger to refuse to take the flight and to seek reimbursement or rerouting.

For a package holiday organiser this could mean, if there were no rerouting options available, or the customer did not want to travel, that they would have to allow cancellation of the package holiday with a full refund.

What if the customer already knows that an air carrier is on the list when the package is booked?

The wording in the regulation talks about air carriers being “entered on the … list” as giving rise to the right of rerouting and reimbursement.

If a customer knows that an air carrier appears on the list and wishes to proceed, they should be informed that there will be no right to rerouting or reimbursement if they change their mind later. It may be sensible to ask them to sign a well drafted waiver. Alternatively a tour operator may choose to only offer packages that include fully refundable options, the price of which is likely to be much higher.

What happens if there is an accident?

Tour operators are responsible for the proper performance of the contract irrespective of whether services are provided by them or their suppliers (including air carriers.)

In the worst case scenario, an airline crash resulting in injury or death, the tour operator’s liability will be capped in line with the Montreal Convention, provided that they haven’t committed to higher or unlimited liability in their booking conditions.

How do we manage such risks?

It would be prudent to review your booking conditions and any correspondence you have with customers. Do you:

• Limit your liability in line with international conventions?
• Inform customers of the flight safety list(s) and of the operating air carrier of all flights?
• Promptly notify customers if an air carrier you use appears on the list and take appropriate action?
• Check or audit the safety and organisational standards of air carriers you use? Especially any which appear on the list and do you provide information around the steps you take to your customers?
• Ask customers to make sure that their insurance covers them for this?

It is also essential to ensure that your own tour operator liability insurance covers you if you use air carriers which appear on the list.

***********

If you have any queries about anything in this article please contact Claire Ingleby (claire.ingleby@mb-law.co.uk).

Please note this information is for general guidance only and is not intended to be a substitute for specific legal advice.