Fair and balanced ferry services between Dover and Calais

In a plausible pandemic endgame Justin Merrigan asks Andrew Sheen what challenges lie ahead for Irish Ferries and why he believes in equitable regulations across the travel sector

Fair and balanced ferry services between Dover and Calais
Isle of Innisfree crosses the English Channel from Dover, UK, to Calais, France, up to 10 times a day

Now that travel is returning to normality, Irish Ferries is once again looking forward to welcoming passengers in summer 2022. It does so with a vastly larger fleet than at the start of the pandemic, with three additional ships operating its new service between Dover, UK, and Calais, France. 

“Undoubtedly, over the past two years, the maritime sector played a key role in ensuring critical supplies and medical equipment were transported, whilst maintaining travel for essential reasons,” says Andrew Sheen, managing director of Irish Ferries. “Now, recovering from a severely depressed market, and with Covid-19 fears and concerns still present, there is a great opportunity for the maritime sector to positively differentiate itself from its main competitor – short-haul air travel.   

“Ferry travel offers passengers a safer way to get away, the ability to drive in the comfort of their own car, and once onboard, the freedom to move around and enjoy plenty of space and fresh air. Such a comparison with air travel does however highlight the discrepancies between the sectors in terms of regulation.” 

Irish Ferries believes in fair, balanced and equitable regulation especially in areas of consumer protection. However, it would appear the current situation is anything but. Within the European Union (EU) there is passenger rights legislation covering areas such as packaged travel and transport regulations, explains Sheen. “In relation to the latter, the directive for air is Regulation 261 of 2004, rail is 1371 of 2007 and maritime (principally ferry) is Regulation 1177 of 2010. The regulations cover such things as rights to information, assistance, rerouting and compensation. Other very important aspects such as rights for passengers of reduced mobility are also covered.” 

Noting that the set of regulations cover force majeure type situations, Sheen says: “It was very helpful to have guidance set out from the EU for all passenger rights during the Covid-19 pandemic, specifying that it constituted extraordinary circumstances and therefore passenger compensation for cancellations was not applicable.  

“Outside of this, there are certain tests that must be applied to see if the regulation is applicable in a certain situation or not. The airlines have the benefit of regulations that have been well tested within the EU courts system and principally at the Court of Justice of the European Union (CJEU). There are also interpretative guidelines, as there are for the rail regulations. However, the maritime regulation is principally untested, except for one large case (Case C-570/19 Irish Ferries Ltd v National Transport Authority), which was heard at the CJEU during the middle of the pandemic in September 2020.” 

One important aspect of the regulation is its applicability in terms or re-routing and compensation costs. According to Sheen, the airline regulation is clear – if any air operator cancels a flight with at least two weeks’ notice then the regulation indicates that the consumer only has a right to reimbursement. Whilst not contained in the rail regulation itself, this subject is also broadly covered in the interpretative guidelines with the statement that the “length of time before the actual departure time when the notice is received, is to be taken into consideration” with respect to rights and compensation. 

“Incredibly, given that the maritime regulation is to (recital 1) offer a high level of protection to the passenger comparable with other modes, this carve out is nowhere to be found in the maritime regulation,” says Sheen. 

“The effect of this (in the absence of interpretative guidelines, a rewrite of the regulations or the failure of the CJEU to recognise this) is that every ferry operator with sailings to and from the EU is ‘at risk’ from the moment a booking is taken. This means that if you open bookings for 2025 now, you can never modify your scheduled sailing time without being open and/or liable for re-routing costs under Article 18 and/or compensation claims (if your passengers travel later) under Article 19.” 

According to Sheen, this is a “frankly ridiculous situation”. He says: “We believe that there should be consistent underlying principles within the EU regulatory rule set that is fair, equitable and – dare I say it – comparable between the competing modes.  We should not have this huge anomaly whereby airlines can cancel with no compensation to consumers with two weeks’ notice, while the maritime sector cannot cancel (without compensation exposure), no matter what the notice period is.” 

The regulation is due for public consultation in the second quarter of 2022. “I would urge everyone reading Cruise & Ferry Review to get engaged either with Interferry and/or European Community Shipowners’ Association to affect some change to this incredible situation,” says Sheen. “Let’s not miss the opportunity to work together to maximise the potential of this great maritime sector that we are all proud to be part of.”  

This article was first published in the Spring/Summer 2022 issue of Cruise & Ferry Review. All information was correct at the time of printing, but may since have changed. 

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Justin Merrigan
By Justin Merrigan
09 May 2022

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