INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW It might be thought that this is not entirely correct. As has often been said, any horrors are foreseeable if you allow your imagination to run free. That’s not what ‘forseeable’ means. It means ‘reasonably forseeable’, and it might be thought that a continuous period of 10 previous years when the cruise could successfully operate would mean that it was not ‘reasonably forseeable’ that it would be impossible in year 11. But there it is. c. Disclaimers In holidays with inherent risks (eg a risk of changes, or whatever) , a well worded disclaimer can be effective. The disclaimer needs to be strong enough to cover the situation which arises. In his supporting judgment, another member of the Court of Appeal, Lord Justice Underhill, put it this way:- - It is in fact my view, as at present advised, that, where – exceptionally – the special nature of a cruise or expedition is such that the detailed itinerary is inherently uncertain, a sufficiently clear and prominent statement to that effect could affect the extent of the obligations imposed by the Regulations. More specifically, I do not see why in a case of that kind the requirement in regulation 9 (1) (a) (read with Schedule 2) that the contract should specify “the itinerary” could not be satisfied by stating the general area to be visited and identifying particular locations only on the express basis that they would be included only if conditions permitted: it is important to note that the obligation is qualified by the phrase “depending on the nature of the package”. If that were done, it would be potentially relevant to whether, where it becomes clear that not all the locations indicated will be visited, there had been a “significant alteration to an essential term”, within the meaning of regulation 12, or “a significant proportion of the services contracted for had not been provided”, within the meaning of regulation 14 [Article 4.7 PTD]. . e. The ‘Flicker of Hope’ test The ‘flicker of hope’ test is dead. This test arose out of several low level authorities ( eg Lambert v Travelsphere 2005) decided in the context of the SARS disease outbreak. These had held that a package organiser was not obliged to cancel a trip until such time as there was ‘not a flicker of hope’ that the holiday/trip could continue.. In a rare moment of unity, the CCJ, the HCJ and the Court of Appeal judges all agreed that this overstated the
RkJQdWJsaXNoZXIy MTE4NzM5Nw==