JURISDICTION, CONSUMER PROTECTION, CRUISING BY FREIGHTER AND A MOONLIGHT FLIT (FROM AN AUSTRIAN HOTEL) 22 October 2012 Matthew-Chapman case report, LP conflict of laws, EC Harmonisation, EC Regulations, personal injury (0) Peter Pammer sounds like the name of a character from a (badly written) sitcom, but is in fact the name of an Austrian with an eye for a bargain. While searching online for a cheap holiday, Mr Pammer alighted on the website of a German Company: Internationale Frachtschiffreisen Pfeiffer GmbH. This entity acted as an intermediary for the sale of an unlikely sounding voyage (a holiday of sorts) from Trieste to the Far East. The vessel which was to operate the voyage was an industrial freight ship. Sailing on such a ship might not obviously have conjured thoughts of reclining on a sun deck sipping gin and tonic, but the website did promise Mr Pammer (and anyone else who read it) an onboard fitness room, an outdoor swimming pool and a saloon, together with onboard video and television access. There was also a promise of double cabin accommodation with shower and toilet and a separate living room. The website further indicated that the freighter would make ports of call from which excursions ashore could be taken. Mr Pammer was sufficiently attracted by the website offer to enter into a contract for the voyage, but this was not with the intermediary company, but, instead, with another German corporate entity: Reederei Karl Schluter. Mr Pammer apparently refused to embark on the freighter; perhaps predictably, it was his view that the conditions on board did not meet the description provided on the website. He had paid EUR 8,500 for the voyage and sought a refund. The German company – Reederei Karl Schluter – reimbursed only EUR 3,500 and Mr Pammer brought proceedings in the Austrian Court (viz. the Court of his nationality and domicile) for the balance: EUR 5,000. Reederei Karl Schluter contested jurisdiction on the ground that it did not pursue any professional or commercial activity in Austria and, accordingly, the Austrian Court lacked jurisdiction. At first instance, the Austrian Court declared that it had jurisdiction on the ground that the voyage contract was a consumer contract (for regulated “package” travel) and the intermediary company had, by internet advertisement, engaged in advertising activity in Austria. On appeal, Reederei Karl Schluter was successful on the ground that the index contract was a contract of carriage, rather than a consumer contract (the fact that the voyage afforded – or ought to have afforded – a degree of comfort to the passenger did not convert a contract of carriage into a consumer contract). Undaunted, Mr Pammer appealed to the Austrian Supreme Court which stayed proceedings and referred the following questions to the European Court of Justice Pammer v Reederei Karl Schluter GmbH & Co KG  (European Court of Justice: C-585/08) “1. Does a voyage by freighter constitute package travel for the purposes of article 15(3) of Regulation No 44/2001? 2. If the answer to Question 1 is in the affirmative: is the fact that an intermediary’s website can be consulted on the internet sufficient to justify a finding that activities are being ‘directed’ to the Member State of the consumer’s domicile within the meaning of Article 15(1)(c) of Regulation No 44/2001?” Mr Pammer’s case highlights, perhaps, a phenomenon that is increasingly experienced by English consumers who are injured while enjoying – if that’s the right word – holidays overseas. They book a holiday by means of a website. The holiday is a not a regulated package (within the meaning of the Package Travel etc. Regulations 1992). The consumer is injured while using the services provided by his or her holiday accommodation and would like to bring proceedings in this respect in the English courts. The Hotel is owned/operated by a foreign company which provides an obvious impediment to English jurisdiction. If the website operator is also foreign owned/operated then that might seem to rule out any English proceedings unless it can be said that the contract is a consumer contract and that the website activity is directed to the Member State where the consumer is domiciled (England) within the meaning of article 15(1)(c) of the Judgments Regulation. The outcome of the reference to the ECJ in Pammer (joined with another case Hotel Alpenhof GesembH v Oliver Heller  (C-144/09) which involved a consumer leaving a Hotel without payment), together with a more recent ECJ decision (Muhlleitner v Yusufi & anor.  (European Court of Justice: C-190/11), now suggests that where the internet trader has manifested an intention to direct activity to a Member State other than that of its own domicile/registration then article 15(1)(c) will be satisfied and the English consumer injured overseas can nevertheless pursue a claim against the foreign internet trader in England. Such intention may be evidenced by the nature of the relevant trading activity (as found, for example, in tourism services), mention on the website of an international clientele or an itinerary comprising visits to Member States other than that in which the trader is resident or even simply the use of telephone numbers with an international code. The jurisdictional hurdle for the English consumer to jump is not a very high one. Internet holiday sales – whether or not the resultant contracts are “packages” – are now very common. Often, overseas bed-booking intermediaries will assert that a consumer’s contract is with the local (overseas) Hotelier or service supplier. In such cases, the Odenbreit decision and section 3 of the Judgments Regulation provides a potential jurisdictional route to a claim against the local supplier’s (foreign) insurer in the English Courts, but Pammer/Hotel Alpenhof/Muhlleitner now provide a potential basis for suing the tortfeasor service supplier itself in England – another useful weapon in the English consumer’s jurisdictional arsenal.