Milner and Another v Carnival Plc T/A Cunard
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward,Lord Justice Richards,Lord Justice Goldring |
| Judgment Date | 20 April 2010 |
| Neutral Citation | [2010] EWCA Civ 389 |
| Docket Number | Case No: B2/2009/1169 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 April 2010 |
[2010] EWCA Civ 389
His Honour Judge Shaun Spencer QC
Before: Lord Justice Ward
Lord Justice Richards
and
Lord Justice Goldring
Case No: B2/2009/1169
8SP00557
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRADFORD COUNTY COURT
Christopher Lundie and Hayley McLorinan (instructed by Lester Aldridge LLP) for the appellant
Sarah Prager (instructed by Travlaw LLP) for the respondent
Hearing date: 3rd December 2009
Lord Justice Ward:
The issue
The issue, said to be of importance for the travel industry, is this: what is the correct measure of damages for a ruined holiday?
The appeal
On 14th May 2009 His Honour Judge Shaun Spencer Q.C. sitting in the Bradford County Court, awarded the claimants, Mr and Mrs Terence Milner, £22,000 made up as to £2,500 each for the diminution in the value of their cruise on the luxury liner, Queen Victoria, and £7,500 each for their distress and disappointment when the cruise did not match their expectations, so £10,000 each. He also awarded Mrs Cynthia Milner £2,000 for her wasted expenditure on her wardrobe of formal dining gowns. The defendant, Carnival Plc, which trades as Cunard, appeals with permission granted by Sir Simon Tuckey who said “This case may provide the opportunity to give authoritative guidance on the appropriate measure of damages in “holiday” cases.”
The facts
It is necessary to set out the facts in some detail. On 19th June 2006, almost eighteen months in advance of her sailing, Mr and Mrs Milner booked their passages on the maiden world cruise of the Queen Victoria. This cruise was to depart from Southampton on 6th January 2008 for New York, thence to Los Angeles via the Panama Canal, on to Honolulu, bound for Australasia, Hong Kong, around south- east Asia, India, through the Suez Canal and the Mediterranean, returning to Southampton 106 days later.
The cost of their passage was £65,558, discounted by 10% to £59,052.20. This may seem a lot of money and a very expensive holiday but, as the appellant points out, the price breaks down to £557 per day, £3,900 per week, to cover travel, accommodation, food and entertainment of the highest standard for fifteen weeks.
Cunard's brochure lavishly presented the glamour of the voyage.
“When Samuel Cunard set out to deliver mail across the Atlantic 167 years ago, he little realised he was taking the first step towards a new standard of luxury travel. Since then, Cunard has become a byword for comfort, style, and the ultimate in effortless exploration generation after generation. Today, the legendary Cunard Experience continues to exceed your expectations—with all its accomplished hallmarks—from the very first moment you step aboard.”
Setting out the “Cunard Grills Experience our most lavish expression of elegance”, the brochure proclaimed:
“Wouldn't you love to savour the star treatment like screen idols and noble royals of yesteryear? Don't you deserve a taste of the high life? Welcome, then, to some of the most spacious and sumptuous suites at sea.”
Queen Victoria was to make “her regal debut”, and “three Queens [Queen Victoria, Queen Mary 2 and Queen Elizabeth 2] will uphold our finest traditions of quality and service together, an unprecedented event in Cunard's long and illustrious history”. Of the Queen Victoria the brochure said:
“Step aboard this classic Cunarder steeped in unmistakable Cunard heritage and with all the grace and glamour of her esteemed sisters. Queen Victoria debuts with an exciting flourish. In January 2008 she sets off to greet the globe on her Maiden World Cruise, writing the next exciting chapter of the Cunard legend over 106 unforgettable nights.”
The “latest classic Cunarder” was described in these terms:
“Sleek, contemporary Queen Victoria embraces the most advanced technology and a host of luxurious innovations.”
As the judge pertinently said in his judgment,
“The nature of the description in the brochure as to what the cruise was going to be like is such as reasonably to give to the Milners and to anyone else who was embarking on the cruise, the feeling that they were in for the experience of a lifetime.”
Then he added laconically:
“It is the Milner's case that that is what they got, but not in the way they had bargained for.”
The respondents had deliberately booked that far in advance in order to secure a cabin of their choice. They were, it seems, seasoned voyagers. They were determined to be placed mid-ships where they believed they would be least affected by the movement of the ship in poor weather. They booked a Princess grade cabin number 7083 mid-ships on the starboard side on deck 7.
On leaving Southampton on 6th January 2008, they soon steamed into stormy conditions in the Bay of Biscay. The wind was blowing at force 7, 8 and 9 and the waves into which they were sailing were 5-6 metres high. There was perpendicular pitching with the ship going up and down the oncoming waves with resultant flexing mid-ships. The effect in their cabin was that the floor plates flexed and vibrated and loud noise reverberated throughout the cabin. As the judge found:
“15. It seems to be the case, and it is – as I understand his evidence – accepted by Captain Hall, and I accept it myself that the difficulty with the noise was not simply plates flexing with the effects of the swell and turbulence of the sea. The fact is that some of the plates were bowed upwards, so as to be convex, and when the flexion caused the plates to move from convex to concave, this produced noise. Mr Milner was asked by myself in the witness box if he could do for me the noise, and it is difficult to put into words, but I am quite satisfied that what he was referring to was a loud bang which came out of the blue, and then there were bangs which were sequential and intermittent; the sort of bang that once you have heard it, you cannot really settle down after it because you never know whether another one will be coming afterwards.”
Even with earplugs provided by the purser, sleep was impossible for two nights. The purser's own internal “focus reports” made contemporaneously recorded on 8th January that:
“Mr Milner feels he is at the centre of this technical issue which starts in the bathroom area and travels all the way to the balcony side of the state room. The issue is getting worse as recently the sitting area is included in the vibration as this was not the case the first day and a half. Obviously, a structure problem, which needs to be addressed with the yard as per Mr Milner, he can no longer deal with the noise and vibration, having missed two nights of rest. He mentioned that his level of tolerance has come to an end. He will sleep in public areas if necessary. The lack of sleep is affecting Mrs Milner's chest problems and asthmatic episodes due to stress. Mr Milner almost called an emergency [doctor] last night, as he saw his wife getting worse, while the inhalers were no longer doing what was expected from them. Mr Milner feels really short-changed and demands a solution, or will go home in NYC.”
The disturbance was so serious that the Milners were offered cabin 6083, an inside room with no natural light on the lower deck 6. This was a cabin designed for the disabled and lacked some of the amenities of their chosen quarters. Their clothes were left in 7083 and they walked downstairs and through the corridors in their dressing gowns to sleep in 6083, returning to their own cabin during the day. They put up with those arrangements for the remaining four days of the voyage to New York.
Mr Milner had begun to keep a diary recording his complaints. Two entries during that period tell a story. His entry for 12th January said:
“Same routine as yesterday. Getting very tired of the situation. Cindy getting more distressed by the day.”
On the other hand his entry for the following day was:
“Got up at 4.30 am to witness sail into New York. Fantastic memorable day. Sail away of the three Queens truly fantastic.”
For the voyage from New York to Los Angeles which was to last 17 days, the Milners were provided with suite 8090. Although he described the accommodation as “excellent” Mr Milner did record in his diary that “We feel like gypsies moving about. Only in for 2 or 3 days so we cannot empty our cases until we have a permanent home.”
On 15th January he wrote: “Broken sleep, not due to current suite or any noise but because of uncertainty of the ongoing situation. We need our minds putting to rest.”
The problem was that they had been offered that suite for only 2 or 3 days although eventually it was made available to them for the rest of the journey to Los Angeles. The reason for this was that it had been reserved for other passengers who had missed the boat at Southampton, hoped to join at Fort Lauderdale in Florida and eventually planned to come aboard in Los Angeles. Confirmation that they could stay there came as a relief.
But it did not wholly resolve their difficulties. Mr Milner wrote to the hotel director on board, Mr Howie, on 15th January saying:
“Thank you for the temporary move to suite 8090. Our days and nights have greatly improved. We appreciate the situation given to our problems with suite 7083 by Ruude Janssen [the purser] and yourself and it is essential, if we are to be moved back into that room, that we are given written assurances from you that the plate problem, which has affected our voyage so far, has...
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