Law report: No liability for refusal to carry ferry passenger

17 November 1999 Naraine v Hoverspeed Ltd Court of Appeal (Lord Bingham of Cornhill CJ, Lord Justice Schiemann and Lord Justice May) 12 November 1999

THE REFUSAL of a ferry operator to carry to France a passenger who did not have the travel documents required by the French authorities neither violated the passenger's community law right to travel freely, nor amounted to racial discriminination.

The Court of Appeal dismissed the appeal of Khamta Naraine against the dismissal of his claims against Hoverspeed for refusing to carry him to France.

Mr Naraine, who was born in Guyana of Asian Caribbean origin, had for many years been a British citizen. In May 1994 he wished to go to France on a day trip. He only had a British Visitor's Passport (BVP) with him.

France had agreed in 1961 to accept the BVP, but had reserved the right to refuse any person leave to enter. Following the introduction of the Schengen Convention, France, as a contracting state, incorporated the Convention requirement that

the carrier must take all necessary measures to ensure that the passenger carried by air or sea is in possession of the travel documents required for entry into the territory [of the contracting states]

into its domestic law.

The new legislation was applied to Hoverspeed in April 1994, by which time France had introduced a visa requirement for some BVP holders. Hoverspeed knew that the French authorities were refusing to admit BVP holders who had been born outside the United Kingdom, and were imposing substantial fines on sea carriers who brought such passengers to France. They, therefore, refused to carry Mr Naraine to France.

He brought proceedings against Hoverspeed, claiming that they had violated his community-law right to travel freely from one member state to another in breach, inter alia, of the 1961 agreement; and had unlawfully discriminated against him directly or indirectly on racial grounds under either section 1(a) or 1(b) of the Race Relations Act 1976. The judge dismissed both claims.

Richard Drabble QC and Rambert de Mello (Commission for Racial Equality) for Mr Naraine; Christopher Vajda QC, Rhodri Thompson and Paul Nicholls (Cripps Harries Hall, Tunbridge Wells) for Hoverspeed; Gerald Barling QC, Eleanor Sharpston QC and Kieron Beal (Treasury Solicitor) for the Secretary of State for the Home Department.

Lord Bingham CJ said that, by denying Mr Naraine entry into France, the French authorities were not in breach of the 1961 agreement. Although they had undertaken to accept the BVP as a valid passport, they had reserved the right to insist on compliance with French entry requirements. Some legitimate holders of BVPs required visas to enter France, and BVPs did not enable the French authorities to distinguish between those who required visas and those who did not.

Moreover, even if they had acted in breach of the agreement, it could not be argued that breach of an inter- national treaty conferred any private rights on Mr Naraine, let alone rights enforceable against Hoverspeed.

Where a complaint of direct discrimination on racial grounds was made, it was necessary to compare the treatment of the complainant with that of a comparator in substantially the same position. The proper comparator in the present case was another BVP holder born outside the UK, and, as between himself and such a comparator, Mr Naraine could show no unfavourable treatment as required by section 1(a) of the 1976 Act.

Moreover, Mr Naraine would not have been able to show that such treatment was "on racial grounds", because Hoverspeed's records showed that its refusals to carry passengers to France were concerned only with the fact that the passengers concerned lacked the travel documents required by the French as a condition of entry.

Further, with regard to the claim of indirect discrimination, Hoverspeed's refusal to carry to France any passenger lacking acceptable travel documents was justifiable within section 1(b)(ii) of the Act, both because such carriage would be of no imaginable benefit to those passengers, and because it would have exposed Hoverspeed to the imposition of a severe financial penalty.

Kate O'Hanlon,

Barrister