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An intrepid elderly couple have won an £80,000 court battle after their Arctic cruise through the infamous Northwest Passage was scrapped because the weather was too cold.
Adventurers Nicholas Sherman, 76, and wife Rosemary, 75, have spent their later years travelling, ticking off Antarctica, Canada, Singapore, New Zealand, South Africa and India as they made their way around the world.
So when they discovered a cruise entitled ‘Northwest Passage – in the Wake of the Great Explorers’, they were delighted and called it their ‘trip of a lifetime’.
Retired businessman Mr Sherman was especially excited at the prospect because he is descended from American Civil War General William Tecumseh Sherman, after whom Sherman Inlet, in Nunavut, Canada, is named, while Mrs Sherman is originally from Canada.
But their trip was ruined by sea ice created by colder than usual weather and, in a change to the itinerary, their ship instead spent most of its time around Greenland, with some time at the Passage’s Baffin Island.
Nicholas and Rosemary Sherman outside the Court of Appeal after a hearing in a row over their Northwest Passage cruise
A map of the Northwest Passage route where the cruise was supposed to take the couple, which goes past Greenland, through the Arctic Archipelago, Franklin Bay and over to Little Diomede
Devastated, the couple sued Reader Offers Ltd, through which they booked, for their £20,000 ticket price back, initially losing and being handed £60,000 in lawyers’ bills at Winchester County Court.
They then appealed and had the verdict reversed in their favour at the High Court in February last year, with the decision now confirmed by Court of Appeal judges last week.
Three senior judges sent the case back to the county court for an assessment of the amount in compensation the Shermans – who have represented themselves throughout – are entitled to.
The decision means they could be due about £20,000 and will not have to pay the £60,000 court bill they were initially handed, with Reader Offers having to cover its own legal costs.
The Northwest Passage is a treacherous route connecting the Atlantic and Pacific Oceans through the Arctic waterways of northern Canada.
The quest to navigate the route has claimed the lives of many explorers, most famously Sir John Franklin, who was one of 129 officers and men who died in an attempt to traverse the last unnavigated waters of the Canadian Arctic.
The expedition set off in two ships, HMS Erebus and HMS Terror, in 1845, but became stuck in ice and the location of the two lost ships was only discovered in 2014.
The Northwest Passage quest was finally achieved by Norwegian explorer, Roald Amundsen, in 1906.
In the now upheld High Court judgment in the case, Mrs Justice Collins Rice told how the ‘seasoned, not to say intrepid, travellers’ had learned of the cruise.
Nicholas Sherman, 76, pictured during his Northwest Passage cruise
Mr Sherman, a former IT industry director and Mrs Sherman, who worked for their village GP, were on another Arctic cruise in December 2017 when they met and became ‘firm friends’ with another couple, who told them of the Northwest Passage cruise they were intending to take in September 2018.
‘The Shermans’ imagination was immediately fired up,’ said the judge.
‘Mrs Sherman has Canadian heritage and the Shermans are frequent fliers to visit her family there.
‘And Mr Sherman has the distinction of being a descendant of one of the explorers of the legendary Northwest Passage, after whom Sherman Inlet in Nunavut is named.
‘The Shermans are fascinated by the history of NWP exploration: the centuries-long quest to find a maritime route, through the Canadian polar waterways, connecting the Atlantic and Pacific Oceans.
‘The Shermans could not wait to join their new friends on the NWP cruise.
‘Mrs Sherman got on the phone as soon as they returned from Antarctica and made the booking.
‘It was an expensive cruise – they paid more than £20,000 for it – but Mrs Sherman’s 70th birthday was coming up so it was a ‘trip of a lifetime’ special occasion.’
She said the ‘thrilling’ detailed itinerary involved a flight from Montreal to the cruise ship at Cambridge Bay, which would then sail eastwards for eight days along the NWP route.
Rosemary Sherman, 75, pictured during the Northwest Passage Cruise
It would go via Gjoa Haven, where the Franklin expedition perished, the James Ross Strait, Conningham Bay, Beechy Island, where Franklin wintered, and Pond Inlet on Baffin Island.
The cruise would take in those ‘resonant sites, full of explorer history’ before heading to Greenland and a flight back home via Copenhagen.
‘But it did not turn out that way,’ she continued.
‘The sea ice closed in on the NWP that September. The flight from Montreal took them to the ship waiting at Pond Inlet, but hopes of an alternative westward approach to the NWP were soon abandoned.
‘The ship spent some time at Baffin Island, then headed directly for Greenland where, after a few more unscheduled stops, it was all over.
‘The Shermans went to none of the places and saw none of the things they had most wanted to experience. It was a bitter disappointment.’
The couple, from Sixpenny Handley, in Dorset, demanded a refund, but Reader Offers refused, leading to the case going to the county court, High Court and finally the Court of Appeal last week.
Representing the company, Sarah Prager KC argued that the judge had misapplied the Package Travel, Package Holidays and Package Tours Regulations 1992, as they apply to refunds for holiday alterations.
The judge was wrong in finding that the ‘detailed itinerary’ – setting out the intended stops and route – was part of the contract with the Shermans, she argued.
The ‘basic itinerary’ – touring part of the Northwest Passage – was ‘not altered,’ she continued, or alternatively was not altered in a significant way.
Pictured: The cruise ship which took the Sherman’s mainly around Greenland, with some time at the Passage’s Baffin Island
The extreme weather conditions that summer and the increase in sea ice meant the changes to the intended route were not foreseeable, she added.
However, the judge had found that because the weather only ever leaves a short annual window of opportunity to navigate the Northwest Passage that it is foreseeable that it would not be navigable at all.
‘The unchallenged expert evidence was diametrically opposed to this conclusion, as were the properly reasoned findings of fact of the Recorder at first instance, although she acknowledged that these findings were fact sensitive,’ she continued.
She said the appeal was vitally important to the travel industry in the wake of Covid-19 cancellations and the general way the cruise industry works.
Mr and Mrs Sherman represented themselves in court, arguing that the decision of Mrs Justice Collins Rice was correct and should stand.
Announcing their decision, but reserving their detailed reasons until a later date, the appeal judges agreed that the regulations had been misapplied, but said that in the specific circumstances of the case, the judgment in favour of the Shermans was correct.
Lord Justice Underhill, Lady Justice Asplin and Lord Justice Males dismissed Reader Offers’ appeal and sent the case back to the county court to decide what compensation the Shermans are due.
Speaking afterwards, Mr Sherman said: ‘To be honest, this case has nothing to do with the money,’ adding that it was about ‘principle’ and protecting travellers in similar circumstances in the future.
‘Our purpose is not the money, it is to stop it happening again,’ he said.
