ANOTHER BIG CLASS ACTION - Bus tour not 5* river cruise

In the context of previous posting on this board re Carnival pax class action (cruise line proceeding with the cruise whilst being aware of the bad weather) - you might be interested to read detailed arguments in the Herald story today - about the reason for class action against the 5* Scenic Tours Europe river cruise.

The link:

http://www.smh.com.au/nsw/class-action-against-against-scenic-tours-over-european-river-cruises-20160426-goez9y.html

The crux seems to be that Scenic actively considered cancelling the cruises and advising pax - but did not. As the extract of the story says:

''The 13 affected tours included Amsterdam to Budapest, Amsterdam to Basel and the rivers of southern France.

The plaintiffs' barrister, Alister Abadee, told Justice Peter Garling that on two of the tours, 11 out of 15 cruising days were lost. Other cruises lost between one and 10 cruising days.

Instead of visiting cities and sites via the river and spending nights in "five-star accommodation" on a boat, the passengers endured very long bus rides and in some cases stayed overnight at "low-budget hotels", Mr Abadee said.

"The consumers did not pay for a backpackers' Contiki tour," he said.

Mr Abadee said Scenic "later issued apologies to any passenger who complained [saying] circumstances had occurred beyond its control".

SO if this action succeeds, it MAY provide also some precedents in Australian Courts for dealing with the operators of sea cruises.

I have been researching various river cruise companies as am interested in booking one. Many have in the fine print about disruptions to river cruise due to low/high river levels and reserve the right not to cancel cruise but to 'bus pax' along the route of the cruise and stay in selected hotels. Scenic was one of them I think.

And Scenic is fighting this case hard - 6 day hearing in the Supreme Court list - all this week and Mon, Tues and Wed of next week. Would be very interesting to hear both 'stories' - should be good 'entertainment' for those with time and interest in this.

Interesting also that some posters think that Carnival will settle their class action (in Carnival thread on this board) - as they may not have the stomach to play 'hard ball' as Scenic does.

The possibility of a bus tour staying in hotels booked at short notice does not appeal to us.

This may have been the time when other river cruise ship companies cancelled their cruises or gave their passengers the option to cancel, but Scenic did not, despite knowing the river level situation.

I woudn't have been happy either, as passengers didn't get what they paid for, despite the small print.

Later - yes it was -

Scenic Tours is defending the case. It said the standard terms and conditions of the contract allowed it to make changes to itineraries, including due to road, river or weather conditions.

The company said it was not liable for any loss, cost or damage, including the failure to perform its obligations, because of a force majeure event such as high water levels.

Furthermore, it said the river cruises were not operated by it but by independent contractors, including Scenic Tours Europe AG, and any claim must be pursued against them.

But Mr Abadee said the internal emails show it was Scenic's Australian general manager, Mr Brown, and not someone from the contractors, who was canvassing its options, including cancellations and refunds.

Interesting that Scenic said the river cruises were not operated by it but by independent contractors, etc.

Wow, I know I would rather be given the option of canceling and a refund, so that I could choose my own "alternative plans" using said refund. I can't speak much to the legalities of it all, but as a customer, that's definitely what I would want in such an event.

They should rethink their policies on this regardless of the legalities. The bus trip doesn't sound like fun or even close to a "reasonable substitute", like they said, these are not 18 year olds looking for a Contiki tour, and many probably couldn't think of anything worse.

Not to mention a Contiki tour would be much cheaper! They did not get even close to what they paid for.

Wow, I know I would rather be given the option of canceling and a refund, so that I could choose my own "alternative plans" using said refund. I can't speak much to the legalities of it all, but as a customer, that's definitely what I would want in such an event.

 

They should rethink their policies on this regardless of the legalities. The bus trip doesn't sound like fun or even close to a "reasonable substitute", like they said, these are not 18 year olds looking for a Contiki tour, and many probably couldn't think of anything worse.

 

Not to mention a Contiki tour would be much cheaper! They did not get even close to what they paid for.

I think the fact that other river cruiselines, on the same flooded rivers, chose to cancel their cruises, or give their passengers a choice to cancel, will go against Scenic, in this case. They had a choice and they made the wrong call by their passengers.

While such changes may be in the terms and conditions, I certainly would not find a bus cruise an acceptable substitute. I would rather they said it can't happen now due to the weather, we are cancelling. I would even rather have credit for a future cruise but understand for many that may mean nothing as they might not be able to get that much time off again or the cruise was part of a longer land tour.

I would hate a bus substitute and now having had a dvt, probably couldnt do it. I would cancel in a heartbeat.

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The Class Action which is the subject of this thread is directly related to a post that Marty put up on CC after the "cruise"

http://boards.cruisecritic.com/showthread.php?t=1892421

This may have been the time when other river cruise ship companies cancelled their cruises or gave their passengers the option to cancel, but Scenic did not, despite knowing the river level situation.

 

I woudn't have been happy either, as passengers didn't get what they paid for, despite the small print.

 

Later - yes it was -

Scenic Tours is defending the case. It said the standard terms and conditions of the contract allowed it to make changes to itineraries, including due to road, river or weather conditions.

The company said it was not liable for any loss, cost or damage, including the failure to perform its obligations, because of a force majeure event such as high water levels.

Furthermore, it said the river cruises were not operated by it but by independent contractors, including Scenic Tours Europe AG, and any claim must be pursued against them.

But Mr Abadee said the internal emails show it was Scenic's Australian general manager, Mr Brown, and not someone from the contractors, who was canvassing its options, including cancellations and refunds.

 

Interesting that Scenic said the river cruises were not operated by it but by independent contractors, etc.

Funny that - I know that on FB, people who were O/S ahead of their river cruise (which predominantly ended up being a bus tour) actually posted on ST FB site that they wanted to cancel due to the weather but the message back from Head Office (in Australia) was to proceed to the hotel where they were to meet the rest of the group ... doesn't sound like the independent operator was running the show.

Even if it was an independent contractor or operator, (a) it was operating under the banner of ST, and (b) had to deliver a "product" owned and sold by ST. It may be that this independent operator is a European company owned by ST - I don't know for sure tho'.

The other issue about the "independent operator" won't wash IMO because the Aussies on that cruise bought their cruise here in Australia - many probably directly with ST so the contract is between them and ST - not an independent operator.

Finally, the T&C cannot over-ride Consumer Law nor extinguish your rights under law.

IMO, big companies try to get away with as much as possible when it comes to refunds etc and offer very little.

I seem to recall in Marty's thread he and his partner were offered something like $250 in compensation - not much for all the inconvenience and the price they (and others paid).

Personally I wouldn't feel like I had much of a holiday at all if I was bussed everywhere when I had paid $$$ for a cruise.

I think you can do a 14 day bus tour around Europe for thousands less than a cruise and even then you get all breakfasts and some dinners

My forecast, Scenic will win on the basis of terms and conditions.

Little wonder many river cruise companies, Scenic, APT, Viking, Avalon, Evergreen etc are offering half priced cruises and free airfares. Business is down, bad publicity re cancellations, the economy and tourists avoiding Europe due to terrorist fears.

In the thread posted above by dougo in oz by Marty who was on this tour, he said the company refused to declare a force majeure, meaning they couldn't cancel and claim on their travel insurance. So how can they claim force majeure now?

I don't know that their "terms and conditions" will protect them in this case. Terms and conditions have to be fair and reasonable don't they? They got nothing close to what they paid for.

If that's right the line may have some difficulties.

My forecast, Scenic will win on the basis of terms and conditions.

 

Little wonder many river cruise companies, Scenic, APT, Viking, Avalon, Evergreen etc are offering half priced cruises and free airfares. Business is down, bad publicity re cancellations, the economy and tourists avoiding Europe due to terrorist fears.

Maybe ... maybe not

In last night's news ??? or perhaps an online newspaper ??? the judge presiding over this case was alleged to have said that he noted the T&C said the company (Scenic Tours / Evergreen) could substitute a vessel.

Allegedly he went on to say that many people may think of a vessel being a ship and a bus is a bus. Therefore passengers may not consider / think that the company could replace a vessel with a bus .... or words to that effect.

The dictionary definition of 'vessel' is 'A craft for travelling on water'. I am not involved in this action, but I would hate to see it dismissed on the grounds that a bus is classed as a vessel.:(

Maybe ... maybe not

 

In last night's news ??? or perhaps an online newspaper ??? the judge presiding over this case was alleged to have said that he noted the T&C said the company (Scenic Tours / Evergreen) could substitute a vessel.

 

Allegedly he went on to say that many people may think of a vessel being a ship and a bus is a bus. Therefore passengers may not consider / think that the company could replace a vessel with a bus .... or words to that effect.

And don't hold your breath for the FINAL decision in this case - it won't be made for a quite long time. As the judge indicated today, he fully expects whatever decision he reaches will be appealed against by either party.

The plaintiffs who run this class action on behalf of some 1200 pax have called a representative sample of only some 7 witnesses (two from interstate) in support of their case. They will be preparing detailed written legal submissions next week, with the hearing resuming week after to argue their legal points (apparently no more witnesses to be called).

More information about the Scenic Tours river boat case for in Sydney - those of you who might be interested in some details (adapted from CruiseWeekly.com.au)

1. A total of 13 tours are included in the case (CW 07 Apr 15) with two of the tours allegedly losing 11 out of 15 days of cruising while other trips lost between one and 10 cruising days. Instead of visiting cities via the river and spending nights on board their luxury ship pax claim they experienced long bus rides and in some cases stayed overnight at “low-budget hotels”.

2. Not all affected pax joined the class action, with some accepting a Scenic apology and an $1,000 future cruise credit as compensation

3. Scenic’s barrister, Gregory McNally, said the company made every effort to ensure pax experienced as much of their planned trips as possible. Scenic has also put forward the argument that in the standard terms and conditions of the contract they were eligible to make changes to itineraries including for reasons relating to weather conditions

4. Somerville Legal says Scenic breached the Australian Consumer Law by not delaying or cancelling the cruises or offering an alternative/ warning people of the expected disruptions, particularly pax who were travelling from Australia to Europe for their trip.

And my search of the CC News shows that a number of river boat companies cancelled some tours during the worst period of 2013 Europe floods - as per this link - But Scenic did not:

http://www.cruisecritic.com.au/news/news.cfm?ID=5384

And my search of the CC News shows that a number of river boat companies cancelled some tours during the worst period of 2013 Europe floods - as per this link - But Scenic did not:

 

http://www.cruisecritic.com.au/news/news.cfm?ID=5384

A number did not cancel as well - and I'd expect the worst case is to have to cancel, with responsible tour providers doing their best to operate as best as possible.

Very interesting to see that the current court action against Scenic made them to do what should have been done long before - a free travel insurance enabling passengers to cancel AFTER COMMENCEMENT in view of severe weather disruption- and to get cash refund. So in future Scenic would not be so shy to cancel a cruise at the start or even half way through. So it's the big win for future river cruises pax, irrespective of the court result.

Reported from in Cruise Passenger Magazine - reproduced below:

"Luxury river cruise line Scenic has released a new guarantee over sailings in Europe.

The move came in its newsletter at the end of a week in which passengers took the line to court claiming they lost out over weather-hit sailings in Europe.

No-one at Scenic could say whether the announcement was connected.

Over a thousand passengers have filed the lawsuit against Scenic and Evergreen Tours after they booked cruise between May 10, 2013 and June 14, 2013.

Heavy rainfall in France and Germany caused major flooding and water levels on the Rhine Saone, Rhone and Danube rivers rose so much that the boats were unable to operate for around six weeks.

In a newsletter sent out today by the company, Scenic’s river cruise guarantee says, “Staying true to our commitment of being all-inclusive, Scenic has partnered with a well-known global insurance company to offer, for the first time, river cruising travel insurance.

“On every Scenic river cruise you’ll be automatically covered once you commence your cruise for any delays or cancellations that occur due to weather, natural disasters, mechanical breakdowns or strikes. There’s nothing extra to pay, we automatically cover you in the price you pay for your cruise.

We appreciate that you’ve invested a lot in your holiday with us and we want to ensure that we provide you with peace of mind when travelling with Scenic.

Our river cruising guarantee is designed to give you comfort and assurance for certain events which prevent you from cruising, and are not considered typical or usual to river cruising. Our river cruising guarantee is designed to insure for unforeseen events rather than minor delays or deviations.

In the event that a claim is required, instead of the industry standard of future cruise credits you will be refunded in cash

At the court case, the plaintiffs barrister Alistair Abadee told Justice Peter Garling this week that instead of visiting cities and sites via the river and spending the night onboard Scenic’s five-star boats, the passengers were on very long bus rides and in some cases, stayed over night at “low-budget hotels”.

Solicitor Tim Somerville was a passenger onboard a cruise in southern France. He said the company used the vessels as ‘floating hotels’ where passengers were bused on coaches designated landmarks.

In a statement of claim, the group said Scenic Tours breached the Australian Consumer Law by failing to cancel or delay the cruises, offer alternative tours or warn of expected disruptions.

Scenic is defending the case by stating in its terms and conditions of contract that the company is allowed to make changes to itineraries include due to road, river and weather conditions.

All witnesses have given evidence and have been cross-examined. The case was adjourned and will resume on May 11.When Cruise Passenger asked Scenic for a comment, a spokesperson said that they would need to speak to the appropriate person and couldn’t comment on the court case.

Very interesting to see that the current court action against Scenic made them to do what should have been done long before - a free travel insurance enabling passengers to cancel AFTER COMMENCEMENT in view of severe weather disruption- and to get cash refund. So in future Scenic would not be so shy to cancel a cruise at the start or even half way through. So it's the big win for future river cruises pax, irrespective of the court result.

 

Reported from in Cruise Passenger Magazine - reproduced below:

 

"Luxury river cruise line Scenic has released a new guarantee over sailings in Europe.

The move came in its newsletter at the end of a week in which passengers took the line to court claiming they lost out over weather-hit sailings in Europe.

 

No-one at Scenic could say whether the announcement was connected.

 

Over a thousand passengers have filed the lawsuit against Scenic and Evergreen Tours after they booked cruise between May 10, 2013 and June 14, 2013.

 

Heavy rainfall in France and Germany caused major flooding and water levels on the Rhine Saone, Rhone and Danube rivers rose so much that the boats were unable to operate for around six weeks.

 

In a newsletter sent out today by the company, Scenic’s river cruise guarantee says, “Staying true to our commitment of being all-inclusive, Scenic has partnered with a well-known global insurance company to offer, for the first time, river cruising travel insurance.

 

“On every Scenic river cruise you’ll be automatically covered once you commence your cruise for any delays or cancellations that occur due to weather, natural disasters, mechanical breakdowns or strikes. There’s nothing extra to pay, we automatically cover you in the price you pay for your cruise.

 

We appreciate that you’ve invested a lot in your holiday with us and we want to ensure that we provide you with peace of mind when travelling with Scenic.

 

Our river cruising guarantee is designed to give you comfort and assurance for certain events which prevent you from cruising, and are not considered typical or usual to river cruising. Our river cruising guarantee is designed to insure for unforeseen events rather than minor delays or deviations.

 

In the event that a claim is required, instead of the industry standard of future cruise credits you will be refunded in cash

 

At the court case, the plaintiffs barrister Alistair Abadee told Justice Peter Garling this week that instead of visiting cities and sites via the river and spending the night onboard Scenic’s five-star boats, the passengers were on very long bus rides and in some cases, stayed over night at “low-budget hotels”.

 

Solicitor Tim Somerville was a passenger onboard a cruise in southern France. He said the company used the vessels as ‘floating hotels’ where passengers were bused on coaches designated landmarks.

 

In a statement of claim, the group said Scenic Tours breached the Australian Consumer Law by failing to cancel or delay the cruises, offer alternative tours or warn of expected disruptions.

 

Scenic is defending the case by stating in its terms and conditions of contract that the company is allowed to make changes to itineraries include due to road, river and weather conditions.

 

All witnesses have given evidence and have been cross-examined. The case was adjourned and will resume on May 11.When Cruise Passenger asked Scenic for a comment, a spokesperson said that they would need to speak to the appropriate person and couldn’t comment on the court case.

Hmmm ... AFTER THE TOUR COMMENCES .... what use is that to people to fly all the way over to Europe or elsewhere, probably aware that they are facing poor weather as it was in the case of many of those in the Class Action ?

I'm sure there would be an "out" in that - I would be surprised if a full refund applied AFTER the tour was cancelled.

Would it not be far wiser to cancel it before the tour began such as those other cruise lines did in 2013 ?

Noticed that since the event in 2013, the T&C's have already been changed -and are changing- as per this link, If you want to read the complete T&C's.

NB: Evergreen = subset of Scenic --> same office etc

http://www.evergreentours.com.au/Content/PDF/ETAU_TermsConditions.pdf?webSyncID=e910bb96-1c28-b056-38c6-d751297d36d0&sessionGUID=c7c3e140-2aac-a133-0318-4291988143bb

(If you do, you would not partake, I'm sure)

If you don't want to read it all, the pertinent clause is 2.10

Has varied considerably since the 2013 floods in Europe.

As DougOz mentioned, it is amazing about so called "Free Insurance" AFTER the trip commences. Free? Scenic? Hahaha.

So what happens if there are floods BEFORE you board?

Waiting with great anticipation on the judgement of the current action.

What amazes me is how any people don't read T&Cs on pretty much anything.

But I guess struggling lawyers have to make a quid somehow.

The terms and conditions are often curiously and ambiguously worded and open to interpretation. For instance, what is 'reasonable effort'.

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The terms and conditions are often curiously and ambiguously worded and open to interpretation. For instance, what is 'reasonable effort'.

 

It needs to be otherwise you get a long laundry list of items, which won't cover relevant situations. If it came down to it, it'd be the judge who determined whether a certain effort was reasonable (instead of having some arbitrary metric like 4 officers working a combined 20 hours or some other specific figure, that wouldn't be appropriate as the effort would vary by situation).