Over 1,000 unhappy passengers took their class action against leading cruise company Scenic Tours to the NSW Supreme Court today in a case the industry will be watching closely for its ramifications.
Changing river conditions – particularly in Europe – have long been a problem for the travel companies, and this is one of the biggest cases where passengers are seeking compensation.
If the 1,265 plaintiffs win substantial sums, it will mean many river cruise companies will need to change their contracts and may even make them look again at their itineraries.
They booked the holiday with Scenic and Evergreen Tours in Europe between May 10, 2013 and June 14, 2013, but heavy rainfall in France and Germany caused major flooding. Water levels on the Rhine, Saone, Rhone and Danube rivers rose so much that river boats were unable to operate for around six weeks.
The plaintiffs barrister Alistair Abadee told Justice Peter Garling 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”.
“The consumers did not pay for a backpackers’ Contiki tour,” he said.
Mr Abadee also said Scenic “later issued apologies to any passenger who complained (saying) circumstances had occurred beyond its control”.
Internal documents reveal that Scenic’s then-general manager of operations, Justin Brown was looking for alternative options for the guests including cancelling tours during the critical period. He also said he gave “serious consideration” to cancelling tours already part-way through and giving partial refunds.
Gregory McNally SC for Scenic Tours admitted the “majority” of passengers were not given the option to cancel.
He said Scenic wanted passengers to experience as much of the planned tour as possible. He also said if Scenic had cancelled its 13 tours, hundreds of passengers would have been “stranded in Europe”.
The leading plaintiffs of the case, a Lake Macquarie school teacher David Moore and his partner, Janette Howell spent their savings of $26,200 on what they thought would be a luxury river cruise.
Mr Moore said he opted for the river cruise because a spinal fusion surgery he had more than 20 years earlier meant he could not spend extended periods of time sitting down in a bus.
He also said the company did the not give passengers any warning of the significant changes, disruptions or delays to the itinerary necessitated by the weather.
Justice Garling asked Mr McNally if the terms and conditions allowed ship travel to be replaced by coach or any other method of transport.
Mr McNally said it could if an alternative provided was a reasonable substitute.
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.
The company also said it was not liable for any loss, cost or damage including the failure to perform its obligations because of an events like high water levels.