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Scenic Tours, the luxury Australian river cruise line facing a class action which could involve hundreds of clients over how they handled the European floods two years ago, is using the fine print of its terms and conditions as part of its defense.

Passengers – including a partner in the law firm taking what could turn out to be a landmark action – claim instead of cancelling their cruises, Scenic and associated company Evergreen Tours used coaches to move them around during the floods between May 10 and June 14.

As a result, they claim they missed out on cruising and many of the sights.

Somerville Legal, The law firm representing them, has invited 1,300 passengers to join the class action in the NSW Supreme Court.

David Moore and Janette Howell told Fairfax Media they spent their life savings – $26,200 – on what they expected to be a river cruise through the French and German countryside.

Instead, they spent hours on “substandard coaches, including one without a working toilet and air-conditioning”.

Heavy rain in France and Germany caused massive flooding on the Rhine, Saone, Rhone and Danube rivers in 2013.

Mr Moore, a Lake Macquarie school teacher, said Scenic Tours did not give passengers warning of the significant changes, disruption or delays to the itinerary necessitated by the weather.

Founding Partner of Somerville Legal, Tim Somerville and his wife were passengers on a cruise in southern France.

He said the company used the vessels as ‘floating hotels’ where passengers were bused on coaches to designated landmarks.

On long bus journeys, some passengers had to stay overnight at “second-rate budget hotels”.

He maintained: “When we arrived, we were greeted onboard as per normal so as soon as we stepped on the ship, we thought everything was fine.

“But by the second or third day, we had not left the embarkation point after we were told there was a ‘temporary problem’. And then the bus tours started.”

“What the other passengers and myself are upset about is that we were lied to. My wife and I were quite lucky that we were not on one of the longer cruises. We have heard of stories of some people being raced down highways and autobahns to make it to the next destination.”

He also said, according to other passenger accounts, the company stationed vessels at the embarkation, disembarkation and middle points to be used as floating hotels.

“There were some passengers with limited mobility who particularly chose to cruise because they don’t want to be hopping on and off a coach. We have heard stories of people with bad backs sitting on coaches for prolonged periods of time,” said Mr Somerville.

“The staff onboard were lovely and very helpful, but every morning they were given lines to rehearse to us about the situation and what is appalling is that we were being lied to.”

Chief Operating Officer of Scenic Tours, Damien Thomas, released a statement which said: “Unfortunately, we have no control over the weather. These were extreme circumstances with this level of flooding only occurring every 100 years.

“We do, however, always respond as best we can in these challenging circumstances, and aim to provide the highest quality service and travel experience at all times including when a change to an itinerary is necessary due to prevailing weather or river conditions. The quality of the guest experience is always our top priority and we always do our utmost to limit the impact on their holiday.”

The plaintiffs are seeking compensation and/or personal injury damages for inconvenience, distress and disappointment and the lost opportunity to cancel.

Scenic Tours is maintaining the river cruises were not operated by Scenic Tours but by independent contractors including Scenic Tours Europe AG. Any claim should be dealt with by them.

In a statement lodged with the court, it points to the terms and conditions.

Among the terms are some headed: How can We vary this Contract?

This states in part:

  1. (e)  Although We will use reasonable efforts to operate the Tour as close as possible to Your Itinerary, changes or substitutions may be necessary for reasons outside Our control. These circumstances may include, but are not limited to:

(1) road, river or weather conditions;

  1. (f)  Cruise itineraries may be varied due to high or low water levels, flooding, …for any other circumstances beyond Our control.
  2. (g)  We may substitute (at the nearest reasonable standard) another vessel or motor coach for all or part of the Itinerary and also provide alternative accommodation, where necessary.
  3. (h)  Where We make a variation to the Itinerary, We are not liable to You for such variations.

The case returns to court in July and a full hearing will take place in April 2016.

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