Scenic could be forced to pay up to $16 million in damages and fares to customers in a massive class action case.
More than 1200 travellers booked on luxury Scenic cruises were served up a very different holiday when extensive rainfall and mass flooding in France and Germany in 2013 caused significant river risings.
The consequence of the flooding meant river cruises were unable to navigate the torrential waters as per usual. However Scenic didn’t cancel the trips, as many other operators did, but rather operated tours via buses instead.
In the NSW Supreme Court yesterday, Justice Peter Garling found Scenic breached the Australian consumer law, per ABC, by not informing passengers about the severe weather disruptions.
He said the tour company “played down the significance of what was occurring on the rivers in Europe”.
He added that by downplaying the disruptions, Scenic concealed the company’s “internal position that it would offer a full refund for guests on the identified cruises if requested”.
Justic Garling said that Scenic should have given customers the option to postpone or cancel their trip, per ABC.
“Scenic had a continuing obligation to provide intending passengers (at least those who had made bookings which had been accepted) with information about events, or the consequences of events, which may have impacted…upon the passenger’s ability to travel in accordance with the itinerary and to enjoy the luxury cruise experience which Scenic had promised.”
But Scenic is disputing the decision, which has seen David Moore lead 1265 participants in the class action, resulting in Moore successfully awarded $13,000.
Most passengers in the class action will, per ABC, be entitled to a refund, damages and interest, after booking what was promised to be a “once in a lifetime luxury river cruise”, which could amount to as much as $16 million.
A Scenic spokesperson told Travel Weekly, “It is important that we review the judgment in detail before making specific comment on the decision.
“Scenic will be appealing the decision handed down yesterday. We note there have been reports of Scenic’s estimated liability for the payout to the class. These estimations are premature and in any event it is important to note that not all cruises were affected in the same way.
“A blanket estimate cannot be drawn from Mr Moore’s individual award.”
In addition to this, Scenic’s spokesperson added, “I can confirm it has always been Scenic’s practice to deliver itineraries as close to schedule as possible without compromising on safety or comfort.
“To put some context around the matter, despite the extraordinary weather conditions in Europe in early 2013, less than five per cent of Scenic cruises in the past four years resulted in any itinerary change.
“During that time we welcomed around 200,000 guests across more than 8,300 cruise days, the vast majority of which were unaffected.
“But while the prospect of schedule interruptions is statistically very low, we take nothing for granted and have continued to invest in our river cruising product.”
Per ABC, Scenic Tours claimed each of the members in the class action signed a contract in which they accepted its terms and conditions.
The contract stated, “Cruise itineraries may be varied due to high or low water levels, flooding…[and] circumstances beyond our control”.
“We may substitute (at the nearest possible standard) another vessel or motorcoach for all or part of the itinerary and also provide alternative accommodation, where necessary.
“Where we make a variation to the itinerary, we are not liable to you for such variations.”
Per ABC, the company was ordered to pay costs, which will be determined at a later date.
Solicitor Ben Hemsworth told the courts, “It’s a group of ordinary Australians who paid a lot of money thinking they were going to get a luxury cruise.
“They didn’t get that, they feel they have been wronged and today they were vindicated by the court.
“They turned up expecting a luxury cruise going from port to port and dining on that cruise liner and they ended up being out on buses and taken to places they were not expecting.
“A lot of the passengers were elderly and wanting to stay in the one place, so having to be moved around by bus was distressing to them.”
Per ABC, the members of the class action argued that Scenic “should have known that the rising river levels would, or were likely to, substantially disrupt, for a period of six weeks thereafter, the enjoyment of passengers scheduled to embark upon river cruises”.
“The plaintiff and group members contend that such knowledge ought to have been known to the defendant as reasonable tour operators conducting business in Europe, being river cruises along European rivers,” the statement of claim said.
The statement said they all suffered loss or damage including the price of the tour, a significant drop in value for the services they were actually delivered, and a lack of opportunity to consider any proposed alternative or receive a refund.
Per SMH, the Scenic ship Moore was on was forced to dock 110 kilometres from Cologne, with passengers transported into town by coach, not returning to the ship until after midnight.
On the fourth day, instead of sailing along the Rhine, they remained docked on the Moselle River in Koblenz, while the fifth day saw passengers take a five-hour round coach into Munich, where they went on a one-hour sightseeing tour by coach, and upon return, told they had to abandon their ship.
The following day was spent on a bus, per SMH, and the rest of the tour resulted in many missed destinations due to docking problems, with long days spent on coaches.