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

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.

This case is much more than about 'technical' terms and conditions. (And there was a dispute if some of the pax in fact signed T&C at their travel agent's.)

In essence, in the statement of claim, the class action group alleges that Scenic Tours breached the Australian Consumer Law by failing to cancel or delay the cruises, offer alternative tours or warn of expected disruptions. And their condition re substitution of another 'vessel' may not necessarily mean that they can use a bus instead of river boat.

It is not easy to get the legal underwriters agree to fund a case on contingency basis. I was wondering how difficult it was for Plaintiffs to find a lawyer to start this case.

But then I noticed that, as it happened, the founding partner of Sommerville Legal (the firm that is running the case) was himself on one of the 'disaster' cruises. If Scenic loses this case (after an appeal, no doubt) if will serve them well - they had been too greedy by NOT cancelling the cruise/s when their competitors did so, and continued to go ahead with their multi-million dollar advertising.

And if you might have been wondering why Network 9 news TV was the only one that did NOT mention anything about the court case, the Media Watch program on Monday provided the answer. Channel 9's very successful travel program 'Getaway' is sponsored by Scenic and they advertise heavily on that station. Enough said.

Hi Cyrix400,

It sounds like you might be have been one of the claimants or were present at Court for the hearing?

Hi Cyrix400,

It sounds like you might be have been one of the claimants or were present at Court for the hearing?

Not a claimant - fortunately - too much money to pay for me for an uncertain river cruise experience.

And yes, after hearing about the case in the news (and in light of my past involvement with legal work), I popped in to the court - and I am going again to hear the Pls and Def arguments starting on 11 May.

A good and interesting show, for those with some time and interest in legal matters.

This case is much more than about 'technical' terms and conditions. (And there was a dispute if some of the pax in fact signed T&C at their travel agent's.)

 

In essence, in the statement of claim, the class action group alleges that Scenic Tours breached the Australian Consumer Law by failing to cancel or delay the cruises, offer alternative tours or warn of expected disruptions. And their condition re substitution of another 'vessel' may not necessarily mean that they can use a bus instead of river boat.

 

It is not easy to get the legal underwriters agree to fund a case on contingency basis. I was wondering how difficult it was for Plaintiffs to find a lawyer to start this case.

 

But then I noticed that, as it happened, the founding partner of Sommerville Legal (the firm that is running the case) was himself on one of the 'disaster' cruises. If Scenic loses this case (after an appeal, no doubt) if will serve them well - they had been too greedy by NOT cancelling the cruise/s when their competitors did so, and continued to go ahead with their multi-million dollar advertising.

 

And if you might have been wondering why Network 9 news TV was the only one that did NOT mention anything about the court case, the Media Watch program on Monday provided the answer. Channel 9's very successful travel program 'Getaway' is sponsored by Scenic and they advertise heavily on that station. Enough said.

Totally agree with you ...

And re Media Watch on the ABC - I realised that Getaway was solely a ST "show" quite some time ago - shame ... it was better IMO when reporters independently reviewed places.

But I digress - is it any wonder that Ch 9 didn't mention the ST Class Action in the news when an independent body alleges that almost some 3,500 adverts of ST were shown on Ch 9 last year? And that the Today Show has traveled to various countries courtesy of ST ?

Yeah ... no wonder the Class Action wasn't reported by that network - I can see why they thought it wasn't "newsworthy" ...

Hi Cyrex400

A backpack and a "Carnival" atmosphere in the back row?

Pity CC does not permit private messages, would like to chat further off-line.

:confused:

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).

Agree. So in reality reading the T&C's is pointless if it requires a judge to interpret.

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no always read them. but like any contract can be subject to litigation. this is not the 1st time river cruise companies have faced/contested claims in the courts. but perhaps the biggest in terms of value? it will be interesting to see the outcome.

buyer beware always.

Interesting to note that the contract's "T&C" with Scenic and Evergreen have been modified every time they lose a case! In every new Edition of their brochures.

Makes interesting reading -if you are a masochistic-ly inclined insomniac!

Apart from that, the "Reasonable Man" theory would indictate that a ship could not be reasonably replaced by a bus? -However, that is what the company claims!

Interesting to note that the contract's "T&C" with Scenic and Evergreen have been modified every time they lose a case! In every new Edition of their brochures.

 

Makes interesting reading -if you are a masochistic-ly inclined insomniac!

Apart from that, the "Reasonable Man" theory would indictate that a ship could not be reasonably replaced by a bus? -However, that is what the company claims!

You'd think it would be easier and cheaper in the long run to fix their "policy" about when they should cancel a cruise ... and that should translate into a readable plain English T&C.

To my untrained non legal eye - it's a piece of patchwork badly sewn together with all sorts of seamstresses having a go and creating a badly worked item that no one can work out what they are looking at.

IMHO, and T&C should start with basic consumer laws - I can see none in theirs. Shame ... after all they rely on consumers to buy their products.

Hi Cyrex400

 

A backpack and a "Carnival" atmosphere in the back row?

Pity CC does not permit private messages, would like to chat further off-line.

:confused:

Surprisingly, only 2 'sticky beak' members of the pubic during the two days of initial hearing. Probably nobody will come during the final submissions next week. A small court room, with 3 barristers, 2 solicitors and their support staff.

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.

I read them, but they are information overload and it's difficult to think of every possible disaster and if it's something to be concerned about.

Like when I was booked to go to Korea, and then MERS (like SARS) broke out. Korea (the South!) is not a third world country, a deadly disease breaking out was not on my radar. One traveller brought it back from the Middle East and within two months 186 were infected and 36 were dead.

People were canceling their trips left right and centre. It was quite a big deal. So THEN I looked up that section of my travel insurance, nope not covered. Other companies covered.

Eventually the Korean govt offered tourists free health insurance upon arrival.

We went and lived to tell the tale. And I changed insurance companies.

Sometimes, you don't know what to look for until it happens.

...and even then either the insurance company wants to wimp out, or change their T&C's to prevent any future claims for the same thing from anyone else.

PS: Noticed that Scenic has been doing this type of thing since at least 2009!

http://boards.cruisecritic.co.uk/showthread.php?p=23156810

So, I guess getting away with it for years has allowed them to spend around half a billion dollars on new ships recently!

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCTTT/2011/337.html?stem=0&synonyms=0&query=avalon%20waterways. they are not alone. search austlii for more cases of other companies.

whatever the legal outcomes it does not prevent the real time disappointment and more when overseas cruising of course.

I read them, but they are information overload and it's difficult to think of every possible disaster and if it's something to be concerned about.

 

Like when I was booked to go to Korea, and then MERS (like SARS) broke out. Korea (the South!) is not a third world country, a deadly disease breaking out was not on my radar. One traveller brought it back from the Middle East and within two months 186 were infected and 36 were dead.

 

People were canceling their trips left right and centre. It was quite a big deal. So THEN I looked up that section of my travel insurance, nope not covered. Other companies covered.

 

Eventually the Korean govt offered tourists free health insurance upon arrival.

 

We went and lived to tell the tale. And I changed insurance companies.

 

Sometimes, you don't know what to look for until it happens.

No doubt about that, but so many people don't even look.

I have been doing a bit of reading - the "new" insurance offered by ST is - IMO - pretty much worthless and is only in effect once you start on your cruise. I think it's more like a policy or an assurance rather than what the average person in the street considers to be "insurance".

There's no mention that passengers will be issued with a specific policy - usually that's what happens when you take out insurance. I think ST have done it that way so that it appears to appease those worried about cruising - clearly the publicity has not been great for them ... also I do not think there is mention of this "insurance" in their terms and conditions ... so does that mean they aren't bound by it ? Who knows ... too early to tell.

The other thing I read and then skimmed through was the latest amended document / pleading on the NSW Supreme Court site.

ST does not appear to accept responsibility for not cancelling the cruise stating that it was another operator who ran the cruise ... well if that was the case, was this made plain in any of the brochures that people were buying a holiday from a "3rd party" ? I doubt it ... the contract was between the passenger and ST / Evergreen and no one else.

Funny that ... I recall in Marty's original post that he was contacted by ST Australia when he was in Europe prior to the start of this "cruise" and told them he wanted to cancel due to the weather / flooding. ST Australia - not the owner of the ship - spoke to him and issued him with instructions about meeting up with the rest of the tour group.

It seems to me that everyone else is to blame for everything ... oh dear !!

Cyrix400

Did you go to the court for the legal hearings?

Woul be very interested in hearing what transpired, as the claim and defence have been updated since the hearing started to version 3.

Would also be interested why Scenic's senior barrister suddenly left after the first day!

On a lighter note, the defendant's barrister has been offered free Contiki tour.

http://www.bandt.com.au/media/contiki-scenic-tours-barrister-alister-abadee

Cyrix400

Did you go to the court for the legal hearings?

Woul be very interested in hearing what transpired, as the claim and defence have been updated since the hearing started to version 3.

 

Would also be interested why Scenic's senior barrister suddenly left after the first day!

 

On a lighter note, the defendant's barrister has been offered free Contiki tour.

 

http://www.bandt.com.au/media/contiki-scenic-tours-barrister-alister-abadee

HI Marty - and anyone interested in this.

I managed only to go for the first half day, because of my medical appointments and related problems.

Dry and technical arguments, most of the first morning, dealing with specific sections and the interpretation of the legislation.

The judge pretty attentive and very sharp (no doubt in light of the most likely review of this judgment on appeal, whatever it might be). Interesting question from him to the Plaitiffs barrister was along the lines:

'Do you have any expert evidence to show how the rivers behave; e.g. to show (hypothetically) that if the river in Budapest is high/ flooded, then it could be reasonably expected that this will be the situation for a few days, and as a consequence of this, other rivers down/ or up from there would NOT be navigable for some time?'

Unfortunately for claimants, there no such expert evidence was obtained.

I also spoke to the judge's associate in the lift at lunchtime re time frame for a judgement - he would not be specific, but when I pressed said that this judge usually delivers judgments promptly -bearing in mind that this is a complex case. So that is all we know for now.

..... On a lighter note, the defendant's barrister has been offered free Contiki tour.

 

http://www.bandt.com.au/media/contiki-scenic-tours-barrister-alister-abadee

That is just too funny !!

'Do you have any expert evidence to show how the rivers behave; e.g. to show (hypothetically) that if the river in Budapest is high/ flooded, then it could be reasonably expected that this will be the situation for a few days, and as a consequence of this, other rivers down/ or up from there would NOT be navigable for some time?'

 

Unfortunately for claimants, there no such expert evidence was obtained.

Wow - they were allegedly 1:500 floods so it would be hard to get expert evidence about that !

It was on all the news in Europe at the time about them being 1:500 year floods (I was in Europe when it occurred) and I don't think anyone could have predicted what the rivers would do and the devastation they caused.

The fact that a several other river cruise companies cancelled when ST/E'green continued to run cruises should speak volumes about the severity of the situation.

Let's hope ST doesn't "get off" on the claimants not having expert evidence about the rivers behaviour during this time.

Thanks for your update Cyrix. It is becoming an interesting case.

Wow - they were allegedly 1:500 floods so it would be hard to get expert evidence about that !

If they want to claim that Scenic should respond in a specific way that they expect in that situation, then they should be able to establish that that would have been the appropriate way to react.

The fact that a several other river cruise companies cancelled when ST/E'green continued to run cruises should speak volumes about the severity of the situation.

I don't believe it's as simple as that. A number of other cruise companies also ran amended tours, and also did not cancel. Some that had some cancellations also ran amended tours.

It probably comes down to the specifics of where ships were at the time, their upcoming itineraries and possibly other variations, plus each company's assessment of the situation. Also, different companies have different numbers of ships so the timing and assessment will vary day by day.

Let's hope ST doesn't "get off" on the claimants not having expert evidence about the rivers behaviour during this time.

It comes down to what the merits of the case are.

Thanks for updated info Cyrix400. Much appreciated. Pity you were not able to attend the rest. Still, much appreciated by one of those that was forced onto buses for over 50% of time before any possibility of a cruise eventuated. And which was known would happen- by the company several weeks before the start of cruise.

Re the judge's question.

It is obvious that flood waters in the Danube would flow towards the Black sea, and flood waters in the Rhine flow in the opposite direction towards Amsterfdam. Isn't that why there are so many locks across the hills in between? - As well as permit continuous navigation between those rivers via the Main Canal area?

We can all postulate the why's and wherefores, but surely an expert opinion would require someone like a hydrologist with experience of floods since the 1500's? Don't think there are that many available with such long memories?

I don't have a dog in the fight but really cannot see the claimant winning outright and is more likely looking for a settlement being made.

With all the current floods in France and Germany I wonder what will happen this year?

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