Ponant won't refund on cancelled cruise

[VintageDom]

Booked and paid in full for a cruise with Ponant through the travel agency that was arranging a conference. The cruise was an extension of the conference.
The agency has refunded most of the other monies that we paid, less some cancellation charges. Ponant is only offering a credit valid until May 2022 and we need to book with the same agency to utilise the credit.
We have contacted the agency and they claim that it was in the Ponant terms.
Do we contact ACCC, since the product or service was not provided?
Any suggestions greatly appreciated.

 

[VPS]

When was the cruise to be and where? How did you pay for your cruise and was it a separate line item on your invoice?

 

[MEL_Traveller]

As i mentioned over in the other thread - you need to get a copy of the contract and see the cancellation terms and conditions. There may be valid reasons why you're not entitled to a cash refund in this case, a position which is supported by the ACCC.

 

[VintageDom]

When was the cruise to be and where? How did you pay for your cruise and was it a separate line item on your invoice?

24 May, 2020 Around the Scottish Islands
Credit card
Yes

Post automatically merged: Aug 4, 2020

As i mentioned over in the other thread - you need to get a copy of the contract and see the cancellation terms and conditions. There may be valid reasons why you're not entitled to a cash refund in this case, a position which is supported by the ACCC.

Thank you. I will try. Is there any reason the agency could deny me a copy of the contract?

 

[Pushka]

I dont have much to add other than sympathy. We got stuck with a similar issue on our small boat Greek cruise company who agreed to refund but by the time they got back to the office after shut down, they used the EU voucher BS which had been legislated AFTER i had cancelled the cruise. Not impressed. However they did write me a letter stating they would not refund and I was able to claim on insurance. Vouchers for next year are meaningless to Aussies right now and I told them they could throw it away.

 

[MEL_Traveller]

Thank you. I will try. Is there any reason the agency could deny me a copy of the contract?

No. The travel agent is the agent for the cruise operator, and you are entitled to a copy of the contract.

You should also be able to find a copy of the contract on the cruise operator's website. Qantas has a clause in their contract that said if [Qantas] is unable to operate the flight they will give a full refund. This is what caught them out. But not all airlines and operators have this same, generous, provision. (No doubt QF will look to change their contracts once this all dies down... and they will say it is 'due to customer feedback'... which is true... customer complaints!)

 

[equus]

Credit card

The standard Ponant contract terms and conditions allow for a full refund where they cancel - even including "no matter the reason for the cancellation". The T&C for the contract for a UK cruise, due to Ponant being French are subject to French law.

Interestingly, the provisions of the French Tourism Code (included in their contract for reference), indicate that the contract must be in writing, signed by both buyer and seller, and you should receive a copy. Article R211-10 seems to indicate that if the seller cancels, not only do they have to refund all payments made, but they must provide an indemnity to the buyer equivalent to the penalty that would have been charged if it had been the buyer who cancelled. Seems to me to read like if they would provide no refund if you cancelled with less than 90 days notice then if they cancel with less than 90 days notice, they need to refund you twice what you paid.

The problem here is likely to be EU rulings that "allow" them to offer credits instead, and difficulties you would face trying to chase them through a French court.

As you paid on a credit card and the contract required them to refund in full if they cancelled, just initiate a charge back for services not provided - but be aware that as you no doubt paid the agency rather than Ponant directly, the charge back will hit the travel agent.

 

[MR61]

Have a read of their website at Sail with confidence | PONANT Cruises | Ponant, and see the screenshot attached.

We'll be in the same boat, though for a cruise departing Ushuaia January 2021 for Antarctica, Falklands and South Georgia. We'd paid a deposit April 2019 on Amex. We contacted our agent Travel Managers in June to show him a screenshot (attached) from Ponant's website, appearing to show they will refund under certain conditions (booking before 31 July 2020 and for travel before 31 March 2021). We were told Ponant won't refund, but will offer a generous credit voucher of 125%. We also noted that their pricing of the same destination cruises in the 2021-22 years are priced well and truly above the 25% buffer. We're feeling added pressure to utilise any credit within a one or two year period, given the particular cruise we specifically signed up for will only have two, maybe three cruises in a given year (given the seasonality of the Antarctic) and the cruises in the 2021 year are already sold out in our cabin category. We were told Ponant wait until 45 days from departure before cancelling.

 

[Dilligas]

Booked and paid in full for a cruise with Ponant through the travel agency that was arranging a conference. The cruise was an extension of the conference.
The agency has refunded most of the other monies that we paid, less some cancellation charges. Ponant is only offering a credit valid until May 2022 and we need to book with the same agency to utilise the credit.
We have contacted the agency and they claim that it was in the Ponant terms.
Do we contact ACCC, since the product or service was not provided?
Any suggestions greatly appreciated.

We are in dispute with Ponant re our cancelled cruise. We booked with an Australian TA by direct debit. Ponant freely admit in a statement to us that the contract we signed with them states if Ponant cancels a cruise, no matter what the reason, we are entitled to a refund. But they have changed the contract because on 25th March 2020 the EU decided it was ok to only offer a FCC or a refund in 18 months time from the date our cruise was due to depart.
The fact that we booked in Australia with a TA that has an ABN makes no difference to them. I will fight them all the way with this. I have emailed Sarina Bratton Chairman Asia Pacific but have never received a reply. I have also lodged a complaint with ACCC who state on their website companies cannot change their contract due to Covid-19. I am waiting for a reply.
If only we could all get together to lodge a complaint it would carry more weight.
Ponants terms and conditions are on their website.
I will see if I can attach the statement they sent me but I am not very good at that. In the statement Ponant have “cherry picked“ rules where it has suited them, French law, EU law, ACCC, ACL and NSW fair trading.
I have manages to attach the statement below. Clause 12.9 to do with force majeure is after the cruise has sailed not before. Ponant has agreed this is so.

Hello ( I have deleted my name)

This is the statement from Ponant
As previously advised, we understand your disappointment that we are not offering refunds, but credits instead. The current international situation is completely new and deeply affects the entire economic system. Ponant is happy to offer a future cruise credit equal to 100% of the amount paid, and an additional commercial gesture of 20% of the initial cruise, valid for the next 24 months, starting from the date of departure of your cancelled cruise. Additionally, you are eligible to transfer your credit to a family member.

We have also found that some guests have been able to claim from their travel insurance. I am not sure if this applies to you, but we are happy to provide you with a letter advising that you have not accepted the future cruise credit, and we will void this credit. If your travel insurance denies your claim, we will be happy to reinstate your cruise credit with a copy of the travel insurance showing they have denied your claim.

It is correct that under normal circumstances you would be eligible for a refund.

However a number of regularity bodies have noted the below:-

The ACCC notes that if your travel is cancelled due to government regulations, this impacts your rights under the consumer guarantee. The Travel Industry Body (AFTA) notes that a ‘force majeure’ clause may be enlivened due to COVID-19. I refer to point 12.9 below from our terms and conditions which includes epidemics (which COVID-19 is):

1. CDP shall not be held liable under any circumstances for any damage caused by the interruption and/or the alteration of the trip as the result of a force majeure event, including, wars, blockades, riots, strikes, social conflicts, acts of piracy or terrorism, epidemics or periods of quarantine, natural disasters and catastrophes, nuclear fusion, fission, pollution or explosion or its consequences, the closure of the port of departure, of call, or destination, the impounding, requisition, or seizure of the ship for whatever reason, the use of the ship for special Government purposes, or due simply to the threat of the above events.

In this case, the damage refers to the cruise not going ahead. This situation is totally out of our control and the COVID-19 pandemic is a force majeure event as defined within Ponant’s terms and conditions.
However to support your future travel plans, we are providing a Future Travel Credit for affected departures.

Additionally we draw your attention to clause 16 below:-
16. Applicable Law and Jurisdiction
16.1 This Contract is governed by French law.
16.2 Only courts within the jurisdiction of the Tribunal de Grande Instance de Marseille, France, are competent to hear any case against CDP, its employees, subsidiaries, or subcontractors, even with the introduction of third parties.

Compagnie du Ponant is registered in France and its Terms & Conditions are governed by French law. The French government has adopted a series of orders to limit the consequences of the COVID-19 outbreak crisis, including in the tourism industry. As per an order number 2020-315 dated 25th March 2020 amending the French “ Code du Tourisme”, Compagnie du Ponant is entitled not to reimburse the price of the cruise and its associated services, but can propose instead a credit of the same value, valid for an 18 month period. Ponant has agreed to extend this to 24 months and offer an additional 20% discount.

We have also have received the following advice as per DEPARTMENT OF FAIR TRADING:
If your travel is cancelled, you should receive a refund or other remedy, such as a credit note or voucher, in most circumstances. Ponant has made the decision to offer a future cruise credit.

If your travel is cancelled due to government restrictions, this impacts your rights under the consumer guarantees. Your rights may be different when cancellation is due to a government ban because government bans may make it illegal for the supplier to supply the goods or services. Cruise Lines are not permitted to sail at present due to worldwide government restrictions, banning entry to cruise ships.

The ACCC and Department of Fair Trading also notes the following:
Many of the complaints currently being received are ineligible for review as they do not allege a breach of the Code.

Additionally the following rules regarding Frustrated Contracts apply in the various states:
A frustrated contract is a contract that, subsequent to its formation, and without fault of either party, is incapable of being performed due to an unforeseen event (or events), resulting in the obligations under the contract being radically different from those contemplated by the parties to the contract. Due to Government restrictions we cannot proceed with the cruise so the frustrated contract comes into effect.

We understand that you would prefer a refund at this time, and we understand you are not inclined to travel in the near future, and for this reason, we have offered the future cruise credit to be used within 24 months. We are currently putting plans in place to offer cruises in this part of the world to Australian and New Zealand Passengers only, later in the year, and have also released our plans to reassure guests of our COVID-19 preventative issues we are putting in place.

We are really sorry but, due to the current turmoil, we are not able to agree to a refund now. However, if you have not used your future cruise credit 18 months after your initial cruise departure date, we will agree to refund. It goes without saying, that this is an extremely difficult time for everyone, and we hope you will understand the deep crisis facing the world of tourism.

We do hope you will find a cruise to suit you within the next 24 months.
Kind regards
Noni

 

[VintageDom]

Hi Dilligas,
great job of copying. Our travel agent provided a very similar email.
They have at least offered you an extra 20%, which given that with increasing costs, were you to take the identical cruise, it would no doubt cost you more.
It is interesting that they all avoid any reference to clause 11.9
11.9 Where CDP is the Cruise Organiser, and no matter the reason for cancellation, no compensation is due to the Traveller, who will be able to choose between the following solutions: (i) A full refund of the Contract price; (ii) Another Service at the same price; (iii) A Service at a lower price and a refund for the price difference between the two Services based on the advertised prices. Travellers must inform CDP of their choice as soon as possible and in any event before the deadline mentioned in the cancellation documents.
We are thinking about the credit card charge back since the product / service was not provided.

Post automatically merged: Aug 5, 2020

Thank you to everyone who has posted their suggestions and experiences.
Hopefully we all manage to get to the desired ending.

 

[MEL_Traveller]

Unlike Qantas, or Etihad, it seems Ponant has a clause which allows them to exempt themselves for force majeure, in this case Covid-19. The ACCC has fully supported this and says that contracts with such a force majeure clause may not be subject to Australian Competition Law requirements for a full refund, and that a credit is acceptable in these circumstances.

Ponant is right that in ordinary circumstances, you would be entitled to a refund, but force majeure has kicked in here In this case, booking in Australia, with an Australian travel agent is not going to assist. And the Aussie agent is an agent for the cruise ship, not for you, the passenger.

 

[Dilligas]

As I stated in my last post Clause 12.9 dealing with force majeure is listed under the heading “liabilities”. This clause is after the cruise has started, nothing to do with cancelled cruises. Ponant has agreed to this fact. The terms and conditions are on Ponant website for all to read.

 

[tgh]

Very distressing corporate conduct , I would not book with such a dishonest operator...

 

[Dilligas]

I will never book with them again, no principles whatsoever. I will never use this TA either. Not interested in helping me, just keeping repeating French Law at me.

 

[equus]

A good reason to always pay with a credit card. French jurisdiction and EU rulings about the ability to change contracts after the event won't make any difference to the decision of a an Australian Credit Card provider to process a chargeback that falls within scheme rules for services not provided.

 

[Dilligas]

Hindsight is a wonderful thing. It was a very large deposit, the transaction fee was horrendous but of course now, well what can I say.

 

[MR61]

A good reason to always pay with a credit card. French jurisdiction and EU rulings about the ability to change contracts after the event won't make any difference to the decision of a an Australian Credit Card provider to process a chargeback that falls within scheme rules for services not provided.

Knowing I paid with our Amex platinum charge card gives me hope, then. It was a $7k deposit with another $22k balance owing.

 

[MEL_Traveller]

As I stated in my last post Clause 12.9 dealing with force majeure is listed under the heading “liabilities”. This clause is after the cruise has started, nothing to do with cancelled cruises. Ponant has agreed to this fact. The terms and conditions are on Ponant website for all to read.

I don’t see the distinction (pre or post cruise) for this clause. The cruise has been cancelled, the company is relying on force majeure set out in 12.9.

I would be trying a chargeback, but i would expect the company to try and deny it under 12.9. Depends how the credit card provider handles that refusal as to steps the customer might have after that.

 

[Pushka]

Amex have been brilliant with our recent issues.

 

[Dilligas]

There is another thread on this forum where Ponant has agreed with a poster that clause 12.9 is related to after a cruise has started not before.