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.

 

[equus]

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

If it was a very large deposit, then there is always the option of heading to xCAT naming the Agent and Ponant as respondents. Exclusive jurisdiction clauses are not always effective, and if the Agent is Australian, and taken to be the agent of Ponant, then you may succeed against them.

At the moment there would be a good case against Ponant for deceptive and misleading conduct, given their website (and terms and conditions) are inducing people to book by offering full refunds if they choose to cancel. I would be taking a screen shot of their press release area still up on their website promoting their "Worry free bookings policy". Running a case for deceptive conduct and oppression may take more than xCAT however, and need a lawyer.

Personally, I would be going back to the Travel Agent and suggesting that unless a better outcome is achieved, they will be a party to whatever action you take.

The cruise has been cancelled, the company is relying on force majeure set out in 12.9.

Except that clause 12.9 specifically mentions "suspending and/or amending a trip" - no reference to cancellation., Clause 11,9,on the other hand specifically deals with cancellation, and goes further to state that it applies "no matter the reason for the cancellation".

 

[MEL_Traveller]

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.

I found the post. Was 12.9 redrafted since the outbreak of covid? Other I wonder if there was some confusion between the OP and what Ponant thought they were agreeing to. Clause 12.9 does not appear, on its reading, to have any limitation on the cruise having commenced. (Unless the contract was changed and the original 12.9 read differently.)

 

[MEL_Traveller]

Except that clause 12.9 specifically mentions "suspending and/or amending a trip" - no reference to cancellation., Clause 11,9,on the other hand specifically deals with cancellation, and goes further to state that it applies "no matter the reason for the cancellation".

i see you point. Clause 11 however is headed cancellation (etc) by CPB. They seem to be arguing that this is not a cancellation by them. So I can see why the force majeure would sit in a separate clause.

 

[Dilligas]

MEL-Traveller can I ask you a question. If Ponant can claim force majeure to deny me a refund why would they say I can have a refund in 18 months time. Surely either I can have a refund or I can’t. It’s like having two bob each way. Ponant are relying on a French/EU ruling on 25/3/20 stating no refund now, FCC or refund in 18 months. I thought if I booked with an Australian TA then we came under Australian consumer law.
I appreciate your point of view.

 

[MEL_Traveller]

MEL-Traveller can I ask you a question. If Ponant can claim force majeure to deny me a refund why would they say I can have a refund in 18 months time. Surely either I can have a refund or I can’t. It’s like having two bob each way. Ponant are relying on a French/EU ruling on 25/3/20 stating no refund now, FCC or refund in 18 months. I thought if I booked with an Australian TA then we came under Australian consumer law.
I appreciate your point of view.

It seems in this case force majeure is being relied on as a method to delay a refund. And it makes for better customer service if you can offer a refund if that's what the customer ultimately wants.

You will have a relationship with your travel agent, they owe you a duty of care for the services they provide to you, such as making the booking. Taking your money. Offering advice. However an agent is not your agent when it comes to booking travel supplied by a third party, They are an agent for the supplier of travel. In this case the cruise line. Your travel agent actually drops out and the contract of carriage is between you and Ponant. It is not between you and the Aussie TA (for example the Aussie TA owns no ships, they cannot provide the service themselves, you can't force them to perform the cruise).

 

[Dilligas]

Thanks for your reply. Does it make a difference if Ponant has an Australian office? It is Ponant Australia that responds to my complaints.

 

[MEL_Traveller]

Thanks for your reply. Does it make a difference if Ponant has an Australian office? It is Ponant Australia that responds to my complaints.

The purchase was made in Australia, so you are right that ACL should apply to relevant aspects of the contract. However, the ACCC has said that in the absence of an 'absolute' right to a refund, where you have something like a pandemic where an operator is forced to into involuntary cancellation, that vouchers or a credit for future use would be deemed acceptable. I think it will come down to the interpretation and application of clause 12.9.

I would give Fair Trading or Consumer Affairs or the equivalent in your respective state a call. They'll have been dealing with these sorts of things pretty frequently and will be able to advise. If it does come down to taking the company to court, it might be worth asking consumer affairs about your options... given the value of the cruise, are you excluded from small claims? Do you have to go to a higher court?

As an aside, the ACCC has put out a really good brochure on travel and consumer laws. This is aimed at businesses supplying travel and sets out their obligations to customers: https://www.accc.gov.au/system/file...ry guide to the Australian Consumer Law_0.pdf

 

[Dilligas]

Thanks Mel Traveller for your and everyone else’s advice. I have been in touch with ACCC now I will try NSW fair trading see what they say. If only a group of us could get together, we might have more chance but Ponant will rely on people being slack and just rolling over and accepting the FCC. I am more worried that Ponant will go bankrupt and take my money with them.

 

[Roy Perron]

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.

Hi We have just received our PONANT FULL Prepaid Cruise ($65K) via Amex after many months of negotiations with us quoting the ACCC and French Law to Ponant. We are Fully entitled to a FULL Refund payable within 30 days of cancellation under their Terms & Condition Clause 11.9 (available on the Ponant Web Site General T & Cs). Ponant pushed back stating that French Law allowed them to offer a Credit in lieu of Refund, but we found this to be incorrect as it only applies to EU Countries and travel commencing or concluding in EU! Hope this helps.
RP

Post automatically merged: Aug 10, 2020

The purchase was made in Australia, so you are right that ACL should apply to relevant aspects of the contract. However, the ACCC has said that in the absence of an 'absolute' right to a refund, where you have something like a pandemic where an operator is forced to into involuntary cancellation, that vouchers or a credit for future use would be deemed acceptable. I think it will come down to the interpretation and application of clause 12.9.

I would give Fair Trading or Consumer Affairs or the equivalent in your respective state a call. They'll have been dealing with these sorts of things pretty frequently and will be able to advise. If it does come down to taking the company to court, it might be worth asking consumer affairs about your options... given the value of the cruise, are you excluded from small claims? Do you have to go to a higher court?

As an aside, the ACCC has put out a really good brochure on travel and consumer laws. This is aimed at businesses supplying travel and sets out their obligations to customers: https://www.accc.gov.au/system/files/Travel & accommodation - an industry guide to the Australian Consumer Law_0.pdf

Just for clarification PONANT cancelled prior to any Govt intervention and you have an absolute right as confirmed with ACCC under Ponant Terms & Conditions 11.9

 

[MEL_Traveller]

That’s great news RP! Where is your cruise starting? Outside the EU?

 

[Dilligas]

Great news RP, it gives me hope. Do you live in Australia and where did your cruise start and finish? My trip started in Paris, then Ponant put us on a flight to Greenland where the cruise commenced. Not sure if I will get included in the EU rule, Ponant are trying every trick in the book to avoid refunding my money. Thanks for any info you can give me.

 

[moa999]

Ponant can claim force majeure to deny me a refund why would they say I can have a refund in 18 months time

Cashflow. Like many companies they are trying to avoid refunds right now when they have no other income coming in.

 

[Dilligas]

It should not be up to me to prop up a billionaires company. Use his own money, not mine. I’m not in the habit of giving interest free loans.

 

[Pushka]

Hi We have just received our PONANT FULL Prepaid Cruise ($65K) via Amex after many months of negotiations with us quoting the ACCC and French Law to Ponant. We are Fully entitled to a FULL Refund payable within 30 days of cancellation under their Terms & Condition Clause 11.9 (available on the Ponant Web Site General T & Cs). Ponant pushed back stating that French Law allowed them to offer a Credit in lieu of Refund, but we found this to be incorrect as it only applies to EU Countries and travel commencing or concluding in EU! Hope this helps.
RP

Post automatically merged: Aug 10, 2020

Just for clarification PONANT cancelled prior to any Govt intervention and you have an absolute right as confirmed with ACCC under Ponant Terms & Conditions 11.9

What a fabulous and helpful first post! Hang around a bit more!

 

[Seat0B]

Here's the link to the other thread that covers similar ground and has some suggestions about ways to tackle it.

 

[Roy Perron]

Great news RP, it gives me hope. Do you live in Australia and where did your cruise start and finish? My trip started in Paris, then Ponant put us on a flight to Greenland where the cruise commenced. Not sure if I will get included in the EU rule, Ponant are trying every trick in the book to avoid refunding my money. Thanks for any info you can give me.

Hi Dilligas, I feel you may be victim of the French Law amendments IF your cruise started or finished in EU. But depending on what country you purchased it may help as that countries local consumer law would apply to Ponant honouring their T & C's that were current at the time of purchase and ironically are still their T & C's including the FULL REFUND terms!

 

[Roy Perron]

That’s great news RP! Where is your cruise starting? Outside the EU?

Hi Mel YES I live in Australia and the Cruise was scheduled to Depart and Finish in Australia., so Australian Consumer Law applies!

 

[MR61]

Hi Mel YES I live in Australia and the Cruise was scheduled to Depart and Finish in Australia., so Australian Consumer Law applies!

Congratulations, that is a great outcome ! Did you initiate a chargeback through Amex, or through the Ponant Australia office ?

Would anyone know what laws apply for departures from Ushuaia to Antarctica and return ? And why refunds don't apply for deposits, and only fully paid ? FYI Our travel agent this week sent us the 5 August updated Ponant "Serenity Clause" which now says if they proceed with a cruise but you can't obtain flights because your departure country cancelled all flights, then you are entitled to 120% future travel credit on the deposit only.

 

[MEL_Traveller]

Hi Mel YES I live in Australia and the Cruise was scheduled to Depart and Finish in Australia., so Australian Consumer Law applies!

Aussie consumer law should still apply to a booking sold/paid in Australia, even if it departs from another country. There are all sorts of ways companies can get around this if they want, for example Qantas pops up a screen to say 'you are now being taken away from the Australian website'. Companies that choose to sell in Australia should, prima facie, be bound by ACL.

However, the ACCC has said that in cases of force majeure, vouchers or a credit may be acceptable, rather than a full refund. So regardless of ACL applying to the OP, it may come down to whether clause 12.9, force majeure, applies. The cruise company thinks it does, but I guess there is room to think that it only applies once the cruise is underway.

Local consumer affairs should be able to assist the OP, and advise the appropriate forum to take the matter forward. For example, I'm not sure an administrative tribunal has jurisdiction for amounts as large the cost of the cruise.

 

[Roy Perron]

Cashflow. Like many companies they are trying to avoid refunds right now when they have no other income coming in.

It seems in this case force majeure is being relied on as a method to delay a refund. And it makes for better customer service if you can offer a refund if that's what the customer ultimately wants.

You will have a relationship with your travel agent, they owe you a duty of care for the services they provide to you, such as making the booking. Taking your money. Offering advice. However an agent is not your agent when it comes to booking travel supplied by a third party, They are an agent for the supplier of travel. In this case the cruise line. Your travel agent actually drops out and the contract of carriage is between you and Ponant. It is not between you and the Aussie TA (for example the Aussie TA owns no ships, they cannot provide the service themselves, you can't force them to perform the cruise).

The "FORCE MAJEURE" clause is NOT a "Get Out of Gaol" card in this case ...The US Department of Transportation has taken a far less liberal view in a seemingly identical situation. In an enforcement noticepublished April 3, the US Department of Transportation left little wriggle room for troubled US airlines to lean on force majeure clauses. “Passengers should be refunded promptly when their scheduled flights are cancelled or significantly delayed,” wrote Blane Workie, the department’s assistant general counsel for Aviation Enforcement and Proceedings. “The focus is not on whether the flight disruptions are within or outside the carrier’s control, but rather on the fact that the cancellation is through no fault of the passenger.” In other words, force majeure does not apply.

Cashflow. Like many companies they are trying to avoid refunds right now when they have no other income coming in.

Cashflow. Like many companies they are trying to avoid refunds right now when they have no other income coming in.

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.

Ponant's Terms & Conditions are very clear on a Refund entitlement

• (i) The FIULL REFUND of the price of the Contract
• (ii) Another Service at an identical price.
• (iii) A service at a lower price and the refund of the difference between the two services on the basis of published prices.

This is 11.9 and viewable on the Ponant Web Site General Terms & Conditions!