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
