Passenger's Remedies for Substandard European River Cruise Under Australian Law: The right to a luxury river cruise or merely the right to go on a tour? Moore v Scenic Tours Pty Limited (No 2) [2017] NSWSC 733

• Author: Kate Lewins
• Position: Professor, School of Law, Murdoch University, Australia; Academic Fellow, Centre for Maritime Law, National University Singapore
• Pages: 47-52

(2017) 31 ANZ Mar L J

47

PASSENGER’S REMEDIES FOR SUBSTANDARD EUROPEAN RIVER CRUISE

UNDER AUSTRALIAN LAW: THE RIGHT TO A LUXURY RIVER CRUISE OR

MERELY THE RIGHT TO GO ON A TOUR?

MOORE V SCENIC TOURS PTY LTD (NO 2) [2017] NSWSC 733

Kate Lewins*

1 Facts

The Defendant is an Australian company in the business of providing European river cruises, largely to Australian

passengers. From April 2013, heavy rain and floods in Europe threw the luxury river cruise industr y into chaos.

Many of the cruise operators cancelled their cruises over that summer, but the Defendant pressed ahead. This

course of action culminated in proceedings before the New South Wales Supreme Court, brought by Mr Moore

(as a representative plaintiff) against the Defendant, concerning 13 different cruises over the relevant period.

The Defendant’s promotional brochures invited guests to join the Defendant for a ‘once in a lifetime’ cruise along

the grand waterways of Europe, during which they would be ‘immers ed in all-inclusive luxury’

1

using their ship

as a base: an ‘unpack once’ experience. The various cruises would stop in certain towns and cities en route.

Moore and his wife had spent their life savings, and taken long service leave, to undertake the Defendant’s cruise.

They travelled from Australia to Europe on flights organised through the Defendant. Ab out 48 hours prior to

embarkation, passengers (including the Moores) were informed that floods had a ffected sailings, and that they

would embark on a different ship before swapping to their designated ship at a later point.

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Mr Moore claimed

that what followed was an experience of being shuffled around Europe, largely by coach, and changing between

three different ships

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during limited time on the water.

The Plaintiffs claimed that the Defendant had failed to provide the promised ‘once in a lifetime’ luxury river

cruises and sought compensation and damages. In essence, the Plaintiffs claimed that the Defendant ought to have

known that the extent of the flooding would mean that it could not deliver the cruises, or alternatively, if it did

proceed with the cruises, that they w ould be in ‘circumstances of substantial disruption’.

4

The Defendant either

knew and chose to proceed anyway without telling the Plaintiffs about the disruptions, or ought to have known of

the disruptions if it was acting with due care and skill.

The Plaintiffs claimed the Defendant had breached the federal Austr alian Consumer Law (‘ACL’), a s chedule to

the Competition and Consumer Act 2010 (‘CCA’). The ACL imposes statutory guarantees on those who supply

goods or services to consumers.

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Relevantly:

• services supplied must be reasonably fit for the purpose made known to the supplier (particular purpose

guarantee – s 61(1));

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• services should be reas onably expected to achieve the result made known to the supplier (result

guarantee – s 61(2));

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and

• services are to be rendered with due care and skill (due care and skill guarantee – s 60).

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* Professor, School of Law, Murdoch University, Australia; Academic Fellow, Centre for Maritime Law, National

University Singapore.

1

Moore v Scenic Tours Pty Ltd (No 2) [2017] NSWSC 733 [3] (‘Scenic Tours (No 2)’).

2

Scenic Tours (No 2) [87]; tellingly, passengers from England, who had been informed before leaving home, had all chosen

to cancel their holiday: Scenic Tours (No 2) [168]; The Package Travel, Package Holidays and Package Tour Regulation

1992 (UK) provides strong consumer protection specifically for holidaymakers.

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Scenic Tours (No 2) [5].

4

Scenic Tours (No 2) [44].

5

As the contract was entered in New South Wales and all the parties were Australian, the case proceeded on the basis that

New South Wales law applied as a proper law of the contract. As the judge noted, neither party addressed the question as to

what extent a statutory cause of action might arise because of a breach overseas. ACCC v Valve Corp (No 3) (2016) 337

ALR 647 (Edelman J) was handed down after this case was argued.

6

Competition and Consumer Act 2010 (Cth), sch 2, s 61(1) (‘ACL’).

7

ACL, s 61(2).

8

ACL, s 60.