A class action against leading Australian travel company Scenic Tours began in the NSW Supreme Court on Tuesday, with the 1265 plaintiffs claiming its "expensive, luxury river cruises" turned into "cheap, second-rate bus tours" because of extensive flooding in Europe.
The passengers travelled with Scenic Tours and Evergreen Tours in Europe between May 10, 2013 and June 14, 2013 on the promise of a "relaxing" and "once in a lifetime" experience on ships that are "luxury floating hotels".
Heavy rainfall in France and Germany in April and May 2013 caused extensive flooding and water levels on the Rhine, Saone, Rhone and Danube rivers rose so high that cruise boats were unable to operate as scheduled for about six weeks.
The 13 affected tours included Amsterdam to Budapest, Amsterdam to Basel and the rivers of southern France.
The plaintiffs' barrister, Alister Abadee, told Justice Peter Garling that on two of the tours, 11 out of 15 cruising days were lost. Other cruises lost between one and 10 cruising days.
Instead of visiting cities and sites via the river and spending nights in "five-star accommodation" on a boat, the passengers endured very long bus rides and in some cases stayed overnight at "low-budget hotels", Abadee said.
"The consumers did not pay for a backpackers' Contiki tour," he said.
Abadee said Scenic "later issued apologies to any passenger who complained saying circumstances had occurred beyond its control".
But he said internal documents show Scenic's then-general manager of operations, Justin Brown, was canvassing alternative options, including cancelling tours, during the critical period. He also gave "serious consideration" to cancelling tours already part-way through and providing a partial refund.
Gregory McNally the lawyer representing Scenic Tours admitted the "majority" of passengers were not given the option to cancel.
He said Scenic wanted passengers to experience as much as the planned tour as possible and made every effort to do so. He said had the 13 tours been cancelled, hundreds of passengers would have been "stranded in Europe".
Justice Garling asked McNally if the terms and conditions which allow ship travel to be replaced by coach or other method of transportation could in theory apply to the entire tour so that no cruising actually took place.
McNally said it could, if the alternative provided was a reasonable substitute.
The leading plaintiffs, Lake Macquarie school teacher David Moore and his partner, Janette Howell, spent their life savings – A$26,200 (NZ$29,200) – on what they expected to be a relaxing river cruise through the picturesque French and German countryside.
Instead, they spent hours on what they considered to be sub-standard coaches, including one without a working toilet and airconditioning.
Moore said he opted for a river cruise because spinal fusion surgery he had more than 20 years earlier meant he could not spend extended periods of time sitting down in a bus.
He said Scenic Tours did not give passengers any warning of the significant changes, disruption or delays to the itinerary necessitated by the weather.
In cross-examination McNally asked Mr Moore if he would have wanted the cruise to go ahead if he had been told, on the day of embarkation, that the first few days could proceed as planned but weather conditions meant the remainder could be affected.
Moore replied: "No. Because I'm not getting what I want from the cruise".
In a statement of claim, the group said Scenic Tours breached Australian Consumer Law by failing to cancel or delay the cruises, offer alternative tours, or warn of expected disruptions, particularly to passengers who travelled to Europe from Australia.
Scenic Tours is defending the case. It said the standard terms and conditions of the contract allowed it to make changes to itineraries, including due to road, river or weather conditions.
The company said it was not liable for any loss, cost or damage, including the failure to perform its obligations, because of a force majeure event such as high water levels.
Furthermore, it said the river cruises were not operated by it but by independent contractors, including Scenic Tours Europe AG, and any claim must be pursued against them.
But Abadee said the internal emails show it was Scenic's Australian general manager, Brown, and not someone from the contractors, who was canvassing its options, including cancellations and refunds.
The plaintiffs are seeking compensation and/or personal injury damages for inconvenience, distress and disappointment and the lost opportunity to cancel.
If successful, the litigation lender will take its fees and a percentage of the settlement.
The hearing continues.
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