Ben Fordham (00:00):
The 21 or 22. Now, speaking of the weather, here’s a question for you. Should you be able to get a refund on a holiday if the weather is bad? We see it happen all the time. You arrive somewhere, but then it rains every day.

(00:15):
Well, a group of holiday makers have taken this to the next level. They’ve launched a class action over a recent holiday, calling it a cruise from hell. Passengers on P&O’s Pacific Aria in 2017 are taking the legal action. They’re upset over their South Pacific cruise to Noumea and Vanuatu because they say that the cruise went into the path of a category five cyclone. They say they were given no pre-boarding cancellation option. The weather prevented them from making planned stops, onboard activities were canceled, and seawater made it into some cabins.

(00:54):
Passengers are now demanding P&O refund their tickets, and they’re calling on the cruise company to pay damages, which could be anywhere between 5,000 and $10,000. But here’s just a sample of the feedback that I’ve just received. After mentioning that we were doing this interview, Paul says, “Suing a cruise company because of bad weather? They may as well shut down the cruise industry.” Let me go to the lawyer who’s responsible for this, Peter Carter, the director of Carter Capner Law. Peter, good morning to you.

Peter Carter (01:26):
Good morning, Ben.

Ben Fordham (01:27):
Let me ask you the question, should we be able to get a refund on our holidays because of bad weather?

Peter Carter (01:34):
Well, I’m not here… That’s not the issue we’re complaining about in this lawsuit. This is a consumer lawsuit bought under the Australian consumer law against the guarantee provided by the cruise operator to provide certain attributes of the service provided. So it’s all well and good for the cruise company to say it was about bad weather, but that’s just not the case.

Ben Fordham (01:59):
But the promise that they were making involves sunny beaches and beautiful sunsets, but they can’t control the weather.

Peter Carter (02:08):
They can control when they departed Brisbane. There was a warning not to travel to those destinations. The cyclone was intensifying. They departed because without giving the passengers the opportunity to leave the vessel and get a refund. We are suing for not only a refund, we are suing for damages for disappointment, which is settled law now under cases that have recently been to the High Court of Australia.

Ben Fordham (02:39):
So damages for disappointment.

Peter Carter (02:42):
That’s right. It originates back in the eighties when Mrs. Dylan was evacuated from a ship in a heavy storm in the sea between North Island and the South Island of New Zealand. And the courts at that time awarded her $10,000 for being evacuated from a ship called the Mikael Liamental, an Eastern European vessel.

Ben Fordham (03:06):
But you hear about this all the time though, don’t you? People might jump on an airplane and they take the family to Fiji and then they get there and it’s raining the whole time they’re there. Or you might go and view a famous monument somewhere in the world, but it’s cloudy or foggy on the day that you go. Can they all sue for damages for disappointment?

Peter Carter (03:30):
That’s not our legal theory. The legal theory here is that they shouldn’t have departed with that knowledge. So it’s all very well. People take bad weather in their stride, and it’s just bad luck on a holiday. You have good days, bad days. It’s usually the best the day you’re leaving, isn’t it, Ben? But here, the vessel should never have departed Brisbane, and the cruise company under Australian law must compensate all 1200 passengers.

Ben Fordham (04:00):
So they must compensate them because there was a warning not to go.

Peter Carter (04:06):
Yes.

Ben Fordham (04:07):
Who was the warning from?

Peter Carter (04:10):
From Australian authorities, from the official Cyclone Warning Center. Your team can do its research to find out where the warning was from and so can the cruise company’s public relations arm.

Ben Fordham (04:24):
Sure. So just to be clear though, there was an official warning not to go, as opposed to warning there is a cyclone in the area.

Peter Carter (04:30):
It was official warning not to travel to Vanuatu. Yes, that’s correct.

Ben Fordham (04:34):
And the passengers on board didn’t have an option of saying, “All right, well, we don’t want to go.”

Peter Carter (04:39):
Passengers on board weren’t afforded the option of getting a refund and saying, “We don’t want to go.” Because once the terms of the travel under the cruise contract are, once the voyage can depart to anywhere and you still have to pay. They can vary the itinerary to anywhere, and you still have to pay. Had they afforded the 1200 passengers, the opportunity to leave the vessel, they would’ve had to pay the refund. So I’m not making any assumption as to why they decided to depart, but that was the outcome of it.

Ben Fordham (05:11):
Okay. P&O, do they have an option to try and settle here, or does it look like this is headed to court?

Peter Carter (05:18):
This type of litigation usually goes all the way, but they certainly, it can settle. It just depends on the defendant. It’s very early days in this litigation. We just have to wait and see how it progresses.

Ben Fordham (05:36):
Okay. Well, I appreciate you coming on and giving us your point of view in the whole thing. Thanks so much.

Peter Carter (05:41):
Thank you. Thank you.

Ben Fordham (05:42):
Good on you. Peter Carter, who’s the director of Carter Capner Law. So what do you make of that? And I didn’t realize that there is a section under damages called Damages for Disappointment. I’ve had a look at some of the videos from on board and yes, you can see the swimming pool. The water’s going up and down. You can see outside the weather seems to be really poor, but I’ve been on cruises before and the weather looks like that, and you just kind of think, “All right, well the weather gods have dished up a really bad week of bad weather.”

(06:14):
We’ll see what the courts make of this dispute, because the passengers are now demanding that P&O refund their tickets and they also want to be paid damages.

Speaker 3 (06:23):
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