Promises, Promises!

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Twelfth in a series of interviews in which specialist travel lawyer Anthony Cordato discusses issues of vital importance to travellers, travel agents and tour operators.

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Cruise ships are the new ‘pleasure domes’ – self-contained floating resorts, devoted to pleasure!

Brochures for cruises, like tour brochures, are designed to catch the eye with inviting commentary, photographs where everyone is smiling, exciting itineraries and details of the many features of the cruise ship. About 95% of a typical brochure consists of promises and the last 5% consists of the booking conditions, thus creating the illusion that the promises overwhelm the booking conditions.

“The reality is different. When legally examined, the booking conditions cut down the promises, often cutting so deep that not much is left of the promise at all. As the saying goes, the big print giveth, and the small print taketh away!” says travel lawyer Anthony Cordato, whose legal firm, Cordato Partners, offers specialist legal advice to travel agents, tour operators and carriers.

The purpose of this article is to match some of the promises contained in a cruise brochure to the booking conditions, which are also known as passage conditions, to understand why the promises in the brochure should be taken with a ‘grain of salt’.

The itinerary

The promises A calendar of dates, ports of call (arrival and departure), number of nights, prices according to cabin description, early payment prices, and a map.

The booking condition If the cruise line alters the itinerary before departure, then it will offer the passenger a new itinerary, an alternative cruise or a cancellation.
After departure, the position is different – the cruise line ‘reserves the right to deviate from the ship’s advertised route, to delay or cancel part of the cruise, to substitute or change the ship or ports of call, … in our absolute discretion or that of the Captain. Where this occurs for reasons of safety, maritime law, severe weather or to protect human life or health, we shall not be required to refund any portion of the fare, make any compensation or be liable for any consequential loss…’

Comment No refund or compensation is available for a justified change in itinerary after departure.

Shore Excursions

The promises Take part in a fantastic range of organised shore tours with expert guides, an opportunity to explore the places visited.

The booking condition Our responsibility does not extend beyond the ship. Whenever you leave the ship, any arrangements made by or for you are undertaken entirely at your own risk. Where appropriate, we will assist with any concerns if the shore tour provider is booked through us. Fare does not include shore excursions.

Comment If the shore excursion does not meet expectations, the cruise line will pass on the complaint but accept no responsibility. Price is extra.

Dining

The promises Enjoy delectable à la carte dining, magnificent buffets and casual dining at one of our many venues* (In the small print appears *Charges apply.) Elsewhere are descriptions of breakfasts, lunch, dinners, and more dining options including room service.

The booking condition The asterisk is significant: *fare does not include food in alternative dining venues as indicated on board, drinks, bar snacks, room service menu items and meals ashore.

Comment No surprises here – the food in the designated venues at the designated times is included in the fare. Otherwise the food, and at all times the drinks, are extra.

Activities and Entertainment

The promises Extensive lists are provided. For activities: from swimming pools and water sports to spas and saunas; from table tennis and shuffleboard to deck chess; from trivia, games and karaoke to dance classes. For entertainment: from musical productions and stage shows to theme nights; from live music to nightclub; from movies to bars and lounges. It’s a long way from deck quoits and relaxing in a deck chair, which used to be the norm!

The booking condition No booking condition exists to exclude compensation if the cruise line does not provide the activities or entertainment promised. The only qualification is that activities may vary by ship.

Comment At last! The cruise line accepts full responsibility when the activities and entertainments are not provided, by not excluding responsibility in the booking conditions. Although it is not stated in the conditions, if one activity or entertainment is not available, then the cruise line can point to many other alternatives that are available.

Health and medical attention

The promises Cruise brochures state that the cruise lines are concerned to ensure that medical attention or special treatment is available to cater for passengers with physical or mental conditions. A typical brochure specifically promises that on-board medical service is staffed by full-time, registered doctors and nurses, on call 24 hours a day, seven days a week.

The booking conditions As to medical treatment, for known conditions the passenger must complete a pre-boarding medical health questionnaire, take their own medical apparatus and enough prescribed medicines for the cruise. The conditions state that on-board medical services and facilities are designed only for medical needs arising on board (not pre-existing needs); that charges for medical services are payable by the passenger; and that the cruise liner is not a health provider and therefore does not accept responsibility for death, injury or sickness of a passenger arising from the negligence of the doctors or nurses on board. Travel insurance is strongly recommended.

Comment As soon as the cruise ship crosses from territorial waters into international waters, which is at precisely 12 nautical miles from the coastline (mainland or an island), Australian Medicare no longer provides coverage, and so all medical attention and treatment must be paid for. While on board, the passenger is entirely in the hands of the on-board medical staff.The cruise line cannot be held liable, unless the cruise line was negligent in selecting the medical staff (which is almost impossible to prove). Travel insurance will provide cover for medical treatment and evacuation, but will not cover pre-existing medical conditions, unless those conditions have been disclosed to, and accepted by the travel insurer.

Safety

The promises Cruise brochures do not need to make the obvious point that the cruise ship is designed and the staff are trained to protect against passenger injury and death – safety is an implied condition of all travel.

The booking condition The cruise line is not liable for death, injury or sickness of any passenger, however arising and whether or not arising in the course of performance of the cruise, unless caused by the cruise line’s proven negligence. No compensation is payable, or compensation will be reduced in proportion to any contributory negligence by the passenger.

Comment The cruise line does not accept any extra legal responsibility for a passenger’s safety than would be the case if they operated a hotel, a function centre, a fitness centre or a swimming pool. The ordinary standard for negligence applies. Only airlines accept a high degree of legal responsibility.

Luggage

The promises The cruise line will carry all luggage, provided it is personal, and conforms with size limits and weight limits.

The booking condition The cruise line is not liable for the loss of or damage to any luggage or goods, including valuables, howsoever arising unless caused by the cruise line’s proven negligence. The level of responsibility is no different to that of a hotel or resort.

Comment On cruise ships, all luggage (on ships it is known as luggage; on aircraft it is known as baggage) is carried at the passenger’s risk as to loss and damage. Generally speaking, if any personal possession is lost or stolen on board, then the cruise line is not responsible. Size and weight limits become very important if an air connection is involved because more stringent limits apply.

Conclusions

• The booking conditions which cruise lines rely upon are valid attempts to limit their responsibilities to the passengers. They are valid in terms of drawing a line between what a passenger should be responsible for, and what the cruise line should be responsible for.

• Travel insurance will be a great help in three areas: first cancellation before departure and during the cruise; second for medical and evacuation expenses during the cruise; and third for loss or damage to luggage.

• Common sense and awareness are always useful. The Australian Department of Foreign Affairs provides this advice to travellers upon cruise ships on the www.smarttraveller.gov.au website:

Department of Foreign Affairs Advice on Cruise ships
We advise you to be alert to your own security and exercise common sense and look out for suspicious behaviour.
You should ensure you are carrying the appropriate travel documents for your journey. A valid Australian passport is required for travel outside Australia and its waters.
You should take sensible precautions to protect your valuables, such as using the ship’s safe and minimising signs of wealth.
You should familiarise yourself with safety equipment and evacuation procedures. You should take part in safety drills and ensure there are sufficient lifejackets in your cabin. In November 2007, 10 Australians were among more than 150 people rescued after their cruise ship sank after hitting an iceberg en route to the Antarctic.
Crimes, including sexual assault and robbery, can occur after passengers have accepted ‘spiked’ food or drink.
Passengers on cruise ships are susceptible to the same illness and diseases as those on shore. You should consult your doctor prior to travelling (see Health Issues for more information) and seek advice from ship staff about local health risks. If you do feel unwell, you should consult the ship’s doctor.
We strongly encourage you to take out comprehensive travel insurance to cover emergencies and any activities you may undertake as part of your cruise. In the event of a medical emergency, you may need to be evacuated from the ship or the nearest port to a hospital with the appropriate facilities. Evacuation costs can be considerable and may exceed $100,000.

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Anthony Cordato is the author of Australian Travel & Tourism Law (4th Ed) and an expert in travel law. To order his book, visit www.tourismlegal.com.au. His legal firm, Cordato Partners, Business, Property & Tourism Lawyers, offers specialist legal advice to the travel industry and he provides a 15-minute free advisory service which is available by telephone (02) 8297 5600 or by email - ajc@tourismlegal.com.au.
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