CLAIMS for damages against Scenic Tours over luxury European river trips gone wrong are being strenuously defended in the Supreme Court.
Scenic Tours has denied all claims put to it in a class action involving up to 3000 customers aboard 21 different cruises.
Those customers say their 2018 holidays, cruising through Europe down the Rhine and Danube rivers, were ruined due to severe drought.
Scenic Tours was ordered in 2023 to pay out $26 million to passengers aboard European river tours affected by floods in 2013.
The claim
In the latest claim, passengers say they were bustled onto coaches, travelled down freeways and stayed in second-rate hotels because the droughts meant the waterways were too low to accommodate large ships.
One of the affected tours, a 15-day Scenic Jewels of Europe cruise from Amsterdam to Budapest starting November 7, 2018, became a trip made up of four cruising days.
But the Newcastle-based company said that its brochures made it clear that, in the event of forces beyond its control, itineraries were subject to change.
The defence
In its defence, filed in the Supreme Court, counsel for Scenic Tours said that in addition to 'terms and conditions' stated in its brochures, it said:
"Cruise itineraries may need to be varied, including as a result of adverse climatic or other weather conditions and the effects arising from such conditions, water levels, lock closures, or other circumstances beyond the control of the entity''.
The defence includes excerpts from the brochures, including: "Scenic has a range of carefully prepared plans ready to activate at the drop of a hat, should our ships encounter any water level issues.
"Our State of the art ... ships are designed to convert easily so they can slide under all kinds of bridges if the water is too high , allowing our expert crew to continue navigating even the trickiest waterways".
Overseas agents
Scenic Tours also disputes that it is responsible for the European River cruises purchased through overseas-based organisations, such as Scenic Tours Europe AG, a Swiss corporation.
In that case, Scenic Tours Europe itself "entered into arrangements with other entities in relation to the use of their river cruise vessels and the provision of onboard and offshore services", the defence document says.
It goes on to deny supplying river cruises to any of the customers who have joined the class action who do not live in Australia.
The principal claimant, Darran Kelly, and all of the members of the class action knew, or ought to have known that the cruises were subject to change, it says.
In some cases, notice was given to customers before they embarked on their cruise of adverse climatic or other weather conditions, including water levels and lock closures.
Options
On all but two of the 21 cruises, customers were given the option to either leave the cruise/tour, or not embark on it if it had not already begun, or remain on the ship, defence counsel says.
Scenic Tours also says that, where there were interruptions, and/or deviations from the advertised itineraries they were the result of lock closures due to unseasonably warm and dry weather, and low water levels in the Rhine, Main and Danube rivers and their tributaries which was outside of their control.
Mr Kelly is seeking nearly $30,000 made up of damages for inconvenience, distress and disappointment, as well as wasted expenditure on airfares.
It follows on from a similar class action against the cruise company, relating to promised luxury cruises in 2013.
Similar claim
In that case, led by Lake Macquarie-based school teacher David Moore and involving 11 ships and which took 10 years to settle, Scenic Tours were last year ordered to pay out $26 million.
Counsel for Mr Kelly and others involved in the class action, Ben Hemsworth of Somerville Legal, said the current class action related to very similar circumstances, except the underlying issue was drought, not floods, as was the case in 2013.
The matter was due to come back to court next month.
In the previous case, 1223 people successfully sued Scenic Tours after 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.
