Ponant won't refund on cancelled cruise

VintageDom

Junior Member
Joined
Sep 29, 2011
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42
Booked and paid in full for a cruise with Ponant through the travel agency that was arranging a conference. The cruise was an extension of the conference.
The agency has refunded most of the other monies that we paid, less some cancellation charges. Ponant is only offering a credit valid until May 2022 and we need to book with the same agency to utilise the credit.
We have contacted the agency and they claim that it was in the Ponant terms.
Do we contact ACCC, since the product or service was not provided?
Any suggestions greatly appreciated.
 
US DOT is not applicable to ACL. The ACCC has stated that force majeure is very much applicable if covered by the contract, and can modify rights and protections under the ACL.

I understand clause 11.9. Ponant is arguing 12.9 is the overriding clause. If they are correct, the ACCC supports the issuing of a credit or voucher. If they are not, ACCC requires a full refund.

Finding out your rights in this case should be as easy as a call to consumer affairs.
 
Congratulations, that is a great outcome ! Did you initiate a chargeback through Amex, or through the Ponant Australia office ?

Would anyone know what laws apply for departures from Ushuaia to Antarctica and return ? And why refunds don't apply for deposits, and only fully paid ? FYI Our travel agent this week sent us the 5 August updated Ponant "Serenity Clause" which now says if they proceed with a cruise but you can't obtain flights because your departure country cancelled all flights, then you are entitled to 120% future travel credit on the deposit only.

The Serenity Clause is only applicable to NEW Bookings and not retrospective. The General T & C's on their Ponant Web Site are what is applicable and IF you purchased the cruise in Australia ( not where it was sailing from etc.)
Booked and paid in full for a cruise with Ponant through the travel agency that was arranging a conference. The cruise was an extension of the conference.
The agency has refunded most of the other monies that we paid, less some cancellation charges. Ponant is only offering a credit valid until May 2022 and we need to book with the same agency to utilise the credit.
We have contacted the agency and they claim that it was in the Ponant terms.
Do we contact ACCC, since the product or service was not provided?
Any suggestions greatly appreciated.
Ponant's Terms & Conditions are very clear on a Refund entitlement
  • (i) The FIULL REFUND of the price of the Contract
  • (ii) Another Service at an identical price.
  • (iii) A service at a lower price and the refund of the difference between the two services on the basis of published prices.
This is 11.9 and viewable on the Ponant Web Site General Terms & Conditions!
 
Roy, below is the statement I received from Ponant. How did you manage to convince them that clause 11.9 overrides force majeure. Did Amex go into bat for you?
Thank you for taking the time to let us know of your concerns and disappointment with PONANT’ s policy regarding future cruise credits.
The situation of the COVID-19 outbreak affects many countries and their citizens around the world. The borders have closed one after the other, and many ports have refused access or disembarkation to passenger vessel.
The safety of our clients is our first concern. In the context of the COVID-19 outbreak we had therefore no other option but to cancel your cruise.

We understand that you would prefer a refund and if Ponant had made the decision to cancel the cruise under normal conditions, our terms and conditions would have offered you a full refund.
However, due to Government restrictions in Australia and other countries, Ponant did not choose to cancel the cruise, but refused us permission to operate, nor would you have been allowed to depart Australia.

Therefore we did not change our terms and conditions, but brought the Force Majeure clause into play. The Force Majeure Clause covers suspension and cancellation of cruise, not necessarily once the cruise has commenced, but also prior to commencing.

We understand that you would prefer a refund at this time, and we understand you are not inclined to travel in the near future, as you are concerned about the health of your husband. and for this reason, we have offered the future cruise credit to be used within 24 months.
We are currently putting plans in place to offer cruises in this part of the world later in the year and have also released our plans to reassure guests of our COVID-19 preventative issues we are putting in place. We are very excited with this possibility and are hopeful that these itineraries will appeal to you.

Our logic for not offering a refund, but a future cruise credit is as below: -

We understand that at this moment in time, you are not inclined to book a future cruise, but we are hopeful that by 18 months, things will have returned to normal and you might feel more inclined to travel with us
If you still feel the same way, we will agree to action the refund at that time.
 
We are in dispute with Ponant re our cancelled cruise. We booked with an Australian TA by direct debit. Ponant freely admit in a statement to us that the contract we signed with them states if Ponant cancels a cruise, no matter what the reason, we are entitled to a refund. But they have changed the contract because on 25th March 2020 the EU decided it was ok to only offer a FCC or a refund in 18 months time from the date our cruise was due to depart.
The fact that we booked in Australia with a TA that has an ABN makes no difference to them. I will fight them all the way with this. I have emailed Sarina Bratton Chairman Asia Pacific but have never received a reply. I have also lodged a complaint with ACCC who state on their website companies cannot change their contract due to Covid-19. I am waiting for a reply.
If only we could all get together to lodge a complaint it would carry more weight.
Ponants terms and conditions are on their website.
I will see if I can attach the statement they sent me but I am not very good at that. In the statement Ponant have “cherry picked“ rules where it has suited them, French law, EU law, ACCC, ACL and NSW fair trading.
I have manages to attach the statement below. Clause 12.9 to do with force majeure is after the cruise has sailed not before. Ponant has agreed this is so.

Hello ( I have deleted my name)

This is the statement from Ponant
As previously advised, we understand your disappointment that we are not offering refunds, but credits instead. The current international situation is completely new and deeply affects the entire economic system. Ponant is happy to offer a future cruise credit equal to 100% of the amount paid, and an additional commercial gesture of 20% of the initial cruise, valid for the next 24 months, starting from the date of departure of your cancelled cruise. Additionally, you are eligible to transfer your credit to a family member.

We have also found that some guests have been able to claim from their travel insurance. I am not sure if this applies to you, but we are happy to provide you with a letter advising that you have not accepted the future cruise credit, and we will void this credit. If your travel insurance denies your claim, we will be happy to reinstate your cruise credit with a copy of the travel insurance showing they have denied your claim.

It is correct that under normal circumstances you would be eligible for a refund.

However a number of regularity bodies have noted the below:-

The ACCC notes that if your travel is cancelled due to government regulations, this impacts your rights under the consumer guarantee. The Travel Industry Body (AFTA) notes that a ‘force majeure’ clause may be enlivened due to COVID-19. I refer to point 12.9 below from our terms and conditions which includes epidemics (which COVID-19 is):

1. CDP shall not be held liable under any circumstances for any damage caused by the interruption and/or the alteration of the trip as the result of a force majeure event, including, wars, blockades, riots, strikes, social conflicts, acts of piracy or terrorism, epidemics or periods of quarantine, natural disasters and catastrophes, nuclear fusion, fission, pollution or explosion or its consequences, the closure of the port of departure, of call, or destination, the impounding, requisition, or seizure of the ship for whatever reason, the use of the ship for special Government purposes, or due simply to the threat of the above events.

In this case, the damage refers to the cruise not going ahead. This situation is totally out of our control and the COVID-19 pandemic is a force majeure event as defined within Ponant’s terms and conditions.
However to support your future travel plans, we are providing a Future Travel Credit for affected departures.

Additionally we draw your attention to clause 16 below:-
16. Applicable Law and Jurisdiction
16.1 This Contract is governed by French law.
16.2 Only courts within the jurisdiction of the Tribunal de Grande Instance de Marseille, France, are competent to hear any case against CDP, its employees, subsidiaries, or subcontractors, even with the introduction of third parties.

Compagnie du Ponant is registered in France and its Terms & Conditions are governed by French law. The French government has adopted a series of orders to limit the consequences of the COVID-19 outbreak crisis, including in the tourism industry. As per an order number 2020-315 dated 25th March 2020 amending the French “ Code du Tourisme”, Compagnie du Ponant is entitled not to reimburse the price of the cruise and its associated services, but can propose instead a credit of the same value, valid for an 18 month period. Ponant has agreed to extend this to 24 months and offer an additional 20% discount.

We have also have received the following advice as per DEPARTMENT OF FAIR TRADING:
If your travel is cancelled, you should receive a refund or other remedy, such as a credit note or voucher, in most circumstances. Ponant has made the decision to offer a future cruise credit.

If your travel is cancelled due to government restrictions, this impacts your rights under the consumer guarantees. Your rights may be different when cancellation is due to a government ban because government bans may make it illegal for the supplier to supply the goods or services. Cruise Lines are not permitted to sail at present due to worldwide government restrictions, banning entry to cruise ships.

The ACCC and Department of Fair Trading also notes the following:
Many of the complaints currently being received are ineligible for review as they do not allege a breach of the Code.

Additionally the following rules regarding Frustrated Contracts apply in the various states:
A frustrated contract is a contract that, subsequent to its formation, and without fault of either party, is incapable of being performed due to an unforeseen event (or events), resulting in the obligations under the contract being radically different from those contemplated by the parties to the contract. Due to Government restrictions we cannot proceed with the cruise so the frustrated contract comes into effect.

We understand that you would prefer a refund at this time, and we understand you are not inclined to travel in the near future, and for this reason, we have offered the future cruise credit to be used within 24 months. We are currently putting plans in place to offer cruises in this part of the world to Australian and New Zealand Passengers only, later in the year, and have also released our plans to reassure guests of our COVID-19 preventative issues we are putting in place.

We are really sorry but, due to the current turmoil, we are not able to agree to a refund now. However, if you have not used your future cruise credit 18 months after your initial cruise departure date, we will agree to refund. It goes without saying, that this is an extremely difficult time for everyone, and we hope you will understand the deep crisis facing the world of tourism.

We do hope you will find a cruise to suit you within the next 24 months.
Kind regards
Noni

The Push Back from Ponant as received by me also is NOT valid in Australia or any Travel purchased in Australia as the ACCC Consumer regs apply. Ponant cancelled all cruise prior to Government intervention and Force Majeure dos not legally comply to the Covid scenario!
 
Roy sorry to ask another question, have I understood you correctly. Are you saying as Ponant suspended operations on the15/3/2020 but the Australian government didn’t close our borders until 20/3/2020 that force majeure does not apply? Sorry I want to make sure I have my facts correct before I have another try with a Ponant. Thank you for your time.
 
The Push Back from Ponant as received by me also is NOT valid in Australia or any Travel purchased in Australia as the ACCC Consumer regs apply. Ponant cancelled all cruise prior to Government intervention and Force Majeure dos not legally comply to the Covid scenario!

re bolding: your statement is inconsistent with the advice from ACCC. On what basis are you saying the ACCC has got it wrong?
 
If it was a very large deposit, then there is always the option of heading to xCAT naming the Agent and Ponant as respondents. Exclusive jurisdiction clauses are not always effective, and if the Agent is Australian, and taken to be the agent of Ponant, then you may succeed against them.

At the moment there would be a good case against Ponant for deceptive and misleading conduct, given their website (and terms and conditions) are inducing people to book by offering full refunds if they choose to cancel. I would be taking a screen shot of their press release area still up on their website promoting their "Worry free bookings policy". Running a case for deceptive conduct and oppression may take more than xCAT however, and need a lawyer.

Personally, I would be going back to the Travel Agent and suggesting that unless a better outcome is achieved, they will be a party to whatever action you take.


Except that clause 12.9 specifically mentions "suspending and/or amending a trip" - no reference to cancellation., Clause 11,9,on the other hand specifically deals with cancellation, and goes further to state that it applies "no matter the reason for the cancellation".
When did you book the cruise? Clause 12.9 was changed from their 20/21 brochure wording of 'interruption and/or the alteration' to 'suspending and/or amending' on their 10 March 2020 update. According to the ACCC they have to stick to the terms and conditions under which you booked.
 
We finally received our refund from Ponant. It was a major battle, only resolved by my Federal MP writing to ACCC Chairman Rod Sims. Hell would freeze over before we did business with Ponant again.
 
We finally received our refund from Ponant. It was a major battle, only resolved by my Federal MP writing to ACCC Chairman Rod Sims. Hell would freeze over before we did business with Ponant again.
Wow, congratulations, and what a stressful and Herculian effort you had to make ! We booked Antarctica in March 2019 for January 2021. Here it is mid-November and Ponant still haven't officially cancelled the cruise. In the end, because we still want to visit Antarctica, we moved our cruise in August to March 2022 - not the month we wanted, but still a very good price (actually, it was cheaper by $5k). Hopefully by then we will be traveling normally.
 
MR61 just remember Antarctica cruises in March are cheaper for a reason, less wildlife etc. I suggest you google to make sure you see if March in Antarctica is going to meet your expectations.
 
We finally received our refund from Ponant. It was a major battle, only resolved by my Federal MP writing to ACCC Chairman Rod Sims. Hell would freeze over before we did business with Ponant again.
Congratulations on your win. We are having the same battle at the moment. Can I ask when your cruise was due to depart?
 
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We finally received our refund from Ponant. It was a major battle, only resolved by my Federal MP writing to ACCC Chairman Rod Sims. Hell would freeze over before we did business with Ponant again.
Excellent news Dilligas. Absolutely well done. You have inspired me.
 
Livestotravel our cruise was due to depart August 2020. Ponant was adamant they would not refund, we were equally as adamant we would not accept a cruise credit or refund in 18 months time. I urge anyone seeking a refund to get in touch with their Federal MP.
 
Hi Everyone, inspired by Dilligas I did contact my Federal member, whose reply - through one of his staff - was had we contacted ACCC? They wouldn't get involved.
We did contact ACCC who were looking into Ponant. They have been unable to secure a refund since the Future Cruise credit is being held in the US.
We have on 3 occasions requested to view the T&C's from our travel agent, they are either ignoring the question or "AS I previously communicated to you the ACCC did allow for the changes in the consumer laws over cruise credits due to the unusual circumstances around COVID." (Copied and pasted from an email).
Can anyone shed some light or offer additional assistance on how best to proceed?
 
Hi Everyone, inspired by Dilligas I did contact my Federal member, whose reply - through one of his staff - was had we contacted ACCC? They wouldn't get involved.
We did contact ACCC who were looking into Ponant. They have been unable to secure a refund since the Future Cruise credit is being held in the US.
We have on 3 occasions requested to view the T&C's from our travel agent, they are either ignoring the question or "AS I previously communicated to you the ACCC did allow for the changes in the consumer laws over cruise credits due to the unusual circumstances around COVID." (Copied and pasted from an email).
Can anyone shed some light or offer additional assistance on how best to proceed?
Not sure if I still have my emails etc from my federal mp and responses from Ponant also the original letter in the Sunday Telegraph re writing to a federal mp but will post them on here if I have them. Your mp seems to be the only one so far who will not help. As an aside ACCC state that the conditions under which you booked stand. We had booked in 2018, long before covid, for a cruise in 2020. Goggle Ponant terms and conditions for the year in which you booked.
 
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