SS Response regarding OBC

[mrscrab]

My question to SS Guest Relations Manager regarding On Board Credit has been answered by Karen Christensen of the SS office in Sydney. The brochure states that any cruise booked for 2013 would receive OBC. I did see a question on this on the Cruise Critic boards but it seems these were cancelled in November 2012. We knew nothing of this, we feel disapointed with SS that we received no notification of this change. The letter from Sydney quotes 2 clauses where SS can change anything at any time. So I suppose I should have read the fine print a few times -it certainly isn't in the passengers favour.

 

We board the Cloud in Barcelona October 25 to Barbados so hope we enjoy the cruise as much as the others we have taken.

[UKCruiseJeff]

My question to SS Guest Relations Manager regarding On Board Credit has been answered by Karen Christensen of the SS office in Sydney. The brochure states that any cruise booked for 2013 would receive OBC. I did see a question on this on the Cruise Critic boards but it seems these were cancelled in November 2012. We knew nothing of this, we feel disapointed with SS that we received no notification of this change. The letter from Sydney quotes 2 clauses where SS can change anything at any time. So I suppose I should have read the fine print a few times -it certainly isn't in the passengers favour.

 

We board the Cloud in Barcelona October 25 to Barbados so hope we enjoy the cruise as much as the others we have taken.

 

Hi, SS are both legally wrong and are breaking Australian Consumer Law. Specifically:

 

1. The blanket exclusion clause you were referred to is unenforceable in Australia.

 

2. Unless SS made it clear to you before you made the booking, or in writing to you when you made the booking with the option to cancel that the OBC is no longer on offer then they would very clearly under Australian Consumer Law be obligated to provide it.

 

You should remind SS of this and if they fail to respond take appropriate action.

 

I have set out below the relevent The Australian Consumer Law statements:

 

The Australian Consumer Law

 

On 1 January 2011 the Australian Consumer Law (ACL) commenced.

 

 

The ACL includes:

• a national unfair contract terms law covering standard form consumer contracts;
  
• a national law guaranteeing consumer rights when buying goods and services;
  
• a national product safety law and enforcement system;
  
• a national law for unsolicited consumer agreements covering door-to-door sales and telephone sales;
  
• simple national rules for lay-by agreements; and
  
• new penalties, enforcement powers and consumer redress options.
  

 

Avoiding unfair business practices

 

The Avoiding unfair business practices guide [PDF 2.6Mb] [RTF 185KB] covers misleading or deceptive conduct, unconscionable conduct, false or misleading representations and related offences, information standards and country of origin representations.

 

01. Misleading or deceptive conduct

 

 

 

Summary

It is unlawful for a business to make statements in trade or commerce that:

> are misleading or deceptive

> would be likely to mislead or deceive.

Failing to disclose relevant information, promises, opinions and predictions can also be misleading or deceptive.

Businesses cannot rely on small print and disclaimers as an excuse for misleading or deceptive conduct.

ACL reference: sections 18 and 19

What is misleading or deceptive conduct?

‘Conduct’ includes actions and statements, such as:

> advertisements

> promotions

> quotations

> statements

> any representation made by a person.

Business conduct is likely to break the law if it creates a misleading overall impression among the audience about (for example) the price, value or quality of consumer goods or services.

It is a business’s actions and statements that matter – not its intentions. A business can mislead and deceive, without intending to.

 

 

Puffery

‘Puffery’ is wildly exaggerated, fanciful or vague claims that no reasonable person could possibly treat seriously or find misleading.

For example:

> a café owner claims to make ‘the best coffee in the world’

> ‘all your dreams will come true’ if you use a certain product.

Silence

A business can break the law by failing to disclose relevant facts to a customer.

Silence can be misleading or deceptive when:

> one person fails to alert another to facts known only to them, and the facts are relevant to the decision

> important details a person should know are not conveyed to them

> a change in circumstance meant information already provided was incorrect.

Whether silence is misleading or deceptive will depend on the circumstances of each case.

 

 

Disclaimers and small print

Businesses cannot rely on disclaimers buried in small print as an excuse for misleading or deceptive conduct.

For example:

> A large department store engaged in misleading conduct when it advertised ‘25 per cent off all clothing’ and ‘15-40 per cent off housewares’, but in small print excluded certain clothing and manchester. A court found this to be misleading conduct. Legal reference: ACCC v Target Australia Pty Ltd [2001] FCA 1326

However, consumers cannot ignore disclaimers that are prominently displayed. Such disclaimers may be enough to protect a business, depending on the circumstances.

For example:

> A bank advertises low credit card interest rates for the first 12 months. The advertisement clearly and prominently indicates the low rates are only available to new customers who apply within a certain period. This disclaimer is sufficient because it clearly informs consumers about the terms and conditions.

It is recommended that businesses prominently display all disclaimers and any terms and conditions. Even so, businesses must ensure that these disclaimers, terms and conditions are not unfair. An unfair contract term will be void (treated as if it never existed).

 

 

I hope this helps you. Please pursue this and report back the results in order to help others so effected.

 

:)

[Mark_K]

My question to SS Guest Relations Manager regarding On Board Credit has been answered by Karen Christensen of the SS office in Sydney. The brochure states that any cruise booked for 2013 would receive OBC. I did see a question on this on the Cruise Critic boards but it seems these were cancelled in November 2012. We knew nothing of this, we feel disapointed with SS that we received no notification of this change. The letter from Sydney quotes 2 clauses where SS can change anything at any time. So I suppose I should have read the fine print a few times -it certainly isn't in the passengers favour.

 

We board the Cloud in Barcelona October 25 to Barbados so hope we enjoy the cruise as much as the others we have taken.

Did you book before or after November, 2012?

 

 

Sent using the Cruise Critic forums app

[UKCruiseJeff]

Did you book before or after November, 2012?

 

 

Sent using the Cruise Critic forums app

 

 

Mark, what difference does that make? :confused:

 

The Australian Consumer Law is very clear and there is no ambiguity. SS needed to inform the OP before or whilst making the booking of any relevant change to their offer. When they made the booking and when the offer was withdrawn is irrelevant. They have a legal obligation to acquaint themselves with the laws in each and every country they operate in and ensure that they fully comply with them.

 

It is bad enough that they make offers, pocket customers hard-earned cash and then fail to deliver (cheat their customers of ...) them, but then knowingly depriving consumers of their legal rights is illegal, fraudulent and in Australia a "crime". I wish I could state more clearly what I feel about such practices. Be clear. There is no excuse for such behaviour. This is fly-by-night suspect market trader behaviour - not what I expect from Silversea.

 

The Australian Consumer Law

 

Silence

A business can break the law by failing to disclose relevant facts to a customer.

Silence can be misleading or deceptive when:

> one person fails to alert another to facts known only to them, and the facts are relevant to the decision

> important details a person should know are not conveyed to them

> a change in circumstance meant information already provided was incorrect.

Whether silence is misleading or deceptive will depend on the circumstances of each case.

 

Disclaimers and small print

Businesses cannot rely on disclaimers buried in small print as an excuse for misleading or deceptive conduct.

 

It is recommended that businesses prominently display all disclaimers and any terms and conditions. Even so, businesses must ensure that these disclaimers, terms and conditions are not unfair. An unfair contract term will be void (treated as if it never existed).

 

 

The OP's green light has been on a couple of times .... they will return I'm sure to say "thanks" for the pointers and confirm that they have received their credit. ;)

 

 

.

[Mark_K]

I'm no lawyer, or solicitor, or whatever they're called in Australia, but I did look up the law and it says something to the effect that a time period for a rebate, gift, prize or free item to be available will be considered reasonable if communicated in the offer. And according to the OP, the original offer said that it could be discontinued at any time.

 

 

Sent using the Cruise Critic forums app

[UKCruiseJeff]

I'm no lawyer, or solicitor, or whatever they're called in Australia, but I did look up the law and it says something to the effect that a time period for a rebate, gift, prize or free item to be available will be considered reasonable if communicated in the offer. And according to the OP, the original offer said that it could be discontinued at any time.

 

 

Sent using the Cruise Critic forums app

 

You have misunderstood the law. .

[bogey]

Well, Jeff. I remain amazed at your willingness to share your expertise with us. Thanks.

 

I had been advised that the contract for passage was the relevant legal document in a commercial transaction involving a cruise. I further had been led to believe that that those contracts always include a "choice of law" provision indicating which jurisdiction's laws will govern any disputes about the contract. Therefore, I would have assumed that the Australian consumer protection statutes you provided would be irrelevant to a cruise contract --- unless the contract specified that Australian law was controlling.

 

So, I'm glad to learn that Australian law applies so that the OP can enforce whatever promises were made. (Although the material you provided did not indicate the remedies available for a violation, I assume that specific performance would be one option?)

 

Additionally, I'm very happy to see the deceptive advertising provisions of the laws you quote, because I have always been annoyed by the advertising gimmicks used by some cruise lines. One particularly irritating example (to me) is the "free air" that is advertised by some cruise lines. We've all come to learn that the air, while included in the "50% discounted fare," will be reduced by a meaningful amount for anybody who wants to arrange their own air. So, if the price of the cruise is significantly less without air, it is deceptive to advertise that the air is "free."

 

So, I imagine that Oceania and Regent don't make those deceptive claims in their advertising in Australia. Bless those mates from Down Under!

[UKCruiseJeff]

Well, Jeff. I remain amazed at your willingness to share your expertise with us. Thanks.

 

I had been advised that the contract for passage was the relevant legal document in a commercial transaction involving a cruise. I further had been led to believe that that those contracts always include a "choice of law" provision indicating which jurisdiction's laws will govern any disputes about the contract. Therefore, I would have assumed that the Australian consumer protection statutes you provided would be irrelevant to a cruise contract --- unless the contract specified that Australian law was controlling.

 

So, I'm glad to learn that Australian law applies so that the OP can enforce whatever promises were made. (Although the material you provided did not indicate the remedies available for a violation, I assume that specific performance would be one option?)

 

Additionally, I'm very happy to see the deceptive advertising provisions of the laws you quote, because I have always been annoyed by the advertising gimmicks used by some cruise lines. One particularly irritating example (to me) is the "free air" that is advertised by some cruise lines. We've all come to learn that the air, while included in the "50% discounted fare," will be reduced by a meaningful amount for anybody who wants to arrange their own air. So, if the price of the cruise is significantly less without air, it is deceptive to advertise that the air is "free."

 

So, I imagine that Oceania and Regent don't make those deceptive claims in their advertising in Australia. Bless those mates from Down Under!

 

Thanks, very much appreciated ... always happy to help .... although it would be lovely if people said thanks sometimes .......:rolleyes:

 

The Australian law was based on the UK approach. All it tried to do was to force companies playing "unfair" into "fairness" and put it all into plain English for those trying to edge out of their clear set of responsibilities.

 

In terms specifically of jurisdiction, if the contract was sealed in Australia, that is where the case can be heard whatever Silversea states in it's small print. The "unfair contract term" part of the UK and Australian acts wipes out in a blanket fashion any supplier clause that is simply unfair to the consumer. And it's interpretation is always biased towards the consumer. It is basically applying common sense. All (or at least many) companies rely on confusing consumers to believe they have less rights than they do and it is therefore incumbant on those that are treated in this way to "call it out" for the common good. As an aside, this isn't the Silversea I and others once knew and I view the current management as temporary and poor custodians of a brand that we (the "customers") also have a stake. The customers - sadly - need in the current situation to collectively teach the management how to behave and manage.

 

You have asked about remedy, which in this case is a choice of one or both of two options. In this case I would (and have in similar situations in the UK) invite SS to reconsider their position in light of their need to be in compliance with Australian Law. Failing that, or perhaps additionally, I'd first ask the relevant office what they can do to help:

 

http://www.consumerlaw.gov.au/content/Content.aspx?doc=consumers_ACL.htm

 

Asking the authorities to warn Silversea about their conduct effectively converts future non-compliant breaches into criminal activity and opens up the opportunity of the Government prosecuting and possibly even fining or even if really stubborn - imprisoning senior executives who continually refuse to comply with domestic law.

 

And/or I would raise a court claim for the OBC. This would normally in amost 100% of cases winkle it out. They will routinely seek an NDA which should be refused. I'd refuse to sign a NDA (non disclosure agreement) and set about ensuring that the press and internet were aware of the outcome so others wouldn't be so cheated. Corporations need to understand that cheating customers has it's reputational and revenue consequences if that is the only language they understand if there is a stubborn lack of integrity and honourable and fair behaviour.

 

All countries suffer from the influence of corporate pressure, but the US sadly suffers from a far too high level of corporate influence on Washington and hence the lack of the same depth of consumer and society protection is unavailable to Amercians that is available to others. As you know this lack of protection has been largely blamed for the lack of control in the finance area that has triggered the financial crisis. Letting the market make it's own rules is always going to eventually bring it's consequences.

 

This lack of consumer orientation has made the depth of consumer protection available elsewhere confusing too many Americans. They cannot believe what we and Australia has for example and have a difficulty in grasping and accepting it.

 

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