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There has been a lot of talk recently about ‘Force Majeure’, in the context of the itinerary disruptions that occurred as a result of the Norwegian strike. I thought I’d investigate what it actually means and what difference it makes, so hey ho! it’s time to read the small print in the terms and conditions pages of the brochures.

P&O define Force Majuere as follows:

Force Majeure means unusual and unforeseeable circumstance beyond the control of P&O Cruiss that P&O Cruises cannot, even with the exercise of reasonable skill and care, deliver the Package, or part thereof, including any part of the itinerary, and includes (without limitation) technical problems, war or threat of war, terrorist activity or the threat of terrorist activity, riots, civil commotion, disaster, Act of God, natural and nuclear disaster, fire, closure of ports, strikes or other industrial action, medical problems on board the ship or at intended ports, including, in each case, incidents of infectious or other diseases or illnesses, lawful deviation at sea in response to a distress call or other emergency, and adverse weather conditions

Cunard define it in almost the same terms – although, interestingly, without the bit near the beginning where it says ‘even with the exercise of reasonable skill and care’. Fred Olsen’s is more long-winded but means much the same thing:

Force Majeure means an unusual and unforeseeable event outside of the control of FOCL and includes but is not limited to war, threat of war, riots, civil disturbances, terrorist activity and its consequences, industrial disputes, natural and nuclear disasters, fire, epidemics, health risks and pandemics including but not limited to incidents of infectious or other diseases or illnesses, unavoidable and unforeseeable technical problems with transport for reasons beyond FOCL’s control or that of any suppliers of FOCL, deviation at sea in response to a distress call or other emergency, closed or congested airports or ports, adverse weather conditions or adverse sea states, failure of power supplies, Passenger suicide or attempted suicide or a Passenger’s deliberate exposure to unnecessary danger (except in an attempt to save human life) or the consequences of participation in an unusual and dangerous activity and any other circumstances of any nature whatsoever.

So those are the definitions. When does Force Majeure become significant?

Clause 40 of P&O’s T’s& C’s – ‘Alteration and Cancellation by P&O Cruises prior to departure’ – allows P&O to “cancel the contract or to change and/or curtail the Package where this reasonably become necessary on operational commercial or other grounds“. So, as long as it’s before you depart (and the meaning of ‘depart’ isn’t clear), they can change the cruise itinerary if they have to. However, the contract also says that if they do this they have to inform the passenger or his agent. Then it says: “The Passenger will have the choice of either accepting the alteration, accepting an offer of an alternative package of comparable standard if available ….. or cancelling the Package and receiving a full refund of all monies paid“.

Section 41 says “If the Passenger cancels the Package in the circumstances set out in clause 40 ….. the Passenger shall also be entitled to compensation as follows (except if the change or cancellation is due to force majeure…)“. (My emphasis.)

So when P&O were offering refunds last Friday it wasn’t out of the goodness of their heart, it was purely according to the terms of the contract: the alteration was made before departure so section 40 above applied. However they didn’t have to go further than a full refund because it was declared to be Force Majeure, and therefore further compensation beyond a refund wasn’t due.

What about Fred Olsen? Balmoral was already at sea: she sailed on 29 May and it was only on 31 May that, after arriving in the vicinity of Stavanger her captain pointed her eastwards and she headed off towards the Kiel canal and on to Warnemunde, etc. What position are her passengers in? Well, clause 8.5 would appear to apply. This is in a long section about Liability, and it mainly defines conditions in which FOCL’s liability is limited. Clause 8.5 says “No responsibility is accepted for loss or damage to you [i.e. the passenger] by failure to perform the contract…… where the failure or improper performance happens without fault on the part of FOCL …… because: ….. (iii) it is due to unusual or unforseeable circumstances due to an event of Force Majeure which is beyond the control of FOCL, the consequences of which could not have been avoided by due care, or an event which FOCL …. could not foresee or forestall……“. No mention there of cancelling and getting a refund if you’re part-way through the cruise, and no mention of compensation.

So that’s my understanding of Force Majeure, and how it could affect your next cruise! Now for the weasel words: please note that I am not a lawyer and this post is not intended as any kind of legal opinion. If any reader finds themselves in the sort of position outlined above, they should of course seek their own legal advice, and should not take this post as guidance.

10 Responses to “Force Majeure and cruises”

  1. jacqueline keen says:

    I think that the situation with the FOCL cruise to Norway was ‘foreseeable’. The closure of the ports began on 24th May, when talks broke down on the 23rd May. It was predicted that the strikes would spread to other ports. 28th May many of the ports used by cruise ships closed. These events were occuring prior to the cruise departing from Southampton on 29th May.

    How does this affect those who had made late bookings during the days leading up to the Balmorals departure. Whilst strikes in themselves in Norway are unusual, FOCL must have been aware of the situation in Norway, the port closures, and prepared ‘contingency plans’ to change their itineraries, prior to departure. Yet FOLC still continued to accept late bookings without informing people, or giving them a choice.

    • Sheila says:

      I understand that you have had a refund if so could you send me a copy of you letter from fred olsen as i am getting nowhere
      many thanks

  2. Sheila says:

    Thank you for lookiing into the definition of force majeure. However you are wrong to suggest that Balmorel was in the vicinity of Stavanger, she changed course abruptly to starboard, which was visible throughout the ship on screens, mid afternoon on the 30th. An announcement from the Captain stated that due to industrial action we would be unable to enter Bergen until about 5.30pm on the 31st. An hour or two later he announced that the cruise to Norway was cancelled and that as it was a case of force majeure there would be no compensation. Uproar ensued when the changed itinerary was announced, involving transit of the Kiel canal, a visit to Warnemunde in Germany, Copenhagen, Gothenburg, and the icing on the cake, Zeebrugge. None of these places was remotely an acceptable substitute for the fjords of Norway.
    Our argument with the use of force majeure is that FOCL must have been aware of the strong likelihood of strike action closing other ports after Oslo, and therefore it was not unforeseen.
    If any lawyers out there can help with an opinion as to whether this argument might work in our favour should we have to take them to court, we would be grateful.There is no doubt that had they cancelled the cruise before sailing we would not have accepted the alternative and should have been refunded appropriately.

    • Tom says:

      Thank you for the clarification, Sheila and Jacqueline. I must admit that I wasn’t following Balmoral too closely that day, but I had thought she was close to the Stavanger/Bergen area. Perhaps I was getting her mixed up with another ship – ‘Mein Schiff 2’, perhaps, which was in that area and which headed west towards Kirkwall.

      As to whether or not FOCL are correct in their interpretation of the application of clause 8.5 (iii) to the events in question, I’m not going to speculate. However I do understand the frustration and disappointment that you and the other passengers were obviously feeling.

    • Hi I am at present in the process of taking legal action in respect of the Fred Olsen not the norwegian fjords cruise and would like to hear from you to compare notes

      Melvyn Lesser

      • Tom says:

        Melvyn – I don’t think I’ve got any notes to compare. I wasn’t on the cruise. What I did was explore what the various contracts seemed to be saying about Force Majeure, and the impact it could have. I don’t have a view as to whether declaring it was reasonable or not, because (as I say) I wasn’t there.

      • Sheila says:

        How is your legal action progressing we have not got satisfaction only an extension of the 50% offer

        • jacqueline keen says:

          Hi Sheila, from what i gather it can depend on who sells you the cruise – was it a travel agent? when you were sold the cruise, and your expectations of the cruise. If you have any type of legal advice cover – often from car or home insurance, it is worthwhile contacting them. Also, if you purchased by credit card, it might be useful to have a chat to them. And if you specifically only considered that destination.

          I do believe that they knew before they sailed that unless the strike was called off, they could not go to the fjords. The idea that they booked a ‘private’ pilot to bring the ship into port is ludicrous. It takes far more than that to get a ship into dock, for example: a boat and pilot to take the ‘pilot’ to the ship. Dock workers to manage the ropes. Custom officers were on strike??? The metereological martime were also on strike, as were police, teachers, airports etc.

          P.S. did you fly home?

          • Jacqueline keen says:

            Hi tom, a belated update,

            I did receive a full refund, as it was deemed that the travel agents had failed to supply me with “duty of care”.

            As agents they should have known about the industrial disputes, and port closures, in Norway before they booked me on the cruise, and we’re aware that I did not want to travel elsewhere,

          • Tom Burke says:

            Jacqueline – thanks for the update.

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