CRUISE PASSENGER CLAIMS FOR DISAPPOINTMENT AND DISTRESS
Moore v Scenic Tours
It is rare for a passenger claim concerning contractual damages for disappointment and distress to ascend to any country’s highest court. The High Court of Australia last considered this area of law almost 30 years ago in Baltic Shipping Co v Dillon (The Mikhail Lermontov).
In that case, the Court adopted the English law position by affirming the general rule precluding recovery for damages for disappointment and distress unless the case fell within a recognised exception. The so called “holiday cases” form one class of case that falls within an exception, because the object of the contract is to provide enjoyment and relaxation.2
In Moore v Scenic Tour Pty Ltd
) the High Court overturned the decision of the Court of Appeal of the Supreme Court of New South Wales and affirmed its decision in Baltic Shipping
. In doing so, the High Court corrected the wayward course of decisions in that Court over the past decade.4
The court, particularly Edelman J, elaborated on the underlying nature of a claim for damages for disappointment.
The decision is important for passenger claims generally, including cruise ship claims, and for the so called “holiday” cases in Australia. More broadly, the High Court’s judgment concerning the underlying nature of a claim for contractual damages for disappointment and distress will be of interest to those countries that recognise contractual damages for disappointment and distress.
History of proceedings
Mr Moore brought proceedings against Scenic Tours Pty Ltd on behalf of passengers on board certain European river cruises operated by Scenic in 2013. That year, heavy rain and flooding badly affected the waterways of Europe and interrupted numerous river cruises. The promised “all-inclusive luxury river cruise” was largely replaced by bus travel, punctuated by short stints on three different vessels. It was found by the trial judge, Garling J,5
and confirmed by the Court of Appeal of the Supreme Court of NSW,6
that the cruise fell far short of the experience Scenic had promised to deliver.