Say you’ve just arrived in Berlin, with the usual jet lag from a red-eye flight, anticipating a relaxing river cruise down the Elbe. But instead of welcoming you to your tour, the operator’s representative informs you about a “minor” change: Instead of the Elbe, your river cruise will be on the Oder. This isn’t a made-up example, as a reader told us:
“We booked a trip with Elderhostel [now Exploritas] to go up the Elbe River from Berlin to Prague. After arriving in Berlin we were told that the river was too low so we would be sent down the Oder River instead, north to the Baltic Sea. People who booked directly with the cruise company were given the opportunity to cancel and get a refund. But Elderhostel did not give us that option. The value of the Berlin-Prague portion of the trip was a bit over $3,000, but Elderhostel offered only a voucher of $250. Is it unreasonable of us to expect more?”
The short answer is, “Just ‘expecting’ more than a $250 voucher is not reasonable, but demanding more certainly is reasonable.” Beyond just the specifics, our reader’s experience illustrates some important lessons for many travelers.
Although most travel arrangements go more or less as planned—and purchased—plans sometimes have to change.
- External events: As this reader’s report illustrates, unforeseen forces often dictate that a trip can’t be completed as planned. When a river is too shallow to accommodate a cruise boat, cruises will not operate on that river. If a hurricane hits, golf resorts will close. If a strike shuts down a railroad system, people will fly or take a bus.
- Shortages and screw-ups: Other changes result from poor planning or bad forecasts. Another reader once reported that his tour company couldn’t locate the promised “luxury motor coach” for a week-long tour of Eastern Canada and had to substitute an ordinary transit bus. Oversold hotels can’t accommodate any more guests.
- Bait & switch. Unfortunately, some substitutions are deliberate. Years ago, one Hawaiian hotel chain developed a reputation for deliberately overbooking its flagship beachfront unit, then greeting thousands of travelers with the good news that even though the beachfront hotel was unexpectedly overbooked, the company had secured a few scarce rooms at a sister hotel just two blocks from the beach. Similarly, a now-defunct London rental booking agency routinely informed renters, on arrival, that the unit they had reserved was “closed for painting” or some such but that the agency had found another property “just as nice.”
Tour and cruise contracts typically contain fine print to the effect that if natural force majeure events or other factors prevent the operator from providing the promised travel, the operator has the right to substitute an “equivalent” travel option. Such substitution occurs with hotel overbooking, when operators shift travelers to a hotel of the same class, or with cruise itineraries, where cruise lines may have to substitute ports during bad weather or even when pier space is unavailable. So long as the substitution is equivalent, those contracts do not give travelers the automatic right to cancel for full refunds. Operators or cruise lines may volunteer full or partial refunds, but they aren’t required to do so.
Timing can also be important. Unexpected events—natural or otherwise—may force an operator into a last-minute substitution about which that the operator could not notify travelers in advance. On the other hand, other factors requiring substitution can be foreseen far enough ahead to notify travelers well in advance of their trips.
Who Decides “Equivalent?”
As far as I can tell, most arguments about substitutions revolve around the question of whether the substitution is truly “equivalent.”
- With hotels, the industry generally takes the position that substitution is “equivalent” if (1) the hotel classification (such as “superior first class” or “moderate deluxe”) and promised location (“beachfront” or “city center”) are the same.
- But substitution of different cruise ports or cruising venues is less precise. And cruise lines vary in their responses to force majeure events. With hurricanes earlier this year, for example, some lines offered refunds, while others switched ports, offering travelers only trivial compensation.
Facing a Tough Choice
Whenever you learn about a substitution, you’re forced into a situation that requires an immediate—and often tough—decision. Do you accept the substitution, or do you fight?
Keep one basic fact in mind: The operator will not somehow arrange for you to complete your original trip. No matter how earnest the effort—or how loud you shout—an operator can’t raise the water level of the Elbe or create new rooms in an overbooked hotel. You cannot be made “whole” in the tort law context. You have to accept something other than what you really wanted.
Dealing with a major substitution puts you under pressure no matter when you’re informed. But you sometimes have to make a quick decision in less than ideal circumstances: jet lagged after an overnight trip, in a foreign country, with no “plan B” even remotely contemplated, with no refund on offer, while the operator’s representative is trying to herd you onto a tour bus. Nevertheless, you have to decide among three alternatives:
- Accept the substitution, even if you don’t fully like it, planning to ask for some compensation after the fact, but willing to proceed without any subsequent meaningful compensation beyond what the operator might volunteer.
- Accept the substitution, but only after negotiating an immediate written guarantee of compensation you consider adequate—partial refund, hefty reduction on a future trip, whatever. This may require you to argue with the operator’s representative, or even a phone call to some home office, but you have to do it to make the approach work.
- Refuse the substitution and make alternate plans for the duration of your trip and paying for that alternative, planning to demand a full refund or other acceptable compensation and to go to court if you can’t reach a satisfactory agreement.
What you should not do is accept the substitute without some agreement, just hoping the operator will volunteer a generous adjustment. And going ahead with the operator’s substitution weakens your chances for a realistic settlement: “You actually took the trip, so you can’t ask for a full refund.”
Our Reader’s Case
Presumably, our reader’s tour contract included the usual exception for force majeure substitutions. And low water on the Elbe was obviously a force majeure event. Our reader’s question therefore devolves as to whether (1) the Oder is an “equivalent” substitute to the Elbe and (2) Elderhostel knew about the problem early enough to notify travelers before they left home.
There is no question in my mind that an Oder trip is not equivalent to the Elbe: Instead of Dresden and Prague, travelers get Szczecin. Moreover, the low water on the Elbe couldn’t have come as a big surprise only after the tour group arrived in Berlin—Elderhostel and its river operator must have known in time to warn travelers before they left home.
We received this report after the fact, with no opportunity to explore alternatives. Nevertheless, to our reader, I would say, “Get back to Elderhostel with a firm request for a more equitable settlement: You decide on the amount, but I would think at least $1,000. The fact that other cruise buyers got full refunds strengthens your case. And unless you’re happy to return somewhere with Elderhostel, ask for cash, not a voucher. Let Elderhostel know that if it does not offer a reasonable settlement, you’ll take action in small claims court. Then negotiate.”
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