Flight delay causing late car hire pickup (Booking.com and Ecovia)

Bradburts

My EU flight was cancelled and a replacement flight provided on the next day. I rang the Ecovia, car hire company, (a day before pick-up) to note new pickup time and they immediately insisted that I must pay an E120 upgrade fee for an SUV and my Panda was not available. I did not want an SUV, I wanted my small economic, easy to park Panda (travelling to some very small hilltop towns). Also where had my Panda gone, disappeared a day before due pickup!
I rang Booking.com who insisted that this was allowed in T&Cs. I had to cancel and rebook and this caused an increase in cost (slightly more than the E120 upgrade but I had lost trust with Ecovia).
On return from holiday I have read both Booking.com and Ecovia's T&Cs.
Booking.com request that you agree with both their and Ecovia's T&Cs at point of booking.
Once booked then Booking.com website/application only shows Ecovia's T&C. I cannot find Bookings confirmation email. The booking was made many months ago and the only (obvious) T&C shown by Booking.com is Ecovia's.
Both T&Cs talk about the importance of letting the rental know of being late, which I did. 
Booking.com T&C say:
Section "Late Pick-ups / Early Drop-offs "
"Your rental starts and finishes according to the pick-up and drop-off dates and times detailed on your voucher / eVoucher. Unfortunately, we are unable to provide refunds for unused time if a car is picked up late or dropped off early. If you are unable to pick the car up at the agreed time and date, it is essential you contact us as soon as possible. If you do not, there is no guarantee that the car will still be available – and you will not be entitled to any refund."

Booking.com claim that it is acceptable to add an additional charge because in a latter subsection:

Section "Cancellations and Amendments"

Includes the statement: 'The counter staff may refuse you the car if (for example):

You don’t arrive on time'
I would say that this contradicts the "Late Pick-ups / Early Drop-offs" (and/or makes the T&Cs unclear) and in any case I did not wish to amend the rental period, just arrive late.

Ecovia's T&Cs say:
Subsection: "Grace period"
"You must be at the rental counter by your pick-up time: if you’re late, the car may no longer be available, and you won’t be entitled to a refund. If you think you might be late, it's vital that you contact the rental company at least 30 minutes before your pick-up time, even if it's because of a flight delay and you’ve provided your flight number
If you fail to cancel your reservation prior to the Pick-up Time and do not collect the vehicle on the Pick-up Date, or if you fail to comply with the Pick-up Terms the car hire company reserve the right to make a No Show/Lost Rental Charge which recovers their administration costs and compensates them for their inability to rent the vehicle when it was reserved for your use."

Which I take to mean - let us know if you are late.

As we know it is very common to be delayed these days.
(1) Who is my contract with, Ecovia or Booking.com?
(2) Do these T&Cs allow an additional charge when I informed both companies of being late and there was no loss to either company?
(3) Are these T&Cs 'fair' e.g. Booking.com T&Cs are not shown under the my car booking details (Ecovia's are) and as I booked many months ago how might I recap?
(4) Is this contract fit for purpose e.g. travel delays are common. I certainly did not expect additional charges if I was late having told all, being late is a common thing!

Any other advise!

eskbanker

Bradburts said:

I did not wish to amend the rental period, just arrive late

Just to clarify, you wanted to both collect and return the car a day later than booked?  I could be wrong but can easily imagine that effectively being treated as a different scenario from notifying a hire company of collecting an hour or two later than agreed due to a delayed flight, but understanding exactly what you had in mind will hopefully help interpret the contractual situation....

Bradburts

To clarify - I wanted to pick the car up 1 day latter than booked and drop car off on the same date as originally booked. That is to say, I was simply delayed by 1 day.

eskbanker

I'd interpret that as amending the rental period, if you wanted to change from an n day booking to an n-1 one, which could increase pricing if, for example, they charge a discounted weekly rate for 7+ days but a daily one below that.

In terms of your questions:

Bradburts said:

(1) Who is my contract with, Ecovia or Booking.com?

booking.com is unhelpfully vague on this!

1. When you book a Rental, your Booking is either (a) with us or (b) directly with the Service Provider. Either way:

• our Terms govern the booking process; when we send you your Booking Confirmation, you’ll enter a contract with us
• the Rental Agreement governs the Rental itself; when you sign this at the rental counter, you’ll enter a contract with the Service Provider (but you’ll see and accept the key terms of it while you’re booking your car).

Bradburts said:

(2) Do these T&Cs allow an additional charge when I informed both companies of being late and there was no loss to either company?

I'd say yes, based on the wording within the amendments section of booking.com's terms:

There is no administration fee for changing your Booking, but any changes you make may affect the rental price.

Bradburts said:

(3) Are these T&Cs 'fair' e.g. Booking.com T&Cs are not shown under the my car booking details (Ecovia's are) and as I booked many months ago how might I recap?

You admitted that you can't find booking.com's confirmation email, but their terms are published at https://www.booking.com/content/terms.en-gb.html#nov2021_terms_cars_heading

Bradburts said:

(4) Is this contract fit for purpose e.g. travel delays are common. I certainly did not expect additional charges if I was late having told all, being late is a common thing!

As above, I believe the late pick-up provisions would typically apply only to minor changes, i.e. measured in minutes or hours rather than days.

Bradburts

"I'd interpret that as amending the rental period, if you wanted to change from an n day booking to an n-1 one"
No, I did not want/ask to amend the rental period. No change to the rental period. Just picking up car later than expected due to unavoidable delay.

The rest of your detailed answer might be correct if I were trying to change the rental. I was not, I accepted that I had lost a day of rental by being late - that part was not the renter's fault and neither mine.

Part of my question is the fitness of the contract. Travel delays are common, it is not unusual to be delayed by a day. Oversea car hire should therefore allow for late arrival.

I have since researched unfair contracts. The Unfair Contract Terms Directive (93/13/EEC) states that 'if in doubt, the interpretation most favourable to the consumer should prevail'. Clearly there is contradiction in the various subsections e.g. between "Late Pick-ups / Early Drop-offs" and "Cancellations and Amendments". It was reasonable of me to assume that 'it's vital that you contact the rental company at least 30 minutes before your pick-up time, even if it's because of a flight delay' means that I can be delayed provided I ring.
Secondly I would argue that Ecovia did not act 'in good faith'. Ecovia had no loss and used the opportunity provided by my delay to upsell, to get more money. Again I think the Unfair Contract Terms Directive applies.

Finally, if car rentals intend to charge for delayed pickup (even if I call and inform) then this is outside my expectations and I would suggest any reasonable person's. Because this is such a common occurrence (NATS issues etc) then the rental company has a duty of care to make his intent to charge clear. It cannot be an random charge. It must be a declared charge. Else the rental company could turn around and say you owe us £1 million. In one sense there is no difference between E120 charge and £1 million charge, neither have anything to do with a loss suffered by the rental company and so neither should be accepted.

I would be interested in your view as you have spent time answering a different scenario!

eskbanker

Bradburts said:

"I'd interpret that as amending the rental period, if you wanted to change from an n day booking to an n-1 one"
No, I did not want/ask to amend the rental period. No change to the rental period. Just picking up car later than expected due to unavoidable delay.

I'm just highlighting the mathematical fact that if you wanted a car for one day less than you'd booked, then that is a different rental period (in the sense of 'duration', rather than 'window'), even if it's a subset of the original one.

Having said that, I suspect that Ecovia were just trying it on with the upgrade fee, rather than asserting contractual rights to adjust pricing as such....

eDicky

Bradburts said:

Part of my question is the fitness of the contract. Travel delays are common, it is not unusual to be delayed by a day. Oversea car hire should therefore allow for late arrival.

Secondly I would argue that Ecovia did not act 'in good faith'. Ecovia had no loss and used the opportunity provided by my delay to upsell, to get more money. Again I think the Unfair Contract Terms Directive applies.

Finally, if car rentals intend to charge for delayed pickup (even if I call and inform) then this is outside my expectations and I would suggest any reasonable person's.

I agree that you seem to have been treated unfairly, if indeed you made it clear that you were not asking to reduce the rental period but merely informing of late pickup. It seems to me that they were taking the opportunity to put the squeeze on you, not uncommon with rental firms.

I would personally not rent from a firm that stipulates 'it's vital that you contact the rental company at least 30 minutes before your pick-up time, even if it's because of a flight delay and you’ve provided your flight number'. The flight number provision should be enough, and always was in my experience.

I've never heard of Ecovia, having previously often rented in Italy but now have my own vehicles here. I think it will be a challenge to dispute this with them, legally or otherwise, for failing to act in good faith and using unfair contract terms, but if you take it on it would be admirable.

Bradburts

Thanks all for comments. Not sure how I address individuals.
#eDicky, yes a challenge perhaps but I think that I am not alone in this issue and so I will discuss in forums and find an approach that challenges. You make the point that you would not hire from... That is one lever. Booking.com offer services from rentals who treat us so. It is not reasonable and if we realised our risk we would shop else where. That helps make the commercial case for change if not a legal remedy for me.
#eskbanker I did not want the car for a day less. I wanted the car for the original duration. I just could not pick up the car for a day but was happy to pay the original cost for the original duration. The fact that I was told that the car was no longer available before due pickup suggests both dishonesty and that the renter had no increased parking costs. I took pictures of the lot and there was plenty of space allocated to the rental. The site's parking charges are also on show and its not E120 per day. The rental had no costs to protect and neither did they discuss those costs, just a flat its E120 mate.

eskbanker

Bradburts said:

#eskbanker I did not want the car for a day less. I wanted the car for the original duration.

That's a very literal interpretation of the word I used, but for the avoidance of doubt I was meaning that you were asking for a car for one day less than originally booked - the fact that you didn't literally want to do so is irrelevant to your dealings with the rental company!

But yes, I'm certainly not defending their conduct here and strongly suspect that they were seeing an opportunity to fleece a tourist in a tight spot, which would seem a more obvious angle to challenge rather than trying to dismantle their Ts & Cs.

Lavendyr

The one thing I can advise is that your contract will not be with booking.com - they will be acting as an agent between you and the seller, Ecovia.

Bradburts

Booking.com agreed to refund my extra costs and offered another £150 extra as a good will gesture. Booking.com maintain that they/their agent were entitled to act as they did and their offer to me is a commercial offer.
What helped was copying the customer service director with my complaint email. I discovered his email using the excellent website run by the elliott (double t) organisation (I cannot post links)
I have agreed to Booking.com's offer.

I would maintain that the contract was unfair/unfairly interpreted. Clearly it was my purpose to rent a car and it was the rental companies purpose to earn money from a renting. A simple exchange. Being delayed did not change those facts and caused no loss. The rental was to be collected onsite, within office hours at an Airport pickup. We know that planes are delayed and so I consider the contract (if correctly interpreted) unreasonable. In my view Ecovia did not act in good faith but rather attempted to upsell (which is not a provision of their contract). One might imagine a lazy employee attempting to meet his upselling quota.

I have gone as far as I can with Booking.com. I would hope that they reconsider their T&Cs. I certainly won't be able to rent through them with virtually no delay protection and the sheer chaos caused by NATS these days.
I am also amazed that there is so little protection from NATS caused flight delays. The airlines are not on the hook and neither are NATS. Travel insurance does not cover it. My headline policy showed £750 delay insurance. Only after delay did I read all the T&Cs and discovered that that was a maximum of £250 p/d. Well a last minute hotel in Gatwick will cost you £200 which does not leave a lot for; meals, lost car hire, new destination hotel(s) (if fly driving) and transport.

I looked at HolidayAutos and the first rental company SurPrice and these T&Cs do not seem to require on time pickup but do require notice of being late. I won't be using Booking.com for rentals until T&Cs fall inline with other companies.