Gap360 tour cancelled midway through refuse refund

Bazza224

My daughter is currently midway through a Gap360 tour of East Australia. They are currently heading on a coach to Townsville but has been told the trip won’t be able to go any further due to the weather. The tour should have continued up to Cairns eventually. The tour guide is saying that they will probably be left at Airlie beach and will receive no refund.

Can this really be correct ? It sounds like the tour will just be cancelled due to weather and the tour operator will leave the travellers to fend for themselves with not even a refund to pay for alternative trip.

Any advice on the legality of this or anyone who has a similar experience and has some insight would be much appreciated 

sheramber

What do the Terms and Conditions say about conditions beyond their control affecting the trip?

Since the problem has only just happened there may not have been time for any other arrangement to be made yet.

la531983

Also a note that Australian consumer law may apply, not UK ones, depending on who it was actually booked with.

TELLIT01

There has been torrential rain in northern Queensland which explains why they can't go to Cairns.  No refund doesn't seem right but as la531983 says, Aussie law will apply.

eskbanker

I don't believe that Australian law applies to this - Gap360 are a UK company, and even if they weren't then if they were marketing and selling holidays in the UK then they'd have liabilities under the UK Package Travel Regulations, which certainly wouldn't allow them to abandon customers in the way described, assuming the tour falls within scope.

Gap 360 Ltd is a UK Limited Liability company whose registered office is at Aldgate Tower, 2 Leman Street, London, E1W 9US, and whose trading office is at 121/123 Mt Pleasant Rd, Tunbridge Wells, Kent, TN1 1QR.

[...]

Applicable law and jurisdiction

No matter where you live, your booking with us is accepted under English law and the Courts of England and Wales shall have the exclusive jurisdiction to decide on any disputes between us.

https://www.gap360.com/terms-and-conditions

Bazza224

She booked through Gap 360 which is based in Kent. The local operator is ultimate travel I believe which is Australian. 

In the gap 360 terms and conditions it has force majeure section, I am assuming that this is what would apply :

‘Force Majeure. If we have to cancel or make major changes to your programme because of force majeure we will not be liable to refund your monies or pay you compensation. We will do our best to offer you an alternative trip but we cannot guarantee that we will be able to do this’

eskbanker

Bazza224 said:

She booked through Gap 360 which is based in Kent. The local operator is ultimate travel I believe which is Australian. 

In the gap 360 terms and conditions it has force majeure section, I am assuming that this is what would apply :

‘Force Majeure. If we have to cancel or make major changes to your programme because of force majeure we will not be liable to refund your monies or pay you compensation. We will do our best to offer you an alternative trip but we cannot guarantee that we will be able to do this’

It'll be worth verifying if the tour is protected by the Package Travel Regulations - did the purchase involve multiple elements, e.g. flights and accommodation?

If so then, regardless of root cause, a package organiser can't override statutory obligations with a clause like that, so if the package isn't performed in accordance with the contract then there are various provisions with which they must comply:

https://www.legislation.gov.uk/uksi/2018/634/regulation/15

Bazza224

Interesting. She paid for her flights to and from Australia herself and then the tour she bought from Gap 360 was various excursions,accommodation and travel, mainly coach based. So yes multiple elements to the package within Australia 

bagand96

1) Get her to call her travel insurance company when she can.  You may have a claim (depending on the cover) so it's worth talking to them to see if they can offer advice right now.  You don't want any future claim invalidated because you didn't consult them.

2)  If Gap360 (or their local provider) are not willing to arrange any further travel or assistance, then obviously she will need to make onward arrangements herself.  Keep all receipts for transport and accommodation, in case there is a valid claim for reimbursement later on.


In the meantime, it will be worth you having a read of Gap 360 Terms and Conditions.  Some interesting points:

14. Force Majeure. If we have to cancel or make major changes to your programme because of force majeure we will not be liable to refund your monies or pay you compensation. We will do our best to offer you an alternative trip but we cannot guarantee that we will be able to do this. Force Majeure can include, but is not limited to, war, the threat of war, civil strife, pandemic, terrorist activities or the threat of terrorist activities, acts of governments or local authorities, strikes, industrial disputes, demonstrations, natural disasters, unnatural disasters such as explosions or any similar event which is outside our control or the control of our suppliers.

As a responsible tour operator, we follow the advice issued by the UK’s  Foreign, Commonwealth & Development Office (FCDO). If the FCDO issues an advisory against all travel to a country that you are booked to travel to with Gap 360, we will offer you an alternative trip or a full refund, unless the advisory is issued because of force majeure. If the FCDO advises against all travel to certain parts of a country that you will be visiting on our programme, we will change your trip to avoid that part of the country.

We may have to make changes to your trip after your trip is confirmed or once you have departed, for a variety of reasons, depending on circumstances. You acknowledge that travel to many of our destinations can involve delays and other issues due to the nature of the country or the unsophisticated transportation infrastructure. Once you are on your trip we will only make changes for reasons concerning your personal safety or convenience, and there will be no refund for any activities or other parts of the trip which you might miss as a result of our changes. You acknowledge that travelling through some regions of the world in which we operate does involve potential delays and hazards and we cannot be held responsible for cancellations and changes that are beyond our control.

It would appear that they are invoking this clause, which does state they have no liability.

Financial Security

You can book with Gap 360 fully confident that the monies you pay to us are secure.

Gap 360 Ltd is a member of The Association of Bonded Travel Organisers Trust Limited (ABTOT) which provides financial protection under The Package Travel and Linked Travel Arrangements Regulations 2018 for Gap 360 Ltd (membership number 5183), and in the event of their insolvency, protection is provided for:

•    Non-flight packages

ABTOT cover provides for a refund in the event you have not yet travelled or repatriation if transportation was included in your package. Please note that bookings made outside the UK are only protected by ABTOT when purchased directly with Gap 360 Ltd.

In the unlikely event that you require assistance whilst abroad due to our financial failure, please call our 24/7 helpline on 01702 811397 and advise you are a customer of an ABTOT protected travel company.

You can access The Package Travel and Linked Travel Arrangements Regulations 2018 here.

This section seems to acknowledge that they consider what they sell as a Package and that the PTR's apply (ignore the bit about repatriation or supplier failure as you didn't book flights with them)

I'm not sure how their Force Majeure clause fits with the PTRs, a good read of both is needed!

eskbanker

bagand96 said:
This section seems to acknowledge that they consider what they sell as a Package and that the PTR's apply (ignore the bit about repatriation or supplier failure as you didn't book flights with them)

I'm not sure how their Force Majeure clause fits with the PTRs, a good read of both is needed!

They do seem very selective - their only citation of the PTRs appears to be that one, relating specifically to the insolvency protection aspects of those regulations, rather than all the other traveller safeguards regarding performance of the package itself!

It still seems clear to me that regulation 15 (linked above) is primarily what the traveller needs to rely on here.

Perhaps also worth noting that ABTOT themselves publishes the following, albeit in the context of Covid:

What if my T&C’s do not allow refunds, for example due to force majeure?

If you have sold a package holiday, such a clause will not be binding on your customers in respect of refunds, only compensation.  Where your T&C’s attempt to offer less protection than the Package Travel Regulations, the Regulations will always prevail.  On the other hand, if you have offered more favourable terms than the Regulations, you are bound by those terms.

https://www.abtot.com/coronavirus-for-the-industry-where-do-we-stand-with-customers-answers-here/

Bazza224

Her travel insurance have said they may accept a claim if she can provide a written statement from an official authority to confirm the destination was unreachable. Otherwise she must claim from the tour provider under consumer legislation.

The gap 360 terms and conditions does seem in contradiction to the PTR. Gap360 have also been in contact with my daughter and have talked about what might happen if the rest of the tour is cancelled and unlike the local representative they have mentioned refunds in addition to the local guide assisting with making onward plans and bookings. Their stance is still however the tour isn’t cancelled at this point and they will be more specific at such a time when and if it is cancelled.
Hopefully if it does get cancelled gap360 will be a bit fairer than the local guides made it sound.