Cruise contracts often include a term allowing the operator to
cancel the cruise at short notice if, for example, unfavourable
weather is expected, and for fares paid to be forfeit.
In Ferme & Ors v Kimberley Discovery Cruises Pty
Ltd [2015] FCCA 2384, Judge Jarrett of the Federal Circuit
Court found that a clause permitting a cruise company to cancel a
scheduled cruise and forfeit all fares paid was an "unfair
term" under the Australian Consumer Law, with the term being
void and unenforceable.
The facts
Kimberley Discovery Cruises Pty Ltd (the respondent) operated
the business of Kimberley Discovery Cruises and the vessel
Discovery One. The applicants each purchased tickets for
the cruise and paid the full fare, with the cruise to take place
from 13 to 26 March 2012. The respondent cancelled the cruise
because of Tropical Cyclone Lau, as the cruise was likely to be
unsafe and would certainly be unpleasant. By this time, the
respondent had already made
