/ Travel & Leisure

Is your airline or holiday company claiming ‘force majeure’?

We’re inundated with reports of refused refunds. Has your airline or holiday company claimed it doesn’t have to pay you because of a force majeure clause?

Among the huge numbers of people reporting that they’re unable to get a cash refund from their airline or holiday company, we’ve also seen a growing number being told that force majeure applies to their situation.

Why consumers should not have to prop up the travel industry

Force Majeure is a common contractual clause which can free parties of liability in the event of specified circumstances beyond the control of the parties.

Can force majeure apply to the COVID-19 crisis?

As we’ve previously discussed, flights out of the UK or EU and flights on UK and EU airlines are governed by the Denied Boarding EU Regulation (Regulation 261/2004 EC), which states that airlines must offer the option of a full refund when they cancel your flights.

This is why it’s not right that so many are only offering vouchers.

If an airline’s flights are subject to these rules, they can’t avoid their legal responsibilities by trying to contract out of the regulations, so we’d be surprised to see any trying to use force majeure as an excuse to claim that they can.

With regards to package holidays sold or offered in the UK, again, these should be covered by the Package Travel and Linked Travel Arrangements 2018.

Any booking covered by this regulation is entitled to a refund if the trip is cancelled due to unavoidable and extraordinary circumstances. This means that force majeure clauses cannot get a holiday organiser off the hook for refunds for packaged holidays either.

Send us your evidence

However, in order to investigate whether companies are doing this, we need your help.

In order to investigate whether companies are breaching travel regulations by claiming force majeure, we will need to see evidence.

If your airline or holiday company is trying to rely on a force majeure clause and you’d be happy to share your details, please email us written evidence that shows the provider stating ‘force majeure’ as reason for non-payment. Your booking details would also prove helpful.

You can reach us on: conversation.comments@which.co.uk

Are you being denied a cash refund by your airline or holiday company? Have other excuses been given?

Let us know in the comments and help us put pressure on companies to comply with their legal obligations.

Comments

I posted this on a previous article but it’s pertinent here too, I think, as Expedia have told me Air Malta don’t have to pay out because of unavoidable extraordinary circumstances – force majeure!
I had return flights to Malta booked and Air Malta cancelled the flight due to the corona crisis. They contacted me advising that as I’d booked through Expedia I would need to arrange the refund through them. My travel companions who booked direct with Air Malta received the offer of vouchers or reimbursement and took the cash. I contacted Expedia, who wouldn’t talk because my flight was over ten days away. Then I received email saying it was in hand but might take a while due to the volume of work Expedia was dealing with. Today I receive and email which I don’t really understand – it says I’m getting Air Malta vouchers but doesn’t say how or when. I then chatted online with an Expedia agent and was told it’s nothing to do with them now and that I need to claim my voucher through Air Malta. When I said that customers who booked direct were getting reimbursed the agent said they’d call Air Malta to check – when she returned to the chat she said that Air Malta doesn’t give anyone reimbursement, just vouchers, and that the corona virus situation negates their usual obligations. So I go back to Air Malta as advised by Expedia and there is a page to claim for a cancelled flight offering a) book trip now, b) take a non-refundable voucher +30% value of original valid 12 months, c) refundable voucher valid 12 months, no mention of any admin fees for the refund but I’m sure there’ll be one hidden in the small print. I now feel cornered and don’t see a way out. I’m emailing them both together to see if that gets me anywhere. Any advice gladly received.

Josh says:
9 May 2020

I had a flight booked from the UK to Canada with Air Transat in June which has now been cancelled. They don’t specifically mention Force Majeure but cite ‘exceptional circumstances’ as the reason for not offering a refund – like many they are offering me a credit to be used in the next 24 months.

I have attempted to direct them towards the EU regulations, but the only option they’ve provided in response is for me to refuse the credit/voucher and take it up with my insurance provider.

I have also had flights cancelled with Airtransat and in my e mail they do specifically mention force majeure

Susan Nordien says:
3 June 2020

I too had a flight from Toronto to London yesterday (June 2). I was supposed to return to Toronto via Paris on June 23. The flights were cancelled by Air Transat and they automatically emailed me vouchers. I contacted them for a refund instead. I ha e pasted their response below. It specifically mentions Force Majeure.These are quite extraordinary circumstances when all airlines and travel companies were forced to temporarily stop or drastically reduce their activities when governments decided to close their borders. In the name of public health and the protection of populations, Transat supports these decisions, but they place an unprecedented burden on the industry and call into question its very existence. We believe that, in such a situation of force majeure, which is well beyond our control, we do not have to fully reimburse any outstanding travel. By issuing a 24-month credit voucher, we believe that we are offering a solution that offers a great deal of flexibility to our customers and we are convinced that they will be able to travel again in the near future, once the crisis is behind us. This being said, if you purchased travel insurance and are entitled to a full refund from them, we can cancel your reservation 100% non-refundable instead of credit and provide a cancelation confirmation by email for insurance purposes so that you can forward it to them.
Thank you for you understanding

TEUMA says:
3 June 2020

j’ai également un problème avec eux, aucun remboursement possible, et si je ne peux voyager d’ici 24 mois, ou ne le désire plus, je perds tout.

We have flights booked to Cincinnati on 23rd May with Virgin Atlantic. They have not cancelled the flights but have re-routed them significantly, via Amsterdam and Atlanta. We have no wish to travel in these circumstances but have been refused a refund and offered an open ticket until May 22 instead. We do not want this for 2 main reasons, one is that they will not guarantee our fare so we have no idea what the new fare will be if and when we rebook next year. Secondly, my husband has medical issues (Liver Fibrosis & Transverse Myelitis) which means he may not be fit to travel next year. We want a refund and then we will decide what to do in the coming months rather than being forced to fly at their higher airfare cost in their given timelines.

I had booked a self catering holiday in Wales which obviously had to be cancelled The holiday company has kept back £100 for cancellation fee and booking fee. They are saying its an administration fee. Have sent letter threatening to take them to court but not had a reply. It will probably cost me more to take them to court if I lose but its the principle and so annoying!

Chris – I doubt this would actually come to court but it’s a good idea to give notice that you intend to pursue the withheld money. If you do have to make a court claim the fee is £25 for an on-line application for claims up to £300. You would be expected to go through a mediation process and only if that failed would the case go before a judge.

Unless there was any mention of a cancellation charge, booking fee [!] or administration charge in your agreement with the company I don’t see how they can impose one now. The government made it unlawful to travel for non-essential purposes and the government has assumed responsibility for assisting businesses affected by the present emergency so there is no justification for making a charge for an involuntary cancellation.

I have never before heard of a company that requires people to pay to book so that they can sell you something, but these are peculiar times and the holiday trade is a desperate business..

Diana Lowry says:
10 May 2020

Our experience of Eurostar recently is dreadful. Govt told us not to travel, E/s want to give us a short-term voucher not a refund; but after 7 emails, these Vouchers are still not here. Wrote to CEO, his sec. said only if you die would we consider a refund. Now making a formal written complaint.

I booked a cottage holiday in UK on 11th March (before the lockdown etc). The booking confirmation of 12th March contains a copy of T&Cs. It states that if the company can not offer the cottage booked, they will offer an alternative, or a refund. They have now added a “Force Majeure” clause to the website (but this was not there when we booked – I have a copy of the document).
Our balance is officially due on or by 15th May, but I’m reluctant to pay this yet. There is a note on their website, saying to wait to be contacted before paying full balance, so I have sent an e-mail to confirm what they wish me to do.
I am concerned that they will refuse to refund our £250 deposit, based on the “Force Majeure” statement in their new T&C, also that if I do not pay the balance and the holiday can not go ahead because of Covid-19 restrictions, they will claim that I have cancelled and will therefore refuse to refund my deposit (or the balance, if I have paid it).
I would like clarification of my legal position and advice re. paying the holiday balance.

Oh, I would add that the holiday is booked for the last weekend of June /first week of July – just for clarity.

Mrs Gillum – The holiday provider cannot introduce new terms and conditions affecting the agreement you entered into with them without giving you the option of a penalty-free exit from the contract.

In any case, neither you nor the firm need to cancel the holiday if it is outlawed by the coronavirus act passed by Parliament, and the non-essential travel ban is indefinite at present.

Angela Davies says:
11 May 2020

Booked flights from Newcastle-Amsterdam-Windhoek for August 2020 for family of 4. KLM has cancelled flights but only offering travel vouchers which are valid until Dec 2021 and if not used, then a refund would be available. But they appear to have completely removed this route and are no longer flying to Windhoek so to book flights for our rescheduled 2021 holiday we will have to pay again with another operator, if it is indeed possible. Thousands of pounds being held by KLM for 18 months with no way to rebook original journey. KLM not replying to messages/ tried numerous times to call but holding for 1hr+, so will now try credit card company.

The following is on the KLM website at wecare.klm.com/nl_en/ under “Refunds and Travel Vouchers”:-

Am I entitled to compensation (EU Regulation 261/2004) if my flight is cancelled?
Unfortunately, you are not entitled to compensation based on the EU Regulation 261/2004. The cancellation of flights due to the coronavirus is considered an extraordinary circumstance, which exempts airlines from paying compensation. .

Ken – That conflicts with all I have read in Which? guidance and articles.

I suggest you check this with the CAA which is the enforcement authority for air travel in the UK.

Good suggestion John – thank you.

Em says:
11 May 2020

What KLM says is correct. Do not confuse compensation with refunds. Please see my response to your second post below.

The information on the CAA website is at
https://www.caa.co.uk/Passengers/Resolving-travel-problems/Delays-cancellations/Your-rights/Am-I-entitled-to-compensation-/

It appears that airlines may indeed be able to claim “extraordinary circumstances” which are not the responsibility of the airline and which therefore exempt them from EU Regulation 261/2004.

Ken – I would argue that the present circumstances are not of the same kind as the other situations under which flights have been changed or cancelled with compensation declined. This is about refunds, not compensation for inconvenience.

The cancellations are the result of government legislation for the purposes of public safety, public health, the protection of airline workers and other passengers, and ultimately the saving of lives. You and all the other passengers are not allowed to travel to the airport so the flights are effectively cancelled.

Em says:
11 May 2020

Compensation is paid for out of pocket expenses that can be shown to be a direct result of a flight cancellation or extended delay – usually for extra food, accommodation or bookings at your destination that can no longer be used. You might like to think of it as consequential damages and has nothing to do with the cost of the airfare. As always, the passenger has a duty to mitigate their losses before claiming, e.g. don’t take a taxi back to the hotel when you traveled to the airport by bus, or stay in a suite if your standard room is still available.

It is quite correct that the airlines can and should claim “extraordinary circumstances”, which are beyond their control when the occasion arises – usually severe weather events that would make it unsafe to fly. This means they are not liable to pay compensation for cancellation or delay to your flight as a result of Covid-19 restrictions.

This does not excuse the airline from repaying the full ticket cost for any flights that have been cancelled; that is not compensation. The need for ticket refunds resulting from cancellation, compensation and extraordinary circumstances are all covered in EU Regulation 261/2004 and so nothing is exempt.

Em says:
11 May 2020

Further to the above (I hate the fact you can’t edit or retract posts to make corrections)

KLM and other airlines will still consider claims for additional costs arising, but they are not going to be paying the standard EU compensation amounts of between €250 to €600.

See “I’m making extra costs because I am unable to fly, will KLM compensate this?”

If you log-in before posting you have 30 minutes to make corrections.

Thank you Em and John – you make good points but it’s interesting that the statement on the KLM website (re their non-liability under EU Regulation 261/2004) appears under the heading “Refunds and Travel Vouchers” so it’s clear that they believe it applies to refunds for cancelled flights and not just to compensation for out of pocket expenses. May have to be tested…

Ken – I am not convinced that KLM does actually believe the compensation rules apply to this situation where refunds are mandated. I think their statement is made because they wish the travelling public to believe it applies. Nothing quite like this has occurred before in their experience so they are looking at what they consider might be comparable circumstances. I think Em has explained the position very well, but, as you say, it might have to be tested.

Em says:
11 May 2020

Extract from Regulation (EC) No 261/2004

Article 15

Exclusion of waiver

1. Obligations vis-à-vis passengers pursuant to this Regulation may not be limited or waived, notably by a derogation or restrictive clause in the contract of carriage.

2. If, nevertheless, such a derogation or restrictive clause is applied in respect of a passenger, or if the passenger is not correctly informed of his rights and for that reason has accepted compensation which is inferior to that provided for in this Regulation, the passenger shall still be entitled to take the necessary proceedings before the competent courts or bodies in order to obtain additional compensation.

In other words, the airline cannot vary their contract terms and conditions to avoid obligations under this Regulation, nor can you sign away your rights, either through agreement by accepting a lesser form of compensation (e.g. a flight voucher), or by omission because the airline forgot to tell you about your right to a cash refund.

Thank you Em – see my comment above.

Matthew Newcomb says:
11 May 2020

John, we have a villa booked with Luxury Retreats for France in August (owned by Air bnb). We are two families, one from Australia (border shut for remainder of the year) and one from the UK (border may be shut). As one party can’t travel I contacted LR and asked for a discussion about cancellation/refund before they took the second payment. They took the second payment anyway. They are saying refund is up to the villa owner, although they may offer a choice to move to another date. However since we made the booking in January they have changed the refund policy to allow cancellation up to 14 days before arrival without penalty. Is it reasonable to hols us to a) no cancellation despite the travel issues and b) worse cancellation terms than anyone booking now?! Cheers

i booked gulliver’s kingdom stay &play well in advance of covid 19 for start of july for birthday gift when i emailed gulliver’s kingdom to heir my concern and what was my rights they email back saying no refund only amend dates as it’s a force majeure and there using that policy what can i do

we have a flight booked for July 15th to Toronto with Air Transat. Tried to re-book due to the 14 day quarantine in Canada / UK. Air Transat refusing to re book unless we pay £600 plus admin costs. They claim this is an extraordinary event and it is out of their hands. Unless they cancel we cannot get a credit – they are refusing to give refunds.

I booked a package holiday with a company in January, before the Corona virus arrived in uk. I paid a £200 deposit for my holiday to Turkey on 1st June. The balance was due on 6th April, before that date I rang them as FCO had rules that were no non essential travel, to be reviewed after 16th April. I had confirmation via email that I didn’t have to pay the balance by 6th April, but to wait for latest government info. After speaking to them again, they confirmed they were not requesting the balance yet. I then had an email from them stating they expect holidays to resume from 17th June… they did not state cancelled. When I asked them to refund the money that I paid, as I would not be flying on 1st June, they claimed Force Majeure!

On 4th October 2019, we booked two seats for return flights with Ethiopian Airways; outbound Manchester – Cape Town 27th March ; return Victoria Falls – Manchester 23rd April . Business class. including £282.04 Opodo ‘Cancel for Any Reason Guarantee’.

In the days prior to our flight, we were advised by Freedom Africa that our land tour in Africa had been cancelled because of the Coronavirus. Government restrictions were in place and FCO warned about ‘all but essential travel’. South Africa was closing its borders and anyone entering the country would have to go into 14 day quarantine.

These factors gave us no option but to cancel our flights. This we tried to do initially with Opodo. It was not possible on your website. We spent many hours on the phone trying to get through but with no success – just the message ‘call back later’.

Prior to 27th March, we went on the Ethiopian Airways website and also spoke to an adviser, who insisted that the airline was unable to cancel our booking, as it had been made through Opodo.

We have tried and tried to contact Opodo, botrh their telephone lines are not being answered but we keeop receiving requests to accept vouchers which we do not want. We have written 3 letters to their Customer service department asking for refund. They have not been answered.

We booked with Opodo because of your reputation for service and reliability. We accept these are unusual times and therefore a degree of common sense and flexibility are needed. When passengers, through no fault of their own are unable to cancel flights,in spite of making repeated attempts, the stance your company is taking is wholly unacceptable.

Hi Yvonne, sorry to hear about this. It is Opodo who should be responsible if you booked your flights and holiday through them, and you’ve done the right thing to write to them requesting your refund which you’re entitled to if the flights are cancelled. You can consider making a claim with your credit card (section 75) or chargeback (debit card) if you continue to not hear from them, although it depends on the situation as to whether that can be accepted. You can also report the airline to the regulator with our online form here https://action.which.co.uk/page/s/flight-complaint

Malcolm Head says:
27 May 2020

On 25th Feb, I booked a 10 day package holiday with Canadian Affair. I paid the deposit of £974.56 the same day. The balance of £3878.22 was due on 19 March. Prior to that date, the Canadian border was closed. Clause 22 of their t&c’s allow a customer to cancel without penalty in the event of “unavoidable and extraordinary circumstances”. I phoned Canadian Affair and a supervisor told me that it was an act of force majeure. She (wrongly) referred me to clause 11 as her evidence but this only covers compensation (which I was not claiming).
I therefore paid the balance of the holiday and Candian Affair have now told me the holiday is cancelled but are only offering me to re-book now or receive a credit note valid for 24 months. When I said I didn’t want either and wanted my money back (clause 23 allows me to have a refund) they sent an email which stated “The application for a cash refund in these circumstances has been further clarified by ABTA over the last week where it advises that the cash refund date to be advised to the customer is the final date of the travel providers current bonding year with the CAA, in Canadian Affairs instance this date being 31 March 2021”.
The matter has now been escalated in Canadian Affairs and I’m waiting a response.

Malcolm – ABTA is a representative body for the travel trade. It’s ‘advice’ is guidance to its members but not a statement of the law. I suspect that Canadian Affair has possibly misinterpreted ABTA’s comments. The chairman of ABTA recently made it clear that the organisation would not support members who denied travellers their legal entitlements to refunds. Obviously it suits companies to present the position to their own advantage. You could make a complaint to ABTA against one of its members and/or to the CAA as the enforcement authority for UK air travel and the provider of the ATOL protection scheme for package holidays.

Michael says:
31 May 2020

I booked flights via skyscanner with a company called BudgetAir, they refused me a refund on cancelled flights (Bangkok Airways) and stated I must pay £55 per person cancellation fee. They sent me vouchers through on email (which I’m not sure if its for full amount or minus the £55 admin fee) which I replied to stating that I had arranged a chargeback through American Express and that I’d actually received the money back into my account and also stated that I refused the credit note. I woke this morning (31/5/20) to find the money has gone back to BudgetAir !!! I called Amex who said “If a company asks for the charge back, we don’t get involved with legal terms, we just pay back”

I have complained to skyscanner and Bangkok airways as Budget Air are a partner of theirs to see if they can help me.

I checked on CAA website and under the heading “Flights outside the EU on a non-EU airline”

I found this passage;-

Delays and cancellations
Your rights when your flight is delayed or cancelled varies depending on the terms and conditions of your contract with the airline. Most airlines base their terms and conditions on those recommended by the International Air Transport Association. This means that when delays happen, most airlines have a contractual obligation to offer passengers a choice between a later flight, mutually agreed alternative transportation or a refund.

PLEASE HELP ME

Michael – If your flight was from an airport within the EU you are protected under the EU Regulation No 261/2004 EC irrespective of the airline’s domicile. See previous comments by Em and others above.

The following Which? guidance is also relevant –
https://www.which.co.uk/consumer-rights/regulation/denied-boarding-regulation

And see this Conversation –
https://conversation.which.co.uk/travel-leisure/civil-aviation-authority-coronavirus-refund-stories/

Michael says:
31 May 2020

Hi John,

It wasn’t ?

I did mention the heading on the CAA “Flights outside the EU on a non-EU airline”

The flights were Bangkok Airlines BKK – USM

I do appreciate you trying to help and just presume you missed this.

Thanks

Thanks, Michael – I didn’t miss the CAA reference but wasn’t sure whether or not it applied to your flights because you hadn’t mentioned where you were flying to and from [and I am still none the wiser because I don’t know which airport has the USM code].

You have quoted the CAA information which confirms the position with non-EU airlines following IATA’s recommendations when delays happen. I interpret that to mean it applies to delays but not to cancellations. I doubt Which? can offer much help over cancelled flights operated under foreign jurisdictions.

I presume Skyscanners is just a booking agent and provides no after-sales support. You might like to contact the Royal Thai embassy for guidance on where to look next..

Michael says:
31 May 2020

Hi John,

Once again I do appreciate you taking the time to try to help, however, you must have missed the heading “Delays and cancellations” from my original post which shows it DOES cover cancellations as this is the heading on the CAA website under “Flights outside the EU on a non-EU airline”

Thanks

I didn’t miss it Michael, but it seemed inconsistent with the sentence starting “This means that when delays happen . . . ” The two situations are conducive to separate explanation without ambiguity. Perhaps it was a false assumption on my part that if the CAA had intended to include cancellations in that sentence it would have said so.

Best of luck with your refund claim.

Michael says:
31 May 2020

Thanks again for taking the time John, I do appreciate any help I can get and if anyone else has advice, I’m sat here waiting….

Thank-you

Rachel says:
1 June 2020

Hi John booked a holiday through a company called Snowcoach who are coach company who run holiday for skiing and snowboarding. They are now trying to deny its a package holiday but under the regulations it would be classed as one. They are claiming we’re entitled to no refund due to their force majeure clause. The stated this to the bank when I did a charge back on my debit card and it was accepted as reasonable by the bank and so was refused. Any help would be much appreciated as there are a lot of us in the same boat with this company.

Em says:
1 June 2020

Irrespective of whether this is a package holiday or not, a contract cannot rely on a catch all force majeur clause to exclude a liability for failure to perform. It is pretty clear from their contract terms that they are trying to do this: “… and all similar events outside our control”.

This probably counts as an unfair term but, unfortunately for them, their legal advisors forgot to spell out the possibility of an infection or pandemic. Oops!

Rachel says:
1 June 2020

Hi Em is this in response to my comment and if so how do we go about challenging them?

Rachel – I agree with Em. The company’s force majeure clause in its terms and conditions sets out a range of possible justifications for invoking that form of exemption from liability [similar to the exclusions in many insurance policies]. However, a pandemic and government travel restrictions are not what I would consider a “similar event” by comparison with the events listed. I don’t think the wording is good enough, or sufficiently encompassing, to substantiate the company’s refusal to accept liability. In the end, I am afraid it could need a court judgment to determine the issue.

I think you should send a formal letter to the company [copy as an e-mail attachment if they are not dealing with correspondence] asserting your claim on the grounds that the scope of their force majeure clause is not sufficient to cover a pandemic and government travel restrictions as such an event is not similar to the other contingencies specifically listed.

Em says:
3 June 2020

Hi Rachel,

My comment was in direct response to your post.

I would suggest legal advice (Which? Citizens Advice online, etc.) in the first instance, followed by a stiff letter to Snowcoach. If they don’t respond and there are a number of you in the same boat (I thought this was a coach/ski holiday 🙂 ) , maybe a joint action to recover your money?

Stacy Kirton says:
3 June 2020

Air Transat (Booked CIA Canadian Affair) are only offering a voucher for 24 months. My email for my cancelled flight in June mentions force majeur as the reason. My complaints have been dismissed giving me the only option of taking the voucher or attempting to recover the money through travel insurance / credit card company.

Em says:
3 June 2020

Air Transat is a Canadian company and they are quoting from their standard Terms and Conditions, which do (at least as of now) include force majeur clauses that seem to cover all the bases where the Covid-19 situation is concerned.

However, assuming you are departing from an EU airport, Transat are bound along with every other carrier to respect EU Regulation 261/2004 EC, which overrides any terms and conditions they may wish to include in their own contract. You are entitled to a refund and they must inform you of this option in writing.

Renna says:
4 June 2020

Booked a holiday end of August ,to South Africa paid a substantial deposit , no way have to pay the full amount !
Have been on the phone to them and also correspondence via email.
Their reply.
Pay the full amount and they will reimburse 100 percent if we can’t go end of August , which I am reluctant to do as it’s thousands.
Second they are offering a voucher up to 12 months
Third they are telling us because we are in breach of cancelling the holiday we may not get the full amount of our deposit.
Can I have some feedback as to what to do ??