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Nothing in these Conditions or the Contract operates to exclude,
restrict, or modify the application of any provision of applicable
laws to the extent any such law precludes the waiver of its
protections. All exclusions and limitations of Our liability under the
Contract must be read subject to this clause.
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YOU ACKNOWLEDGE AND AGREE THAT WE SHALL NOT BE LIABLE TO YOU OR ANY
THIRD PARTY FOR ANY LOSS, DAMAGE, COST, EXPENSE, INJURY, ILLNESS, OR
DEATH OCURRING DURING, OR IN ANY WAY RELATED TO, THE JOURNEY, NO
MATTER WHAT THE CAUSE, EXCEPT AS OTHERWISE PROVIDED IN THIS CONTRACT.
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WE SHALL NOT BE LIABLE FOR ANY INJURIES OR DAMAGES TO YOU WHICH OCCUR
WHILE YOU ARE ONBOARD A CRUISE VESSEL OR ONSHORE DURING THE COURSE OF
YOUR JOURNEY.
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WE ARE NOT AN INSURER OF YOUR SAFETY.
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WE ARE NOT LIABLE FOR LOSS OF OR DAMAGE TO ANY OF YOUR LUGGAGE OR
PROPERTY.
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OUR MAXIMUM LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY LOSS, DAMAGE,
COST, EXPENSE, INJURY, ILLNESS, OR DEATH OCURRING DURING, OR IN ANY
WAY RELATED TO, THE JOURNEY IS LIMITED TO THE JOURNEY PRICE YOU HAVE
PAID TO US.
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YOU ACKNOWLEDGE AND AGREE THAT WE SHALL NOT BE LIABLE TO YOU OR ANY
THIRD PARTY, UNDER ANY CIRCUMSTANCE, FOR ANY LOSS OF ENJOYMENT, DATA,
OPPORTUNITY, PROFIT, SAVINGS, REVENUE, INTEREST, OR ANY OTHER
CONSEQUENTIAL, OR INDIRECT, INCIDENTAL, SPECIAL, OR PUNITIVE LOSS,
COST, DAMAGE, OR EXPENSE.
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WE DISCLAIM ALL LIABILITY TO YOU FOR EMOTIONAL DISTRESS, MENTAL
SUFFERING OR ANY PSYCHOLOGICAL INJURY OF ANY KIND.
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YOU ACKNOWLEDGE AND AGREE THAT YOU ASSUME ALL THE RISKS OF TRAVEL, AND
WE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DELAY OR
FAILURE BY US OR ANY SERVICE PROVIDER TO PERFORM CONTRACTUAL
OBLIGATIONS AS A RESULT OR CONSEQUENCE OF A FORCE MAJEURE EVENT, OR
FOR ANY LOSS, COST, DAMAGE, EXPENSE, INJURY, OR DAMAGE RESULTING FROM
OR AS A CONSEQUENCE OF A FORCE MAJEURE EVENT.
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YOU ACKNOWLEDGE AND AGREE THAT ALL EXPRESS OR IMPLIED WARRANTIES,
GUARANTEES, REPRESENTATIONS, OR TERMS ARE EXPRESSLY DISCLAIMED. WHERE
THE LAW IMPLIES ANY GUARANTEE, CONDITION, OR WARRANTY WHICH CANNOT BE
DISCLAIMED, TO THE MAXIMUM EXTENT POSSIBLE, OUR LIABILITY TO YOU OR
ANY THIRD PARTY FOR BREACH OF SUCH AN IMPLIED GUARANTEE, CONDITION, OR
WARRANTY IS LIMITED, AT OUR DISCRETION, TO ONE OR MORE OF THE
FOLLOWING:
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IN THE CASE OF GOODS: THE REPAIR OF GOODS, THE REPLACEMENT OF
GOODS, THE SUPPLY OF EQUIVALENT GOODS, OR THE COST TO REPAIR,
REPLACE, OR SUPPLY EQUIVALENT GOODS; OR
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IN THE CASE OF SERVICES: PROVIDING THE SERVICES AGAIN, OR PAYMENT
OF THE COST OF PROVIDING THE SERVICES AGAIN.
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YOU ACKNOWLEDGE AND AGREE THAT IF YOUR JOURNEY, ANY PART OF YOUR
JOURNEY, ACCOMMODATION, FLIGHTS, OR ANY OTHER GOOD OR SERVICE, OR ANY
PART THEREOF, IS PROVIDED BY A CRUISE OPERATOR AND/OR SERVICE
PROVIDER, THEN IN THE EVENT OF ANY DISPUTE OR CLAIM, INCLUDING FOR
LOSS, COST, DAMAGE, EXPENSE, BREACH OF CONTRACT, OR NEGLIGENCE,
ARISING FROM OR IN ANY WAY RELATING TO THE CONDUCT OF A CRUISE
OPERATOR AND/OR SERVICE PROVIDER, YOU SHALL PURSUE YOUR CLAIM
EXCLUSIVELY AND DIRECTLY AGAINST THE RELEVANT CRUISE OPERATOR AND/OR
SERVICE PROVIDER AND NOT AGAINST US. YOU FURTHER ACKNOWLEDGE AND AGREE
THAT WE ARE NOT LIABLE FOR THE ACTS, OMISSIONS, OR FAILURES OF ANY
SUCH CRUISE OPERATORS AND/OR SERVICE PROVIDERS.
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IN CONSIDERATION OF THE SERVICES AND ARRANGEMENTS WE PROVIDE, YOU, FOR
YOURSELF AND FOR YOUR HEIRS, PERSONAL REPRESENTATIVES OR ASSIGNS, DO
HEREBY RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, AND AGREE TO
INDEMNIFY US AND OUR AFFILIATES, WHICH SHALL INCLUDE (WITHOUT
LIMITATION) OUR OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS,
SUBCONTRACTORS, AND AFFILIATES, FROM ANY AND ALL CLAIMS, ACTIONS, OR
LOSSES FOR EMOTIONAL INJURY, BODILY INJURY, PROPERTY DAMAGE, WRONGFUL
DEATH, LOSS OF SERVICES, LOST PROFITS, LOST WAGES OR EARNINGS,
CONSEQUENTIAL, EXEMPLARY, INDIRECT OR PUNITIVE DAMAGES, OR OTHERWISE,
THAT MAY ARISE OUT OF OR OCCUR DURING THE JOURNEY OR ANY ACTIVITIES
CONDUCTED IN CONJUNCTION OR RELATION THEREWITH, INCLUDING, WITHOUT
LIMITATION, ANY DELAY, LOSS, DAMAGE, OR INJURY CAUSED BY OR ARISING
FROM A FORCE MAJEURE EVENT, BREAKAGE OF SHAFTS OR ANY DEFECT OR
UNSEAWORTHINESS IN HULL, MACHINERY OR APPURTENANCES, EQUIPMENT,
FURNISHINGS, SUPPLIES OR OFFICERS OR CREW OF THE VESSEL OR ITS
LAUNCHES OR WATERCRAFT; FAULT OR NEGLECT OF THE MASTER, TUGS, OFFICERS
OR MEMBERS OF THE CREW, AGENTS, SERVANTS, INDEPENDENT CONTRACTORS; THE
QUALITY, NATURE OR CONSEQUENCES OF MEDICAL OR SURGICAL TREATMENT; ANY
INHERENT DEFECT, OR VICE OR QUALITY OF THE TRAVELER'S BAGGAGE; ANY
INSUFFICIENCY, INADEQUACY OF ABSENCE OF BAGGAGE MARKS OR OF ADDRESS OR
DESCRIPTION OF SUCH BAGGAGE; ANY DELAY IN, OR PREVENTION OF SAILING,
PROLONGATION OF THE JOURNEY, DEVIATION OR STOPPAGE IN TRANSIT; ANY
CALLS AT PORTS OR VARIATIONS FROM THE SCHEDULED OR REGULAR COURSE OF
THE JOURNEY; SEIZURE OF THE VESSEL UNDER LEGAL PROCESS; ANY ACT,
OMISSION, FAULT, OR NEGLIGENCE OF THE TRAVELER OR FELLOW TRAVELERS;
ANY RISKS OF TRAVEL BY SEA (INCLUDING, BUT NOT LIMITED TO,
WEATHER-RELATED HAZARDS, NAVIGATIONAL DANGERS, WEAR AND TEAR, AND
CARGO MOVEMENT AND DAMAGE); AND ANY OCCURRENCE OR EVENT THAT TAKES
PLACE OFF THE VESSEL. YOU SPECIFICALLY UNDERSTAND AND AGREE THAT YOU ARE RELEASING,
DISCHARGING, AND WAIVING ANY CLAIMS OR ACTIONS THAT YOU MAY HAVE
PRESENTLY OR IN THE FUTURE FOR OUR NEGLIGENT ACTS, OMISSIONS, OR
CONDUCT, AND THAT OF OUR OWNERS, DIRECTORS, OFFICERS, EMPLOYEES,
CONTRACTORS, SUBCONTRACTORS, AGENTS, OR AFFILIATES. YOU ACKNOWLEDGE AND AGREE THAT ANY DAMAGES RESULTING FROM SUCH ACTS OR
OMMISSIONS ARE SPECULATIVE, UNCERTAIN, AND NOT REASONABLY FORESEEABLE AT
THE TIME YOU ENTER INTO THIS CONTRACT.
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EU REGULATION 392/2009 AND THE ATHENS CONVENTION
IN THE EVENT THAT ANY OR ALL OF THE PROVISIONS OF CLAUSES 10.1 THROUGH
10.12 ARE DETERMINED INAPPLICABLE OR UNENFORCEABLE IN AN ARBITRATION
UNDER CLAUSE 11—OR IN LITIGATION IF THE ARBITRATION PROVISION IS FOUND
UNENFORCEABLE AS STATED THEREIN—THEN, AND ONLY TO THE EXTENT OF THAT
DETERMINATION, ON CRUISE JOURNEYS THAT EMBARK OR DISEMBARK AT A PORT
IN A EUROPEAN MEMBER UNION STATE AND WHICH DO NOT EMBARK, DISEMBARK,
OR CALL AT ANY UNITED STATES PORT, WE SHALL BE ENTITLED TO ANY AND ALL
LIABILITY LIMITATIONS, IMMUNITIES FOR PERSONAL INJURY, DEATH, AND/OR
LUGGAGE AS SET FORTH IN EU REGULATION 392/2009 ("THE REGULATION"),
RELATING TO THE CARRIAGE OF PASSENGERS AND THEIR LUGGAGE BY SEA. ON
CRUISE JOURNEYS THAT DO NOT EMBARK, DISEMBARK, OR CALL AT ANY UNITED
STATES PORT, WE SHALL BE ENTITLED TO ANY AND ALL LIABILITY
LIMITATIONS, IMMUNITIES FOR PERSONAL INJURY, DEATH AND/OR LUGGAGE AS
SET FORTH IN THE ATHENS CONVENTION RELATING TO THE CARRIAGE OF
PASSENGERS AND THEIR LUGGAGE BY SEA, 1974, AND THE 2002 PROTOCOL TO
THAT CONVENTION (BOTH TOGETHER REFERRED TO AS THE "ATHENS
CONVENTION"). UNDER BOTH THE REGULATION AND THE ATHENS CONVENTION, OUR
LIABILITY IS LIMITED AS SET FORTH BELOW:
EXCEPT IF THE LOSS OR DAMAGE WAS CAUSED BY A SHIPWRECK, CAPSIZING,
COLLISION, STRANDING OF THE SHIP, EXPLOSION OR FIRE ABOARD THE SHIP OR
A DEFECT IN THE SHIP AS DEFINED BY THE REGULATION AND THE ATHENS
CONVENTION, AND PROVIDED THAT PASSENGER PROVES THAT THEIR LOSS OR
DAMAGE WAS CAUSED BY OUR NEGLIGENCE OR FAULT, OUR LIABILITY TO
PASSENGERS FOR DEATH OR PERSONAL INJURY IS LIMITED TO NO MORE THAN
400,000 SPECIAL DRAWING RIGHTS ("SDR") PER PASSENGER (APPROXIMATELY
U.S. $549,400, WHICH FLUCTUATES DEPENDING ON THE DAILY EXCHANGE RATE
AS PUBLISHED IN THE WALL STREET JOURNAL).
IF THE LOSS OR DAMAGE WAS CAUSED BY A SHIPWRECK, CAPSIZING, COLLISION,
STRANDING OF THE SHIP, EXPLOSION OR FIRE ABOARD THE SHIP OR A DEFECT
IN THE SHIP AS DEFINED BY THE REGULATION AND THE ATHENS CONVENTION,
OUR LIABILITY TO PASSENGERS FOR DEATH OR PERSONAL INJURY IS LIMITED TO
NO MORE THAN 250,000 SDR PER PASSENGER (APPROXIMATELY U.S. $343,400,
WHICH FLUCTUATES DEPENDING ON THE DAILY EXCHANGE RATE AS PUBLISHED IN
THE WALL STREET JOURNAL). EXCEPT WHERE THE INCIDENT RESULTED FROM AN
ACT BEYOND OUR CONTROL (i.e. WAR, TERRORISM, HOSTILITIES, CIVIL WAR,
INSURRECTION, NATURAL DISASTER, INTENTIONAL ACTS OF THIRD-PARTIES,
ETC.) OUR LIABILITY FOR LOSS OR DAMAGE RESULTING FROM SUCH INCIDENTS
MAY INCREASE TO 400,000 SDR UNLESS WE PROVE THAT THE INCIDENT OCCURRED
WITHOUT OUR FAULT OR NEGLECT.
IF THE LOSS OR DAMAGE WAS CAUSED IN CONNECTION WITH WAR OR TERRORISM,
THEN OUR LIABILITY FOR PERSONAL INJURY OR DEATH SHALL BE LIMITED TO
THE LESSER OF 250,000 SDR PER PASSENGER OR 340,000,000 SDR
(APPROXIMATELY U.S. $467,038,700, WHICH FLUCTUATES DEPENDING ON THE
DAILY EXCHANGE RATE AS PUBLISHED IN THE WALL STREET JOURNAL) PER
INCIDENT.
OUR LIABILITY FOR LOSS OF, OR DAMAGE TO, PASSENGER'S LUGGAGE OR OTHER
PROPERTY SHALL NOT EXCEED 2,250 SDR (APPROXIMATELY U.S. $3090.00,
WHICH FLUCTUATES DEPENDING ON THE DAILY EXCHANGE RATE AS PUBLISHED IN
THE WALL STREET JOURNAL) PER PASSENGER PURSUANT TO THE ATHENS
CONVENTION.
PUNITIVE OR EXEMPLARY DAMAGES ARE NOT AVAILABLE UNDER EU REGULATION
392/2009 OR THE ATHENS CONVENTION.
ANY DAMAGES PAYABLE BY US SHALL BE REDUCED IN PROPORTION TO ANY FAULT
OR NEGLECT OF THE PASSENGER AS PROVIDED IN ARTICLE 6 OF THE REGULATION
AND THE ATHENS CONVENTION.
THE REGULATION MAY BE FOUND AT https://eur-lex.europa.eu/eli/reg/2009/392/oj/eng.
THE ATHENS CONVENTION RELATING TO THE CARRIAGE OF PASSENGERS AND THEIR
LUGGAGE BY SEA, 1974, MAY BE FOUND AT https://treaties.fcdo.gov.uk/awweb/pdfopener?md=1&did=68431.
THE 2002 PROTOCOL TO THAT CONVENTION MAY BE FOUND AT https://assets.publishing.service.gov.uk/media/5a75af88e5274a545822d6e1/TS_14.2013_Prot_2002_web_acc.pdf.
PASSENGERS EMBARKING ON A CRUISE IN A EUROPEAN UNION MEMBER STATE PORT
ARE AFFORDED RIGHTS UNDER EU REGULATION 1177/2010 WHICH CAN BE
ACCESSED AT https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32010R1177.
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IN ADDITION, WE SHALL HAVE THE FULL BENEFIT OF ANY APPLICABLE LAWS
PROVIDING FOR LIMITATION AND/OR EXONERATION OF LIABILITY AVAILABLE
UNDER ANY NATIONAL LAW, INTERNATIONAL LAW, THE LAW OF THE FORUM WHERE
A CLAIM IS ARBITRATED OR LITIGATED, INCLUDING BUT NOT LIMITED TO 46
U.S.C. 30501 THROUGH 46 U.S.C. 30529 AND 46 U.S.C. 30301 THROUGH
30305, AND NOTHING IN THIS CONTRACT IS INTENDED TO OPERATE TO LIMIT OR
DEPRIVE US OF ANY SUCH STATUTORY OR OTHER LIMITATION OR EXONERATION OF
LIABILITY. IN THE EVENT OF ANY CONFLICT BETWEEN THE REFERENCED
PROVISIONS OF LAW, WE SHALL BE ENTITLED TO INVOKE WHICHEVER PROVISIONS
PROVIDE THE GREATEST LIMITATIONS AND IMMUNITIES TO US. OUR SERVANTS
AND/OR AGENTS SHALL HAVE THE FULL BENEFIT OF ALL SUCH PROVISIONS
RELATING TO THE LIMITATION OF LIABILITY.
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You may be entitled to rights under certain traveller protection
programs such as the United States Tour Operators Association
("USTOA")'s Travelers Assistance Program. You may make a claim to this
program if You are owed a refund. The Plan covers losses for
transportation or travel services that were not refunded when
required. A guest may make a claim against the Plan within 90 days
after a tour operator declares bankruptcy, becomes insolvent or ceases
business or fails to fund on account of cancellation or
non-performance. USTOA's total liability for all consumer claims from
customers of Scenic Tours (USA), Inc. is limited to $1,000,000. In
some cases, $1,000,000 may not be sufficient to cover all losses.
Complete details of the USTOA Travelers Assistance Program and claim
forms may be obtained by writing to USTOA at 275 Madison Avenue, Suite
2014, New York, New York 10016, or by email to [email protected] or by visiting their website at www.USTOA.com. Scenic Tours (USA), Inc. is registered in California as a seller of
travel. Scenic Tours (USA), Inc. is registered with the State of
California as a Seller of Travel, CST2113082-40. Registration as a
seller of travel does not constitute approval by the State of
California. Washington State Seller of Travel, UBI604-089-504.
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CLASS ACTION WAIVER: THIS CONTRACT PROVIDES FOR THE EXCLUSIVE
RESOLUTION OF DISPUTES THROUGH INDIVIDUAL LEGAL ACTION ON YOUR OWN
BEHALF INSTEAD OF THROUGH ANY CLASS ACTION. EVEN IF THE APPLICABLE LAW
PROVIDES OTHERWISE, YOU AGREE THAT ANY CLAIM AGAINST US WHATSOEVER
SHALL BE LITIGATED BY YOU INDIVIDUALLY AND NOT AS A MEMBER OF ANY
CLASS ACTION OR AS PART OF A CLASS ACTION, AND YOU EXPRESSLY AGREE TO
WAIVE ANY LAW ENTITLING YOU TO PARTICIPATE IN A CLASS ACTION. FURTHER,
IN AN ARBITRATION PROCEEDING UNDER CLAUSE 11 BELOW, THE ARBITRATOR
SHALL HAVE NO AUTHORITY TO ARBITRATE CLAIMS ON A CLASS ACTION BASIS.
YOU AGREE THAT THIS SECTION SHALL NOT BE SEVERABLE UNDER ANY
CIRCUMSTANCES FROM THE ARBITRATION CLAUSE SET FORTH IN CLAUSE 11
BELOW, AND IF FOR ANY REASON THIS CLASS ACTION WAIVER IS UNENFORCEABLE
AS TO ANY PARTICULAR CLAIM IN ARBITRATION, THEN AND ONLY THEN SUCH
CLAIM SHALL NOT BE SUBJECT TO ARBITRATION.
