Hello, here is the reply I received from Hovertravel:
We can advise that customers who purchase rail tickets which include cross solent travel with any of the three cross solent operators are not automatically booked onto any of the services provided by any operator. The rail operators do not provide any details of customers who have booked journeys which include cross solent travel and as such, none of the cross solent operators will be aware of any purchases that have been made.
As Hovertravel has been accepting through rail tickets for many years, we put in place a process whereby customers can contact us in advance of the day of travel to reserve a seat on a Hovercraft departure, to ensure that they can undertake their journey as required. This service is routinely used by many customers each day and is well received.
Full details of how this works and how to book is contained in the link below.
https://www.hovertravel.co.uk/connections/national-rail/
We can advise that national rails terms and conditions do advise that if your journey includes travel by a third party, such as a cross solent operator, that the third party’s terms and conditions do apply to that part of the journey. We can further advise that any customer who does not have an advanced, confirmed reservation with us, will only be accepted for travel, where unbooked seating exists on a departure at the time of checkin and this can mean a significant wait to travel at busier times, where services are fully booked. In addition to the above, if a customer arrives to travel with us, where they do not have a confirmed, advance reservation with us, such as a reservation made through the rail reservation process indicated in the link above and that departure is the last service of the day and there is no available seating, the customers will be required to arrange travel across the solent with another service provider at their own expense. Hovertravel has no obligation to offer alternative travel options or refunds, where no advance reservation is presented for the stated departure and our services are operating as advertised.
Our terms and conditions do advise the following regarding national rail tickets:
“Please also note that for tickets issued by third parties such as National Express and National Rail, you will need to contact the relevant third party for information regarding any compensation or liability and we shall have no responsibility or liability in that regard.”
As your purchase was made via National Rail, we are unable to assist with your enquiry further and we recommend that you contact the Rail service provider who sold the ticket to you, as indicated in the extract from our terms above.
I would appreciate comment with those more knowledgable on the legal aspects of this......
I will contact SWR next.
Whilst that's an articulate and detailed response from Hovertravel, it doesn't explain how they justify refusing to carry you and thereby failing to deliver their contractual obligation.
Moreover their conditions do not say anything about the possibility of being denied boarding on a through National Rail ticket. It's frankly hilarious that they think they can get out of any liability simply by stating:
you will need to contact the relevant third party for information regarding any compensation or liability and we shall have no responsibility or liability in that regard
To the extent that such a condition could be read as allowing them to deny boarding without liability (which is not at all how I read it), it is likely to be regarded as unfair under consumer law, and thus not binding. Based on the way they are arguing it should be interpreted, it would fall into the following examples of terms that may be regarded as unfair, from
Schedule 2 of the Consumer Rights Act 2015:
2. A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations...
The conditions suggest that they have no liability in the event of non-performance of their service.
3. A term which has the object or effect of making an agreement binding on the consumer in a case where the provision of services by the trader is subject to a condition whose realisation depends on the trader's will alone.
They seem to suggest that it is entirely up to them whether they will carry you.
17. A term which has the object or effect of limiting the trader's obligation to respect commitments undertaken by the trader's agents or making the trader's commitments subject to compliance with a particular formality.
This one in particular strikes me as relevant, since they seem to be claiming that unless you comply with the formality of making a reservation, they do not commit to carrying you on services which you may well have been shown and "booked" on.
18. A term which has the object or effect of obliging the consumer to fulfil all of the consumer's obligations where the trader does not perform the trader's obligations.
Similarly, they have not performed their obligation to transport you, and yet they are effectively force you to comply with your obligation to pay for your ticket.
I think it is worthwhile making the above points to them and asking for reimbursement of the new Wightlink fare you had to pay for.
I don't think there is much mileage in continuing any complaint with SWR, other than in respect of the information (or lack thereof) they gave about the necessity of making reservations and consequences for not doing so.
I am very late to this thread but
In the airline world, this would 100% be a retailer problem, and that’s indeed what happens all the time with Online Travel Agencies.
Unless you are H-24, in which case the operating carrier has your booking for changes (at all times refunds would be dealt by the OTA), everything needs to go through your retailer as your contract is with the agency not the airline.
That's not correct, you have two contracts: one with the agency for the retailing of the ticket itself and another with the airline for the travel. An airline would not let you travel without having a contract with them, in which they can establish things like luggage limits and boarding/check-in deadlines. But regardless, comparisons with the airline world are not terribly helpful since the applicable conditions and laws are quite different.
IMHO Hovertravel has a right to say, you don’t have a reservation, you can’t travel since you don’t have a contract with us.
There is very clearly a contract with Hovertravel from the moment the ticket is sold, and Hovertravel don't deny this. They are just seeking to rely on their terms & conditions to deny travel without liability.
Someone booking on SWR or NatEx or others, they don’t have a contract with Hovertravel, until they reserve, SWR has. It’s up to SWR to handle and refund/compensate an involved traveler.
Whilst I agree that National Rail retailers could and should do more to inform people of the possibility of making a reservation and the potential consequences for not doing so, I don't see how a failure to provide that information would make them liable for what is likely a breach of contract by Hovetravel.
There is nowhere on the contract that you get that states that, until you get to the hovertravel website and tick the box that states so.
It is stated in the NRCoT that any element of your ticket not performed by the rail operator is subject to the relevant operator's terms and conditions.
I agree that it is not stated that Hovertravel's conditions apply, but equally I don't think a reasonable person would assume that the NRCoT govern a non-National Rail leg of their ticket - just as they wouldn't apply on the Underground, DLR or bus in London for example.
That is the only dispute here, would there have been a clear “You accept the conditions of Hovertravel” it would be slam dunk and I wouldn’t be arguing this
I agree this would be much clearer.
The NRCoT stops applying because they are not a TOC, but then what’s remaining is your contract with the retailer to arrange for you to get to your destination as per the contract, since IMHO you have never accepted the conditions of travel of Hovertravel, therefore any liability would come out of the retailer
I can see where your viewpoint is coming from, but ultimately Hovertravel's conditions are alluded to, even if not explicitly linked to.