The Marco Polo and the bug: breach of contract, frustration, restitution and damages?

The outbreak of the norovirus affecting some 400 passengers on the cruise ship Marco Polo, and eventually forcing the cruise's abandonment after a few days berthed at Invergordon, Easter Ross (6-9 July 2009), raised some interesting questions about the relevant contractual entitlements, albeit that the ship's owners, Transocean Tours of Bremen, eventually offered passengers a full refund plus some other goodies in compensation.

Presumably the non-completion of the cruise was a breach of contract by the shipowners unless it could be argued that the contract was frustrated by events effectively beyond their control.  That in turn might raise questions about failure to maintain the ship as bug-free as another breach of contract.  Those passengers who left the ship at Invergordon to make their own way home were presumably rescinding the contract on grounds of material breach by the shipowners; and rescission can carry with it an entitlement to restitution, as indeed the shipowners went on to tender.  But one of the unanswered questions in cases like this, at least so far as Scots law is concerned, is whether any credit should be given for that part of the contract which has been performed, i.e. in this case, the cruise as far as Invergordon.  Frustration of contract can also give rise to claims of restitution on the basis of the condictio causa data causa non secuta (or, more obscurely – see the writer's forthcoming Unjustified Enrichment Law Basics 2nd edition – the condictio ob causam finitam).  The passengers might also have a claim for damages for breach of contract, with their loss being primarily the disappointment of the cruise's non-completion.  Of course, much would turn on what the express terms of the contract said, but exclusions or limitations of liability would probably be subject to the controls of the Unfair Contract Terms Act 1977 or the Unfair Terms in Consumer Contracts Regulations 1999.

It is all rather disturbingly similar to a problem composed by the writer many years ago for an electronic tutorial programme called Scots Law Courseware, accessible here.  There, however, the cruise ship sank on the rocks of Barra Head (pictured) rather than being laid low by the norovirus.  It begins to sound like one of these "Would you rather" jokes.  Happy holidays – but contract law is on your side.