BS: passport withholding

Subject: BS: passport withholding?
From: GUEST,Penny on a canal (looking for bridge advice.
Date: 13 Jul 10 - 02:27 AM

Odd thing came up last night that I was not happy about.

Some of you may know from my train thread that I had my purse taken in Athens. This meant that a) I had not much cash, b) I had no means of getting more than I had by me in other currency, and c) the arrangement for paying the ship for shipboard expenses fell through since it depended on their link between my credit card and their ship card.

The first solution they suggested for c) was that I paid them in cash. I suggested I went online to my bank and transferred funds from their directly to their account, but they are not set up to do this. The Purser, a very nice and overworked lady, told me that they had a system of a promissory note which I could complete before leaving the ship, and also arranged and paid for a taxi to take me to the station.

Come yesterday when I asked for my passport, I was told I could only have it back by signing the promissory note. This turned out to be anything but what I consider a note. It permits them to distrain my goods if I do not pay (38USD) in the form which they demand, within 10 days (not working days), and pursue me through courts, expressed in serious legal language which would require advice to understand. It is a contract.

I have signed, having every intention of paying, as it seemed the only way to get my passport back. The thief in Athens has converted me into a person seen as having the intention of defrauding the shipping company, and I resent this strongly.

The Purser (very, very tired, but even so considerate and kind) explained that the payment does not have, as the document laid down, to be paid in Fort Lauderdale, but can be paid to the British office in Oxford - it does not state that. I intend to make payment there in person.

What is the legal position over the withholding of passports? It hardly seems reasonable. And over surrendering passports at the onset of the journey - this was presented as to do with our entering various states en route?

The company has not itself seemed to have a very strong policy about delivering the service promised in the contract between it and its passengers. There are, of course, terms and conditions, but these were only made clear following booking.

After leaving the ship and getting home tomorrow I may post more about that aspect.

Penny

Subject: RE: BS: passport withholding
From: Richard Bridge
Date: 13 Jul 10 - 04:11 AM

Way outside my areas of expertise. Assuming that the ship was in Athens not on the high seas when the note was signed I suspect Greek law relating to consumer protection might apply (and lots of that will follow EU law). You might get lucky and find that the jurisdiction clause (obliging all lawsuits to take place in Texas or wherever) is unenforceable. The conventions on recognition and enforcement of judgments have been a moveable feast for the last 20 years.

If English law applied, then it might be arguable that the note is void (or voidable) under the doctrine of duress.

If that line of argument failed, it may be arguable that you were induced to enter into the "promissory note" by the misrepresentation that it was merely a promissory note.

It might be worth having a look at the remaining parts of the Statute of Frauds.

I have a little bell going off that maybe passports remain the property of Her Majesty's government so the government could demand its return (and then give it back to you) - but don't take that as gospel.


Turning to the quality of service delivered generally, the law relating to the incorporation of terms and conditions is fairly complicated (I do know this bit) and I strongly suggest that the terms and conditions will have been incorporated, although you may be able to get to arguing that there is a contract on the brochure terms -see Bowerman - v - ABTA.

Assuming that the operators are members of ABTA I think ABTA has industry standard requirements about small print, and there has been some specific legislation about tour operators that is again outside my knowledge.

Subject: RE: BS: passport withholding
From: Richard Bridge
Date: 13 Jul 10 - 04:12 AM

PS. You could threaten the company with a carefully worded screed about a Facebook page or website you were thinking of setting up.

Subject: RE: BS: passport withholding
From: McGrath of Harlow
Date: 13 Jul 10 - 05:54 AM

Since a UK passport doesn't actually belong to the passport holder but to the Crown, is it actually legal for a tird party to hold on to it?

Subject: RE: BS: passport withholding
From: Richard Bridge
Date: 13 Jul 10 - 07:26 AM

As above, McGrath, it might indeed be an avenue for exploration.

Subject: RE: BS: passport withholding
From: SINSULL
Date: 13 Jul 10 - 08:03 AM

When I was in Russia, passports were routinely collected and held by the hotel. It prevented us from wandering off on our own - which I managed anyway. That was many years ago but I believe it is still routine in some countries.

Subject: RE: BS: passport withholding
From: Jack Campin
Date: 13 Jul 10 - 12:01 PM

I haven't had a hotel keep my passport in about 15 years - used to be routine in Turkey and I've had it done in France and Portugal.

This instance seems a lot more malicious. I would post it on a few travel review sites. I would never consider dealing with a firm that acted like Penny's tour company.

As I see it, it's probably quite legal (under Greek law) for them to take your passport, but it's definitely illegal (under British law) for you to let them have it. So you're in the worst possible situation - British consulates are perfectly entitled to just laugh at you.

Subject: RE: BS: passport withholding
From: Jim Dixon
Date: 14 Jul 10 - 11:55 AM

I don't know about the legality of withholding passports, but if I were you, I wouldn't make an issue of it, especially since you got your passport back within a reasonable time.

I see nothing wrong with the promissory note the company asked you to sign. Signing it was the right thing for you to do, with or without the threat of withholding your passport.

I sympathize with the inconvenience and indignity you had to put up with. If you want to blame someone for that, blame the thief.

Subject: RE: BS: passport withholding
From: Richard Bridge
Date: 14 Jul 10 - 12:33 PM

Jim, we have not seen the terms of the "promissory note". It sounds as if it might have been very oppressive and unfair.

Subject: RE: BS: passport withholding
From: Howard Jones
Date: 14 Jul 10 - 02:12 PM

As I read the OP, she was left with no means to pay her bill for expenses run up on the ship, so the purser gave her credit - a loan in effect. In return she was asked to sign an agreement to repay the loan. She hadn't signed this at the point when she asked for her passport, and so they asked her to sign it before returning the passport to her - reasonable precaution I should have thought.

The promissory note was apparently couched in strong legal terms, which seem to have panicked the OP. Perhaps it could have been worded in plainer language, but was no doubt drawn up by the company's (US?) lawyers to be watertight even when signed by a national of another country while in the territory of a third country, or perhaps in international waters.

If you take out a loan from a bank or finance company you usually expect to have to sign a fairly complex and legalistic contract. I can't see that this is any different. Regrettably, the way this was handled seems to have upset the OP, but the purser (who she's admitted was busy and overworked) and seems to have bent over backwards to help her out in an unfortunate situation.

Subject: RE: BS: passport withholding
From: Jack Campin
Date: 14 Jul 10 - 03:16 PM

Usually contracts signed under duress are considered void. Refusing to hand over somebody's passport until they sign sounds like duress to me.

Subject: RE: BS: passport withholding
From: Penny S.
Date: 14 Jul 10 - 04:26 PM

I obviously could not post the note while on board, and it is fairly long, with a lot of clauses. I'll scan it in and then copy across. The ship has had its registration shifted from Greece to Malta, and we were given a letter saying that all terms in the T&C referring to Greek law should be taken as referring to Maltese law. The letter, however, referred to the head office in Fort Lauderdale, and seemed, though it is hard for an amateur to be sure, to be couched in US legalese rather than British.

What really offended me was, that when I had repeatedly offered to make payment by a perfectly reasonable, efficient and secure way, the premise upon which the letter was based was that I had an intention to defraud the company. Nothing about it acknowledged that the situation was due to circumstances beyond my control.

Earlier in the cruise, letters were sent out at night - I was not the only recipient - pointing out that credit card companies had refused to recognise cards, and asking for the recipients to visit Reception to set up an alternative. This letter, though the Purser agreed that I should not have received one, was reasonable, pointing out that there were various reasons why the card transactions might not be honoured. (The most common one in the circumstances seems to be people who have not informed their card company of travel abroad.)

I replied to it with my surprise, since the ship was aware of my circumstances. The Purser said it was an automatic computer letter, and I said that I thoought that was the case, but that since paper had been produced I thought it wise to add to the trail.

I had the same thought Richard did about the ownership of the passport - I've been handing it over on sleeper trains so that the staff can hand them to border staff without a qualm, though.

The person I was travelling with did not share my reaction and said they had to cover themselves as people did defraud them. I feel that the language was wrong. Particularly in leaping at once to the suggestion of my intention to renege. (Over, I might add, two lots of four hours internet access and a letter to post (at exorbitant rate)). I would have thought an ill intentioned person would have been drinking the bar dry and occupying the spa treatment room continuously.

I would have been perfectly happy to sign something along the lines of "I, Penelope _________, of ___________, promise to pay the company Voyages to Antiquity all sums accrued to my account while on the ship Aegean Odyssey between 29th June 2010 and 13th July 2010, currently totalling $38, within ten working days of leaving the ship.

I fully understand that if prompt payment of what I owe is not made, the company shall be entitled to pursue whatever legal means they deem appropriate to recover the debt, and that I shall be liable for the costs of this."

I don't see that that has any massive holes to slither through. What I was asked to sign was not clear about who was meant by various nouns (none of that "hereinafter referred to as..... stuff). I felt that it was a document of a type which people like Richard would advise should not be signed without taking legal advice first. The Purser said that I did not have to pay in Fort Lauderdale, but could pay the Oxford office, and did not even need to pay at once, but merely underline my intention of paying. That is not what it said. It specified the form of payment as cashier's check or money order, but she said that wasn't necessary either.

I had not run up debt without means of paying - most of the account was before the theft. One of the internet purchases was after, so could be seen as credit as Howard suggests.

Meanwhile, the company has a different attitude to its own side of agreements. It advertises cruises with different educational themes - this one was on Byzantium. The next one was not. However, people who had booked on that cruise were moved to ours (and possibly another), with inducements such as free flights and cabin upgrades, because a group of 261 Russians wanted to charter the ship for some purpose. They would be providing their own staff. British staff have been laid off, unpaid, but with free flights home and out again. Filipino staff and crew have been kept on because of the terms of their contracts.

Several people booked on our cruise had a particular visit as the prime reason for coming, a visit which required the use of the Corinth Canal. At the last minute we were told that there had been a landslip in the canal (true, but see below), and that there was doubt about the draught of the ship clearing it (possibly true) and we would therefore have to visit Mycenae instead. A hotel there was able to cope with 300 unexpected guests very well.

However, the evidence is that the most recent landslip was in 2007. It may not have been fully dredged since, but the ship was advertised, since then, as being able to use the canal. Can't use the state of the tides as a problem. One passenger had a friend on a larger boat which did use the canal. Someone claimed that he had found out that the company never paid the fee to use the canal in the first place. (Isn't it odd how fantasists never seem to notice that people do stuff (like researching) when they aren't looking.

I suppose they may find it hard to understand that people can be honest.

Penny

Subject: RE: BS: passport withholding
From: Richard Bridge
Date: 14 Jul 10 - 04:55 PM

Duress to goods has anomalies.

The OP was not left with no means to pay. She offered to transfer funds from her bank by internet transfer but the shipping line said it could not (which usually means would not) accept that.

We are told that the note contained a requirement to pay in Fort Lauderdale, Florida (although allegedly that was offered not to be enforced).

So I suspect it contained an exclusive Florida jurisdiction clause - something no European would be wise to accept, given the differences between US and UK (and other European) costs rules.

She was promised a facility, in exchange for a promissory not. What she got was (apparently) an instrument of oppression in stead.

Subject: RE: BS: passport withholding
From: Jack Campin
Date: 14 Jul 10 - 05:14 PM

There is something rather appropriate about being on a tour themed around Byzantium and getting treated that way. Anybody get marooned on a rock, or poisoned by their relatives?

Subject: RE: BS: passport withholding
From: Penny S.
Date: 15 Jul 10 - 01:25 AM

No.

But soemone has uncovered the results of an inspection in Rhodes which suggested that the food storage area was a bit iffy. No food poisoning, either. This may have preceded the change of registration. There isd a site called cruisetalk (I think, I found it by searching Aegean Odyssey review) which has a lot of scuttlebutt about the ship and this cruise in particular.

Penny

Subject: RE: BS: passport withholding
From: Howard Jones
Date: 15 Jul 10 - 06:53 AM

I understand the OP's concern at being required to sign a document which was possibly over-detailed and unnecesssarily legalistic. However she should not take it personally. This was a commercial relationship and whilst she is no doubt honest, a number of the shipping line's customers will not be. If they had handed her back her passport without her having signed the promissory note, she could have simply walked away without paying. The company has procedures in place to protect itself against that possibility. Bear in mind that the purser would probably have been held responsible for any shortfall, and would not have the authority to amend the document or circumvent the procedures.

The document seems rather heavy-handed. Unlike Richard, I'm not a lawyer so I can't comment on whether the document needed to be in the form it was or whether the simpler format suggested by the OP would suffice. However I have seen enough American legal documents to know that they are even longer and more complicated than their UK equivalents.

The OP was in an unfortunate situation, and there appear to be other issues as well. However the ship was not obliged to extend credit to her at all - they could have insisted on her paying in cash.

I don't think the ship was unreasonable in its request, although the form of the document may have been unsatisfactory. However I am surprised that they did not require her to sign it before running up any further expenses - she would then have had a chance to object and perhaps make other arrangements. In any event, since she had every intention of repaying the money immediately it seems to me to be an entirely academic concern.

Subject: RE: BS: passport withholding
From: Penny S.
Date: 15 Jul 10 - 07:43 AM

Payment has now been made, over the phone to the Oxford office, using my new debit card. Charming woman called Katy, asked if I would like a written receipt! Of course. I also suggrested she looked at the form of the promissory note.

They could have insisted on cash all they wanted. I'm not sure what I would have done if they had. Possibly stood up in the dining room and asked if there was a lawyer in the house who could explain if they had a right to leave me without funds to get home. Though that could have left me in the position I did not want to be in of having people give me money. I have had a loan from my co-traveller, who is family, and swapped some pounds with another British passenger at the going exchange rate.

Howard's point about my being made to sign the note before incurring any further expense is reasonable. I was surprised that a) they didn't do it, and b) that when I asked for more internet time the computer allowed me to have it. However, the form of the note was such that it included the amount, and therefore could not be done before the end of the trip.

I still feel that the existence of a few criminals should not lead to the treatment of all as potentially dishonest. Gresham's Law applied to people.

As for returning the passport and risking the person walking off without paying, if someone did that, they would still have to get off the ship. Detaining someone whose behaviour has announced their intention of not paying would be a different case from withholding the passport of someone who has done the opposite. Mind you, they wanted everyone off asap, and involving the police would have been a delay.

Penny

Subject: RE: BS: passport withholding
From: GUEST,kendall
Date: 15 Jul 10 - 09:31 AM

I was invited to go on a trip to Greece many years ago. I declined.Infer what you will.

Subject: RE: BS: passport withholding
From: Howard Jones
Date: 16 Jul 10 - 03:59 AM

Penny, if everyone in the world was 100% honest then there would be no need for contracts (or lawyers). The reality is that every commercial arrangement includes provisions in the event of one party defaulting.

Presumably from time to time you've taken out a mortgage or a hire purchase agreement, or rented a car, or bought a mobile phone or an internet contract. I know you've signed a credit card contract. These will all contain clauses setting out the consequences if you default. It's not a judgement about you personally, simply a recognition that some people may default. Surely you accept that is a possibility?

And actually, I don't see that the ship had any responsibility to see that you had funds to get home. It's your responsibility to take out insurance (more terms and conditions, I'm afraid) to cover such eventualities, and perhaps take precautions to ensure that a thief could not steal all your funds. When I travel I always divide both my currency and credit cards, so that if a thief takes one lot I should still have some reserves.

I'm sympathetic to the situation you found yourself in, but you seem to be criticising the ship for helping you out of a situation which was not their fault in the first place, and which they had no responsibility to put right.

I agree however there is clearly something wrong with the wording of the document if it demands that you to make payment in a form and in a place which is both impractical to comply with and which the company does not in practice require you to do. It seems to have been drawn up without proper thought about the actual situations it is likely to be used in.

Subject: RE: BS: passport withholding
From: Penny S.
Date: 16 Jul 10 - 02:47 PM

I am not criticising the ship - the staff were fine. (Incidentally, I have found out since that payments to the Filipino crew are not up to date, so they are obviously judging others by their own standards.)
I am criticising the company for issuing an extremely heavy document - much nastier than any other agreement such as those you mention I have ever dealt with - at an earlier stage in its dealings with me than necessary, and by withholding a legal document the property of a third party in order to compel me to sign.
It appeared from the document that only by signing it did I agree to give them the power to pursue me and distrain my effects, whereas by not signing it I would be preventing them from doing it. It didn't really make sense.
Since the company was effectively extending credit to everyone via its own card, it would be more sensible if it made everyone sign such a form at the outset. Possibly even during the booking process, which would allow people to choose whether to agree or not. And they should certainly make clear about the withholding of the passport in advance of doing so.
I quite understand their need to protect themselves. Not to make me or anyone else in a similar position - which is what the Purser said the process was for - feel under threat and regarded as a criminal. There is a concept of being innocent until proved guilty in both British and US law. I don't know about Florida, of course.
Anyway, I've paid, the amount in £ specified on my statement, and not the amount in $ which also appeared on the statement and was the only amount specified in the note. But as I paid it at the British office, which the Purser said I could, it seemed appropriate.
You haven't read the thing. And even if I posted it, you would not be reading it under the same circumstances, alone.
Penny

Subject: RE: BS: passport withholding
From: Penny S.
Date: 16 Jul 10 - 03:12 PM

Curious post disappearance then.

I have googled the phrase "is it legal for someone to withhold a British passport" Google preferred, for some reason, "is it illegal". And, as Richard suspected, it is. Except for the Crown, the government, or other authorised party. Which I suspect Voyages to Antiquity is not.

Should have googled first. And then signed "under protest". Except everyone on the ship was much nicer than the procedure, and it would have been rude.

However, if they pursue me over some trifling difference in the exchange rate between signing and making the payment, maybe I'll draw it to the attention of the BBC's Watchdog programme, which has had a previous interest in an earlier company with the same management, or the Guardian's money page, or Max Clifford.

Penny