When Fiona Shurmer's brother suggested she join his family on a cruise to Madagascar in 2016, she didn't hesitate. Shurmer had seen the island's endangered lemurs on a similar cruise there a few years ago and wanted her husband to enjoy the same sight. By October last year, she'd paid the R3000 deposit to secure their spot on the seven-day MSC Cruises trip.So when the company e-mailed her three weeks ago to inform her of a sudden "change in itinerary", which included replacing the one-day stop in Madagascar with a visit to Mozambique, Shurmer was not amused.MSC Cruises blamed the change on "operational and technical reasons" - its ship, the MSC Sinfonia, was now "unable to berth alongside" the port at Fort Dauphin, Madagascar.Based on the company's terms and conditions, affected passengers - some 1300 of them over three cruises - were given just three options: accept the change, transfer the deposit to another cruise, or forfeit it. A refund of the deposit wasn't on offer."We booked to see the lemurs in Madagascar," Shurmer told me. "We've just spent two weeks in Mozambique; we don't want to go back there."Turns out the problem was caused by the ship being lengthened by 8.2m. The refit, which took place from January to March, was part of the Genoa-based company's €200-million (about R2.7-billion) Renaissance Programme.Shurmer said: "MSC must have known well in advance of our bookings that it was increasing the size of the vessel, thus making it impossible for them to offer the Madagascan itinerary."mini_story_image_vleft1She asked me to look into the matter and I felt that, on the face of it, Shurmer was due a refund. MSC disagreed, saying it wasn't obliged to give a refund, but would do so to please Shurmer and unhappy passengers in four other cabins, because they were "old clients".So what does the Consumer Protection Act have to say? Quite a lot, actually. Section 47 of the act, which refers to overselling and overbooking, states that if a supplier cannot honour a commitment because of insufficient capacity, the supplier must refund to the consumer any amount paid, with interest.The only defence to an alleged failure to supply is where the supplier offers the consumer services of the same or better quality, class or nature.The act also allows for additional compensation for costs resulting from the supplier's breach of contract. But this additional amount does not have to be paid if the circumstances were beyond the supplier's control and if the supplier took reasonable steps to inform the consumer as soon as possible.But the act doesn't consider issues to be out of a supplier's control if it is due "partially, completely, directly or indirectly" to "a failure on the part of the supplier to adequately and diligently carry out any ordinary or routine matter pertaining to the supplier's business".So I asked MSC to justify its position on refunds. It eventually did so, claiming that it had offered a comparable cruise.I fail to see how a cruise to Country A is comparable with a cruise to Country B. A change to another port in the same country could be deemed comparable, perhaps, but not a different country, surely?Shurmer agrees. "It was only because of the lemurs that we booked that particular cruise."The alternative offered by MSC is in no way remotely comparable."And if not, doesn't it follow that MSC could be liable for other direct costs as well, such as dog kennelling fees already paid for the cruise dates, because the circumstances leading to the change were arguably within the company's control?How can the impact of a ship's new length - a planned and budgeted exercise - on berthing at a known port possibly be beyond the company's control? Things such as hurricanes, emergency closures of ports and breakdowns fall into that category.story_article_right1So why did MSC advertise its cruise before securing berthing arrangements at Fort Dauphin?Attorney Claire Cowan, speaking on behalf of the company, said that when the refit programme was announced MSC had immediately contacted the port authorities, who had confirmed they would not be able to accommodate the larger ship. Tender landings were also not feasible, Cowan said."[They] proposed an alternative which involved anchoring a buoy in the bay to secure the front of the vessel, which would have solved the problem and enabled us to proceed as planned," said Cowan.But the plan was later abandoned when port authorities, who had no budget, asked MSC to pay the R1.25-million buoy cost.With only three calls to Fort Dauphin a year, MSC considered it unviable.So the company "revisited" Ilha de Moçambique and found that since being declared a world heritage site - and with the help of Unesco - renovations and restoration work "had brought this unique destination back to life".Cowan said: "We truly believe Ilha de Moçambique will overtake Fort Dauphin in terms of passenger satisfaction after this season ... For the most part, the feedback we've received is that the passengers are happy with the alternative ..."I'm not so sure. Most passengers, with no option of a refund thanks to MSC's terms and conditions, wouldn't have felt they had much choice other than to grin and bear it.But should they have to, I asked consumer goods and services ombudsman Neville Melville.Not necessarily. In terms of section 47, passengers in these kinds of cases could demand refunds, Melville said, unless the supplier provided comparable services. What is regarded as a comparable service would depend on each case."The matter can certainly be referred to us," said Melville, "and this may ultimately result in us making a call on the points raised. This, however, would only be persuasive precedent for the Consumer Tribunal to consider and not create binding law. Only the tribunal or a court can make a determinative interpretation of the act."Shurmer, who won't be using MSC again, has already lodged a complaint with the ombudsman. Hardly plain sailing ahead.sub_head_start Contact Megan Power sub_head_endE-mail: consumer@sundaytimes.co.zaFollow Megan on Twitter: @Power_ReportTune in to PowerFM 98.7's 'Power Breakfast' (DStv audio channel 889) at 8.50am on Monday to hear more from MeganPlease note: Other than in exceptional circumstances, readers sending me complaints must be willing to be identified and photographed...