— from Steve Henigson —
The notice, posted by Washington State Ferries (WSF) this past Friday, that one of our ferries was out of service and that sailings had been cancelled, set me to thinking about the law of contracts.
It used to be that, for every sailing, you took your chances. You drove up, got on line, and awaited a boat which may or may not arrive. If a boat did arrive, and there was space for your vehicle, you drove on board and then enjoyed the trip.
You rode the ferries as a matter of chance, and if a boat did not arrive to get you, you had very little recourse in the matter.
But now we have a reservation system. To ride a ferry, you make a reservation. This forms a mutual understanding that there will indeed be a boat which arrives in a timely manner to take you on board, and that you will be awaiting that boat, also in a timely manner, to become its passenger.
I hold that, for the above-mentioned reason, a contract is formed between you and WSF, every time you make a reservation and WSF accepts your reservation.
The elements of a legally-binding contract are: Offer, Acceptance, Consideration, and Mutual Obligation. Further, if the elements of the contract are not Performed in a timely manner, there is a Penalty to be paid by the defaulting party.
Offer: WSF declares that there will be (that is, WSF offers) a sailing at such-and-such a time, on such-and-such a day. You offer to ride on that sailing.
Acceptance: You accept the offer of a ride on the ferry by making a reservation, thereby promising to be waiting for the boat in a timely manner. By accepting your reservation, WSF promises to have a boat ready to receive you, also in a timely manner.
Consideration: Either you promise to pay WSF the cost of the ferry ride, or you have already paid that cost by having ridden westward at some previous date and time. Further, you agree to pay a penalty, if for some reason you default on your reservation.
Mutual Obligation: You are obliged to appear for your ride in a timely manner, and to pay for it if you have not already done so. WSF is obliged to provide a safe and usable boat to travel the correct route, and to take you on board for the agreed-upon trip.
Performance: The contract is satisfied and completed when you are ready to ride when the boat arrives, WSF causes a usable boat to arrive in a timely manner, you are permitted to board the boat, and the boat arrives carrying you at its designated destination in a timely manner.
Penalty for Non-Performance: Ah, and here we get to the nub of the issue. While you have been required to post a sort of performance bond when you made your reservation, by being made to promise to pay a no-show fee if you are not ready to ride in a timely manner, WSF is bound by no such obligation. Indeed, as things now stand, WSF suffers no penalty at all for non-performance!
Thus, although a contract is formed between you, the rider, and WSF, the ride provider, that contract is inequitable. In the case of your non-performance, you are penalized. But in the case of WSF’s non-performance, WSF is not penalized.
Contracts are subject to state law, and inequitable contracts are not countenanced. Thus, something must be done, to make the contract equitable.
One way of creating equitability might be to require WSF to pay the stranded rider some very substantial sum in recompense, when WSF cannot provide the agreed-upon ride in a timely manner. Using airline usages as my reference, I suggest a penalty sum equal to twice the cost of the defaulted ride, plus a timely rescheduling of the ride itself.
However, WSF doesn’t really have the resources to pay every disappointed rider an equitable, substantial sum of penalty.
I therefore suggest that the one and only way to make the contract between the ferry rider and WSF into a truly equitable contract is to require that WSF have a replacement ferry on hand, so that WSF’s side of the contract will always be satisfactorily performed.
This shifts the burden properly from WSF to the state legislature, the latter already having promised to make the ferry service to the San Juans “an extension of the state highway system,” and, thus, presumably as reliable and regularly accessible as any macadam-paved highway in the state.
I look forward to the legislature doing the right thing, and instantly funding the construction of a stand-by ferry, for use on the San Juan routes.
Get with it, guys!
Nice idea, Steve. Don’t hold your breath, though.
s
Yes and no, Steve. That is, in general, the broad outline of how contracts work. However, the actual contract in a given exchange governs that exchange. The fine print on the ferry reservations website gives WSF an out in case of service disruptions, awful weather, etc. We all expressly agree to WSF’s terms & conditions whenever we make a reservation. It’s a separate and distinct click in the reservation process. We don’t get to negotiate the terms of the contract — and never did — but that doesn’t make the contract invalid. Having paid for a ticket doesn’t guarantee you a ride on the boat either, if the boat breaks.
Thank you Moana for further defining the “contract”.
Steve; after many, many years working with WSF on service to the Islands, I can assure you that the last thing we should ever do is get too pushy or demanding of them. As a point of information, the fare-box recovery for the San Juan route is under 50%, ie, we are paying less than 1/2 of the cost of providing the service. Bainbridge, Edmonds, and Mukilteo all recover over 100% which means that they are subsidizing us. WSF could insist that we pay likewise in which case our fares would double OR our service would be cut by 50%.
It is not even useful to discuss issues like this in jest because we, here, don’t want anyone to actually think about alternatives.
It must be Halloween season; you scared the s___ out of me !!
I guess I have to remind you all: Our highways are also subsidized, supposedly by the gasoline tax.
The WSF system was promised to be “an extension of the highway system.” Thus, it is right and proper that our ferries be subsidized by other sources of revenue.
Oh, where is the Black Ball Line, now that we need it?
(Nudge, nudge. Wink, wink.)
Steve, If there is a multi car accident and I5 is shut down ???????
Whatever you are smoking, you are not sharing.
Steve,
Your Example: “Using airline usages as my reference, I suggest a penalty sum equal to twice the cost of the defaulted ride, plus a timely rescheduling of the ride itself.” I’m pretty sure that I’ve never received “twice the cost” of my airline ticket when they have cancelled/rescheduled my flight. Now that’s something I’d like to see.
You’ve missed your calling Steve…