O Captain! My captain, why are you keeping my deposit?

Tim Clark chartered a fishing excursion to celebrate his son’s upcoming wedding. When inclement weather caused the entire trip to be canceled, he expected his $500 deposit to be quickly returned.

The captain had other ideas.

This case serves as a warning to consumers and business owners alike. A contract can protect the financial interests of both sides of this equation. And the absence of any clear terms can lead to misunderstandings, hard feelings and pecuniary uncertainty.

“After the trip was canceled, we supplied the owner, John Sowerby, with two alternate dates which he informed us did not work for him,” Clark recalled. “Then he returned $250 and said I was lucky to get that back.”

Lucky? Luck shouldn’t have anything to do with whether Clark’s deposit is refunded or not.

I asked Clark to see his contract for this excursion with Caveman Sportfishing.

And therein lies the problem — there was no contract. Nor were any policies about the deposit communicated to Clark prior to the cancellation.

And he didn’t ask.

“I have no contract. Captain Sowerby told me that my canceled check would serve as my confirmation,” Clark told me. “Nowhere on his website does he state deposits are nonrefundable.”

I scoured the website, and there is no mention of what happens to a deposit if a charter is canceled because of bad weather.

The canceled check was perfect as a confirmation of payment of the deposit. But as an explanation of the terms of that deposit, it was a failure.

The lengthy paper trail between Clark and Sowerby shows that initially the captain was on the fence about returning the deposit.

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“Answer these questions in an honest truthful manner so that I believe you at least tried to reschedule and I will give you your money back,” Sowerby wrote. “I just need to know why so many of our customers manage to reschedule and you cannot.”

Sowerby’s terms and conditions for a refund appeared quite fluid.

As the days progressed the emails between these two became more heated.

“Do you get money back at a motel on vacation if the weather is bad?” Sowerby questioned Clark.

Uh, what side of this case was Sowerby arguing? The captain had canceled this charter and it was not available to Clark. If a motel closed for business because of the weather and canceled a guest’s reservation, a refund would certainly be due.

Following this train of thought, Sowerby had just proved Clark’s case.

And then Sowerby’s business model became even fuzzier when he announced his final decision on the subject: There would be no further refund.

What information had the captain relied on to determine that Clark was not eligible for the return of his full deposit? He asked his wife, of course.

“I had asked my wife to decide if you should get your deposit back as I have been fishing every day except today,” Sowerby wrote.

Unfortunately for Clark, Sowerby’s wife vetoed the refund.

I asked Sowerby for an explanation. It took several inquiries, but I finally received a response.

Sowerby told me that he never returns deposits unless the cancellation is because of the mechanical failure of his own boat. Further, he told me that he expected the Clark group to reschedule because every other customer had been able to do so. He found it curious that Clark’s group didn’t even seem interested in rescheduling.

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When I asked to see the terms, policy or a contract that allowed him to keep the full deposit he responded:

We do not use contracts in our charter business. If a charter has to be canceled due to weather, our practice has always been to reschedule for another available date that works for the charter. We have never had a problem with any other charters in this situation in all the years we have been in business.

I have one of the very best reputations on the Jersey Shore and have hundreds, if not thousands, of customers from over the years who swear by how well our charter business is run. That is why I have been in business longer than any other charter service in South Jersey.

I spent so much time going back and forth with Tim Clark and even refunded half of his deposit just to end this thing. Believe me no other charter boat captain would have done that.

Capt John Sowerby

If a company’s rule is not written anywhere and not conveyed to a customer until there is a problem, is it a binding policy?

Most would argue it is not. But Sowerby was unapologetic. He told me no charter companies use any type of contracts.

While that may or may not be true, a quick search of the websites of Sowerby’s charter competitors in Cape May show that most have a “policies” section to address what happens to a deposit in this case. Sowerby’s website does not.

Despite my attempts to appeal to Sowerby’s sense of good customer relations, he stood firm and said that he would not be responding any further — to me or to Clark.

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It is unfortunate that Clark did not pay this deposit with a credit card. If he had, he would have been able to use the strength of the Fair Credit Billing Act to have his credit card company fight this battle for him. With no written policy on Sowerby’s side, it is likely that Clark would have come out the victor.

Ultimately, this case may end up in small claims court where a judge — and not the captain’s wife — will decide if Clark is “lucky” to have received just half of his deposit.

Does Sowerby have a right to keep half of Clark's deposit?

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Michelle Couch-Friedman

Michelle is a consumer advocate, writer and licensed clinical social worker who spends as much time as possible exploring the world with her family. As the managing director of Elliott.org, she leads the advocacy, editorial and production departments. Read more of Michelle's articles here.

  • Altosk

    $250 just bought this lousy “captain” some really bad press. Hope he enjoys the fame!
    He should’ve returned the money when the alternative dates didn’t work.

  • AJPeabody

    It seems to me that Mr. Clark has become a “difficult” customer. I have no idea what his circumstances are that he cannot reschedule the fishing trip. If the original date was in practice the only feasible date for the trip, Mr. Clark should surely inquired what would happen if the weather was impossible, as anytone who goes fishing knows that weather happens. It also looks like no one suggested rescheduling for the next year if the captain’s open days did not coincide with when Mr. Clark could go.

    So, in short, half back is half good for each party and not really satisfactory for either. There is no right or wrong, just compromise. It’s time to let it go.

  • Alan Gore

    We have seen enough trouble with the one-sided contracts that are endemic in the cruise industry. A verbal arrangement like the above is not worth the paper it isn’t written on.

  • Chriscfrn

    If the captain took the man’s money to perform a service and then refuses to provide that service (citing weather), the customer deserves the money back. Period. I don’t see how keeping it is justified.

    The example of a motel closing is a good one. If I paid for a room and the motel closes, I shouldn’t be pressured to find another night to use the room. Refund me the money.

  • The customer is under no obligation to reschedule. They are not being difficult because they want their money back. The services were not provided for the date and time requested. The money needs to be returned.
    The captain should maintain some sort of insureance for this type of scenario. It is the obligation of the captain, not the customer, to cover this type of expense unless it is in a contract.
    When there is no contract then state law becomes the contract.

  • Lee4You

    I was curious about the credit card issue so checked their website and they do accept them which would have been helpful to OP in this case. I am still, routinely, surprised that some people do not get this sort of really basic confirmation (refund/cancelation policy info) in writing when planning to pay out such money.

    This company’s FAQs includes zero info on this matter while at the same time emphasizing: “…our goal is to give you the best experience possible through our experience, expertise, honesty and integrity.” – Hardly exhibiting integrity (in my opinion) by not including such a policy and also relying on someone’s spouse to determine the refund?


  • Mel65

    According to Mr. Clark, he provided two alternative dates neither of which worked for the captain. I’m not sure to what lenghts he should wrap himself around the axle to accommodate the captain’s availability. People choose certain dates for certain events and if the event is unable to occur on that date he should get his money back. I’m not sure how that makes him a difficult customer.

  • Noah Kimmel

    Ordinarily, I might say that deposits are not always refundable…However, with no stated policy, captain imposed cancellation, alternate dates proposed, and no actual cost to captain (not like he could have taken someone else in the rain or spent money on fuel that wasn’t used), this is a clear one for me. Not sure why the captain would want in a word-of-mouth business to be jerk for $250, just seems silly…

  • Annie M

    RUN to small claims court. The captain canceled the cruise. The write tried to reschedule twice and the zvaptain couldn’t do it. I have no doubt that they writer would win in small claims court.

    And a good warning to people NOT to use this boat Captain.

  • Annie M

    How about the Customer not living there? The writer tried to reschedule and the Captain couldn’t. The CAPTAIN canceled the sailing not the Customer. He owes a full refund without any terms and conditions.

  • pauletteb

    Thank you for naming names so that others can avoid falling victim to the whim of the captain’s wife.

  • John McDonald

    Posession is 9/10ths. The purchaser should have asked in advance what would happen if cancelled due to weather

  • John McDonald

    There is no written contract . Caveat emptor

  • John McDonald

    Captain has his money. Maybe he should have paid by credit card?

  • John McDonald

    It was probably dangerous to go out in bad weather

  • John McDonald

    Small claims is not enforceable in most jurisdictions

  • Todd Swearingen

    I actually sat in on a law class many years ago where a student used that very same arguement to a professors question. His response was ” And a rolling stone gathers no moss. Neither of which has any bearing in actual law.”

  • Todd Swearingen

    So if your house is robbed, it’s your fault because you didn’t lock the door? Using a credit card would have been helpful, but it really has no bearing on whether the money is owed to Mr. Clark.

  • Todd Swearingen

    I believe the law places a higher burden on the operator of a business. Even if it doesn’t, the Captain encounters these issues much more often than any single customer. He has a website, it wouldn’t be too difficult to spell out any conditions or policies. Seems like good business sense to do so.

  • John McDonald

    U.s. law is very dodgy.+ you can’t get blood from a stone

  • John McDonald

    Exactly. Lock your doors or it is your fsult if you get robbed. Many law lecturers don’t live in the real world

  • John McDonald

    Theory is not real world

  • joycexyz

    Maybe in anecdotal law, but not in actual law.

  • joycexyz

    Correction: the captain’s WIFE–the real boss.

  • Mark Bergman

    Putting down a deposit without, at a minimum, a written agreement and policies was a major mistake on the part of this consumer. In all likelihood, a small claims judge would rule in favor in favor of the consumer if he lives close enough to make it worth his while. If I was in his shoes, I’d promptly post negative reviews on Yelp!, Trip Advisor, Google and my other on-line sites I could find. However, it does sound as if the matter has already gotten nasty enough that the charter Captain has dug his heels in and will not cooperate. The very fact that the captain cancelled and will not cooperate is a sign that he does not conduct his business in a fir and equitable manner. What if the consumer had planned a charter for a one time vacation and had no alternate dates?

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