Interesting Article in Boston Herald about NCL Court Case

[fiftyguy]

I thought some CC members might find this interesting.

http://www.bostonherald.com/news/regional/view.bg?articleid=1363151&srvc=rss

[gkny]

That was a very interesting article. Thank you.

[negn]

Think we all know you don't get refund for backing out 2 weeks before a cruise. Thought it was plainly written. Guess according to court was not.

[terracool]

It is really odd to say that NCL would refund if the pax objected to a contract provision but not for the actual loss from missing a cruise. The article basically says that the couple could have received a full refund even for cancelling last minute if they had simply said "I object to a provision in the contract". It seems like that sort of policy would make it too easy for people to essentially cancel for any reason just by creating an objection to the contract. Really? Even the day before a cruise? I struggle to understand how NCL would allow such a significant loophole in their cancellation policy.

 

I'm going to google around and see if the full opinion online somewhere. If anyone else has a link to the opinion, could you post it?

 

Thx

 

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[TPEINC1958]

Interesting article. I'll bet this isn't over though.

[Tanless]

Think we all know you don't get refund for backing out 2 weeks before a cruise. Thought it was plainly written. Guess according to court was not.

 

It will be interesting what the "damages" will be. With rulings like this, there won't be a need for insurance anymore.

[terracool]

This is not the NY Supreme Judicial Court decison referenced in the article, but it looks like this is the appellate decsion that was upheld.

 

http://www.socialaw.com/slip.htm?cid=19587&sid=119

 

 

All I can say is ... wow. Really? The policy to refund based on an objection to the contract was not part of NCL's written refund policy provided to customers. It is more of an internal NCL policy. NY law says that NCL could not take payment for the cruise without first providing the customer (the pax) with their full refund policy. The pax got the typical refund policy of most cruise lines, but NCL's internal policy of 100% refund if there is an objection to the contract was not in the written material. Therefore, NCL violated NY law by not having included that particular policy in the refund materials provided before payment.

 

That's sort of a bizarre ruling. The pax backed out of the cruise because of 9/11. They never even claimed that they wanted to back out because of a contract objection.

 

The above poster is right - this can't be the end of it. I can't see how NCL can allow a loophole this big to be generally available. The easiest thing for them to do would be to discontinue the internal policy of allowing full refund if a pax objects to a contract provision.

 

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[sparks1093]

Interesting article. I'll bet this isn't over though.

 

The Massachuestts Supreme Court ruled on a matter of Massachusetts law, where else can it go?

[terracool]

The Massachuestts Supreme Court ruled on a matter of Massachusetts law, where else can it go?

 

Oops. You are right - it was Massachusetts, not NY. I misspoke in my entire post above and the edit button is gone already. :-(((

 

I can't speak for the poster you quoted, but for me, saying that this isn't the end of it means that NCL will do something - probably discontinue the policy - but doesn't necessarily mean "do something" in the legal system. Maybe they will do something onerous for MA pax to offset the effect of the loophole and send a message. Obviously that's too extreme to be realistic, but ... it's too bad that they might have to discontinue what is really a pretty good internal policy because of this one ruling in this one jurisdiction.

 

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[darrengs]

Kind of proves that nobody knows how iron clad a contract is until it is challenged in court.

 

 

Just for the PR following 9/11 I would have thought that NCL would have been more understanding.

[valleyvillage]

I thought some CC members might find this interesting.

http://www.bostonherald.com/news/regional/view.bg?articleid=1363151&srvc=rss

 

...posted in response to the article is hilarious. Cruisers are losers? :eek::D

[smeyer418]

As I have pointed out numerous times, the fact that it is in the contract doesn't mean its enforceable. Notice that the Mass courts refused to accept the choice of law and venue provisions. That isn't discussed in the article.

 

While they do have an appeal to the US Supreme Court, the Supreme Court decides which cases to take and this is not the type of case it normally takes...but you never know. Unless the case was started in small claims court, NCL could appeal on the denial of enforcement of its choice of law provision of the contract BUT there is a factual question of whether they had notice which the SC would never review-well almost never. This SC does seem to favor corporations over individuals and may take the case to help out NCL.

 

 

BTW this seems what we lawyers call a result oriented decision. A decision where the judges want to do one thing even when it violates general rules so they come up with a "reason" to justify what they want to do.

 

BTW the damages are the lost money plus interest until paid plus any special damages required under the Mass Statute as a penalty. Its interesting that they also ordered attorney's fees. As most people know the American rule is that each side bares its own attorneys fees unless a statute provides otherwise. Obviously the statute that makes it a unfair trade practice includes such a provision or the court found that NCL's appeal was frivolous. In any case the attorney's fees will be much more that the damages

[housepeepers]

As I have pointed out numerous times, the fact that it is in the contract doesn't mean its enforceable. Notice that the Mass courts refused to accept the choice of law and venue provisions. That isn't discussed in the article.

 

While they do have an appeal to the US Supreme Court, the Supreme Court decides which cases to take and this is not the type of case it normally takes...but you never know. Unless the case was started in small claims court, NCL could appeal on the denial of enforcement of its choice of law provision of the contract BUT there is a factual question of whether they had notice which the SC would never review-well almost never. This SC does seem to favor corporations over individuals and may take the case to help out NCL.

 

 

 

 

BTW this seems what we lawyers call a result oriented decision. A decision where the judges want to do one thing even when it violates general rules so they come up with a "reason" to justify what they want to do.

 

BTW the damages are the lost money plus interest until paid plus any special damages required under the Mass Statute as a penalty. Its interesting that they also ordered attorney's fees. As most people know the American rule is that each side bares its own attorneys fees unless a statute provides otherwise. Obviously the statute that makes it a unfair trade practice includes such a provision or the court found that NCL's appeal was frivolous. In any case the attorney's fees will be much more that the damages

 

 

Mass Consumer Protection laws are very strict and at least in Real Estate cases( which I realize this case isn't) they usually allow for damages, often triple, plus attorneys' fees. Just my 2 cents worth :)

[Turtles06]

 

While they do have an appeal to the US Supreme Court' date=' the Supreme Court decides which cases to take and this is not the type of case it normally takes...but you never know.

 

[/quote']

 

What is the federal legal or constitutional issue that would give the Sup Ct any jurisdiction over this case? It appears to be a breach of contract case decided by a state court applying state law.

[time2cruise1]

And thus the reason every passenger has to accept the Terms & Conditions online to get their edocs.

[smeyer418]

What is the federal legal or constitutional issue that would give the Sup Ct any jurisdiction over this case? It appears to be a breach of contract case decided by a state court applying state law.

 

 

choice of law and venue....is a federal issue. BTW technically to appeal to the supreme court from a state court decision you don't need a federal issue anyone but the general rule is that they won't hear a case that is decided purely on state law. remember you can get federal jurisdiction over a purely state claim as long as you have diversity of citizenship and the amount in controversy is more than $50,000(it used to be $10,000). In fact if the amount sued was over this threshold you can be sure that NCL would have removed this to the Federal courts anyway. Breach of contract cases decided on state law are heard everyday by Federal courts in the thousands.

 

the supreme court has taken a number of cases on damages that were purely decided on state law and come up with a limitation on damages that helps corporations...

 

ie, punitive damages may not exceed 3 times the compensatory damages...

[njhorseman]

As I have pointed out numerous times, the fact that it is in the contract doesn't mean its enforceable. Notice that the Mass courts refused to accept the choice of law and venue provisions. That isn't discussed in the article.

 

While they do have an appeal to the US Supreme Court, the Supreme Court decides which cases to take and this is not the type of case it normally takes...but you never know. Unless the case was started in small claims court, NCL could appeal on the denial of enforcement of its choice of law provision of the contract BUT there is a factual question of whether they had notice which the SC would never review-well almost never. This SC does seem to favor corporations over individuals and may take the case to help out NCL.

 

 

BTW this seems what we lawyers call a result oriented decision. A decision where the judges want to do one thing even when it violates general rules so they come up with a "reason" to justify what they want to do.

 

BTW the damages are the lost money plus interest until paid plus any special damages required under the Mass Statute as a penalty. Its interesting that they also ordered attorney's fees. As most people know the American rule is that each side bares its own attorneys fees unless a statute provides otherwise. Obviously the statute that makes it a unfair trade practice includes such a provision or the court found that NCL's appeal was frivolous. In any case the attorney's fees will be much more that the damages

 

Remember, for this suit we're talking about the contract as it existed in 2001. I'd be willing to wager that the venue language wasn't as tight then as it is now. As you know, corporations continually tighten their contract provisions in response to unfavorable rulings by the courts. The very restrictive venue and binding arbitration clauses typically seen today in consumer contracts are often of relatively recent origin. I'd like to see what the contract said in 2001.

[smeyer418]

Remember, for this suit we're talking about the contract as it existed in 2001. I'd be willing to wager that the venue language wasn't as tight then as it is now. As you know, corporations continually tighten their contract provisions in response to unfavorable rulings by the courts. The very restrictive venue and binding arbitration clauses typically seen today in consumer contracts are often of relatively recent origin. I'd like to see what the contract said in 2001.

it was exactly the same in 2001 as it is now...and btw NCL used a NY lawyer....like bringing in a Yankee fan before the Fenway crowd...not smart IMO....

[njhorseman]

it was exactly the same in 2001 as it is now...and btw NCL used a NY lawyer....like bringing in a Yankee fan before the Fenway crowd...not smart IMO....

 

Yes...I thought using a NY lawyer wasn't such a good idea. Years ago I was the main witness for an insurance industry rating advisory organization in a homeowners insurance rate hearing being conducted by the Maine insurance regulatory authorities. Well, they sure didn't like us Yankee flatlanders up there, and I literally had to be escorted out a side door of the State House for my own safety. Later that night I was sitting in my hotel room watching my testimony being featured on the 6pm local TV news, followed by some rather vitriolic commentary by some of the local politicians. I understand that no one likes an outsider coming in and telling them why they will have to pay more for something, but these folks really got their backs up about having a New Yorker tell them.

 

Sid...NCL usually revises its Guest Ticket Contract several times a year. Can you really be sure that provision was the same in 2001 as it is now? I'm not saying the intent was different, but was the wording identical? I know we continually revised insurance policies because courts and state insurance regulators would rule that a contract provision didn't mean what we intended it to mean.

[swedish weave]

I hope NCL doesn't have to pay too much in this case !!!!

 

As everyone knows, we all pay for these things in increased rates.

 

Look what the legal decisions have done to the costs of medical care !!!

[Turtles06]

choice of law and venue....is a federal issue.

 

Not in this case, these are state law/contract issues.

 

BTW technically to appeal to the supreme court from a state court decision you don't need a federal issue anyone but the general rule is that they won't hear a case that is decided purely on state law.

 

A federal legal issue is needed. Please see, e.g., Supreme Court Rule 10, which I've cut and pasted in below.

 

remember you can get federal jurisdiction over a purely state claim as long as you have diversity of citizenship and the amount in controversy is more than $50,000(it used to be $10,000). In fact if the amount sued was over this threshold you can be sure that NCL would have removed this to the Federal courts anyway. Breach of contract cases decided on state law are heard everyday by Federal courts in the thousands.

 

But this is NOT a diversity case, so that's a red herring. [bTW, the amount required for diversity jurisdiction is $75K, not $50K. 28 USC Sec. 1332]

 

the supreme court has taken a number of cases on damages that were purely decided on state law and come up with a limitation on damages that helps corporations...

 

ie, punitive damages may not exceed 3 times the compensatory damages..

 

These are cases that raised issues of due process under the U.S. Constitution (jn other words, there was a federal legal issue). The idea, for example, that huge punitive damages untethered to any standard violates the due process rights of the wrongdoer. [i agree with you, though, that the Supreme Court is very pro-corporation]

 

 

Per my second note in red above, here's Supreme Court Rule 10:

 

Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court’s discretion, indicate the character of the reasons the Court considers:

 

(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual

course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power;

(b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;

© a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.

 

http://www.supremecourt.gov/ctrules/2010RulesoftheCourt.pdf

[Medtech2]

So how does the plaintiff find out about an "internal" policy? I would think NCL employees would be barred by their employer from discussing anything like this...and would lose their job at some point for testifying...if not now then someday.

And why is it when my car was hit by a drunk, or my husband and infant son fell through a poorly lit and poorly built city-owned stage we could never find a lawyer willing to take the cases? But someone trips on a sidewalk downtown here and nets much money?

BTW, my daughter was scheduled to go on a trip to Spain with her high school and the teacher cancelled it after 9/11. We were told we would lose the money. I was the only parent who objected (every other parent must have more money than I do) and ended up sending her with a group coming out of San Diego...

[CPT Trips]

Yes...I thought using a NY lawyer wasn't such a good idea. Years ago I was the main witness for an insurance industry rating advisory organization in a homeowners insurance rate hearing being conducted by the Maine insurance regulatory authorities. Well, they sure didn't like us Yankee flatlanders up there, and I literally had to be escorted out a side door of the State House for my own safety. Later that night I was sitting in my hotel room watching my testimony being featured on the 6pm local TV news, followed by some rather vitriolic commentary by some of the local politicians. I understand that no one likes an outsider coming in and telling them why they will have to pay more for something, but these folks really got their backs up about having a New Yorker tell them.

 

Sid...NCL usually revises its Guest Ticket Contract several times a year. Can you really be sure that provision was the same in 2001 as it is now? I'm not saying the intent was different, but was the wording identical? I know we continually revised insurance policies because courts and state insurance regulators would rule that a contract provision didn't mean what we intended it to mean.

 

it was exactly the same in 2001 as it is now...and btw NCL used a NY lawyer....like bringing in a Yankee fan before the Fenway crowd...not smart IMO....

 

The analogy is spot on in this situation . . . :D

[peg013]

And thus the reason every passenger has to accept the Terms & Conditions online to get their edocs.

 

BINGO! You win the prize! They have covered it so now each passenger (or the lead passenger for each cabin) has to state that they read the terms and conditions of the the cruise contract and they spell out certain ones which probably would prevent a suit like this one in the future.

[jingle5616]

And, the case was tried in Mass, not a Miami court.