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Majestic Rivers of Europe cruise cut short: Is forum selection cause enforceable?

Majestic Rivers of Europe cruise cut short: Is forum selection cause enforceable?

In this week’s travel law article, we examine the case of Hebert v. Vantage Travel Service, Inc., Civil Action No. 17-10922-DJC (D. Mass. 2018) wherein plaintiffs contracted with defendant “for a ‘5 Star Luxury’ river cruise on the MS River Voyager that was set to begin in July 2016 and travel through Austria, Germany and Hungary…Two pf Vantage’s river tours are implicated in this case: the ‘Majestic Rivers of Europe’ tour, scheduled to be a seventeen-day, sixteen-night tour on the MS River Voyager commencing in Bonn, Germany, on July 8, 2016 and the ‘Highlights of the Danube’ tour, an eleven-day, ten-night river tour scheduled top board the MS River Voyager in Nuremberg, Germany, on July 15, 2016. On or about July 14, 2016, however, the Plaintiffs were directed to disembark the MS River Voyager. Vantage alleges-and Plaintiffs dispute- that this disembarkation was due to a mechanical failure on the MS River Voyager at this time. After disembarking, Plaintiff were transported by bus for eight days. Passengers were permitted to board the MS River Voyager again on July 22, 2016, in Budapest, Hungary, for the final night of scheduled cruises. Following the trip, Vantage did not provide refunds to Plaintiffs” [emphasis added].

Terror Targets Update

Trenton, Florida

In Salam, Florida Deputies’ Killer: Armed to the Teeth, but Motive Remains a Mystery, nytimes.com (4/27/2018) it was noted that “Armed with two rifles, a handgun and ‘ample ammunition’, John Hubert Highnote left his home in northern Florida on April 19 ‘with the ability and apparent intent to kill people’…But the Sheriff said that no clear motive has been established as to why Mr. Highnote-a bearded, balding 59-year-old described by the few who knew him as a loner and a recluse-walked into a Chinese restaurant in nearby Trenton, Fla., that day, fatally shot two deputies who were having lunch, and then went out to his car and killed himself”.

Dozens Of Taureg Killed In Mali

In Suspected rebel fighters kill dozens in Mali, travelwirenews (4/29/2018) it was noted that “Suspected rebel fighters in Mali have killed dozens of people belonging to the ethnic Taureg community in two attacks near the country’s border with Niger…motorbike-riding gunmen staged attacks in the remote northeastern villages of Awakassa on Friday and in Anderanboucane, a day earlier”.

Second Wave Of Arab Revolutions

In Second wave of Arab revolutions ‘inevitable’ experts say, travelwirenews (4/29/2018) it was noted that “Eight years after the so-called Arab Spring, the region is facing the prospect of another phase of revolts due to pressing financial, urbanization and unemployment challenges, experts have argued. Several Arad leaders were deposed in the aftermath of the popular 2010 and 2011 uprising, while others’ grip on power was loosened”.

Golden State Killer Arrested

In Fuller & Hauser, Ex-Cop Arrested in Golden State Killer Case: ‘We Found the Needle in the Haystack’, nytimes (4/25/2018) it was noted that “It was a rash of sadistic rapes and murders that spread terror throughout California…The scores of attacks in the 1970s and 1980s went unsolved for more than three decades. But on Wednesday, law enforcement officials said they finally arrested the notorious Golden State Killer in a tidy suburb of Sacramento. Joseph James DeAngelo, 72, who was taken into custody outside his home on Tuesday and charged with six counts of murder, had been living undisturbed a half hour drive from where the 12-year rampage began. He was described as a former police officer…A series of rapes in an old gold mining area east of Sacramento in 1976 were first linked by the authorities for the geographic proximity, the similar description of the rapist…and the peculiar and cruel rituals that he inflicted on his victims. His victims included women home alone and women at home with their children. The suspect went on to rape women with their husbands present and then murder them both. He is also thought to have burglarized more than 120 homes”.

Catch Me If You Can Brio

In Barry, Arango & Oppel, With Taunts and Guile, the Golden State Killer Left a Trail of Horror, nytimes (4/28/2018) it was noted that “Throughout 1977, the terrified residents of Sacramento County wanted to know when their horror movie of an existence world end…At one gathering, in a school cafeteria, a Sacramento sheriff’s detective…gave a brief tutorial about defending oneself against the attacker…But before the few hundred audience members dispersed into the California night, a man questioned how anyone could possibly get away with raping a woman in the presence of her husband, who would do anything in his power to prevent an assault. A few months later, the East Area Rapist targeted that very man and his wife, in one of the more brutal attacks of the dozens her had committed…’The rapist was there at that meeting’. The horrifying moment reflected how the meticulous criminal…taunted his pursuers with catch me if you can brio”.

Death Sentence In India

In Indian man sentenced to death after raping & murdering 6yo girl, travelwirenews (4/29/2018) it was noted that “A man in India has been handed the death penalty after being convicted of raping and murdering a six-year-old girl. It comes days after the country’s cabinet passed an order making rape of girls under 12 punishable by death”.

A Church Is Not A Toilet

In Anger as Fiji tourism ad swaps “church” for “toilet”, travelwirenews (4/26/2018) it was noted that “Tourism Fiji’s mistake caused outrage in the deeply religious Pacific nation. Tourism Fiji has apologized after an advertisement featuring indigenous terms mixed up the words for ‘church’ and ‘toilet’…The advertisement, intended as a primer in the iTaukei (Fijian) language for international visitors, translated ‘vale ni lofu’ as toilet. It actually means house of worship or church”.

Boracay Closed To Tourists

In Philippines closes Boracay to tourists under high security, travelwirenews (4/26/2018) it was noted that “The Philippines shuttered its most famous holiday island Boracay to tourists on Thursday for a six-month clean-up, which the government has imposed with a muscular show of its security forces. Assault-rifle wielding police were placed at entry points to the once-pristine island that has become tainted by heavy commercialization and over development”.

Beware: Toxic Caterpillars In London

In London infested with toxic caterpillar that causes skin rashes & breathing problems, travelwirenews (4/29/2018) it was noted that “London’s urban environment might not seem like the ideal home for nature’s critters. However, a toxic caterpillar has moved into the British capital, and it’s capable of causing skin rashes, eye irritation and breathing issues. Caterpillars of the oak processionary moth (OPM) were seen emerging from eggs in southeast England in mid-April…The biggest infestations have been spotted in the Greater London area. The caterpillars have 62,000 hairs, each of which contains the protein thaumetopoem. That protein can cause skin rashes, sore throat, breathing difficulties and eye problems”.

Stay Away From Cancun, Please

In Killings continue but travel agents keep selling trips to Cancun, travelwirenews (4/27/2018) it was noted that “Canadians travel to Mexico more than any other country except the United States. But many visitors may be unaware of the growing violence in a main city that was once hailed as one of the country’s safest: Cancun. This week, five people were found dead near the public prosecutor’s office…bringing the death toll by violence in the beach city to more than 100 since the beginning of the year…Drug cartels are operating in the region more openly. While tourists have not been the targets of violence so far, killings are starting to take place closer to destinations popular with visitors”.

What! Me Worry About Mexican Violence?

In Glusac, Despite Violence, Tourism Is Strong in Mexican Resort Areas, nytimes (4/27/2018) it was noted that “Travel operators bill Cancun and the adjoining Riviera Maya on Mexico’s Caribbean coast as carefree beach escapes with something for everyone from spring break partyers to families. But a wave of violence, linked to rival drug cartels, threatens travel in the region like a storm hovering on the horizon. The local news site Noticaribe reported 14 murders in Cancun over a 36-hour period in early April…Gun deaths have also occurred in Playa del Carmen, the biggest town on the Riviera Maya, about 40 miles south of Cancun”.

Train Crash In India

In 12 children killed as train crashes into school van in India, travelwirenews (4/26/2018) it was noted that “Twelve children were killed when a train crashed into a school van in northern India…The driver was also killed…An additional twelve children were injured and taken to a hospital in Kushinager, Uttar Pradesh state…Accidents are common on India’s railroad network, where underfunding has led to dangerous intersections and unmanned crossings”.

Trump Tower In Baku On Fire

In Kramer, Former Trump Tower in Azerbaijan, Dogged by Controversy, Is Engulfed by Fire, nytimes (4/28/2018) it was noted that “A fire broke out on Saturday in a high-rise that until recently had been called Trump Tower in Baku, the capital of Azerbaijan, engulfing much of the building in flames by early evening. Footage on social media showed flames shooting out of the windows and smoke billowing from the 33-floor building, which is still under construction and had been labeled ‘Donald Trump’s Worst Deal’ by the New Yorker magazine”.

Goat Yoga, Anyone?

In Wells, This woman’s goat yoga business is bringing in 6 figures, msn (4/25/2018) it was noted that “The secret is out. Goats are not stupid. They’re not mean. They don’t even stink. They’re actually intelligent, friendly and soft. At least that’s the case with the baby goats which jump on the backs of paying customers attending Original Goat Yoga classes in Corvallis, Oregon…People actually pay $35 to do yoga in a barn with goats”.

Burning Man Dies At 70

In Gates, Larry Harvey, The Man Behind Burning Man, Is Dead at 70, nytimes (4/28/2016) it was noted that “Larry Harvey, the guru-like driving force behind the Burning Man, the globally celebrated anti-establishment, anti-consumerist festival…died on Saturday…Burning Man is now a revered weeklong annual event that takes place in the Black Rock Desert in Nevada, north of Reno, but there is no firm consensus on whether it is a spiritual retreat, performance art, a music festival, a construction project or just an excuse to party in the middle of scorching heat and dust storms”.

Oldest Chimpanzee Dies

In Oldest known captive chimpanzee dies, travelwirenews (4/26/2018) it was noted that “The Uganda Wildlife Education Centre (UWEC) today announced the demise of their oldest alpha chimpanzee…’With deep sorrow and grief, UWEC…hereby announces the death of Zakayo, a 54-year old male chimpanzee, who lived at UWEC for 42 years”.

No Autism For Dogs, Please

In Yeginsu, No, Your Dog Can’t Get Autism From a Vaccine, nytimes (4/27/2018) it was noted that “The anti-vaccine movement has come for the pets. A spreading fear of pet vaccines’s side effects has prompted the British Veterinary Association to issue a startling statement this week: Dogs cannot develop autism. The implicit message was that dog owners should keep vaccinating their pets against diseases like distemper and canine hepatitis because any concerns that the animals would develop autism after the injections were unfounded”.

Human Rights Dispute

In ‘Severe democracy flaws’: China releases report on human rights in US, travelwirenews (4/26/2018) “The ‘Human Rights Record of the United States in 2017′ report, released by the information Office of China’s State Council on Tuesday, is a response to the US State Department’s Country Reports on Human Rights Practices. The US review, issued on April 20, labeled the governments of China, Russia, Iran and North Korea as ‘morally reprehensible’ and ‘forces of instability’ that ‘violate human rights of those within their borders on a daily basis’”.

Supercool Cycle Path In Italy

In Supercool cycle path floats over Lake Garda, travelwirenews (4/27/2018) it was noted that “Can a trip around northern Italy’s wonderful Lake Garda get any more spectacular? Yup, just hang a floating cycle path from the craggy cliffs, allowing riders to coast above its crystal Alpine waters. What could soon be Europe’s, if not the world’s most beautiful bike path is being constructed 60 meters (197 feet) above the lake to complete a spellbinding 140-kilometer circular route”.

Avoid Chinese Buses, Please

In Bus passenger slams, stomps on 7yo in disturbing attack, travelwirenews (4/28/2018) it was noted that “CCTV footage shows a 7-year-old boy playfully kicking out at bus passenger Guo Moutian, 21, who suddenly snaps and slams the child to the ground before repeatedly stomping on the stunned youngster’s head…Guo was sentenced to 15 days in jail and received an undisclosed fine”.

Asparagus Frittata, Anyone?

In Tanis, City Kitchen, A Deluxe Asparagus Frittata, Topped With Burrata, nytimes (4/27/2018) it was noted that “For our purposes, let’s say a frittata is a mixture of whisked eggs cooked in a frying pan…A frittata is a perfect light lunch or supper accompanied by a large mixed-green salad…This recipe, however, goes in the direction of more-is-more, topped just before serving with the creamy burrata and drizzled with an herb-laden pesto. Get real burrata, straight from Italy”.

Traveling Abroad On A Bus Safely

In Mohn, 5 Ways to Stay Safe on Bus Trips Abroad, nytimes (4/26/2018) it was noted that “Terrorism, infectious disease and crime are worries for travelers, but we’re all much more likely to be hurt or killed on the world’s roads. Many of us don’t drive abroad-instead we enjoy bus tours, taxis or other private vehicles, but that doesn’t mean you’re at the whim of your driver. Here are some tips to stay safe on the roads when traveling, even when you’re not at the wheel. Motor vehicle collisions are the top killer of healthy U.S. citizens abroad and most traffic deaths worldwide occur in low-to middle income countries, where roads and infrastructure are often in poor condition. Traffic laws, enforcement and driver’s training are often weak in those locales, and vehicles are sometimes old and not maintained. Bus crashes are not tracked globally, but bus travel is high risk for travelers abroad, said Rochelle Sobel, founder of the Association for Safe International Road Travel”. Safety tips include (1) Plan Ahead, (2) Learn About the Local Road Culture, (3) Ask Questions, (4) Avoid Night Travel, (5) Spot Red Flags Before You Depart.

Quail Hunting, Anyone?

In 5 best places for quail hunting in the U.S., travelwirenews (4/27/2018) it was noted that “If you are interested in quail hunting, it is important that you take the time to look into some of the absolute best places to go in the U.S. Quail hunting can be a lot of fun, but you need to know where to go…Alabama…Arizona…California…Colorado… Florida”.

Dolphin Takes Down Paddleboarder

In Dolphin takes down paddleboarder in incredibly well-timed stunt, travelwirenews (4/29/2018) it was noted that “Jaw-dropping footage from Western Australia shows what may be the beginning of a dolphin uprising against humanity. In the video one member of a gang of the mammals unexpectedly launches a full-body assault on an innocent man. Paddleboarder Andrew Hill, 54, was enjoying the surf Friday afternoon when he noticed a pod of dolphins bearing down on him near Gracetown…’[It was a] Fairly legal hip and shoulder I think. And hats off to him, he collected me really well’, he continued. ‘It’s good to see dolphins. Surfers like seeing dolphins, but obviously I’d prefer them to stay a little bit further away than they did yesterday”.

New York City Hotel Resort Fees

In Taylor, New York Hotel Fraud Warning: List of Manhattan Hotels part of an extortion scam, travelwirenews (4/28/2018) it was noted that “New York City has seen an explosion in hotels charging resort fees in 2018. In May 2016, fifteen hotels in the City charged resort fees. In 2017, a whopping 42 hotels in New York City charge scam hotel fees. Today in Aril 2018, 83 New York City hotels charge deceptive and misleading hotel resort fees. This increase has drastic implications for the fair collection of taxes from New York City hotels. Why the concern? The hotels in New York City with resort fees (also known as ‘amenity fees’, ‘urban fees’, ‘facility fees’ or ‘destination fees’) advertise one low price, say $100. In reality, to get the key to his room, a hotel guest will be forced to pay an additional say $35 per day that the hotel considers a resort fee. This allows the hotel to lie about their advertised rate-they can say it is $100 instead of $135 dollars-and it also allows the hotel to cheat the City of New York out of essential taxes. The advertised room rate of $100 is subject to the hotel occupancy tax of 14.75%. Most hotels with resort fees in New York City argue (that) the $35 second rate/resort fee is only subject to the NYC sales tax of 8.875%”.

Travel Law Case Of The Week

In the Hebert case the Court noted that “Vantage alleges that is general practice at the time was ‘to provide all passengers, prior to embarkation, the Passenger Ticket Contract which governed all claims or disputes arising out of the ownership and/or operation of riverboats and cruise ships on tours’”.

Forum Selection Clause

“Vantage has attached this Passenger Ticket Contract (PTC) to its motion (which provides in part) 25. ‘Choice Of Forum. Venue for all disputes arising out of ownership and/or operation of the ship shall lie before the courts of England and Wales situated in London England to the exclusion of the jurisdiction of the courts of any other country. For all other disputes arising under or in respect of this ticket contract, venue shall lie before any court of competent jurisdiction located in (a) Boston, Suffolk County, Commonwealth of Massachusetts, or (b) Miami, Dade County, State of Florida, or © Reno, Washoe County, State of Nevada, to the exclusion of the courts of any other state or country, with the choice given to the party initiating the action’.

The “Vantage Owned Fleet”

“The Plaintiffs deny ever receiving the PTC and provide two affidavits…stating that Vantage did not provide the PTC to them at any time. Vantage also alleges that it did and does not ‘own, operate or control’ the MS River Voyager or is employees. Plaintiffs dispute this allegation, pointing to Vantage’s statements on its website describing the ‘Vantage-owned fleet’ and referring to the MS River Voyager as part of its fleet”.

Discussion

“Vantage has moved to dismiss on the basis that the Plaintiffs’ claims are governed by the PTC with a mandatory forum selection clauses establishing the courts of England and Wales, situated in London, England, as the exclusive forum for these claims….Forum selection clauses ‘should be enforced unless enforcement is shown by the resisting party to be ‘unreasonable’ under the circumstances. Courts will thus enforce forum selection clauses unless the objecting party can show: (1) the clause was the product of ‘fraud or overreaching; (2) ‘enforcement would be unreasonable and unjust’; (3) proceedings ‘in the contractual forum will be so gravely difficult and inconvenient that [the party challenging the clause] will for all practical purposes be deprived of his day in court’; or (4) ‘enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision’”.

Reasonable Communication

“To be deemed reasonable-and, therefore enforceable- courts may consider whether the forum selection clause was ‘both (1) substantively reasonable in its terms and (2) reasonably communicated to the passenger’…A court may refuse to enforce a forum selection clause in a ticket contract as unreasonably communicated where, for instance, passengers received their tickets long after purchase and shortly before embarking on the trip, as such delivery does not provide the passenger with sufficient opportunity to repudiate the contract (citing Casavant v. Norwegian Cruise Line, Ltd., 63 Mass. App. Ct. 785 (2005))…Plaintiffs do not argue that the forum selection clause here is substantively unreasonable, but that they cannot be bound by the forum selection clause in their PTC because ‘Vantage failed to provide Plaintiffs with the PTC which contained the purported forum selection clause’. Plaintiffs note that Vantage does not affirmatively state that it provided the documents to Plaintiffs, arguing only that it is ‘standard business practice’ to do so prior to embarkation”.

Summary Judgment Denied

“The dispute over whether Plaintiffs ever received the PTC is a dispute of material fact warranting denial of summary judgment and Vantage has not satisfied its burden of showing otherwise…For the foregoing reasons the Court denies Vantage’s motion to dismiss, or in the alternative, for summary judgment,
without prejudice”.

The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 42 years including his annually updated law books, Travel Law, Law Journal Press (2018), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2018), Class Actions: The Law of 50 States, Law Journal Press (2018) and over 500 legal articles. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org.

This article may not be reproduced without the permission of Thomas A. Dickerson.

Read many of Justice Dickerson’s articles here.

Read the full article: https://www.eturbonews.com/185916/majestic-rivers-of-europe-cruise-cut-short-is-forum-selection-cause-enforceable

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