Casavant v. Norwegian Cruise Line, Ltd., No. 04-P-47.

• Decision Date: 30 June 2005
• Docket Number: No. 04-P-47.
• Citation: 63 Mass. App. Ct. 785,829 N.E.2d 1171
• Parties: Mark CASAVANT & another<SMALL><SUP>1</SUP></SMALL> v. NORWEGIAN CRUISE LINE, LTD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

829 N.E.2d 1171

63 Mass. App. Ct. 785

Mark CASAVANT & another¹ v. NORWEGIAN CRUISE LINE, LTD.

No. 04-P-47.

Appeals Court of Massachusetts, Worcester.

Argued September 9, 2004.

Decided June 30, 2005.

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John D. Deacon, Jr., for the plaintiffs.

Barbara P. Lazaris, Boston, for the defendant.

Present: LAURENCE, BROWN, & BERRY, JJ.

BERRY, J.

The plaintiffs, Mark and Tara Casavant, appeal from the dismissal of their complaint against the defendant, Norwegian Cruise Line, Ltd. (Norwegian), which sought to recover payment for a cruise scheduled to depart from Boston on September 16, 2001. In the aftermath of the September 11, 2001, terrorist hijacking of airplanes that originated from Boston's Logan Airport and smashed into and destroyed the twin towers at the World Trade Center in New York City, killing nearly 3,000 people, the Casavants were fearful of going on the cruise,² which was to embark from Boston Harbor.

1. Background. According to the verified complaint, in September, 2001, approximately a week after receiving the ticketing contract, the Casavants communicated with Norwegian "to inform [Norwegian] that they were unwilling to proceed with the September 16 voyage, and to request rescheduling of their cruise to a later date." Three additional such requests were transmitted by the Casavants. All were denied by Norwegian. The Casavants then followed with a letter dated September 17, 2001, in which they reiterated their trepidations.

"The fact that Massport has responsibility for security at the Black Falcon Pier and Logan Airport in Boston contributed to our trepidation. After all, this was the place where two of the hijacked planes originated with sixteen terrorists aboard. As events continued to unfold it became apparent that security had been lax for some time. It also became evident that Boston was identified by the terrorists as a prime target. This became more clear with the bomb scare in Boston Harbor on Sunday September 16, 2001."

Norwegian responded by letter dated October 11, 2001, refusing "to honor your request for a refund or credit" and taking the position that passengers should obtain travel insurance "to cover unforseen circumstances."

The Casavants commenced this litigation. In addition to its answer and counterclaim,³ Norwegian also filed a motion to dismiss the complaint based on a forum selection clause set forth in the ticketing contract, which required that litigation be filed in Florida. Judgment entered dismissing the complaint based on this forum selection clause.

The record reflects that Norwegian had not provided information concerning the forum selection clause — or for that matter, the contractual terms and conditions, including limitations on Norwegian's liability — until close to one year after the original booking, two months after full payment of the $2,017.50 cruise price, and approximately thirteen days before the sail date.⁴ The first time the purported contractual terms were forwarded to the Casavants was in a document entitled "passenger ticket contract," which document was received by the Casavants in September, 2001. The contractual terms are set forth in two pages of fine print in the ticketing document.⁵ A box on the first page states that: "Acceptance of this Passenger Ticket Contract by Passenger shall constitute the agreement of Passenger to these Terms and Conditions."⁶ The forum selection clause appears in par. 28 on the second page of the ticketing contract.⁷

Because the manner and means of the delivery of the terms of the contract for passage did not fairly allow the Casavants "the option of rejecting the contract with impunity," Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991), and because, in the limited time frame allotted, the Casavants did not accept the ticket as a binding contract, under controlling Federal maritime law and Massachusetts contractual law, the Florida-dictated forum selection clause is not enforceable. Suit may therefore proceed in the Massachusetts courts. Accordingly, we reverse the judgment.

2. Procedural error in the allowance of Norwegian's motion. Apart from the substantive error of law concerning whether there existed a binding contract so that the forum selection clause was operative — an issue we address in part 4, infra — there was also a fundamental error in the Superior Court's judgment dismissing the complaint: that is, the allowance of judgment without providing the Casavants an opportunity to respond to Norwegian's motion. The procedural background underlying this error is as follows.

On November 18, 2002, citing the forum selection clause, Norwegian served upon the Casavants' counsel a motion seeking dismissal of the Massachusetts action, accompanied by the affidavit of one Jane E. Kilgour, the manager of Norwegian's passenger and crew claims department. The motion was a "speaking" motion, also serving as a memorandum of law and setting forth legal argument, case law citations, and the reasons why Norwegian contended that judgment should enter enforcing the forum selection clause, based on the averments in the Kilgour affidavit.

At the outset, we note that such a motion, predicated upon enforcement of a forum selection clause that would have placed venue exclusively in Florida, in legal effect seeks not a venue change to such other forum. Rather, such a motion is, in legal effect, a motion to dismiss for failure to state a claim assertable within the State of filing based on contractual limitations allegedly agreed to by the parties. Accordingly, such a motion is properly pleaded under Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974). This is consistent with Federal practice wherein Fed.R.Civ.P. 12(b)(6) is the operative procedural rule for dismissal motions predicated on forum selection clauses. See, e.g., LFC Lessors, Inc. v. Pacific Sewer Maintenance Corp., 739 F.2d 4, 6-7 (1st Cir.1984) (motion to dismiss based on forum selection clause was not one predicated upon jurisdiction or venue, but instead sought to enforce contractual stipulation; therefore, motion should have been brought under Rule 12[b][6], rather than under Rules 12[b][1] and 12 [b][3]). Accord Doe v. Seacamp Assn., 276 F.Supp.2d 222, 224 n. 2 (D.Mass.2003).

Motion practice under our Massachusetts rules of civil procedure tracks the Federal rules. Rollins Envtl. Servs., Inc. v. Superior Ct., 368 Mass. 174, 179-180, 330 N.E.2d 814 (1975). In addition, the Supreme Judicial Court has adopted the Federal approach in judicial review of forum selection clauses, as "involv[ing] neither venue nor jurisdiction in the traditional sense." Jacobson v. Mailboxes Etc. U.S.A., Inc., 419 Mass. 572, 576 n. 6, 646 N.E.2d 741 (1995). For these reasons, we believe that, in accord with Federal procedural practice and our State motion practice, Mass.R.Civ.P. 12(b)(6)⁸ governs when a party seeks to enforce a forum selection clause. This is particularly apt in cases involving forum selection clauses subject to Federal maritime law because, as shall be discussed infra, Federal maritime law controls with respect to resolution of legal issues for which there are governing Federal law pronouncements.

Although Mass.R.Civ.P. 12(b)(6) was the pertinent procedural mechanism in this case, Norwegian's motion went beyond the confines of that rule. Given Norwegian's extra-complaint submissions, the dismissal motion should have been treated as a motion for summary judgment. See note 10, infra. In timely response thereto, on December 6, 2002, the Casavants served an opposition and a cross motion for summary judgment. This is consistent with the twenty-one day time frame set forth in Superior Court Rule 9A(a)(2)(B). However, on December 3, 2002, three days before receipt of the Casavants' summary judgment opposition, and in violation of Superior Court Rule 9A(b)(2), Norwegian filed its moving papers directly with the Superior Court. To neutralize the error in Norwegian's unilateral filing, the Casavants, in turn, on December 9, mailed their opposition to the Superior Court, which opposition was received in that court on December 10, 2002. However, on December 9, 2002, the day before receipt of the Casavants' opposition and based on the one-sided filings of Norwegian, the Superior Court judge entered an order dismissing the Casavants' complaint.⁹ The dismissal relied on the extra-complaint materials that were incorporated in the Norwegian memorandum of law.

Because the Norwegian motion filing included extra-complaint materials concerning the forum selection clause, and because the judge relied on these supplemental extra-complaint filings in entering dismissal, the ultimate dismissal was, in law, a summary judgment. That being so, the provisions of Mass.R.Civ.P. 56, 365 Mass. 824 (1974), should have been followed. See Mass.R.Civ.P. 12(b).¹⁰ They were not, and this fundamental procedural error undermines the stability of the judgment. See Central Contr. Co. v. Maryland Cas. Co., 367 F.2d 341, 343 (3d Cir.1966) (motion to dismiss based on forum selection clause, which was accompanied by parties' affidavits, would be considered by reviewing court as one for summary judgment). Compare Paredes v. Princess Cruises, Inc., 1 F.Supp.2d 87, 89 (D.Mass.1998) (under Fed.R.Civ.P. 12[b][6], cruise line's motion to dismiss based on shortened limitations period in passenger ticket contract treated as one for summary judgment because judge considered matters outside pleadings).¹¹

We do not rest our decision reversing the judgment on this procedural error alone. For, in addition to the procedural flaw involving the manner in which the Norwegian motion was unilaterally presented to, and ruled on, by the lower court, there was substantive error of law with respect to the lower court's truncated analysis of Federal maritime law and State contractual law as affecting the enforceability of the forum selection clause. Among...