Hebert v. Vantage Travel Serv., Inc., Case No. 17-cv-10922-DJC

• Decision Date: 12 March 2020
• Docket Number: Case No. 17-cv-10922-DJC
• Citation: 444 F.Supp.3d 233
• Parties: Ronald HEBERT and Aime Denault on behalf of themselves and others similarly situated, Plaintiffs, v. VANTAGE TRAVEL SERVICE, INC. d/b/a Vantage Deluxe World Travel and Vantage Adventures, Defendant.
• Court: U.S. District Court — District of Massachusetts

444 F.Supp.3d 233

Ronald HEBERT and Aime Denault on behalf of themselves and others similarly situated, Plaintiffs,

v.VANTAGE TRAVEL SERVICE, INC. d/b/a Vantage Deluxe World Travel and Vantage Adventures, Defendant.

Case No. 17-cv-10922-DJC

United States District Court, D. Massachusetts.

Filed March 12, 2020

James L. O'Connor, Jr., Nickless & Phillips PC, Fitchburg, MA, for Plaintiff.

Suzanne Dutton, pro se.

Rodney E. Gould, Melissa B. Paradis, Robert C. Mueller, Smith Duggan Buell & Rufo LLP, Lincoln, MA, for Defendant.

MEMORANDUM AND ORDER

CASPER, District Judge

I. Introduction

Plaintiffs Ronald Hebert and Aime Denault, suing on behalf of themselves and a class of others similarly situated (collectively, "Plaintiffs"), filed suit against Defendant Vantage Travel Service, Inc. d/b/a Vantage Deluxe World Travel and Vantage Adventures ("Vantage Travel") alleging breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, breach of common law warranties, negligent misrepresentation and a violation of the Massachusetts Consumer Protection Act, Mass. Gen. L. c. 93A, §§ 2 and 9, related to river cruise travel packages that Plaintiffs purchased from Vantage. D. 1-1. Plaintiffs now move for summary judgment as to liability. D. 100. Vantage Travel moves for summary judgment as to all claims. D. 104. For the reasons stated below, the Court DENIES Plaintiffs' summary judgment motion as to all counts, D. 100, and ALLOWS IN PART and DENIES IN PART Vantage Travel's summary judgment motion. D. 104.

II. Standard of Review

The Court grants summary judgment where there is no genuine dispute as to any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). "A fact is material if it carries with it the potential to affect the outcome of the suit under applicable law." Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000). The movant bears the burden of demonstrating the absence of a genuine issue of material fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000) ; see Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant meets its burden, the non-moving party may not rest on the allegations or denials in its pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), but must come forward with specific admissible facts showing that there is a genuine issue for trial. Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). The Court "view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor." Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).

III. Factual Background

The following facts are drawn from Plaintiffs' statement of material facts, D. 102, Vantage Travel's statement of material facts, D. 106, Plaintiffs' response to Vantage Travel's statement of material facts, D. 118, Vantage Travel's response to Plaintiffs' statement of material facts, D. 121, and other supporting documents and are undisputed unless otherwise noted.

Plaintiffs were participants on river cruise tours they booked through Vantage Travel. D. 106 ¶ 1; D. 118 ¶ 1. Plaintiffs booked either (1) a seventeen-day/sixteen-night "Majestic Rivers of Europe" tour that boarded the MS River Voyager cruise ship in Bonn, Germany on July 8, 2016 or (2) an eleven-day/ten-night "Highlights of the Danube" tour that was scheduled to board the MS River Voyager in Nuremberg, Germany on July 15, 2016. Id.

A. Vantage's River Cruise Advertising

In brochures advertising the tours, Vantage Travel referred to the MS River Voyager as "Vantage's" or "our" vessel. D. 106 ¶ 6; D. 118 ¶ 6. Vantage Travel contends that this advertising did not specifically identify "Vantage Travel Service, Inc." as the entity that directly owns the MS River Voyager. D. 106 ¶ 6. Plaintiffs counter that Vantage Travel provided a tour participation agreement ("TPA") to participants that defined "Vantage" as "Vantage Travel Service, Inc. d/b/a Vantage Deluxe World Travel (hereinafter Vantage)." D. 118 ¶ 6. Vantage Travel claims that the MS River Voyager is owned by Vantage Services GmbH and HRL River Voyager GmbH. D. 106 ¶ 7. Vantage Travel advertised the MS River Voyager as a "six-star river vessel" and advertised that passengers would have access to certain amenities on the vessel. D. 102 ¶¶ 14-15; D. 121 ¶¶ 14-15. Vantage Travel also advertised that river cruise participants would "unpack just once" and that participants "would find [themselves] right in the center of town, just a stroll away from major cities." D. 102 ¶ 16; D. 121 ¶ 16.

B. The Tour Participation Agreement

At the time of booking, Vantage Travel gave the TPA that governed the terms of their tour arrangements to Plaintiffs via email or regular mail. D. 106 ¶¶ 3-4; D. 118 ¶¶ 3-4. The TPA was also available via an online portal that passengers used to access information about their trip. D. 106 ¶ 4; D. 118 ¶ 4. The TPA includes a provision (the "Disclaimer Provision") that reads, in relevant part, as follows:

Responsibilities & Liability

* * *

The responsibility of Vantage ... is strictly limited. As a tour operator, Vantage organizes, promotes, and sells tour programs consisting of certain travel services, including surface, air and water transportation, sightseeing excursions, and cruise/hotel accommodations, that Vantage purchases or reserves from various suppliers (collectively, "Suppliers"). Vantage does not own or operate any of these Suppliers. The Suppliers providing travel services for Vantage's tour programs are independent contractors and are not agents or employees of Vantage. As such, Vantage is not responsible for direct, indirect, consequential, or incidental damage, injury, loss, accident, delay, or irregularity of any kind occasioned by reason of any act or omission beyond its control, including, without limitation, any negligent or willful act or failure to act of, or breach of contract by, any Supplier or any other third party.

* * *

Without limiting the foregoing, Vantage is not responsible for any losses or expenses due to delays or changes in schedules, overbooking or downgrading of accommodations, defaults by any third parties, including Suppliers, mechanical or other failure of airplanes or other means of transportation, or the failure of any transportation mechanism to arrive or depart on time. Vantage is not responsible for acts of God or force majeure events, sanitation problems, lack of medical care, sickness, weather conditions, strikes and other labor activities, acts of terrorism, acts of war ... quarantines, embargoes, blockades, criminal activity, or other act of event beyond the direct control of Vantage.

We reserve the right to modify tour itineraries and substitute hotels and accommodations without liability to Vantage. Included features may not be available for all departures. If a vessel is not able to complete the scheduled itinerary due to low water, high water, mechanical breakdown, or other reason, we reserve the right to modify the itinerary, which right shall include the use of hotels and motor coaches where necessary.

D. 123 ¶ 6; D. 107-2 at 16. According to Vantage Travel, the TPA "is a document that's issued to every single passenger after they book on one of our trips. It's sent out to them outlining the terms and conditions ... cancellation fees, responsibilities, all of the components." D. 102 ¶ 9; D. 121 at 16. Plaintiffs do not dispute that they received the TPA. D. 106 ¶ 5; D. 118 ¶ 5.

C. The MS River Voyager Suffers Mechanical Failure

On or about July 14, 2016, approximately one week into the "Majestic Rivers of Europe" cruise, the MS River Voyager suffered a mechanical failure while it was docked near Kitzingen, Germany. D. 106 ¶ 9; D. 118 ¶ 9. The mechanical failure rendered the MS River Voyager unable to carry passengers for five days while repairs were being made. D. 102 ¶ 20; D. 121 ¶ 20. Vantage Travel claims that a malfunctioning bow thruster engine caused the mechanical failure following improper repairs by an engineer. D. 106 ¶¶ 10-11. Plaintiffs dispute the cause of the mechanical failure in the absence of expert testimony. D. 118 ¶¶ 10-11. Vantage Travel maintains that an independent third-party ship management company, River Advice AG, was contracted to provide the crew for the MS River Voyager , including engineers who would have undertaken repairs. D. 106 ¶¶ 14-16. Plaintiffs also dispute this fact, arguing that Vantage Travel has failed to produce a contract with River Advice AG. D. 118 ¶ 14.

D. Changes to the River Cruises Booked by Plaintiffs

During the five days that repairs were being made, tour participants remained on the MS River Voyager docked in Kitzingen overnight. D. 102 ¶ 20; D. 121 ¶ 20. Instead of boarding the MS River Voyager in Nuremberg as originally planned, participants on the "Highlights of the Danube" cruise met the vessel where it was docked. D. 106 ¶ 18, D. 118 ¶ 18. Instead of the planned cruise, participants of both tours were transported by bus to sightseeing and cultural attractions. Id. Vantage Travel claims that all originally scheduled sightseeing and cultural attractions were visited except for a planned organ concert. D. 121 ¶¶ 28-36. Plaintiffs, however, dispute this position, claiming that they did not visit many of the planned sights or that the visits were much shorter than originally planned. D. 118 ¶ 19, D. 102 ¶¶ 28-36.

While the MS River Voyager remained in Kitzingen for repairs, Vantage Travel bused Plaintiffs to Vienna, Austria. D. 102 ¶ 33; D. 121 ¶ 33. The bus ride took approximately seven hours. Id. While in Austria, Plaintiffs stayed in standard rooms at the Hilton Vienna hotel for approximately five days. D. 102 ¶¶ 33, 38; D. 121 ¶ 33, 38. At the hotel in Vienna, Plaintiffs were provided a cafeteria style buffet of leftover food. Id. Plain...