Theres hope for refund on canceled cruise: Travel Weekly

Mark PestronkQ: Our agency sold an expensive cruise to a young couple 30 days before departure. The couple paid in full by check. Ten days later, the couple decided that the cruise was really too expensive and tried to cancel. The cruise line naturally refuses to refund more than the 50% called for by the cruise contract. Can the couple get a full refund by claiming that they never agreed to the penalties?

 

A: Until recently, I would have confidently answered that the couple had no chance of getting a full refund. The courts have usually held that the terms and conditions on the cruise ticket bind the consumer, even if the consumer is unaware of the terms and conditions, as long as the consumer has a chance to read them.

For example, in the 1991 case of Carnival Cruise Lines Inc. v. Shute, the U.S. Supreme Court held that the cruise contract is valid if it is sent to the passenger in time for review and if the cruise line gives the passenger the option of rejecting the contract with impunity after reviewing it.

In other words, the Supreme Court held that you are bound if you get the contract in advance of travel and do not then demand a full refund. The Supreme Courts decision really means that cruise passengers, like airline passengers as well as Web site and software users, are deemed to accept contracts merely by silence.

I have never thought that the Shute decision was fair, just as I have never really liked the idea that I was bound to Web site terms and conditions that I have never read. I longed for a case that clearly and cogently held that silence does not equal consent.

On June 30, the Massachusetts Court of Appeals issued an excellent decision in the case of Casavant v. Norwegian Cruise Line Ltd. (No. 04-P-47 (Mass.App. 2005).

You can get a copy at www.pestronk.com/casavant.html. In a nutshell, the court held that if cruise passengers dont get their cruise contracts until a few weeks before departure, say nothing for awhile and then try to back out just before departure, the law will not presume that silence means consent.

The facts in the Casavants case were very compelling. In October 2000, the couple paid a $600 deposit to their travel agency for a Boston-Bermuda cruise departing on Sept. 16, 2001. They made their $1,500 final payment in July 2001 but did not receive their tickets until early September.

A few days after 9/11, they tried to cancel because they were afraid to travel. Although the cruise line claimed in court that its policy was to give full refunds, somehow the Casavants wound up in court.

The court held that it would be wrong to presume that the Casavants agreed to the cancellation penalties just because they did nothing for about 10 days in early September. As a general rule, silence in response to an offer to enter into a contract does not constitute acceptance of the offer.

Ideally, courts in every state should follow this fair and logical ruling. To protect yourself, you need to make sure your clients sign a form indicating that they agree to the cruise lines terms.

Otherwise, you might lose your commission if the clients back out with impunity.

Mark Pestronk is a Fairfax, Va.-based attorney specializing in travel law. He answers your questions in the TravelWeekly.com Legal Ease forum. To contact Pestronk directly, e-mail him at [email protected].

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