Q: 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].