STATE OF MAINE 3 ‘“SUPERIOR COURT
CUMBERLAND, ss. ‘¢SCIVIL ACTION ~ “DOCKET NO. CY-03-500 COB 2b Dy, SpE ODN ey 790" HERBERT GINN re Plaintiff v. ORDER ON DEFENDANT'S MOTION TO DISMISS
MAY £2 2004
OVERSEAS ADVENTURE TRAVEL Defendant.
BEFORE THE COURT
Before the court is Defendant's Motion to Dismiss for lack of jurisdiction
pursuant to M. R. Civ. P. 12. FACTUAL BACKGROUND
On or about February 2, 2003, Plaintiff contracted with Grand Circle LLC d/b/a Overseas Adventure Travel (“OAT”) to purchase a trip for himself and his wife from OAT. The trip Plaintiff purchased had a departure date of June 11, 2003. When he booked the trip, Plaintiff was offered the option of purchasing Trip Mate Insurance Company’s Travel Protection Plan through OAT, which provides a full refund in the event a trip is cancelled for medical or select other reasons. Plaintiff declined this offer. On or about June 9, 2003, due to a medical emergency, Plaintiff cancelled his trip. At that time, Plaintiff requested that OAT change the reservations so that his son-in-law and grandson could take the trip in place of Plaintiff and his wife. OAT denied his request and Plaintiff became subject to a 100% cancellation fee because he cancelled his trip only two days prior to departure.
On September 15, 2003, Plaintiff filed a three-count complaint against OAT. In Count I, Plaintiff alleges that OAT’s refund policy is illegal and unenforceable and
requests that the court declare it as such. He also requests that the court award damages in the amount he paid for his trip, as well as such other relief as the court deems just and appropriate. In Count Il, Plaintiff claims that OAT violated Maine’s Unfair Trade Practices Act (“UTPA”) and requests that the court declare OAT in violation of the Act. In addition, Plaintiff requests that the court award Plaintiff restitution in the amount of payment made to Defendant for Plaintiff's cancelled trip, award Plaintiff reasonable costs and attorneys fees pursuant to the Act, and award such other relief as the court deems just and appropriate. In Count III, Plaintiff makes a
Quantum Meruit claim and requests that the court grant judgment in his favor, award damages, and award such other relief as the court deems just and appropriate.
On October 14, 2003, OAT moved to dismiss Plaintiff's Complaint based on a forum selection and choice of law clause within a “General Terms and Conditions” agreement included in the catalog that Defendant allegedly used to book his trip. Defendant claims that because these terms and conditions govern the contractual relationship between the parties, this court lacks jurisdiction under M. R. Civ. P. 12. The clause reads, in pertinent part:
“This relationship shall be governed by the laws of the Commonwealth of
Massachusetts. Any claims against OAT must be brought in the Courts of
the Commonwealth of Massachusetts, to the exclusion of the Courts of
any other state and country...”
(Pedersen Aff. Ex. A.)
DISCUSSION Plaintiff claims that the clause cited by Defendant is not part of a binding contract between the parties because the “General Terms and Conditions” agreement in the OAT’s catalog constitutes an invitation to make an offer, rather than an offer that binds OAT upon acceptance. The court disagrees and finds that the forum selection and
applicable law clause provisions are part of a binding contract between the parties. Although catalog advertisements are not ordinarily intended or understood as offers to
sell, where advertisements inclu
de “language of commitment” or “some invitation to
take action without further communication,” they may be deemed offers. Restatement
of the Law, Second, Contracts,
Surplus Store, 86 N. W. 2d 689
definite, and explicit, and left no
Zanakis-Pico v. Cutter Dodge
§ 26 (1981); compare Lefkowitz v. Great Minneapolis
(1957) (holding that an advertisement that was clear, thing open for negotiation constituted an offer) with
_ ine, 47 P.3d 1222 (Haw. 2002) (holding that an
_ advertisement conditioned on “a
Here, Plaintiff booked O
entitled, “The Best of OAT 2003.”
AT’s Machu Picchu & Galapagos tour from a catalog
See Pederson Aff. | 4. The advertisement for the trip
includes both language of commitment and an invitation to take action without further
communication. The advertisem
ent states:
The easiest way to reserve any Overseas Adventure Travel Program is to charge your deposit by phone. . . By booking a trip, you agree to be
bound by these Terms and Conditions... A deposit of $300 per person is
required to secure your re
servation... All OAT trips and their extensions
are limited to no more than 16 passengers...
(Pedersen Aff. Ex. A at 1-2.)
While OAT’s offer does contain a clause that reserves OAT’s right to decline to
accept or retain any person as a
member of the tour, see id. at 2, this clause is listed
under the heading, “RESPONSIBILITY” and, read in the context in which it is written,!
does not make the entire contract illusory. See McCarthy v. US|. Corp., 678 A.2d 48,
52 (Me. 1996) (holding “a contract should be construed viewing it as a whole”).
In addition, the forum sel
ection clause in the parties’ agreement is enforceable.
The United States Supreme Court has held that although forum selection clauses have
not been historically favored, they are prima facie valid. See Carnival Cruise Lines v.
Shute, 499 U.S. 585, 589 (1991) (citing The Bremen v. Zapata Off-Shore Co., 407 US. 1, 9-
" The clause is included among other c
lauses limiting OAT’s liability. 10 (1972)). An agreement between parties as to the place of action will be given effect
unless it is unfair or unreasonable. Restatement (Second) Conflict of Laws § 80 (1989): 2
see HLC Fin. v. Dave Gould Ford Lincoln Mercury, Inc., CV-03-334 (Me. Super. Ct., Cum. Cty., Sept. 24, 2003) (Cole, J.) In the present case, enforcing the forum selection clause is neither unfair nor
unreasonable. While the forum selection clause may be part of an adhesion contract,3
adhesion contracts are not per se unenforceable. Restatement of the Law, Second,
Contracts, § 208, cmt. a. (1981); See also Alexander v. Anthony Int'l L:P>341 F.3d 256, ~~
265 (3d Cir. 2003); Rosenberg v, Merrill Lynch, Pierce, Fenner & Smith, Inc. 170 F 3d 1,
19 (1st Cir. 1999) (holding that adhesion contracts are generally enforceable); Bull HN
Info. Sys. v. Hutson, 229 F.3d 321, 331 (1st Cir. 2000) (holding that adhesion contracts are enforceable unless they are unconscionable or unfair).
In Carnival, the United States Supreme Court held that the plaintiffs were bound
by the terms of the forum selection clause contained in a non-negotiated preprinted
form. Carnival, 499 U.S. at 587. In that case, the plaintiffs actually purchased their tickets and completed their sale before they actually received notice of the forum selection clause in the mail. Id. The Supreme Court determined that because the plaintiffs could have returned the tickets once they had notice of the forum selection clause, the clause was enforceable. Id.
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STATE OF MAINE 3 ‘“SUPERIOR COURT
CUMBERLAND, ss. ‘¢SCIVIL ACTION ~ “DOCKET NO. CY-03-500 COB 2b Dy, SpE ODN ey 790" HERBERT GINN re Plaintiff v. ORDER ON DEFENDANT'S MOTION TO DISMISS
MAY £2 2004
OVERSEAS ADVENTURE TRAVEL Defendant.
BEFORE THE COURT
Before the court is Defendant's Motion to Dismiss for lack of jurisdiction
pursuant to M. R. Civ. P. 12. FACTUAL BACKGROUND
On or about February 2, 2003, Plaintiff contracted with Grand Circle LLC d/b/a Overseas Adventure Travel (“OAT”) to purchase a trip for himself and his wife from OAT. The trip Plaintiff purchased had a departure date of June 11, 2003. When he booked the trip, Plaintiff was offered the option of purchasing Trip Mate Insurance Company’s Travel Protection Plan through OAT, which provides a full refund in the event a trip is cancelled for medical or select other reasons. Plaintiff declined this offer. On or about June 9, 2003, due to a medical emergency, Plaintiff cancelled his trip. At that time, Plaintiff requested that OAT change the reservations so that his son-in-law and grandson could take the trip in place of Plaintiff and his wife. OAT denied his request and Plaintiff became subject to a 100% cancellation fee because he cancelled his trip only two days prior to departure.
On September 15, 2003, Plaintiff filed a three-count complaint against OAT. In Count I, Plaintiff alleges that OAT’s refund policy is illegal and unenforceable and
requests that the court declare it as such. He also requests that the court award damages in the amount he paid for his trip, as well as such other relief as the court deems just and appropriate. In Count Il, Plaintiff claims that OAT violated Maine’s Unfair Trade Practices Act (“UTPA”) and requests that the court declare OAT in violation of the Act. In addition, Plaintiff requests that the court award Plaintiff restitution in the amount of payment made to Defendant for Plaintiff's cancelled trip, award Plaintiff reasonable costs and attorneys fees pursuant to the Act, and award such other relief as the court deems just and appropriate. In Count III, Plaintiff makes a
Quantum Meruit claim and requests that the court grant judgment in his favor, award damages, and award such other relief as the court deems just and appropriate.
On October 14, 2003, OAT moved to dismiss Plaintiff's Complaint based on a forum selection and choice of law clause within a “General Terms and Conditions” agreement included in the catalog that Defendant allegedly used to book his trip. Defendant claims that because these terms and conditions govern the contractual relationship between the parties, this court lacks jurisdiction under M. R. Civ. P. 12. The clause reads, in pertinent part:
“This relationship shall be governed by the laws of the Commonwealth of
Massachusetts. Any claims against OAT must be brought in the Courts of
the Commonwealth of Massachusetts, to the exclusion of the Courts of
any other state and country...”
(Pedersen Aff. Ex. A.)
DISCUSSION Plaintiff claims that the clause cited by Defendant is not part of a binding contract between the parties because the “General Terms and Conditions” agreement in the OAT’s catalog constitutes an invitation to make an offer, rather than an offer that binds OAT upon acceptance. The court disagrees and finds that the forum selection and
applicable law clause provisions are part of a binding contract between the parties. Although catalog advertisements are not ordinarily intended or understood as offers to
sell, where advertisements inclu
de “language of commitment” or “some invitation to
take action without further communication,” they may be deemed offers. Restatement
of the Law, Second, Contracts,
Surplus Store, 86 N. W. 2d 689
definite, and explicit, and left no
Zanakis-Pico v. Cutter Dodge
§ 26 (1981); compare Lefkowitz v. Great Minneapolis
(1957) (holding that an advertisement that was clear, thing open for negotiation constituted an offer) with
_ ine, 47 P.3d 1222 (Haw. 2002) (holding that an
_ advertisement conditioned on “a
Here, Plaintiff booked O
entitled, “The Best of OAT 2003.”
AT’s Machu Picchu & Galapagos tour from a catalog
See Pederson Aff. | 4. The advertisement for the trip
includes both language of commitment and an invitation to take action without further
communication. The advertisem
ent states:
The easiest way to reserve any Overseas Adventure Travel Program is to charge your deposit by phone. . . By booking a trip, you agree to be
bound by these Terms and Conditions... A deposit of $300 per person is
required to secure your re
servation... All OAT trips and their extensions
are limited to no more than 16 passengers...
(Pedersen Aff. Ex. A at 1-2.)
While OAT’s offer does contain a clause that reserves OAT’s right to decline to
accept or retain any person as a
member of the tour, see id. at 2, this clause is listed
under the heading, “RESPONSIBILITY” and, read in the context in which it is written,!
does not make the entire contract illusory. See McCarthy v. US|. Corp., 678 A.2d 48,
52 (Me. 1996) (holding “a contract should be construed viewing it as a whole”).
In addition, the forum sel
ection clause in the parties’ agreement is enforceable.
The United States Supreme Court has held that although forum selection clauses have
not been historically favored, they are prima facie valid. See Carnival Cruise Lines v.
Shute, 499 U.S. 585, 589 (1991) (citing The Bremen v. Zapata Off-Shore Co., 407 US. 1, 9-
" The clause is included among other c
lauses limiting OAT’s liability. 10 (1972)). An agreement between parties as to the place of action will be given effect
unless it is unfair or unreasonable. Restatement (Second) Conflict of Laws § 80 (1989): 2
see HLC Fin. v. Dave Gould Ford Lincoln Mercury, Inc., CV-03-334 (Me. Super. Ct., Cum. Cty., Sept. 24, 2003) (Cole, J.) In the present case, enforcing the forum selection clause is neither unfair nor
unreasonable. While the forum selection clause may be part of an adhesion contract,3
adhesion contracts are not per se unenforceable. Restatement of the Law, Second,
Contracts, § 208, cmt. a. (1981); See also Alexander v. Anthony Int'l L:P>341 F.3d 256, ~~
265 (3d Cir. 2003); Rosenberg v, Merrill Lynch, Pierce, Fenner & Smith, Inc. 170 F 3d 1,
19 (1st Cir. 1999) (holding that adhesion contracts are generally enforceable); Bull HN
Info. Sys. v. Hutson, 229 F.3d 321, 331 (1st Cir. 2000) (holding that adhesion contracts are enforceable unless they are unconscionable or unfair).
In Carnival, the United States Supreme Court held that the plaintiffs were bound
by the terms of the forum selection clause contained in a non-negotiated preprinted
form. Carnival, 499 U.S. at 587. In that case, the plaintiffs actually purchased their tickets and completed their sale before they actually received notice of the forum selection clause in the mail. Id. The Supreme Court determined that because the plaintiffs could have returned the tickets once they had notice of the forum selection clause, the clause was enforceable. Id.
Here, Plaintiff was provided with actual notice of the terms of the agreement
before he accepted OAT’s offer. See Pederson Aff. Ex. A [4 3-4 (stating that since
* When interpreting choice of law provisions, the Law Court has repeatedly relied on the guidelines set forth in the Restatement (Second) Conflict of Laws. See e.g., Schroeder v. Rynel, Ltd., 1998 ME 259, [ 8, 720 A.2d 1164, 1166 (applying Restatement section 187(2); Harbor Funding Corp. v. Kavanagh, 666 A.2d 498, 500 (Me. 1995) (applying Restatement section 229); Collins v. Trius, Inc., 663 A.2d 570, 572-73 (Me. 1995) (applying Restatement sections 145 and 146); Baybutt Constr. Corp. v. Commercial Union Ins. Co. 455 A.2d 914, 918 (Me. 1983) (applying Restatement section 188). Accordingly, the court finds it appropriate to rely on the Restatement in its determination of a forum selection provision.
October 9, 2002, Plaintiff has received 29 catalogs from OAT, that every catalog mailed by OAT contains OAT’s General Terms and Conditions, and that Plaintiff booked his tour from an OAT catalog). Hence, Plaintiff had more of an opportunity than the plaintiffs in Carnival to review the terms of the agreement before agreeing to the forum selection clause.
In addition, the forum selection clause is reasonable and fair for several other
reasons. First, OAT has a special interest in limiting the fora in which it potentially could
be subject to suit. Because OAT contracts with individuals from many locales, it is not
unlikely that a mishap on one of its trips could subject OAT to litigation in several
different fora. See Carnival, 499 U.S. at 593; The Bremen, 407 U.S., at 13, and n. 15. In
addition,
a clause establishing ex ante the forum for dispute resolution has the salutary effect of dispelling any confusion about where suits arising from the contract must be brought and defended, sparing litigants the time and expense of pretrial motions to determine the correct forum and conserving judicial resources that otherwise would be devoted to deciding those motions.
See Carnival, 499 U.S. at 593-94 (citation omitted). Finally, forum selection clauses such
as the one in the parties’ agreement benefit the individuals who purchase trips with OAT in the form of reduced trip packages reflecting the savings OAT enjoys by limiting the fora in which it may be sued. See id. at 594 (citation omitted).
Given that the court determines that any claims against OAT must be brought in the courts of the Commonwealth of Massachusetts, the court does not reach the issue
of whether the applicable law provision is enforceable.
° See Black’s Law Dictionary 318-19 (7th ed. 1999) (defining adhesion contract as a “standard-form contract prepared by one party, to be signed by the party in a weaker position, usu. a consumer who has little choice about the terms”).
The entry is
Defendants’ Motion to Dismiss is GRANTED.
Dated at Portland, Maine this 26th day of February 2004.
Ml
Rdbert E. Crowley
Justice, Superior Court
‘
HERBERT E. GINN - PLAINTIFF SUPERIOR COURT
CUMBERLAND, ss.
Attorney for: HERBERT E. GINN Docket No PORSC-CV-~2003-00500
PETER RUBIN
BERNSTEIN SHUR SAWYER & NELSON
_100 MIDDLE ST DOCKET RECORD PO BOX 9729
PORTLAND ME 04104-5029
Attorney for: HERBERT E. GINN THEODORE SMALL
BERNSTEIN SHUR SAWYER & NELSON 100 MIDDLE ST
PO BOX 9729
vs OVERSEAS ADVENTURE TRAVEL PARTNERS, INC. - DEFENDANT Filing Document: COMPLAINT Minor Case Type: CONTRACT
Filing Date: 09/15/2003
Docket Events:
09/15/2003 FILING DOCUMENT - COMPLAINT FILED ON 09/15/2003 WITH EXHIBIT'S A THRU C.
09/15/2003 Party(s): HERBERT E. GINN ATTORNEY - RETAINED ENTERED ON 09/15/2003 Plaintiff's Attorney: PETER RUBIN
09/15/2003 Party(s): HERBERT E. GINN ATTORNEY - RETAINED ENTERED ON 09/15/2003 Plaintiff's Attorney: THEODORE SMALL
09/15/2003 Party(s): HERBERT E. GINN NOTE - OTHER CASE NOTE ENTERED ON 09/15/2003 PLAINTIFF'S SUMMARY SHEET FILED.
09/29/2003 Party(s): HERBERT E. GINN SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 09/29/2003
09/29/2003 Party(s): HERBERT E. GINN SUMMONS/SERVICE ~ CIVIL SUMMONS SERVED ON 09/22/2003
UPON OVERSEAS ADVENTURE TRAVEL TO DIANE SANTANGELO STAFF ACCOUNTANT AND AGENT AUTHORIZED TO ACCEPT SERVICE. (LLS)
10/15/2003 Party(s): OVERSEAS ADVENTURE TRAVEL PARTNERS, INC. MOTION - MOTION TO DISMISS FILED WITH AFFIDAVIT ON 10/14/2003 WITH SUPPORTING MEMORANDUM OF LAW; AFFIDAVIT OF CHRISTOPHER PEDERSEN WITH EXHIBIT A; REQUEST FOR HEARING; PROPOSED ORDER AND CERTIFICATE OF SERVICE. DB
11/04/2003 Party(s): HERBERT E. GINN OTHER FILING ~ OPPOSING MEMORANDUM FILED ON 11/04/2003 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO DISMISS WITH EXHIBITS A AND B AND 1 AND 2.
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