Hebert et al v. Vantage Travel Service, Inc.

Filing 147

Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - The Court DENIES Plaintiffs' partial motion for summary judgment as to liability as to all Counts. D. 100. The Court ALLOWS Defendants' motion as to Counts I (breach of contra ct), Count II (breach of the implied covenant of good faith and fair dealing), Count III (unjust enrichment), Count IV (breach of common law warranties) and Count V (negligent misrepresentation). D. 104. The Court further ALLOWS Defendants' mo tion as to Count VII (claims under Chapter 93A) in part, except insofar as it relates to whether Defendants provided all services purchased by Plaintiffs for the purpose of Plaintiffs' claim that Defendants violated 940 C.M.R. § 15.06 and, thus, violated Chapter 93A. The Court also DENIES Plaintiffs' motion to estop Vantage Travel from disclaiming ownership of the MS River Voyager. D. 115.(Hourihan, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
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RONALD HEBERT and
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AIME DENAULT on behalf of
)
themselves and others similarly situated,
)
)
Plaintiffs,
)
)
v.
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)
Case No. 17-cv-10922-DJC
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VANTAGE TRAVEL SERVICE, INC.
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d/b/a VANTAGE DELUXE WORLD
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TRAVEL and VANTAGE ADVENTURES,
)
)
Defendant.
)
)
)
__________________________________________)
MEMORANDUM AND ORDER
CASPER, J.
I.

March 12, 2020

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
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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 (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 (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

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or (2) an eleven-day/ten-night “Highlights of the Danube” tour that was scheduled to board the MS
River Voyager in Nuremburg, 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
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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
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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. Plaintiffs were also required to pay for their
wifi service while staying at the hotel. D. 102 ¶ 38; D. 121 ¶ 38. Once the MS River Voyager was

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repaired, cruise participants re-boarded the vessel in Budapest, Hungary for the final scheduled
evening of the tour, which concluded the following day on July 23, 2016. D. 106 ¶ 20; D. 118
¶ 20. In a report prepared by the tour director of the cruises after they had concluded, the tours
were described as “disastrous.” D. 102 ¶¶ 44, 46; D. 121 (not disputing ¶¶ 44, 46).
E.

Vantage Travel’s Post-Tour Offers to Plaintiffs

As a result of the problems experienced on the tours, Vantage Travel offered Plaintiffs five
hundred dollars per person in travel credits for a future cruise. D. 102 ¶ 42; D. 121 ¶ 42. Vantage
Travel also offered Plaintiffs a free river cruise on the River Seine in either November or December
2016. Id. Although the total number of passengers who accepted the free cruise is disputed by the
parties, it is undisputed that at least fifteen passengers did so. D. 121 ¶ 42; D. 123 at 2. Vantage
Travel did not offer cash refunds to the passengers. D. 102 ¶ 40; D. 121 ¶ 40.
IV.

Procedural History
Plaintiffs instituted this action in Suffolk Superior Court on or about March 7, 2017. D. 1-

3 at 2. Vantage Travel removed the action to this Court on May 19, 2017. D. 1. Vantage Travel
initially moved to dismiss or, in the alternative, for summary judgment. D. 7. Named Plaintiffs
filed a cross-motion to strike portions of a supporting declaration filed by Vantage Travel. D. 14
at 6-7. The Court denied both motions. D. 25. Upon Plaintiffs’ motion, D. 39, the Court certified
the following class on May 1, 2019: “[a]ll persons who purchased from Vantage [Travel] either
the July 2016 ‘Majestic Rivers of Europe’ tour, or the July 2016 ‘Highlights of the Danube River.’”
D. 75 at 6, 15-16 (allowing Plaintiffs’ motion to certify Class 1, but denying same as to Class 2).
Plaintiffs have now moved for summary judgment as to liability. D. 100. Vantage Travel filed a
motion for summary judgment as to all claims. D. 104. In their opposition to Vantage Travel’s
motion, Plaintiffs have also cross-moved to estop Vantage Travel from disclaiming ownership of

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the MS River Voyager. D. 115. The Court heard the parties on the pending motions and took these
matters under advisement. D. 134.
V.

Discussion
Plaintiffs assert claims against Vantage Travel for breach of contract (Count I); breach of

the implied covenant of good faith and fair dealing (Count II); unjust enrichment (Count III);
breach of common law warranties (Count IV); negligent misrepresentation (Count V); and
violations of the Massachusetts Consumer Protection Act (“Chapter 93A”) (Count VII1). D. 1-1
¶¶ 22-46.
A.

Enforceability of the Disclaimer Provision in the TPA

Vantage Travel argues that the Disclaimer Provision of the TPA is an enforceable
disclaimer of its liability for, among other things, losses and expenses resulting from a mechanical
failure. D. 105 at 6. Plaintiffs appear to argue that the TPA is unenforceable because it is an
ambiguous adhesion contract. See D. 111 at 10. Adhesion contracts are “standard form printed
contracts prepared by one party and submitted to the other on a ‘take it or leave it’ basis.”
Cappellini v. Mellon Mortg. Co., 991 F. Supp. 31, 39 (D. Mass. 1997) (quoting Standard Oil Co.
of California v. Perkins, 347 F.2d 379, 383 n.5 (9th Cir. 1965)). As generally applied to all
contracts, including adhesion contracts, “the common-law rules of contract interpretation state that
a court should construe ambiguous language against the interest of the party that drafted it.” Id.
(citing Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52 (1995)) (internal quotation
marks and emphasis omitted).
The Supreme Court, analyzing the enforceability of a forum-selection clause in an adhesion
contract between a cruise provider and passenger, reasoned that a “nonnegotiated” clause was not

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The complaint does not include a Count VI. D. 1-1 at 6-7.
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per se unenforceable and determined that the forum-selection clause was not unreasonable based
on the context of the case. Carnival Cruise Lines v. Shute, 499 U.S. 585, 593-94 (1991). The
First Circuit has similarly held that contracts are not rendered unenforceable simply because they
are adhesion contracts. Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 19 (1st Cir. 2009)
(stating that “[a]dhesion does not imply nullity of a contract”) (quoting Nieves v. Intercontinental
Life Ins. Co. of P.R., 964 F.2d 60, 63 (1st Cir. 1992)). Rather, “[i]f the wording of the contract is
explicit and its language is clear, its terms and conditions are binding on the parties.” Id.
Here, Plaintiffs fail to point to any specific language in the Disclaimer Provision that is
ambiguous. The Disclaimer Provision was included in the TPA under a boldface heading of
“Responsibilities and Liabilities.” D. 107-2 at 16. To the extent that Plaintiffs argue that the TPA
is rendered ambiguous based on the representations on Vantage Travel’s website that “Vantage”
owned and operated the MS River Voyager, Plaintiffs fail to cite to any authority for the proposition
that Vantage Travel’s advertising is incorporated into the TPA as a matter of law.2 As a result, the
terms and conditions of the Disclaimer Provision are enforceable, thus limiting Vantage Travel’s
liability under the TPA pursuant to its terms.
By its terms, the Disclaimer Provision limits Vantage Travel’s liability for acts of third
parties, including negligent acts. D. 107-2 at 1. Vantage Travel points to uncontroverted testimony
that River Advice AG, a third party, provided the engineers responsible for the maintenance of the
vessel and, thus, the mechanical failure that rendered the MS River Voyager immobile. See D. 106
¶¶ 14-18. Plaintiffs contest that River Advice AG is a third party, relying not upon admissible
evidence, but only on their assertion that Vantage Travel has failed to provide a contract evidencing

2

The Court, however, later discusses Plaintiff’s breach of common law warranties claim,
which may rely upon advertisements.
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the relationship between it and River Advice AG. See D. 118 ¶¶ 14-18. Such is an insufficient
basis for opposing summary judgment. Borges, 605 F.3d at 5. Accordingly, on the uncontroverted
record in this regard and applying the language of the Disclaimer Provision, “Vantage is not
responsible for any losses or expenses due to delays or changes in schedules, overbooking or
downgrading of accommodations, . . . including Suppliers, . . . or other act or event beyond the
direct control of Vantage,” D. 107-2 at 16, as to all but one of Plaintiffs’ claims. Even though the
Disclaimer Provision bars Plaintiffs’ claims, excluding the Chapter 93A claim (discussed in further
detail later), the Court will discuss the merits of each of their claims in the interest of completeness.
B.

Breach of Contract (Count I) and the Implied Covenant of Good Faith and
Fair Dealing (Count II)

Plaintiffs argue that Vantage Travel breached its contract because it advertised that its
cruises were luxury experiences with amenities such as “gourmet meals, balconies with river views
in all rooms, private bathrooms, unpack just one [sic], fitness rooms, complimentary ice cream,
free Wi-Fi,” Plaintiffs paid for the cruises and, after the mechanical failure, Vantage Travel failed
to provide the promised amenities. D. 101 at 20. Plaintiffs also argue that Vantage Travel
breached the implied covenant of good faith and fair dealing because it failed to “provide Plaintiffs
with their reasonable expectation of performance” under the contract. D. 101 at 21-22.
A party suing for breach of contract must establish “(1) the existence of the contract, (2)
the plaintiff's willingness to perform or performance, and (3) breach by the defendant; if damages
are sought causation and the amount of damages must also be proved.” Amicas, Inc. v. GMG
Health Sys., 676 F.3d 227, 231 (1st Cir. 2012). Further, “Massachusetts law implies a covenant
of good faith and fair dealing into every contract.” South Shore Hellenic Church, Inc. v. Artech
Church Interiors, Inc., 183 F. Supp. 3d 197, 231 (D. Mass. 2016) (citing FAMM Steel, Inc. v.
Sovereign Bank, 571 F.3d 93, 100 (1st Cir. 2009)). To demonstrate breach of the implied covenant
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of good faith and fair dealing, a plaintiff is not required to show bad faith on the part of the
defendant but, rather, “a lack of good faith” such that the defendant does “not purposefully injure”
plaintiff’s “right to obtain the benefit of the contract.” Id. (citing Uno Restaurants Inc. v. Boston
Kenmore Realty Corp., 805 N.E.2d at 964 n.5) (internal quotation marks omitted).
The parties do not dispute that the TPA was a valid contract governing the relationship
between them. D. 102 ¶¶ 8-10; D. 121. The terms of the contract that Plaintiffs argue Vantage
Travel violated are included in advertisements for the MS River Voyager and are not terms of the
TPA, the contract between the parties. See D. 101 at 20-21. Further, the promises that Plaintiffs
claim were breached all relate to the condition of, and Plaintiffs’ experience on, the vessel, the MS
River Voyager. See D. 101 at 20-21 (citing to advertisements stating that the MS River Voyager
was a “six star” vessel and that its amenities included various luxury features). Plaintiffs have not
alleged, however, that the vessel itself failed to live up to these promises. The uncontroverted
testimony of Named Plaintiff Ronald Hebert was that the MS River Voyager “looked first class”
and that it was “exactly like the brochure.” D. 120-2 at 12-14. Rather, Plaintiffs argue that the
accommodations they received following the mechanical failure, including buses and hotel rooms,
were not “luxury” and did not include the amenities that were advertised to be on the MS River
Voyager. D. 101 at 21. Plaintiffs do not cite, however, to any provisions of the TPA that relate to
the quality of these accommodations. See id.
Even putting aside the portion of the Disclaimer Provision which bars the breach of
contract claim and Plaintiffs’ other non-Chapter 93A claims, other language in the Disclaimer
Provision reserves the right for Vantage Travel to modify the travel plans. Specifically, it provides
that “[Vantage Travel] reserves the right to modify the itinerary, which right shall include the use

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of hotels and motor coaches where necessary.” D. 107-2 at 16. On this undisputed record, that is
what Vantage Travel did here as they were permitted to do under this provision of the TPA.
For the foregoing reasons, the Court allows Vantage Travel’s summary judgment motion
as to Counts I and II and denies Plaintiffs’ motion for summary judgment as to liability for these
counts.
C.

Unjust Enrichment (Count III)

To establish a claim of unjust enrichment, a plaintiff must establish the following elements:
“1) [a] benefit conferred upon the defendant by the plaintiff; 2) [a]n appreciation or knowledge by
the defendant of the benefit[] and 3) [t]he acceptance or retention by the defendant of the benefit
under such circumstances as to make it inequitable (that is, unjust) for the defendant to retain the
benefit without payment of its value.” Brookridge Funding Corp. v. Aquamarine, Inc., 675 F.
Supp. 2d 227, 234-235 (D. Mass 2009). “The benefit must be unjust, a quality that turns on the
reasonable expectations of the parties.”

Id. (quoting Community Builders, Inc. v. Indian

Motorcycle Assocs., 44 Mass. App. Ct. 537, 560 (1998) (emphasis in original)).
Plaintiffs claim that Vantage Travel was unjustly enriched because it retained Plaintiffs’
payments for the river cruises and “failed to deliver . . . the luxury experience that was promised.”
D. 101 at 22. Unjust enrichment, however, is a doctrine of quasi-contract that does not apply
where an actual contract controls the parties’ rights. Shaulis v. Nordstrom, Inc., 865 F.3d 1, 16
(1st Cir. 2017) (stating that “Massachusetts law does not permit litigants to override an express
contract by arguing unjust enrichment”) (internal quotation marks omitted); Verderber v. Perry,
181 F.3d 81 (1st Cir. 1999) (same). This applies even where a plaintiff’s breach of contract claim
is unsuccessful. Shaulis, 865 F.3d at 16 (noting that “[i]t is the availability of a remedy at law, not
the viability of that remedy, that prohibits a claim for unjust enrichment”). Here, the TPA is a

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valid contract that governs the agreement between Plaintiffs and Vantage Travel and as discussed
above, the Disclaimer Provision precludes Vantage Travel’s liability as to this claim where it arises
from actions of third parties and permitted Vantage Travel to provide alternate accommodations
in such circumstances. Accordingly, the Court allows Vantage Travel’s motion for summary
judgment as to Count III and denies Plaintiffs’ partial motion for summary judgment liability as to
this claim.
D.

Breach of Common Law Warranties (Count IV)

Plaintiffs allege that Vantage Travel has breached common law warranties because it
“promised a luxury experience” and did not deliver on that promise. D. 101 at 23. Plaintiffs also
argue that Vantage Travel “expressly promised that it owned and controlled the MS River
Voyager,” which they allege was false. Id. “Under Massachusetts law . . . an express warranty in
a contract is a promise of a particular standard of performance, and it imposes on the warrantor an
obligation to fulfill the promise made.” Sparks v. Fid. Nat’l Title Ins. Co., 294 F.3d 259, 272 (1st
Cir. 2002). Advertisements can be express warranties under Massachusetts law. Hannon v.
Original Gunite Aquatech Pools, 385 Mass. 813, 822 (1982) (stating “[w]e have no doubt that
express warranties can be created by an advertising brochure”) (citing Hawkins Constr. Co. v.
Matthews Co., 190 Neb. 546, 564-565 (1973)). “To establish a breach of express warranty claim
. . . the plaintiff must demonstrate that the express warranty constituted a basis of the bargain
between the seller and the buyer.” Sebago, Inc. v. Beazer East, Inc., 18 F. Supp. 2d 70, 102 (D.
Mass. 1998). “To demonstrate that the express warranty constituted a basis of the bargain, the
plaintiff must demonstrate that the buyer relied on the warranty.” Id. To establish a breach of
warranty claim, a plaintiff, therefore, must “prove that statements or representations made by the

12

seller induced him to purchase the good and that he relied on those statements or representations.”
LePage v. E-One, Inc., 4 F. Supp. 3d 298, 312-313 (D. Mass. 2014).
Plaintiffs have not identified any specific statement in Vantage Travel’s advertising that
they were promising a “luxury experience.” Rather, the advertisements detail the amenities and
benefits of the MS River Voyager. See D. 103-7; 103-9; 103-10. Plaintiffs proffer no evidence
that the amenities on the MS River Voyager did not comply with the statements in the
advertisements. That Plaintiffs were required to disembark from the vessel to travel by bus and
stay in a hotel does not render the advertisements about the amenities aboard the MS River Voyager
untrue and does not support Plaintiffs’ claim that Vantage Travel breached an express warranty as
to the quality of the MS River Voyager. See Chapman v. Bernard’s, 167 F. Supp. 2d 406, 414 (D.
Mass 2001) (dismissing breach of express warranty claim where plaintiff “failed to produce any
evidence of an express warranty regarding the subject [product]”).
Plaintiffs also argue that Vantage Travel expressly warranted that it owned and controlled
the MS River Voyager. Even assuming that any Plaintiff would not have booked the cruise with
Vantage Travel if he/she had known that Vantage Travel did not own the vessel, D. 103-26 at 46, this case is similar to Sparks in that it is unclear how the alleged express warranty of ownership
was the cause of any damage to Plaintiffs. Sparks, 294 F.3d at 272. The First Circuit in Sparks,
discussing express warranties that certain entities owned property when they entered into
agreements with a broker to sell the property, stated that “[i]n effect, the warrantor proposes to
indemnify the warrantee for any damage resulting from a variation between what was promised
and what actually came to pass.” Sparks, 294 F.3d at 272. The court determined that the
defendants were not liable for a breach because the broker could not “prove that any breach of
warranty was the cause of any damage to him.” Id. The same reasoning applies here as Plaintiffs

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have failed to show that the alleged express warranty as to the ownership of the MS River Voyager
caused the harm they experienced. See id. There are no facts in the record indicating that the MS
River Voyager would not have experienced the mechanical failure or that the passengers would
not have been required to take buses to certain sightseeing destinations instead of enjoying the
river cruise if Vantage Travel had been the owner of the vessel. As such (and, for the alternative
reason that the Disclaimer Provision precludes Vantage Travel’s liability as to this claim as
discussed above), the Court allows Vantage Travel’s motion for summary judgment as to Count
IV and denies Plaintiffs’ motion for summary judgment as to liability under Count IV.
E.

Negligent Misrepresentation (Count V)

Plaintiffs also contend that Vantage Travel negligently misrepresented that it was the
owner and operator of the MS River Voyager and made misrepresentations concerning the quality
of the ship. D. 101 at 24. To prove a negligent misrepresentation claim, Plaintiffs must show that
Vantage Travel, “(1) in the course of [its] business, or in a transaction in which [it] had a pecuniary
interest, (2) supplied false information for the guidance of others (3) in their business transactions,
(4) causing and resulting in pecuniary loss to those others (5) by their justifiable reliance on the
information, and that [it] (6) failed to exercise reasonable care or competence in obtaining or
communicating the information.” Elec. Ins. Co. v. Great S. Fin. Corp., No. 14-cv-14172-FDS,
2016 WL 1452338, at *6 (D. Mass. Apr. 13, 2016) (alterations in original) (quoting DeWolfe v.
Hingham Centre, Ltd., 464 Mass. 795, 799-800 (2013)).
The statements that Plaintiffs claim were negligent misrepresentations were made in the
course of Vantage Travel’s business as they were made on the website advertising the cruises to
potential customers. See D. 103-7 (describing the MS River Voyager as one of Vantage’s ships);
D. 103-10 (website page advertising the MS River Voyager as “Vantage’s Deluxe state-of-the-art

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ship”). As previously discussed, the undisputed record indicates that the representations in
Vantage Travel’s advertisements were not false. Vantage Travel contends that “there was no
representation in any of the trip literature that [Vantage Travel] directly owned the MS River
Voyager” but, rather, that the vessel was referred to as “Vantage’s” and that, in fact, the vessel is
owned by “Vantage Services GmbH and HRL River Voyager GmbH,” which are “part of the
Vantage family of companies.” D. 118 ¶¶ 6-7.
Even assuming, however, that these statements were misrepresentations made without the
exercise of reasonable care, as with the warranty claim previously discussed, Plaintiffs have failed
to show that the alleged misrepresentations as to the ownership and operation of the MS River
Voyager caused their loss. “To be considered a proximate cause of a plaintiff's injury, the
representation must be a ‘substantial factor’ in bringing about the harm.” Veilleux v. NBC, 206
F.3d 92, 123-124 (1st Cir. 2000) (quoting Wheeler v. White, 714 A.2d 125, 127-28 (Me. 1998)).
“Moreover, the injury must have been a reasonably foreseeable consequence of the
representation.” Id. Here, even if any Plaintiff had indicated unequivocally that he/she would not
have chosen to travel with Vantage Travel had he/she been aware that Vantage Travel did not own
and operated the MS River Voyager, Plaintiffs have failed to show that ownership was a substantial
factor in bringing about the harm, which resulted from a mechanical failure on the vessel. Further,
there is no indication that the injury suffered would foreseeably result from any confusion as to
the owner of the vessel. As such, Plaintiffs have failed to prove a necessary element of their
negligent misrepresentation claim. See Sparks, 294 F.3d at 272-273 (affirming summary judgment
in favor of defendants where plaintiff failed to prove that an alleged misrepresentation caused his
injury or damages). Accordingly (and, for the alternative reason that the Disclaimer Provision
precludes Vantage Travel’s liability as to this claim as discussed above), the Court allows summary

15

judgment in favor of Vantage Travel as to Count V and denies Plaintiffs’ motion for summary
judgment as to liability on the same count.
F.

Defendants Are Not Estopped From Disclaiming Ownership
of the MS River Voyager

Plaintiffs seek an order estopping Vantage Travel from disclaiming ownership of the MS
River Voyager. D. 115. “Under Massachusetts law, an estoppel claim must assert that (1) a
party made a representation intended to induce reliance on the part of a person to whom the
representation is made; (2) a person acts in reasonable reliance on the representation; and (3) the
party suffers a detriment as a consequence of the act.” Thrivent Fin. ex rel. Lutherans v. Strojny,
882 F. Supp. 2d 260, 269-270 (D. Mass 2012) (internal quotation marks omitted). “[T]he party
asserting the estoppel theory has a heavy burden to prove that all [three] elements are present.”
Greene v. Ablon, 794 F.3d 133, 143 (1st Cir. 2013) (alteration in original).
Plaintiffs allege that Vantage Travel represented in its advertising that it owned and
operated the MS River Voyager and other vessels and that Plaintiffs relied upon this representation
to their detriment. D. 116 at 2-8. As discussed above, Vantage Travel counters that the advertising
at issue did not state that “Vantage Travel Service, Inc.” owned the MS River Voyager and that the
representation that “Vantage” owned the vessel was true because the vessel is owned by an entity
within the “Vantage group of companies.” D. 125 at 3-4. Vantage Travel has further explained
that it represented the ownership of the MS River Voyager as “Vantage” to avoid consumer
confusion. D. 125 at 4 (noting that Vantage Travel’s Rule 30(b)(6) witness testified that
“[d]etailed recitation of the precise legal entities would not add to customer knowledge and could
create confusion”). Plaintiffs have failed to meet their burden to show that Vantage Travel

16

intended to induce reliance on a representation that it, Vantage Travel Service, Inc., owned and
operated the MS River Voyager.3
Further, Plaintiffs have failed to show that they suffered a detriment as a result of the
alleged representation. Plaintiffs argue that the detriment they suffered was that they were “left
on a broken down vessel, thousands of miles from home with little or no information concerning
their status.”

D. 116 at 7.

Plaintiffs have not shown how their reliance upon Vantage’s

representations as to the owner of the MS River Voyager consequently lead to the detriment they
suffered, which occurred as a result of the mechanical failure on the vessel. As a result, Plaintiffs’
motion to estop Vantage Travel from disclaiming ownership of the MS River Voyager is denied.
G.

Plaintiffs’ 93A Claims (Count VII)

Plaintiffs allege that Vantage Travel has violated Chapter 93A, which prohibits “[u]nfair
methods of competition and unfair or deceptive acts or practices in the conduct of any trade or
commerce.” Mass Gen L. c. 93A § 2; D. 101 at 5. Plaintiffs argue both that Vantage Travel
violated certain regulations that constitute per se violations of Chapter 93A and that their actions
were “unfair and deceptive” and, therefore, violated the statute. D. 101 at 8-20. As an initial
matter, Vantage Travel argues that Plaintiffs’ Chapter 93A claims are preempted by the Airline
Deregulation Act, 49 U.S.C. § 41713, et seq. (the “Deregulation Act”). D. 119 at 6-7.

3

Plaintiffs also cite to Resnick v. Vantage Deluxe World Travel, Inc., No. 03-cv-1114
(LAK), 2004 WL 2601548, at *1, 3 (S.D.N.Y. 2004), in which Vantage Travel was estopped from
disclaiming ownership of another vessel. D. 116 at 1. In Resnick, however, the parties agreed that
Vantage Travel be estopped for the purposes of litigation of the issues in that case. Id. That court,
therefore, did not analyze whether Vantage Travel should be estopped as a matter of law, which is
the issue presented here. Id.
17

1.

Preemption

The Deregulation Act states that no state or political subdivision thereof may “enact or
enforce a law, regulation, or other provision having the force and effect of law related to a price,
route, or service of an air carrier that may provide air transportation.” 49 U.S.C. § 41713(b)(1).
The Deregulation Act was enacted “to ensure that the States would not undo federal deregulation
with regulation of their own.” Morales v. TWA, 504 U.S. 374, 378 (1992).
Under the Deregulation Act, an “air carrier” is defined as “a citizen of the United States
undertaking by any means, directly or indirectly, to provide air transportation.” 49 U.S.C. §
40102(a)(2). Vantage Travel claims that it is an “indirect air carrier” because it “is in the business
of booking flight transportation as part of its tour packages” and thus, the Deregulation Act applies
to preempt Plaintiffs’ Chapter 93A claims related to the sale of travel services. D. 119 at 7-8.
Plaintiffs argue that Vantage Travel is not an air carrier, but is a “ticket agent,” which is defined
as “a person (except an air carrier, a foreign air carrier, or an employee of an air carrier or foreign
air carrier) that as a principal or agent sells, offers for sale, negotiates for, or holds itself out as
selling, providing, or arranging for, air transportation.” D. 111 at 2-3 (quoting 49 U.S.C § 40102
(a)(45)). Vantage Travel, as a tour operator that booked air transportation as part of its tour
packages, qualifies as an indirect air carrier under the Airline Deregulation Act.4 See ABC
Charters, Inc. v. Bronson, 591 F. Supp. 2d 1272, 1299 (S. D. Fl. 2008) (collecting cases and stating

4

As an alternative basis for finding that they are an indirect air carrier, Vantage Travel
sought to file Department of Transportation Consent Orders (“Consent Orders”) as supplemental
authorities. D. 127. Plaintiffs opposed the motion, D. 129, and Vantage Travel moved for leave
to file a reply to Plaintiff’s opposition, D. 130. The Court allows the motions, D. 127; D. 130,
nunc pro tunc. The Court considered the motions and briefing but did not rely upon the Consent
Orders in agreeing with Vantage Travel, for the reasons stated above, that it is an indirect air carrier
under the Deregulation Act.
18

that “[t]ravel agents, tour operations, shipping and charterers and the like are ‘indirect air carriers’
covered by the [Airline Deregulation Act]”). Cases analyzing whether entities are indirect air
carriers under the Federal Aviation Act, 49 U.S.C. § 1374, have similarly determined that “travel
agents, tour operators, and nominal ‘social clubs’ which in fact publicly sell tours and air
transportation are ‘indirect air carriers.’” Arkin v. Trans Int’l Airlines, Inc., 568 F. Supp. 11, 13
(E.D. N. Y. 1982).
It is next necessary to determine whether the claims brought pursuant to Chapter 93A
“relate[] to a price, route, or service of an air carrier.” 49 U.S.C. §41713(b)(1); see McLaughlin
v. TWA Getaway Vacations, 979 F. Supp. 174, 175 (S.D.N.Y. 1997) (analyzing preemption
pursuant to the Deregulation Act and stating that “[t]he Supreme Court has broadly interpreted the
provisions of the [Deregulation Act] to preempt all actions that are (a) asserted against air carriers
and (b) have a connection with or reference to airline rates, routes, or services”) (internal quotation
marks omitted). In Morales v. TWA, 504 U.S. 374 (1992), the Supreme Court focused on the
“related to” language in the preemption clause of the Deregulation Act in determining that “[s]tate
enforcement actions having a connection with, or reference to, airline ‘rates, routes, or services’
are pre-empted.” Morales, 504 U.S. at 384. The Court determined that advertising guidelines
promulgated by the National Association of Attorneys General were preempted where “every one
of the guidelines . . . bears a reference to airfares.” Morales, 504 U.S. at 388 (internal quotation
marks omitted). The Morales Court, however, stated that its holding did not necessarily extend to
restrictions that were not related to pricing, even where the restrictions related to airline fare
advertising. Id. at 390 (noting “[n]or need we address whether state regulation of the nonprice

19

aspects of fare advertising (for example, state laws preventing obscene depictions) would similarly
‘relate to’ rates; the connection would obviously be far more tenuous”).
Following Morales, the Supreme Court determined that claims brought under Illinois’s
Consumer Fraud Act that challenged an airline’s “charges in the form of mileage credits for free
tickets and upgrades” and “access to flights and class-of-service upgrades unlimited by
retrospectively applied capacity controls and blackout dates” were sufficiently related to the rates
and services of the airline and were, therefore, preempted by the Deregulation Act. Am. Airlines
v. Wolens, 513 U.S. 219, 226 (1995).
Here, none of Plaintiffs’ Chapter 93A claims, which relate to Vantage Travel’s advertising
of the ownership of the MS River Voyager, Vantage’s failure to offer Plaintiffs a refund or fair
market alternative once the MS River Voyager became inoperable, and Vantage’s failure to
conspicuously identify the Disclaimer Provision of the TPA, relate to the price, route, or service
of air transportation. See D. 101 at 8-15. Vantage Travel argues that, because the tours “included
an air transportation component,” Plaintiffs’ claims are preempted by the Deregulation Act.
D. 119 at 6. Vantage Travel, however, fails to cite to any case in which a claim premised upon
allegations unrelated to the price, route or service of air transportation was preempted by the
Deregulation Act simply because air transportation was an element of a travel package. See D.
105 at 16-17; D. 119 at 7-8. The Deregulation Act, therefore, does not preempt Chapter 93A as it
relates to the particular claims brought by Plaintiffs here.
As it did in regard to the Plaintiffs’ other claims, Vantage Travel also argues that the
Disclaimer Provision absolves them of liability even for Plaintiffs’ c. 93A claims. See D. 119 at
15-16. Although Massachusetts courts have applied limitation of liability provisions in contracts
to waive claims between business entities brought pursuant to section 11 of Chapter 93A, they

20

have “more than suggested that enforcing a waiver of a consumer plaintiff’s claim under a statute
such as [Chapter 93A] would be contrary to public policy.” See Doe v. Cultural Care, Inc., No.
10-cv-11426-DJC, 2011 WL 1048624, at *8 (D. Mass. Mar. 17, 2011) (citing Anderson v.
Comcast, Corp., 500 F.3d 66, 76-77 (1st Cir. 2007); Kristian v. Comcast Corp., 446 F.3d 25, 50
(1st Cir. 2006); Canal Electric Co. v. Westinghouse Electric Corp., 406 Mass. 369, 378 (1990);
Feeney v. Dell Inc., 454 Mass. 192, 193 (2009)). Notwithstanding any liability Vantage Travel
may or may not have had for the mechanical failure not promptly repaired by a third party pursuant
to the terms of the TPA, the Chapter 93A regulations require Vantage Travel, as a tour operator,
to offer passengers specific options in the event that they fail to deliver travel services paid for by
consumers.
Accordingly, the Court turns to the merits of Plaintiffs’ Chapter 93A claims.
2.

Merits of Plaintiffs’ Chapter 93A Claims

“Chapter 93A . . . is a broad consumer protection statute that provides a private cause of
action for a consumer who ‘has been injured,’ by ‘unfair or deceptive acts or practices in the
conduct of any trade or commerce.’” Shaulis, 865 F.3d at 6 (quoting Mass. Gen. L. c. 93A §§
9(1), 2(a)) (internal citations omitted); see Casavant v. Norwegian Cruise Line, Ltd., 460 Mass.
500, 503 (2011). “[A] practice or act will be unfair under [Chapter 93A] if it is (1) within the
penumbra of a common law, statutory, or other established concept of unfairness; (2) immoral,
unethical, oppressive, or unscrupulous; or (3) causes substantial injury to competitors or other
business people.’” Incase v. Timex Corp., 488 F.3d 46, 57 (1st Cir. 2007) (quoting Morrison v.
Toys “R” Us, Inc., 441 Mass. 451 (2004)). “Which acts will be considered ‘deceptive’ is less
clearly defined in the case law . . . [but] some cases have held that an act or practice is deceptive
‘if it could reasonably be found to have caused a person to act differently from the way he or she

21

otherwise would have acted.’” Id. (quoting Purity Supreme, Inc. v. Attorney Gen., 380 Mass. 762,
777 (1980)) (internal quotation marks, citation and alterations omitted)). “The statute permits the
Massachusetts Attorney General to implement rules and regulations interpreting the provisions of
Chapter 93A.” McDermott v. Marcus, Errico, Emmer & Brooks, P.C., 775 F.3d 109, 116 (1st Cir.
2014) (citing Mass. Gen. L. c. 93A, § 2(c)) (internal quotation marks omitted)).
Plaintiffs’ claim is brought pursuant to Chapter 93A, § 9, which “applies to consumers,
individuals who participate ‘in commercial transactions on a private, nonprofessional basis.’”
John Beaudette, Inc. v. Sentry Ins., 94 F. Supp. 2d 77, 120 (D. Mass. 1999). To establish a Chapter
93A claim “the ‘plaintiff must prove causation — that is, the plaintiff is required to prove that the
defendant's unfair or deceptive act caused an adverse consequence or loss.’”

Doe v.

Backpage.com, LLC, 817 F.3d 12, 24 (1st Cir. 2016) (quoting Rhodes v. AIG Domestic Claims,
Inc., 461 Mass. 486 (2012)). “This requirement entails showing both ‘a causal connection between
the deception and the loss and that the loss was foreseeable as a result of the deception.’” Id.
(quoting Smith v. Jenkins, 732 F.3d 51, 71 (1st Cir. 2013)).
Plaintiffs allege the following bases for their Chapter 93A claim: (1) that Vantage Travel
misrepresented on its website that it owned and operated the MS River Voyager, which violated
940 C.M.R. §§ 15.03(2), 15.04(2)(b) & 3.16(2) and was otherwise deceptive, D. 101 at 8-9; (2)
that, after the MS River Voyager was unable to continue the trip, Defendants failed to offer
Plaintiffs their choice of alternatives enumerated under 940 C.M.R. §15.06 and instead distributed
a letter to all passengers requiring them to choose one of two restrictive options that required them
to waive their rights, D. 101 at 13-15, and (3) that the Disclaimer Provision was not “clear and
conspicuous” and was, therefore, “unfair, oppressive and unconscionable” under c. 93A. D. 101
at 15. As an initial matter as to the first two bases of this claim, the regulations provide that a

22

violation of any provision under 940 C.M.R. § 15.00, which pertains to the travel services industry,
shall be a per se violation of Chapter 93A. See 940 C.M.R. § 15.01(1); Hiam v. HomeAway.com,
Inc., 267 F. Supp. 3d 338, 348 (D. Mass. 2017).
a)

Misrepresentations as to Ownership and Operation of
the MS River Voyager

As to the first basis of its Chapter 93A claim, Plaintiffs allege that Vantage Travel
“represented and advertised” on its website that it owned and operated the MS River Voyager and
that this was a false representation in violation of 940 C.M.R. § 15.03(2). D. 101 at 9. This
regulation governs the delivery of travel services and prohibits misrepresentations “that ha[ve] the
capacity or tendency to deceive or mislead a consumer, or that ha[ve] the effect of deceiving or
misleading a consumer, in any material respect.” 940 C.M.R. § 15.03(2). Plaintiffs also allege
that Vantage Travel’s misrepresentations as to ownership and operation of the vessel violate 940
C.M.R. § 3.16. D. 101 at 9. This regulation requires the disclosure of “any fact, the disclosure of
which may have influenced the buyer or prospective buyer not to enter into the transaction.”
D. 101 at 9.
As discussed above, although the parties dispute Vantage Travel’s representations about
the ownership of the MS River Voyager, summary judgment in favor of Vantage Travel is still
warranted as Plaintiffs have failed to show that the alleged misrepresentation was the cause of their
injury as required by Mass. Gen. L. c. 93A § 9. Smith v. Dorchester Real Estate, Inc., 732 F.3d
51, 71 (1st Cir. 2013) (stating that “when the alleged basis for Chapter 93A liability is a
misrepresentation . . . a plaintiff must prove a causal connection between the deception and the
loss”). Even as Plaintiffs claim that they have suffered the loss of the luxury travel experience, ee
D. 101 at 12, there has been no showing that the alleged misrepresentation as to the vessel’s
ownership caused this loss.
23

Plaintiffs also allege that representations as to the ownership and operation of the vessel
violated 940 C.M.R. § 15.04(2)(b) because Vantage Travel failed to “provide the name, complete
street business address and telephone number of the actual owner and operator of the MS River
Voyager.” Id. Vantage Travel argues that this regulation, which requires disclosure of the name,
address and telephone number of “the provider(s) of any travel package being purchased,” does
not require them to list the information of the owner and operator of the MS River Voyager, but
that the regulation requires disclosure of the name, address and telephone number of Vantage
Travel as the “tour operator.” The Court agrees. The regulations define “travel package” as “any
combination of travel services offered for sale as a unit, including ocean cruise services.” 940
C.M.R. § 15.02. Further, “travel services” is defined as “the provision of transportation by air,
sea, or land, or the provision of other goods or services related to recreational, cultural or
educational travel, including but not limited to lodging, food, guided tours, or instruction.” Id.
Based on these definitions, and according the words their usual and ordinary meaning, Amrata v.
Target Corp., 480 Mass. 14, 19 (2018), 940 C.M.R. § 15.04(2)(b) required the disclosure of
Vantage Travel’s name, address, and telephone number as a provider of a travel package and did
not require disclosure of the owner and operator of the MS River Voyager because the vessel is not
a provider of a “travel package.” There is no dispute that Vantage Travel disclosed its name,
address and phone number and, therefore, Vantage Travel complied with its obligations under this
regulation.
b)

Failure to Provide Cash Refund or Substitute of Equal Value

Plaintiffs claim that Vantage Travel is liable under Chapter 93A because it violated 940
C.M.R. § 15.06. D. 101 at 12-13. This regulation requires that, where “a seller of travel services
is acting as a tour operator, and the seller fails to provide any of the travel services that a consumer

24

has purchased directly or indirectly,” the seller must offer the consumer their choice of (1) “cash
an amount equal to the fair market retail value of any undelivered, purchased travel service,” (2)
“specially identified substitution travel service of equal or greater fair market retail value for any
undelivered, purchased travel service” or (3) “specially identified substitute travel service of lower
fair market retail value for any undelivered, purchased travel service, and refund to the consumer
in cash an amount equal to the difference in the fair market retail prices of the purchased and the
substitute travel services.” 940 C.M.R. § 15.06. Under the regulations, “tour operator” is defined
as “a seller of travel services that creates and sells travel packages, either directly to the public or
indirectly to the public,” thus, the regulation is applicable to Vantage as the tour operator of the
river cruises purchased by Plaintiffs. 940 C.M.R. § 15.02. Further, Defendants admit that they
are sellers of travel services and tour operators. See D. 28 ¶ 4; D. 119 at 7.
Plaintiffs allege that Vantage Travel failed to offer the luxury travel services they had
purchased and that they also failed to offer passengers a cash refund, further arguing that the
substitute travel service – bus tours during which many of the originally planned sightseeing stops
and events were cancelled – were inadequate to satisfy 940 C.M.R. § 15.06. D. 101 at 13. Vantage
Travel counters that, despite the mechanical failure, they “provided all services advertised for the
two tours in question.” D. 119 at 15.
Vantage Travel further argues that they are not liable under 940 C.M.R. § 15.06 because
the regulation must be interpreted to apply only to cancellations or modifications that occur prior
to the start of the purchased travel service. D. 119 at 14, n.8. Vantage Travel cites to no authority
for this interpretation. Id. Adopting this interpretation would require the Court to improperly read
additional language into the regulation that was not included by the Attorney General. See Lamie
v. United States Trustee, 540 U.S. 526, 534 (2004) (stating that “[i]t is well established that when

25

the statute’s language is plain, the sole function of the courts--at least where the disposition
required by the text is not absurd--is to enforce it according to its terms” (internal quotation marks
omitted)); Armata v. Target Corp., 480 Mass. 14, 19 (2018) (stating that “[w]e interpret a
regulation in the same manner as a statute, and according to traditional rules of construction”)
(citing Warcewicz v. Dep’t of Envtl. Prot., 410 Mass. 548, 550 (1991)). Vantage Travel further
argues that Plaintiffs’ theory would require tour operators to compensate passengers whenever any
problems arise on a tour. D. 119 at 15-16. Vantage Travel’s cited cases in support are inapplicable
as none addresses a claim brought under Chapter 93A. See D. 119 at 16. Further, each of the
cases cited relates to tour operators’ liability for the health and safety of passengers during travel
and not to their liability for a failure to provide travel services that were purchased from them by
tour participants. See id.
Vantage Travel avers that it is not liable under the regulation because it provided
passengers with “reasonably equivalent value by visiting all of the sites scheduled on the original
itinerary and the passengers being able to stay on the MS River Voyager to continue to enjoy its
amenities.” D. 119 at 17. Vantage Travel claims that its offer to passengers of a complimentary
cruise down the River Seine and a five hundred-dollar credit for future travel satisfy its obligations
under the regulation. Id. The regulation, however, makes clear that, in the event that a tour
operator fails to provide a purchased travel service, the tour operator must offer passengers their
choice of the three options enumerated under the regulation and that they must honor the
consumers’ choices within thirty days of the consumers’ selection. 940 C.M.R. § 15.06.
There is no dispute that Vantage Travel failed to offer passengers their choice of a full
refund of undelivered travel services, a travel service of equal or greater value or a travel service
of lesser value along with a refund for the difference in value. Although the parties filed cross-

26

claims for summary judgment, there still appears to be a dispute as to whether Vantage Travel
provided “all services” purchased by Plaintiffs and, if not, which services they failed to provide,
which are material facts regarding Vantage Travel’s violation of this regulation under Chapter
93A. Compare D. 102 ¶¶ 27-36 (Plaintiff alleging undisputed facts that, following the mechanical
failure, the tours failed to visit certain cities and landmarks, provide gourmet meals and provide
certain tours and cultural events that were listed in the itinerary) with D. 121 ¶¶ 27-36 (Vantage
Travel denying same and indicating that “all major sightseeing and cultural attractions were visited
with the exception of an organ concert”). Accordingly, each party’s summary judgment motion is
denied as it relates to violations of 940 C.M.R. § 15.06.5
c)

The Disclaimer Provision in the TPA Does Not Violate Chapter
93A

Plaintiffs argue that Vantage Travel is liable under Chapter 93A because the Disclaimer
Provision that limited Vantage Travel’s liability under the contract was not “clear and
conspicuous” and thus was “unfair, oppressive and unconscionable” under Chapter 93A. D. 101
at 15. In support of their claim that the Disclaimer Provision was not clear and conspicuous,
Plaintiffs note that Vantage Travel’s owner admitted that the contract is written in “very small
type.” D. 101 at 16. The only case cited by Plaintiffs, Chase Commercial Corp. v. Owen, 32
Mass. App. Ct. 248 (1992), indicates that this basis is insufficient to confer liability on Vantage
Travel. See 101 at 15-16; Chase Commercial Corp., 32 Mass. App. Ct. at 253. Chase Commercial
Corp., which did not consider a claim brought pursuant to Chapter 93A, analyzed the

5

To the extent that the parties sought to seal certain supplemental submissions of
documents under seal, D. 128, 131, the Court ALLOWS those motions to the extent that they
sought to file same under seal. Since, however, these documents, D. 128-1, D. 131-1, 131-2,
concern the one claim under c. 93A for which there remain disputed facts and/or damages
regarding same, see D. 131 at 2, the Court did not rely upon these documents in resolving the
pending motions.
27

unconscionability of a jury waiver provision in an adhesion contract and determined that the
provision, which appeared in “clear language” on a three-to-four page contract, was not
unconscionable even though it was written in small type. Id. Plaintiffs have failed to show that
the Disclaimer Provision in the TPA violated Chapter 93A and their motion for summary judgment
as to liability under Chapter 93A based on proper disclosure of the Disclaimer Provision is denied
and Vantage Travel’s motion for summary judgment as to the same claim is allowed.
VI.

Conclusion
For the foregoing reasons, the Court DENIES Plaintiffs’ partial motion for summary

judgment as to liability as to all Counts. D. 100. The Court ALLOWS Defendants’ motion as to
Counts I (breach of contract), Count II (breach of the implied covenant of good faith and fair
dealing), Count III (unjust enrichment), Count IV (breach of common law warranties) and Count
V (negligent misrepresentation). D. 104. The Court further ALLOWS Defendants’ motion as to
Count VII (claims under Chapter 93A) in part, except insofar as it relates to whether Defendants
provided all services purchased by Plaintiffs for the purpose of Plaintiffs’ claim that Defendants
violated 940 C.M.R. § 15.06 and, thus, violated Chapter 93A. The Court also DENIES Plaintiffs’
motion to estop Vantage Travel from disclaiming ownership of the MS River Voyager. D. 115.
So Ordered.
/s/ Denise J. Casper
United States District Judge

28