Hebert v. Vantage Travel Serv.

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.

No. 17-cv-10922-DJC

United States District Court, D. Massachusetts

September 24, 2021

MEMORANDUM OF DECISION

DENISE J. CASPER, UNITED STATES DISTRICT JUDGE.

I. INTRODUCTION

Plaintiffs Ronald Hebert (“Hebert”) and Aime Denault (“Denault”), filed suit, on behalf of themselves and a class of others similarly situated (collectively “Plaintiffs”), 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 (“Chapter 93A”), related to river cruise travel packages that Plaintiffs purchased from Vantage Travel. D. 1-1. After Vantage Travel moved for summary judgment on all claims, the Court allowed the motion except for part of Plaintiffs' Chapter 93A claim, specifically whether Vantage Travel violated Massachusetts regulations governing travel services, 940 C.M.R. § 15.06 (“§ 15.06”). D. 147. Vantage Travel then moved the Court for reconsideration on the remaining Chapter 93A claim and the Court denied the motion, clarifying that violation of § 15.06 constitutes a per se unfair or deceptive act or practice, an element of Plaintiffs' Chapter 93A claim. D. 192 at 3-9.^[1] Accordingly, the matter for which there remained disputed issues for trial concerned whether Vantage Travel violated § 15.06, and if such violation caused an injury to Plaintiffs. Id. at 4-5, 9.

During a four-day bench trial, which began on July 26, 2021, the Court heard evidence on this remaining issue from witnesses and admitted exhibits proffered by the parties, D. 273; D 274; D. 276; D. 277, ^[2] and having considered the parties' proposed findings and conclusions, D. 278-79, now issues its findings of facts and conclusions of law below.

III. FINDINGS OF FACT

The Court has already recited certain undisputed facts in this matter in its Memorandum & Order allowing in part Vantage Travel's motion for summary judgment, D. 147, and incorporates those undisputed facts by reference here. The Court addresses below the remaining facts material to its ruling on the Chapter 93A claim.

A. The Parties and Witnesses

1. Plaintiffs are a class of 168 passengers consisting of: “[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.

2. Vantage Travel is a tour operator that sold the two river cruises to Plaintiffs: the 17-day/16-night Majestic Rivers of Europe tour (“Long Cruise”) and the 11-day/10-night Highlights of the Danube tour (“Short Cruise”). Both cruises took place on the same ship, the MS River Voyager (“Ship”). Exh. 6; Exh. 7(a); Exh. 8(a).

At the bench trial, the following witnesses testified:

3. Ella Denault (“Denault”) was a passenger on the Majestic Rivers of Europe cruise. 1:31:6, Denault.

4. Kimberly Train (“Train”) is as an expert in the field of economic damages. 1:178:19-25, Train.

5. Ronald Hebert (“Hebert”) was a passenger on the Majestic Rivers of Europe cruise. 2:78:2; 2:81:19, Hebert.

6. Albert Dore (“Dore”) was director of Boston quality and customer concierge at Vantage Travel in July 2016. 2:129:19-20, Dore.

7. Gary Greenstein (“Greenstein”) was vice president and controller at Vantage Travel in July 2016. 2:138:9-16, Greenstein.

8. Deirdre Dirkman (“Dirkman”) was senior director of air services at Vantage Travel in July 2016. 3:14:12-13; 3:15:8, Dirkman.

9. Roman Cangar (“Cangar”) was director of European operations for Vantage Travel in July 2016. 3:87:17, Cangar.

10. Michael Tousignant (“Tousignant”) is an expert in the field of accounting and auditing. 3:151:24-25, Tousignant.

11. Kimberly Daley (“Daley”) is an expert in the travel and tourism industry. 4:47:17, Daley.

12. Excerpts of the deposition transcript from Suzanne Dutton, now deceased, were also admitted. 3:3:11-16; Exh. 16.

B. Ship Malfunction and Cruise Deviations

13. All travel services were provided between the cruise beginning on July 8 until July 14, 2016. Exh. 8(a) at 1-6.^[3]

14. During the morning of July 14, 2016, the Ship's bow thruster malfunctioned, which prevented the Ship from safely sailing any further. 3:92:6-25; 3:93:1-2, Cangar.

15. The Ship remained docked in Kitzingen, Germany, for four nights, rather than sailing to each city, as scheduled. While docked, all on-board services were still provided as originally planned. Exh. 8(a) at 7-13; 3:105:25, 3:106:1, Cangar.

16. In lieu of transporting Plaintiffs to each city on the Ship, Vantage Travel transported Plaintiffs to each city by motorcoach. Exh. 4 at 1, 3; Exh. 8(a) at 7-13; 3:106:12-25, Cangar.

17. Denault testified to the unsatisfactory condition of the motorcoaches, her inability to experience her surroundings from the motorcoaches (as opposed to the deck of the Ship), and her inability to move around during hours-long rides, including the use of on-board restrooms. 1:39-40; 1:39:10-13, 21-22, Denault; Exh. 4.

18. On July 14, 2016, the Ship did not sail through Althmuhl Valley or pass through the locks of Rhine-Maine-Danube Canal, as the Ship was docked in Kitzingen. Vantage Travel added a shuttle from the pier to Kitzingen Center and bicycles to ride around Kitzingen. Exh. 8(a) at 7.

19. On July 15, 2016, Vantage Travel added motorcoaches from Kitzingen to Nuremberg, Germany, as the Ship was docked in Kitzingen and had not sailed overnight to Nuremberg. The driving time was one hour and forty-five minutes each way. That day, the Ship did not make an optional stop in Roth, Germany. Exh. 4 at 1; Exh. 8(a) at 7-8.

20. On July 16, 2016, Vantage Travel added motorcoach transportation and transfer escort services from Kitzingen to Regensburg, Germany, because the Ship did not sail overnight from Nuremberg/Roth to Kelheim, Germany, as originally planned. The tour did not go to Kelheim, because the Weltenburg Monastery, for which an optional tour was scheduled, was closed that day. Passengers that paid for the optional tour were refunded. Vantage Travel added transportation to Regensburg by motorcoach, which was four hours each way, including a restroom stop. Vantage Travel added a lunch stipend for passengers to have lunch in Regensburg. Exh. 4 at 1; Exh. 8(a) at 9-10; 3:112-14, Cangar.

21. On July 17, 2016, Vantage Travel added a trip to Bamberg, a UNESCO World Heritage Site, which included a walking tour, lunch stipend and transportation by motorcoach, which was one hour and twenty minutes each way. Exh. 4 at 1; Exh. 8(a) at 10-11; 3:115:3-22, Cangar.

22. On July 18, 2016, Vantage Travel added motorcoach transportation from Kitzingen to Vienna, Austria, as the Ship had not sailed overnight from Regensburg to Passau, Germany. The trip from Kitzingen to Vienna took eleven hours, with a stop in Passau. A 30-minute organ concert at Passau's St. Stephen's Cathedral did not occur, as originally scheduled. Vantage Travel added a lunch stipend in Passau. Exh. 4 at 1; Exh. 8(a) at 11-12.

23. Once in Vienna, Plaintiffs spent four nights (from July 18-July 21) at a Vienna Hilton (“Hotel”) in lieu of staying on the Ship, which would have been docked in Vienna for two nights but remained in Kitzingen for repairs. Exh. 8(a) at 12-17; 3:118:8-25, Cangar.

24. The Hotel was centrally located near the historic city center. Exh. 8(a); 3:120:1524, Cangar.

25. Plaintiffs were provided breakfast and dinner at the Hotel and Vantage Travel added lunch stipends for the days that Plaintiffs were in Vienna. There was no free iced tea at the Hotel, unlike the Ship. Exh. 8(a) at 12-17.

26. Hebert and Denault were not satisfied with the quality of the rooms and service at the Hotel, including the meals served. 1:53-54, Denault; 2:88:10-11, Hebert.

27. On July 19, 2016, an on-board apple strudel baking demonstration did not occur as scheduled. Exh. 8(a) at 13.

28. On July 20, 2016, Vantage Travel added free shuttle service around Vienna. Exh. 8(a) at 14.

29. On July 21, 2016, Vantage Travel added motorcoaches between Vienna and Budapest because the ship did not sail from Vienna to Budapest, as originally scheduled. Some Plaintiffs chose to stay in Vienna, and Vantage Travel added a lunch stipend for those Plaintiffs. Vantage Travel added a lunch stipend for Plaintiffs that traveled to Budapest and chose to have lunch on their own. Vantage Travel also added a lunch option at the Duna Palace in Budapest. Exh. 8(a) at 16; 3:128:2-11, Cangar.

30. The Ship was repaired and returned to Vienna on July 21, 2016, which sailed Plaintiffs overnight to Budapest for the final day of the cruise. Exh. 8(a) at 16-17; 3:128:2-11, Cangar.

C. Trip Costs and Compensation Offers

31. Vantage Travel received $944, 399 in cash from Plaintiffs for the two trips.^[4] 2:146:12-21, Greenstein; 3:162:1-2, Tousignant.

32. Vantage Travel offered passengers a future trip credit (“FTC”) to use with Vantage Travel, first for $250, then for $500. 1:80:7-8, Denault; 2:89:11-13; 124:16-18, Hebert; 3:140:5-11, Cangar; Exh. 5.

33. Sixty-five passengers accepted and used the $500 FTC. Exh. 13; 3:169:22-24, Tousignant.

34. Vantage Travel also offered passengers a complimentary cruise around either Thanksgiving or Christmas of that year. 1:80:8-9, Denault; Exh. 2(a) at 2.

35. Sixty-four passengers accepted a free cruise. Exh. 13; 2:172:24, Greenstein.

IV. CONCLUSIONS OF LAW

The Court has already made...