SUB-ZERO FREEZER CO., INC. V. CUNARD LINE LIMITED
2002 U.S. Dist. LEXIS 27142 (2002)
NATURE OF THE CASE: Cunard (D) moved to dismiss Sub's (P) suit to recover the full
prepayment on a cruise P cancelled because of the September 11, 2001, terrorist attacks,
asserting promissory estoppel, breach of contract, excused performance, and fraudulent
inducement.
FACTS: P signed a Space Allotment Agreement with D. The agreement provided for a
seven-night cruise in the Eastern Mediterranean. The trip was scheduled to depart on October
2, 2001 from Piraeus, Greece, and to disembark in Istanbul, Turkey on October 9, 2001, with
intermediate ports of call in Santorini, Rhodes, Bodrum and Kusadasi. The agreement was for
the entire vessel with a per-night hire price of $120,000, with a base price for the cruise
of $840,000. The total price of the cruise was $892,000. P prepaid the entire cruise price
of $892,000. It made the last installment payment of the prepayment to defendant on July 2,
2001. Under Clause 9 the entire cruise hire price becomes payable to if P cancels the
agreement. Clause 10 was the Force Majeure clause of the agreement and relieves d of any
liability for failure to perform in the event of acts of God, war, fire, acts or threats of
terrorism, or order or restraint by government authorities, among other things. The
integration clause incorporates into the agreement 'all prior understandings and agreements
heretofore entered into between P and D whether written or oral.' It also provides that 'no
course of dealing between the parties shall operate as a waiver by either party . . . of any
right of such party.' Before entering into the agreement, P asked the agent how D would
treat P in regard to refunds or rescheduling if there was an outbreak of terrorism or war at
the time of the cruise. D's director of charter sales told P that D would never put its
vessels or guests in danger and would work with P to reschedule the location or dates of the
cruise as necessary to assure safety and to satisfy the safety concerns of P's guests.
Alternatively, D would give P a refund. On April 29, 1999, D a letter to P memorializing his
response to Ps inquiries. On May 3, 1999, P signed the agreement. Prior to the cruise, 9-11
occurred. Several days after the attacks, the United States declared a 'war on terrorism.'
The United States mobilized substantial resources in and around the eastern Mediterranean
and Middle East and elsewhere, and placed its military units on a high state of alert and
battle readiness. During the scheduled time of the cruise the United States launched a major
military action against Afghanistan. The Department of State issued formal warnings to
Americans abroad and to those who were considering traveling abroad, instructing them to
exercise heightened caution and vigilance while traveling abroad and urging that Americans
avoid such travel. The United States did not issue any orders requiring D to cancel its
October 2, 2001 cruise. Many of P's employees, guests and their spouses informed P that they
would not go on the cruise because they believed it would be unsafe. P and his agent made
repeated efforts to persuade D to work with P or refund some or all of the prepayment. D
refused. D informed P that it would retain the entire amount of the prepayment whether or
not the cruise took place. P sued and D moved to dismiss.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
Get
free access to the entire content for Mac, PC or Online
for 2-3 days and free samples
of all kinds of products.
for 2-3 days and free samples of all kinds of products.
https://bsmsphd.com
© 2007-2016 Abn Study Partner
No comments:
Post a Comment