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Mirra v. Holland America Line

May 19, 2000

NICOLETTE MIRRA,
PLAINTIFF-APPELLANT,
V.
HOLLAND AMERICA LINE, HOLLAND AMERICA LINE- WESTOURS, INC., *FN1
DEFENDANTS-RESPONDENTS,
CRUISIN, INC. - CRUISE ONLY TRAVEL PROFESSIONALS,
DEFENDANT.



Before Judges Conley, Braithwaite and Coburn.

The opinion of the court was delivered by: Braithwaite, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 1, 2000

On appeal from Superior Court of New Jersey,Law Division, Atlantic County.

Plaintiff filed a complaint against defendants Holland America Line and Holland America Line-Westours, Inc. ("Holland") and Cruisin, Inc. - Cruise Only Travel Professionals ("Cruisin") on April 1, 1998, seeking damages for breach of contract, breach of express and implied warranties, negligent infliction of emotional distress, negligent misrepresentation, and consumer fraud. On July 14, 1998, Holland filed an answer and asserted a cross-claim for indemnification against Cruisin. Holland claimed as separate defenses that: (1) there was no breach of contract; (2) plaintiff's claim was time-barred by the terms of the contract between Holland and plaintiff; (3) Holland did not engage in fraudulent conduct; (4) plaintiff's claim was barred by estoppel; and (5) plaintiff's claim was barred by the doctrine of waiver.

On July 16, 1998, Holland presented an offer of judgment for $1,500 plus costs. The offer was not accepted. On September 21, 1998, Holland filed a notice of motion to dismiss, asserting that plaintiff's claim was time-barred by contract, and by N.J.S.A. 12A:2-725, a statute of limitations provision of the Uniform Commercial Code that applies to contracts for the sale of goods. Plaintiff cross-moved to dismiss Holland's motion. On October 9, 1998, the motion judge granted Holland's motion to dismiss based on the defense that plaintiff's claim was time-barred and denied plaintiff's cross-motion. A memorandum of decision accompanied the order.

On October 28, 1998, plaintiff filed a motion for reconsideration, which was denied by the motion judge on November 20, 1998. At some point thereafter, plaintiff settled her complaint against Cruisin. On May 6, 1999, this appeal followed.

I.

For purposes of this appeal, the facts are not in dispute. In 1996, plaintiff purchased a seven-day Alaskan cruise package from defendant Cruisin. The cruise took place from August 1 to August 8, 1996, on a Holland ship named the ms Nieuw Amsterdam. The accommodations on the ship were not what was described in Holland's brochure, and were not to plaintiff's satisfaction. Holland's advertisements described the cabin that plaintiff reserved as 219 square feet, with two twin beds, a rollaway bed, and a sitting area. The cabin that plaintiff actually received measured only 100 square feet, had the wrong size bed, and no appreciable sitting space. Plaintiff complained to guest relations, but because the cruise was booked to capacity, she was unable to change her quarters.

Before leaving home for the cruise, plaintiff received her ticket from Holland. The ticket was the contract between the parties. The ticket contained a paragraph, in large print, that informed plaintiff that any claims against Holland had to be brought to its attention within thirty days, and that any contract or negligence claim against Holland had to be commenced within 180 days. Despite this, plaintiff did not file suit until April 1998, almost two years after the cruise.

II.

On appeal, plaintiff raises the following contentions:

POINT I

ANY CONTRACTUAL LIMITATION IS IRRELEVANT TO THE ISSUE BEFORE THE COURT INASMUCH AS THIS CLAIM IS CONTROLLED BY ...


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