UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Private Jet Services Group, LLC, Plaintiff

v. Case No. 20-cv-1015-SM Opinion No.

Tauck, Inc., Defendant

CERTIFICATION ORDER

Pursuant to Rule 34 of the Rules of the Supreme Court of

New Hampshire, the United States District Court for the District

of New Hampshire hereby certifies the following question of New

Hampshire law, which may be determinative of causes pending

before it and as to which there appears to be no controlling

precedent in the decisions of the Supreme Court:

Whether, under New Hampshire’s common law, a Force Majeure clause that protects only one party to a contract should be deemed a relinquishment of the other party’s right to interpose the common law defenses of impossibility, impracticability, or frustration of commercial purpose, on the theory that the clause represents the parties’ implicit allocation of the risks identified in the Force Majeure clause to that other (unprotected) party or, alternatively, whether the common law contract defenses of impossibility, impracticability, or frustration of commercial purpose are so fundamentally related to contract formation and purpose that they remain viable unless expressly waived. Statement of Relevant Facts

The material facts are undisputed and set forth in the

attached order in Private Jet Services Group, LLC v. Tauck,

Inc., No. 20-cv-1015,

(Sept. 30, 2022). In short,

the relevant facts are as follows. Private Jet Services Group

(“PJS”) is a New Hampshire-based private aircraft booking agent.

It brings this breach-of-contract action against Tauck, Inc., a

Connecticut-based provider of high-end domestic and

international guided tours. In general, the parties’ contracts

contemplated that PJS would provide, and Tauck would use, a

dedicated aircraft to conduct a minimum of fifty (50) tours of

New Zealand per season. PJS alleges that Tauck breached those

contracts in each of two seasons. Only the circumstances

relating to the 2020 tour season are relevant to the question

posed.

I. The Contracts.

In 2017, Tauck was looking for an aircraft charter agent to

arrange air transportation for the New Zealand portions of its

Australia/New Zealand tours. Tauck and PJS eventually reached

an agreement and, in January of 2018, the parties executed an

“Air Charter Services Blanket Purchase Agreement” (the “BPA”)

(document no. 21-3). That contract established the general

terms under which Tauck would book and pay for air

2 transportation, as well as any charges associated with each such

booking. The contract also included an agreed-upon cancellation

policy.

Attached to the BPA is Exhibit C, which sets out the

“standard terms and conditions” of the parties’ contractual

relationship. One of those provisions – the “Force Majeure”

clause - provides that PJS is not responsible for “delays,

losses or damages of any kind caused, in whole or in part by

Force Majeure, acts of war, terrorism, adverse meteorological

conditions, mechanicals, air traffic control delays or other

unforeseeable circumstances.” Id. at 9.

The BPA also contemplated that before Tauck actually booked

any aircraft through PJS, the parties would execute one or more

“Statements of Work” which would address the details of the

parties’ relationship, payment terms, and scheduling with

respect to particular flight operations. PJS and Tauck executed

the Statement of Work (document no. 21-4) in May of 2018. Among

other things, the Statement of Work provides that “Tauck must

guarantee a minimum of 50 tours per year” and, if it operates

fewer than 50 tours, it must pay to PJS an agreed-upon sum for

each “missed” tour. The Statement of Work also amends the terms

of the Force Majeure clause in the BPA and provides as follows:

3 Force Majeure: The definition of Force Majeure in the Blanket Purchase Agreement 2017-3746 that governs this Statement of Work shall be modified to include Acts of God, events of nature, epidemics, [acts of] civil or military authority, strikes (other than with respect to Supplier) or labor disputes (other than with respect to Supplier), travel advisories of the Department of State of the United States of America, war, warlike activity, acts of terrorism and/or domestic or international violence of any nature either directly affecting the area where this Contract is to be performed or causing disruption of travel to or from the area, or due to adverse market reaction to any of the foregoing events of Force Majeure.

Id. at 3 (emphasis supplied). As an aside, the court notes that

the parties agree that the “Force Majeure” provisions of the

BPA, as amended by the Statement of Work, extend protection

exclusively to PJS should it be unable to perform its

contractual obligations due to one or more force majeure events;

those provisions do not apply to Tauck.

II. The 2020 Tour Season.

In 2020, Tauck’s ability to conduct its tours in New

Zealand was undermined by the global COVID-19 pandemic. From

January 1 through March 19, 2020, Tauck operated, and PJS

arranged air travel for, 23 tours in New Zealand. On March 20,

2020, however, New Zealand closed its borders to foreign

travelers through (and beyond) the remainder of that year. At

that point, Tauck was not permitted to operate any of its

4 remaining 2020 tours in New Zealand and all were cancelled. In

total, Tauck says it refunded nearly $5 million to customers for

those cancelled trips.

Given those circumstances, PJS and Tauck attempted, but

were unable, to resolve their differences with respect to their

relative obligations under the contracts. Nor were they able to

amend the contracts to each party’s satisfaction. On May 28,

2020, Tauck invoked the “Adverse Economic Conditions” provision

contained in the Statement of Work and cancelled the parties’

contracts in their entirety.

Under the terms of the Statement of Work, the contracts

between the parties would then terminate at the end of the 2020

tour season and, absent legal excuse, Tauck remained obligated

to pay PJS “for all flights flown” as well as all other

obligations for which “Tauck is otherwise committed to by this

Agreement.” Statement of Work, Section 6, at 3. That, says

PJS, means Tauck still must honor (and pay for) its guarantee of

a minimum of 50 tours for the 2020 season. Because Tauck

operated only 23 tours in 2020, PJS says it is entitled to

payment for the remaining 27 tours it was promised,

notwithstanding Tauck’s inability to actually operate those

tours due to New Zealand’s border closure.

5 The contract terms are weighted in favor of PJS. According

to PJS, that was both intentional and understood by the parties,

because PJS was making a significant up-front expenditure to

secure the necessary dedicated aircraft, and it needed to be

assured that it would have a guaranteed stream of income from

Tauck to cover those sunken costs. Consequently, PJS sees the

annual 50 tour minimum as, in essence, a guaranteed annual

minimum payment without which, PJS says, it would not have

entered into the contracts with Tauck.

Tauck concedes that it may not seek to escape its

contractual liability by invoking the contracts’ Force Majeure

provisions. Nevertheless, it contends that neither it nor PJS

ever contemplated the scope and duration of the pandemic’s

economic impact. Nor, more specifically, did either party

imagine that New Zealand might close its borders to all non-

citizens – a first in the country’s history. So, because the

events in question were unanticipated by the parties, and

because nothing in the parties’ contracts prevents it from

invoking common law contract defenses, Tauck says it may

properly invoke the doctrines of impossibility and frustration

of purpose to excuse performance of its obligations under the

2020 contract, including the requirement that it conduct a

minimum of 50 tours.

6 There is no New Hampshire decision directly on point. What

seems unresolved under New Hampshire common law is whether, by

agreeing to the Force Majeure clause as written, Tauck waived

its otherwise available contract defenses. That is to say, it

is not clear under New Hampshire common law whether a force

majeure clause protecting just one of the parties necessarily

(albeit by implication) allocates the risks of such force

majeure events to the other party, thereby depriving that party

of otherwise-available common law defenses, like impossibility

of performance and frustration of purpose.

As noted above, the Force Majeure clause, as specifically

worded, protects only PJS from liability should a referenced

event occur. That clause does not protect Tauck, but neither

does it expressly deprive Tauck of recognized common law

defenses like impossibility of performance or frustration of

purpose. The clause may, under New Hampshire law, implicitly

operate to deprive Tauck of those defenses, but no clear

statement on that point can be found. A critical question then

arises under New Hampshire’s common law:

[W]hether a force majeure clause should be deemed a relinquishment of a party’s right to argue impracticability or frustration, on the theory that such a clause represents the integrated expression of the parties’ desires with respect to excuses based on supervening events; or whether such a clause either in

7 general or as specifically worded in this case covers any different ground from the defenses of impossibility or frustration of purpose.

N. Indiana Pub. Serv. Co. v. Carbon County Coal Co.,

(7th Cir. 1986) (Posner, J.) (cleaned up). That is,

impossibility and frustration of purpose defenses may remain

available contract defenses unless the contract documents

explicitly provide otherwise.

Whether the common law defenses of impossibility and/or

frustration of purpose remain available to Tauck under the

circumstances presented in this case is a dispositive question

of New Hampshire law, with regard to which the Supreme Court of

New Hampshire must be accorded deference by this Court.

Accordingly, the Justices of the Supreme Court of New Hampshire

are respectfully requested to settle this fundamental and

dispositive legal question according to New Hampshire law.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

January 9, 2023

8 cc: Steven M. Gordon, Esq. Olivia F. Bensinger, Esq. Timothy J. McLaughlin, Esq. James J. Armillay, Jr., Esq. Jeffrey Ment, Esq. Michael F. Merra, Esq.

Attachment: Private Jet Services Group, LLC v. Tauck, Inc.,

,

(Sept. 30, 2022)

9 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Private Jet Services Group, LLC, Plaintiff

v. Case No. 20-cv-1015-SM Opinion No.

Tauck, Inc., Defendants

O R D E R

Private Jet Services Group (“PJS”) is a New Hampshire-based

private aircraft booking agent. It brings this breach-of-

contract action against Tauck, Inc., a Connecticut-based

provider of high-end domestic and international guided tours.

In general, the parties’ contracts contemplated that PJS would

arrange for, and Tauck would use, a dedicated aircraft to

conduct a minimum of fifty (50) tours of New Zealand per season.

PJS alleges that Tauck breached those contracts in each of two

seasons. First, during the 2019 tour season, PJS says Tauck

employed its services for only 48 tours – two fewer than the

parties’ agreed-upon minimum. Next, PJS says Tauck breached the

parties’ agreements during the 2020 tour season by using PJS’s

services for only 23 tours – 27 fewer that the 50 tour seasonal

minimum. PJS claims that it is owed roughly $265,000 in damages

10 for the 2019 tour season and nearly $1.7 million in damages for

the 2020 season.

Tauck denies that it breached either of the parties’

contracts and says that it is excused from performing under

those contracts, either because PJS breached first, or because

its performance was rendered impossible by external events.

With respect to the 2019 season, Tauck blames PJS for having

failed to provide the agreed-upon aircraft for the first eight

tours, and says that failure amounts to a material breach. With

respect to the 2020 season, Tauck says the global COVID-19

pandemic and New Zealand’s related executive decision to close

its borders to all foreign travelers precluded contract

performance.

The contracts are governed by, and must be interpreted in

accordance with, New Hampshire law. Additionally, the parties

seem to agree that at least with respect to Count Two (relating

to the 2020 tour season), there are no genuinely disputed

material facts, and that claim can be resolved as a matter of

law. Each party has moved for summary judgment – PJS solely on

Count Two of the complaint; Tauck on both counts. For the

reasons discussed, those motions are denied, albeit without

prejudice.

11 Background

I. The Contracts.

In 2017, Tauck was looking for an aircraft charter agent to

arrange air transportation for the New Zealand portions of its

Australia/New Zealand tours. Tauck and PJS eventually reached

an agreement and, in January of 2018, the parties executed an

“Air Charter Services Blanket Purchase Agreement” (the “BPA”)

(document no. 21-3). That contract established the general

terms under which Tauck would book, and pay, for air

transportation, as well as any charges associated with each such

booking. The contract also included an agreed-upon cancellation

policy. The BPA makes plain that “PJS does not own or operate

aircraft.”

at para. 12. Instead, PJS “acts as agent for

its clients in negotiating and facilitating transportation with

licensed air carriers.”

(The court makes note of this

because the parties engage in a fairly lengthy debate over

whether PJS purchased or merely invested in a dedicated aircraft

for Tauck’s exclusive use in New Zealand.)

Attached to the BPA is Exhibit C, which sets out the

“standard terms and conditions” of the parties’ contractual

relationship. One of those provisions – the “Force Majeure”

clause - provides that, “PJS is not responsible” for delays,

losses or damages of any kind caused, in whole or in part by

12 Force Majeure, acts of war, terrorism, adverse meteorological

conditions, mechanicals, air traffic control delays or other

unforeseeable circumstances. Id. at 9. Because the parties

recognized that weather, staffing, or mechanical issues might

lead to occasions on which PJS would be unable to arrange for

the dedicated aircraft at the appropriate tour location or at

the time Tauck needed it, the BPA also includes a section

entitled “Contingency Management & Interruption.” In that

section PJS declares that it is its “policy” to “have a minimum

of two contingency plans in place for every flight.” But “PJS

may arrange for alternative transportation only with the express

written authorization from [Tauck].” See BPA, Section 20.

The BPA also contemplated that before Tauck actually booked

any aircraft through PJS, the parties would execute one or more

“Statements of Work” which would address the details of the

parties’ relationship, payment terms, and scheduling with

respect to particular flight operations. PJS and Tauck executed

the Statement of Work (document no. 21-4) in May of 2018. Its

term ran from January 13, 2019, through January 14, 2023, and

applied to “2019-2022 Tauck Australia-New Zealand Grand Tour (NZ

portion only) and 2019-2022 Tauck New Zealand Spotlight Tour.”

Id. at 1. The Statement of Work describes three different

routes for which PJS would provide air transportation, all of

13 which were within New Zealand: Wellington to Blenheim; Blenheim

to Manapouri; and Queenstown to Auckland. It also obligated PJS

to provide Tauck with a dedicated Embraer 145 LR Regional Jet

with 44 passenger seats for use in Tauck’s New Zealand tours.

Id.

For purposes of this litigation, three provisions of the

Statement of Work are relevant:

Contract Minimums (Guarantee): Tauck must guarantee a minimum of 50 tours per year. In the event of a shortfall in the number of tours operated in any Season, Tauck will pay to Supplier the 5O tour minimum price for the applicable Season as set forth on Table 1 of this Agreement. By way of example, if Tauck operates 48 tours in the 2020 Season, Tauck will owe Supplier an additional payment of $125,866 (50 tour minimum less 48 tours operated = 2 tour penalty x USD $62,933 per tour = USD $125,866).

Force Majeure: PJS is not responsible for delays, losses or damages of any kind caused in whole or in part by Force Majeure, acts of war, terrorism, adverse meteorological conditions, air traffic control delays or other unforeseen circumstances.

* * *

The definition of Force Majeure in the Blank Purchase Agreement 2017-3746 that governs this Statement of Work shall be modified to include Acts of God, events of nature, epidemics, [acts of] civil or military authority, strikes (other than with respect to Supplier) or labor disputes (other than with respect to Supplier), travel advisories of the Department of State of the United States of America, war, warlike activity, acts of terrorism and/or domestic or international violence of any nature either directly affecting the area where this Contract is to be

14 performed or causing disruption of travel to or from the area, or due to adverse market reaction to any of the foregoing events of Force Majeure.

Adverse Economic Conditions: In the event that:

a. During the Term, if the Dow Jones Industrial Index as published daily by the Wall Street Journal sustains a 30% decrease within a period not to exceed 75 calendar days (a “Market Correction”); and

b. That either Party exercises its rights in this Section 6 by providing the other party with written notice within 14 days of such Market Correction;

c. Then the Agreement will automatically terminate at the later of (i) the end of the current Season and (ii) 180 calendar days from the date that written notice is received by the receiving party.

Nothing contained In this Agreement shall be construed as to relieve Tauck from its obligation to pay Supplier for all flights flown or which Tauck is otherwise committed to by this Agreement.

Id. at 3, 5 (emphasis supplied). As an aside, the court notes

that the parties agree that the “Force Majeure” provisions of

the BPA, as amended by the Statement of Work, extend protection

from Force Majeure events only to PJS; they do not apply to

Tauck.

Additionally, the BPA contains an acceleration clause which

provides that: “Upon written notice of cancellation, all flights

not yet flown will be cancelled, and PJS will immediately be due

15 any outstanding charges pursuant to this Agreement, including

all applicable cancellation fees as set forth within this

Agreement, and all other outstanding charges to flights already

flown, but not yet paid by Customer.” Id. at 1.

II. The 2019 Tour Season.

In the spring of 2018, Tauck provided PJS with its

anticipated 2019 schedule of New Zealand tours. The schedule

was ambitious. Tauck would operate 72 tours (22 more than the

minimum required), beginning on January 13, 2019. A few months

later, however, PJS informed Tauck that it was having difficulty

securing an Air Operator Certificate for the Embraer aircraft.

The parties agreed to replace that aircraft with an ATR-72

Turboprop. On December 11, 2018, PJS notified Tauck that the

required final audit (clearance) of the ATR-72 was scheduled for

January 11, just a few days before the start of Tauck’s 2019

tour season. Then, on January 3, 2019, PJS informed Tauck that

the ATR-72 aircraft had been damaged and was not expected to be

in service until at least the third week in January. As it

turned out, the aircraft audit was not completed until February

6, 2019, and inspectors did not approve the aircraft for flight

until February 7, 2019, approximately three weeks after the date

on which PJS was obligated to arrange the first scheduled flight

for Tauck.

16 Because of the mechanical issues with the ATR-72, it was

unavailable for eight of the tours operated in January.

Accordingly, Tauck availed itself of its rights under the BPA

and elected to contract with a different air carrier (Alliance

Air) to provide air transportation for those tours. It appears

that Air Alliance had provided air transportation services to

Tauck previously and Tauck simply continued (or re-established)

its relationship with Alliance into January of 2019. For its

part, PJS agreed to refund the monies Tauck already paid for

those eight tours. PJS insists, however, that those flights do

not count toward Tauck's contractual obligation to operate a

minimum of 50 tours with PJS.

Tauck notes that, “Despite PJS inability to perform, Tauck

still conducted a total of 55-57 tours during the 2019 tour

season: 48 tours with PJS, and 7-9 with Alliance Air.”

Defendant’s Memorandum in Support of Summary Judgment (document

no. 22-1) at 6-7. Thus, says Tauck, it would have met the 50

tour minimum with PJS but for PJS’s own failure to perform under

the contract by neglecting to provide the ATR-72 Turboprop for

use during those eight tours in January. According to Tauck,

PJS “breached” the parties’ agreement with respect to those

eight tours by failing to provide the specified ATR-72 Turboprop

17 in a timely manner, and Tauck cannot possibly be held liable for

any of PJS’s alleged damages arising from that failure.

PJS has a different perspective, saying that the contracts

“required” it to have a “minimum of two contingency plans in

place for every flight to quickly recover from a mechanical”

delay, which it had in place. See BPA at Section 20. Moreover,

says PJS, consistent with that obligation, it offered to “sub-

service” the January flights, either through Air Chathams or Air

New Zealand. See Deposition of Greg Raiff, Chief Executive

Officer of Private Jets Services (document no. 23-2) at 63, 66-

67. Thus, it argues, it was never in breach of the parties’

contracts. And, although Tauck decided to exercise its

contractual option to decline the alternate flight arrangements

offered by PJS and, instead, use a different air carrier while

the ATR-72 Turboprop was unavailable, PJS asserts that Tauck

remained obligated to meet the annual 50 tour minimum. Because

Tauck operated only 48 tours with PJS that season, PJS asserts

it is still entitled to payment for the two “un-booked” tours.

III. The 2020 Tour Season.

In 2020, Tauck’s ability to conduct its tours in New

Zealand was undermined by the global COVID-19 pandemic. From

January 1 through March 19, 2020, Tauck operated, and PJS

18 arranged air travel for, 23 tours in New Zealand. On March 20,

2020, however, New Zealand closed its borders to foreign

travelers through (and beyond) the remainder of that year. At

that point, Tauck was not able to operate any of its remaining

2020 tours in New Zealand and all were cancelled. Tauck

refunded pre-payments that its customers had made. In total,

Tauck says it “refunded $4,925,000 to customers for trips to New

Zealand.” Affidavit of Philip Crosby, Tauck’s Chief Financial

Officer/Treasurer (document no. 24-7) at para. 24.

Given those circumstances, PJS and Tauck attempted but were

unable to resolve their differences with respect to their

relative obligations under the contracts, nor were they able to

amend the contracts to each party’s satisfaction. On May 28,

2020, Tauck invoked the “Adverse Economic Conditions” provision

contained in the Statement of Work and cancelled the parties’

contracts in their entirety:

Please be advised that a Market Correction has occurred and that Tauck hereby exercises its rights under Section 6 of the SOW to terminate the Agreement (including the Blanket Purchase Agreement and the SOW). This letter constitutes written notice of termination given pursuant to Section 6.b of the SOW.

Letter from Tauck to PJS dated May 28, 2020 (document no. 21-

32). Under the terms of the Statement of Work and, in

19 particular, the Adverse Economic Conditions provision, the

contracts between the parties would terminate at “the end of the

[2020] season” and, absent legal excuse, Tauck remained

obligated to pay PJS “for all flights flown” as well as all

other obligations for which “Tauck is otherwise committed to by

this Agreement.” Statement of Work, Section 6, at 3. That,

says PJS, means Tauck still must honor (and pay for) its

guarantee of a minimum of 50 tours for the 2020 season –

notwithstanding Tauck’s inability to actually operate those

tours. Because Tauck operated only 23 tours in 2020, PJS says

it is entitled to payment for the remaining 27 tours it was

promised.

The contract terms appear to be weighted in favor of PJS.

According to PJS, that was both intentional and understood by

the parties, because PJS was making a significant up-front

expenditure to secure the necessary dedicated aircraft, and it

needed to be assured that it would have a guaranteed stream of

income from Tauck to cover those sunk costs. As discussed more

fully below, PJS sees the annual 50 tour minimum as, in essence,

a guaranteed annual minimum payment without which, PJS says, it

would not have entered into the contracts with Tauck.

20 Tauck concedes that it may not seek to escape its

contractual liability by invoking the contracts’ Force Majeure

provisions. See, e.g., Defendant’s Memorandum in Opposition

(document no. 24-1) at 16 (“PJS and Tauck included Force Majeure

language that protected both PJS and its air carrier . . . There

is no disagreement that there is no similar language in either

the BPA or the SOW protecting Tauck.”). Nevertheless, it

contends that neither it nor PJS ever contemplated the scope and

duration of the pandemic’s economic impact. Nor, more

specifically, did either party imagine that New Zealand might

close its borders to all non-citizens – a first in the country’s

history. Consequently, says Tauck, it may properly invoke the

common law contract doctrines of impossibility and frustration

of purpose to excuse performance of its obligations under the

2020 contract, including meeting the 50-tour minimum commitment.

Discussion

I. The 2019 Tour Season.

As noted above, Tauck (but not PJS), moves for summary

judgment on Count One of the complaint. In support that motion,

Tauck asserts that PJS’s inability to provide the ATR-72

Turboprop for the first eight trips of the 2019 tour season

amounts to a material breach of the parties’ contracts.

21 PJS breached the terms of the SOW by failing to have the aircraft ready by January 13, 2019 as required by the SOW. PJS’s breach forced Tauck to seek out another air carrier (Air Alliance) for the January 2019 tours. . . . PJS’s claim under Count I is essentially an attempt to foist upon Tauck a penalty for PJS’s own breach of the SOW. Here, PJS should not be permitted to allege that Tauck breached the contract when PJS itself was the cause of Tauck operating only 48 tours with PJS in the 2019 season.

Defendant’s Motion for Summary Judgment (document no. 22) at 2.

Because PJS breached the Statement of Work, Tauck argues, it

cannot now seek damages for Tauck’s alleged breach.

PJS counters that its conduct did not amount to a breach of

contract and, even if it did, Tauck waived that breach by

failing to invoke the remedy provisions of those contracts in a

timely manner.

PJS does not dispute that it was unable to obtain authorization to fly the dedicated aircraft until after the first nine tours of 2019. However, the delay in receiving authorization does not constitute a material breach for two reasons. First, PJS offered to subservice the flights pursuant to Section 20 of the BPA. Second, Tauck waived the terms of Section Two and Three of the SOW — which appear to be the terms it is alleging PJS breached — by not invoking the remedies provided in those provisions.

Plaintiff’s Opposition Memorandum (document no. 23) at 15).

22 Turning to PJS’s first argument – that it did not breach

the parties’ agreements – the relevant section of the BPA

provides as follows:

Contingency Management & Interruption. PJS’ policy is always to have a minimum of two contingency plans in place for every flight to quickly recover from a mechanical, weather, or other Force Majeure. . . . When unforeseen interruptions occur, PJS’s dedicated client service team will work with Customer to analyze all contingency options available, and if necessary, to reposition the closest suitable aircraft. PJS may arrange for alternative transportation only with the express written authorization from Customer. If the aircraft is unable to complete any portion of the Itinerary due to adverse weather, operational, or mechanical reasons, Customer shall be notified immediately and PJS shall credit to Customer all proposed charges with respect to the canceled charter flight legs. Flights operated on a delayed or subcontracted basis will not be credited.

BPA, Section 20 (emphasis supplied). In short, then, if the

ATR-72 Turboprop was not available due to weather, operational,

or (as in this case) mechanical reasons, PJS represented that

its “policy” was to “work with [Tauck] to analyze all

contingency options available (including two plans it would have

in place),” but would only arrange alternate transportation

“with the express written authorization” of Tauck. “If the

aircraft is unable to complete any portion of the itinerary, PJS

shall credit [Tauck] all proposed charges with respect to the

cancelled charter flight legs.”

23 For its part, Tauck could either accept alternate

transportation proposed by PJS (and pay PJS as usual), or it

could secure its own transportation (and receive a credit from

PJS for the charges associated with the cancelled PJS flight).

PJS says it complied with the “requirements” of Section 20 by

offering Tauck an option to use a similar aircraft from either

Air Chathams or Air New Zealand. As was its apparent

contractual right, however, Tauck declined those offers and

chose, instead, to arrange flights through a different air

carrier: Air Alliance.

The parties plainly anticipated that there might be

occasions on which the ATR-72 Turboprop would not be available

and PJS would endeavor to offer options or “alternative

transportation” for Tauck’s consideration. PJS appears to have

followed its policy under Section 20 of the BPA by having two

contingency plans and offering to arrange alternative

transportation. But it does not follow either that Tauck failed

to “operate a tour” with respect to those occasions on which PJS

could not deliver the ATR-72, or that PJS is entitled to be paid

24 with respect to those operated tours for which it could not

provide the ATR-72. 1

Tauck’s argument in support of summary judgment on count

one is vague and undeveloped, providing little more than the

claim that PJS materially breached because the aircraft was not

ready on January 13, 2009, as required by the first paragraph of

the Statement of Work (“Term: January 13, 2019 – January 14,

2023”). An argument could be made – though Tauck does not make

it – that PJS breached the “Dispatch Reliability” provision of

the Statement of Work. See Id. at Section 2. But, anticipating

such an argument, PJS asserts that Tauck never timely invoked

the remedy provisions of that section and, therefore, waived any

claim that PJS breached. In response, Tauck has remained

silent.

The court is unwilling to resolve Tauck’s motion on grounds

not addressed by Tauck. See, e.g., Pollack v. Goodwin & Assocs.

1 As noted above, the Statement of Work provides that, “Tauck must guarantee a minimum of 50 tours per year. In the event of a shortfall in the number of tours operated in any Season, Tauck will pay to Supplier the 5O tour minimum price.” One unresolved question is whether that obligates Tauck to simply operate 50 “Tauck tours” (regardless of the air carrier involved, if the ATR-72 is unavailable) or whether it obligates Tauck to operate a total of 50 tours with the ATR-72 or PJS’s “alternate” services.

25 Hosp. Servs., LLC, No. 20-CV-825-SM,

, at *5

(D.N.H. Aug. 25, 2021) (“It is not enough merely to mention a

possible argument in the most skeletal way, leaving the court to

do counsel’s work, create the [framework] for the argument, and

put flesh on its bones. A litigant has an obligation to spell

out its arguments squarely and distinctly, or else forever hold

its peace. While it is conceivable that viable arguments might

support the [defendant’s] position — the court offers no opinion

on that point — at this juncture, [defendants] have failed to

develop arguments concerning most of [plaintiff’s claims].”)

(citations and internal punctuation omitted). See generally

Int’l Tape Co. v. Technicote, Inc.,

at *3

(D.N.H. April 21, 2000) (discussing why courts should be

reluctant to embrace legal arguments that have not been

presented by the parties). See also Coons v. Indus. Knife Co.,

(1st Cir. 2010).

At this juncture, Tauck has not carried its burden to

establish either that no material facts are genuinely disputed,

or that it is entitled to judgment as a matter of law. At first

blush it might seem evident that PJS is not entitled to payment

for cancelled flights due to its own inability to provide the

reserved aircraft for that flight. But the decisive question

might be phrased somewhat differently: e.g., did Tauck obligate

26 itself to pay PJS for 50 tours, even if PJS could not provide

the reserved aircraft with respect to some number, or even all,

of those 50 tours, if Tauck decided to reject alternatives

offered by PJS and instead arrange its own air transport? And,

it might be argued that under these contracts Tauck contracted

to operate a minimum of 50 tours during the season using PJS,

but “operate” refers to extending to PJS the opportunity to

provide transportation for a particular tour according to the

contract terms. That is, once PJS is presented with the

opportunity, that tour “counts” toward the minimum, even if PJS

cannot perform and Tauck elects to use alternative carriers.

The parties do not adequately engage on these potentially

dispositive issues (which may involve genuinely disputed

material facts) and the record is not sufficiently developed to

permit summary judgment. See e.g. Foundation for Seacoast

Health v. HCA Health Servs. of New Hampshire, Inc.,

(2008), citing N.A.P.P. Realty Trust v. CC Enterprises,

(2001) (“The language of a contract is

ambiguous if the parties to the contract could reasonably

disagree as to the meaning of that language.”). The court must,

then, necessarily deny Tauck’s motion for summary judgment on

Count One of the complaint.

27 II. The 2020 Tour Season.

Despite the closure of New Zealand’s border, one might

speculate that it was not “impossible” for Tauck to have

conducted tours within New Zealand in 2020 – albeit tours that

would have been available only to citizens of New Zealand and/or

non-citizens who were already in the country when the borders

were closed. In other words, while Tauck plainly could not

operate its tours as contemplated after the border closure, it

is not entirely clear that Tauck’s ability to conduct any tours

was rendered impossible or unlawful by the pandemic-related

border closure. See e.g. Bower v. Davis & Symonds Lumber Co.,

(1979) (“The impossibility doctrine requires

that there be complete and permanent impossibility.”) See

generally 14 Corbin on Contracts § 74.1 (2021).

In any event, on this record, Tauck’s stronger argument is

that it is excused from performance under the common law

doctrine of “frustration of purpose” or “commercial

frustration.” The New Hampshire Supreme Court has described the

doctrine as follows:

The doctrine of commercial frustration assumes the possibility of literal performance but excuses performance because supervening events have essentially destroyed the purpose for which the contract was made. Under the doctrine, a contract is to be considered subject to the implied condition that

28 the parties shall be excused in case, before breach, the state of things constituting the fundamental basis of the contract ceases to exist without default of either of the parties.

Gen. Linen Servs., Inc. v. Smirnioudis,

(2006)

(citations and internal punctuation omitted) (emphasis

supplied). See also Perry v. Champlain Oil Co.,

,

98–99 (1957) (“Where the assumed possibility of a desired object

or effect to be attained by either party to a contract forms the

basis on which both parties enter into it, and this object or

effect is or shortly will be frustrated, a promisor who is

without fault in causing the frustration, and who is harmed

thereby, is discharged from the duty of performing his promise

unless a contrary intention appears.”) (quoting Restatement of

Contracts, § 288).

Generally speaking, then, the common law doctrine of

commercial frustration provides that a party is entitled to

relief from its contractual obligations when:

(1) the principal purpose in contracting has been substantially frustrated,

(2) the frustration was caused by a supervening event that was not in fact contemplated by the parties, and

(3) the risk of the event occurring was not allocated by contract or otherwise.

29 14 Corbin on Contracts § 77.3 (emphasis supplied).

A. The Contracts’ Principal Purpose.

In arguing that Tauck cannot invoke the doctrine of

commercial frustration to avoid its contractual obligations, PJS

focuses not on the overarching purpose of the contracts as a

whole, but rather on the narrower purpose of the “contract

minimum” provision set forth in section 10 of the Statement of

Work. Accordingly, PJS argues that:

[T]he purpose of the Contract Minimum provision of the Agreement has not been frustrated by COVID-19. The purpose of that provision was to provide a safety net for PJS in its purchase of the dedicated aircraft. COVID-19 has not altered the purpose of that provision. If anything, COVID-19, coupled with Tauck’s refusal to pay, has provided a greater need for that safety net.

Plaintiff’s Opposition Memorandum (document no. 23) at 23

(emphasis supplied). But, the proper focus is not on the

intended purpose of individual provisions of the contracts.

Rather, it is on the “purpose” of the contracts viewed as a

whole.

Viewed in their entirety, the contracts’ overarching

purpose is plain: PJS was to arrange air transportation services

for two of Tauck’s identified seasonal tours of New Zealand.

30 So, for example, the Statement of Work required PJS to provide a

dedicated, 44-seat Embraer 145 LR Regional Jet (later amended to

an ATR-72 Turboprop) for use in Tauck’s “Australia-New Zealand

Tour” and its “New Zealand Spotlight Tour.” Statement of Work

at 1 (emphasis supplied). It also obligated PJS to provide a

“level of service and quality consistent with the expectations

of Tauck and Tauck’s guests” and imposed on PJS the obligation

to take immediate corrective action to resolve any identified

shortcomings. Statement of Work at Section 3 (emphasis

supplied). The Statement of Work also acknowledges that “this

Aircraft, Crew, and all personnel will be dedicated to, and

specifically configured and wrapped for Tauck.” Id. at Section

7. See also Id. at Section 10 (obligating PJS to provide an

aircraft with a Tauck “full wrap aircraft decal,” aircraft

interior designed to Tauck’s specifications; “two dedicated tour

concierge and one Program Manager positioned in New Zealand”;

and in-flight catered meals for Tauck’s customers); Plaintiff’s

Opposition Memorandum (document no. 23) at 23 (acknowledging

that the overarching “purpose of the Agreement was for PJS to

provide Tauck a dedicated aircraft for its New Zealand tours.”

Id. at 23.

Given the record, the objective manifestation of the

parties’ intent, as expressed in both the BPA and Statement of

31 Work, is unmistakable: PJS was to provide Tauck with a

dedicated, “wrapped” aircraft (and attendant services) for

Tauck’s exclusive use in conducting two specified seasonal tours

within New Zealand. The principal purpose was not, as PJS

suggests, to merely provide Tauck with an aircraft that it could

use as it pleased – say to deliver air cargo. See, e.g.,

Plaintiff’s Opposition Memorandum (document no. 23) at 23.

(“Tauck could have chosen to use the aircraft PJS provided for

whatever purpose it deemed fit.”). And, the contracts’

principal purpose was plainly frustrated when New Zealand closed

its borders and Tauck was no longer permitted to bring its

touring customers into the country. Thus, Tauck has established

the first of three essential elements of the common law doctrine

of commercial frustration. It falters, however, in establishing

the remaining two.

B. Contemplation of the “Supervening Event.”

Pointing to the Force Majeure clause of the BPA (as amended

by the Statement of Work), PJS strenuously argues that the

parties anticipated the “possibility of epidemics or

governmental advisories that could prevent travel.” Plaintiff’s

Memorandum in Support of Summary Judgment (document no. 21-1) at

7. That is correct in the sense that PJS protected itself from

such risks, and Tauck did not. Given the contract language, PJS

32 at least anticipated that an epidemic (or “epidemics”) might

occur in the future, and/or that civil authorities might take

action in a manner that could materially affect its ability to

perform its contractual obligations. That is, that epidemics

and the exercise of civil authority might make it economically

inadvisable or impractical or even impossible to conduct the

contemplated tours of New Zealand. It is also apparent that, in

consultation with each other, the parties negotiated the Force

Majeure terms explicitly. PJS protected itself from risks

associated with epidemics and the exercise of civil authority,

while Tauck did not. Tauck might have protected itself as well

but, for reasons satisfactory to it, it did not. Importantly,

however, it is not unarguably clear as a matter of New Hampshire

law that the COVID-19 pandemic, or closure of the New Zealand

border were “in fact” contemplated by the parties.

C. Was the Risk Allocated by the Contracts?

Here, the terms of the amended Force Majeure clause may

have implicitly (but certainly not explicitly) assigned the risk

of adverse events materially affecting contract performance

related to epidemics, and the exercise of civil authority, to

Tauck. As noted, the language of the clause was actively

negotiated (Tauck even suggesting that PJS include protection

from “epidemic” events). Tauck could have protected itself, in

33 addition to excusing PJS's performance, if Force Majeure events

occurred. What is not clear under New Hampshire law, however,

is whether by agreeing to the Force Majeure clause as written,

Tauck waived its otherwise available contract defenses. That is

to say, it is unclear under New Hampshire common law whether a

Force Majeure clause protecting just one of the parties

necessarily allocates (by implication) the risks of such events

to the other party to the extent of depriving that party of

otherwise-available common law defenses, like impossibility of

performance or frustration of purpose.

The record discloses no obvious reason why Tauck would

assume the risk of the Force Majeure events listed. But, as

Judge Posner noted, “a promisor might want his promise to be

unconditional, not because he thought he had superhuman powers

but because he could insure against the risk of nonperformance

better than the promisee, or obtain a substitute performance

more easily than the promisee.” N. Indiana Pub. Serv. Co. v.

Carbon County Coal Co.,

(7th Cir. 1986)

(citing Field Container Corp. v. ICC,

, 257 (7th

Cir. 1983) and Holmes, The Common Law 300 (1881)). And, as PJS

argues, Tauck was aware of PJS’s substantial investment risk and

perhaps was motivated to obtain PJS’s services by extending

broad protection to PJS while assuming broad risk itself.

34 Tauck suggests in passing that an “epidemic” does not a

“pandemic” make, so a Force Majeure event in the nature of a

pandemic was not a risk assumed by it, implicitly or otherwise.

But the Force Majeure clause includes a “catchall” phrase

covering “other unforeseen circumstances.” When a catchall

provision is included in a Force Majeure clause it is limited to

“things of the same kind or nature as the particular matter

mentioned.” Tommy Hilfiger Retail, Inc. v. North Conway

Outlets, LLC,

(D.N.H. February 14, 2000) (citing

URI Cogeneration Partners L.P. v. Bd. of Governors for Higher

Educ.,

(D.R.I. 1996)). A pandemic, in

colloquial expressions, is an epidemic that travels across

multiple countries or continents — spreading over and infecting

large geographic areas. There can be little doubt that the

COVID-19 pandemic, as it threatened New Zealand, was a “thing of

the same kind or nature” as an epidemic, and within the Force

Majeure clause event described as “epidemics.” And, of course,

the exercise of civil authority by the government of New Zealand

in closing the nation's borders falls comfortably within the

event described in the clause following “epidemics”: “[acts of]

civil or military authority.” See e.g. Rudolph v. United

Airlines Holdings,

(N.D. Ill. 2021)

(government ordered border closure due to COVID-19 pandemic

falls comfortably within the definition of a Force Majeure event

35 and the event was the proximate cause of air carrier’s inability

to perform contract for transportation).

It seems likely, then, that a bare, conventional analysis

would result in finding Tauck liable to perform, and unable to

invoke the common law excuses of impossibility or frustration.

But the amended Force Majeure clause poses a quirksome

impediment.

As noted above, the Force Majeure clause, as specifically

worded, protects only PJS from liability should an event occur.

It does not explicitly deprive Tauck of recognized common law

defenses like impossibility of performance or frustration of

purpose. The clause may, under New Hampshire law, implicitly

operate to deprive Tauck of those defenses, but no clear

statement on that point can be found in New Hampshire precedent.

A critical question then arises under New Hampshire's common

law:

whether a force majeure clause should be deemed a relinquishment of a party’s right to argue impracticability or frustration, on the theory that such a clause represents the integrated expression of the parties’ desires with respect to excuses based on supervening events; or whether such a clause either in general or as specifically worded in this case covers any different ground from [the defenses of impossibility or frustration of purpose].

36 N. Indiana Pub. Serv. Co.,

. That is,

impossibility and frustration of purpose defenses may remain

available contract defenses unless the contract documents

explicitly provide otherwise.

Given the uncertainties in New Hampshire’s common law, the

court cannot rule as a matter of law in favor of either PJS or

Tauck with respect to Count 2.

Conclusion

For the foregoing reasons, PJS’s motion for partial summary

judgment as to Count Two (document no. 21) is denied, albeit

without prejudice. Tauck’s motion for summary judgment on both

Count One and Count Two (document no. 22) is likewise denied,

without prejudice.

The court will schedule a case management hearing in the

coming weeks at which counsel will be afforded the opportunity

to be heard on whether the court should certify the following,

or other, question(s) to the New Hampshire Supreme Court:

Whether, under New Hampshire's common law, the Force Majeure clause as written (protecting only PJS) should be deemed a relinquishment of Tauck’s right to interpose the common law defenses of impossibility, impracticability, or frustration of commercial

37 purpose, on the theory that the clause represents the parties’ implicit allocation of the identified risks to Tauck.

Written memoranda of law are welcome but not required.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

September 30, 2022

cc: Counsel of Record

38