| Where do I file my cruise line accident case and can I | | | | concerns following the 9/11 terrorist attacks, and the |
| sue somewhere else than my passenger ticket | | | | trial court granted the operator's motion to dismiss, |
| depends upon many factors. One factor is the | | | | based on the contractual forum selection clause, and |
| passage contract itself and another factor is | | | | the plaintiffs appealed, held that the passengers did |
| admiralty maritime law. In most instances, cruise lines | | | | not impliedly accept the forum selection clause, and |
| attempt to have the legal actions against them heard | | | | the forum selection clause was not enforceable under |
| in one state by a venue, or forum selection clause. | | | | federal maritime law. The court held that the |
| Carnival Cruise Lines tries to keep lawsuits against | | | | evidence did not establish that the prospective |
| them in Florida, while Princess Cruises try and keep | | | | passengers impliedly accepted, as a binding contract, |
| lawsuits against them in Los Angeles, California. In this | | | | the terms and conditions of the vacation ticket, |
| article we discuss the issue of can I file a cruise ship | | | | which included the forum selection clause, as the |
| case in a state other than the one on my passage | | | | passengers made repeated requests to reschedule |
| contract? | | | | their ticket, in light of safety concerns following the 9 |
| As of the writing of this article, the following laws | | | | 11 terrorist attacks. |
| applied and we make no representations that this will | | | | That court also held that the forum selection clause |
| be the law at the time of the reading of this article | | | | was not enforceable under federal maritime law, |
| and this is not to be construed as legal advice, but | | | | where the prospective passengers could not reject |
| instead as an educational resource under the fair use | | | | the forum selection clause with impunity. Because the |
| doctrine. You are encouraged to hire an experienced | | | | manner and means of the delivery of the terms of |
| cruise line lawsuit lawyer to explore in more detail | | | | the contract for passage did not fairly allow the |
| your case, but invite you to read this legal research, | | | | passengers "the option of rejecting the contract with |
| to familiarize yourself with the legal principles | | | | impunity," and because, in the limited time frame |
| contained herein. | | | | allotted, the passengers did not accept the ticket as |
| LAW ON FORUM NON CONVENIENS | | | | a binding contract, under controlling federal maritime |
| Can I sue in a state other than on my passenger | | | | law and Massachusetts contractual law, the |
| ticket? One of the best arguments in voiding a forum | | | | Florida-dictated forum selection clause was not |
| selection clause, in effect keeping a Carnival Cruise | | | | enforceable, and the court held that a suit may |
| Ship lawsuit in California, as opposed to Florida, is to | | | | therefore proceed in the Massachusetts courts. |
| argue forum non conveniens, or inconvenient forum, | | | | In Cismaru v. Radisson Seven Seas Cruises, Inc., 2001 |
| if you prefer. Federal maritime law applies a | | | | WL 6546 (Tex. App. Amarillo 2001), the court, |
| two-prong test to determine the enforceability of a | | | | reversing the trial court's dismissal of the plaintiffs' |
| forum-selection clause. First, the terms of the | | | | negligence action against a cruise line pursuant to a |
| contract must be "reasonably communicated" to the | | | | forum selection clause in cruise tickets purchased by |
| passenger. Deiro v. American Airlines, Inc., 816 F.2d | | | | the plaintiffs, requiring suit to be brought in Broward |
| 1360, 1364 (9th Cir.1987). Second, the forum-selection | | | | County, Florida, held that the clause was |
| clause must be "fundamentally fair." Carnival Cruise | | | | unenforceable where the passengers first obtained |
| Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 1528, | | | | notice of it upon receipt of their respective cruise |
| 113 L.Ed.2d 622 (1991). | | | | tickets, and each passenger received his ticket at a |
| "the proper test of reasonable notice is an analysis of | | | | time wherein he could not have canceled without |
| the overall circumstances on a case-by-case basis, | | | | incurring a penalty, and the clause was therefore, |
| with an examination not only of the ticket itself, but | | | | fundamentally unfair. |
| also of any extrinsic factors indicating the passenger's | | | | In Stobaugh v. Norwegian Cruise Line Ltd., 5 S.W.3d |
| ability to become meaningfully informed of the | | | | 232, 2001 A.M.C. 215 (Tex. App. Houston 14th Dist. |
| contractual terms at stake." Id. at 1364 (citing | | | | 1999), the court held, under federal maritime law, a |
| Shankles, 722 F.2d at 866) | | | | forum selection clause, appearing in minuscule print on |
| A passenger of a common carrier is contractually | | | | the back of a cruise line passenger ticket, requiring |
| bound by the fine print of passenger ticket if the | | | | suit to be brought in Florida, offended notions of fair |
| contract "reasonably communicate[s]" the existence | | | | play and fundamental fairness, and thus was |
| of terms and conditions that affect legal rights. Deiro | | | | unenforceable against passengers in their personal |
| v. American Airlines, Inc., 816 F.2d 1360, 1364 (9th | | | | injury action against the cruise line, where the |
| Cir.1987) (quoting Shankles v. Costa Armatori, S.P.A., | | | | 111-page promotional brochure sent to passengers did |
| 722 F.2d 861, 863-64 (1st Cir.1983)). Forum-selection | | | | not contain the clause, the passengers did not |
| clauses are presumptively valid and should be | | | | receive the ticket until after they paid for the cruise |
| honored "absent some compelling and countervailing | | | | in full, and they had no opportunity to reject the |
| reason." Id. at 1231 (quoting The Bremen v. Zapata | | | | clause without a penalty at the time they received |
| Off-Shore Co., 407 U.S. 1, 12, 92 S.Ct. 1907, 32 | | | | the ticket. The court noted, initially, that issues |
| L.Ed.2d 513 (1972)). A court may refuse to enforce | | | | relating to the enforceability of a forum selection |
| forum-selection clause for any of three reasons: | | | | clause in a cruise line passenger ticket are issues of |
| (1) "if the inclusion of the clause in the agreement | | | | admiralty, and are therefore governed by federal |
| was the product of fraud or overreaching"; (2) "if the | | | | maritime law, which preempts state law. |
| party wishing to repudiate the clause would | | | | The court continued, under federal maritime law, |
| effectively be deprived of his day in court were the | | | | forum selection clauses that are negotiated are |
| clause enforced"; and (3) "if enforcement would | | | | generally enforceable. A forum selection clause that is |
| contravene a strong public policy of the forum in | | | | not negotiated may be enforceable in some |
| which suit is brought." (Murphy, 349 F.3d at 1231-32.) | | | | situations, the court said, but the clause must be |
| And the Supreme Court has noted, a cruise line has a | | | | fundamentally fair to the party against whom it is |
| "special interest" in controlling the fora in which claims | | | | being enforced. The court, recognizing that the state |
| against it can be litigated. Shute, 499 U.S. at 593. A | | | | has a significant interest in providing its citizens with a |
| cruise ship can carry passengers who reside in a | | | | forum in which to resolve civil disputes, for purposes |
| variety of locations, which could subject the cruise | | | | of forum selection clause analysis, concluded that |
| line to litigation in several different fora. Id. | | | | parties who intend to deprive Texas citizens of the |
| Additionally, the forum-selection clause, by establishing | | | | right to use their courts by way of a forum selection |
| beforehand the proper location of the suit, can spare | | | | clause must give notice of that intention in an |
| the litigants, and courts, the time and expense of | | | | effective manner, and at a time that affords an |
| lengthy disputes regarding what forum is proper. Id. | | | | opportunity to reject such a term without penalty, |
| at 593-94. | | | | so as to comport with fundamental fairness. |
| These economies in litigation can benefit passengers | | | | In Pozero v. Alfa Travel, Inc., 856 S.W.2d 243 (Tex. |
| in the form of lower fares. Id. at 594. Carnival also | | | | App. San Antonio 1993), a suit by purchasers of |
| has a good reason for requiring litigation in Florida: this | | | | cruise tickets and trip cancellation insurance under the |
| is where its principal place of business is located. As in | | | | Deceptive Trade Practices Act, Tex. Bus. & |
| Shute, here there appears to be "no indication that | | | | Com. Code Ann. §§ 17.41 et seq. (DTPA), |
| [Carnival] set Florida as the forum in which disputes | | | | for alleged misrepresentations and failure to make |
| were to be resolved as a means of discouraging | | | | disclosures, the court, reversing the trial court's |
| cruise passengers from pursuing legitimate claims." Id. | | | | dismissal for lack of jurisdiction and improper venue, |
| at 595. | | | | held that the forum selection clause in the cruise |
| But in Walker v. Carnival Cruise Lines (2000) 107 | | | | ticket contract, requiring suit to be brought in San |
| F.Supp.2d 1135 the Passengers sued cruise line and | | | | Francisco, California, did not apply to the purchasers' |
| travel agents under the Americans with Disabilities | | | | claims, which did not raise issues about the content |
| Act (ADA) and state law (Unruh?), based on alleged | | | | of the contract or attempt to enforce or challenge |
| failure to provide appropriately accessible | | | | rights emanating from the contract. |
| accommodations on a cruise ship. On motion of cruise | | | | In Johnson v. Holland America Line-Westours, Inc., |
| line to dismiss or to transfer based on forum | | | | 206 Wis. 2d 562, 557 N.W.2d 475 (Ct. App. 1996), |
| selection clauses, and motion of agents to dismiss, | | | | where cruise ship passengers who were forced to |
| the District Court, 63 F.Supp.2d 1083, dismissed cruise | | | | cancel their trip less than 15 days before departure |
| line, based on forum selection clause in ticket | | | | requested a refund or credit of the ticket price of |
| specifying suit in Florida. | | | | $9,806, the court, reversing the trial court's dismissal |
| Passengers moved for reconsideration. The District | | | | of the complaint based on the forum selection clause |
| Court, Henderson, J., held that: (1) extreme severity | | | | in the cruise ticket, held that the clause, set forth in |
| of passengers' handicaps, and their poverty, | | | | fine print, requiring disputes to be litigated in Seattle, |
| supported retention of jurisdiction, and (2) retention | | | | Washington, was unfair and unenforceable. The court, |
| was supported on grounds that public policy favored | | | | recognizing that a passenger ticket for an ocean |
| encouragement of private actions to enforce ADA. | | | | voyage is a maritime contract whose interpretation |
| Motion to dismiss denied. | | | | and enforcement is governed by maritime law, |
| Can Minors Avoid a Cruise Liner Forum Selection | | | | explained that maritime law applies a two-prong test |
| Clause Easier than an Adult? | | | | to determine the enforceability of a forum selection |
| Almost every case I could find about minors | | | | clause contained in a passenger ticket: the terms |
| concluded that a minor child who was injured while a | | | | must be reasonably communicated to the passenger; |
| passenger on a cruise ship is bound by the passenger | | | | and the forum selection clause must be |
| contract also. In Morrow v. Norwegian Cruise Line, | | | | fundamentally fair. |
| Ltd., 262 F.Supp.2d 474 (M.D.Pa.2002), at issue was | | | | Reasonably Communicated Test |
| the forum selection clause printed on the cruise ship | | | | Under the "reasonably communicated" test for |
| ticket. Morrow relied on three cases, all of which | | | | enforceability of a forum selection clause in a |
| involved forum selection clauses, rather than | | | | passenger ticket, the court must determine whether |
| arbitration clauses. See Igneri v. Carnival Corp., 1996 | | | | the contract reasonably communicated to the |
| WL 68536, ( E.D.N.Y.2002) (granting defendant's | | | | passenger the existence of important terms and |
| motion to transfer plaintiff's case from the United | | | | conditions that affected the legal rights of the |
| States District Court for the Eastern District of New | | | | passenger. Reasonable notice, the court explained, is |
| York to the United States District Court for the | | | | a question of law, and the court must examine |
| Southern District of Florida), Harden v. Am. Airlines, | | | | circumstances surrounding the purchase of the ticket, |
| 178 F.R.D. 583, 585-86 (M.D.Ala.1998) (granting | | | | the purchaser's familiarity with the ticket and the |
| Defendant American Hawaii Cruises's motion to | | | | incentive to study the provisions and notices |
| dismiss on the ground of improper venue based on a | | | | received. In the instant case, the court found, the |
| forum selection clause which required that any lawsuit | | | | forum selection clause was unfair and unenforceable |
| arising out of the cruise "must be brought and | | | | where the passengers received the ticket less than |
| litigated, if at all, before a court located in the State | | | | 45 days before departure, and under the plain terms |
| of Hawaii, to the exclusion of the courts of any | | | | of the ticket, the passengers would have had to |
| other country or located in any other state of the | | | | forfeit one-half of the entire purchase price of |
| United States" (emphasis added)); Paster v. Putney | | | | $9,806 if they had rejected the contract and |
| Student Travel, Inc., 1999 WL 1074120, ( | | | | canceled the trip on receipt of the ticket. |
| C.D.Cal.1999) (concluding that exclusive jurisdiction for | | | | State trial court's conclusion that forum selection |
| the plaintiff's action against the defendant was in the | | | | clause in cruise ship ticket contract was not |
| courts of Vermont, rather than the United States | | | | reasonably communicated to passengers, so that |
| District Court for the Central District of California). | | | | clause was not enforceable under federal admiralty |
| Transfer under 28 U.S.C. § 1406? | | | | law, was not against manifest weight of evidence; |
| Section 1406(a) provides: "The district court of a | | | | passengers testified they never received ticket |
| district in which is filed a case laying venue in the | | | | booklet containing bus and cruise tickets, passengers |
| wrong division or district shall dismiss, or if it be in the | | | | were unable to provide bus and cruise tickets to ship |
| interest of justice, transfer such a case to any | | | | owner's representatives, and perforated sheet that |
| district or division in which it could have been | | | | passengers signed dockside when they were unable |
| brought." 28 U.S.C. § 1406(a). | | | | to provide bus and cruise tickets was not attached |
| Under § 1406, a court may transfer a pending | | | | to a larger document containing forum selection |
| case to another state, or dismiss the action | | | | clause. Mack v. Royal Caribbean Cruises, Ltd., 297 Ill. |
| altogether. "Normally transfer will be in the interest of | | | | Dec. 593, 838 N.E.2d 80 (App. Ct. 1st Dist. 2005). |
| justice because normally dismissal of an action that | | | | CONCLUSION |
| could have been brought elsewhere is time-consuming | | | | If a minor is involved you can try and argue that |
| and justice-defeating." Miller v. Hambrick, 905 F.2d | | | | your state, such as California ("CA"), has a special |
| 259, 262 (9th Cir.1990) (addressing transfer under 28 | | | | state interest in protecting its own children and |
| U.S.C. § 1631). | | | | fundamental fairness dictates the minor litigate his/her |
| Other Cases Where a Forum Selection Clause Was | | | | case here in CA based upon the above cases. In all |
| Held Unenforceable | | | | events, assuming it is a Carnival lawsuit, you would |
| The state courts in the following cases held that a | | | | still need present compelling evidence that Florida law |
| forum selection clause in a cruise ticket was | | | | provides less protection than CA law if arguing state |
| unenforceable, under the facts and circumstances | | | | interest in protecting a minor. (Gagnon v. Ryerson, |
| presented. | | | | Inc., No. 07-68-AS, Slip Op. at 4. ( D.Or.Fed.1, 2007). |
| In Carnival Cruise Lines, Inc. v. Superior Court, 234 | | | | And remember that under Harden v. American |
| Cal. App. 3d 1019, 286 Cal. Rptr. 323, 1992 A.M.C. 320 | | | | Airlines, 178 F.R.D. 583, 587 (M.D.Ala.1998), a minor |
| (2d Dist. 1991), an action by passengers on a cruise | | | | may not void a contract to escape the forum |
| ship against the owners for injuries sustained during a | | | | selection clause contained therein if the minor has |
| storm at sea, the court held that the forum selection | | | | already accepted the benefits under the contract); |
| clause which provided that all disputes arising under or | | | | Holland v. Universal Underwriters Ins. Co., 270 |
| in connection with the ticket contract for passage on | | | | Cal.App.2d 417, 421, 75 Cal.Rptr. 669, 671 (1969) |
| the cruise ship would be litigated in Florida courts, | | | | (asserting that minors choosing to disaffirm a |
| was unenforceable as to any particular plaintiff if the | | | | contract must "disaffirm the entire contract, not just |
| trial court, upon remand, determined that such a | | | | the irksome portions"). |
| plaintiff did not have sufficient notice of the forum | | | | Assuming a minor child was raped on a cruise liner for |
| selection clause prior to entering into the contract for | | | | example, the question becomes, is a minor being |
| passage; absent such notice, the requisite mutual | | | | raped is an acceptance of a benefit, or a |
| consent to that contractual term would be lacking | | | | misrepresentation of safety? If fraud then you have |
| and no valid contract with respect to such clause | | | | a basis to void the clause. Where do I file my cruise |
| would exist. | | | | line accident case will depend upon whether or not |
| The court in Casavant v. Norwegian Cruise Line, Ltd., | | | | you can void the forum selection clause and file a |
| 63 Mass. App. Ct. 785, 829 N.E.2d 1171 (2005), in | | | | cruise ship case in a state other than the one your |
| which prospective passengers for a vacation cruise | | | | passage contract that is more convenient to your or |
| brought an action against the cruise ship operator, | | | | the injured victim trying to recover damages like |
| relating to the operator's failure to honor their | | | | medical bills, psychological bills and physical and mental |
| request to reschedule their ticket, based on safety | | | | pain and suffering damages. |