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Mack v Royal Caribbean Cruises

JAMES MACK and SHEILA MACK,
   Plaintiffs and Respondents-Appellees,
v.

ROYAL CARIBBEAN CRUISES, LTD.,
 Defendant and Petitioner-Appellant

No. 1-04-2168
The Honorable
Joseph N. Casciato,
Judge Presiding.

JUSTICE GREIMAN delivered the opinion of the court:
Plaintiffs James and Sheila Mack brought suit against defendant Royal Caribbean Cruise Lines, Ltd., alleging that
James cut his foot in the swimming pool area of a cruise ship owned and operated by defendant. Plaintiffs alleged that
defendant was liable for negligently maintaining its swimming pool area; that defendant was vicariously liable for the
negligent medical treatment James received from defendant's on-board physician; and that defendant was liable to
Sheila for loss of consortium. Pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308), defendant now appeals the trial
court's interlocutory orders reinstating the plaintiffs' vicarious liability count and denying defendant's motion to
dismiss.

Plaintiffs filed suit on November 29, 2001. Defendant moved to dismiss the vicarious liability and loss of consortium
counts of plaintiff's complaint on the grounds that federal admiralty law did not recognize those causes of action.
Initially, the trial court granted defendant's motion; however, on June 2, 2004, the trial court granted plaintiff's
motion to reinstate the vicarious liability count after considering the recent holding of the Florida appellate court in
Carlisle v. Carnival Corp., 864 So. 2d 1 (Fla. 2003), appeal allowed, 904 So. 2d 430 (2005). Carlisle held that a
passenger injured by the negligent treatment of a cruise line's on-board physician could maintain a vicarious liability
cause of action against the cruise line.
Defendant also moved to dismiss the case on the grounds that the forum selection clause in the ticket contract
between the parties required plaintiffs to bring suit in Miami, Florida. The case proceeded to an evidentiary hearing on
this issue.

Nancy Calvo Varela testified that on March 2001, plaintiffs met with her to discuss Mediterranean cruises. Varela, a
travel agent for American Express Travel, doing business as Crossroads Travel Service (hereinafter Crossroads
Travel), provided plaintiffs with several brochures. Varela testified that on March 14, 2001, Sheila visited Crossroads
Travel to place a deposit on a cruise offered by defendant. On June 8, 2001, Sheila visited Crossroads Travel to make
final payment on the cruise. On June 28, 2001, Sheila visited Crossroads Travel a final time to pick up her trip
information. Varela identified a ticket booklet at the hearing. While not identical, the booklet was essentially the
same as the one Varela testified that she had given Sheila. It provided in relevant part:"IT IS AGREED BY AND
BETWEEN PASSENGER AND CARRIER THAT ALL DISPUTES AND MATTERS WHATSOEVER ARISING UNDER, IN
CONNECTION WITH OR INCIDENT TO THIS CONTRACT SHALL BE LITIGATED, IF AT ALL, IN AND BEFORE A
COURT LOCATED IN MIAMI, FLORIDA, U.S.A., TO THE EXCLUSION OF THE COURTS OF ANY OTHER STATE,
TERRITORY, OR COUNTRY. PASSENGER HEREBY WAIVES ANY VENUE OR OTHER OBJECTION THAT HE MAY
HAVE TO ANY SUCH ACTION OR PROCEEDING BEING BROUGHT IN ANY COURT LOCATED IN MIAMI,
FLORIDA."

Varela testified that on June 28, 2001, when she gave Sheila the ticket booklet, she explained that Sheila should read
the booklet and that it would need to be signed before the plaintiffs could board the ship. Varela did not discuss the
substance of the booklet or specifically refer Sheila to the forum selection clause. Varela testified that the booklet
would have contained both ground transportation vouchers that would have allowed plaintiffs to board the bus from the
airport in Rome to the pier in Civitavecchia, Italy, and tickets that would allow them to board the ship once they
arrived at the pier. Varela testified that if a cruise passenger arrived at the dock without a ticket, he would be
required to sign a ticket dockside before boarding the ship.
Sheila testified that she, James and their daughter met with Varela in early March 2001 to discuss booking a cruise.
On March 14, 2001, Sheila placed a deposit on the trip and Varela gave her an itinerary, a confirmation slip from Fun
Jet airline and confirmation vouchers for plaintiffs' transportation from the airport to the ship. On June 8, 2001,
James made the final payment on the trip. On June 28, 2001, Sheila received a folder from Varela that included
plaintiffs' airline tickets and luggage tags. Sheila testified that she did not receive a ticket booklet. James testified
that his wife was responsible for making all of the arrangements for the trip. He also did not receive a ticket booklet
at any time.

Plaintiffs testified that upon their arrival in Rome, they were directed to a bus that would transport them to the cruise
ship in Civitavecchia, Italy. Defendant's staff asked plaintiffs to present their ground transportation tickets, which
they did not have. Nonetheless, plaintiffs were permitted to board the bus because their names appeared on the
passenger list. Plaintiffs testified that when they arrived at the pier, defendant's representatives requested that
plaintiffs present their tickets to board the ship, which plaintiffs also did not have. Plaintiffs were directed to wait in
the "problem" line. Plaintiffs were each asked to sign a small perforated sheet that provided:

"THIS IS YOUR CRUISE TICKET CONTRACT. IT IS IMPORTANT THAT YOU READ ALL TERMS OF THIS
CONTRACT (PP1-2). THIS TICKET IS NOT TRANSFERABLE AND IS NOT SUBJECT TO ALTERATIONS BY THE
GUEST."

Plaintiffs testified that nothing was attached to the small sheet. Plaintiffs signed the perforated sheet after being
informed that no family member could board the ship without signing the document. Sheila assumed the document
was to open an on-board charge account. James admitted that he did not scrutinize the perforated sheet. When the
plaintiffs signed the perforated sheet, both were distracted by their young daughter and had had little rest since
leaving for their trip.
Concerning the hardship that plaintiffs would endure if forced to litigate their case in Florida, Sheila testified that
James is partially paralyzed and that he is unable to use the bathroom and must use a urine bottle when traveling.
James testified that he must switch to a smaller wheelchair when he boards airplanes and must carefully monitor what
he eats and drinks. James testified that both his wife and daughter would accompany him to Miami, Florida, to litigate
the suit because he requires Sheila's help in traveling and his second-grade daughter would have nobody to take care
of her in Chicago. Nonetheless, plaintiffs admitted that since his injury, James had taken trips to New York, Denver
and Cancun.

On July 12, 2004, the trial court made several factual and legal findings. The trial court found that plaintiffs never
received a complete ticket contract containing the forum selection clause, and the only portion of a ticket contract
ever provided by defendants to plaintiffs was the perforated sheet to which nothing was attached. Furthermore, the
trial court found that at no time was the forum selection clause otherwise communicated to plaintiffs by defendant or
Crossroads Travel. Accordingly, plaintiffs never accepted the terms of the clause. The court further found that
litigating the suit in Miami, Florida, would be "extremely difficult, if not impossible" for James, given his physical
handicap and financial hardships. Accordingly, the trial court denied defendant's motion to dismiss.
The trial court certified the following two questions to this court:
"1. Under federal admiralty law, is a state court bound to apply federal admiralty precedent precluding vicarious
liability claims against cruise lines for the alleged negligence of shipboard doctors, or is it free to permit such a
vicarious liability claim against a cruise line?

2. Under federal admiralty law, does a passenger's signature on a ticket contract which contains a forum selection
clause bind the passenger to the forum designated therein despite the passenger's claim that he did not timely receive
or read the forum selection clause?"On October 20, 2004, pursuant to Rule 308, we granted defendant's application to
appeal. After the parties had fully briefed their arguments, on March 31, 2005, defendant moved to strike plaintiffs'
argument that the forum selection clause should not be enforced because enforcement would cause them undue
physical and financial hardship. According to the motion, on October 22, 2004, defendant served plaintiffs with
interrogatories inquiring about any trips James had taken since his original deposition. Plaintiffs had failed to respond
to the interrogatories. On April 11, 2005, we allowed the motion and took it with the case.
We will first address the outstanding motion. In reviewing the trial court's order denying defendant's motion to
dismiss, this court is confined to consider evidence and matters considered by the trial court in issuing its order.
Wieser v. Missouri Pacific R.R. Co., 98 Ill. 2d 359, 363-64 (1983); Logan v. Old Enterprise Farms, Ltd., 139 Ill. 2d 229,
237 (1990). The trial court's July 12, 2004, determination that the case should not be dismissed was based on the
evidence presented during the evidentiary hearing. Defendant's interrogatories were served after this court had
granted defendant's application for appeal. Because we review only the matters considered by the trial court, plaintiffs'
failure to respond to the interrogatories at issue has no bearing on our analysis. Accordingly, we deny defendant's
motion to strike plaintiffs' argument regarding the physical and financial hardship they would experience as a result of
enforcement of the forum selection clause.

We turn now to the trial court's second certified question regarding the enforceability of the forum selection clause.
Defendant contends that the trial court erred in refusing to dismiss this suit based upon the forum selection clause in
the ticket contract because the evidence adduced at the hearing supports the conclusion that the forum selection
clause was reasonably communicated to plaintiffs. Plaintiffs respond that the evidence indicated that the clause was
not reasonably communicated and that the evidence further indicated they would suffer physical and financial hardship
if the clause were enforced.

A cruise ticket is a maritime contract governed by federal admiralty law. Carnival Cruise Lines, Inc. v. Shute, 499
U.S. 585, 590, 113 L. Ed. 2d 622, 629, 111 S. Ct. 1522, 1525 (1991). Forum selection clauses are " 'prima facie valid.' "
Shute, 499 U.S. at 589,113 L. Ed. 2d at 629, 111 S. Ct. at 1525, quoting The Bremen v. Zapata Off-Shore Co., 407 U.S.
1, 9-10, 32 L. Ed. 2d 513, 520, 92 S. Ct. 1907, 1913 (1972). Nonetheless they are subject to "judicial scrutiny for
fundamental fairness." Shute, 499 U.S. at 595, 113 L. Ed. 2d at 633, 111 S. Ct. at 1528. Federal courts have employed a
two-pronged "reasonable communicativeness" test to determine whether a contract clause was reasonably
communicated to a passenger and was, therefore, contractually binding. Wallis v. Princess Cruises, Inc., 306 F. 3d 827,
835 (9th Cir. 2002); Ward v. Cross Sound Ferry, 273 F.3d 520, 523 (2nd Cir. 2001) . Unless both prongs of the test are
met, the contract clause will not be enforced. See Wallis, 306 F.3d at 835-37; Ward, 273 F.3d at 523. The first prong of
the test examines the appearance of the ticket, including " ' "size of type, conspicuousness and clarity of notice on the
face of the ticket, and the ease with which a passenger can read the provisions in question." ' " Wallis, 306 F.3d at
835-36, quoting Deiro v. Am. Airlines, Inc., 816 F.2d 1360, 1364 (9th Cir. 1987), quoting Shankles v. Costa Armatori,
S.P.A., 722 F. 2d 861, 864 (1st Cir. 1983). The second prong of the test focuses on external circumstances, such as the
passenger's familiarity with the ticket, the time and incentive under the circumstances to study the provisions of the
ticket, and any other notice the passenger received outside of the ticket. Ward, 273 F.3d at 525. In order to determine
whether a clause was reasonably communicated, a court applies " ' "an analysis of the overall circumstances on a
case-by-case basis, with an examination not only of the ticket itself, but also of any extrinsic factors indicating the
passenger's ability to become meaningfully informed of the contractual terms at stake." ' " Wallis, 306 F.3d at 835,
quoting Deiro, 816 F.2d at 1364, quoting Shankles, 722 F.2d at 866. Courts may also consider physical or financial
impediments suffered by plaintiffs when deciding whether to enforce a forum selection clause. Walker v. Carnival
Cruise Lines, 107 F. Supp. 2d 1135, 1140-41 (N.D. Cal. 2000). Because the trial court's determination that the forum
selection clause would not be enforced depended on its factual findings, we will not reverse unless those findings were
contrary to the manifest weight of the evidence. Hernandez v. New Rogers Pontiac, Inc., 332 Ill. App. 3d 461, 464
(2002).


*****





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Cruise Ship Injury Case - Loss of
Consortium - Cut Injury - Med Mal -
Vicarious Liability of Cruise Ship Line
This case was brought by a passenger who
was injured aboard a cruise ship. Plaintiffs
brought suit against defendant Royal
Caribbean Cruise Lines, Ltd., alleging that
one of them cut his foot in the swimming
pool area of a cruise ship owned and
operated by defendant. Plaintiffs alleged
that defendant was liable for negligently
maintaining its swimming pool area; that
defendant was vicariously liable for the
negligent medical treatment injured plaintiff
received from defendant's on-board
physician; and that defendant was liable to
other plaintiff for loss of consortium
Defendant Royal Caribbean moved to
dismiss the vicarious liability and loss of
consortium counts of plaintiff's complaint
on the grounds that federal admiralty law
did not recognize those causes of action.
This court denied trial court's interlocutory
orders denying defendant's motion to
dismiss and reinstating plaintiffs' vicarious
liability count.
bring you to the maritime
law pages of Attorney Tim
Akpinar.