Thursday, July 27, 2017

A recent federal case demonstrates that courts will enforce the
forum selection clauses appearing in the fine print in a cruise ship
ticket. The lawsuit was heard in the United States District Court for
the District of Puerto Rico. It involved a motion (which is a request
by the moving party requesting that the court take some action,
whether it is dismissing a claim or in the case of summary
judgment motions, that the court determine that there is no triable of
issue of fact to present to the judge or jury) by Carnival, the cruise
line, to enforce the forum selection clause on a cruise passenger's

While the matter arose in Puerto Rico, it could have just as well
arisen in any of the nation’s Circuit Courts. Forum selection
clauses can be a contentious issue in the enforcement of
passenger rights in cruise ship accident cases and wrongful death
cases. Forum selection essentially means that the parties in a
transaction (here, a contract with the cruise line) agree to the forum
in which disputes will be adjudicated. While prevalent in the
litigation of cruise ship accident claims, these forum selection
clauses also appear in maritime employment contracts, setting the
forum and the venue for labor and employment disputes arising
from the prosecution of claims for maritime injury or disability from
accidents, wage disputes, and other matters.

Gibson v. Ecoquest (Civil Action No. 16-2702 - United States
District Court for the District of Puerto Rico) - read court's decision
at American Maritime Cases
, the plaintiffs alleged
negligent operation of a zipline system by the defendant. They also
asserted negligent instruction of safety checks, strict liability in
operating the inherently dangerous zipline activity, and negligent
misrepresentation and hiring by Carnival. The damages sought by
plaintiffs involved survivorship and wrongful death claims. Carnival
filed a motion to dismiss. The cruise line wanted to transfer the
lawsuit pursuant to a forum-selection clause. The plaintiffs argued
that the forum selection clause was unenforceable. The court here
granted the cruise line's motion to transfer the case.

The plaintiffs in this lawsuit made a number of arguments. They
initially argued that Carnival’s motion is procedurally improper
because the cruise line did not file a summary judgment motion,
and that the ticket contract has not been properly authenticated,
citing  Smith v. Lucent Techs., Inc., No. 02 - 0481, 2004 U.S. Dist.
Case 3:16-cv-02702-BJM. In determining the enforceability of forum-
selection clauses, the First Circuit established a “reasonable
communicativeness” standard, where the court raises tow issues
(Hoekstra v. Caribbean Cruises, Ltd., 360 F. Supp. 2d 362, 366 (D.P.
R. 2005). The first issue is that a court must examine the facial
clarity of the ticket contract and determine whether its language and
appearance make the relevant provisions sufficiently obvious and
understandable. The second issue is whether the “circumstances
of the passenger possession and familiarity with the ticket.’ This
means examination of extrinsic factors indicating the passenger’s
ability to become meaningfully informed of the contractual terms at
stake.” Shankles v. Costa Armatori, 722 F.2d 861, 864–866 (1st Cir.
1983), and Lousararian v. Royal Caribbean Corp., 951 F.2d 7, 8-9
(1st Cir. 1991))

However, the first issue was confronted by the argument that the
forum selection clause is not overly technical and is relatively
straightforward, in that all disputes whatsoever arising under, in
connection with or incident to this contract or the Guest's cruise . . .
shall be litigated, if at all, before the United States District Court for
the Southern District of Florida in Miami, . . . to the exclusion of any
other county, state, or country. Ultimately, after a number of other
issues were raised, including public policy and caseload of court
dockets, the court ruled in favor of the cruise line in enforcing the
forum selection clause.

The federal circuit court's decision in this motion shows that forum
selection clauses that dictate the court, arbitration, or venue on the
fine print on the back of a cruise vacation ticket are enforced. To
learn more about passenger legal rights, statutes of limitations,
see our video on
the cruise ship accident section (at the top of the

It is also important to keep in mind that in addition to clauses that
stipulate the forum for cruise ship accident, injury, wrongful death
lawsuits, there are also clauses that govern statutes of limitation
and notices of claim. These can be very accelerated timelines, in
the order of days and months, rather than years governed by state
law statutes of limitations in accident litigation.

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