Opinion
Civ. No. 98-5395 (DRD).
December 1, 1999.
Malcolm J. McPherson, Jr. Esq., Lyndhurst, New Jersey, Attorney for Plaintiffs.
Healy Baillie, John G. Ingram, Esq., Millburn, N.J., Attorney for Defendants.
O P I N I O N
This is a diversity action for negligence brought by Plaintiffs against Costa Crociere, S.p.A., Costa Cruise Lines, NV and the Cruise Line's unidentified physician. Defendants move for summary judgment on contractual time limitations and choice of forum grounds.
BACKGROUND AND DISCUSSION
Plaintiffs allege personal injuries to Dino Morin, on or about November 28, 1996, when he was swimming in the Caribbean Sea, Dominican Republic, at port of call, Serena Cay and was stung by a jelly fish. Plaintiffs allege that the Defendants, Costa Crociere, and Costa Cruise Lines, NV were negligent in: i) allowing passengers to enter the water; ii) failure to supervise; iii) failure to warn of a dangerous condition; and iv) failure to provide proper medical care. In addition, Plaintiffs allege that the vessel's doctor was negligent in rendering on board medical care to Dino Morin. Maria Morin claims loss of consortium as a result of the incident.
The ticket that the Plaintiffs held in order to board the Cruise Ship recited on the cover page with black print on white paper (the font and type are an approximate but reasonably accurate copy):
IMPORTANT NOTICE
PASSENGERS READ THIS TICKET IN FULL UPON RECEIPT
In accepting this ticket, passengers agree to be bound by all of its terms including its limitation of the passengers' rights. Each passenger should carefully examine this ticket, especially the conditions on pages 1,2,3 and 4.
The only other writing on the cover is the Cruise Ship's logo stating "Costa Cruises, Italian Style." Page one recited in black ink on white paper (the font and type are approximate but a reasonably accurate copy):
(1) NOTICE AND LIMITATION OF ACTIONS AGAINST THIS CARRIER
NO ACTION OR PROCEEDING AGAINST THE CARRIER FOR DEATH OR INJURY OR LOSS OF ANY KIND TO THE PASSENGER SHALL BE INSTITUTED, UNLESS WRITTEN NOTICE OF THE CLAIMS IS GIVEN TO THE CARRIER OR ITS DULY AUTHORIZED AGENT WITHIN SIX MONTHS FROM THE DAY WHEN THE DEATH, INJURY OR LOSS OCCURRED OR SUCH LONGER PERIOD AS MAY BE PRESCRIBED BY APPLICABLE LAW. IN ANY CASE NO ACTION OR SUIT AGAINST THE CARRIER FOR DEATH OR INJURY OR LOSS OF ANY KIND TO THE PASSENGER SHALL BE INSTITUTED UNLESS COMMENCED WITHIN ONE YEAR FROM THE DATE WHEN THE DEATH OR INJURY OR LOSS OCCURRED. . .
Page four recited in black ink on white paper (the font and type are an approximate but reasonably accurate copy):
Choice of Forum; No Arrest
(20) All controversies, disputes and matters of any kind whatsoever arising out of the voyage, including any causes arising from the death, bodily injury or pecuniary loss, or which may arise in connection with the formation, interpretation, execution, or enforcement of the Contract may be instituted only in the courts of Florida or in the courts of the judicial district or circuit where the port of embarkation is located, and any other action against the CARRIER will be considered void. Passenger hereby waives the right of arrest or otherwise detain the Vessel in any jurisdiction.
The ticket consisted of four pages total.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where the moving party establishes that "there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the non-moving party to carry its burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Once the moving party has carried its burden under Rule 56, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts in question." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986), rev'g, 723 F.2d 238 (3d Cir. 1983). The opposing party must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials of its pleadings. Sound Ship Bldg. Corp. v. Bethlehem Steel Co., 533 F.2d 96, 99 (3d Cir.), cert. denied, 429 U.S. 860 (1976).
At the summary judgment stage the court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The mere existence of some alleged factual dispute between the parties, however, will not defeat an otherwise properly supported motion for summary judgment. Id. at 247-248.
Analysis
A. Contractual Choice of Forum Clause and Statute of Limitations
Defendants argue that this case is improperly before this Court because of a legally binding choice of forum clause printed on the Cruise ticket when the Plaintiffs purchased the ticket. Furthermore, Defendants argue that the recited statute of limitations clause of one year printed on the ticket prohibits the plaintiffs from bringing this action because the statute of limitations recited in the ticket contract has run. Defendants argue that when the Plaintiffs accepted the ticket and boarded the cruise ship, they accepted these terms contractually and are now bound by them.
As stated by the Court of Appeals for the Third Circuit a forum selection clause is presumptively valid and will be enforced unless the party objecting to its enforcement established:
(1) that it is the result of fraud or overreaching, (2) that enforcement would violate a strong public policy of the forum, or (3) that enforcement would in the particular circumstances of the case result in litigation in a jurisdiction so seriously inconvenient as to be unreasonable. Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d 190, 202(3d Cir.) cert. denied, 464 U.S. 938, 104 S.Ct. 349, 78 L.Ed.2d 315, (1983).
The Plaintiffs have not demonstrated that enforcement of the forum selection clause would be unjust. Nor have they alleged that there was deception, overreaching or bad faith in accepting the ticket contract; or that it would be seriously inconvenient to litigate this matter in Florida.
The U.S. Supreme Court and the courts in the Third Circuit generally enforce this type of forum selection clauses. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 191 AMC 1697 (1991); Villani v. Carnival Cruise, Inc. 1996 AMC 1996 (W.D.Pa. 1996), Hicks v. Carnival Cruise Lines, Inc., 1995 A.M.C. 281 (E.D.Pa. 1994).
The Plaintiffs generally argue that, i) the cruise ticket does not reasonably communicate the choice of forum clause (Marek v. Marpan Two, Inc., 817 F.2d 242 (3d Cir. 1987)) and ii) the terms were too ambiguous to be enforceable as to on shore injuries (Rams v. Royal Carribean Cruise Lines, 17 F.3d 11 (1st Cir. 1994). Plaintiffs first allege that the small print of the ticket's warning fails to impress to the passenger the importance of the terms and conditions. The font, type and placement of the warnings compare favorably with ticket notices that courts have approved. Marek 817 F.2d at 246, and they surpass in visibility those notices that courts have found inadequate.
The Majestic , 166 U.S. 375, 382, 17 S.Ct. 597, 610 (1897) (no writing was on cover of ticket); O'Connell v. Norwegian Carribean Lines, Inc . , 639 F. Supp. 846 (1986) (holding that the warnings were not reasonably communicated because the face of the ticket "did not contain conspicuous language directing the passenger's attention to the contractual terms contained in other parts of the ticket."). Id . at 849.
Plaintiffs also apply the "not reasonably communicated" and ambiguity arguments to the statute of limitations term on the ticket. The Court of Appeals has held that,
the type-type size in which [the time limitations] clause is printed is not a significant matter; there is both ample time and a powerful incentive to study the passage contract ticket promptly after a loss has occurred. Id. at 247, quoting Lipton v. National Hellenic Am. Lines, 294 F. Supp. 308, 311 (E.D.N.Y. 1968). Marek v. Marpan Two, Inc., 817 F.2d 242, 247 (3d Cir. 1987) cert denied 48 U.S. 852 (1987).
Plaintiffs' argument of ambiguity of the terms of the ticket contract because the injury occurred during an excursion provided by the Cruise Line and not aboard ship, is unconvincing. The ticket contract provision clearly states that any disputes whatsoever "arising out of the voyage" is subject to the one year statute of limitations. Here the injury occurred on November 28 1996, and the complaint was filed on April 23, 1999 which is more than two years and clearly surpassing the one year statute of limitations specified in the ticket contract.
Plaintiffs rely on Rams v. Royal Carribean Cruise Lines, 17 F.3d 11, 11-13 (1st Cir. 1994) to support their contention of ambiguity with the statute of limitations term which would render the term unenforceable. InRams the Defendant owned both the ship and the premises where the injury took place, a hotel (id. at 11). The contract provided (as here) that independent contractors are liable for injuries during shore excursions. Because in Rams the Defendant, Royal Caribbean, was both the ship owner and the independent contractor for the shore excursion the grant of summary judgment was reversed and the case remanded for trial. The Plaintiffs do not allege that the Defendants in the instant case are the owners of Serena Cay beach where the injury took place. Because of the contractual provision that "the carrier is not responsible for incidents or claims which occur at shore accommodations" (ticket contract at 2, ¶ 4), the Defendants were not independent contractors for Serena Cay Beach and thus are not liable for injuries that took place there. Because the ticket contract terms were clear and unambiguous Defendants' summary judgment will be granted.
CONCLUSION
For the reasons set forth above, Defendants' summary judgment motion will be granted. An appropriate order follows.
O R D E R
This matter having been opened to the Court on defendants' motion for summary judgment, and notice having been given to all parties, in consideration of the papers submitted, for good cause shown, and for the reasons set forth in the Court's opinion of even date,
IT IS, on this day of November 1999, ORDERED that defendants' motion for summary judgment is hereby granted and the complaint in this action is dismissed.