As a lawyer who sues cruise lines–like Carnival, Royal Caribbean, Celebrity, Disney, Norwegian, Princess, Holland America, and others–on behalf of people who have been injured on a cruise ship, I cringe every time I read about a legitimately injured passenger who gets caught by the number-one secret weapon cruise lines use to win their cases: the one-year statute of limitations and venue selection clauses buried in the passenger cruise ticket. Thanks to Congress, cruise lines have been able to legally shorten the normal statute of limitations that would apply to any typical maritime accident from three years to one year.(( Congress specifically authorized cruise lines to shorten the limitations periods for providing notice of suits and for filing suits by inserting a reasonable limitation period into their passage contracts. See 46 U.S.C. § 183b(a).))
Cruise lines understand that few if any of their passengers read their passenger cruise tickets, or if they do read them, even fewer understand the complex legal mumbo jumbo they contain. People are understandably more interested in finding the midnight buffet and booking facials than figuring out how, when, and where to sue the cruise line if they get hurt. I read case opinions week after week where well-intentioned lawyers who do not regularly sue cruise lines mistakenly believe they can sue a cruise line like Carnival in their local state courthouse or after the one-year statute has passed. Rarely, if ever, have I seen a Federal court excuse the failure to follow the cruise lines’ requirements of filing in Federal Court within one year; rather, I see case after case dismissed before ever getting to a jury.
Recently, January Calixterio, a woman who was represented by another Miami personal injury law firm, slipped and fell on a wet step aboard the Carnival Glory cruise ship. tumbling down several stairs. Her lawyers sued Carnival Cruise Lines–not in Federal Court in Miami, but in Miami Dade’s state court.
Carnival moved to dismiss the case, claiming that she violated the ticket contract’s one-year limitation period and forum-selection clauses. The statute of limitations requires when the lawsuit must be filed (within one year), and the forum selection clause of the contract requires where the lawsuit must be filed (Federal Court in Miami). She responded by arguing that the terms of the contract were unenforceable because “they were not reasonably communicated to her” and because she did not have “an objectively reasonable opportunity to reject them” since her ticket was purchased by her mother-in-law online and was never provided to her.
A federal judge here in Miami was unimpressed with the lady’s argument and dismissed her entire case.(( Calixterio v. Carnival Corporation United States District Court, S.D. Florida. January 07, 2016 Slip Copy 2016 WL 3973791 15-22210-CIV )) Here’s why:
Carnival argued that her ticket contract was posted on Carnival’s website and was available for her to view at all material times. The ticket contract, which governs the Parties’ relationship, contains the following clauses:
The acceptance or use of this ticket by the person(s) named hereon as Guests shall be deemed acceptance and agreement by each of them to all the terms and conditions of this cruise contract. Carnival shall not be liable for any claims whatsoever for personal injury, illness or death of the guest, unless full particulars in writing are given to Carnival within 185 days after the date of the injury, event, illness or death giving rise to the claim. Suit to recover on any such claim shall not be maintainable unless filed within one year after the date of the injury, event, illness or death … Guest expressly waives all other potential applicable state or federal limitations periods. [i]t is agreed by and between the Guest and Carnival that all disputes and matters 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, or as to those lawsuits to which the Federal Courts of the United States lack subject matter jurisdiction, before a court located in Miami-Dade County, Florida, U.S.A. to the exclusion of the Courts of any other county, state, or country.
Shortly after she fell, she hired a lawyer who contacted Carnival, requesting a copy of the ticket. Carnival responded to her lawyer, directing him to its website to view the ticket contract, and informed Plaintiff of the following, which is known as a “reservation of rights”:
All rights in equity, law, and those contained within the guest cruise ticket contract are expressly reserved including the forum selection/venue provision requiring all passenger lawsuits against Carnival to be filed in the United States District Court for the Southern District of Florida in Miami, Florida. Carnival will not waive its contractual defense if a lawsuit is filed in the wrong court.
Her lawyer than sent Carnival a demand package, and as is typical, Carnival sent a settlement offer to Plaintiff. In that letter, Carnival included the same reservation of rights language that it had included in its earlier response. The parties continued to negotiate for months and as the statute of limitations approached, her lawyer emailed Carnival yet another settlement demand.
Not surprisingly, and despite numerous discussions, no settlement with Carnival was reached. Consequently, and unfortunately, her lawyers filed suit against Carnival in the Eleventh Judicial Circuit of Florida in and for Miami-Dade County, Florida, and served Carnival with the state court complaint. Carnival then waited, until more than one year after Plaintiff’s alleged accident, to inform her lawyers that Carnival would seek a dismissal of the state court action based on the ticket contract’s forum-selection clause. That same day—more than one year after her accident—Plaintiff filed suit in Federal court. Carnival then moved to dismiss the state court case based on the ticket contract’s statute of limitations clause–very tricky indeed.
Summary Judgments When Suing a Cruise Line
Summary Judgments in favor of the defendant cruise lines in cruise ship passenger accident cases are appropriate when the cruise line can show the judge that there is no genuine dispute as to any material fact and the cruise line is therefore entitled to judgment as a matter of law.((Fed. R. Civ. P. 56(a).)) Courts are not supposed to weigh the evidence to determine what is true or not–that is a jury’s job. In fact, under the Summary Judgment standard, only disputes over facts that might affect the ultimate outcome of the case under the governing law will properly prevent summary judgment.(( Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).)) Genuine issues are defined as those in which the evidence is such that a reasonable jury could return a verdict for the injured passenger.
In this case, in evaluating Carnival’s motion for summary judgment, the Court considered the evidence in the record, “including depositions, documents, electronically stored information, affidavits or declarations, stipulations …, admissions, interrogatory answers, or other materials.”(( Fed. R. Civ. P. 56(c)(1)(A).)) The court is required to view all of this evidence in the light most favorable to the Plaintiff passenger and resolve all reasonable doubts about the facts in favor of the Plaintiff passenger.((Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir. 2008).))
How Federal Courts Enforce Cruise Ship Passenger Contracts
Federal Courts routinely enforce the cruise line forum-selection clauses unless “exceptional circumstances exist,”(( Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 589 (1991).)) especially when the plaintiff suing the cruise line has retained a lawyer. All the cruise line has to show is that it provided the passenger with “reasonably adequate notice” that the limit existed and formed part of the passenger contract.((Nash v. Kloster Cruise A/S, 901 F.2d 1565, 1566 (11th Cir. 1990). )) Here’s the best part: Whether the notice to passengers is reasonably adequate is “a question of law,” which means that a Federal judge, not a jury, decides the reasonableness of the notice.
To determine if the notice was reasonably adequate, a judge has to apply a two-prong test:
- The Court considers the ticket’s physical characteristics, and
- Whether the plaintiff had the ability to become “meaningfully informed” of the ticket contract and to reject its terms.
In analyzing the ticket contract’s physical characteristics, the Court considers factors such as the size of the font, the conspicuousness and the clarity of the notice, and the ease with which a passenger can read its terms.((Angel v. Royal Caribbean Cruises, Ltd., No. 02-20409-CIV, 2002 WL 31553524, at *3 (S.D. Fla. Oct. 22, 2002).))
In this case, it is undisputed that the first page of the contract, under the heading “Ticket Contract,” contained the following warning in bolded and capitalized letters:
IMPORTANT NOTICE TO GUESTS THIS DOCUMENT IS A LEGALLY BINDING CONTRACT ISSUED BY CARNIVAL CRUISE LINES TO, AND ACCEPTED BY, GUEST SUBJECT TO THE IMPORTANT TERMS AND CONDITIONS APPEARING BELOW.
NOTICE: THE ATTENTION OF GUEST IS ESPECIALLY DIRECTED TO CLAUSES 1, 4, AND 11 THROUGH 14, WHICH CONTAIN IMPORTANT LIMITATIONS ON THE RIGHTS OF GUESTS TO ASSERT CLAIMS AGAINST CARNIVAL CRUISE LINES, THE VESSEL, THEIR AGENTS AND EMPLOYEES, AND OTHERS, INCLUDING FORUM SELECTION, CHOICE OF LAW, ARBITRATION AND WAIVER OF JURY TRIAL FOR CERTAIN CLAIMS.
The Court found that the remainder of the ticket contract was printed in type that was both legible and consistent in size, letter, style, and color. The Court was particularly impressed that Carnival bolded and capitalized its heading at the top of the ticket contract, directing the passenger to specific terms and conditions, along with the legible and consistent font of the rest of the contract. Accordingly, the Court ruled that the contract provided “reasonably adequate notice,” satisfying the first prong of the test.
Satisfying the second prong (that Plaintiff Had the Opportunity to Become Meaningfully Informed of the Ticket Contract’s Clauses and to Reject its Terms) was more controversial. Even though the ticket contract was available for the Plaintiff and her lawyers to review on Carnival’s website at all material times, she proffered several reasons in support of her contention that she did not have an opportunity to become “meaningfully informed of the contract’s terms.” For example, the ticket contract was sent to Plaintiff’s mother-in-law, who completed the check-in process and certified that she had the authority to accept the terms and conditions on Plaintiff’s behalf.
However, the court was unimpressed by the fact that Plaintiff never actually possessed the ticket and chose not to read the terms and conditions of the contract, which were available to her and her lawyer online. Additionally, the court found that a party cannot avoid the effect of contractual provisions to which she is a party by choosing not to read her ticket.
There are many cases on record where the passenger contracts have been enforced against plaintiffs who have chosen not to read the contract.(( Failure to read a ticket will not relieve a passenger of the contractual limitation. Elliott v. Carnival Cruise Lines, 231 F. Supp. 2d 555, 561 (S.D. Tex. 2002).)) There was nothing in the court record to suggest that the Plaintiff could not have read the ticket contract—which was available on Carnival’s website and in her mother-in-law’s possession—prior to embarking on her cruise had she chosen to do so.
However, based on the court’s order, I do wonder if this would have been enforced if a plaintiff could not read or write English.
The Court addressed Plaintiff’s argument that the ticket contract’s terms are fundamentally unfair because of the financial burdens of cancelling the cruise, had she in fact read the ticket, such as the loss of the deposit and cancellation charges. Unfortunately, many courts have found that financial-burden arguments are not relevant to the enforceability of the contract. Rather, they have ruled that a passenger who does not want to be bound by the terms of the cruise should simply not go on that cruise.
Equitable Tolling–Extending the Statute of Limitations
Equitable tolling is a legal theory to extend the statute of limitations in certain situations and is applied sparingly; usually it is not given in cases where a cruise ship passenger has filed her claim in the wrong courthouse.((Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593-94, 111 S.Ct. 1522, 1527, 113 L.Ed.2d 622 (1991).)) The Plaintiff also argued that even though she filed the federal court case more than one year after her accident, the one-year limitation period should be equitably tolled because she “diligently pursued her claim against Carnival in all respects … [and] timely filed suit in the Circuit Court of Miami-Dade County, a court of competent subject-matter jurisdiction, and properly served her [state court] lawsuit on Defendant before expiration of the limitations period.”
However, the court ruled that the ticket contract required any action to be filed within one year in the Southern District of Florida and that the contract was, at all times, available to Plaintiff and enforceable and since Carnival, in at least two separate letters, advised Plaintiff that “all passenger lawsuits against Carnival [are required] to be filed in the United States District Court for the Southern District of Florida in Miami, Florida,” and that Carnival “will not waive its contractual defense if a lawsuit is filed in the wrong court.”
Hire an Experienced Cruise Ship Accident Lawyer
This case provides a sad reminder of the importance of hiring an experienced maritime personal injury lawyer to handle your claim against a cruise line. Cruise lines employ sophisticated attorneys who specialize in cruise ship accident cases and understand the unique laws and rules and procedures that apply under international law, Federal Law, and maritime law.
If you are injured while aboard a cruise ship, we recommend that you consult with a law firm that has decades of experience holding cruise lines like RCCL, NCL, Celebrity, MSC, Disney, and Carnival responsible for putting their profits ahead of their passengers’ safety.
Aronfeld Trial Lawyers is proud to offer anyone who has a potential claim a free initial legal consultation with an experienced cruise ship PI attorney, via telephone at 305-441-0440, toll-free at 1-866-597-4529, email [email protected], SKYPE, or Facetime. Call us today–we are ready to help you obtain compensation for your pain and suffering, medical expenses, time lost from work, transportation costs, and loss of the enjoyment of your cruise.