All major cruise lines require injured passengers to file lawsuits in certain courts. Royal Caribbean, for the most part, requires legal claims to be brought in the Federal court located in Miami, Florida. The reason for the “Federal Forum Selection” is because cruise lines think the Federal Court system will yield smaller plaintiff awards. Royal Caribbean recently started to include English forum selection clauses in tickets purchased in the United Kingdom even though the cruise departs from Florida. Such an English forum selection clause was the subject of the dispute between Royal Caribbean and Brais Brais & Rusak’s client.
In 1991 the Supreme Court decided in Carnival Cruise Lines v. Schute cruise lines can select the geographical location where their passengers must bring a lawsuit. Since that landmark decision, cruise lines inserted such restrictions in their tickets booklets. However, to be found enforceable, the cruise line must reasonably communicate the forum selection clause to their passengers. To accomplice this, the cover of many ticket booklets have bold face type which alerts the passenger that the ticket is a binding legal contract and invites the passenger to review certain pages in the ticket booklet which addresses the rights between the passenger and cruise line. Within the booklet the restrictive language is also in bold and in all capital letters. Courts consistently find such actions reasonably communicate the specific forum where a lawsuit must be brought.
Sometimes cruise lines fail to reasonably communicate the restrictive forum selection clause. Such was the case involving a passenger who was injured on the FloRider attraction during a transatlantic voyage aboard the Royal Caribbean cruise ship Liberty of the Seas.
In this case, Brais Brais & Rusak’s client received a booking Confirmation Invoice wherein on page 3 was found is a section entitled in bold “Before You Cruise – Essential Information”. This section advised the passenger about passport and visa requirements, checking in, minimum travel ages as well as the cruise line’s policies concerning alcohol, smoking, prohibited items and luggage limits. Nowhere in the “Before You Cruise – Essential Information” section or in the Confirmation Invoice as a whole informed the passenger he is required to file a lawsuit in a certain forum. After the cruise was booked, the passenger received a Guest Ticket Booklet. Like the Confirmation Invoice, there was no writing within the four (4) corners of the Guest Ticket Booklet which informed the passenger that he must file his personal injury lawsuit in a certain forum. Instead, the Guest Ticket Booklet simply read in nominal print size:
IMPORTANT NOTICE TO GUESTS
You are bound by the Terms and Conditions of your contract with us; you can view a copy of these online at www.RoyalCaribbean.co.uk or in the back of our current brochures. These Terms and Conditions also apply to additional goods and services you may purchases from us whilst onboard. Please note for guests residing in the UK our UK Terms and Conditions apply for guests residing in the Republic of Ireland our ROI Terms and Conditions apply.
We strongly advise you to read and pay careful attention to the Before You Cruise section contained within your confirmation invoice, as it contains very important information relating to your booking.
The passenger never received a brochure from Royal Caribbean and, as explained above, the “Before You Cruise” section of the Confirmation Invoice mentioned nothing about what court he must bring a personal injury lawsuit. Furthermore, no language concerning where the passenger must bring his lawsuit was contained on www.RoyalCaribbean.co.uk.
To find any information about a forum selection, the passenger would have to navigate the www.RoyalCaribbean.co.uk website until he reached the site’s subpage www.royalcaribbean.co.uk/terms-and-conditions/. There was also no information about a forum selection clause located on www.royalcaribbean.co.uk/terms-and-conditions/. Instead there was a link to a pdf called “Booking Condition” – not “Terms and Conditions” as referenced on the cruise ticket. Buried on page four (4) of the Booking Conditions is section 5.9 entitled “If I have a Complaint”. Below is the actual print from the website:
This section was not conspicuous as it was printed in the same small type as all the boilerplate terms of the Booking Conditions nor does its title inform the passenger of important matters of contract affecting his legal rights. In the second paragraph of that section in the same small type indicated that the passenger must bring his claim in an English court.
Brais Brais & Rusak advised their client that since the English forum selection clause was not likely to satisfy the reasonably communicative test, he was free to file his lawsuit in any forum which has personal jurisdiction over the cruise line. As Royal Caribbean’s corporate headquarters are located in Miami, the attorneys argued the Florida State Court in Miami has jurisdiction over the cruise line and this case can proceed in this forum.
Royal Caribbean filed a Motion to Dismiss the Complaint arguing that the case was filed in the wrong court. In arguing the subject Guest Ticket Booklet did not satisfy the reasonably communicative test, Brais Brais & Rusak’s compared the typical Royal Caribbean Guest Ticket Booklet used in nearly every booking with the Guest Ticket Booklet given to their client pointing out the stark differences between the two documents. After reviewing the legal brief filed by Brais Brais & Rusak, Royal Caribbean decided to withdraw their motion and submit to the jurisdiction of the Miami, Florida state court.
What can be learned from this case is that although big corporations hire very competent people to attempt to tilt the table in their favor, sometimes things are missed. As such it is very important to retain competent counsel who are aware of the legal issues surrounding the facts and circumstances of the case.