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HomeMy WebLinkAbout97-04288 ~ ~ ""<q, 'i ~ ..... '\ ~~. . ~ i 11 ~ 41. . . S ~ <3 ,,' "''1 REBECCA FAERBER.CHRENCIK & PAULA MCKAIN TOOMEY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS \'. NO. 1997-1288 JURY TRIAL DEMANDED ROYAL CARRlBEAN CRUISES L TO. DEFENDANT NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the fonowing pages. you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by sttomey and filing in writing with the Court your defenses or ol!jections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and ajudgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE TInS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CA."iNOT AFFORD ONE. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. COURT ADMINISTRATOR OF CUMBERLA1'ID COUN1Y THIRD FLOOR. CUMBERLA."iD COUNTY COURTHOUSE 1 Courthouse Square Carlisle. PA 17013 717-697-0371 NOTICIA Le ban demsndado a usted en Ia corte. Si usted quiere defenderse de estas demsndas expuestas en !as paginas sigtlientes, usted tiene viente (20) dias de plazo aI partir de Ia fecha de Ia demanda y Ia notAdciurL Usted debe presentar una apariencia escrita 0 en persona 0 par abogado y arcllivar en Ia corte en forma escrita sua defensas 0 $US objeciones a !as demandas en contra de au persona. See avisado que si usted no se deflellde. Ia corte tomara medidas y puede entrar una orden contra lISted sin previa eviso 0 notiftcaclon y par cua1quier queja 0 aIivio que es pedido en Ia peticion de demsnda. Usted puede perder dinero 0 sua propiedades 0 otros dereehoe importantes para usted, IJ..EVE ESTA DEMA1..'DA A UN ABOGADO INMEDIATAME.V\'E. 51 NO TIENE ABOGADO 0 SI NO 11ENE EL DINERO 5UFICIE.''TE DE P AGAR TAL SERVICIO. VA Y A EN PERSONA 0 lJ.AME POR TELEFONO A LA OFICINA CL'YA DIRECCION SE ENCUE.''TRA ABAJO PARA AVERlGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. COURT ADMINISTRATOR OF CUMBERLAND COUN1Y nURD FLOOR. CUMBERLAND COU!-.'TY COURTHOUSE 1 ~Sq\llln C.arlisho. PA 17013 11 H1lJ7-0371 REBECCA FAERBER-CHRENCIK & PAULA MCKAIN TOOMEY IN TIlE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA PLAINTIFFS \'. NO. 1997-1288 JURY TRIAL DEMANDED ROYAL CARRIBEAN CRUISES L TO. DEFENDANT CIVIL ACfION-LA W AMENDED COMPLAINT 1. The Plaintiffs are adult individuals with: a. Rebecca Faeber-Chrencik with an address at 457 Country Club Drive, Camp Hill, PA 17011. b. Paula McKain Toomey is an adult individual with an address of BBB Millersville Road, Lancaster, PA 17603. 2. The Defendant is a Florida Corporation regularly doing business in Pennsylvania with a principal place of business 1050 Carribean Way, Miami, FL 33132. 3. Venue is proper because one of the Plaintiffs resides in Cumberland County. 4. Jurisdiction is proper under 42 PS ~5322 because the Defendant solicited clients and transacted business for the purpose of pecuniary gain in Pennsylvania and also in Cumberland County. 5. The Plaintiffs are podiatrists, who contracted with the Defendant through the Bannockburn Travel Agency to take a cruise en the Splendeur of the Seas on or about February 22, 1997 for the purpose of participation in a continuing medical education course and cruise around the islands in Carribean surrounding St. Maarten. 6. The Splendcur of the Seas was owned by the Defendant and at all times relevant hereto, rne~~ers of her crew, the ship's doctor, and captain. ,"'ere agents. servants, or employees. under the :1\ reet nmtrQl of the Defendant. 7. The Plaintiffs flew to Florida on Sunday, February 22, 1997 to board the Splendour of the Seas, and shared a luxury cabin together. 8. On Tuesday February 24, 1997, Ms. McKain-Toomey discovered some minor, vaginal spotting and telephoned her husband, a physician, who, after listening to his wife's symptoms, determined that she had had a miscarriage. 9. Her husband indicated that there was no medical emergency and that she should relax, enjoy herself and continue her vacation. 10. As a precaution, he indicated that she should inform the ship's doctor of what had occured. 11. When the Plaintiffs went to the ship's doctor, he declared immediately a medical emergency, without bothering to examine Ms. McKain-Toomey beyond taking her pulse and blood pressure, which were normal. 12. ~he Plaintiffs were informed that a blood transfusion was possibly needed and despite the fact there was minimal bleeding, they would be removed from the Splendour of the Seas. 13. Despite verbal protests from the Plaintiffs that this was unnecessary, both women were forcibly evicted from their cabin. 14. The women were informed they would be transferred to a boat offshore containing medical personnel and taken to CUracao to treat Ms. McKain-Toomey's non-existent medical emergency. 15. In fact, they were transferred to a tugboat at niqhttime, which had no medical facilities, no medical personnel, and whose crew spoke no English. 16. The two women were premised that a ship's agent would attend them throulhcu~ theIr stay on Curacao, but nothing of the sort occurred. 17. Despite the promise of medical treatment, no medical treatment was ever given to Ms. McKain-Toomey, although the hopsital on Curacao took a "deposit" of $2000. lB. After being medically discharged, Ms. McKain-Toomey and the Plaintiff boarded a plane to St Maarten's, where a "luxury hotel room" awaited them until the Splendour of the Seas docked on Thursday, February 26, 1997. 19. The "luxury hotel room" was infested by vermin, dirty, and small. 20. When the two women were permitted to reboard the Splendour of the Seas on February 26, 1997, they were locked out of her cabin, had no place to stay, and the Plaintiff missed the educational lectures, which was the original purpose of the trip. 21. As a result of the acts of the Defendants and its agents, servants, or employees, the Plaintiff suffered pecuniary damage, harassment, humiliation, and unlawful restraint. COUNT I--BREACH OF CONTRACT(FAEBER-CHRENCIK) 22. All preceding paragraphs are incorporated as if incorporated herein. 23. The Plaintiff, Faeber-Chrencik, and the Defendant entered into a contract for services, a partial copy is attached as Exhibit A to the original complaint. 24. The acts described herein by the Defendant constitute a breach of that contract. 25. As a result of that breach of contract the Plaintiff suffered injury: a. A complete loss of value of the trip. b. Additional costs and expenseS once she was forcibly removed from the Splendour of the Seas. c. Consequential damages to her medical practice. WHEREFORE, the Plaintiff demands judgment in an amount not to exceed $35,000. COUNT II--FALSE IMPRISONMENT (FAEBER-CHRENCIK) 27. All preceding paragraphs are incorporated as if incorporated herein. 28. The Defendant, its agents, servants, and employees, intentionally, forcibly, and unlawfully restrained th~ Plaintiff, Faeber-Chrencik, against her will, when they were without reason to do so. 29. As a result of that breach of contract the Plaintiffs suffered injury: a. A complete loss of value of the trip. b. Additional costs and expenses once she was forcibly removed from the Splendour of the Seas. c. Consequential damages to her medical practice. d. Embarrassment. e. Humiliation. WHEREFORE, the Plaintiff demands judgment in an amount not to exceed $35,000. COUNT III--NECLlGENCE (FAEBER-CHRJ:NCIlC) 30. All preceding paragraphs are incorporated as if incorporated herein. 31. The Defendant is in the business of providing entertairunent to its passengers and owes a duty of reasonable to its passengers for their protection and safety. 32. The Defendant breached that duty in the acts described herein. 33. As a result of that breach of contract the Plaintiff. Faeber Chrencik. suffered injury: a. A complete 1055 of value of the trip. b. Additional costs and expenses once she was forCibly removed from the Splendour of the Seas. c. Consequential damages to her medical prilcticll. d. Embarrassment. e. Humiliation. WHEREFORE, the Plaintiff demands judgment in an amount not to exceed $35,000. COUNT IV--BREACH OF CONTRACT (MCKAIN-TOOHEY) 23. All preceding paragraphs are incorporated as if incorporated herein. 24. The Plaintiff, McKain-Toomey, and the Defendant entered into a contract for entertainmNlt services, a partial copy is attached hereto as Exhiblt A. 25. The acts described herein by the Defendant constitute a breach of that contract. 26. As a result of that breach of contract the Plaintiff, McKain Toomey, suffered injury: f. A complete loss of value of the trip. g. Additional costs ami expense$ "nee she was forcibly removed from the Splendl.'\lf of the Seas. h. Consequential diimaqes to her medical practice. WHEREFORE, the Plaintiff demand~ }ll<iqment HI /In amount not to exceed $35,000. COONT V--FALSE IMPRISOMCl'IT (MCKAIN-TOOHI1l 27. All precedinq paraqraphll ar.. ItV'orporated as if incorporated herelll. 28. The Defendant. liS iHI'mtt;. s..rviH\lll. and employees, intentionally. flHCllly, ilH.j unlawful ty Tl!iHrained the Plaintiff. McKaln"T.",,,,,,y, _\i,l.l\tf'st hl!r will. when they were with()~Jt r~~~c:tl t();Ji 5-<;~ 29. As 3 fl!lult nr tn.t br.a~h of nlntr.ct thi! Plaintiff. McKain T'('E.\tT.,..~'1l. ~',jff"~'lt"d '~fl1~Jlft 4. A u:'ltpl€t!' :1,:5 c,.,'! \',\ j ,,~~ t t t~~~ t t' 1 p. removed from the Splendour of the Seas. c. Consequential damages to her medical practice. d. Embarrassment. e. Humiliation. WHEREFORE, the Plaintiff demands judgment in an amount not to exceed $35,000. COUNT VI--NEGLIGENCE (MCKAIN-TOOHEY) 30. All preceding paragraphs are incorporated as if incorporated herein. 31. The Defendant is in the business of providing entertainment to its passengers and owes a duty of reasonable to its passengers for their protection and safety. 32. The Defendant breached that duty in the acts described herein. 33. As a result of that breach of contract the Plaintiff, McKain-Toomey, suffered injury: a. A complete loss of value of the trip. b. Additional costs and expenses once she was forcibly removed from the Splendour of the Seas. c. Consequential damages to her medical practice. d. Embarrassment. e. Humiliation. WHEREFORE, the Plaintiff demands judgment in an amount not to exceed $35,000. RESPECTFULLY SUBMITTED, .. ~ . { ~ J \..------ Shawn A. o%arth tsquire Attorney At Law 12Q South Street Harrisburg, PA lil01 .11"-=3~-4227 ., ,0 -, I . . ~ .., ...,.. . I ~'1 -'J .. -- ..., -~) " '.p , I ' , ." " ~~ . ., --, lJl =i Q ~, A"'. } ) v.J , REBECCA FAERBER-CHRENCIK & PAULA MCKAIN TOOMEY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS v. NO. 1997-4288 ROY AL CARRIBEAN CRUISES LTD. DEFENDANT JURY TRIAL DEMANDED BRIEF IN OPPOSITION TO TilE DEFENDANT'S MOTION FOR SUMMARY JUDGEMENT I. FACTS This controversy arises from injuries sustained between two Pennsylvania residents, one of whom is a Cumberland County resident, while ashore and onboard one of the Defendant's cruise ships in February 1997. The purpose of this trip by both these professional women was continuing medical education credits with other doctors. On February 22, 1997. Paula McKain-Toomey was pregnant and suffered a miscarriage in her stateroom onboard the Defendant's ship Splendour of the Seas. She contacted her physician Iwsband. who indicated that there was no medical emergency. but that as a precaution. she should mention the miscarriage to the ship's doctor. Accompanied by Plaintiff Faerber-Chrena'k, the two women went to the infirmary. they were ordered off the the ship by the ship's doctor. When they protested, the doctor declared a medical emergency and ordered them ashore. Where the ship's doctor promised a boat with medical facilities to take them ashore., the two women and their luggage were transferred to a tiny tug boat without any medical personnel or facilities, pitchil18 at night in a hea~ sea. piloted by men who spoke no English. When they arrived on shore.. they were supposed to be met by the shippins1ine's agent, they weren'.. When they were taken to the hospital, they were shaken down for $2000 before medical treatment was offered to them When no medical treatment was Jiven or needed to be mldefed, their money was !lOt mbnded When the local agent arrived., he promitod them a clean room on the IIC'tt isIand fur them to rest When they arm-cd. the room was fiUed .ith \~ Mer this ordftlthey met up \tit" the SpIendoor of the Sets, hours befOre the trip YoU to C!Ild. only to ~ their room tacrvllD\ hid been canc:dled and thty cautd not hdy came and 10 A complaint was filed in August 1997 originally with only Faerber-Chrencik as Plaintiff. These preliminary objections are to the amended complaint filed on August 21, 1997, which added Paula McKain-Toomey, as a Plaintiff. The Preliminary Objections to the Amended Complaint were based on paragraph of an unsilllled fonn contract, which at paragraph six contains a forum selection clause: 6. IT IS AGREED BY AND BElWEEN PASSENGER AND CARRRIER mAT ALL DISPUTES AND MAnERS WHA TSOEVERARISING UNDER. IN CONNECTIONS WITH OR INCIDENT TO TillS CONTRACT SHALL BE LITIGATED, IF AT ALL, IN AND BEFORE A COURT LOCATED IN MIAMI, FLORIDA, U.S.A. TO mE EXCLUSION OF THE COURTS OF ANY OTHER STATE. TERRITORY, OR COUNTRY. After oral arguments on December 10. 1997. this Court denied the Preliminary Objections in connection with paragraph 6 beclllw the Plaintiffs did not have notice of the previously cited contract provision. Thereafter, depositions of both Plaintiffs were conducted, which established that Plaintiff Faerber, which established the following : I. Both Plaintiffs purchased their tickets through a travel agent who did not forward the tickets until the day before they \eft on the trip. at which time they had committed they had no choice to negotiate or question. NT.28.)O 2. Both tickets were in the possasion ofPlaintitTF aerber throughout the journey and Plaintiff Toomey had never seen her ticket. N.T..J7.lI. J, Plaintiff Faerber only noticed the provisions cited by the Defendants liter her odyssey with the Defendant liter the trip. It ISSUE WHETHER mE FORUM SELECTION AT PARAGRAPH 6 DEPRIVES PENNSYLV ANtA COURTS Of JUltISDK'TION IN T.,1I5 MA 1TEIl 1 III. ARGUMENT THE PLAINTIFFS DID NOT HAVE NOTICE OF THE FORUM SELECTION CLAUSE PRIOR TO PURCHASING THEIR TICKETS AND THUS, UNDER THIS COURT'S JANUARY IS, 1998 RULING, THE FORUM SELECTION CLAUSE IS UNENFORCEABLE. Preliminarily. we note that under Pa.R.C.P. 1035.2 (2), a summary judgement motion is to be granted: "if, after the completion of discovet)' relevant to the motion, including the production of experts reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted.>> As the Defendant concedes this Motion For Summary Judgement is a renewal of the Preliminary Objections, this resolution of this Motion for Summary Judgement turns on the specific reason why those Objections were denied. As the court put it in the text ofits AND NOW, this 15. day of January 1998, it appearing that the plaintiffs have not conceded the question whether they had sufficient notice of the forum clause before entering into the contract for a auise. unlike the situation presented in Caraival Cra.1e Una v. Shute, 499 V.s. sas. 113 L.Ed. 611. III Supmne Ct. 1512 (1991) and it being othawise not clear that the defendant is entitled to relief, the preliminary objections of Royal Cam'bean Cruises Ltd. are DENIED BY THE COURT: '" Kevin A. Hess, J, /J ./ ' ../. (;Y~ tJ, ~~ ,'-" 'J~ J ,r n..s. notice to the Plaintiff.Mor to enterina into the contract remains the essential fact outlined by the Court upon which the Defendant is barred &om a dismissal or the case or transfer to Florida' The cited ~bon pages daIrty establish that the Plaintift's did not have notice orthe fonnn '..O~. since we are bc)oCId one year from the date the CIIdC or action vote. if'this ma lei ittelf IIllI eaIbn:a the choice or fonnn dau.. it wilt efl<<tiYe!y .hnisl the AftltllChd CompIaiat becane the Plailltift'rekd 011 the Court's action wflidI ~lIIitted the case 10 10 l\1I want ill ~\iS)"'anla IIllI brouPt 110 ... m f10ridI 2 Likewise, arguments that passenger tickets are unenforccable as contracts of adhesion arc swiftly rejectcd under maritime law, Wilkinson v. Carniml Cruise Lines, 1986 A,M.C. 2322 (S.D.Tx. 1985). In Wille \', Nederlandsch, 96 F.Supp. 485 (D.NJ. 195\), a ticket was considered that limited liability for any claim to six months afier the claim arose, or, in the case of bodily injury claims, to one year computed from the day of the injury, That provision is similar in content to the ticket at issue now since ReeL's ticket limits actions for personal injury or death to one year, and all other claims. including breach of contract, to six months. The court in JVitte stated that: It is now well established that the prO\isions set fOM [above] are contractual and as such binding upon the parties, ., The rights of the plaintiff and the duty to him oflhe defendant arise from his status as a passenger which is established by the contract of carriage of which the limitation clause is part. The nature of this entire contract between the parties to this suit is what detennines whether it is one of admiralty jurisdiction. Obviously, the contract is wholly maritime and properly of admiralty jurisdiction. Jd. at 486. The court noted the supremacy of federal law over any state statute of limitations and went on to hold that: Section I 83b, although added in 1935, is an integral part of TitIe 46, Chapter 8 entitled "Limitation of Vessel Owners' Liability." This chapter provides a comprehensin body of regulations declaratory of federal policy with respect to the specinc matters with which they deal. The purpose of these provisions was to encourage shipbuilding and thev should be hber.llly construed in the shinowner's favor...., Read in this COlItnt. Section 183b is not. as appellant argues, an isoIatCl1 enacnncnt whose negahve language should be namlwly constroN. but is a decLuation ofCon~ssional policy as to lawfUl contractual tl1DC hmitatlOns anJ one which in the inktnt of ul1lf\ll1l\itv should be constroed to e:\dude $late statuln of hmitation lJ. at 48ft (CltatlonS ()mmf'JI tenlf'ham added) .6. Two other cases directly on point concerning the forum selection clause are allached hereto. They are unreponed decisions. In the first. Amador. AI'i1es \'. Royal Caribbean Cmise, No. CIV. 96. 2470 (DRD), 1997 Wl 397741 AT "2 (0. Puerto Rico July 2, 1997). (transferring the case to Florida due to forum selection clause), the factual issue was again simple and uncomplicated. PlaintilTs purchased a cruise and were issued a ticket containing a forum selection clause. Citing Shllle. the District Coun in Puerto Rico ordered that the case be transferred to Florida. likewise, in Morailes v. Royal Caribbean Cmises. LId., No. 94 C 3762, 1994 Wl 405919 at"3 (N,D. III. July 29,1994), (transferring the case to Florida due to forum selection clause). plaintilTpassengers in Illinois were ordered to litigate their dispute pursuant to the forum tenns in the ticket in question. There are a host of cases enforcing the one )'ear time limitation that also appears in the RCCl passenger ticket. They are called to the Court's attention because the threshold question in each of those decisions was also whether the ticket reasonably communicated its tenns. In each. it was held that it did. If the ticket reasonably communicated the time limitation provision, it cenainly reasonably communicated every other valid provision in the ticket. including the forum selection clause. Decisions upholding the Royal Caribbean ticket with respect to the time limitation include Caprio/a \'. Roya/ Caribbean Cruist's, LId., No. 97 CV 3433.1997 Wl 666287 at"3 (ED.N.Y. 1997); Lomarariall v. Royal Caribbeall Corp.. 951 F.2d 7.12 (lSI Cir. 1991); WilliamH'. Royal Caribbean Cnlise Une,lne,. Civ. A. No. 90.1010,1990 Wl 284517 al"8 (D.N.J. 1990); Ueb v, Royal Caribbean Cruise Lillt', 645 F. Supp. 232.234-35 (S.D.N.Y. 1986); Faga" \'. Nonlic PriflCt.. IlIc. allll RO.llJl Caribbean Cnliu's,l.JJ,. ("i\', A. No, 91-5143.1992 Wl361704 at "7.8 (D.N.J. 1992); Berg". RO.llJI Caribbt-an Cruises. LIJ. Civ. A. No. 91-4957,1992 Wl60980J at "6 (D.N.J. 1992\'; each holJina that a time lunit in lhe ti.:ket Nmd p1amtiff's claim and ennting defendant's motion for summaI')' juJgment. 'C"lf'les of cases not rep.'l1N III F SUN'. are am.:hN .9. ~ot Reported in F.8upp. (Cite as: 1997 WL 397741 (D. Puerto Rico)) Milagros AMADOR.A VILES, Plaintiff, v, ROYAL CARIBBEAN CRUISE, DeCendant. No, CIV, 96-2470 IDRDI, United States District Court, D. Puerto Rico. July 2, 1997. DO:\ID:GUEZ, District Judge, ORDER -I Based on the Corum selection clause contained in the passenger ticket establishing Miami, Florida as the proper Corum for disputes, prima Cacie valid under Cederal1aw pursuant to the case oC Carnival Cruise Line v . Shute, 499 '(;.S. 585 (1991), as amended by law, 42 ,(;,S.C,App ~ 183C, the Court dismissed the above captioned damages complaint. Plaintiff alleged damages suffered while a passenger on the cruise ship, Legend of the Sea, on February 1996. The complaint avers that the ladder provided by the ship for use of the top berth oC plaintiffs cabin slipped while she elUted the top berth causing a broken ankle. Plaintiff purchased the tickets in Puerto Rico. The cruise started in Puerto Rico and was to end in :\te,uco with subsequent air transportation to Puerto Rico. Plaintiff filed a timely notice for reconsideration alleging that "inconvenience and expense oC prosecution" deprived Plaintiff of her day in court should the forum clause pnvail (%Jtion for Reconsideration, Docket No. 10, p. 2 ~ U Plaintiff further alleged lack of re1stionship of the :\tiami, Florida forum because the plaintiff resides in Puerto Rico and the cruise starts and ends in Puerto Rico (Docket No. 10, p. 3 ~ 61. The Defendant opposed the reconsideration (Docket No 11 l. Plaintiff nquested a hearing (Docket No 121 which was continued be<:ause the defendant did not receive notice and because the Court wished to orient the parties u to a ...cent decision of the District Court of this junsdiction (Docket No. H! Page 1 An evidentiary hearing was held late on June 25, 1997. Plaintiff, a widow, was the only witness to testify. She testified that her only income is S515 received from Social Security, S142 from the Army, and S140 from running a lottery agency. Further, Plaintiff testified to expenses higher than her income. On cross examination she admitted to having taken, after widow status, other cruise vacations in January 1995 (six days cruise) and a sixteen. day vacation in South America in December 1996. Plaintiff further admitted that all her children are over aged and gainfully employed. The First Circuit Court has established a two. prong test in the cases of l.ousarian v. Royal Caribbean, 951 F2d 7, 8,9 (1st Cir.1990) and Shankles v. Costa Armatori, 722 F.2d 861 (1st Cir.1983) in evaluating the legitimacy of forum selection clauses under the case of Carnival Cruise Lines, Inc. v, Shute, 495 U,S, 585 (1991). The two.prong test coined as the "reasonable communicativeness test," is the following: First, a court must examine the facial clarity oC the ticket contract and whether its language and appearance make the relevant provisions sufficiently obvious and undemandab1e, The second prong Cocuses on 'the cirl:umstances of the passenger's possession and Camiliarity with the ticket,' id., which involves scrutiny oC 'any extrinsic factors indicating the passenger's ability to become meaningfully informed of the contractual tenns at stake,' id. (Citation omitted). Given this two.step analysis, it is obvious that the determination oC enforceability must be made on a case.by case basis ... (citing Shankles. 722 F.2d at 864-66) -2 The first part of the test examines the Cscia.l clarity oC the clause in the ticket. Thi. part of the test is easily complied with since the clause is emphasized by being typed in red mk in the same t)1le of lettering u all the remaining dauses typed in black lettering. The second part of the test (OCUIeS on "the cU'CUlDStaJ\Ces of the puseneer', po1IlII!Slion and f.\ltUliarity 'nth the licltet," The licket was in Plaint1..r. po_uion days beC,," the cruu;e ~lhered by a Cellow paaseneer. The COpt' · W<!It 199!; No Cfaun t" Onll I: S G.l,'t Woru Wf:''ffi.t\W , Not Reported in F.Supp. 1995 A.M.C. 348 (Cite as: 1994 WL 405919 (N.D.III.11 John MORAITES, Plaintiff, v. ROYAL CARIBBEAN CRUISES. L TD,. Defendant, No. 94 C 3762. United States District Court, :-;,D. lllinois. Eastern Division. July 29, 1994. ~1E~IORA.'mUM 01'1::\10:-; A."D ORDER CASTILLO, District Judge. -I This action arises out of a personal injury sustained by plaintiff, John :'Ioraites, while he was a passenger on one of defendant Royal Caribbean Cruises Ltd.'s cruise ships. Defendant has moved to dismiss uruIer Rule 12(bX6). claiming that venue is not proper in the N orthem District of illinois because the cruise ticket plaintiff purchased contains a forom.selection claw<<! requiring that all disputes arising in connection with the cruise be litigated in a court in :'liami, Florida, Specifically, the ticket states: It is agreed by and between passenger and carrier that all disputes and matters whatlOever arising under, in cOMection with or incident to this contract shall be litigated, if at all. in and before a court located in ~liami, Florida. U.sA,. to the exclusion of the courts of any other state, territory or country. Passenger hereby wains any venue or other objection that he may have to any such action or proc:eedin& being brouaht in any court located in :'liami, Florida, Defendant &fIIles in the alternative that the court lIhould transfer this action to the l' nited States District Court for the Southern District of Florida pumwlt to 28 US C. I 1406ls1 A. s pneral rule. furum.se1ectwn daUlts an "prima facie valid and ahauld be enforeed unleu enfortSment il ahawn by the reSlltlllC party to be W\l'nl!Gna~.Je IlNMr the cimlmltancu" :\1S 8f.llIltn \' lapatA Oft' Shere Co. tlr. US I. 10 1)~-r.1\ Ev.n -hel'1l the fUNm d.t... esUbl1shl'l It remote forum Pal:e I for resolution of conflicts, the resisting party bears a "heavy burden of proof' of unfairness. ld. at Ii. In a case strikingly similar to this case, the Supreme Court upheld the enforceability of a forum.selection dause in Carnival Cruise Line , Inc. v. Shute, 499 U.S. 585 (1991). Like :'lr. :'loraites, the plaintiff in Shute purchased a ticket containing a clause selecting Florida as the forum, was injured on the cruise, and filed suit against the cruise line in her home state of Washington alleging negligence. The cruise line moved to dismiss for improper venue and the district court granted the motion. Follo,.;ng reversal by the court of appeals, the Supreme Court held that the court of appeals erred in refusing to apply the forom,se1ection clause. In doing so, the Court rejected the argument that a non, negotiated forom, selection clause is per se unenforceable. Id. at 593. Rather, the Court listed several justifications for permitting the cruise line to insert a reasonable forum clause in a form contract, including the cruise line's "special interest" in limiting the number of fora in which it potentially could be sued, the "salutary effect" of dispelling any confusion about where suits arising from the contract must be broueht and defended, and increased benefits to passengers in the form of reduced fares reflecting the savings that the cruise line enjoys by limiting the fora in which it may be sued. Id, at 593,94, The Court also held that the forom selection clause did not violate the Limitation of V_I Owner'1 Liability Act, 46 l' .s.C.App. I 183c which stales: -2 It shall be unlawful for the ... owner of al'\1 vessel transporting passengers between ports of thl' United States or between any IUch port and a fOl'llign port to insert in any rule. I'lleulation, contract. or qreement any pronllon or limitation .., (21 purportina in IUCh ..ent to lessen, weallen, or avoid the nght of all)' claimant to a tnal by ttlurt of COmfl'tlent ;unsdlction on the qu.ltion of habll1t, fcr Nch lOl!l or lI\lUt')' , or the me,",," d <Umaps thl'l'1Ir", All fUch proV\Sl~f\i C!' 11m1Ullons tt'!\t1ll.ned in any C<>;r · We.t I~:'\o Cl1llo'n 10 On, l: S G..\\t. Watlu \\1 SHAW , :\ot Reported in F.Supp. (Cite as: 1994 WI. 405919. "2 (N.D.lII.)) such role, regulation, contract, or agreement are hereby declared to be against public policy and shall be null and void and of no effect. As the Court explained, "the clause states specifically that actions arising out of the passage contract shall be brought 'if at all: in a court 'located in the State of Florida: which, plainly, is a 'court of competent jurisdiction' within the meaning of the statute." 1d. at 596. Plaintiff makes no effort to distinguish Shute. Rather, plaintiff claims that Shute no longer accurately reflects the law. Without citing any authority, he argues that the :\ovember 4, 1992 amendment of 46 U.S.C.App. ~ 183c by Pub,L. 102,587 changed the law so that ~ 183c now forbids the use of a forum.se1ection clause which limits an injured passenger's selection of judicial forum in any way. The Xovember 1992 amendment substituted the words "any court" for the word "court." 1.' nder plaintiffs interpretation. the amendment prohibits the use of a forum.selection clause at all. Plaintiffs interpretation is completely unsupported by the legislative history or the case law. On the contrary, recent decisions in this jurisdiction post.dating the ~ovember 1992 amendment indicate that Shute is alive and well. See. e.g.. Hugel v. Corporation of Lloyd's, 999 F.2d 206. 210 (7th Cir.1993) (citing Shute in the context of a discussion stating that forum stipulation dauses are prima fscie valid and routinely enfotted absent a flnding of unreasonableness); crr Grou~Credit Finance, Inc. T. Lott, Xo. 93 C 548. 1993 WL 157617 (:-I.D.m, ~tay 13, 1993) (sa.me). :MoreDver. plaintiffs interpretation is refuted by the subsequent history of the mtute itself. On December 20, 1993 Congress amended the mtute again. _ Pub,L. 103.206, this time to cha.nge the words "any court" bal:k to "court." Thus. enn if Conaresa had intended the :-;'ovember 1992 amendment to have the coruequences attnbuted to it by plainuff (an l\!"iUlMnt the court rt}e(l$ \, C oncreu had chanced its mitld by ~mber 1993 B<<lluse this case is lI'lvernrd by Shute, the Page 2 court would be justified in dismissing the action for improper venue. However, rather than dismissal, the court believes justice would be better served by transferring the case to the United States District Court for the Southern District of Florida under 28 1.'.S.C. ~ 1406<a). See, e.g., Benvenuti & Stein, Inc. v. Computer Software Specialists, lnc,. No. 87 C 2507,1987 WL 12699 (:-;'.0.01. June 12,1987) (court applied forum.selection clause in contract and trar.sferred case to Florida pursuant to 28 1.'.S.C. ~ 14Q6(a)). "3 Plaintiff has tried to avoid this result by arguing that Chicago, lllinois is a more convenient forum in which to conduct this case than ~1iami, Florida. According to plaintiff. many of the witnesses reside in llIinois, plaintiff himself resides in nlinois, and plaintiff was treated for some of his injuries in OIinois. Defendant has countered with its own list of factors favoring transfer: defendant's corporate office is located in Florida, the documents relating to the accident are located in Florida, and the persoMel aboard the cruise ship at the time of plaintiffs accident were employed in Florida, The accident itself occurred in the Pacific Ocean off the coast of ~Iexico, The Supreme Court weighed many of these same facton; in Shute and found them insufficient to override the forum.se1ection clause. ~trs. Shute resided in Washington. the defendant cruise line had its principal place of business in Florida, and the accident occurred off the coast of ~te:lico. The Court noted that "Florida is oot a 'remote alien forum: nor- given the fact that ~trs, Shute's accident occurred off the coast of Mexico-is this diJpute an essentially local one iJ1herently more suited to resolution in the State of W uhington than In Florida." Id. at 594. Therefore. abient an alleption thai ~Irs. Shute lacked notice oC the forum clause, the Court concluded that Mn. Shute had "not satisfied the 'heavy burden of proof,' required to set aside the clause on rrounds ofiN:Onvenoenee" Id. at 595" The fJft&ent facts compel the same result, Ptainlilf halO "ul ,were<! th.1 he lacked noUtt oC the CUI'\lll\ dause or WI he was itld\Ked to Copr · We'lt 1m So Cla:.m to One t: 5 (10\1 Worb \\1.s11..\\\' . Not Reported in F.Supp. (Cite as: 1997 WL 666287 (E,D.N.Y.)) Phyllis CAPRlOLA and Anthony Capriola, Plaintiffs, v. ROYAL CARIBBEAN CRUISES. LTD. Defendant. No. 97 CV 3433, United States District Court, E.D. New York, Sept. 5. 1997. Peter A. Junge, Esq., Lambos & Junge. New York, N.Y. Eric S. Roseb1um. Esq., Law Offices of Eric S. Rosenblum, Levittown, N.Y. ME:>.10RANDUM A..'-m ORDER GLASSER, District J. S1;'}1MARY -IOn June 18, 1995, while on a vacation cruise aboard the :\IN Monarch of the Seas, Phyllis Caprio1a slipped and fell on a wet floor and suffered the if\iuries that give rise to this litigation. On February 18, 1997, she and her husband, Anthony Capriola, filed this negligence action against Royal Caribbean Cruises, Ltd. ("RCCL "J, the ov.-ner and operator of the Monarch of the Seas. Phy Ilis Caprio1a seeks recovery for the i!\iuries she sustained aboard the ship, and Anthony seeks recovery for 1058 of the society. services. and cOnllOrtium of his wife, ReCL has moved for summary iUl!iment on the ground that the action was commenced after the expiration of the one-year limitations period contained in plaintiffs' passenger ticket contract. For the rusona set forth below, RCeL'. motion II cranted. BACKGROUND The facu art undisputed. Pnor lD boardine the eMse slup. the Caprio1as were issued ReeL pane""r ticket bookldS, ..lud\ cons\$ted nf .veral coupons _1UIIori", three and. one-quamr iftclw. by eictlt _hes. Otf ~ It I State,. , 3 n.. cover p&8'I ef the bookl"t Page 1 is printed on ivory card stock and bears the following admonition in navy blue letters: J:\IPORTA..'n NOTICE The tan pages of this booklet contain your cruise ticket contract which limits your rights. It is important that you carefully read all the tenns of the contract and retain it for future reference. Id, et 1 4, Among the coupons contained in the booklet is the RCCL cruise ticket contract. The cruise ticket contract has a box that measures approximately one inch by three inches in the right,hand corner in which the following notice is printed: THIS IS YOUR TICKET CONTRACT. IT IS J:\1PORTA.'IT THAT YOU READ ALL TER.\IS OF THIS CONTRACT (pp. 1.4). THIS TICKET IS NOT TRA.~SFERABLE A.~D IS NOT SUBJECT TO ALTERATION BY THE PASSEXGER, Id. at 1 5. Beneath this warning is a space for the passenger to sign. The signed ticket (known as the "Lifted Ticket") is removed from the booklet by RCCL personnel at the time of boarding and the passenger retains a duplicate copy, The back of the Cruise Ticket Contract retained by the passenger is the passenger ticket contract. Id. st 1 6. The passenger ticket contract is printed on rattan patterned tan eardstock and contains twenty numbered clauses spread o\'er four pages of the booklet. In the upper right,hand comer of the contract's rlnt page the follOwing wamine appears in navy blue bold letterine: I:\1PORTA.""T.,PASSEXGERS READ ALL CLAUSES <PAGE 1,41 The c1allH relevant lD this case. 'j(Bl. IIIdvi..e nf a one.year contractual limitations period fllr personal if\iury c1aiJns qainst the carrier. In contrast to thtt other c1allHs, which .,.. printed in blue. 7\Bl is pnnted in bricht red. It provides SO St'rr SHALL BE MAL'\"TAINABLE AG,ID;ST (' ARRtER OR THE \T.SS!L FOR _. I'ER..~NAL t.~Jt'RY . . OF PASSE.'\aER Copr. · ""nt 1998 X" Claun t<\ Orii US {'l.lvt. Works \\lsrt. \\\' . ~ot Reported in F.Supp. (Cite as: 1997 WL 666287,01 (E,D.N.Y,)) UNLESS WRmE~ ;';OTlCE OF THE CLAL\I, \\1TH FULL PARTICULAHS, SHALL BE DELIVERED TO THE CARRIER AT ITS PRINCIPAL OFFICE \\1THIN SIX (6) MONTHS rnG:\1 THE DAY WHE;'; SUCH PERSO~AL D:JURY OCCURRED; A.'1D IN ~O EVE;';T SHALL A.'1Y SUCH SUlT FOR A.'1Y CAUSE AGAINST CARRIER OR THE VESSEL FOR PERSO;';AL INJURY BE MAINTAINABLE UNLESS SUCH SUIT SHALL BE CO:\L\IE;';CED (FILED) WITHD: ONE (1) YEAR FRO:\1 THE DAY \\llE;'; THE ... PERSO~AL INJURY OCCURRED A.."<D PROCESS SERVED ~1THD: THffiTY (30) DAYS AFTER FILD:G, NOTWITHSTA.'1DD:G A."Y PROVISION OF LAW OF A.'1Y STATE OR COCNTRY TO THE CO:-nRARY. o2ld. at'7. D1SCCSSIO;'; I, Summary Judgment Standard Summary judgment should be granted if "the pleadings ... and admissions on file ... show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.RCiv.P, 56(c). See Celotex Corp. v. Catrett, 477 C.S. 317, 322,23, 106 5.Ct. 2548, 91 L.Ed.2d 265 (19961; :\latsushita Electric Indus. Co. v. Zenith Radio Corp., 475 C.S. 574, 596.97. 106 S.Ct. 1348, 89 L.Ed.2d 538 (19861. In ruling on a summary judgment motion, a court must "resolve all ambiguities and draw all reasonable inferences in favor of the party qaln.st whom judgment is sought .., with the burden on the moving party to demonstrate the sbsence of any material factual inue genuinely in dillPute " HeymM v. Commerce and Indu.s, Ins. Co, 52~ F.2d 1317, 1320 (2d Cir,l975l, n. The Applicable LAw It is ne.. Mu1ed that a pllS5eflitlr cnUN ticket is a marttime contn.:t. and the liJrulAtioM polrWd to be applied in a polnoMl II',/ury action is C'l""mt'd by fed.mu manturn, 1a... Vavows v. Kloster Cru:S4! I.td to:;:2 FSullP 979 IE 0 N Y 199.1lcltl1'.c C.umval Cl'Illll<! Page 2 Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Cl. 1522, 113 L,Ed.2d 622 (1991); :\lilanovich v. Costa Crodere, S.p.A., 954 F.2d 763 <D.C.Cir,1992); and other cases)). ill, The One,Year Limitations Period There are two requirements on a sea carrier's use of a contractual limitations period. First, the passenger must be allowed at least one year from the date of injury to sue. See 46 C.S.C,App. 183(b) [F;:>;ll; Spataro v. Kloster Cruise Ltd., 894 F.2d 44 (2d Cir,1990). Second, the ticket must suffiCiently alert the passenger to the restriction. Id. at 45. The seminal case in this regard is Silvestri v. Italia Societa Per Azioni Di N avigazione. 388 F.2d 11 (2d Cir.l968XFriendly, J.), which the Second Circuit has read to require that sea carriers "reasonably communicate" any limitations period to their passengers. See Spataro, 894 F .2d at 46, "Whether this standard has been met is a question of law for the court," Kientzler v. Sun Line Greece Special Shipping Co.. 779 F.Supp. 342, 346 (S.D:\.Y.1991l. ~1. ~6 L.SC..o.rr 183,b' prOVIdes' II ,hall be unL1" ful for lhe ... 0"'" of .ny s.., gc.lt'", \e~sel ... rransronmg pU5~ncen. ,.. to pro"-lIJe l\y n.de. !;onrni.'1, reguJ~lKm or otherwise I ,hilMer reri",d fl.1r ginnj; rhlUCe of. or rum. cWms fl.lr ilWr, \l{ Me or budtl), mjury than sit munths. and fpT the inslln.ulPn i.J( SlUts \1n Sf.K.h ,bUM. lhln one }-ur. su\:b I ~rtl-td fi.'r trntltUllUn of 5UltS to be <omru..<I from lhe do) ..hen lhe dtadl or injury txcurred. The only iuue here is whether the ticket issued to the C apriolas nlaIlOl1llbly communicated the one. year limitations period to then The court finds that it does. Thi, I, not a cue of ill] condltion ... camouflapd iJl. Wliputian print... :that islunnoticesble and unreadable. " Lisi v. Alitalia. Linee Acree italiaN'. 253 r Supp. ZJ~, 2~3 iSD S. 'i. 19661. atrd 370 rZd 5\10; (2d Ctr.1966l, atrd. 390 L" S 455, &\ S('t 1193, 20 L EdZd 27 0968\ The VlU'lcut "&rlUncs "tWine the i.mpcrt1f'll:e of r\':tdtnc the tiCket &re tlnrl,. pnnt4!d .snd "!auy "auble :>;othin( o~ them or lunders the ahllty ot the l'PWr to c~ · w...t 1m :>;0 Cl&m w Or.c l" $ C..;'l W"l'U m:,11AW - :\ot Reported in F.Supp. 1991 A.M,C. 237 (Cite as: 1990 WL 284517 m.N.J.)) Helene and Charles WILLIAMS, Plaintiffs, \', ROYAL CARIBBEAN CRUISE LINE, INC,. Defendant, Clv, A. No. 90-1010, United States District Court, D. New Jersey. Aug. 14, 1990. ~lichael 0, Kassak. \\1tite and Williams, Westmont, :\.,1.. for plaintiffs. G1?orge J. Koelzer, Ober, Kaler, Grimes & Shriver, John P. Flanagan, Edison, N.J., for defendant. OPIXION COHEN, Senior District Judge: I. l);TRODCCTlON -I This negligence action comes before the court on a motion by deiendant, Royal Caribbean Cruise Line, Inc., ("Royal Caribbean"), for summary judgment on all counts of plaintiffs, Helene & Charles Williams' ("Williams") complaint. Because the aftidavita submitted by the parties indicate that plaintiffs' complaint is time barred. defendant's motion shall be granted. n. F ACTC At A..\;D PROCEDCRAL BACKGROCND On or about :'Itarch 2. 1988. plaintiffs paid the sum of $4,690.00 to defendant, Royal Caribbean, for a ten day cruise aboard the vesael. Sun Viking. Prior to Ole start of the cruise. Helene Williams _eh't'd a copy of her passenger ticket which established the terms and conditions of the voyage. On the cover sheet of the ticket, a bold faced clause st3ted: P:wengers read all clauSt's Allain. on the rU'$t page c>i the ti<bt. thIS time in bold f.1C1!d, capital leu"n. paSllI!ngers _n! informH that Page 1 THIS IS YOCR CONTRACT. IT IS I:\lPORTA.,\;T TIIAT YOU READ ALL TER:\IS m' THIS CONTRACT. PAGES I, 2, & 3 NON.TRANSFERABLE. ALTERATIONS VOID TICKET. Finally, paragraph seven of the ticket contract states in smaller, but nevertheless bold faced capital letters: NO SCIT SIIAl.L BE :'IJAD;TAD:ABLE AGAL\;ST TIlE CARRIER OR VESSEL UPON ASY CLAI:\I IX CO:\XECTION WITH THIS TRA.,\;SPORTATION OR CONTRACT RELATIXG TO BAGGAGE OR A..\;Y PROPERTY C:\LESS WRITfE:\ NOTICE OF THE CLA[\!, WITH FCLL PARTlCCLARS SHALL BE DELIVERED TO THE CARRIER OR ITS AGE:\T AT ITS OFFICE AT THE PORT OF SAILIXG OR AT THE PORT OF TER.'IISATlO:\ \\1THIX THmTY (30l DAYS AFTER TER.'IISATION OF THE VOYAGE TO WHICH THIS CONTRACT RELATES: A..\;D L\; NO EVE:\T SHALL ASY SL"IT FOR A."Y CAt:SE AG.\D;Sf THE CARRIER OR VESSEL "1TH RESPECT TO BAGGAGE OR PROPERTY BE :'IJAD;TAIXABLE t::\LESS St:IT SHALL BE CmI:\IE:\CED \\1THIX ONE (!) YEAR AFTER THE TER.'1L\;ATION OF TIlE VOYAGE. NO St:IT SHALL BE ~L\INTAL'\ED AGAl:\ST THE CARRIER OR \"E--<:SEL FOR DEL\\'. DETE:\TlON, PERSONAL L\;Jl:RY, ILLNESS OR DEATH ot" THE P:\.."SE:\GER t:NLE..."S WRITfEN NOTICE OF THE CLADI \..1TH FCLL PARTICt:LARS BE DELrVERED TO THE CARRIER OR ITS AGE:\T AT ITS OFFICE AT THE PORT OF SAll.IXG OR AT THE PORT OF TER.'IL'\ATION \\1TUl); SIX (61 ~IO"-"THS FRO~I THE DAY WHEN St:CH DELAY. DETE"-"TION, PERSONAL IXJl.'RY. ILL'\ESS, OR DEATH OF THE PA5SE:\GER OCCl'RRED: A.'\D IX NO EVENT SHALL A.'\Y st:rr FOR A.."Y CAl'SE AGAL'\ST THE CARRIER OR VESSEL WITH RE..';;PECT TO DELAY. DETENTION. PER."l)NAL l"Jl.'RY, IUSES,';; OR DEATlI DE :'.l\L'\"TAI;.iABLE. l::\lE..'S snr SIL\Ll aE co:>.t\lESCED \\1THIX o;\r \1' YEAR FRO:'.l TUE DAY ("pi' t W.<t 1 ~ :,\" ClaUf\ 1<, {~ L:i (j,,,t W,oru WESTI ..\W , :\'ot Reported in F.Supp. (Cite as: 1990 WL 28451;. "I (D,N.J.)) \\1IE:-; THE DELA Y, DETE:\'T10:\', PERSO:-<AL INJURY, ILLNESS OR DEATH OF THE PASSENGER OCCURRED, NOT\VITHSTA.'oWlNG A..'iY PROVLSIO:-< OF A.."Y STATE OR COUNTRY TO TIlE CONTRARY. On "'larch 6, 1988. while aboard the cruise, Helene Williams slipped and fell aboard the Sun Viking allegedly as a result of the presence of oil on the deck of the ship. Mrs. Williams alleges in her complaint that as a result of defendant's negligence, she suffered severe and disabling injuries. Subsequent to sustaining these injuries, Helene Williams was treated aboard the ship, and immediately thereafter informed representatives of her intention to file a claim. Shortly thereafter, she spoke with Deborah Higginbotham, a representative of Royal Caribbean. who allegedly informed her that "Royal Caribbean would take care of all [her] injuries and would quickly settle [her] claim. She did not mention anything about filing suit within one year." Williams Affidavit at p. 5. ~1rs. Williams avers to the following, additional relevant facts in her affida\'it: "2 (61 Soon after returning from the cruise, I spoke to Anthony Picciurro of Southern ~Iarine Claims Service regarding my claim, Mr. Picciurro told me 1 should not get a lawyer and assured me that Royal Canbbean would settle my claim quickly. In addition. Mr. Picciurro promised that Royal Caribbean ,,'ould pay all my medical bills. At that time ~fr. Picciurro also offered $4,000.00 in full settlement of my claim, I rejected this settlement offer. (j) At various times during the fi"t ~'ear after my injury, Mr. Picciurro intentionally discouraged me from filing suit and insisted that I should wait until after all my medic31 treatment had been concluded before I filed suit. IS'The commenu mad.t hy :\b HiCltinootham and:\1r. f'lCCIUlT'O "'"re l!'ltentiona1ly ~1ve and W"re made for tM ~~$ "f del*J11\I the iNtttutwn cf Sillt B~ an the!le cot'T\nWnU I "'as lord to ...h.,,,, tMt R.,yal Page 2 Caribbean was accepting responsibility for my injuries and would pay my claim. In addition, 1 was led to believe that 1 should wait until after my treatment was complete to file suit. (9) On :o.larch 1, 1990, 1 filed a lawsuit in the United States District Court for the District of New Jersey due to the fact that my claim had not been settled. (10l At no time prior to the filing of the complaint on March I, 1990 was I aware that it would be necessary to file suit within one year of injury, (11) At all times prior to the filing of the lawsuit, I was under the impression that the defendant would settle my claim and would pay my medical bills. (12) Prior to the e:o.lliration of the one year suit limitation. I provided "'fr. Picciurro with copies of all my medical bills and other documentation supporting my claim. (131 I received a copy of the ticket for the cruise which has been attached as Exhibit A to defendant's motion for summary judgment in the mail. At no time did Royal Caribbean inform me that any suit for damages would have to be filed within one year. (141 After reviewing the ticket for my cruise, I was not aware that any lawsuits had to be instituted within one year. (15) When I reviewed the one year luit limitation provision contained in the ticket, I did not understand it. In fact, I waa under the impression that it would apply only to the extent that it waa not inconsistent with New Je,.y state la.... Despite the alleged statements made by defendant's qents, by at least October 27th, 1985, plaintiff "'tained the fmn of White and \\'ilhams to handle her pe"",na1 injury daim. In an October 27. 19!!c!l letter from ~cllAel 0, K.-k, Esquin<. of Wlute and Williama, to Anwll1 PiwUl"rn of &,ut.'Iern ~arine Claim. Slrnlce.1w statu r"F · W".t l\hl!i. ",' n.wn \{j Onil' t: S ('"wt \\,,,,,1<8 \\1..:,lL\W , ~ot Reported in F.Supp. (Cite as: 1990 WL 284517, '2 <D.N.J.)) Please be advised that I have been retained to represent Helene Williams with respect to lU1 accident occurring on ~Iarch 13, 1988 on the Sun Viking cruise. Helene has already submitted a number of medical bills and we will be submitting further documentation as times de,'elops (sic). Please feel free to contact me regarding this case. Suit was instituted in the United States District Court for the District of New Jersey on March 1, 1990 over 1 year and 11 months from the date of the accident. Subsequently on April 17, 1990, an amended complaint was filed. On July 10, 1990, defendant, Royal Caribbean filed the instant motion for summlUj' judgment on all counts of plaintiffs' complaint. According to defendant, the action was not commenced within the one year limitation period set forth in paragraph seven of the voyage ticket and consequently, the claim should be treated as time bUTed, II. DLSCt:SSIO~ A. SummlUj' Judgment "3 The standard for granting swnmlUj' judgment is a stringent one. A court may grant SU1Tl1nlUj' judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter oflaw." Fed.R.Ci..P.56icl; see Hersh v. Allen Prods. Co., 789 F,2d 230, 232 (3d Cir.l986); Lang v. New York Life Ins, Co.. 721 F.2d 118, 119 (3d Cir.1983l. In deciding whether there is a disputed issue of material fact the court must determine all doubt in favor of the non,mo,ing party. Meyer v, Rieeel Prods, Corp., 720 F.2d 303. 307 n. 2 (3d Cir.l9831, cert. denied, 465 U.S, 1091 0984\; Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870. 874 (3d Cir.I9721. The threshold inquiry is whether there are any "genuine factual iuues that properly can be resoh-ed only by . finder of fact because they may realOnably be re1lO1ved in favor of either party. Andenon v. Uberty Lobby. Inc. 477 t:.S 24:1, 250(\9861 Recent Supnome Court decisiON tna.Itlbte thaI a "mouQ/\ f{lt' SU1llmlU7 Judil'ln"nt mUllt be Page 3 granted unless the party opposing the motion can produce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor." J.E. ~Iamiye & Sons, Inc., v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir.19871 (Becker, J., concurring) (citing Anderson, 477 U.S. 242 and Celotex Corp, v. Catrett, 477 U.S. 317 (1986)). :\Ioreover, once the moving party has carried its burden of establishing the absence of genuine issues of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 IJ.S. 574, 586 (1986). Thus, if the non. movant's evidence is merely "colorable" or is "not significantly probative," the court must grant summlUj' judgment. Anderson, 4771J.S. at 249,50. B. Limitation on Ticket 46 IJ.S,C, I 183lbXa) provides: lilt shall be unlawful for the manager, agent master or owner of any seagoing vessel... transporting passengers or merchandise or property from or between ports of the IJnited Slates and foreign ports to provide by rule, contract, regulation, or otherwise a shorter period for giving notice of, or filing claims for loss of life or bodily i~ury, than six months, and for institution of suits on such claims than one year, such period for institution of suits to be computed from the day the death or i~ury ocrorred, Clauses such as in i!SUC in the present case, and which are specifically authorized by the aforemenlioned federal statute, have been addressed by the courts as far back 85 . century ago in The :\fajeslic, 166 U.S, 375 (1897\ and mcst recently by the Third Circuit in Morek v. ~torpon Two, Inc., 817 F.2d 242 13d Cir.I987) In :'Iorek. the Third Circuit affinned . district cow"!" order .. hkh iTanted summary judcnent to a crui!;e lhip due to plaintiff, fitilun! to Institute swt w.tlun the t1m. ~bed an the ~ng\'r lidlet, In that CMl!. pwntJil' mstalned plnon.al il\juries COpt' · Wnt 1m ~o ClAIm to On, l'S (;'w\ Woru \\1:",11.\\\' , Not Reported in F.Supp. (Cite as: 1990 WL 284517, .3 <D.N.J,)) while aboard a vessel but did not institute suit until over one year had passed. The district court granted swnmary judgment and concluded both that the contractual limitation of liability was valid and that it was reasonably communicative. Marek, 817 F.2d at 244.45, .4 In affuming the district court, Chief Judge Higginbotham recognized that in such cases, the most relevant issue is not whether the time limitations are permissible. but rather, whether the time limitations for suit are "reasonably communicative". Id. at 2~5. In resolving such issues, Chief Judge Higginbotham set forth the following reasoning: [tlhis determination, in turn, is best understood as a pair of distinct legal examinations. One focal point is the adequacy of so-called "warning language" often found on the front cover of a cruise ticket. directing a passenger to read the particular terms inside the ticket, The other focal point is the ticket terms themselves, and concerns such physical characteristics as the location of the terms within the ticket. the size of the typeface in which they are printed. and the simplicity of the language they employ. The question is thus whether, "taken together, the various notices and provisions of this cruise ticket contract" suffice legally to gi ve effect to the time limit it contains (citation omitted). . ". The seminal opinion in this field, as in so many others, is one authored by Judge Her.ry Friendly. In Silvestri v. ltalia Societa Per MolIi Di Navipzione, 388 F2d 11 (2d Cir.I968). Judie Friendly concluded that "the thread that runs implicitly thrcU(h the cases rustaininl (such cruise ticket time 1imitationsl is that the steamship has done all it reasonably could to warn thl! puse.r that the terms of contract alfectinc his 1epl ncl\ts." Id. at 17. As lhe district court f'etOCN_ howtlvu. this statfm..nt of the 1ecal test. If talten btenlly. is lunply too rlrtd There 15 no sit\l.lltiol\ when fro.m hindJ1tht. one could net ~ the Page 4 shipowner doing some little bit more to draw attention to the limitation clause.... Thus, even though the courts continue to use the "all it could reasonably could" language. application of the standard invol ves notions of reasonableness and not hypothesizing some further step the shipowner could possibly have taken. We therefore follow in the wake of those courts. including those in our Ciralit, that have adopted the more practical "standard of reasonable communicativeness.... " Id. at 245, citing, Shannon, 640 F,Supp. at 374; Valenti v. Home Lines Cruises, Inc.. 614 F.Supp, 1, 4. <D.N.J.1984); Strauss ex,re. Strauss, 613 F.Supp. at 7; Gardner v. Greek Line, 388 F.Supp. 856, 857 OI.D,Pa.1975), The passenger ticket in :-.tarek, which is strikingly similar to the ticket in the instant matter, contained the following warning ....hich was printed in capital letters: ACCEPfA.'.;CE OF THIS TICKET CONSTITUTES A CO:\'TRACT. THE TER.\IS A.'.;D CONDITIONS OF WHICH ARE SET FORTH DiSIDE. PLEASE READ CAREFULLY. :o;'ext, the ticket contained, on the second page. the following statement: Conditions of the Contract Acceptance of this ticket shall constitute an acceptance by the panenger, as that word has been defined. of all the tenns and conditions set forth herein. .S Finally, a third warning. also in bold letters stated: ACCEPfA.'.;CE OF THIS TICKET CONSTITlrn:S A CO:\'TRACT. READ TER.\lS A.'.;D CONDITIONS CAREFULLY. Pl.aintitr in Mu9!l, as plaintur.' do herein. maintained that the aforementioned daUlll. did not I'IlPQw1y communicate the .simnee aM i.mpIlru.nce of the tum. of the COIl.uact. Marek. 81~ r 2d at 2.6 The CU1.Itt diSSll'"d ...ith p1alllUff and noted that the notice Il""riSIOns did ...hat ...as re~ tlI C"pr t West l~" :"" Chum tlI l)nc US G.nt Works \\1 Sl1.\\\ , Not Reported in F.Supp. (Cite as: 1990 WL 284517, *5 (D,N.J.)) communicate that the tenns of the contract existed and hence ought to be read. Further, the court upheld the reasonableness of the provision notwithstanding the fact that the ticket did not have warnings specifically directing the passenger to the limitations clause. Recognizing that nonnally, "cases in which the carrier's liability limitations have been honored generally involve tickets with conspicuous warnings directing the passenger's attention to the tenns contained elsewhere," the court nonetheless held that "no case stands for the proposition that a warning is legally insufficient unless it includes explicit references naming each of the contractual tenns or conditions having the potential to affect the legal rights of passengers. It is sufficient that the ticket contains three conspicuous warnings directing a passenger's attention to the terms and conditions inside the folder." Id. at 246. Finally, the court rejected p1aintiJfs argument that the ticket's print was too small to read, The court noted that the print was not "so muddled or illegible as to be unenfol'teab1e." More importantly, the court recognized that "the t~.pe size in which [the time limitations) clause is printed is not the significant matter; there is both ample time and powerful incentive to study the passage contract ticket promptly after a loss has occurred." Id. at 247, citing, Lipton v. National Hellenic Am. Lines, 294 F.Supp. 308,311 (E.D.N.Y.l968l. Applying the ~tsrek, principles to the case at bar, the court concludes that as a matter of law, the various notice and other proviSIOns of the contract when taken together su.flIee legally to eive effect to the time limitations it contains. Initially, plaintiff maintains that "Royal Caribbean did not explain any of the provisions contained in the ticket. In fact at net time prior to the flUng of suit of ~tarch 1, 1990. did Royal Caribbean explain I.,", existence of the on year Sillt l.urutatton to the p1aintiffl (emphasisluwHedl " Plaintiffs argument strikes th" Ct)urt .. illu!lOry tll'lC'e it a;:p<>3J'S that \he IS rt'qlUnl'lll Page :; vocal confmnation from defendant of the limitation period. ;-';otwithstanding the fact that defendant has no such duty, plaintiff in her own affidavit admits to having reviewed the ticket and the one year limitation. Having concluded that the ticket is reasonably communicative, see infra, defendant owes plaintiff nothing more. Plaintiff specincall)' challenges the reasonableness of the notice provision by stating that the ticket did not make a "reasonable effort to warn passengers of liability limitations" because the face of the ticket (did notl contain conspicuous language warning the passenger's of the contractual tenns contained in other material furnished by the carrier. Plaintiffs' Brief In Opposition at 9. However, the clause of the ticket did in fact direct plaintiff to read all of the clauses, and is not unlike the notice provisions in Marek, As ~tarek. informs, no case stands for the proposition that a warning is legally insufficient unless it includes having explicit references [tal contractual terms ... [which ha,'eJ the potential to affect the legal right of passengers. " *6 Faced with the validity of the limitations clause and the consequent dismissal of their claims, plaintiffs maintain that "defendant has wai,'ed and is estopped from asserting the one year suit limitatIOn provision," Brief at 3, According to plaintil!s, soon after the cruise ended, ~In Williams came into contact with Anthony PiCCiWTO, representative from Southern ~Iarine Claims Sen'ice. Plain1i.fl' avers that PicciWTO informed her that she should not obtain a 1a"'Yer since Royal Caribbean would promptly settle her claim.. Williams AffIdavit at n 6.8. further, Williams states that Picciurro told her that she should not file SUit due to the fact thst she ...as still rt'Cei\'i"., medical treatment. Mr. PiCCiWTO purportedly N;nsented that defendant "",uld talte t'are of all of p1amtiff's IlU'dical bllls and offered $4,000 00 in full rettlemer.t of her claims, ....hith ..... ultunat..ly NJ<<ied by plaint1ft' Accordi"" to r1alftttff. W N bed en t."",,, OOll\lMntt il'l dnldtl'lll nol tZ' file ~Ult UIItU :\tarcl\ I, 1m C"pr · Wellt 199. ~~ (bun t~ Onjl t'S (',,"'1 \\;'rk8 \\1 Sf L\\\' Not Reported in F .Supp. (Cite as: 1990 WL 284517, .6 (I).N.J.)) The equitable doctrine of estoppel was described by the Third Circuit in Burke v. Gateway Clipper, Inc., 441 F.2d 9,16 (3d Cir.19;l) as follows, [tlhe equitable principle which will allow "no man to take advantage of his own "TOng" [and] will prevent a defendant, whose representations or other conduct have ca1'Sed a p1aintUf to delay filing suit until after the running of the statutory period. to assert the statute of limitations as a a bar to the action, . . . The nature of the representations and of the conduct of the defendant are of crucial significance in detennining if the p1aintUf is to be allowed to im'oke this equitable principle of estoppel. This is a question of law to be detennined by the court. In a motion for summary judgement, the burden is on the p1aintUf to present facts, in accordance with Fed.R.Civ.P, 5ti(c) and (el, which if true would require a court as a matter of law to estop the defendant from asserting the statute of limitations (emphasis supplied) (citation omitted). Thus. a plaintiff must do more than prove inequitable conduct on the part of the defendant. Even accepting as true such behavior, a p1aintUf seeking to invoke this equitable doctrine must come forward with sufficient facts which infer that such ronduct actually caused her delay in filing suit. It is the absence of the element of causation that is fatal to plaintUfs' estoppel argument. When the sequence of eventi in this case are reviewed, it is evident that the failure to file suit was not due to any action of the defendant. As early SJ October 2;, 1988, plaintiffs had retained co\lJ'la1 and apparently fill l'urt.her commW\ications had taken place between any a(ent of defendant and plaintiffs. In fact, It is uncontroverted tfutt Piwunu never commwucated WIth pl3.lntiff.' counsel. Further. the very fact that phunuJf. retained cOUl1HI wlUun the one )'''''r 1l.!'l'Utatl0n pE'ncd behe. a.'ly imertnce that sh. "hed upon ::ll\Y st:ltement d the defendu.t to ntt:u,.. !Mm Palte 6 filing suit. To the contrary, it is the court's conclusion that this is clear evidence that she ignored the advice. .7 What can be gleaned from the submissions to this court, both by plaintUf and her counsel, is that the sole reason this action was not filed until after the one year limitation period had lapsed was the apparent unfamiliarity counsel had with the applicable limitations period. For example, in p1a1ntUfs' brief, it states. "there is no question that the plaintiffs' cause of action was commenced within two years of the date of injury." This comment. when coupled with the fact that the action was filed within days of the two year period, suggests that plaintiffs' counsel was under the assumption that this simple negligence action was governed by New Jersey's two year limitations period for personal injuries. P1aintUfs' reliance on Keefe v. Bahama Cruise Line, Inc., 867 F,2d 1318 (lIth Cir.19891, is misplaced, In that case the court concluded that a defendant who misled plaintiffs attorney into thinking a settlement was complete would be equitably estopped from invoking the one year limitation on the passenger ticket. In that case. defendant falsely stated to plaintiff's counsel that defendant had secured a release of liability from plaintiff and had paid her medical bills in full. The court found that there it was this misrepresentation which caused plaintiff's counsel to delay filing suit until a.ft.er the limitation pericd had lapsed. In the present case, no such re liance too k place In fact, the uncontro,'erted affidavit of PicciUlTO reveals that he did not contact plaintiffs' counsel at all a.ft.er his receipt of :'1r. Kossack's October 27, 1!)90 letter, Fur1.her. plaintiff has not pronded the court with any evidence that defendant contacted phuntiff or her counsel after Wa date Thus, the failunl of plamtiffs' counsel In filine awt. wilike in Keefe, ...as not the result of aiflrmauve statements of dflendant, but ramer, the actiON!. or inactlCn. of p1aintJ'f,' coW'M1 Even h3d def..nd.U\t contacted plamtl!fs' ccu~l and lnf"nned lu.'n that Mttlemtnt C~'",f' t' W'..,.1 1~\'" S" (}~um t.J t1t-tg e S (..wt \\\~r'kl wr~ll...\W :\ot Reported in F.Supp. (Cite as: 1990 WL 284517, .7 (I),:-l.J.)) negotiations were pending, this does not excuse the failure to institute suit. As a district judge in this district has previously held in an identical case, There was no reason for plaintiJf s attorney to rely [on defendant's! letter as a basis for not filing suit within the time limits set forth in the contract. In his responsibility to his client, plaintiffs attorney should have filed suit to protect her claim, and continued to pursue settlement while suit was pending. Plaintiffs attorney cannot now correct his error by means of a dubious theory of equitable estoppel. ~liche10tti v. Home Lines Cruises, 1986 A,~1.C. 480 lD.:-<.J.1985) <Debevoise, J.l C. Cross motion to amend In its motion for summary judgment, defendant argues that it was the general sales agent for a disclosed principal, Royal Caribbean, Ltd., and is therefore not the proper party defendant, Plaintiffs respond to this contention by requesting to amend the pleadings to name Royal Caribbean, Ltd., pursuant to Fed,R.Civ.P. 15(c), which provides that an amendment of a pleading changing the party against ,,'hom a claim is asserted relates back to the original date of filing. As stated in the rule, .S (w )henever the cllWll or defense asserted in the amended pleading arose out of the conduct, transaction. or occurrence set forth or attempted to be set forth in the original plesdifllf. the amendment relates baek to the date of the oriiinal plesdifllf. An amendment changifl( the party lIIainst whom a claim is uaermi relates back if the foregoing provision is satisfied and. within the penod provided by law for commencifl( the setlon against the party to be broUJht in by M".endment that party III has recel\'ed aucll notice of the action thaI the party ...m nol be prejudiced in maintaHufl( his defe". on the menls, and .2) Uww or should fi... lul<!wn thaI, bul for s lNsta." rolnM\ifll the .dent.ty of the proper p4rty, the action "'cWd han Mn hrmiltllt aglllnst to'lot party (emph:ws su.1'l'hed1 Page 7 The plain language of the rule indicates that a pleading can only be amended to relate back if the entity received notice of the action "witltin the period provided by law for commencing the action." Schiavone v. Time, Inc., 477 U.S. 21, 31 (985) ("The linchpin is notice and notice within the limitations period. ") In the present action, it is beyond dispute that plaintiffs' complaint against Royal Caribbean Cruise Line, Inc.. was not filed within the applicable time period. Further, the amended complaint seeking to name Royal Caribbean. Ltd., a party covered by the time limitation in the ticket, is likewise time barred. As such, and because an amendment of the complaint would be futile, plaintiffs' request shall be denied. Ill. CO:\CLUSION For the aforementioned reasons. defendant's motion for summary judgment shall be granted. Additionally, plaintiffs' motion to amend its complaint shall be denied. An appropriate order follows. E:-<D OF OOCL'ME~-r COF · W,," 1m ~<I Chum to One l'S Gon \\'""ks \ \ 1.";1 L \\ \ K ot Reported in F .Supp. 1994 ,\,:'I.C, 806 (Cite as: 1992 WL 609803 m.N..J,)) ~llchael A. BERG, et al., Plaintiff. v, ROYAL CARIBBEAN CRUISES. LTD.. et al., Defendants, Clv. A. No, 91-4957, United States District Court, D. ~ew Jersey. Feb. 20. 1992. David P. Pepe, Ribis, Graham & Curtin Morristown, :-;J, for plaintiffs. George J. Koelzer. John P. Flanagan, Ober, Kaler, Grimes & Schriver, Edison, for defendants, OPL"IOS WOLI:\', District Judge. 01 'Ibis is a diversity action based on personal injuries sustained by plaintiff Laura Berg during the course of a cruise vacation booked with defendant Royal Caribbean Cruises, Ltd. ("Royal Caribbean"). Before the Court is the motion of Royal Caribbean for summary judgment on all counts of the complaint on the grounds that the contractual limitation of actions period had run before suit was commenced, and that as a matter of law Royal Caribbean is not estopped from asserting the limitation of actions pro>-uion. For the reasons that follow. the Court will grant Royal Caribbean's motion. BACKGROt:~ On October 12. 1990, while on a honeymoon c.Nise, Laura Berg ....as injured on the Island of Labadee. s scheduled port of call for the ~L' V Sene of America, a \-esse1 owned and operated by Royal Caribbean. Laura and :.ticl\u1 Berg ha"" alleged on infonnation and belief that the private beach facility ....here the in,jury o<<un-ed wp owned. leased. operated or otberwUe under the contrll1 of R"yal Canbbean. ~L.chae1 Bera has alleged a chum per quod coNOl'tiwn am.jsU. 1,\\" 11'- Page 1 Laura Berg's cruise passenger ticket contract states prominently on the cover page: TillS IS YOL"R TICKET COSTRACT. IT IS nlPORTA.'.;T THAT YOU READ ALL TER.\IS OF THlS Cm_TRACT. THlS TICKET lS ~OT TRA.'.;SFERABLE AND IS SOT SUBJECT TO ALTERATION BY THE PASSE~GER. (Berg Cruise Ticket Cover Page, annexed as Exhibit A to the Affidavit of Wendy Zepemick dated ~ovember 23, 1991). Paragraph 2(vii) of the ticket contract sets forth a contractual limitation of actions period. That paragraph stands out prominently from other provisions of the contract in that it is printed in upper case letters of a large type size. and is set forth in white print against a dark colored background, unlike the other tenns of the contract. The second sentence of that paragraph states, in relevant part: ~O St1T SHALL BE ),w:-.'TAI:\ABLE AGAI:\ST THE CARRIER OR VESSEL FOR ... PERSO~AL I:\'Jt."RY ... OF THE PASSESGER l"SLESS \\"RmE~ NOTICE OF THE CLAnI. \\1TH FULL PARTICULARS, SHALL BE DELIVERED TO THE CARRIER OR ITS AGEST AT ITS OFFICE AT THE PORT OF SAll..I:\'G OR AT THE PORT OF TER.\lr<ATIO~ WITHIN SIX (6) :'IO~THS FRO:'I THE DA Y WHE~ SL'CH ... PER..."O:\AL I:\'Jt."RY ... OF THE PASSE:\GER OeCL"RRED; A.'lD D; ~O EVE;I., SUALL A.'.;Y seeu SeIT FOR A.'.;Y CAUSE AGAI:\'ST THE CARRIER OR vrS.<:EL FOR... PERSOSAL IXJt."RY ... BE :'lAI.""'TADiABLE L"SLESS SeCH SUIT SHALL BE CO~I)IE:\eED WITUD; O~E III YEAR FRO~I THE DAY \\1IE.".; THE ... PER..."ONAL I:\'Jt."RY OF THE PASSESGER OCCURRED, NOT\\1TIL."1'A.'.;DI:\'G A.'.;Y PROVISION OF LAW OF A.'.;Y STATE OR COU;I."TRY TO TUE CO;l."TRARY. (Cruise licut. ll:me:rea as Exhibit B to the Affiwl\-it of Wendy Zepemiclt dated ~v""mber 23,1991\ The Berp, th.rou;t!lrttained COUNt'I. notified R~yll1 Canbbean of Utel.l' ifllW'let and made a dt'mand for parme nt of $150.000 00 in a letter d:tt~ 5to~mbfHo t;. 1991. In the 1Mt Copr · Wen 1m No Cl~ to l'n&, t: S G,,~t ""Jrb \\I~l1.AW , Not Reported in F,Supp. (Cite as: 1992 WL 609803, .1 (D.N.J,)) paragraph of that letter, the Bergs' counsel stated that the offer would remain "open until Octcber 8. 1991, at which time a Complaint will be filed." (Exhibit A to the Berg Brief in Opposition). .2 In response to the September 6, 1991 letter, Henry C. Hentschel, a claims adjuster for Royal Caribbean, wrote a letter dated September 25, 1991 in which he acknowledged that Laura Berg's i1\jury "was an unfortunate incident albeit a very minor one", and stated that "We hope we can agree it is not law suit material". (Exhibit B to the Berg Brief in Opposition). Further, Hentschel wrote that Royal Caribbean "would be willing to settle with Michael and Laura Berg for $1500 plus any out-of,pocket expenses, " <Id.l. Significantly, in a clear reference to the one year limitation period. Hentschel wrote in the last sentence of the letter: "We look forward to hearing from you before October 12, 1991." (lei.). The Bergs' counsel wrote a second letter to Royal Caribbean dated October la, 1991, in which the settlement demand was reduced to $75,000. Inexplicably, the letter further states that the "offer remains open until October 28, 1991. at which time a complaint will be filed." (Exhibit C to the Berg Brief in Opposition). Apparently, after the one year limitations period had run. on October 21, 1991, Hentschel informed the Bergs' counsel in a telephone conversation that the Betis' claims were time.barred under the ticket contract. In a letter dated October 22. 1991, Hentschel memorialized the telephone conversation and further extended a settlement olfu of $3000, a 111m that Hentschel estimated would be expended by Royal Caribbean to answer any complaint filed by the Bergs and to Iile a motion for summary iud&ment based on the contractual time bar. (Exhibit 0 to the Bert Brief in Opposltion). On October 21, 1991, more tIwI one year after LaW'S Beti sustAined iJliury on Labaclee, the Bergs tiled SU1t in ltA1e roI.II1 &l1ell\ng thrto1o counts of I\eC'lipllCe The C;lmplalnt was amended on October ZS, 1991 tI'l ;add rounts of bteac..1t of the implied CO"tMnI cl rood ftith Page 2 and fair dealing, and estoppel. Both of these counts are based on the correspondence between Hentschel and the Bergs' counsel. Count Four alleges that Royal Caribbean "lull[ed] plaintiJTs into believing that meaningful settlement negotiations were taking place, only to use these negotiations to allow the contractual statute [sic] of limitations to lapse." (Amended Complaint Fourth Count 1 7). Count Five alleges that Royal Caribbean "misrepresented its intentions in continuing settlement negotiations" and that "plaintiffs have rightfully relied upon said misrepresentations to their detriment." <Id. at Fifth Count '1 2. 3). Royal Caribbean removed this action from state court on November 13, 1991. It then filed its answer and now moves for summary judgment on all five counts of the complaint. [FNI] DISCt:SSION Summary judgment shall be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. show that there is no genuine issue as to any material fact and that the mo\'ng party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56ie); see Hersch v. Allen Products Co.. 789 F2d 230, 232 (3d Cir.1986l. In making this determination. II rourt must. draw all reasonable inferences in favor of the non, movant. Meyer v. Riegel Prod&. Corp., 720 F,2d 303, 307 n. 2 (3d Cir.l983l, cert. dismissed, 465 t:.S, 1091, 104 S.Ct. 2144 <l984\. A. Counts One throUlfh Three .3 Limitations pro\.lsiona in p&s8l!JtC!!r ticl<et contracts an! enfotUable. 10 Inn<< as they have been nuonabl:r =wucated to the passencer. Marek v. Ma.rpan Two. Inc., 817 F2d :Wl 13d Cir.l9871. P1~ do not di$p\l1e that the limitations provision wu "ruilOnably rorM\\I.l\icated" to t.~"tn In the t.cket contract. \\Mlher terms of a pas-ncer cefttr:ld h:ne been l'\!ucMbly co~ated COll" · W<'II 1m Xu Oa..n t<1 OnlT l'S C,,}<'! Wcrll.s \\1 Sn"AW . Not Reported in F.Supp. (Cite as: 1992 WL 609l:l03. .3 (D.N.J.n is a question of law to ba determined by the Court. Hodes v. S.N.C. Achille Lauro, 858 F.2d 905,908 (3d Cir.1988). The Court finds that the limitation of actions provision was adequately displayed in the contract such that it was reasonably communicated to the Bergs. Unlike most of the contract, that provision was set out in upper case letters and was printed in white on a dark background. Additionally, the type size used is larger than is used for other terms of the contract. Last, on the very first page of the contract, the passenger is told. in similarly large upper case print set out on a dark background, that it is important to read all terms of the contract, A similar provision was found reasonably communicative by the late Judge :'Utchell H, Cohen of this District in Williams v. Royal Caribbean Cruise Lines, Inc,. 1991 A,:'I.C. 237 (D.N.J.I990). This Court finds that Williams is persuasive authority. Hence. the limitations provision is enforceable against the Bergs to the extent that it is applicable, The only issue raised by this motion is whether the limitations provision in Laura Berg's ticket contract is broad enough to encompass claim! arising from a passenger's activities on land at a scheduled port of call. Royal Caribbean asserts that the contractual provision bars any claim against Royal Caribbean that arose during the cruise and that wu not filed within one year of the occurrence. Berg asserta that she is suing Royal Caribbean in its capacity as an owner or operator of land. and not "as a ship owner or operator." (Bel'lt Brief in Opposition at 71 Therefore, ahe contends that the contractual pro\ision simply doe. not apply to this sction. In Hodes, the Third Cirtuit held that A passeneer ti.:ket for an ocean royage is s maritime contract Aecording1y, whether ticllet c:onditillns fonn part of the penenger'. contract and the effect such conditions ahould be aft'orded are lIUttcn g;J'~me4 by the c.neral maritim.. not the local statl!. law Hodes, &M F2d at 900 \CIUtiON umlttedi Thu.. the breadth of allPuc:lt\On of the limitatioN prc'"~\U\ c.f bun twl'lt'. t1cklft Page 3 contract is a question of federal maritime law. IF:\21 The parties both concede that there is no extant case law authority in which a plaintiff was injured, at a scheduled port of call during the course of a cruise. on land owned by the carrier, and precluded from suit by a time limitation contained in a passenger ticket contract. Nevertheless. that plaintiff was injured on land instead of on board the cruise vessel is not a critical distinction per se. What is critical is whether the contract, by its terms, properly reaches actions arising on land owned by Royal Caribbean. After closely examining the language of the ticket contract. the Court concludes that, as a matter of law, plaintiffs' claims are time,barred. IFN31 .4 "Passenger" is defined in the contract as including "all persons travelling under this ticket and his and their heirs and representatives." (Cruise Ticket, page I. Exh, B, Zepernick AffJ (emphasis added), It is significant that "passenger", as that term is used in the contract. is defined as a person "travelling under" the contract. When p1:lintiff was injured, she had not yet reached her final destination. She had merely stopped over briefly at a port of call scheduled on the cruise itinerary, and disembarked for an activity "scheduled by the Royal Caribbean staff." (Affidavit of Laur' Berg, , 21. It wu clear that Royal Canobean's contractual obligations to Laura Berg had not ended, and that she would return to the veue1 to continue her travels, She...as thereCore clearly "travelling under" the ticket contract at the time of her ~W')'. Thus. under the plain language of the ticket contract, at the time or her injuries, Laura Bel'lt was a "puNnee'" within the meaning or the contract, it IIOt within the meaning oC the geflt!ral maritime law. tFN41 Furtht!r. "Carrier" is defined. in relevant pert. as "Royal Canbbean Cruises, Lid." ad,'. This dlffir.ltion is plaln and wwnbiJtVous. It do.>s Mt' as p1a,lntlffs IUlfgHt. limit the lnt':uung of "eani<l,' tu lWyal Canbbean ACtinc III IU eapae1t). as t:uTle,. as that tnm is understood und.1r IPlWral mArttune law. To Copr · West li~ :\,) Cl.um 1.:1 Onl r S ('.0.)\,\. W".u \ \ 1.'111~ \\ \" ! ~ot Reported in F.Supp. (Cite as: 1992 WL 609803,04 (D.N.J,)) impose such a constroction on the ticket contract would burden that contract with an artificial limitation at variance with its plain import. Thus, as with "passenger", see supra note 4, the term "carrier" is deflIlCd more broadly under the contract than it is by the general maritime law. Read together with the definitions, the actions limitation provision in the ticket contract unambiguously covers Laura Berg's causes of action arising from her injuries sustained on Labadee. C nder that provision. any claim against Royal Caribbean in any capacity for personal injury sustained by Laura Berg while "travelling under the ticket" must have been commenced within one year from the date of that injury. The Bergs did not comply with this contractual requirement. Therefore, their claimS are time. barred. B. Counts Four and Fh'e Royal Caribbean has also moved for summary judgment on counts four and five of the Bergs' complaint. Those counts. which arise out of communications between Royal Caribbean and the Bergs' counsel, allege that the contractual limitations period should not be enforced due to the bad faith conduct of Royal Caribbean in leading the Bergs' counsel to delay in filing suit. Although the Bergs set forth a claim sounding in contract as well as under the theory of estoppel, the Court will consider them together, since the claims are indistinguishable in substance. C nder the cimJInStlUlUl clearly presented in the correspondence submitted to the Court. these counts border on the frivolous. ,.. these claims arise out of the ticket contract. they are /IOvemed by federal maritime, not &tate, law Hodes, 858 F.2d at 909. Trol is not a novel issue of law. Two other judps in this dilltnct ha,... previously rejeeted similar daimS &!e ~l.ichelotti v. Hame LiN!1 CruiHI. W., 1986 A.M.C 4S0, 4M tUN J 1985\ io.bevoise, Jl, atrd, 786 F 2d 1 H7 13d Clr 1~\ ltable\~ Williams. 1~1 A.~tC at 247,Cahen. JJ Page 4 05 Plaintiffs assert that Royal Caribbean "intentionally protracted the settlement negotiations as an attempt to use the one.year statute of limitations [sicl as a shidd ta the Bergs' claim." (Berg Brief in Opposition at 16). For any affmnative misconduct to create an estoppel, plaintiffs must have relied on that conduct to their detriment. Burke v. Gateway Clipper, W., 441 F.2d 946, 948 (3d Cir.1971) (conduct must have "caused a plaintiff to delay ruing suit until after running of the statutory period"). [FN5] Further, as an equitable doctrine, estoppel "is a question of law to be detennined by the court." ld. ~othing in any of the correspondence contains any representation or promise that can in any way be characterized as misleading. nor has any evidence been presented that Royal Caribbean engaged in conduct that could be construed as misleading. Indeed, in its September 25, 19911etter to the Bergs' counsel, Hentschel virtually brought the provision directly to the attention of the Bergs' counsel when he made e:<presa reference to the limitations period in stating that Royal Caribbean hoped to hear from counsel before October 12. 1991, the last day to file suit under the contract. Wholly absent here is any affirmath-e conduct intended to deceive plaintiffs into delaying the filing of their complaint. Thus. unlike in Keefe v. Bahama Cruise Line,w., 867 F.2d 1318 mth Cir.19891. where the carrier's claims representative had falsely represented to p1aintifrs attorney that a full release had already been obtained from plaintiff, id. at 1324. there is no basis in this record for fUlding that the Bergs' counsel had been led to delay the filing of their complaint. Royal Willi under no obligation to exprenl,. inform the Bergs' coUl1l!4!I before October 12, 1991 that it intended to invoke the limitations provision. Further, plaintiffs' claim that Royal Caribbean's fallure to invoke the su month notice of claim provillon somehow col\ltituted s.tJ\.rm&tive bad faith conduct is without merit, A1iy waiver by Royal Canbbean of Its riChu under the Mllee provision did not col\ltitute a _aiver of ita nahts under the actions linut.ttion proriliefl., or constitute a Calli' t Wtst 1998:\0 Claun ~ One l'S Govt WOrkl Wb I L\\\' I Kot Reported in Jo'$upp, (Cite as: 1992 WI. 609803. .5 (D,N.J.)) Page 5 misrepresentation as to its intent to waive that provision. Absent an express representation to that effect, there is no basis for fuuiing bad faith. Plaintiffs' further claim that they relied on any conduct by Royal Caribbean in delaying the filing of suit is belied by their concession that "in the instant action [they) rightfully relied upon the [two year New Jersey} statute of limitations due to the fact that the ifliwy occurred on land." (Berg Brief in Opposition at 15, 16) (emphasis added). Thus, plaintiffs have not raised any issue of fact as to the bad faith of Royal Caribbean. ~2. Thai i~ nor to \JY thai lhe incident thai I.1ccurrcd on l.1nl.! I~ a mariurne ton governed by nJ.ullirr~ law, h is likely thai the law governmg plalDuff, claim, " thai of either New Jersey or Halli. To the Ulent that any common law turt rlj.hts and duties have been ahered by contract. however. they arc governed by marinrne law. FN3. A, . claim dependent on the validity of laura Berg', ClallO. ~lJchael Berg', per ~uod cl.im i, al,o barred by the licket Conlracl. lieb v. Roy.1 Caribbean Crui,e line. Inc.. 64S F.Supp. 232. 23S (S.D.:-I.Y.1986). CO~CLL'SION ~4. Under general marilune law. the term .p3~~enger. !us acquired meaning for purposes of defmmg the rigbts of marine travelers vis~a.vis meiT carrier. Thu,. u h... been ,.id thaI 'the relalionship of pas"engers and carrier ... exISts from shore to 'hip and ,hip to ,hore.' Chervy v, Peninsular and Onental 51eam Sang.tion Co.. 243 F.Supp. (S.D.CaI.I96J); 'ee also lawlor v, Incre. S.....u Sle;unship lllle. Inc.. 19S8 A.M.C, 1701. I70S iD.Ma".19'81. Some authorities ha\'e connrued the pas$en.er. i.:aerier rtbUOlUhip even more broadly. 5Uting thaI it does not .nd UllIU .the 'e"el ha, reacheJ the (IOn of the passenge" de'lWoon and the passenger ha, left me \'e~sel and the shipowner's dock or premises." I :-;"'m,. ManlD 1.. The law uf Maroime Personal InJur.., t 3.1 at 61 lath ed.I990) lempha,i, added); 'ee Shulnun v. Comp.gDle Generale TraosJllanll'lue. IS2 F.Supp. 833, 8)6 IS.DN.Y.19'7) 'liability limltalll1n u,ending . '10 the period whde the passenger and'or his bagg.ge ... are on board the ""el ... and"or the premise' of the carner' ... coven ... the relationship between [pl'lOlItfl and the (defendant) as pmelller and carner.' iellll'haslS added)). n.... under this IiIIe of authonty. . " (IO"ible thaI the Be... m'llu ...0 be c",,"'Id.red .p....OC.". as a malter of law, since the) allet. that they depaned defendanr', ve".1 )'fl ne'er left the defend.ull', prem;,e. bem uura ~r; ..as U1Jured. lIecause the C,,,,,, <o""lude, WI t"~ <<>llV><lUlIl'fl"'''''''' is broader llWl the ae&eraI mantll11e lllle'l'fetalll'''' "f the pas.elller";lmer relallomhlJ', d _ IlOl de<:1de "'he\ller under Shulm.sn rlallllllh ".re 'passe.gtn' Ii a maar of tNt"lftlot UW This case does not involve the inaction of a plaintiff not knowledgeable about limj~ations periods and the law. It involves an attorney retained by plaintiffs to protect their interests. What Judge Debevoise said in )-lichelotti is very appropriate in this case: .6 There was no reason for plaintiff's attorney to rely on [defendant's} letter as a basis for not filing suit within the time limits set forth in the contract. In his responsibility to his client, plaintiff's attorney should have filed suit to protect her daim, and continued to pursue settlement while suit was pending, Plaintiff's attorney cannot now correct his error by means of a dubious theory of equitable estoppel. )-lichelotti, 1986 A)-I.C. at 485. Accordingly, summary judgment will be granted dismissing counts four and five of plaintiffs' complaint. For the reasons set forth above, Royal Caribbean', motion for summary judgment will be granted, and Counts One. Two, Three, Four and Five ,,;11 be dismissed with prejudice. FN I. The Coun Il<'Ifi lltal the t>t",rs 'ullmilled b)' Ro)'.1 C",bbean dol Il<lI cOlllpI)' with local Rule 278 in lhar the)' cnntamed Ill> ta"'~ of cn_ or lab!. of .ulllur1lle' A1lhNCb '1r",1 <""'P""nce *1Ih 1111. reqUlRl11t1lf " 001 ellll'fCed, the ",Ie " II> pia.:. ~'r I rea"",. and the C,..." r",fen Ilw ~ be (\'mr11itd .tth to tln.l1't.lte me (",'U.n'. \l~ .'rt Uk\~ b,,,,f.. f"i< ....llIll'ueh Ilune .....ol.ed a ,ta""'>ry, " .'l'1".....t 10 """,""II.al. luntlat."", ""llOIl. there IS "" Copr · \\'ut 1~ ~<l Claim to On.r l'S. r..,vt. Works \\lSI1.t\W ~ . .I, REBECCA FAERBER-CHRENCIK PLAINTIFF \', IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYL VANIA NO, 17 - I!-'t-Y-K (I ~(,~L JURY TRIAL DEMANDED ROYAL CARP.IBEAN CRUISES L TO DEFENDANT CIVIL ACTION-LAW NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the foDowing pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personaUy or by attorney and filing in writing with the Court your defenses or ol!jections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and ajudgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the PlaintiIT. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. COURT ADMINISTRATOR OF CUMBERLA1'olD COUNTY THIRD FLOOR. CUMBERLAND COUNTY COURTHOUSE 1 Courthouse Square Carlisle, PA 17013 717-697-()371 NOTICIA Le han demandado a usted en Ia corte. Si usted quiere defenderse de estas demandas expuestas en !as paginas siguientes, usted tiene viente (20) dias de plazo aI partir de la fecba de la demanda y Ia notiflCBCion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en Ia corte en forma escrita BUS defensas 0 sus objeciones a !as demandas en contra de su persona. Sea avisado que si usted no se defiende. III corte tomara medidas y puede entrar una orden contra usted sin prev10 av1so 0 notirlCacion y por cualquier queja 0 alivio que es pedido en III peticion de demanda. Usted puede perder dinero 0 BUS propiedades 0 otros dereehos importantes para usted. LLEVE ESTA DEMM'DA A UN ABOGADO L....MEDIATAMENTF:. 51 NO TIENE ABOGADO 0 51 NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ABAJO PARA AVERlGUAR OONDE SE PUEDE CONSEGmR ASISTE.....CIA LEGAL. COURT ADMINISTRATOR OF CUMBERIA....D COUNTY nURD FLOOR. CUMBERIA'I;D COUJIi"TY ~"OURTHOUSE 1 Courthouse Square C.arlisIl', PA 17013 11 7-(191-0071 . REBECCA FAERBER.CHRENCIK PLAINTIFF \', IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA NO. (j '7 - ".l r J' {~v.J -r:;,.~ ROYAL CARRlBEAN CRUISES L TO. DEFENDANT JURY TRIAL DEMANDED CIVIL ACTION-LAW COMPLAINT 1. The Plaintiff is an adult individual with an address at 457 Country Club Drive, Camp Hill, PA 17011. 2. The Defendant is a Florida Corporation regularly doing business in Pennsylvania with a principal place of business 1050 Carribean Way, Miami, FL 33132. 3. Venue is proper because the Plaintiff resides in Cumberland County. 4. Jurisdiction is proper under 42 PS ~5322 because the Defendant solicited clients and transacted business for the purpose of pecuniary gain in Pennsylvania and also in Cumberland County. 5. The Plaintiff is a pOdiatrist, who contracted with the Defendant through the Bannockburn Travel Agency to take a cruise on the Splendour of the Seas on or about February 22, 1997 for the purpose of participation in a continuing medical education course and cruise around the islands in Carribean surrounding St. Maarten. 6. The Splendour of the Seas was owned by the Defendant and at all times relevant hereto, members of her crew, the ship's doctor, and captain, were agents, servants, or employees, under the direct control of the Defendant. 7. The Plaintiff flew to Florida on Sunday, February 22, 1997 to board the Splendour of the Seas, and shared a luxury cabin by her friend, Paula McKain-Toomey. 8. On TUesday February "4, 19\17, Ms. McKain-Toomey discovere,:l ,~mlne l!\H:or, \'",'1(",\1 spcttinq and telephoned . her husband, a physician, who, after listening to his wife's symptoms, determined that she had had a miscarriage. 9. Her husband indicated that there was no medical emergency and that she should relax, enjoy herself and continue her vacation. 10. As a precaution, he indicated that she should inform the ship's doctor of what had occured. 11. When the Plaintiff and went to the ship's doctor, he declared immediately a medical emergency, without bothering to examine Ms. McKain-Toomey beyond taking her pulse and blood pressure, which were normal. 12. The Plaintiff and Ms. McKain-Toomey were informed that a blood transfusion was needed and despite the fact there was no bleeding, they would be removed from the Splendour of the Seas. 13. Despite verbal protests from the Plaintiff and from Ms. McKain-Toomey that this was unneccessary, both women were forcibly evicted from their cabin. l4. The women were informed they would be transferred to a boat offshore containing medical personnel and taken to Curacao to treat Ms. McKain-Toomey's non-existent medical emergency. 15. In fact, they were transferred to a tugboat at nighttime, which had no medical facilities, no medical personnel, and whose crew spoke no English. 16. The two women were promised that a ship's agent would attend them throughout their stay on Curacao, but nothing of the sort occurred. 17. Despi te the promise of medical treatment, no medical treatment was ever given to Ms. McKain-Toomey, although the hopsital on Curacao took a "depositH of $2000. 18. After checking herself out of the hospital, Ms. McKain- Toomey and the Plaintiff boarded a plane to St Kaarten's, " where a "luxury hotel room" awaited then until the Splendour of the Seas docked on Thursday, February 26, 1997. 19. The "luxury hotel room" was infested by vermin, dirty, and small. 20. When the two women were permiited to reboard the Sp1endour of the Seas on February 26, 1997, they were not permitted to go back to their cabin, had no place to stay, and the Plaintiff missed the educational lectures, which was the original purpose of the trip. 21. As a result of the acts of the Defendants and its agents, servants, or employees, the Plaintiff suffered pecuniary damage, harrassment, humiliation, and unlawful restraint. COUNT I--BREACH OF CONTRACT 23. All preceding paragraphs are incorporated as if incorporated herein. 24. The Plaintiff and the Defendant entered into a contract for entertainment services, a partial copy is attached hereto as Exhibit A. 25. The acts described herein by the Defendant constitute a breach of that contract. 26. As a result of that breach of contract the Defendant suffered injury: a. A complete loss of value of the trip. b. Additional costs and expenses once she was forcibly removed from the Splendour of the Seas. c. Consequential damages to her medical practice. WHEREFORE, the Plaintiff demands judgment in an amount not to exceed $35,000. COUNT U"I'ALSE IHPRIS<>>IHENT 27.. ." 1'\.. preced i r,q paragraphs are incorporated as if incorporated herein. 28. Th€ t'efendant# lt~ aq:t~'nt$, $i,H"VAnt.:;, arid employe-es, , intentionally, forcibly, and unlawfully restrained the Plaintiff against her will, wh~n they were without reason to do so. 29. As a result of that breach of contract the Defendant suffered injury: a. A complete loss of value of the trip. b. Additional costs and expenses once she was forcibly removed from the Splendour of the Seas. c. Consequential damages to her medical practice. d. Embarrassment. e. Humiliation. W!ii:..REFORE, the Plaintiff demands judgment in an amount not to exceed $35,000. COUNT III--NEGLlGENCE 30. All preceding paragraphs are incorporated as if incorporated herein. 31. The Defendant is in the business of providing entertainment to its passengers and owes a duty of reasonable to its passengers for their protection and safety. 32. The Defendant breached that duty in the acts described herein. 33. As a result of that breach of contract the Defendant 34. suffered injury: a. A complete loss of value of the trip. b. Additional costs and expenses once she was forcibly removed from the Splendour of the Seas. c. Consequential damages to her medical practice. d. Embarrassment. e. Humiliation. '- -. -----, I:."-;~..--:" . . . '. ..1 . ;' 'e. I. ." .;: ::. ::.:. . . 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",., ..: .. .. .. .. ~ .. .. .. .. .. .. .. .. .. . .. rl".~..'.. "" '''O'fl.' .,,1 "', . .. ..I' t '.. \", ., t".;. f~'..t"':!__> . .. .. .. ~ r . ~ .. ',i. '~f';.. \1" ., q. \\\1 " . . "! flf I 'w't. .."il .\ ..",,1 , '" ~ d.. .. I ,. '.11'1 " \I , . ,--,,,.,1....1 I (' .:1&1 ~ \'. \", ,n^'.'l,nt~t."..y ~ ~ ) REBECCA F AERBER-CHRESClK &. PAUlA MCK,Wo: TOOMEY IS 11iE COL"RT OF COMMOS PLEAS OF CUMBERLA.''D COI,;'1IoTY, PE!Io"SSY1.\'A.'1A PLIDTIFFS \', SO 199i -4288 }li"RY TRIAL DE~''DED ROY Ai CARRlBEAN CRI,;1SES L TO DEFEND"'."T SOT1CE YOU HAVE BEE~ SUED IN COL"RT, If you wish to defend against the claims set forth in the foUowing paaes. you must take action within twenty (20) days al\er this Complaint and N oti<:e are served. by entering a written appearance personally or by attorney and Iilini in writini with the Court your defenses or olljectioas to the c:Iaims set forth against you. Yau are warned that if you fail to do so the case may proceed without you and aj1~v-t may be entered against you by the Court without further notice for any money claimed in the Cnn,pLoTrlt or for any other claim or relief requested by the Plaintiff. Yau may 10se money or property or other rights important to yolL YOU SHOL"LD TAKE THIS PAPER TO YOL"R LAV.'YER AT ONCE. IF YOU 00 SOT HAVE A LAWYER OR CA....1\OT AFFORD OJli"E. GO TO OR TELEPHO~"E THE OFFICE SET FORnI BELOW TO FD;D OUT WHERE YOU CA.~ GET LEGAL HELP. COL"RT ADMI!\1STRATOR OF ct"MBERLA....i> COtTl-"TY THIRD FLOOR. ct"MBERIA'i> COUNTY COT.:'RnIOt:SE 1 Courthouse Square Carlisle. PA 17013 717-697-()371 SOTICIA Le ban ~ a lISted en Ia corte, Si usted quiere defender5e de estas demandas espuest.as en !as pqina.s siJuientes, USted tiene \;ente (20) dias de plazo aI partir de 1a fecha de la demanda yla O(..f!......,. Usted debe presenter W\& apariencia escrita 0 en persona 0 por abopdo y arclIivv en 1a corte en forma l!ICrita IUS defelllU 0 IUS objeciones alai d._nil", tIl contra de au pertOlIL S. avlsado que Ii lISted 110 lie defiende, la corte tomara medidas y puede entrv W\& ordtll COIltra lISted IIin prevlo &YWo 0 notificacion y par c:uaIquier que;. 0 aImo que es pedido tIlla petic:ion de de-""" U Red puede perder dinero 0 &UI pr..p;edades 0 otros derecboI importantes pII'& usted. lJ.EVE ESTA DEKA....'DA A t"N ABOGAOO I!\"MEDlATA.'dENTE. 51 NO TIE.'"E ABOGADO 0 51 NOTJE.>.,"EELDI!\'EROSt"FICIE.''TE DE PAGAR TAiSERVICIO. VAYAE.~ PERSONAO!,! .~ POR TELEFO~O A LA OFICDtA ct"YA DIRECCIOS SE E.~ct"E~'TRA ABAJO PARA AVERlGUAR DO~i>E SE PL"EDE CONSEGt1R ASISTE.~CIA LEGAL. cot"RT ADMI!\1STRATOR OF ct'llBERLA..''D cot;!\."TY THIRD FLOOR. ct"XBERLA.'i> cot'NTY COt1tTHOl'SE 1 CounhouM Squan Carli*. PA 17013 71NI1l1.0311 REBECCA FAERBER-cHRElIiClK &:. PAULA MCKAIN TOOMEY PLAn\. 'TIFFS IN TIiE COL'RT OF CO~l\lOS PLEAS OF CL'MBERLA.''D COL"!\iY. PE!I.~S't1.VA."'lA v, NO, 1997-4288 IL'RY TRIAL DEMA.....'OED ROY At. CARRIBEAN CRllSES L 11>, DEFE!I.'OA.... i CIVIL ACTIOS-LA W AMENDED COMPLAINT 1. The Plaintiffs are adult individuals with: a. Rebecca Faeber-Chrencik with an address at 457 Cou~try Club Drive, Camp Eill, FA 17011. b. Paula McKain Too~ey is a~ a~~:: i~div:c~al wit~ an address of 888 ~illersville Read, Lar.easter, PA 17603. 2. The De!e~:ant is a Flo::da Co:pcra::c~ ~e~Jlarly doi~; busi~ess in Pe:l.~sylvania with a pri~cipal place o~ busir.ess 1050 Carribear. Way, Mi~i, r: 33132. 3. Venue is p:oper because c~e of :he ?:a:~:i!fs resides in Cumberlar.d County. 4. Jurisdiction is proper ur.der ';2 FS 55322 tecause the Defendant solicited clients and trar.saeted business for the purpose of pecuniary gain in Per.nsylvania L~d also in Cumb.rland County. S. Th. Plaintiffs are podiatrists, who contracted with the Defer.dant through the Bar.nockburn Travel Ager.cy to take a cruise en tte Splendour of the Sea.s C~ cr about February 22, 1997 for the purpcse cf participation in a conti~'''~~ -e~' ~al ....':Jeat' ~~ -~"~se L~~ --,. se ar-"-d .... ..-....... .... -..."",.. - ........... ............ ....... ......-.... ............ ...... islands in Carribean surro~~ding St. Mal:ten. 6. the S;lendour of the Seas was ~.d :y tr.e ~ef.~dant and at .:l :i:.s r.l.va~t he:e:c. =e~@=s c~ her crew, the ship'S doc:cr. and captain, we:e a;.~~s. serVant., or .:plc-l....s, ;,.;~der the di:ec: ccr~~rol o! t~.e refer.dant. 7. :~e ?lai~::f:s flew to Flcrida O~ E~~=ay, :ebr~a~y 22, 199i to beard the Sple~dQur c: :he S~as, and shared a l~xury ca=in together. 0:: ':'uesday February 8. 24, 1997, Vc 4..- . McKai::-Toomey and telephoned c:scovere= some minor, vaginal spotting ~e= husta~d, a ;hysi~::~, who, a::er :isteninq to his wi:e's s~~ptoms, determined that s~e had had a miscarriage. 9. Her husb~~d indicated that there was no medical emergency ~~d that she should relax, enjoy herself and continue her vacatio:-:. 10. ~~ a preca~tion, he indicated ttat s~e s~ould i~:c~ the ship's dcctor of what had occured. 11. W~e:-: the Plaintiffs went to the s~ip's docter, he declared immediately a medical emergency, without bctherin; to exa:ine Ms. McKain-Toomey =eyond taki::g her ~~_se and blood p=ess~re, which we=e ~:~al. 12. The Plai:::iffs were info~ed that a :1000 transfusion was pcssibly needed a::d despite the fact there was minir~l bleeding, they would be r~~oved from the Splendour of the Seas. 13. Despite verbal protests from the Plaintiffs that this was unnecessary, both women were forcibly evicted from their cabin. 14. The wemen were informed they would be transferred to a beat offshore containinq medical ~er$o::nel and taken to C~=acao t: treat Ms. Mc.~ain-rocmey.s nc~-exi!tent medical emer<;e~::j; . 15. In fact. they wl'lich were transferred .~ ..~ a tuqboat at no medical ~i;::~:.:.:te. had no medical tacil::les, pe:s:~~e:, a~j wh~se crew spcke ~c ~~;:~st. 16. '1'::e two \oI;aen were promised that a !~~?' s aqent would a:t~d :~~ thre~~out their s:ay ~~ Curacao, but noth1nq of the sc~t occurred. 17. Jespi~e ::..e p==mise of Ir'ledical ::eatnle::t, :-.: ::'.edical treatme~: was ever give~ to Ms. McKai~-:oomey, altho~gh the hOFsi:al on Curacao took a "deposit" of $2000. 18. After bei~g medically discharged, ~s. McKain-Toomey and the Plai~ti:f boarded a plane to St Maarten's, where a "lux~=y t::el room" awaited them ~~:il :~e Sple~dc~r o~ the Seas d~cked o~ Thursday, Feb:t:a:y 26, 199i. 19. The "luxt:ry hotel room" was infested by vermin, dirty, and small. 20. When the two women were permitted to rehoard the Sp1endcur a: the Seas on February 26, 1997, they were :ocked :~: 0: her cabin, had ~~ p:a=e to stay, and the Plaintiff missed the educational lectures, Which was the oriqina: ;u:pose of the trip. 21. As a resu:t of the acts of the Defendants ~~d its agents, serv~~t$t cr e:ployees, the Plain:i~~ suffered pec~niary damage, ta=ass~e~t, h~~iliatic~, and ~~law!ul restrain:. COUNT I --BREACH OF CONTRACT (FAEBER-CHRENCIK) 22. .~ll prece:1ing paragraphs are incorporated as if incorporated herein. 23. The Plaintiff, raeber-Chrencik, and the Defendant entered into a contract for services, a partial copy is attached as Exhibit A to the original camplaint. 24. The acts described herein by the Defenda~t constitute a :reach o~ :~at co~tract. 25. .\5 a re!:;lt of :hat breAch of cC:-'.::ract ~h. Plaintiff suttered ;':i;:'...:y: a. A ce~p:e~e less of value of tht trip. ... -. A~d:t::~I: costs and exp~n!es c~c~ she was forcibly :.~=Vf: t:cm :~e Spl.~de~: c~ :~e Sets. c. C;~s.~~fr.:il: da~a;.s to h.r e.j1ca~ practlce. WH!~FORE. :~. ;:l.~:l~~ j~~ands ~~d~..~~ ~~ an ~ount not to removed from the Splendour of ~he Seas. c. Cc~se~;ential d~~ages to her rr.edical practice. d. E~arrassment. e. Humiliation. WHEREFORE, the Plaintiff demands j~d~ent in an ~ount not to exceed $35,OO~. COUNT IV--BREACH OF CONTRACT (MCKAIN-TOOHEY) 23. All preceding paragraphs are incorporated as if incorporated herein. 24. The Plaintiff, McKain-Toomey, and the Defendant entered into a con:ract for entertai=ent services, a partial copy is at:ached hereto as Exhibit A. 25. The acts described herein by the ~efendant constitute a breach of ~hat contract. 26. As a result of that breach of contract the Plai~tiff, McKain Toomey, suffered injury: f. A complete loss of value of the trip. g. Additional costs and expenses once she was forcibly removed from the Splendour of the Seas. h. Conse~~ential damages to her medical practice. WHEREFORE, the Plaintiff demands judgment in an amount not to exceed $35,000. 27. COUNT V--FALSl All preceding tMPIUSONHEMT (!CJCAIN-TClCIG:Y) paragraphs are inccrporated as if incorporated herein. 28. The Defendant, its agents. servants, and employees, intentionally, forcibly, and unlawfully restrained the Plaintiff. KcKl1n-Tooluy. aqainst her will. when they were with:~t reasen to de so. 29. As I res...;:: o~ that ::eaeh of ccn::-ac:t the Plaintiff. MCKain Toomey, suffered injury: a. A complete less of value of the trip. removed from the Splendour of ~he Seas. c. Co~s~~~en~:al d~~ages ~o her rned:cal prac:ice. d. ~~a=:assment. e. H~~liation. WHEREFORE, the Plaintiff de:ands jud~ent in an amount not to exceed $35,:00. COUNT VI--NEGLlGENCE (MCKAIN-TOOMEY) 30. All preceding paragraphs are incorpor~ted as if incorporated herein. 31. The Defendant is in the business of providing entertai:-..::lent to its passengers a=:c owes a duty of reascna::e to i~s passengers for ~~eir protection a=:c safety. 32. The Defendant breached that duty in the acts described herein. 33. As a res~lt of that breach of co=:tract the Flaintiff, McKain-::cmey, suffered injury: a. A co=plete loss of value of the trip. b. Additional costs and expenses once she was forcibly re~:ved from the Splendour of the Seas. c. Consequential damages to her medical practice. d. tml::arrasSlllent. e. Humiliation. WHEREFORE, ~~. Plaintiff demands judgment in an amount not to exceed $35,000. RESPECrrJLLY SU3MITTED, 71Ic. Shawn A. 90larth Esqulre A:torney A: Law 120 South Stree: Harrisburg, PA 17101 717-232-4227 i III U' ':T g o ~ot Reported in F,Supp, 1995 A.M.C, 348 (Cite as: 1994 WL 405919 <N.D.m.)) John MORAITES, Plalntltf, v. ROYAL CARIBBEAN CRl:ISES, LTD.. DefendanL No. 94 C 3762. l:nited States District Court. ~,D, Winois, Eastern Division. July 29, 1994, ~(E~lORA.."'DL,)[ OPDiIO~ .-\.."'0 ORDER CA,:,'TILLO, District Judge, -I This action ariaes out of a personal iJIiury sustained by plaintifi'. John ~[oraites, while he ..as a passell(er on one of defendant Royal Caribbean Cruises Ltd. 's cruise ships, Defendant has moved to dismiss under Rule 121bXS), claiming that venue is not proper in the Northern District of illinois because the cruise ticket plaintifi' purchased contains a forum-selection clause requirill( that all disputes arisiII( in connection with the cruise be litigated in a court in ~liami. Florida. Specifically, the ticket states: It is acreed by and betwHn passenpr and carrier that all dispute S and matte" ..h.1uoever arisinc under. in connection with or incident to this contract ..'W.l be lincated, if at all. in and before a court located in ~liami, Florida, t:,S,A., to the exclusion of the COurtll of any other state, territory or country, Pauencer hereby ..ai ves any venue or other objection that he may have to any such action or proceedinc bein( b1wcht in any court I.....t~ in Miami, Florida. Defendant &J'IUeS in the alternative that the court should :nnsfer this action to the United States District Court for the :5outhem District ofFIorida punuant to 2g l"SC I U06Ial, ..u s pllitral rule. Corum'Mlection clauses are "prima facie y&lid and should be enforced unl... enfortelD<tnt is shown by the resiJtiJI( patty to be W1Auonabl. und<tr' the cU'CWlIStanc'es, " ~S Brelllltn y Zapata Otf, 5h"re Co . ~,)~ l- 5 l. 10 i I~~!\ [v.n ..h<tre th.. i;,n.uu ds~ .subllsh<ts s relllOte for'W!l Page 1 for resolution of conf1icu, the resisting party bears a "hea,1' burden of prool"' of unf:timess, ld, at 1~. In a case strtkill(ly sunilar to this case, the Supreme Court upheld the enforceability of a forwn-sel.,.,tion clause in Carnival Cruise Line , Inc, v, SI.ute, 499 (;,5, 585(1991). Like Mr, ~Ioraltes. :he plaintiff in Shute purchased a ticket contai ning a clause selecting Florida as the forum, '" as injured on the cruise, and filed suit aga11lSt the cruise line in her home state of Washington allecing negligence, The cruise line moved to dismiss for improper venue and the district court cranted the motion. Following revenal by the court of appeals, the Supreme Court held that the court of appeall erred in refusing to apply the forum,selection clause, In doing so, the Court rejected the argument that a non-negotiated forum. selection clause is per se unenforceable, Id. at 593, Rather, the Court listed several j~'tifications for permitting the cruise line toinsert a reasonable forum clause in a form contract, including the cruise line's "special interest" in limiting the number of fora in ..hich it potentially could be sued. the "sa1uta.l7 effect" of dispellinc any confusion about ..here suits arising from the contract must be brought and deitnded. and increased benefiu to passell(en in the form of reduced fares retlectinf the savill(s that the cruise line ellioys by limitini the fora in ..hich it may be sued, Id. at 593.94, The Court also h.ld that the forum selection clause did not violate the Limitation of V_I Owner's Liability Act, 46 U,S,C,App, t 183c ..hich lUtes: -2 It slWl be unlawful Cor the ," owner of any v'SHI tranlportinC' passell(.n between porta of the l'nited States or betwHn any ruch port and .1 foreicn port to insert in any rul., ~gulation. contract. or acnem.nt any provUion or limitation ., 121 purportinC in such e..nt to I....n. ..eaken. or aYOid the ngllt of any clsimant to a tnal by court of competent jurudiction on the qu.stion of bability for such I"" or injl.\rY. or the meu.tre Jf d~s therefor All such pl":lVUIOIl.l or Iillut.ttlJM c.lnt.l1llitd in any C"pt' · 'i\'flt 1997 ~o Ctwn tJ '-'"' l' S G.l~. ViMU \ '. I "! I \\ '. . ~ot Reported in F,Supp, (Cite as: 1994 WL 405919. "2 C'i.O.D1.)) such rule, regulation, contract. or agreement are hereby declared to be against public policy and shall be null and void and of no effect, As the Court explained. "the clause states specifically that actions arisin&' out of the Passllie contract shall be brought 'if at all,' in a court 'Iocated in the State of Florida,' which. plainly, Is a 'court of competent jurisdiction' within the meanin&' of the statute," Id. at 596, Plaintiff'makes no effort to distinguish Shute, Rather, plaintiff' claims that Shute no longer accurately reflects the law, Without citing any authority, he lU'iUes that the ~ovember 4, 1992 amendment o( 46 U,S,C,App, I 183c by Pub,L, 102.587 chanied the law so that 1183c now forbids the use of a forum. selection clause which limiu an injured passenger's selection of judicial forum in any way, The November 1992 amendment substituted the words "any court" Cor the word "court." l" ruler plaintiffs interpretation, the amendment prohibiu the use of a forum,selection clause at all, Plaintiffs interpretation 11 completely WlSUpported by the leiislative history or the case law, On the contrary. recent decisioDl in this jurisdiction post-dating the ~ovember 1992 amendment indicate that Shute is alive and ...ell, See, e.jf,. Hugel v, Corporation of Lloyd's. 999 F,2d 206, 210 ,7th Cir,19931 '~ltilli Shute in the conten ~i a discussion natilli that (men stipulati.,n cl:l.uses are prima facie valid and routinely enforced absent a findin( o( unreasonableness); crr Group Credit Finance, Inl:, v, Lott. No, 93 C 548, 1993 WL 15761i' rn,o,m. 30lay 13, 1993) I same I. ~Ioreover. plaintiffs interpret.nion is refuted by the subsequent history of the statute itself, On DKember 20. 1993 Coll(l"tSS amended the statute again, see Pub,L, 11)3.2~6, this time to chance the words "any court" baclt to "court.. Thus, enn if COnereH had Intended the :-.iovember 1992 amendment to ban the COllSl!quences attributed to it by plaintiff' (an :1\'IU1Ilent the court l'tJeCU1, C oneresa had ch~ IU IlUnd by OKemller : ~1 Bot<.l... tN, '... IS f')vernttd by Shute. the Page 2 court would be justified in dismissing the action for improper venue, However, rather than dismissal, the court believes justice would be better served by tr:lllSferring the case to the l'nited States District Court for the Southern District of Florida under 28 L',S,C, I UQ6!a), See. e,g" Benvenuti & Stein. Inc, v, Computer Software Specialists, Inc,. No, 87 C 2507, 198i' WL 12699 rn,D,ru, June 12. 1987) (court applied forum, selection clause in contract and tr:lllSfelTed case to Florida pursuant to 28 1".S,C, ~ UI)6!all, "3 Plaintiff' has tried to avoid this result by arguing that ChiclliO, illinois is a more convenient forum in ..hich to conduct this cue than Miami, Florida. Accordin( to plaintiff, many of the witnesses reside in illinois, plaintiff himself resides in illinois. and plaintiff was treated for some of his izliuries in nlinois, Defendant has countered with its own list of factors favoring transfer: defendant's corporate office is located in Florida. the documents relating to the accident are located in Florida. and the personnel aboard the cn1ise ship at the time of plaintiffs lIC1:ident were employed in Florida. The accident itself ocCUl'nd in the Paciiic Ocean off the coast of ~Iexico, The Supreme Cour: weighed IIl3JlY of these same f3CtOrs i.'\ Shute and found them Insufficient to override the forum,selection clause, '-Irs, Shute resided in Washiniton, the defendant cruise line had its prinl:ipal place of bu.siN!sa in Florida. and the accident occurred off the coast of 3olexico, The Court noted that "Florida is not a 'remote alien forum,' 110I'- iiven the fact that :'Irs. Shute's 8<<ident occurnd off the coast of :'lexico-is this c!ilpute an essentially 10C3l one inherently more suited to resolution in the State of Was/uncton than in Florida," Id at 5:J.1 Therefore, absent an alIeralion that 3olrs, Shute laclted notice of the forum clause. the Court conclud.td that :!tIn, Shute had "not satisfied the 'Mary burden of proof: required to set :aside the clause on iJ'Ounds of incon'Nlruelll:e." Id. at 595 The present flCtJ :omptl the same result. P\aintl.t1' W lli.lt c1ll,,(ed that hot laclted notice of the f~rum cl.l~" :r that hit w;u Induced to Colpr · W!st lq<J; :-Ill Cla1m to Onl t" S G.lvt Woru \" .. '\' \ i :., II \ \ . REBECCA FAERBER-CHRENCIK 81. PAULA MCKAIN TOOMEY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY , PENNSYLVANIA PLAINTIFFS NO, 1997-4288 v, JURY TRIAL DEMANDED ROYAL CARRIBEAN CRUISES LTO, DEFENDANT ANSWER TO PRELIMINARY OBJECTIONS \. Admilled 2, Admilled ), Admilled 4, Admitted, 5, Admitted in part and denied in part Admitted to the extent that whal is included at Exhibit A is an unsigned portion of a form cruise ticket prepared by the Defendant, but denied to the extent that this constiutes the whole titket, 6, Denied as a c:onc:lusion oflaw for which no response is required, 7, Admitted in part and denied in part, Admitted that the unsigned portion oftlle ticket prepared by the Defendant contains a boilerplate provision seven! pages into the ticket with paragraph 6 in it, but denied that the client knew, agreed. or acknowledged the terms as recited therein 8. Denied as a conclusion of law 9. Denied III c:onclusion oflaw 10 Denied IS . c:onclusion of law II . Denied IS I c:onelusion of law 12 Denied as. conclusion oflaw \\lIEREFORE. the P1aintiA's demand the pmiminary objections be dismissed RESPECTfUl.L Y SUBMITTED. ~.G~ ShaWft A Botll1b Esqui~ 120 Sooth Stnd IIanisburJ. r ^ 111 0 I ---. ~3 (") . ':"1 '..,. ~, <" , " " ,~ . ..') .,; '-,. '~ J ., , ~")l <1 " . ~I~,~ f~ 9, Denied, After reasonable investigation. answering Defendant is without infonnation or knowledge sufficient to fonn a bcliefas to the truth of the avennents of Paragraph 9 of the Complaint and they arc therefore denied, 10. Denied. After reasonable investigation. answering Defendant is without infonnalion or knowledge suffieienl to fonn a bcliefas to the truth of the avennents of Paragraph 10 of the Complaint and they arc therefore denied, II. Denied, After reasonable investigation. answering Defendanl is withoul infonnation or knowledge sufficient to fonn a belief as to the truth of the avennents of Paragraph II of the Complaint and they arc therefore denied, 12, Denied, After reasonable invesligation. answering Defendanl is without infonnation or knowledge sufficient to fonn a belief as to the truth of the avennenls of Paragraph 12 of the Complaint and they arc therefore denied, 13, Denied, After reasonable invcstigation. answering Defendant is ",ithout infonnation or knowledge sufficient to fonn a belief as to the truth of the avennents of Paragraph 13 of the Complaint and they arc lberefore denied, 14, Denied. After reasonable invcsligation. answering Defendant is without infonnation or knowledge sufficient to fonn a belief as to the truth of the a\ennents of Paragraph 14 oftbe Complaint and they arc therefore deniC\l, IS, DeniC\l, After reasonable investigation. answering Defendant is w;thout infonnation or knowlC\lge sufficient to fonn a behef as to the truth of the lI\ennents of Paragraph IS \,lfthe Complalllt :and they arc therefOl'C deniC\l, ',l. 16, Denied, Aller reasonable investigation. answering Defendant is wilhout infomlation or knowledge sufficient to foml a belief as to the truth of the avemlenls of Paragraph 16 of the Complaint .md they are therefore denied, 17, Denied, Aller reasonable il1\'eSligalion. answering Defendant is without infomlalion or knowledge sufficient to form a belief as to lhe truth of the averments of Paragraph 17 of the Complaint and they are therefore denied, 18, Denied. After reasonable investigation, answering Defendant is wilhout information or knowledge sufficient to form a belief as to the truth of the averments of Paragraph 18 oflhe Complaint and they are therefore denied, 19, Denied, After reasonable investigalion. answering Defendant is without information or knowledge sufficient to form a belief as to the truth of the averments of Paragraph 19 ofthe Complaint and they are therefore denied, 20. Denied, After reasonable im'estigation. answering Defendant is wilhout information or knowledge sufficient to form a belicf as to the truth oflhe averments of Paragraph 20 of the Complaint and they are therefore denied. 21, Denied, Aller reasonable investigation. answering Defendant is without information or knowledge sufficient to form a belief as to the truth of the a\erments of Paragraph 21 of the Complaint and they are therefore denied, COl1NT I . BREACH OF COt\'TRACT 22. Denied except as otherwise admitted, 2.l Admitted, -4- REBECCA FAERBER-CHRENCIK & PAULA MCKAIN TOOMEY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS v, NO, 1997-4288 ROYAL CARRIBEAN CRUISES L TO, DEFENDANT JURY TRIAL DEMANDED RESPONSE TO MOTION FOR SUMMARY JUDGEMENT 1. Admitted, 2, Admitted in part and denied in part, One of the counts in lhe complaint is indeed a breach of contract, However. the Complaint in addition establishes that the whole cruise as it concerned the women was filled with negligence and wrongful actions by the Defendant. ), Denied, Plaintiff Faerber was instructed to leave the boat at the time as Plaintiff Toomey, 4, Admitted in part and denied in part, The Motion for Summary Judgema1l reiterates the argument which the Defendant made in Preliminary Objections and which this Court rejected because even iftrue. the Plaintiffs had to have "sufficient notice of the forum clause before entering into the contract for I cruise" and as indicated at 8, they did not and could not have had such notice, S, Admitted. 6, Admiued, 7, Admitted, I, Denied for the reason that the paragraph in question is buried on pap 12 of the ticket as contained in Exhibit B of the Plaintiffs Motion and It the ~ trlnJa'ipt contained at Exhibit C, Faaber indicated complete surprise at the uistence of such I pnwiaiM NT- Jo-1I, 34 9 Dtnied for the rebOft that tllm is I flCt\lll ambipity about whether the PWntitrs had , - '.... " "' , " , '~ ~, , .? .~ ;'; 1 . ., ~.:; - : .;> ., -. siates, "[ilt is agreed by and between the passenger and carrier Ihat all dispules and mailers whatsoever arising under, in conneclion with or incident 10 this contract sh~1I be litigated, if at all, in and before a court located in Miami, Florida...... See Ticket Conlracl' 6. It cannot be disputed that the alleged injuries, for which Plainliffs complain. arise, are connected with or are incident to Plaintiffs' voyage on Ihe "Splendour of the Seas" for which the contractualtenns conlained in Plaintiffs' ticket control. In fact, Ihis point is impliedly conceded by Plaintiffs as their complainl is based on the breach of that very contract which contains the forum selection clause. See Plaintiffs' Complaint, Counts I and IV. In addilion, il is well-established that federal maritime law governs Ihe validity and effect of the pro\;sions of passenger cruise tickets even if the suit arises from an accident that took place on shore. See.. e g , Colhy v ~egian Crui~e I ine~, In" . 921 F. Supp, 86 (0, Conn. 1996); Bctg \'. Royal Carihhean f'rnis~ I TO, 1992 \\'1609803 (0, NJ, 1992) (attached as Exhibit" A"), In Cclhy, the plaintiff was traveling in Ihe Caribbean as a passenger aboard a cruise chip when she went ashore in Jamaica to go horseback riding resulting in injury when she was thrown from the horse. Cclhy, 921 F. Supp. at 87. The court rejected the plaintiff's argument that Connecticut law should determine the validity of the forum selection clause in the passenger ticket and explained thai federal maritime law applies even iflhe suit arises from an accident that took place on shore. Ill. at 88 (holding that forum selection clause n:quiring aU suits to be broqht in Florllh was vahd and enforceable). In Ber&. the plaintiffwas injured while on land durin. . pori of caU, The court after examining the terms of the contract as written on the RCCL ticket (the same ticket contract as before this Coun). found that the ticket's terms -3- ~ ::T [ > Not Reported in F,Supp, 1994 A,M,C, 806 (Cile as: 1992 WL 609803 (D. N.J.)) Page I Michael A. BERG, et aI., P1aintifT, .. ROYAL CARIBBEAN CRLlSES, LTD., et aI., Defendants. OPllI,nos lAura Berg's cruise passenger ticket cootract slales prominently on the cover page: nus IS YOUR TICKET CONTRACT, IT IS IMPORTANT THAT YOU READ ALL TERMS OF THIS CONTRACT. THIS TICKET IS NOT TRA.'':SFERABLE AND IS NOT SUBJECT TO ALTERATION BY THE PASSENGER, (Be.. Cruise Ticket Cover Page. anDexed as Exhibit A to the Affidavit of Weody Zepemick daled November 23. 1991), Paragraph 2(vii) of Ibe ticket contract sets forth a cootractual Iimilatioo of ..tiDOS period, That paragraph SlaDds out prominently from olber provisiDOS of Ibe CODtnct in that it is priDted in upper case leuen of a large l)'pe size, and is set forth in wbite print against a darlt colored backgrouDd, unlike the other terms of the cootract, The secood sentence of that paragraph Slales. io relevanl part: SO SUIT SHALL BE MAI:o.,AlSABLE AGAI!\ST THE CARRIER OR VESSEL FOR .., PERSONAL lNIL'RY .., OF THE PASSE."GER UNLESS WRITTES SOTICE OF THE CLAlM, \\lTH FULL PARTICULARS. SHALL BE DEUVERED TO THE CARRIER OR ITS AGE." AT ITS OFFICE AT THE PORT OF SAlUSG OR AT THE PORT OF TER.\IISATIOS \\lTHIS SLX (6) MOSTHS FROM THE DA Y \\'lIES Sl.'CH PERSOSAL ISJURY OF THE PASSE....GER OCCURRED; ""''D IS NO EVE.', SHALL """'Y SUCH SUIT FOR """'Y CAUSE AGAINST THE CARRIER OR VESSEL FOR .., PERSONAL INfu'RY ... BE MAINTAINABLE UNLESS SUCH SUIT SHALL BE COMMENCED \\100."1 ONE (I) YEAR FROM THE DAV \\'HE.... THE.., PERSOSAL ISJURY OF THE PASSE....GER OCCL'RIlEO. NOT'l\TrnST"""OISG ...."'V PROVISION OF LAW OF A.''Y STAn OR COUIIo'TRV TO lHE COlli'TRAR V, (Cruise Tocket. _xed as El!Ubit B 10 dtt AffIdavit of v.'eody Zepemick dated November 23, 1991). Ci.. A. No. 91-4957. Uoited Slat.. District Court, D, Sew lersey, Feb, :0, 199:, Dlvid p, Pope. Ribis. Graham &. Curtin Morristowo, Nl. for plaintiffs, Geo..el. Koelzer. 101m p, FJaoagan, Obet, Kaler. Grimes &. Schriver, Edisoo, for defeodaotJ. WOUS. District Judge, 01 This is I diversit)' I:tioo based DO penooal injuries sustained b" plaintiff lAura Berg duriog the course of a cruise vacatioo booked with defeDdaot Royal Caribbean Cruises, Ltd, (.Royal Caribbea:l'), Befon: the Court is the motion of Royal Caribbean for sumawy judgmellt 00 all :OUlltJ of the complaint on tbe grounds that the CODtractual limilalion of actiOlls period bid fUll before suit wu commeoced. and that u a mailer of law Royal Caribbean is DOt estopped from ....rting the limitatioll of acliODS prD\isioD, For the IUJODJ that follow. the Court will grant Royal Caribbean'. moIioo, BACKGROI.::o.'O On October 12, 1990, whil. 00 a bOlll!YIllOOll crui... lAura Berg was injurtd OD the Island of lAt.dee. a scbeduled port of call for the MI \' Song of America. I v....1 ....1Ied and operated by Royal Caribbean, lAura aad Michael ... have alleged 011 illformatioo and belief that dllt private beadl facility ..here dllt injury oceumod ..u OWMd, Ieued. ..po. 'M or otberwi. lIIIder the CCCltrol of floyal Caribbee_ MkbaeI", bas aile'" a claim per qIIOcI CGlIIDCti... IlIlisit, The lIerp. tbroIlJh retaiDed e-..l. aotif\ed floral Caribbean of theit iI\iuria IIId ...... a demud for po~ of '150.00000 ia Cop< · 'I.'... 1997 So Claim to on., U,$ Go\t \\'01\. \\ 1....1 U\\ I Not Reported in F,Supp, (Cite as: 1992 WL 609803, 01 tD.N.J.)) I letter dated September 6, 1991. In the IISI pltlgrapb of thlt letter, the Bergs' counsel silled thallbe offer would remain .open unlil October 8, 1991, II w'bich time I Complaint will be filed.. (Exhibil A to the Ber, Brief in Opposition), 02 In response to the September 6, 1991 letter, Henry C. Henl.Jc:hel, I claims adjuster for Royal Caribbean. wrote I Ielter dated September 25. 1991 in which be ..,knowledged thlt LAura Berg's injury 'WIS an unfortuolte incident albeil I very minor oDe., and Silted thai .We bope we can Igree it is nOlllw suit material., (Exhibit B to the Berg Brief in Opposition), Further, Henl.Jc:bel wrote that Royal Caribbean .would be willing 10 settle with Micbaeland LAura Berg for SISOO plus any out-of-pockel upenses.. (ld,), Significantly, in I clear reference 10 the one year limilltion period. Henucbel wrole in the last ....tence of the letter: . W e look fo"...rd 10 bearing from you before Oc,~ber 12. 1991.. (ld,), The Ber,s' counsel wrote a secoocl letter 10 Royal Caribbean dated October 10, 1991. in wbicb the settlemenl demand .. IS reduced 10 S75,ooo, Illtxplieably, the leu" further states that the .offer remains open UDtil October 28. 1991,1\ ",hicb time I compllint "'ill be filed,' (Exhibit C to the Be.. Brief III Opposition), Applrallly, after the one ~ eu limilltioos period bad NO, on Octcber 21, 1991. Henucbel informed the Bergs' counal in I telephone CODvenatiCD that the Bergs' claims were time4lund wsder tIse titbt c:ontnct. In I letter dated October 22. 1991. HtlIbcbcI memoriaJiad tIse telephone c:onvenatioa and further utonded I settlemenl offer of $3000, I sum thai Henl.Jc:hcl estimated "'",,Id be upended by Royal Caribbean '0 lIISWer any complainl filed by the Bergs and 10 iii. I motioa for IlIIIlIlSIly judglllOtlt buod CD the tOIllnCtIIII time bar, (Elhibit D 10 tIse Bera Brier Us Opposition), OIl OclDber 21, 1991. _ diu _ ,_ Il\.or LAlan Berg ......i-t uvury CD I ......, tIse Beras IIItd Illit ill __ cotIl1 al1qiq tluee COUIStI or ....lia-co' 1\0 cDlllplalal_ .~ 011 Octaller 21, 199111I add ~1I 0( Pllie 2 breacb of the implied covenant of good faith and fair dealing, and estoppel. Both of these counts Ire based 00 the correspondence berween H.nucbel and the Bergs' counsel. Count Four aI'eges that Royal Caribbean .Iull[ed) plaintiffs into believin, thai meaningful settlemenl negoliltions were taking place, only 10 use these negotiations 10 allow the contracruaJ slltute [sic) of limitations 10 Ilpse,. (Amended Complainl Fourth Counl , 7), Counl Five alle,es thll Royal Caribbean .misrepresented iu intentioos in conlinuin, seltlement negotiations. and thlt .plaintiffs bave righlfully relied upon said misrepresenlltions 10 their delriment.. (Id. at Fifth Count " 2- 3), Royal Caribbean removed this action from sllte Courl on November 13, 1991. It then filed iu answer and now moves for summary judgDleftI on all Ii\e counts of the compllint, [FSI) DISCUSS/OS Summary judgment sball be granted if .the pleadings, depositioos, lDIWen to interrogatories. and admissioos on file, together w'ith the Iffidaviu. if an)', sbow that there is no genuine iuue as to any malerial r..,t and thai the 1DO\'ing pony is entilled 10 I judgmenl IS I matter or Ilw,. Fed,R.Civ,P, 56(c); .... Hench v, Allen Products Co" 719 F,2d 230, 232 (3d Cir,I986), In making this detetminatioo. . court lllllSl dn,... all reunaal>le iDCeretsceo Us (avor or the _- ~anL Meyer v, Riegel Proda, COlp,. 720 F,2d 303. 307 Q, 2 (3d Cir,I983). c:ert, dismiued, 465 V.5, 1091, 104 $,0, 210U (\9841. A, Counta OtIe through Three OJ Umiwiou provbiou ia ....... licbt CODll'IlctJ are ealorceabIe. .. .... u tIse7 !law .... IWI"'lI"\lI)' - Ti,.....T~ 10 IM...-aw. Want.. MII'JIIII Two. r.e" III F,U 242 (3d Qr,I9IT). PIaiJltilfl . DOl di.... dill tIse limilatiou pl'OV1aiots _ .~"'WJ (Q UI 1/--1- to ... ill dae ticbt L<ll4U..t, 9<1ledIer tersssI of . ~ C.." · Wilt 19n ~ Claim... ong, U.S. Go\I, "'on.. \\ I S 11.\\\' a Not Reported in F.Supp, (Cite as: 1992 WL 609803, 03 (D.N.J,)) contract bave been reasonably communicated is a question of law to be determined by Ibe Court, Hodes v, S,N,C, Acbille uuro, 8S8 F.2d 90S, 908 (3d Cir,1988), The Court finds that tbe limitation of actions provision was adequately displayed in the contract sucb that it was reasonably communicated 10 tbe Bergs, Unlike most of the conlract. thaI provision was set OUI in upper case leuers and was prinled in wbite on a dark background. Additionally, the I)'pe size used is larger than is used for other terms of the contract. lAst, on the very first page of the contract, the pa.sseoaer is told. in similarly larae upper case print set out on a darIt background, that it is important to read all terms of the contract. A similar provision was found reasonably communicative by the late Judae Mitcbell H, Cohen of this District in Williams v, Royal Caribbean Cruise Lines. Inc,. 1991 A,M,C. ~37 (D,S,J, 1990), This Court finds that Williams is persuasive authoril)'. Hence. the limitations pro\'ision is enforceable against the Bergs to tbe eXleDt that it is applicable, The only issue raised by this motion is wbether the limitalioos provision in uura Berg's ticket contract is broad CllOUp to encompass claims arising from a pa.sseoger's activities on land at a scboduled port of call. Royal Caribbean useru that the COIltractuaJ provision ban any claim apinst Royal Caribbean that &rOM durica the cruise and that was DOl filed within one year of the 0CCIImlDCC. &era userts that she is _a Royal Caribbeatl in ill c:&J*'it)' as an owner or operator of land. and DOl .u I ship _ or operator, . (Bera Brief iB Opposition at 7), Therefore. she cootendJ that the COlltraetual provision simply does DOl apply to this action, III Hodes. the Third Cimoit beld that A pa.sseop ticket for an _ ''O)'IP is . maritime contnd. Aerordiqly. .'hedlcr ticket ecaditiou form JlUl of tlIa pa.sseop'l eoetnll:t and tlIa .ffIe' Illell eonditiou sbollIcI be a/fcmW ale lIIIIIen IO"'lmecl by the pun! mariti_. 110I the IoeaJ ....., ....., Hodes. an F,:of II t09 {cilalioD1 ami.....}, Paae 3 Thus, the breadth of Ipplication of the limitations provision of uura Berg's ticket contract is I question of federal maritime IIW, [FN2) The parties both concede thaI there is no extant ease law authoril)' in wbicb a plaintiff wu inju~, Ita scbeduled port of c:al1 durina the course of . cruise. on land owned by the carrier, and prcc:luded from suil by I time limitation contained in I pusenser licket contract. Nevertheless, that plainliff wu injured on land instead of on board the cruise vessel is not I critic:al dislinclion per Ie, What ia critic:al is whether the contract, by ill terms. properly reacb.. actions arisina on land owned by Royal Caribbean, After dosely euminiaS the IanJUAle of the ticket contract, the Court cooeludes thai, u a matter of IIW, plaintiffs' daims an: time-bamd. [FN3) 04 'Passenser. is defined in the contract u indudinS .IU penons t","ellinS under this ticket and his and their heirs and representatives,. (Cruise Ticket. pap I, Exb, 8, Zeperoick Aff,) (emphasis added), It is significant that "puleD,er', u that term is used in the contract, is defined u I penoa "Iravellin, under' the cootract, When plaintiff wu injured, sbe bad not yet reached bet final destination, She bad merely stopped over brieny 11 a pan of call scheduled 00 the cruise itinerary. and disembarked for an activil)' "",beduled by the Royal Caribbeatl ltalf.. (Affidnit of Laura 1lerJ, . 2), It wu dear that Royal Caribbean's eootnctuaJ obliptioos to uura Bera bad DOl ended. and that she would returIllO the _I to .....ip.... bet travels. She...u therefore clearly .travclliaJ under. the ticket COIItraet at the time of ber injury, Thus. under the pIaill lanpaae of the ticket cootract. at the time of bet injuries, uura BetJ ...'u I "pa.sseop. within lbe mouiaa of lbe coattllCl. if DOl within the mouiaa of the a-nI mAritia. law, [fN~) fIutber. "Carrier. is deftaed, ill ralnut part. u .Royal CaribbuD eNi.... ltd,. (14,). This clallDitloll it pWa IIl4 __.-. It .. DOt. u plUtilfs IUJIIII. limit .. R' -Ifta of .carrier' 10 Royal eanw-. o.,.r. · 'to'11I1991 No Clai.... on" U,S, Gooi, Wocb \ \ i .'> i i \\ \ . Not R.ported in F,Supp, (Cit. as: 1992 WL 609803, .4 (D. N.J.)) Icting in its caplcily .. carri.r. IS thatt.rm is und.nlood und.r g.n.raI maritime Ilw. To impose such I constNclion on the tick'l contract would burd.n thll contract with an artificial Iimil.ltion It varianc. with its plain import. Thus, IS witb .p....ng.r.. see supra nol. 4. th. t.rm .carri.r. is d.fined more broadly und.r th. contracl liwl it is by the g.n.raI maritime Ilw. Read tog.th.r wilb th. d.finilions, the Ictions limil.ltion provision in the tick'l contract unambiguously cov.n Laura Berg's causes of action arising from b.r injuries sustained on Labadee, Under that provision, any claim Igainst Royal Caribbean in any capacily for personal injury sustained by Laura Berg wbil. .trav.lling under the lick.l. must blv. been commenced within on. year from the date of that injury, Th. Bergs did oot comply with this contractual requirement. Th.refor.. Iheir claims are lime-barred, 8, Counts Four and Five Ro)'a1 Caribbean has also moved for summary judgment on counts four IIld five of the Bergs' COmplainl, ~ counts, wbicb arise 0'111 of communications between Royal Caribbean IIld the Bergs' counsel. all.,. thaI Ih. conlractual limitations period should oot be enfon:ed due 10 the bad faith conduct of Royal Caribbean in leading the Be..s' counsel to delay in filing suit. A1thouch the Jler&s set forth I claim soundin, in contract IS well IS under the theory of estoppel, the Court will coosider them lO,ethu, liDee the claims are indislin"usbabl. in subsl.lllce, Under the cin:umstances clearly p......ted in the correspondence submined 10 lhe Court, th_ counts boldtr on the frivolous, As these claims arioe out of the ticket <<>nlract, they are ",Vented by federal maritime. DOC Sllle. law, Hodes, 55. F,:d at 909, TIlis is IlOl I DOvel i..... of Ilw, T\t.oo other jud,. in tllis c1i1lrict have l"'I"iousIy "ieeloed similar c1ai... See Mi<helocti v, H_ wes CM", lac" 1986 A,M,C, 410. 41$ (DN,U9S5) (Dehe\'Oiw. J), Ilrd. 716 F,2d 1147 (3d Cir,19I6) (lattl<<); William&. Page 4 1991 A,M.e, 11247 (Coh.n, J,), .5 Plaintiffs ....rt thaI Royal Caribbean .intentionally protracted the selllem.nt nelloUltioDJ IS an Inempt to use the on.-year sllNte of Iimilltiona [sic) IS I sbi.ld 10 the Bergs' c1lim,. (Berg 8rief in Opposition It 16), For any Iffirmativ. misconduct to creat. an eslOppel. plaintiffs musl blv. relied on thll conducl to th.ir detriment, 8urke v, GltewlY Clipper. Ioc.. 441 F.2d 946, 948 (3d Cir,1911) (conduct must blv. .caused I plaintiff to dellY filin,l suit until aft.r running of the sl.llulOry period.), [FNS) Furth.r. IS an equitabl. doctrin., estoppel .is I question of IIW 10 be del.rmined by the court,. Id, Nothing in any of the correspondence contains any represenl.ltion or promise that can in any ,"'I) be cblraclerized IS misleading, nor has any evid.nc. heeo presented lbat Ro)'a1 Caribbean .npged in conduct thaI could be constNed IS misleading, Indeed. in its September:!S, 1991 lell.r to the Bergs' counsel. Hentscb.1 \'irtua/ly brouchl the provision directly to the Il1enIion of the Bergs' counsel wben h. mad. expms reference 10 the limilllions period in silting that Royal Caribbean hoped 10 bear from counsel before October I~. 1991. the IISI dal 10 fil. suil under the COlllract, "''bolly absenl b.... is any Iffirmativ. conduct intended to deceive plaintiffs inlO d.laying lb. filing of their complaint, Thus, unlik. in Keef. v, Rah..... eMse Line. IDe" 861 F,:d 1318 (11th Cit.I989), where the carrier's claims ,....._lItiv. bad falsely represenled 10 plaintiffl 1\1onley that I full reI_ had aIrady been obtained from plaintiff. id, at 1324, there is DO basis in thil record for finding that the Be..s' counsel bad been led 10 d.lay the filin. of their complaint, Royal WIS WIder no obligation 10 txpreuly inform the aer,.' counsel before October 12. 1991 sbat it inteDded 10 in\'ok. the limillliou provUioa, Fwther, plaintift'I' clailll sbat Royal Caribbeu'l fail..... 10 iavole tlle lix moeda DOtiee of claim provisioa llCllIltlIow eoutillllecl affirmative bad faim ronftet il widaolat merit. AAy waiver by Royal Carillllca of ita rights lIIIdet tile ~ c"'" · \\'est 1091 No Claim to Ori" U,S, Go\'I \\'01'\1 \ \ I :-.1I_ \\ \ t Not R.ported in F.Supp, (Cite as: 1992 ....1.. 609803, .5 (D.N,J.)) Pa&e 5 provision did nol constitut. I waiv.r of its rights und.r the actions Ii.rotation provision. or constitut. I misrepresentalion u to its int.nt 10 waive thl! provision, Absent III .xpress represenlation to thlt effect, there is no wis for finding bad faith. Plaintiffs' furth.r claim thlt they relied on illY conduct by Royal Caribbeaa in d.llying the filing of suit is belied by th.ir cnncession thaI .in the inslalltaction [th.y] rightfully relied upon the [two year New J....y] .latu~ of limilalioos due to the fact thlt the injury occurred co Illld,. (Berg Brief in Opposition It 15-16) (empwis added), Thus. plaintiffs have not raised illY issue of fact u to the bad faith of Royal Caribbeaa. briefl. FN2. ThI1 i. nOl to ..y dill die incident lhal occurred on land i. I maritime tort gov.rned by maritime law, It is Iik.ly dill die law governing plointifl"s cWma is lhal of .idler New leney or Haiti. To dI. ....nt dill illY c~mmon Ilw tort ripu and duties hav. been aI1ered by contrlct, however. the)' are &ovemed by maritime I..... FN3. As I claim dependent on die ,sIidi!)' of Llura Berg's claim. MIchael Berfs per quod claim is ..... b&rn:d by die ticket contrlCl, Lieb v, Royal Caribbean C"'Ue Line, loe,. 64S F.Supp, 232. 23S (S,D.N.Y.1916), CONCLUSlOS FN4. Under general maritime IIW, dI. lemI .puaenpr. hu ICquired meaning for purposa of de6ning die ri&h1S of marine lravelen vlH'vis !heir cvrier. Thu.. il hu been IIid dill .dI. reIatioashlp of ~ and carrier ,.. exi... from shnn to sIup and sIup to shore." Chet'\'), v, PeninJular and 0rimIIJ Slam Navigltion Co,. :43 F,Supp, (S.D,CaI,1 %4): ... also LAwlor v, loe.... Nu..u Steamship Line. I..". 1951 A,M.C, 1701. 170$ {D.M...,19S1), SoIM IUlhorities hlv. conoInIOd the pasoencer<arrier relllionship .'en more hroadIy. sutia& ~ it don _ end unlll "Ill. vOSRl hu .-hecI .... ron of dI. passenger's _n._ and the pusen&er hu left dI. vOSRl and the shipowner's dock or prema...,. I Nums. Mania I.. The LAw of Maritime Personal Injurie. t 3,2 11 61 (4th ed,t990) <...... added); ... Shulman v, Coqoopie GenenIo TI'IDUIIantiquc, 152 F ,s..pp. 133. 136 (S,D.N,Y,I9S7) (IiAhihIy linIItion ......uc . 'to lit. period while Ihe .......,... an4I or Ilis be""", ,.. .... .... boatdlhe vtuel ... aodIor .. ...... '- of the curier. ... coven ,.. the mati, Lip betw.a fpIaintitlI and die ldofeMutl 10 puI01l&"f and .......,. (empIwiI added\), n-. under du. Iino of 1Illh<onty. it i. J'<'Alble ~ Ihe IIerp -&ht ...u be co. . led .puaencan. u I _ of low. ...... lhey allege ~ lhey ...,...., .f r ~ ~'. veneI )'fl erver kft .. 41ft ..I MO, r '- before l..aun Bera .... injuTed. ........ Ihe COOll1 c_..... ... die _lllaI ............ is ...... _.... .-u - ....,....., 10f .... ~"""1 -~."It.... ""'... ........... SIltt.Imu...... wen ...,Ull.....'. UI_of_low, Thi. case does Dot involve the inaction of a plaintiff Dot knowledgeabl. about limitatioos periods Illd the IIW, It invohes III IUOrney rel&ined by plainliffs to protect th.ir intereJts, \\ 'bal Judge Debevoise said ill ~lich.lotti i. very appropria.. in this case: ., Th.re wu no reason for plaintiff's attontey to rely on [defendant's] letter u a basis for not filing sui. v. ithin the time limits set forth in the COCtrlC\. III his responsibility to his c1iect, plaintiff's altome>, should hlv. filed suit 10 protect her claim. and continued to pursu. settlement v.hil. suil wu pending, P1ai:ltiff's Ittorney CIllQOl now correct his error by means of I dubious theory of equitable estoppel, Michelotti, 1986 A.M,C, I! 485, AcconliDlly, SUIIIIftIt)' judamenl ....ill be annted dillllissinl COIIDts four and five of p1aintiff,' complaint. For the nt&SOlII let forth above. Royal Caribbeaa's motion for summary judg_t ..ill be Il'IIIted. and COUI". 0"., Two. Three. Four and Five ..'ill be dismissed _jth prejudice. FNI, The Court -. ~ tho llriet. Nt 'n.. J lty Royal C......... .. "'" ......,ty '"'" Local 1ltsIo 211 ill .. duty, ' '-' .. III>Ie of _ CIt ..... 01 .r.a.df..... AI60tip *'id ,n,r --I ..,....n..Mll .....~......ia. ,.... .... . _ .... ... C.-. pnten flat It be ".."1...... to ~.... C,*,'. _ of_ FN" ,""" &II hrb ill..... . ~. .. Copr ' lao'", 1997 No au to on,. U,S, GoV\, WCllts \ \ I :> 1 L \\ \ . I. IMPROPER VENUE Royal Cruises hereby objects to PlaintilTs' complaint pursuant to Pa.R.Civ.P. 1028(a)( I) because PlaintilTs' selection of venue is improper and in support thereof avers as follows: I. This is an alleged breach of contract, false imprisonment and negligence claim. A true and correet copy of Plain tilTs' complaint is attached hereto as Exhibit "A". 2. The gravamen of Plaintiffs' complaint is that Royal Cruises breached its eontract with PlaintilTs when it evacuated PlaintilTDr. Paula McKain Toomey from the cruise ship after she infonned the on-board physician that she had sulTered a spontaneous miscarriage and was bleeding vaginally. 3. Plaintiff Dr. Rebecea Forbcar-Chrencik's claims are based on her decision to accompany Dr. Toomey during her medical emergency evacuation. 4. Defendant Royal Cruises is a Florida Corporation with its principal place of business located at 1050 Caribbean Way, Miami, Florida 33132. 5. Plaintiffs and Royal Cruises entered into a binding contract pertaining to Plaintiffs' cruise on the "Splendor ofthe Seas" on or about February 22. 1997. A true and complete copy of the contract is attached hereto as Exhibit "B". 6. Plaintiffs admit and aver the existence and binding nature of the contract. See PlaintilTs' Amended Complaint" 5, 22-25, 23-26 and Exhibit A to PlaintilTs Complaint. 7. Under the terms ofthe contract. Plaintiffs and Royal Cruises agreed that all disputes arising under the contract or incident to the contract shall he litigated in MiamL Florida. The sp<<ilic relevant Ianpage printed in bold face t)l'e and set apart from other contractual clauses is as follows: 2 ~ =r 6' ::;: )> REBECCA FAERBER-CHRENCIK & PAULA MCKAIN TOOMEY IN TIlE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNS\1.. VANIA PLAIJI,IIFFS \', NO. 1997-4288 JURY llUAL DEMA1...'DED ROYAL CARRJBEAN CRUISES L m DEFENDAJIIT NOTICE YOU HAVE BEEN SUED IN COURT. lfyou wish to defend against the claims set forth in the following pages, you mUSl take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writiDi with the Court your defenses or oliectioos to the claims set forth against you. You are warned that iryou fail to do so the case ma,y proceed without you and a judgment ma,y be entered against you by the Court without further notice for any money claimed in the C~Ail\t or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THlS PAPER TO YOUR LAW'I'ER AT ONCE. IFVOU DO NOT HAVE A LA\\'YER OR CA.'"NOT AFFORD 0l'\"E. GO TO OR TELEPHO!l."E THE OFFICE SET FORTH BELOW TO m"D OUT WHERE YOU CA.'" GET LEGAL HELP. COURT ADMl!\1STRATOR OF CUMBERLA.'''D COUNTY THIRD FLOOR. CUMBER.I.M"D COUNTY COtJRTHOUSE 1 Courthouse Square Carlisle, PA 17013 71 Hi9i-0371 NOTICIA Le ban ~ldIodo a USled en la corte. Si USled quiere defenderse dO! _ demandas expuestu en \as pacinas .eutes, usted tiene \;ente (20) dial de pluo al partir de Ia fecba de Ia demanda y Ia [p. .11._ ~ A UIled debe preentar una apariencia esaita 0 en persona 0 par abopdo., archivar en Ia corte en forma ncrita _ def_ 0 IUS objeciones a \as demandas en contra de IU persona. Sea avisado que ai uated DO Ie defiende, 1a torte tomara medidas y pued" entrar una orden contra usted Bin previo aviso 0 noti1k8cion y par cualquier qUO!ja 0 alMo que es pedido en Ia peticion de demanda. U ated puede perder dinero 0 IUS propiedades 0 otroI .xl lcllca importantes palll USled. IJ.EVE ESTA DEMAND A A t"N ABOGADO n."MEDIATA..\lE.VI'E. SI NO TIE...."E ABOGAOO 0 SI NO'l'lm."E EL Dn."ERO st'FICIE..',-r: DE PAGAR TAL SERVlClO, VAYA L'" PERSONA 0 LLA..'fE POR TELEFONO A LA OnCIXA ct:"'YA DIRECC10N BE ENCUE$TRA ABAJO PARA AVERIGUAR DONDE BE PUEDE CONSEG1.;m ASISTE1',CIA LEGAL. COURT ADMn.1STRATOR OF CUMBERLAND comn THIRD FLOOR. CUMBERLA.'''D COUNTY COURTHOUSE 1 Cow1houIe Square Carlisle. PA 17013 71Nl9HI371 REBECCA FAERBER-cHRENCIK & PAULA MCKAIN TOOMEY IN TIlE COURT OF COMMON PLEAS OF CUMBERLA."lD COLTJI,TY. PENNS'I1..VANlA PLAINTIFFS \'. NO. 1997-4288 JURY TRIAL DEMAJII'DED ROYAL CARRJBEAN CRUISES L m, DEFENDANT CIVIL ACTION-LAW AMENDED COMPLAINT 1. The Plaintiffs are adult individuals with: a. Rebecca Faeber-Chrencik with an address at 457 Country Club Drive, Camp Hill, FA 17011. b. Paula McKain Toomey is an ad~lt individual with an address of BBS ~illersville Read, Lancaster, PA 17603. 2. The Defendant is a Florida Corporation regularly doing business in Pennsylvania with a principal place of business 1050 Carribean Way, Miami, FL 33132. 3. Venue is proper because one of the Plaintiffs resides in Cumberland County. 4. Jurisdiction is proper under 42 fS S5322 because the Defendant solicited clients and transacted business for the purpose of pecuniary gain in Pennsylvania and also in CUmberland County. 5. The Plaintiffs are podiatrists, who contracted with the Defendant through the Bannockburn Travel Agency to take a cruise on the Splendour of the Seas on or about February 22, 1997 for the purpose of participation in a continuinq medical education course and cruise around the islands in Carribean surrounding St. Kaarten. 6. The Splendour of the Seas was owned by the Defendant and at all times relevant hereto, members of her crew. the ship's doctor. and captain, were agents. servants, or employees, under the direct control of the Defendant. 7. The Plaintiffs flew to Florida o~ E~nday, February 22, 1997 to board the Sple~dQur of the Eeas, and shared a luxury cabin together. 8. On Tuesday February 24, 1997, l>!s. McKain-Toomey discovered some minor, vaginal spotting and telephoned her husband, a physician, who, after listening to his wife's symptoms, determined that she had had a miscarriage. 9. Her husband indicated that there was no medical emergency and that she should relax, enjoy herself and continue her vacation. 10. As a precaution, he indicated that s~e should inform the ship's doctor of what had occ~red. 11. When the Plaintiffs went to the ship's doctor, he declared immediately a medical emergency, without bothering to examine Ms. McKain-Toomey beyond taking her pulse and blood pressure, which were normal. 12. The Plaintiffs were informed that a blood transfusion was possibly needed and despite the fact there was minimal bleeding, they would be removed from the Splendour of the Seas. 13. Despite verbal protests from the Plaintiffs that this was unnecessary, both women were forcibly evicted from their cabin. 14. The women were informed they would be transferred to a boat offshore containing medical personnel and taken to Curacao to treat Ms. McKain-Toomey's non-existent medical emergency. In fact. nigt:.ttitt'.e. they which were transferred to a tugboat at had no medical facllities, no medical 15. persc~nel. and whose crew spoke no English. IE. The twe wemen were ~romlsed that a ship's agent would attend them throughout their stay on CUracao. but nothing of the sort occurred. 17. Despite the promise of medical treatment, no medical treatment was ever given to Ms. McKain-Toomey, although the hopsital on Curacao took a "deposit" of $2000. 18. After being medically discharged, ~s. McKain-Toomey and the Plaintiff boarded a plane to St Maarten's, where a "luxury hotel room" awaited them until the Splendour of the Seas docked on Thursday, February 26, 1997. 19. The "luxury hotel room" was infested by vermin, dirty, and small. 20. When the two women were permitted to reboard the Splendour of the Seas on February 26, 1997, they were locked out of her cabin, had no place to stay, and the Plaintiff missed the educational lectures, which was the original purpose of the trip. 21. As a result of the acts of the Defendants and its agents, servants, or employees, the Plaintiff suffered pecuniary damage, harassment, humiliation, and unlawful restraint. COUNT I--BREACH OF CONTRACT(FAEBER-CHRENCIK) 22. All preceding paragraphs are incorporated as if incorporated herein. 23. The Plaintiff, Faeber-Chrencik, and the Defendant entered into a contract for services, a partial copy is attached as Exhibit A to the original complaint. 24. The acts described herein by the Defendant constitute a breach of that contract. 25. As a result of that breach of ccntract the Plaintiff suffered injury: a. A complete less of value of the trip. b. Additicnal costs and expenses o,-ce she was forcibly removed fro~ the Splendour of the Seas. c. Conse~Jentlal damages to her medical practice. WHEREFORE. the Flaintiff de~~nds judqment in an amount not to ->r'l"'-'..... .... --.~, exceed $35,000. COUNT II--FALSE IMPRISONMENT (FAEBER-CHRENCIK) 27. All preceding paragraphs are i::lcorporated as if incorporated herein. 28. The Defendant, its agents, serva..:s, and employees, intentionally, forcibly, and unlaw:~lly restrained the Plaintiff, Faeber-Chrencik, against her will, when they were without reason to do so. 29. As a result of that breach of contract the Plaintiffs suffered injury: a. A complete loss of value of tte trip. b. Additional costs and expenses c..ce she was forcibly removed from the Splendour 0: :~e Seas. c. Consequential damages to her medical practice. d. Embarrassment. e. Humiliation. WHEREFORE, the Plaintiff demands j~dgment in an amount not to exceed $35,000. COUNT III--NEGLIGENCE (FAEBER-CHRENCIK) 30. All preceding paragraphs are i::lcorporated as if incorporated herein. 31. The Defendant is in the busi..ess of providing entertainment to its passengers i!:1d owes a duty of reasonable to its passengers fer their protection and safety. 32. The Defendant breached that duty i:1 the acts described herein. 33. As a result of that breach of contract the Plaintiff, raeber Chrencik, suffered injury: a. A complete loss of value of the trip. b. Additional costs and expenses o..ce she was forcibly removed from the Splendour of the Seas. c. Conse~Jential damages to her medical practice. d. Embarrassment. e, Humiliation. WHEREFORE, the Plaintiff demands judgment in an amount not to exceed $35,000. COUNT IV--BREACH OF CONTRACT (MCKAIN-TOOHEY) 23. All preceding paragraphs are incorporated as if incorporated herein. 24. The Plaintiff, McKain-Toomey, and the Defendant entered into a contract for entertainment services, a partial copy is attached hereto as Exhibit A. 25. The acts described herein by the Defendant constitute a breach of that contract. 26. As a result of that breach of contract the Plaintiff, McKain Toomey, suffered injury: f. A complete loss of value of the trip. g. Additional costs and expenses once she was forcibly removed from the Splendour of the Seas. h. Consequential damages to her medical practice. WHEREFORE, the Plaintiff d~~nds jUdgment in an amount not to exceed $35,000. COUNT V--FALSE IMPRISONMENT (MCXAIN-TOCIG:Y) 27. All preceding paragraphs are incorporated as if incorporated herein. 28. The Defendant, its agents, servants, and employees, intentionally, forcibly, and unlawfully restrained the Plaintiff, McKain-Toomey, Iqainst her will, when they were withcut reason to do so. 29. As a result of that breach of contract the Plaintiff, McKain Toomey, suffered injury: I. A complete less of value of the trip. removed fro~ the Splendour of the Seas. c. Consequential damages to her medical practice. d. Embarrassment. e. Humiliation. WHEREFORE, the Plaintiff demands judgment in an amount not to exceed $35,000. COUNT VI--NEGLlGENCE (HCI<AIN-TQCJ€y) 30. All preceding paragraphs are incorporated as if incorporated herein. 31. The Defendant is in the business of providing entertainment to its passengers and owes a duty of reasonable to its passengers for t~eir protection and safety. 32. The Defendant breached that duty in the acts described herein. 33. As a result of that breach of contract the Plaintiff, McKain-Toomey, suffered injury: a. A complete loss of value of the trip. b. Additional costs and expenses once she was forcibly removed from the Splendour of the Seas. c. Consequential damages to her medical practice. d. Embarrassment. e. Humiliation. WHEREFORE, the Plaintiff demands judgment in an amount not to exceed $35,000. RESPECTFULLY SUBMITTED, 711(, Shawn A. &ozarth Esquire Attorney At Law 120 South Street Harrisburg. FA 17101 '7l1-232-4227 ~ g CD '" ~ - - U U z: z: z: 0 ... ... - '" '" ...... ...... :I: :I: ...... "'< U U ...... -:II: -- ::)", '" '" " " "'0 ... ... NN UI.\. CD CD NN I z: '" '" .... I - ... ... ...... < < 1.\.1.\. I.\. 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IIfl!rJ1- " II' ~I il ,f .!~Ii~ IlldUJi.. !J1:J!f.:, . 'It. It ",.' I. ..-.l.-r. t. '. i , . . ~ g o Not Reported in F.Supp. 1995 A.M.C. 348 (Cite as: 1994 WL 405919 (N.D. III.)) John MORAITES. Plaintiff, v. ROYAL CARIBBEAN CRUISES, LTD., Defendant. No. 94 C 3762. United States District Court, N,D, llIinois, Eastern Division. July 29, 1994. ~1E.\IORA1'1DtJ}1 OPDIION A.'<D ORDER CASTILLO, District Judge. .1 This action arises out of a personal injury sustained by plaintiff, John Moraites, while he was a passenger on one of defendant Royai Caribbean Cruises Ltd.'s cruise ships. Defendant has moved to dismiss under Rule 12(b.6), claiming that venue is not proper in the N orthem District of llJjnois because the cruise ticket plaintiff purchased contains a forum.selection clause requir'ini that all disputes arising in connection with the cruise be litigated in a court in ~liami, Florida. Specifically. the ticket states: It is agreed by and between passenger and carrier that ail disputes and matters whatsoever arising under, in connection with or incident to thi5 contract shall be litigated, if at all, in and before a court located in ~liami, Florida, U,S.A., to the exchllion of the courts of any other state, territory or country. Paaaenger hereby waives any venue or other objection that he may have to any such action or proceeding being brought in any court located in ~liami. Florida. Defendant lU"\lUeS in the alternative that the court should tranafer this action to the United States District Court for the Southern District of Florida punuant to 28 US.C t !tOOa!. As a general rule. forwn.aelection clauses are "prima facie valid and should be enforced unIe.. enforunwnt is sho..n by the resUting party to be unreuoMbl.. under the ci.m1mtltano:es. " ~l S 8f9l11<tn v Zapata Olt SMre Co . 407 l" S I. 10119:'11 Even whel'\! the forum <lause .stabhws s ....""'1.. furum Page 1 for resolution of conflicta, the resisting pariy bears a "heavy burden of proof' of unfairness, Id, at 17. In a case strikingly similar to this case, the Supreme Court upheld the enforceability of a forum.selection clause in Carnival Cruise Line , Inc. v, Shute, 499 U.S. 585/1991l. Like Mr, ~Ioraites, the plaintiff in Shute purchased a ticket cont'lining a clause selecting Florida as the fonun, was il\iured on the cruise, and rued suit against the cruise line in her home state of Washington alleging negligence, The cruise line moved to dismiss for improper venue and the district court granted the motion. Following reversal by the court of appeals. the Supreme Court held that the court of appeals erred in refusing to apply the forum-selection clause, In doing so, the Court rejected the argument that a non-negotiated forum- selection clause is per se ur.enforceable, lei. at 593. Rather, the Court listed several jUSlifications for permitting the cruise line to insert a reasonable fonun clause in a form contract, includifli the cruise line's "speciai interest" in limiting the number of fora in which it potentiaily could be sued. the "salutary effect" of dispelling any confusion about where suits arising from the contract must be brought and defended, and increased benefits to passengers in the form of reduced fares reflecting the savings that the cruise line eflioys by limiting the fora in which it may be sued. Id. at 593.94. The Court also held that the forum selection clause did not violate the Limitation of V_I Owner's Liability Act, 46 U.s.C.App. , 183c which states: .2 It shall be unlawful for the" owner of any vessel tranaportinc pas&elllfers between ports of the United States or between any such port and a foreign port to insert in any rule. recutation, contract. or acreement any proYUion or limitation. 121 purportuljf in such ewnt to le_n, weaken, or avoid the nfht of any claimant to a trial by colUt or comprtent JUrittdlCtIon on the quotion or lIabillty for such ,"'" or l1'\IUl)'. or the -~ "f dllJl1AC'!s the",ror All such proVUi"M ur hnutatt\l/\II cu.ntallwd in any r"p" . \\'..", 19':t7 :'\0 rt&1m to) '}nll l" S Govt Works \\1 '11.\\\ . .' . Not Reported in F.Supp. (Cite as: 1994 WL 405919, 02 <N.D.m.)) such rule, regulation, contract, or agreement are hereby declared to be against public policy and shall be null and void and of no effect. As the Court explained, "the clause states specifically that actions arising out of the passage contract shall be brought 'if at all,' in a court 'located in the State of Florida,' which, plainly, is a 'court of competent jurisdiction' within the meaning of the statute." Id. at 596, Plaintiff makes no effort to distinguish Shute. Rather, plaintiff claims that Shute no longer accurately rellects the law. Without citing any authority, he argues that the November 4, 1992 amendment of 46 U.S.C,App. 1 183c by Pub,L. 102.587 changed the law so that 11830 now forbids the use of a forum.selection clause which limits an injured passenger's selection of judicial forum in any way. The November 1992 amendment substituted the words "any court" for the word "court." l: nder plaintiffs interpretation, the amendment prohibits the use of a forum.selection clause at all. Plaintiffs interpretation is completely unsupported by the legislative history or the case law. On the contrary, recent decisions in this jurisdiction post-dating the :O<ovember 1992 amendment indicate that Shute is alive and well. See, e,g" Hugel v. Corporation of Lloyd's, 999 F.2d 206, 210 17th Cir.I9931 Iciting Shute in the conten of a discu88ion stating that forum stipulatIOn clauses are pnma facie valid and routinely enf'orced absent a finding of unreasonableness); crr Group.Credit Finance, Inc. v. Lott, No. 93 C 548, 1993 \IlL 157617 (N.Oill. ~lay 13, 1993) (same), :\[omlver, plaintiffs interpretation is refuted by the subsequent history of the statute itself. On December 20, 1993 Congress amended the statute lIiain. see Pub.L. 103.206, this time to change the "'OnU "any court" back to .court. " Thw, even If Congress had intended the November 1992 amendment to have the cOns<'quence' attnbuted to It by plaintiff (an ilfi\UMnt the court rejtoctsl. C ongreu had changed its nund by Oe<<mber 1993 o".,ause th.. cue is I"venwd by Shute. the Page 2 court would be justified in dismissing the action for improper venue, However, rather than dismissal, the court believes justice would be better served by transferring the case to the United States District Court for the Southern District of Florida under 28 U,S.C. 1 1406la). See, e.g., Benvenuti & Stein, Inc. v. Computer Software Specialists, lnc" No. 87 C 2507, 1987 \IlL 12699 (N.n.m. June 12, 1987) (court applied forum.selection clause in contract and transferred case to Florida pursuant to 28 (;,S.C. ~ U06laH, 03 Plaintiff has tried to avoid this result by arguing that Chicago, minois is a more convenient forum in which to conduct this case than Miami, Florida. According to plaintiff, many of the witnesses reside in illinois, plaintiff himself resides in illinois, and plaintiff was treated for some of his il\iuries in minois. Defendant has countered with its own list of factors favoring transfer: defendant's corporate office is located in Florida, the documents relating to the accident are located in Florida, and the personnel aboard the cruise ship at the time of plaintiffs accident were employed in Florida. The accident itself occurred in the Pacific Ocean off the coast of ~[exico. The Supreme Court weighed many of these same factors in Shute and found them insufficient to override the forum.selection clause. :\lrs, Shute reSided in Washington, the defendant cruise line had its principal place of business in Florida. and the accident occurred off the coast of ~[exico. The Court noted that .Florida is not a 'remote alien forum,' nor.. given the fact that Mrs. Shute's accident occurred off the coast of Menco..is this dispute an essentially local one inherently more suited to resolution in the State of Waslungton than in Florida" Id at 59.. Th"....,fore. abwnt an allegation that ~1n. Shute lacked notice of the forum clallR. the Court concluded that :\In. Shute Iud "not satisfied the 'heavy burden of proof,' required to set aside the clause on ll1"Ounds "f inconvenience" Id, at 595 The prt'sent f.hCts '"ilmP\'1 the same ....,sult. PlAintiff h.. not a1~ that he lacbd notiee of the forum dause 0. that he ... iftducft to C~1lf' · West 1997 So CWm to Onl l'S ri<m Works \\1:.11.\\\ . . ~ :l 52 ~ ) REBECCA FAERBER-CHRENCIK & PAULA MCKAIN TOOMEY IN TIlE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA PLAINTIFFS v. NO, 1997-1288 JURY llUAL DEMANDED ROYAL CARRJBEAN CRUISES L m, DEFENDANT NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pagl!S, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or oi:6ections to the claims set forth against you. You are warned that if" you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE TIllS PAPER TO YOUR LAWYER AT ONCE. IFYOU DO NOT HAVE A LAWYER OR CA1"-lNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FL.'\'D OUT WHERE YOU CAN GET LEGAL HELP. COURTAD~TRATOROFCUMBE~'\'DCOUNTY THIRD FLOOR, CUMBERLAND COUNTY COURTHOUSE 1 Courthouse SqUlll"e Carlisle, PA 17013 717-697-0371 NOTICIA Le ban demandado a usted en Ia corte. Si usted quiere deCenderse de estas demandas expuestas en !as paginas siguientes, usted tiene viente (20) diM de plazo at partir de Ia fecha de Ia demanda y Ia notif..aci...c~ Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en Ia corte en forma escrita lIWI defensas 0 sus objeciolll!S a \as demandas en contra de su persona. Sea avisado que si usted no se deflende, Ia corte tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notifkacion y par cua1quier queja 0 alivio que es pedido en Ia peticion de demanda. Usted puede perder dinero 0 IUS propiedades 0 otros derechos importantes para usted, LLEVEESTADEMA..''DAA UN ABOGADO ImlEDlATAMENTE. SI NOTIENE ABOGADOO SI NOTIENE EL DlNERO SUFIclE."ITE DE PAGAR TAL SERVICIO, VAYA EJ, PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE El...CUE...."TRA ABAJO PARA AVERlGUAR DONnE SE PU'EDE CONSEGUlR ASISTE.....C1A LEGAL. COURT ADMINISTRATOR OF Cl'MBE~''D COUNTY THIRD FLOOR, Cl'MBEJtI.A''D COm."TY COURTHOUSE t Courthouse Square Carii*. PA 17013 11 N191-0311 REBECCA FAERBER.CHRE!\CIK & PAULA MCKAIN TOOMEY PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v, NO. 1997-1288 ROYAL CARR/BEAN CRUISES L m, DEFEt..'DANT JURY llUAL DEMANDED CIVIL ACTION-LAW AMENDED COMPLAINT 1. The Plaintiffs are adult individuals with: a, Rebecca Faeber-Chrencik with an address at 457 Country Club Drive, Camp Hill, PA 17011. b. Paula McKain Toomey is an adult individual with an address of 888 Millersville Road, Lancaster, PA 17603. 2. The Defendant is a Florida Corporation regularly doing business in Pennsylvania with a principal place of business 1050 Carribean Way, Miami, FL 33132. 3. Venue is proper because one of the Plaintiffs resides in C~erland County. 4. Jurisdiction is proper under 42 PS S5322 because the Defendant solicited clients and transacted business for the purpose of pecuniary gain in Pennsylvania and also in Cumberland County, 5. The Plaintiffs are podiatris~s, who contracted with the Defendant through the Bannockburn Travel Agency to take a cruise on the Splendcur of the Seas en or about February 22, 1997 for the purpose of participation in a continuing medical education course and cruise around the islands in Carribean surrounding S~. Maarten. 6. The Splendour of the Seas was owned by the Defendant and at all times relevant heretc, ~e~~er5 of her Crew. the ship's docter, ar,d caFt,un, were aqents. !l!'fVants, or employees. under the direct ccn~rc: ~f t~e refendant. . 7. The Plaintiffs flew to Florida on Sunday, February 22, 1997 to board the Splendour of the Seas, and shared a luxury cabin together. 8. On Tuesday February 24, 1997, Ms. McKain-Toomey discovered some minor, vaginal spotting and telephoned her husband, a physician, who, after listening to his wife's symptoms, determined that she had had a miscarriage. 9. Her husband indicated that there was no medica! emergency and that she should relax, enjoy herself and continue her vacation. 10. As a precaution, he indicated that she should inform the ship's doctor of what had occured. 11. When the Plaintiffs went to the ship's doctor, he declared i~~ediately a medical emergency, without bothering to examine Ms. McKain-Toomey beyond taking her pulse and blood pressure, which were normal. 12. The Plaintiffs were informed that a blood transfusion was possibly needed and despite the fact there was minimal bleeding, they would be removed from the Splendour of the Seas. 13. Despite verbal protests from the P!aintiffs that this was unnecessary, both women were forcibly evicted from their cabin. 14. The women were inforr.ed they would be transferred to a boat offshore containing medical personnel and taken to Curacao to treat Ms. McKain-Toomey's non-existent medical emergency. 15. In fact, they were transferred to a tugboat at nighttime, which had no medical facilities, no medical ! d;. ... '.;. p.rsonne , an w,-cse crew SpCK", no <.nqus... 16. The two women were promised that a ship's agent would attend them thr~ughout their stay en Curacao. but nothing of the sort occurred. 17. Despite the promise of medical treatment, no medical treatment was ever given to Ms. McKain-Toomey, although the hopsital on Curacao took a "deposit" of $2000. lB. After being medically discharged, Ms. McKain-Toomey and the Plaintiff boarded a plane to St Maarten's, where a "luxury hotel room" awaited them until the Splendour of the Seas docked on Thursday, February 26, 1997. 19. The "luxury hotel room" was infested by vermin, dirty, and sma 11. 20. When the two women were permitted to reboard the Splendour of the Seas on Febr~ary 26, 1997, they were locked out of her cabin, had no place to stay, and the Plaintiff missed the educational lectures, which was the original purpose of the trip. 21. As a result of the acts of the Defendants and its agents, servants, or employees, the Plaintiff suffered pecuniary damage, harass~ent, h~~iliation, and unlawful restraint. COUNT I--BREACH OF CONTRACTCFAEBER-CHRENCIK) 22, All precedinq paraqraphs are incorporated as if incorporated herein. 23. The Plaintiff, Faeber-Chrencik, and the Defendant entered into a contract for services, a partial copy is attached as Exhibit A to the oriqinal complaint. 24. The acts described herein by the Defendant constitute a breach of that contract. 25. As a result of that bruch of con::ract the Plaintiff suffered injury: a. A complete loss of value of the trip. b. Additiona~ costs and .xpenses once she was forCibly removed from the Splendcur of the Seas. c. ConseqJential cta~a~~~ to her ~~jical practice. Wh,"!p.ErO~E. th. Plaintiff de-r:-.and$ j\ldi~.nt i~ An a~ot,;ntr:ot tc exceed $35,000. COUNT II--FALSE IMPRISONMENT (FAEBER-CHRENCIK) 27. All preceding paragraphs are incorporated as if incorporated herein. 28. The Defendant, its agents, servants, and employees, intentionally, forcibly, and unlawfully restrained the Plaintiff, Faeber-Chrencik, against her will, when they were without reason to do so. 29. As a result of that breach of contract the Plaintiffs suffered injury: a. A complete loss of value of the trip. b. Additional costs and expenses once she was forcibly removed from the Splendour of the Seas. c. Consequential damages to her medical practice. d. ~barrassment_ e. Humiliation. WHEREFORE, the Plaintiff demands jud~,ent in an amount not to exceed $35,000. COUNT III--NEGLIGENCE (FAEBER-CHRENCIK) 30. All preceding paragraphs are incorporated as if incorporated herein. 31. The Defenda:J.t is in the business of providinq entertair.ment to its passengers and owes a duty of reasonable to its passengers for their protection and safety, 32. The Defendant breached that duty in the acts described herein. 33. As a result of that breach of contract the Plaintiff, Faeb.r Chrenclk, suffered injury: a. ^ c0~rlete less of value of the trip. b. ~1dl:ional C~!t! a~d ex~~s.s once !he W3$ !orcibly removed from the Splendour of the Seas. c. Consequential damages to her medical practice. d. Embarrassment. e. Humiliation. WHEREFORE, the Plaintiff demands judgment in an amount not to exceed $35,000. COUNT IV--BREACH OF CONTRACT (MCl<AIN-TOOMEY) 23. All preceding paragraphs are incorporated as if incorporated herein. 24. The Plaintiff, McKain-Toomey, and the Defendant entered into a contract for entertainment services, a partial copy is attached hereto as Exhibit A. 25. The acts described herein by the Defendant constitute a breach of that contract. 26. As a result of that breach of contract the Plaintiff, McKain Toomey, suffered injury: f. A complete loss of value of the trip. q. Additional costs and expenses once she was forcibly removed fro~ the Splendour of the Seas. h. Consequential damages to her medical practice. WHEREFORE, the Plaintiff demands judgment in an a~ount not to exceed $35,000. COUNT V--FALSE IMPRlSONHINT (MCKAIN-TOCIG:Y) 27. All preceding paragraphs are incorporated as if incorporated herein. 28. The Defendant, its agents, servants, and employees, intentionally, forcibly, and unlawfully restrained the Plaintiff, McKain-Toomey, against her will. when they we~e without reason to do so. 29. As a resu:'t of that bruch of contract tr.e Plair,tiff, McKain ~oc~ey. suffered injury: 6. A cc:~lete :'05S of value of the trip. . removed from the Splendour of the Seas. c. Consequential damages to her medical practice. d. Embarrassrrent. e. Humiliation. WHEREFORE, the Plaintiff demands judgment in an amount not to exceed $35,000. COUNT VI--NEGLIGENCE (MCKAIN-TOOMEY) 30. All preceding paragraphs are incorporated as if incorporated herein. 31. The Defendant is in the business of providing entertainment to its passengers and owes a duty of reasonable to its passengers for their protection and safety. 32. The Defendant breached that duty in the acts described herein. 33. As a result of that breach of contract the Plaintiff, McKain-Toomey, suffered injury: a. A complete loss of value of the trip. b. Additional costs and expenses o~ce she was forcibly removed from the Splendour of the Seas. c. Consequential damages to her medical practice. d. Embarrassment. e. Humiliation. WHEREfORE, the Plaintiff demands judgment in an amount not to exceed $35,000. RESPECTFULLY sua~tTTED, 711(. $ha~~ A. Bozarth Esquire Attcrney At Law 120 SC'Jth Str@et Harrisbur9. 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J 1 l JI!.... ~ !!ii ~imn:n~mn~mit~: Sj .\1 , ~. , iJ... 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 ~O ~1 ~2 ~3 ~. ~5 EXHIBIT PAGE DESCRIPTION Letter Ticket booklet Cruise ticket contract 3 unidentified 3A Unidentified 3B Unidentified *4 Medical release *5 Business card *6 Statement *7 Statement of Paula Toomey *8 Expense summary NUMBER 1 2 *2B *(EXHIBITS ATTACHED ONLY) PAGE IDENTIFIED 28 28 38 53 97 97 97 105 Sargent'. Court Reporting Service, Inc. (814) S3<<;.n08 1 Q. That's fine. That's fine. 2 That's what I would have expected. Did 3 you --- you have already indicated, I 4 think, that your concern was to have a 5 suite with a balcony. Were there any 6 7 8 9 10 11 be where we needed to be when we needed 12 to be there, but other than that, no. 13 Q, Did it make any difference to you 14 or had you given any thought to what 15 terms the ticket might have concerning 16 where any lawsuits that might ultimately 17 arise from this would have to be brought? 18 A. Never dreamt we'd be in the 19 situation we got into. 20 Q. Is it fair then to say that had 21 you known ahead of time that there was a 22 provision in the ticket which suggests 23 that lawsuits have to be brought in 24 Florida, that would have made a 25 difference aa to whether or not you took other specifics that you were interested in in connection with booking this cruise? A. No, other than dates and arrival times. We wanted to be sure we needed to Sargent'. Court Reporting Service, Ine. (814) 516-8908 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this trip? A. I probably would have assumed that it would never have pertained to me. I wouldn't be in that situation. Q. Okay. Did you, when you got your travel documents on Thursday or Friday before the cruise, look at your ticket? A. I did. I looked at the ticket and I made sure it had our three names. I made sure they were spelled properly because we had passports that needed to be ---. I made sure the date was correct and the ship was correct. And I believe I looked to see if our room number was on there because we had specifically selected that room off of the description from the booking for Marcy. Q. By the way, do podiatrists prescribe prescription medication? A. Yep. Anything we want. Q. And I take it you have occasion as a podiatrist to refer to the ~ on occasion for A. Q. Yes, I do. --- de8cription of drug8 that you Sargent'. COurt Reporting Service. Inc, (114) !in-UOS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 are prescribing? A. I'm familiar with the PDR. Q. Let me just backtrack a minute, because we marked a letter from Bannockburn as Faerber Chrencik One and then the whole ticket booklet, I suppose, on the back as Two. (Exhibit Numbers One and Two marked for identification.) OFF RECORD DISCUSSION BY ATTORNEY BACH: Q. Let me go back, if I can, give you a document that we have marked for identification as Chrencik Number Two, which is a bOOklet which on the front of it has in blue printing in the upper left-hand corner Royal Caribbean. Could you please tell me what that is? A. This is my ticket issued to me from Bannockburn Travel for our cruise on February 22nd, 1997 on Splendour of the Seas for a luxury cabin on the eighth f 100 r. Q. And that 18 the ticket that you Sargent's COurt Reporting Service. Ine. (814) SH;-U08 1 received along with other travel 2 documents on either the Thursday or 3 Friday before you left? 4 A. Correct. 5 Q. And is that the document that you 6 referred to to make sure that they had 7 your name right, the sailing date right 8 and the cabin information right? 9 A. Correct. 10 Q. Was there any other information 11 in that ticket that you looked at? 12 A. There is not. 13 Q. Is that ticket as it appears in 14 front of you now intact? In other words, 15 is that the same --- do you have all 16 sheets to that ticket that you did when 17 it was delivered to you? 18 A. I don't know. If the airline 19 tickets were in here, they may have been 20 pulled out, which I believe they were. 21 And your bag tag is on here which is 22 pulled out. 23 Q. Now, that ticket booklet, is that 24 something that you had with you in your 25 custody during the cruise? Sargent's COurt Reporting Service, Inc. (814) 536-8908 .- - . 1 A. Every minute. 2 Q. And is that something that you 3 have had in your custody since returning 4 from the cruise? 5 A. It's been in the file, uh-huh 6 (yes) 7 Q. Have you had whatever opportunity 8 you may have wished to take to look 9 through that ticket since the cruise? 10 A. After the cruise I did read the 11 back of the ticket based on the 12 information that I was told about filing 13 a suit. We did read the back of the 14 ticket upon arriving home and trying to 15 pursue our case. 16 Q. Can you give me a date as to when 17 you might have read through the rest of 18 the ticket? 19 A. Probably the week we came home. 20 Q. SO late February or March of 21 1997? 22 A. Probably the second week of 23 March, something like that. 24 Q. Okay. I think you said that you 25 looked at the back of the ticket when you Sargent'. Court Reporting Service, Inc. 18141 536-8908 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2S came home. Did that include reading the particular terms? A. I read the ticket, yes. Q. Did that include reading the language in the ticket that refers to where lawsuits have to be filed? A. I don't recall hearing that information. I don't recall remembering that information from the beginning. I don't know when I became officially aware that you wanted us to file suit in Miami. Q. Could I ask you, please, to look at what appears to be page two of the ticket terms? And it is a page on which there is a block of terms highlighted in red. Can you please begin reading that block to us? A. Number six, it is agreed by and between passenger and carrier that all disputes and matters whatsoever arising under, in connection with or incident of 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 court. of any other state, Sal~ent's Court Reporting Service. Inc. (814) 536-8908 1 territory or country. Passenger herein 2 waives any venue or other objection that 3 he may have to any such action or 4 proceeding being brought in any court 5 located in Miami, Florida. 6 7A, no suit shall be maintainable 7 against carrier or the vessel upon any 8 claim relating to loss of or damage to 9 property unless written notice of the 10 claim. with full particulars. shall be 11 delivered to carrier at its principal 12 office within ten days after termination 13 of voyage to which this contract relates. 14 and in no event shall any such suit for 15 any cause against carrier or the vessel 16 relating to loss of or damage to property 17 be maintainable unless such suit shall be 18 commenced, filed. within six months after 19 the termination of the voyage and process 20 served within 30 days after filing. 21 notwithstanding any provisions of law of 22 any state or country to the contrary. 23 7B. no suit shall be maintainable 24 against carrier or vessel for delay, 25 detention, personal injury, illness or Sargent's Court Reporting Service, Inc. (8141 536-8908 1 death of passenger unless written notice 2 of the claim, with full particulars, 3 shall be delivered to carrier at its 4 principal office within six months from 5 the day of such delay, detention, 6 personal injury, illness or death of 7 passenger occurred, and in no event shall 8 any such suit for any cause against 9 carrier or vessel for delay, detention, 10 personal injury, illness or death be 11 maintainable unless such suit shall be 12 commenced, filed, within one year from 13 the date within the delay, detention, 14 personal injury, illness or death 15 occurred and process served within 30 16 days after filing, notwithstanding any 17 provision of law or state or country to 18 the contrary. 19 Q. Okay. Thank you. You have no 20 idea how painful that can be in some 21 depositions. Did you have any difficulty 22 understanding what you just read? 23 A. Not right now. No, I did not. 24 Q. Do you have any recollection, 25 having read that again, when you first Sargent's Court Reporting Service, Inc. (8141 536-8908 1 may have either been told or read these 2 ticket terms that tell you that suits 3 have to be brought in Florida and within 4 one year? 5 A. Well, I can't recall exactly when 6 I learned that information, but I did 7 understand that Royal Caribbean preferred 8 us to file suit in Miami. 9 Q. You don't have any --- was it 10 within one year that you understood that? 11 A. It was within the year, sure. 12 And the I didn't remember the exact 13 day I learned of that information. 14 Q. All right. When did you first 15 is Mr. Bozarth the only attorney that 16 you have consulted in connection with the 17 claim against Royal Caribbean? 18 A. The fir8t attorney that I had 19 left her firm. 20 Q. Who was the first attorney that 21 you had? 22 A, Deanna Smith (phoneticl. 23 Q. And when did you fir8t consult 24 with Deanna Smith? 25 A. Probably the .econd week of Sargent'. oouTt Reporting service. Inc. (114) 53'.19QI 1 March. Soon as we got back. 2 Q. And with what firm was Diana 3 Smith Deanna Smith employed? 4 ATTORNEY BOZARTH: 5 Krimsky and Rosen 6 (phonetic) 7 BY ATTORNEY BACH: 8 Q. Did Ms. Deanna Smith review the 9 ticket with you? 10 A. No, she did not, 11 Q. Did you make the ticket available 12 to her to review? 13 A. We didn't get that far. 14 Q. Because of a discussion we had 15 before going formally on the record, I am 16 led to believe, and I'm not asking Doctor 17 Toomey this question, but I'm led to 18 believe that we will not have available 19 to us for Doctor Toomey's deposition a 20 similar ticket booklet at least for 21 today's purposes. However, Doctor --- 22 I'll get your name wrong, Chrencik, a K 23 on the end of it. 24 A. You can say Faerber. 25 Q. Okay. Doctor Faerber, thank you. Sargent'. Court Reporting Service, Inc. (814) 536-8908 1 Was a ticket booklet similar to the one 2 or identical to the one that we have 3 marked as your Exhibit Two, was a similar 4 ticket issued to Doctor Toomey and sent 5 to you for delivery to Doctor Toomey? 6 A. To the best of my knowledge, it's 7 identical other than her name. 8 Q. And did you give Doctor Toomey 9 her ticket? 10 A. In Philadelphia before we boarded 11 the plane I probably showed everyone here 12 our tickets. 13 Q. Do you have any recollection as 14 to who would have held onto Doctor lS Toomey's ticket between Philadelphia and 16 ---? 17 A. I more than likely I had 18 almost every document. 19 Q. How about once you got on the 20 ship, would you have held onto her ticket 21 or would you have given it to her then? 22 A. We got on the ship all at the 23 same time and we just all stood there and 24 handed the three tickets to the operator. 25 Q. when whoever that the boarding SArgent' 6 Cout't Report 109 Service. tnc. {ill4\ SH.n08 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 agent or whatever took the tickets, did he hand them back again to you individually and to Doctor Toomey individually or did you hold onto all of them? A. Q. A. I don't remember. At the ---. I probably took them back. I don't remember. Q. Was it necessary for you to carry your tickets to get on and off the ship? A. No. Q. Would --- do you know who took Doctor Toomey's ticket at the end of the cruise when the two of you headed back home? A. I was still holding --- well, she was ill or basically I had all the documents. That's all I I kept everything. I was in charge of that. Q. At some point --- since you don't have Doctor Toomey's ticket here I'm assuming that Doctor Toomey's ticket found its way to Doctor Toomey? A. When we got home we started to Sargent.'. COUI"t Reporting S.u'Vice. Inc. (eH) SHi-U08 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 split our things and we only got back to Harrisburg and at the airport we split up our papers and she took hers and I took mine. Q. Did Doctor Toomey, I'm certain, have access to her ticket had she wanted to look at it before, during or after the cruise? Certainly. (Exhibit Number 2B marked for identification.) BY ATTORNEY BACH: Q. I'd like to show you a document that we have marked as Exhibit 2B to your deposition and ask if you can tell me what that is, what it appears to be. A. It states that it's a Royal Caribbean cruise ticket contract. And the passenger is me. There's a booking 10 number of 3121558. The ship is Splendour of the Seas. Embark --- embarkation, 1 think that's what it's abbreviated, begins at 1:00 p.m. on Friday, February 22nd. Ship s.ils 1:30 a.m., February 22nd. Cabin/category, A. Sargent'. COurt Reporting Service, Inc. (814) 536-8908 1 8036/C, party of three and air/sea travel 2 through Philadelphia, I guess. Cabin 3 fare as agreed it also states. And 4 that's my signature on the bottom. 5 Q. Was a --- to your knowledge was a 6 similar document contained in the cruise 7 ticket contract that was issued to Doctor 8 Toomey? 9 A. I assume. 10 Q. You have no reason to suspect 11 that it was not? 12 A. Correct. 13 Q. And would you expect in the 14 absence of any facts to suggest to you 15 otherwise that Doctor Toomey would have 16 countersigned that embarkation coupon as 17 did you? 18 A. I'm sure she did. 19 Q. The cruise began Saturday the 20 22nd the 22nd of February was a 21 Saturday; is that correct? 22 A. Correct. 23 Q. Did you actually --- because of 24 the delaya in the air freight, I just 2S want to make sure I'm not assuming Sargent'. Court R.portinq Service, Inc. (814) ~)'-'90' 1 something, were you able to reach the 2 vessel that day or was there a delay in 3 sailing? 4 A. Well, as our document states, it S was supposed to sail at 10:00 p.m. that 6 evening and instead it left at 1:30 a.m. 7 on Sunday morning. 8 Q. Do you fault ---? 9 ATTORNEY BACH: 10 Do you want me to hold 11 on, Counsel? 12 ATTORNEY BOZARTH: 13 It's all right. Go 14 ahead. lS BY ATTORNEY BACH: 16 Q. Do you fault Royal Caribbean at 17 all for the air arrangements that you 18 either endured or had between here and 19 the vessel? 20 A. We were significantly 21 inconvenienced by the horrendous travel 22 rearrangement. 23 Q. I guess what I'm trying to get at 24 i8 it your impression that Royal 25 Caribbean'. --- a. a result of actions by Sargent's COurt Reporting Service, Inc. (8Ul 516-11901 ~. 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W....WOf"t1O CDN...J.....M ..J Ilil .......Q._....O :z: IX...'" 00 lO"'... .. >. e:... ~ _<0 .. ... ... 0 II.. II ~... CD-" II - ..... ...... . .UO .. e: e: ..."'.... II II- \.. e: >.'" ....Jl0,. a._.......... "O_.o_.o\.L. .o.c:E.c:.-- CLII)",,,,,,,UCL< 0 '" Ii ... IX " < '" < II ~ .. u.. 1: - J3 .. U fZj~i.""~ ...5..",...... ~ ... ;~. t )Cd" ~ ... . .... -, ~ = g ~ c IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA DIVISION · · · · · ORIGINAL REBECCA FAERBER CHRENCIK,. CIVIL . . . et al. , . No. 1997-4288 Plaintiffs . vs. . ROYAL CARIBBEAN CRUISES. . LTD. , . Defendant . * * . * . . * . DEPOSITION OF PAULA McKAIN-TOOMEY. D.P.M. MA Y 1. 1 9 9 8 Any reproduction ot this tran.cript i. prohibited without authorization by the certifying agency Sargent'. COurt Reporting Service. Inc, (IU) 5H.-n08 1 A. Yes, it is. 2 Q. Okay. And we'll just leave that 3 with the Court Reporter to be attached to 4 the transcript. Now, you were here and 5 present while Doctor Faerber testified 6 about the events that led up to taking 7 this cruise; were you not? 8 A. Yes. 9 Q. Do you have anything to add to 10 your reasons why, your expectations for 11 the cruise or what it was that you had 12 asked to have available or what you 13 wanted on this cruise? 14 A. No. We basically had the same 15 expectations. 16 Q. Is it correct that Doctor Faerber 17 made the arrangements with the travel 18 agent for the ticketing and booking? 19 A. Yes. 20 Q. When did you first receive ---? 21 ATTORNEY BACH: 22 And, Doctor Faerber. if I 23 could impoa. on you to pull back 2. out Exhibit Number Two, which i. 25 the booklet. Sargent's COurt Reporting Service. Inc. 11141 5)6-8908 ....-. 1 BY ATTORNEY BACH: 2 Q. When did you first receive a 3 booklet similar --- perhaps I should 4 start with this question. Did you, in 5 fact, receive a ticket booklet similar to 6 the booklet that you saw us use and mark 7 during Doctor Faerber's deposition as 8 Exhibit Two on the back of that. It's 9 marked Chrencik Number Two. Did you 10 receive a ticket booklet similar to that? 11 A. Yes, I did. 12 Q. Okay. When did you first receive 13 a ticket booklet similar to that? 14 A. I looked at it, got to see the 15 front of it when we were getting ready to 16 board in Philadelphia. 17 Q. Board the airplane in 18 Philadelphia? 19 A. Yes. 20 Q. Did you carry your cruise ticket 21 with you? I want to distinguish between 22 the airline ticket and the cruise ticket, 23 which I'm calling the Royal Caribbean 24 ticket. Did you carry your cruise ticket 25 with you during t~~ air travel? Sargent'. Court Reporting Service, Inc. lU4) S)6-U08 1 A. I don't really remember, but I 2 believe that Doctor Faerber carried all 3 of the documents. 4 5 6 7 8 9 A. Sure. 10 Q. you would have had the 11 opportunity to do that? 12 A. Yes. 13 Q. Okay. Where is your ticket now? 14 A. I believe that it's with my 15 attorney in Lancaster. 16 Q. Whose name is what, please? 17 A. Michael O'Day. 18 Q. Ie he still your attorney or is 19 he no longer ---I 20 A. He is no longer representing me. 21 Q. Is there any doubt in your mind 22 that you had a ticket similar to this 23 document Exhibit Two ---I 24 A. No doubt in my mind. I 25 definitely had that. Q. You will agree - - -? A. Except for the airline tickets. Q. Is it accurate that had you wanted to, you know, flip through your ticket and spend the time to read it, Sargent'. Court Reporting Service, Inc. (8141 S)fi-U08 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. You came back from the cruise with it and you gave it to your attorney. A. Yes. Q. Now, as I imposed on Doctor Faerber to do, could you please take a moment to look at --- the inside of the ticket there's a page two, one of the internal flyers of that ticket. Do you see the language that's highlighted in red printing there? A. Yes. Q. Did you have any occasion to look at that language prior to taking the cruise? A. Q. No. Did you look at it after the cruise? A. Yes. Q. When did you first look at it after the cruise? A. I don't recall exactly when, but I believe it was possibly brought to my attention by Mr. O'Day. Q. Okay. I won't ask ..- you're a well-educated professional. Are you able Sargent" COurt Reporting Sel~ice, Inc. (8141 516-8908 1 to read the English language and read the 2 language that's printed in the red 3 lettering there? 4 A. Yes. 5 Q. And do you understand what it 6 says? Whether you agree with it or not 7 is something else, but do you at least 8 understand what it says? 9 A. Yes. 10 Q. Okay. Do you claim that the 11 miscarriage --- first of all, do you 12 agree with what has been indicated 13 earlier that you, in fact, did suffer a 14 miscarriage aboard the vessel? 15 A. Yes. 16 Q. Did you have any inkling that 17 there was anything wrong with this 18 pregnancy that was likely to cause it to 19 terminate by miscarriage? 20 A. No. 21 Q. Did you experience cramping or 22 pains prior to, I think it was, Tuesday 23 that you were in Curacao and noticed some :14 spotting? 25 A. No. Sargent'. Court Reporting Service, Inc. 1814) 536-8908 RCCL's tickets arc issued to adults and the size of the tickets is designed for the passenger's convenience. A billboard size warning is not required for the ticket's teons and conditions to be valid. While all of the cases cited above deal with the one year time limitation, they discuss the issue of delivery of tickets that reasonably communicate their teons to passengers who are bound to those teons by use of the ticket whether or not they have actually read the teons. Any doubt as to the validity of the forum selection clause in issue before this Court was resolved in 1991 as explained below. D. THE RCCL TICKET TERMS REGARDING THE SELECTION OF A FORUM IS V AUD ^,~D ENFORCEABLE The ticket in question or its predecessor has been thoroughly scrutinized and tested by many courts. The tickets in question also compare favorably with the tickets issued by other cruise lines as discussed in dozens of opinions that even casual legal research readily discloses. The case most opinions cite as the logical starting point for the analysis of the enforceability of a forum selection clause in a passenger ticket is Camil'tli Crvise UM! v. SIIule. 499 U.s. 585. III s.n 1522, I \3 L.Ed.2d 622 (\ 991). The SIIule case was clearly considered by this Court when it ruled on the pRliminary objections. While implicitly recognizing that SIIUIt' contained the controlling law, this Honorable ('ourt denied the pRliminary objections because plaintiffs had not CIn."Cded the question oh.hcther they had sufficient notice of the forum selectlOD clause. To the e\tent that the fa..'tUa1 bac~ of tile SIIutt' Ik\;ISIOft can be di.~ from the SuJlrentc Coon "","1Oft and the opinKlllS of the IoWCI' rouns. It 110ft not appear to be any dllTereftt I",,", tM ta.:tlYl gl\l.1t"llIlft this ,oUe in "hl.h r1allltilTs selected a ,'rutS( and weft tuued a tid.d .7_ Two other cases directly on point conccming the forum selection clause are attached hereto. They are unreported decisions. In the first. Amador- AI'iles I'. Royal Caribbean Cn/i.fe, No. CIV. 96. 2470 (DRD), 1997 WL 397741 AT .2 (I). Puerto Rico July 2. 1997), (transferring the case to Florida due to forum selection clause), the factual issue was again simple and uncomplicated. Plaintiffs purchased a cruise and were issued a ticket containing a forum selection clause. Citing Shute, the District Court in Puerto Rico ordered that the case be transferred to Florida. Likewise, in Moraites v. Royal Caribbean Cruises. Ltd., No. 94 C 3762.1994 WL 405919 at.3 (N.D. III. July 29,1994), (transferring the case to Florida due to forum selection clause), plaintiff passengers in Illinois were ordered to litigate their dispute pursuant to the forum tenns in the ticket in question. There are a host of cases enforcing the one year time limitation that also appears in the RCCL passenger ticket. They are called to the Coun's attention because the threshold question in each of those decisions was also whether the ticket reasonably communicated its tenos. In each, it was held that it did. If the ticket reasonably communicated the time limitation pro\;sion, it certainly reasonably communicated every other valid provision in the ticket. including the forum selection clause. Decisions upholding the Royal Caribbean ticket with respect to the time limitation include Coprima v. Royal Caribb...an Cruises. Ltd., No. 97 CV 3433. 1997 WL 666287 at.3 (E.D.N.Y. 1997); LousarariUlu'. Rorul Caribbean Corp., 951 F.2d 7.12 (IstCir. 19911; WilliamH'. Royal Caribbeall Cruise Lille. I",'., Civ. A. No. 90-1010, 1990 WL 284517 at .S (D.N.J. 1990); Lit''' I'. Royal Caribbeall Cruisf' Lille. 645 F. Supp. 232. 2-'4.35 (S.D.N.Y. 1986); FdglIlI I'. Non/I(: PriMe. IllC'. <lIId Ro)'ul CariMetm Crui.res. Ltd.. Civ. A. No. 91-5143. 1992 WI. 361704 It .7-8 ID.N.J. 1992); Ikrg I'. R''J'UI Caribbeall Cruisvs. Ltd., Ci\. A. N.:l. 91.4957,1992 \\1. 609tI03 at.6 (D.NJ 199~"; each hoWlng thaI a Ii_limn in the IIdet barred pbintllfs daim Ind grantinJ defmdant's IMtIOll fur summary judcment. 'n",," of C~ IItlt rqlOrted In ~. S~ art Ilta\:hN .9. Not Reported in F.Supp. (Cite as: 1997 WL 397741 (D.Puerto Rico)) l\fiIagros AMADOR.A VILES, Plaintiff, v. ROYAL CARIBBEAN CRUISE, Defendant. No. CIV. 96-2470 (DR D). United States District Court, D. Puerto Rico. July 2, 1997. DOMINGUEZ, District Judge. ORDER -I Based on the forum selection clause contained in the passenger ticket establishing Miami, Florida as the proper forum for disputes, prima facie valid under federal law pursuant to the case of Carnival Cruise Line v . Shute, 499 U.S. 585 (1991), as amended by law, 42 U.S.C.App ~ 183C, the Court dismissed the above captioned damages complaint. Plaintiff alleged damages suffered while a passenger on the cruise ship, Legend of the Sea, on FebrulUy 1996. The complaint avers that the ladder provided by the ship for use of the top berth of plaintiff's cabin slipped while she exited the top berth causing a broken ankle. Plaintiff purchased the tickets in Puerto Rico. The cruise started in Puerto Rico and was to end in ),Iexico with subsequent air transportation to Puerto Rico. Plaintiff filed a timely notice for reconsideration alleging that "inconvenience and expense of prosecution" deprived Plaintiff of her day in court should the forum clause prevail (Motion for Reconsideration, Docket No. 10, p. 2 , 4). Plaintiff further alleged lack of relationship of the Miami, Florida forum because the plaintiff resides in Puerto Rico and the cruise starts and ends in Puerto Rico (Docket No. 10, p. 3 , 6). The Defendant opposed the reconsideration (Docket No. lit Plaintiff requested a hearing (Docket No. 12) which was continued because the defendant did not receive notice and because the Court wished to orient the parties as 10 a rete.nt decision of the District Court of this jurisdiction (Docket No 10 . ,,' -' -:. \ '~'.' . . . ;:",_ '" .l._t Page 1 An evldentilUy hearing was held late on June 25, 1997. Plaintiff, a widow, was the only witness to testify. She testified that her only income is $515 received from Social Security, $142 from the Army, and $140 from running a lottery agency. Further, Plaintiff testified to expenses higher than her income. On cross examination she admitted to having taken, after widow status, other cruise vacations in JanulUy 1995 (six days cruise) and a sixteen. day vacation in South America in December 1996. Plaintiff further admitted that all her children are over aged and gainfully employed. The First Circuit Court has established a two. prong lest in the cases of Lousarian v. Royal Caribbean, 951 F2d 7, 8.9 (1st Cir.19901 and Shankles v. Costa Armatori, 722 F.2d 861 (1st Cir.1983) in evaluating the legitimacy of forum selection clauses under the case of Carnival Cruise Lines, Inc. v. Shute, 495 U.S. 585 (1991). The two.prong test coined as the "reasonable communicativeness test," is the following: First, a court must examine the facial clarity of the ticket contract and whether its language and appearance make the relevant provisions sufficiently obvious and understandable. The second prong focuses on 'the cirtumstances of the passenger's possession and familiarity with the ticket,' id., which involves scrutiny of 'any extrinsic factors indicating the passenger's ability to become mean.ingfu.1ly informed of the contractual terms at stake,' id. (Citation omitted). Given this two.step analysis, it is ob\oious that the determination of enforceability must be made on a case.by case basis... (clting Shankles, 722 F.2d at 864-661 -2 The (lrst part of the test examines the facial clarity of the clause in the ticket. This part of the test is easily complied with since the clause i. emphasized by being typed in red ink in the same type of lettering as all the remaining clauses typed in black letterina. The second part of the test focuses on "the circumsUl\Cts of the passenger'. po.seuion and familiarity with the ticket." The licket was in Plaintiff. possclllion days before the cruis.e delivered by a fellow passenger. The C"llr · \\"est 19M :-:<\ Claim to Ong Us. C..,vt. \\"orks \ nS1l./\\\' I Not Reported in F.Supp. (Cite os: 1997 WL 397741, "2 <D. Puerto Rico)) Page 2 ticket contained both the sea cruise itinerary os well os return air itinerary from Mejico to Puerto Rico together with a statement on the cover page signed by Plaintiff which states: "This is your cruise ticket contract. It is important that you read all terms of this contract. Signed Milagros Amador. " The Court finds no extrinsic significant factor leading to Plaintiff not being significantly informed of the forum selection clause. IT IS SO ORDERED. END OF DOCUMENT Plaintiff alleges lack of economic means to litigate in Miami, Florida. She alleges that her income is around $800.00 with a heavy economic burden. However, notwithstanding said averment, between 1995 and 1996 Plaintiff has had sufficient economic means to take two cruises and a sixteen.day South American vacation. [FN 11 FNI. Plaintiff"s lottery conunission income seems to be undersuted. Plaintiff further alleges that her medical expert resides in Puerto Rico together with the witnesses of the ease. However, there is nothing that impedes Plaintiff from taking depositions of experts and witnesses in Puerto Rico and using them in Florida os authorized under FRCP No. 30 Plaintiff may even use depositions upon written interrogatories under FRCP No. 31 to further curtail the potential expenses of the deposing of her witnesses. The Court, therefore concludes that Plaintiff has not satisfied the "heavy burden of proof required to IIet aside the clause on grounds of inconvenience.. Shute, 499 U.S. at 595. IFN2) FN2. The Illeptioa of lad of rel.llionsbip widllbe Miami Florida rorwn is misplaced. In C.rnival Cruise l.iae. Int. v Shu... III SCt m2 m4- ms lbe rorwn claU>e of Florida '"u found valid """,wlll14in& dloc Ibe ctllise '"u from I'IIeno V.UIna. Mtjico 10 t.e. ",*,". Clltfumio IlllI pllintilli ...... MI R\idna of Rurido but of tbf SUIt of WuIlmalOll. The ~foti.on for RecoNideration ia DE1'HED. The Court tr&I'Isfen the we \0 the United Statu DiWid Court for the Southern Disvict of Florida. Jlld&'nwnt \0 be ~ actMiincly. COfr. · Welt 1996 No Claim to Oric. US Gort Worb \\ I sn. \\\' . Not Reported in F.Supp. 1995 A.M.C. 348 (Cite as: 1994 WL 405919 (N.D.I1l.11 John MORAITES, Plaintiff, v. ROYAL CARIBBEAN CRUISES, L TD.. Defendant. No. 94 C 3762. United States District Court, N.n. minois, Eastern Division. July 29, 1994. MEMORAN'DUM OPINION AND ORDER CASTILLO, District Judge. .1 This action arises out of a personal injury sustained by plaintiff, John Moraites. while he was a passenger on one of defendant Royal Caribbean Cruises Ltd:s cruise ships. Defendant has moved to dismiss under Rule 12<bX6l, claiming that venue is not proper in the Northern District of Ulinois because the cruise ticket plaintiff purchased contains a forum.selection clause requiring that all disputes arising in connection with the cruise be litigated in a court in ~1iami, Florida. Specifically, the ticket states: 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 litig&ted, if at all, in and before a court located in :'1iami, 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. Defendant argues in the alternative that the court should transfer this action to the United States District Court for the Southern District of Florida pursuant to 28 V.S.C. t 1406lal. As a general rule. fonun lll!lection clauses an "prima facie valid and should be enfon:ed unle.. enforcement is ahown by the resisting party to be UDnllllOnable under the cirtumstances." '-1S Iln>men v Zapata Off Short' Ca , t07 l'S 1. 10 11972\ Even where the f,mun c!;lw;e esUbhshes a remote forum Page I for resolution of conflicts, the resisting party bears a "heavy burden of proof' of unfairness. Id. at 17. In a case strikingly similar to this case, the Supreme Court upheld the enforceability of a forum.selection clause in Carnival Cruise Line , Inc. v. Shute, 499 U.S. 585(991). Like Mr. ~toraites, the plaintiff in Shute purchased a ticket containing a clause selecting Florida as the forum, was injured on the cruise, and filed suit against the cruise line in her home state of Washington alleging negligence. The cruise line moved to dismiss for improper venue and the district court granted the motion. Following reversal by the court of appeals, the Supreme Court held that the court of appeals erred in refusing to apply the forum.selection clause. In doing so, the Court rejected the nrgwnent that a non. negotiated forum. selection clause is per se unenforceable. Id. at 593. Rather, the Court listed several justifications for permitting the cruise line to insert a reasonable forum clause in a fonn contract. including the cruise line's "special interest" in limiting the number of fora in which it potentially could be sued. the "salutary effect" of dispelling any confusion about where suits arising from the contract must be brought and defended. and increased benefits to passengers in the fonn of reduced fares reflecting the savings that the cruise line enjoys by limiting the fora in which it may be sued. Id. at 593.94. The Court also held that the forum selection clause did not violate the Limitation of Vessel Owner's Liability Act, 46 U.S.C.App. I 183c which states: .2 [t shall be unla..fuj for the ... owner of any vessel transporting passengers between porta of the United States or between any such port and a foreign port to insert in any rule, rellUlation. contr:lct. or agreement any prorision or limi tation .. 121 puIllOrting in such event to lessen. wealLen. or avoid the nght of any claimant to a trial by cwrt of competent Juri.mction on the queation of liab.hty for such Iou Of' i.n,jury. or the measure of d1Un8t:f:!l the...,ftlr. All such provisions or limitations conwned in any C"P" · West l~ :0.;0 Chum to On, t: S (;'"t Worlul \\,1:,1'1. \\\' t Not Reported in F.Supp. (Cite os: 1994 WL 405919. -2 (N,D,llI.ll such rule, regulation, contract, or agreement are hereby declared to be against public policy and shall be null and void and of no effect. As the Court explained, "the clause states specifically that actions arising out of the passage contract shall be brought 'if at all: in a court 'located in the State of Florida,' which, plainly, is a 'court of competent jurisdiction' within the meaning ofthe statute." 1d. at 596. Plaintiff makes no effort to distinguish Shute. Rather, plaintiff claims that Shute no longer accurately reflects the law. Without citing any authority, he argues that the November 4, 1992 amendment of 46 U.S.C.App. ~ 183c by Pub.L. 102.587 changed the law so that t 183c now forbids the use of 0 forum. selection clause which limits an injured passenger's selection of judicial forum in any way. The November 1992 amendment substituted the words "any court" for the word "court." Under plaintiffs interpretation, the amendment prohibits the use of a forum.selection clause at all. PlaintiEs interpretation is completely unsupported by the legislative history or the case law. On the contrary, recent decisions in this jurisdiction post-dating the November 1992 amendment indicate that Shute is alive and well. See. e.g., Hugel v. COlllOration of Lloyd's, 999 F.2d 206, 210 (7th Cir.19931 (citing Shute in the context of a discussion stating that forum stipulation clauses are prima facie valid and routinely enforced absent a finding of unrellJlOnablenessl; CIT GroupCl1!cIit Finance, Inc. v Lott. No. 93 C 548, 1993 WL 157617 tN.Om. :'lay 13, 1993) (&amel. :.toreover, plaintift"s interpretation il refuted by the mblequent history of th;t stat1.lte itlelf On ~ber 20, 1993 Congre!lll amended the statute ..ain, IIH Pub. L. 103206, Ws time to change the words "any court. back to "court. Thua, nen ,f CongrelUl !lad intended the November 1992 amend.rNnt w have the coNll'<l\Wnces attnbuted to It by platntllf I i\1I ~ftt the l'Ourt ",jC'Cbl, Congre.. ",,{ dI~ Its mind by ~b,r 1993 n.c:.1lIOf this u. is ~ftmrd l!y S1'lulC'. the Page 2 court would be justified in dismissing the action for improper venue. However, rather than dismissal. the court believes justice would be better served by transferring the case to the U niled States District Court for the Southern District of Florida under 28 U.S.C. I 1406lal. See, e.g., Benvenuti & Stein, Inc. v. Compuler Software Specialists. Inc.. No. 87 C 2507, 1987 WL 12699 (N .D.ill. June 12, 1987) (court applied forum.selection clause in contract and transferred case to Florida pursuant to 28 U.S.C. ~ 14061all. -3 Plaintiff has tried to avoid this result by arguing that Chicago, illinois is a more convenient forum in which to conduct this case than Miami, Florida. According to plaintiff, many of the witnesses reside in illinois, plaintiff himself resides in illinois, and plaintiff was treated for some of his injuries in lllinois. Defendant has countered with its own list of factors favoring transfer. defendant's cOlllOrate office is located in Florida, the documents relating to the accident are located in Florida. and the personnel aboard the cruise ship at the time of plaintift"s accident were employed in Florida. The accident itself occurred in the Pacific Ocean off the coast of :.texico. The Supreme Court weighed many of these same factors in Shute and found them insufficient to override the forum.selection clause. Mrs. Shute resided in Washington, the defendant cruise liJ\e had ill principal place of business in t'lorida, and the accident occurred off the coast of Mexico. The Court noted that "Florida i. not a 'remote alien fonun,' nor.. given the fact that Mrs. Shute's accident occurred off the ~oast of :.texicohil w. diapute an essentially local one inherently more suited to rellOlution in the State of Washington thall In Florida.. ld. at 594. Therefore, absent an ltllegallon that Mrs Shute lacked l10tice of the forum daWle. the Court concluded that Mrs. Shute lI&i "not astufied the .heavy burden of proof: n>qUll\'ll to ., UIOe the clause on J1'U~ uf lnron>'elllence. 1d at 595 The JftM'nt facti ~I the _ rHUlt. l'Iatnttft' has 001 ltll.p! that he lacked not1C9 ,If the ~ daUllt <>I' that hot wu indueed til f"pI' . WC"!It l~ x" n""", ", Orlll ~ S (j"vl Wvrts \ \ l.sn.'\\\' . Not Reported in F.Supp. (Cite as: 1997 WL 666287 (E.D.N.Y.)) Phyllis CAPRIOLA and Anthony Capriola, PlainUCfs, v. ROYAL CARIBBEAN CRUISES, LTD. Defendant. No. 97 CV 3433. United States District Court, E.n. New York. Sept. 5. 1997. Peter A. Junge, Esq., Lambos & Junge, New York. N.Y. Eric S. Roseblum, Esq., Law Offices of Eric S. Rosenblum, Levittown, N.Y. MEMORANDUM AND ORDER GLASSER, District J. SIDThtARY -IOn June 18, 1995, while on a ,'acation cruise aboard the MIV l\lonarch of the Seas. Phyllis Capriola slipped and fell on a wet floor and suffered the i~uries that give rise to this litigation. On February 18. 1997, she and her husband, Anthony Capriola. filed this negligence action against Royal Caribbean Cruises, Ltd. ("RCCL "), the owner and operator of the Monarch of the Seas. Phy Ilis Capriola seeks recovery for the i~uries she sustained aboard the ship, and Anthony IieCks recovery for loss of the society, services. and consortium of his wife. RCCL has moved for summary judgment on the ground that the action was commenced after the expiration of the one. year IimitatiOIl8 period contained in plaintiffs' passenger ticket contract. For the reasons set forth below, RCCL's motion is granted. BACKGROUND The facts are undisputed. Prior to boarding the cruise ship. the Capriolaa were issued ReeL passenger ticket booklets. which coll8isted of lleVl!raJ coupons measuri ng thrft and one quArter inches by eight inclws. Dre j( If! State, , J The cover p&llIl or the boolUet .' . Page I is printed on ivory card stock and bears the following admonition in n.wy blue letters: ~U)ORTA.!\n NOTICE The tan pages of this booklet contain your cruise ticket contract which limits your rights. It is important that you carefully read all the terms of the contract and retain it for future reference. Id. at , 4. Among the coupons contained in the booklet is the RCCL cruise ticket contract. The cruise ticket contract has a box that measures approximately one inch by three inches in the right.hand comer in which the following notice is printed: THIS IS YOUR TICKET CONTRACT. IT IS IMPORTA."lT THAT YOU READ ALL TER.\IS OF THIS CONTRACT (pp. 1-41. THIS TICKET IS NOT TRA."lSFERABLE A."lD IS NOT SUBJECT TO ALTERATION BY THE PASSENGER. Id. at , 5. Beneath this warning is a space for the passenger to sign. The signed ticket (known as the "Lifted Ticket") is removed from the booklet by RCCL personnel at the time of boa."'liing and the passenger retains a duplicate copy. The back of the Cruise Ticket Contract retained by the passenger is the passenger ticket contract. Id. at , 6. The passenger ticket contract is printed on rattan patterned tan cardstock and contains twenty numbered clauses spread over four pages of the booklet. In the upper right.hand corner or the contract's first page the follOwing warning appears in navy blue bold lettering: ~fPORTAl"I-.PASSEXGERS READ ALL CLAeSES (PAGE 141 The clause relevant to this case. 7(B). advises or a one. year contractuallimitatiolll plIriod for personal in,iury claims against the carrier. In contrast to the other clauses. which are pnnted in blue. 7(m is pnnted in bricht red. It po1lVldea: :\0 SeIT SHALL BE ~lAD<'TAIXABLE AGAIXST CARRIER OR TlIE VESSEL FOR I'ER.<;t1SAI. DlJt'RY . . OF }'ASSE.'\GER Copr. · Welt 19':18 :\0 Claun to On, C S ('s<>vt. Works \\ISlL\W . Not Reported in F.Supp. (Cite as: 1997 WL 666287, "I (E.D.N. Y.)) UNLESS WRITrEN NOTICE OF TilE CLAIM, WITH FULL PARTICULARS, SHALL BE DELIVERED TO THE CARRIER AT ITS PRINCIPAL OFFICE WITHIN SIX (6) MONTHS FROM THE DAY WIlEN SUCH PERSONAL INJURY OCCURRED; AND IN NO EVENT SHALL ANY SUCH SUIT FOR ANY CAUSE AGAINST CARRIER OR THE VESSEL FOR PERSONAL L"'JURY BE MAINTAINABLE UNLESS SUCH SUIT SHALL BE COMMENCED <FILED> WITHIN ONE 01 YEAR FROM TilE DAY WHEN THE ... PERSONAL INJURY OCCURRED AND PROCESS SERVED WITIIIN THmTY (30) DAYS AFTER FILING, NOTWITHSTA1'oWING ^,'<Y PROVISION OF LAW OF ANY Sf ATE OR COUNTRY TO THE CONTRARY. .2Id. at 17. DISCUSSION I. Summll1'Y Judgment Standard Summary judgment should be granted If "the pleadings ... and admissions on me ... show that there Is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 561c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322.23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (19961; Matsushita Electric Indus. Co. v. Zenith Radio Corp.. 475 U.S. 574, 596-97, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In ruling on a swnmary judgment motion, a coUlt must "resolve all ambiguities and draw all reasonable inferences in favor of the party against ....hom judgment is sought ." with the burden on the moving party to demonstrate the ablena! of any material factual ill5Ue genuinely in dispute." Heyman v. Commerce and Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir.19751. n. The Applicable Law It ia now settled that a palRnpr cruise ticket i. a mU'itlme contnct. and the limitations period to be app1~ in . penona\ if\iUQ' actlon i. lO\'enwd b)' feden1 maritime law. VaY1'lUlu v. Klostet- Cruise Ltd. 822 F~ 919 ItD N.Y.I993-titillC C&mi"a! Cruise Page 2 Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (991); :\lilanovieh v. Costa Croeiere, S.p.A., 954 F.2d 763 <D.C.Cir.1992l; and other cases)). m. The One-Year Limitations Period There are two requirements on a sea carrier's use of a contractual limitations period. First, ilie passenger must be allowed at least one year from the date of injUQ' to sue. See 46 U.S.C.App. 183Cb) [FNI); Spataro v. Kloster Cmise Ltd., 894 F.2d 44 (2d Cir.19901. Second, ilie ticket must sufficiently alert the passenger to the restriction. Id. at 45. The seminal case in this regard is Silvestri v. Italla Soeieta Per Azioni Di N avigazione, 388 F.2d 11 (2d Cit.1968ffriendly, J.), which ilie Second Circuit has read to require that sea carriers "reasonably communicate" any limitations period to their passengers. See Spataro, 894 F.2d at 46. "Wheilier this standard has been met is a question of law for the court." Kient%ler v. Sun Line Greece Special Shipping Co., 779 F.Supp. 342, 346 IS.D.N.Y.1991l. FNI. 46l!.S.C.Arr. 183(bl provide" II ,h.tll be unlawful for the ... owner of .ny .... golOg \'es.\el ... uans.poning pa.s~ngen ... 10 provide by !\lie. contract. regulation or otherwISe. ,honer period for IlVlIlg ootlce of. or ming claims for 10" of hfe '" bodily lDJUry than .it 1IIOIllIIs. .n<I for th~ lllStJtU.tlon of SUlU on !iucla claims. than one yur. .uch . po""" for ""unlllun of ,uils to be computell from the <lay ..hen the dum or injury ""cum<!. The only issue here is whether the ticket issued to the Capriolas reuonably communicated the one-year limitations period to them. The court finds that it does. Thia il not a cue of 'al condition ... camouflaged in Lilliputian print .., (that isl unnoticeable and unreadable." Lisi v. Alitalia.Linee Aeree Italiane, 253 F.Supp. 237.243 (5.0 N.Y.l966I, alfel 370 F.26 508 (26 Cir.19661. alfel 390 U.S. 455,88 5.Ct. 1193. 20 L.Eli.2d 27 (l9661. The various wami"" rqardinc the importante or l1ladinc the ticllet an cleerb printed and easily readable. Nol.hinc obleures them Of hintlen the ahtlity of the reader to C. · West 1M No CI~ to Onlt US Glrt. Wor\I \ \ I 3rL \\\' ~ Not Reported in F.Supp. 1991 A.:\I.C. 237 (Cite as: 1990 WL 284517 <D.N..J.ll Helene and Charles WILLIAMS. Plainurfs. v. ROYAL CARIBBEAN CRUISE I.INE. INC.. Defendant. Clv. A. No. 90-1010. United States District Court, D. ~ew ,Jersey. Aug. 14, 1990. :\1ichael O. Kossak, White and Williams. Westmont, ~.J., for plaintiffs. George J. Koelzer, Ober. Kaler, Grimes & Shriver. John P. Flanagan. Edison. ~.J., for defendant. OPINIO~ COHE~, Senior District Judge: I. INTRODCCTIO~ -I This negligence action comes before the court on a motion by defendant, Royal Caribbean Cruise Line, Inc., ("Royal Caribbean "J, for summary judgment on all counU of plaintiffs, Helene & Charles Williams' ("WilIiams"J complwnt. Because the affidaviu submitted by the parties indicate that plaintiffs' complaint is time barred, defendant's motion shall be granted. n. FACTUAL A."D PROCEDl1L\L BACKGROC~D On or about Marclt 2, 1988, plaintiffs paid the sum of $4,690.00 to defendant, Royal Caribbean. for a ten day cruise aboard the vesael. Sun Viking. Prior to the start of the cruise, Helene Williams l'Kl!ived a copy of her JlUMncer ticket which established the tenna and conditions of the vayap. On the cover sheet of the ticket, a bold faced c1aWll! stated: r-ncers ",ad all c1a\l5t'l A!rain.. on the fIrSt p,'lll'! of the ticket. this tllne 1ft blldfaced. capital letten. pa-ncers 10m! Informed that: Page I TIllS IS YOUR Cm,TRACT. IT IS I:\IPOHTA~T TIIAT YOU READ ALL TER:\IS OF TillS CO~TRACT, PAGES I, 2, & :I ~ON.TRA~SFEHABI.E, ALTEHATlONS vom TICKET. Finally, paragraph seven of the tir.ket contract stales in smaller. but nevertheless bold faced capital letters: ~O SCIT SIIALL BE :\LU."TAINABLE AGAINST TilE CARRIER OR VESSEL UPON A."Y CLADI IN CONNECTION WITH TIllS TRANSPORTATION OR CONTRACT RELATL"G TO BAGGAGE OR A." 'I' PROPERTY UNLESS WRITTEN NOTICE OF THE CLAI:\I. WITH FCLL PARTICCLARS SIIALL BE DELIVERED TO THE CARRIER OR ITS AGENT AT ITS OFFICE AT TilE PORT OF SAILL"G OR AT THE PORT OF TER.\IINATION WITHIN THnny (30l DAYS AFTER TER.\IL"ATION OF TilE VOYAGE TO \\lIICH THIS CONTRACT RELATES; A."D IN NO EVE:'.. SIIALL A."Y SCIT FOR A."Y CACSE AGAINST THE CARRIER OR VESSEL WITH RESPECT TO BAGGAGE OR PROPERTY BE :\LU."TAINADLE CNLESS SCIT SHALL BE CO:\l\IENCED WITHIN ONE 11l YEAR AFTER TIlE TER.\IINATION OF THE VOYAGE. NO SCIT SIIALL BE :\L\INTAL"ED AGAINST THE CARRIER OR VE..<iSEL FOR DELAY, DETENTIO:-:, PERSONAL L"JllW. ILL~F~<;S OR DEATH OF THE PASSE~GER C:-:LE..<;S ....'RITTEN ~OTICE OF THE CLADI WITH FCLL PARTICULARS BE DELIVERED TO THE CARRIER OR ITS AGE:'.. AT ITS OFFICE AT THE PORT OF SAILL"G OR AT TlfE PORT OF TER.\UNATION WITIfIN SIX 16J MO~TIIS FROM TlfE 0,\'1' WilEN SCCII DELAY, DETE~T10~, Pt:RSO:-:,\L INJl1tY. IU.....ESS. OR Dt:ATH OF TIfE PASSENGER OCCl1tRED: ,\,"0 L" ~O E\'E:'.. SHALL ,\....'1' Sl'rr FOR A."Y CACSE MjAL"~. TilE c.UtRlER OR n:","EL WITH RF~'iPEct TO OF-LAY. DETE:\.IOS. Pt:R.~)St\1. INJlllY, 11.t.~~:..'lS OR 1lE,\TIIIlf: :\1..\1:'\1,\ 1:'\.\L1 L[, D;L1''&'' seIT SIIALL HE C\)~l\U:NCED WITllI:'\ O:>\F. III YF.AR fRO:'.1 Tilt: DAY Co~ 'Wf_t 1!I9<'\ :,\" rta.m h.Onll t's {,,,to Work. Wlsn \\\. , Not Reported in F.Supp. (Cite as: 1990 WI. 284517. .1 (\l.N.,!.)) \\lIEN TilE DELAY. DI.;n::-:TION, PERSONAL INJURY. ILLNESS OR DEATII OF TilE PASSENGt:R OCCURRED. NOTWITHSTANDING ANY PHOVISION OF A,.-;Y STATE OR COUNTRY TO TilE CONTRARY. On Mmch 6, 1988, while aboard the cruise, Helene Williams slipped and fell aboard the Sun Viking allegedly as a result of the presence of oil on the deck of the ship. :\lrs. Williams alleges in her complaint that as a result of defendant's negligence, she suffered severe and disabling injuries. Subsequent to sustaining these injuries, Helene Williams was treated aboard the ship, and immediately thereafter infonned representatives of her intention to file a claim. Shortly thereafter, she spoke with Deborah Higginbotham, a representative of Royal Caribbean. who allegedly infonned her that "Royal Caribbean would take care of all [herl injuries and would quickly settle [herl claim. She did not mention anything about filing suit within one year." Williams Affidavit at p. 5. Mrs. Williams avers to the following, additional relevant facts in her affidavit: .2 (61 Soon after returning from the cruise. I spoke to Anthony Picciurro of Southern Marine Claims Service regarding my claim. Mr. Picciurro told me I should not get a lawyer and lISllured me that Royal Caribbean would settle my claim quickly. In addition, Mr. Picciurro promised that Royal Caribbean would pay all my medical bills. At that time Mr. Picciurro also offered $4,000.00 in full settlement of my claim. I rejet:ted this settlement offer. 171 At various times during the first yem after my injury, ~tr. Picciurro intentionally diSCOUTaged me from filing suit and insisted that I should wait until after all my medical treatment had been concludE'd before I filed sui\. Illl The comments made by :\15 IIigginbotham and:\lr PlcciurTll we", inwntionally det:eptive and "lire made for the putllO~" of ddl\)'lng the iNltit utlOR of 1IUlt n<lsed on thew romtt'Wnts I was ll'd to bt>heve that Itdyal Page 2 Caribbe:m was accepting responsibility for my injuries and would pay my claim. In addition, I was led to believe that I should wait until after my treatment was complete to file swt. (9) On :'Iarch I, 1990, I filed a lawsuit in the United States District Court for the District of New Jersey due to the fact that my claim had not been settled. (I Q) At no time prior to the filing of the complaint on Mmch I, 1990 was I aware that it would be necessary to file suit within one yem of injury. (I I) At all times prior to the filing of the lawsuit, I was under the impression that the defendant would settle my claim and would pay my medical bills. (12) Prior to the expiration of the one year suit limitation, I provided :\Ir. Picciurro with copies of all my medical bills and other documentation supporting my claim. (13) I received a copy of the ticket for the cruise which has been attached as Exhibit A to defendant's motion for summary judgment in the mail. At no time did Royal Caribbean infonn me that any suit for damages would have to be filE'd within one year. (14) After reviewing the ticket for my cruise, I was not aware that any lawsuits had to be institutE'd within one yem. (15) When I reviewed the one year suit limitation provision contained in the ticket, I did not understand it. In fact., I was under the impreSllion that it would apply only to the ext4!nt that it was not inconsimnt with New Jersey state law. Despite the alleged statements made by defendant's agents. by at least October 27th, 1988. plaintiff retained the fmn of White and Williams to handle her personal injury claim. In an October 27. 1988 letter from Michael O. Kassack. Esquire, of \\1\.114' and Williams, to Anthony Plcmll"\'o of Southern :\1llJ'ine Claims Service, he "late!l: C"pr. ' W""t \~ X" ClAim to Onll' I:S Go.! W"ru \\rSTI.\\\' \ Not Reported in F.Supp. (Cite as: 1990 WL 284517. .2lD.N.J.)) Please be advised that I ha\'e been retained to represent Helene Williams with respect to an accident occurring on March 13, 1988 on the Sun Viking cruise. Helene has already submitted a number of medical bills and we will be submitting further documentation as times develops (sic). Please feel free to contact me regarding this case. Suit was instituted in the United States District Court for the District of :-Iew Jersey on March I, 1990 over 1 year and \1 months from the date of the accident. Subsequently on April 17, 1990. an amended complaint was filed. ;n July 10, 1990, defendant. Royal Caribbelin filed the instant motion for sumIn81')' judgment on all counts of plaintiffs' complain~. According to defendant, the action was not commenced within the one year limitation period set forth in paragraph seven of the voyage ticket and consequently, the claim should be treated as time barred. n. DISCUSSION A. Summary Judgment "3 The standard for granting summ81')' judgment is a stringent one. A court may grant summary judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. Wcl; see Hersh v. Allen Prods. Co.. 789 F.2d 230, 232 (3d Cir.1986l; Lang v. New York Life Ins. Co.. 72! F.2d 118. 119 (3d Cir.19831. In deciding whether there is a disputed issue of material fact the court must detennine all doubt in favor of the non. moving party, ~teyer v. Riegel Prods. Corp., 720 F 2d 303. 307 n. 2 (3d Cir.19831. c:ert. denied. 465 U,S. 1091 1\984l; Smith v. Pittsburgh Gage " Supply Co. 46-1 F.2d 8iO, 874 (3d Cir.I972I. The threshold inquiJ'y is whether there are any "genuine factual issues that properly can be resolved only by a finder of fact because they may reuonably be resolV1!d In favor of either party." A.niHJ'lIOn v Liberty Lobby, lnc. 477 US 242.250 119861 ~nt Suprenw C"W1 d.>clsions mand.l\te that a "motion for 5Wnm.vy Judgment mullt be Page 3 granted unless the party opposing the motion can produce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye & Sons. Inc., v. Fidelity Dank, 813 F.2d 610, 618 (3d Cir.19871 !Decker, J., concurring) (citing Anderson, 477 U.S. 242 and Celotex Corp. v. Catrett, 477 U.S. 31711986)). Moreover, once the moving party has carried its burden of establishing the absence of genuine issues of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." :\latsushita Elec. Indus. Co. v. Zenith Radio Corp.. 475 U.S. 574, 586(1986). Thus, if the non.movant's evidence is merely "colorable" or is "not Significantly probative," the court must grant sununary judgment. Anderson. 477 U.S. at 249.50. B. Limitation on Ticket 46 U.S.C. t 183lbhl provides: Ii It shall be unlawful for the manager, agent master or owner of any seagoing ves&el ... transporting passengers or merchandise or property from or between ports of the United States and foreign ports to provide by role. contract. regulation. or otherwise a shorter period for giving notice of, or filing claims for loss of life or bodily injury, than six months. and for institution of suits on such claims than one year. such period for institution of suitt to be computed from the day the death or injury occurred. Clauses such aa in issue in the present CllllC. and which are specifically authorized by the aforementioned federal statute, have been addressed by the courts as far back as a century aco in The ~ajestic, 166 U.S, 3i5 (U19il and most A'Cently by the Third Cirtuit in Morek v. ~lorpon Two. Inc., 817 F2d 2~2 (3d Cir 1ge7l !:l :\tore ll. tll\! Third C imllt aft\nned . di5trict court', Ol"der which granted SUJrIIlW'Y ~nt to a mUw rohip due to pl&intll'l'a fAlIIlN 10 imIt\au _t wIthin tlw l-'- Pf"C1"Ibed en the puMlllfiU tidll~t In tlIat e_, plalnulT .ust.:uned petWna! i~ (\,~ . WRI I~ Sa fh..m I" Ontf t'S fl.w! "'Mil.. \\ rS'1L\W \ Not Reported in F.Supp. (Cite as: 1990 WL 284517, .3 (I).N..J.)) while aboard a vessel but did not institute suit until over one year had passed. The district court granted summary judgment and concluded both that the contractual limitation of liability was valid and that it was reasonably communicative. Marek. 817 F.2d at 244-45. .4 In afilnning the district court, Chief Judge Higginbotham recognized that in such cases, the most relevant issue is not whether the time limitations are pennissible. but rather, whether the time limitations for suit are "reasonably communicative". Id. at 245. In resolving such issues, Chief Judge Higginbotham set forth the following reasoning: [tlhis detennination, in turn, is best understood as a pair of distinct legal examinations. One focal point is the adequacy of so-called "warning language" often found on the front cover of a cruise ticket. directing a passenger to read the particular tenns inside the ticket. The other focal point is the ticket tenns themselves, and concerns such physical characteristics as the location of the terms within the ticket, the size of the typeface in which they are printed, and the simplicity of the language they employ. The question is thus whether, "taken together, the various notices and provisions of this cruise ticket contract" suffice legally to give effect to the time limit it contains (cit:ltion omittedl. . . . The seminal opinion in this field. as in so many othen, is one authored by Judge Heruy Friendly. In Silvestri v. Italia Societa Per Alioni Di Navigazione, 388 F.2d 11 (2d Cir.I968I. Judge Friendly concluded that "the thread that runs implicitly through the cases sustainin( [such cruise ticket time limitations! is that the steamship has done all it reasonably could to "'am the pas&engt'r that the ternu of contract affl'Cting his legal rights" Id at 17 As the distnct court recogniwd. hewn"r. Uus Iltatt'ment of th.. l~al tm. if taken lllt>rally. is simply too rigid. Thi>re is 1l<1 ..tuallan "heN from hind8l(ht. nne could fl\lt im.tg1 ne the Page 4 shipowner doing some little bit more to draw attention to the limitation clause.... Thus, even though the courts continue to use the "all it could reasonably could" language, application of the standard involves notions of reasonableness and not hypothesizing some further step the shipowner could possibly have taken. We therefore follow in the wake of those courts, including those in our Circuit, that have adopted the more practical "standard of reasonable communicativeness.... " Id. at 245. citing. Shannon, 640 F.Supp. at 374; Valenti v. Home Lines Cruises, Inc., 614 F.Supp. I, 4, lD.N.J.19841; Strauss eX.re. Strauss, 613 F.Supp. at 7; Gardner v. Greek Line, 388 F.Supp. 856, 857 (~1.D.Pa.1975). The passenger ticket in ~Iarek, which is strikingly similar to the ticket in the instant matter. contained the following warning which was printed in capitalletten;: ACCEPfA."CE OF TillS TICKET CONSTITUTES A CONTRACT. THE TER.\lS A."D CONDITIONS OF WHlCH ARE SET FORTH INSIDE. PLEASE READ CAREFULLY. Next, the ticket contained. on the second page. the following statement: Conditions of the Contract Acceptance of thiI ticket shall constitute an acceptance by the passenger, as that word has been defined, of all the terms and conditions set forth herein. os Finally, a third warning, also in bold letters stated: ACCEPfA."CE OF THlS TICKET CONSTITUTES A CONTRACT. READ TER.\lS A."D CO~mlTlONS CAREFULLY. Plaintiff in :Marek. lIS plaintiffs' do herein. maintairwd that the afo",m..ntioned clause. did not n>a!lOnably commUNcate the uiltt'nce and imllOrt~ (If th.. terms of the c:ontrlld. ~Iarek. i'\li F 2d at :.H6 The court disav-! W\th pliUntiff and ooled that the notice pI"lVIS.OM did wbat was reasonable to C.>pf' '\\,,,'1 I ~~ N,) Cl.;W\\ to On, l.::; ('"".. \\\"ks \\l~lu\\\' Not Reported in F.Supp. <Cite as: 1990 WL 284517, .5 <D.N.,J.ll communicate that the terms of the contract existed and hence ought to be read. Further, the court upheld the reasonableness of the provisior. notwithstanding the fact that the ticket did not have warnings speCifically directing the passenger to the limitations clause. Recognizing that normally, "cases in which the carrier's liability limitations have been honored generally involve tickets with conspicuous warnings directing the passenger's attention to the terms contained elsewhere," the court nonetheless held that "no case stands for the proposition that a warning is legally insufficient unless it includes explicit references naming each of the contractual terms or conditions having the potential to affect the legal rights of passengers. It is sufficient that the ticket contains three conspicuous warnings directing a passenger's attention to the terms and conditions inside the folder." Id. at 246. Finally, the court rejected plaintiffs argument that the ticket's print was too small to read. The court noted that the print was not "so muddled or illegible as to be unenfon:eable." More importantly. tht' court recognized that "the type size in which [the time limitationsl clause is printed is not the significant mattt'r; there is both ample time and powerful iru:entivt' to study tht' passage contract ticket promptly after a loss has occurred." Id. at 24i. citing, Lipton v. National Hellenic Am. Lines, 294 F.Supp. 308,311 <E.D.N.Y.I9GB). Applying the ~tarek. priru:iples to tht' case at bar, the court conc1 udes that as a mattt'r of law, the various notict' and other pro\'lSIOns of the contract when taken together suffice legally to give e!Tect to the time limitations it contains. Initially. plaintiff maintalns that "Royal Caribbean did not explain any of the provisions contairwd in the ticket. In fact at not time prior to the filing of SUIt of March I. 1990, did Royal Caribbean explain the existence of the on year IUlt limitation to tM plaintiffs (emphuis SUpplied) . Plaintiffs lIJ'1lUIlWnt stnltt's the court 1\5 illusory SUite it appean that she 15 n-qumllg Page 5 vocal confirmation from defendant of the limitation period. Notwithstanding the fact that defendant has no such duty, plaintiff in her own affidavit admits to having reviewed the ticket and the one year limitation. Having concludt'd that the ticket is reasonably communicative, see infra, defendant owes plaintiff nothing more. Plaintiff specifically challenges the reasonableness of the notice provision by stating that the ticket did not make a "reasonable e!Tort to warn passengers of liability limitations" because the face of the ticket [did notl cont3in conspicuous language warning the passenger's of the contractual terms contained in other material furnished by the carrier. Plaintiffs' Brief In Opposition at 9. However, tht' clause of the ticket did in fact direct plaintiff to read all of the clauses, and is not unlike the notice provisions in Marek. As Marek. informs, no case stands for the proposition that a warning is legally insufficient unless it includes having explicit refereru:es Itol contractual terms ... [which havel the pott'ntial to affect the legal right of passengt'rs. . .6 Faced with tht' \'alidity of the limitations clause and the consequent dismissal of their claims. plaintiffs maintain that "defendant has wai,'ed and is estopped from asserting the one year suit limitation provision." Brief at 3. According to plaintilTs. soon after the cruise ended. Mrs. Williams came into contact with Anthony PicciWTO. representative from Southern :\Iarine Claims Service. Plaintiff avers that PicciWTO informed her that she should not obtain a lawyer since Royal Caribbean would promptly settle her claim. Williams Affidavit at "6.8. Further, Wilhams states that PicciWTO told her that she should not Ill... suit due to the fact that she was &till receiving medical treatment Mr. Pltcll1TTO purportedly represented that ckf..ndant ""Quid talLe care of all of plaintiff. mediCal bills and o!T...red 54.00000 in full wtU..ment of Mr c1aima, ...hich was ultll1\3tely rt'Jt'Ctl'd by plaintiff AerordilllJ to I'blntiff. w ....hed on these comments in di"Ctdlllg not to nIt! ~wt until :\IM'Ch I. 1990 C~pI' , W..lt 1\I!l'O ~o ClaIm t., tlnll l" S ('o(l\'t W,'rko \ \ rSrI ...\\\' Not Reported in F.Supp. (Cite as: 1990 WL 284517, .6 m.N..J.)) The equitable doctrine of estoppel was described by the Third Circuit in Burke v. Gateway Clipper, Inc., 441 F.2d !J.l6 1:1d Cir.1971l as follows, [tlhe equitable principle which will allow "no man to take advantage of his own wrong" [and] will prevent a defendant, whose representations or other conduct have caused a plaintiff to delay filing suit until after the running of the statutory period, to assert the statute of limitations as a a bar to the action. . . . The nature of the representations and of the conduct of the defendant are of crucial significance in determining if the plaintiff is to be allowed to invoke this equitable principle of estoppel. This is a question of law to be determined by the court. In a motion for summary judgement. the burden is on the plaintiff to present facts, in accordance with Fed.R.Civ.P. 56<cl and (el, which iftrue would require a court as a matter of law to estop the defendant from asserting the statute of limitations (emphasis supplied) (citation omitted). Thus, a plaintiff must do more than prove inequitable conduct on the part of the defendant. Even accepting as true such behavior, a plaintiff seeking to invoke this equitable doctrine must come forward with sufficient facts which infer that such conduct actually caused her delay in filing suit. It is the absence of the element of causation that is fatal to plaintiffs' estoppel argument. When the sequence of events in this C:J.Se are reviewed, it is evident that the failure to file IUit was not due to any action of the defendant. As early as October 27, 1988, plaintiffs had I'l'tained counsel and apparently no further communications had talen place betwl!en any agent of defendant and p!l1lntiffs. In fact. it IS uncontroverted that ''1ccil1tT'O never communicak'<i with plaintiffs' counsel Further. the v..ry fact that pli\lntiJTs ...1""",<1 coWIMI within th.. ollt! )'ear Iimitall"" pt'nod belies any inf..l'l'nce that !.he reiit'd upon :any .tate_nt of the def..ndmt to l't'fr:t.n from Page 6 filing suit. To the contrary, it is the court's conclusion that this is clear evidence that she ignored the advice. .7 What can be gleaned from the submissions to this court, both by plaintiff and her counsel, is that the sole reason this action was not filed until after the one year limitation period had lapsed was the apparent unfamiliarity counsel had with the applicable limitations period. For example. in plaintiffs' brief, it states, "there is no question that the plaintiffs' cause of action was commenced within two years of the date of irijury." This comment, when coupled with the fact that the action was filed within days of the two year period, suggests that plaintiffs' counsel was under the assumption that this simple negligence action was governed by ~ew Jersey's two year limitations period for personal injuries. Plaintiffs' reliance on Keefe v. Bahama Cruise Line, Inc.. 867 F.2d 1318 <lIth Cir.19891, is misplaced. In that case the court concluded that a defendant who misled plaintiffs attorney into thinking a settlement was complete would be equitably estopped from invoking the one year limitation on the passenger ticket. In that case, defendant falsely stated to plaintiJl"s counsel that defendant had secured a I'l'lease of liability from plaintiff and had paid her medical bills in full. The court found that there it was this misrepresentation which caused plaintitrs counsel to delay filing suit until after the limitation period had lapsed. In the present case, no such reliance took place. In fact, the uncontroverted affidavit of Picciurro reveals that he did not contact plaintiffs' cou.nsel at all after his l't'CCipt onlT. Kosaa.:k'8 October 27, 1m letter. Further, plaintiff has not provided the court with any eVidence that defendant contacted plaintiff or ht-r coul\SO'l after this dale Thus. the fl1llure of plalntlffs' counsel in filing SUit, unlike in K.,.,fe, 'us nol th" result of nlTum4tl ve 5t3tf>lft<!n18 of ,k-f..nd.~t, but rat""r, the actIOns. or .n;Kllon. "f pl.ltnllffs, Ctlunsel EH'n Iud dt-fendanl rt'ntactl'<i pl~ntilT'.' cou"",,1 llnd Informed hun that tlettlement Copr' W.'lIt 1!~:'\ffCl.ltmwl)n.. \,:-; {<on W.'rks \\ l:.'llL\\\" Not Reported in F.Supp. (Cite as: 1990 WL 284517, .7 (I).N.J.)) negotiations were pending, this does not excuse the failure to institute suit. As a district judge in this district has previously held in an identical case, There was no reason for plaintiffs attorney to rely [on defendant's! letter as a basis for not filing suit within the time limits set forth in the contract. In his responsibility to his client. plaintilfs attorney should have filed suit to protect her claim, and continued to pursue settlement while suit was pending. Plaintilfs attorney cannot now correct his error by means of a dubious theory of equitable estoppel. l\lichelotti v. Home Lines Cruises. 1986 A.l\tC. 480 lO.N .J.1985) (Debevoise, J.l C. Cross motion to amend In its motion for summary judgment, defendant argues that it was the general sales agent for a disclosed principal, Royal Caribbean, Ltd., and is therefore not the proper party defendant. Plaintiffs respond to this contention by requesting to amend the pleadings to name Royal Caribbean, Ltd., pursuant to Fed.R.Civ.P. 15(c), which provides that an amendment of a pleading changing the party against whom a claim is asserted relates back to the orilrinal date of filing. As stated in the Nle, Page 7 The plain language of the rule indicates that a pleading can only be amended to relate back if the entity received notice of the action "within the period provided by law for commencing the action." Schiavone v. Time, Inc., 477 U.S. 21, 31 (985) ("The linchpin is notice and notice within the limitations period. ") In the present action, it is beyond dispute that plaintiffs' complaint against Royal Caribbean Cruise Line, Inc., was not filed within the applicable time period. Further, the amended complaint seeking to name Royal Caribbean, Ltd., a party covered by the time limitation in the ticket, is likewise time barred. As such, and because an amendment of the complaint would be futile, plaintiffs' request shall be denied. m. CONCLUSION For the aforementioned reasons, defendant's motion for summary judgment shall be granted. Additionally, plaintiffs' motion to amend its complaint shall be denied. An appropriate order follows. END OF DOCUMENT .8 [w ]henever the claim or defense asserted in the amended pleading arose out of the conduct. tranaac:tion, or ocCWTence set forth or attempted. to be set forth in the orilrinal pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against ..hom a claim is asRrted relates back if the forellOing provision i. aatiafled and. within the period provided by law for commencing the action against the party to be brought in by amendment that party (J) haa n!'C1.!ived such Illltice of the action that the party ..ill not be prl'judlced in maintaining hi. defense on the menta, and ell knew or should have known that. but for a rrtistw concenung the identity of the propu pany, the action wuuid have beton brouaht against the party iClmphasi. wppliedl . Copr. ~ \\'nt 1998 No Claim to on,. U.s Gon. Works \\ISfl.\\\' . Not Reported in F.Supp. 1994 A.M.C. 806 (Cite as: 1992 WL 609803 <D.N.J.ll Michael A. BERG, et 01., Plaintiff, v. ROYAL CARIBBEAN CRUISES, LTD., et 01., Defendants. Clv. A. No. 914957. United States District Court, D. New Jersey. Feb. 20, 1992. David P. Pepe, Ribis, Graham & Curtin ~lorristown, NJ, for plaintiffs. George J. Koelzer, John P. Flanagan, Ober, Kaler, Grimes & Schriver, Edison, for defendants. OPL"ION WOLIN, District Judge. .1 nus is a diversity action based on personal injuries sustained by plaintiff Laura Berg during the course of a c:nrise vacation booked with defendant Royal Caribbean Cruises, Ltd. ("Royal Caribbean"). Before the Court is the motion of Royal Caribbe&II for summary judgment on all counts of the complaint on the grounds that the contractual limitation of actions period had run before suit was commenced, and that as a matter of law Royal Caribbean is not estopped from asserting the limitation of actions provision. For the reasons that follow, the Court will grant Royal Caribbean's motion. BACKGROUND On Octllber 12, 1990, while on a honeymoon c:nrise, Laura Bera was i~ured on the bland of Labadee, a lICheduled port of call for the M.I V Sone of America, a vesael owned and operated by Royal Caribbean. Laura and Michael Bera haft allqed on information and belief that the pri,.ale beach facility where the injury occurred Will owned. leased. operated or otherw\1Ie uncWr the control of Royal Canb<<>an. MiehHI Uera has a1lqed a claim per quad rotlIIOl"tlwn amisit. . "\ \ t. II Page 1 Laura Berg's cruise passenger ticket contract stales prominently on the cover page: THIS IS YOUR TICKET CONTRACT. IT IS r:\IPORTANT THAT YOU READ ALL TER.\1S OF THlS COl'olTRACT. THIS TICKET IS NOT TRANSFERABLE AND IS NOT SUBJECT TO ALTERATION BY THE PASSENGER. (Berg Cruise Ticket Cover Page, annexed as Exhibit A to the Affidavit of Wendy Zepernick dated November 23, 1991). Paragraph 2(viil of the ticket contract sets forth a contractuo1 limitation of actions period. That paragraph stands out prominently from other provisions of the contract in that it is printed in upper case letters of a large type size. and is set forth in white print against a dark colored background, unlike the other terms of the contract. The second sentence of that paragraph states, in relevant part: NO SUIT SHALL BE MAINTAINABLE AGAINSf THE CARRIER OR VESSEL FOR ... PERSONAL INJURY... OF THE PASSENGER UNLESS ""RmEN NOTICE OF THE CLm!, WITH FULL PARTICULARS. SHALL BE DELIVERED TO THE CARRIER OR ITS AGENT AT ITS OFFICE AT THE PORT OF SAILING OR AT THE PORT OF TER.'vlINATION WITHIN SIX (6) ~lO~llS FRO~! THE DAY WHEN SUCH ... PERSONAL INJIJRY .., OF THE PASSENGER OCCLitRED; A."D IN NO EVENT SHALL A....Y SUCH SUIT FOR AJ.....Y CAUSE AGAINSf THE CARRIER OR VESSEL FOR ... PERSONAL INJURY... BE ~L\INTAINABLE UNLESS SUCH SUIT SHALL BE COl\r:\IENCED WITHIN ONE (1) YEAR FROM THE DAY WIlL... THE n' PERSOSAL INJURY OF THE PASSESGER OCCURRED. NOTWITusrA."DING AJ....Y PROVlSION OF LAW OF A.....Y Sf ATE OR COUNTRY TO THE CONTRARY. (Cruise Tick.et. annelled as Exhibit B to the Affidavit of Wendy Ze~rnitk. dated Sovember 23, 1991l. The lMrgs, throuah retained COUIlIIt!I. notified Royal Carib<<>an of their injuri.. and made a demand fur paylMnt ofSl50.000.00 in a letler dattd ~ptember 6. 1991. In the last Copr. e West \998 S<l Claim to Orie US. Gon Woru \ \l~l1.;\\ \' . Not Reported in F.Supp. (Cite as: 1992 WL 609803, *1 (D.N..J.)) paragraph of that letter, the Bergs' counsel stated that the offer would remain "open until October 8, 1991, at which time a Complaint will be filed." (Exhibit A to the Berg Brief in Opposition). *2 In response to the September 6, 1991 letter, Henry C. Hentschel, a claims adjuster for Royal CaribbelUl, wrote a letter dated September 25, 1991 in which he acknowledged that Laura Berg's injury "was an unfortunate incident albeit a very minor one", and stated that "We hope we can agree it is not law suit material". (Exhibit B to the Berg Brief in Opposition). Further, Hentschel wrote that Royal Caribbean "would be willing to settle with Michael and Laura Berg for $1500 plus any out.of.pocket expenses." <Id.l. Significantly, in a clear reference to the one year limitation period, Hentschel wrote in the last sentence of the letter: "We look forward to hearing from you before October 12, 1991." <Id.). The Bergs' counsel wrote a second letter to Royal Caribbean dated October 10. 1991, in which the settlement demand was reduced to $75,000. Inexplicably, the letter further states that the "offer remains open until October 28, 1991, at which time a complaint will be filed." (Exhibit C to the Berg Brief in Oppositionl. Apparently, after the one year limitations period had nm, on October 21. 1991, Hentschel informed the Bergs' counsel in a telephone convenation that the Bergs' claims were time. barred under the ticket contract. In a letter dated October 22, 1991, Hentschel memorialized the telephone conversation and further extended a seulement offer of $3000, a sum that Hentschel estimated would be expended by Royal Caribbean to answer any complaint filed by the Bergs and to file a motion for summary judgment based on the contractual time bar. lExhibit D to the Berg Brief in Opposition). On October 21, 1991. more than one year after Laura Berg sustained injury on Labadee. the &.... med suit in state court allell'ng thrYe counla of negligence. The complaint was amended on October 28, 1991 to add counts of bnach of the implit/d covenant uf llOOd faith Page 2 and fair dealing, and estoppel. Both of these counts are based on the correspondence between lIentschel and the Bergs' counsel. Count Four alleges that Royal Caribbean "Iullfed] plaintiffs into believing that meaningful settlement negotiations were taking place, only to use these negotiations to allow the contractual statute [sic] of limitations tu lapse." (Amended Complaint Fourth Count , 71. Count Five alleges that Royal Caribbean "misrepresented its intentions in continuing settlement negotiations" and that "plaintiffs have rightfully relied upon said misrepresentations to their detriment." <Id. at Fifth Count " 2. 3). Royal Caribbean removed this action from state court on November 13, 1991. It then med its answer and now moves for summary judgment on all live counts of the complaint. (F~l) DISCUSSION Sununary judgment shall be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file. together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 561c); see Hersch v. Allen Products Co.. 789 F.2d 230, 232 (3d Cir.1986). In making this determination, a court must draw all reasonable inferences in favor of the non. movant. ~Ieyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir.1983), ten. dismissed, 465 U.S. 1091, 104 S.Ct. 2144 11984). A. Counts One through Three *3 Limitations provisions in pauenger ticket contracts are enforceable. 10 long as they have been relUlOnably communicated to the passenger. Marek v. Marpan Two, Inc., 811 F2d 242 13d Cir.1987) P1aintitTs do not dispute that the limitationa provision was "reasonably communicated" to them in the ticlu~t contTIKt, Whether terms of a pusengw rontTIKt have been reallOnably communicated COpl'. · West 1998 ~Il Cla\J'll to One US GO\'l. Works Wl~ll.t\\\' t Not Reported in F.Supp. (Cite as: 1992 WI. 609803, *3 <D.N.J.I) is a question of law to be determined by the Court. Hodes v. S.N.C. Achille Lauro, 858 F.2d 905,908 (3d Cir.198B). The Court finds that t.he limitation of actions provision was adequately displayed ir. the contract such that it was reasonably communicated t.o the Bergs. Unlike most of the contract, t.hat provision was set out in upper case letters and was print.ed in white on a dark background. Additionally, the type size used is larger than is used for other t.erms of the contract. Last, on the very first page of the contract, the passenger is told, in similarly large upper case print set out on a dark background, that it. is important to read all terms of the contract. A similar provision was found reasonably communicative by the lat.e Judge Mitchell H. Cohen of this District in Williams v. Royal Caribbean CruiSE' Lines, Inc., 1991 A.~I.C. 237 (O.~.J.1990). This Court finds that Williams is persuasi ve authority. Hence, the limitations provision is enforceable against the Bergs to the extent that it is applicable. The only issue raised by this motion is whether the limitations provision in Laura Berg's ticket contract is broad enough to encompass claims arising from a passenger's activities on land at 1\ scheduled port of call. Royal Caribbean asserts that the contractual provision bars any claim against Royal Caribbean that arose during the cruise and that was not. rued wit.hin one year of the OCCUITeru:e. Berg asserts that she is suing Royal Caribbean in its capacity as an owner or operator of laM, and not "as a ship owner or operator." (Berg Brief in Opposition at 7). Therefore, she contends that the contractual provision simply does not. apply to this action. In Hodes, the Third Cirtuit held that A passenger ticket for an QCl!an voyage is a maritime contract. Acconiingly, whether ticket conditioltli fonn part of the passenger's contract and the effect such condit.ions should be afforded are matters governed by the general maritime, not the 1()(a1 state. law. Hodea. 858 F 2d at 909 (citations omitted). Thus, the breadth of application of the limitations proviSIon of Laura !krg's ticket Page 3 contract is a quest.ion of federal maritime law. IFN2] The parties both concede that there is no extant case law authorit.y in which a plaintiff was injured, at a scheduled port of call during the course of a cruise, on land owned by the carrier, and precluded from suit by a time limitation contained in a passenger ticket contract. Nevertheless, that plaintiff was injured on land instead of on board the cruise vessel is not a critical distiru:tion per &e. What. is critical is whether the contract, by its terms, properly reaches actions arising on land owned by Royal Caribbean. After closely examining the language of the t.icket contract, the Court concludes that, as a matter of law, plaintiffs' claims are time.blllTlld. (FN3] *4 "Passenger" is defined in the contract as including "all persons t.ravelling under this ticket and his and their heirs and representatives." <Cruise Ticket, page I, Exh. B. Zepemick AfT.) (emphasis addedl. It is significant that "passenger", as that term is used in the contract, is defined as a person "travelling under" the contract. When plaintiff was injured, she had not yet reached her final destination. She had merely stopped <,ver briefly at a port of call scheduled on the cruise itinerary, and disembarked for anractivit.y "scheduled by the Royal Caribbean staff." <Affidavit. of Laura Berg. 1 2). It. was clear that Royal Caribbean's contractual obligations to Laura Berg had not. ended, and that she would ret.urn to the vessel to continue her travels. She was therefore clearly "trave1l.i.ng under" the ticket. contract. at \.he time of her injury. Thus, under the plain language of the ticket. contract. at the time of her injuries, Laura Berg was a "passenger" within the meaning of the contract, if not within the meaning of the general maritime law.IF;';4] Further, 'Carrier" is defined. in relevant part, as "Royal Caribbean Cruises, Ltd.' (ld.I. This deClnition is plain and unambiguous. It dOt'S not, as plaintiffs suggest. limit the meaning of "carrier" to Royal Caribbean acting in Ita capacity as carrier, U that tenn is Wldentood WIder general marit.ime law. To Copr. · Wut 1m ~o Chum to Orie. US, Govt. Works \\ T~Il..:\\\' I Not Reported in F.Supp. (Cite as: 1992 WL 6098(;3. '4lD.N.J.)) impose such n construction on the ticket contract would burden that contract with an artificial limitation at variance with its plain import. Thus, as with "passenger", see supra note 4, the tenn "carrier" is defined more broadly under the contract than it is by the general maritime law. Read together with the definitions, the actions limitation provision in the ticket contract unambiguously covers Laura Berg's causes of action arising from her injuries sustained on Labadee. Under that provision. any claim against Royal Caribbean in any capacity for personal injury sustained by Laura Berg while "travelling under the ticket" must have been commenced within one year from the date of that injury. The Bergs did not comply with this contractual requirement. Therefore, their claims are time-barred. B. Counts Four and Five Royal Caribbean has also moved for summary judgment on counts four and five of the Bergs' complaint. Those counts. which arise out of communications bet....een Royal Caribbean and the Bergs' counsel. allege that the contractual limitations period should not be enforced due to the bad faith conduct of Royal Caribbean in leading the Bergs' counsel to delay in filing suit. Although the Bergs set forth a claim sounding in contract as well as under the theol)' of estoppel, the Court will consider them together. since the claims are indistinguishable in substance. Under the cin:umstances clearly presented in the correspondence submitted to the Court. these countl border on the Cri valous. AI. these claims arise out of the tic ket contract. they are governed by federal maritime. not lUte. law. Hodes, 858 F2d at 909. This is not a novel iuue of law. Two other judges in this district have prniously rejeded similar claims. See Michelolli v lIame Lines Cruises, Inc. 1986 A.M.C t~, 485 ION J 191\5) l~beV1lise, Jl. alrd. 7116 .. 2d 1147 13d Cir 191\6) ltable\; Willi4lT\s. 1991 A:\t.C at 247 ICob..n. Jt Page 4 '5 I'laintitTs assert that Royal Caribbean "intentionally protracted the settlement negotiations as an attempt to use the one.year statute of limitations Isicl as a shield to the Bergs' claim." !Berg Brief in Opposition at 16). For any affinnative misconduct to create an estoppel, plaintitTs must have relied on that conduct to their detriment. Burke v, Gateway Clipper, Inc., 441 F.2d 946, 948 (3d Cir.1971) (conduct must have "caused a plaintitT to delay filing suit until after running of the statutory period"). (FN51 Further, as an equitable doctrine, estoppel "is a question of law to be detennined by the court." lei. Nothing in any of the correspondence contains any representation or promise that can in any way be characterized as misleading, nor has any evidence been presented that Royal Caribbean engaged in conduct that could be construed as misleading. Indeed. in its September 25, 1991 letter to the Bergs' counsel. lIentschel virtually brought the provision directly to the attention of the Bergs' counsel when he made express reference to the limitations period in stating that Royal Caribbean hoped to hear from counsel before October 12, 1991. the last day to file suit under the contract. Wholly absent here is any affinnative conduct intended to deceive plaintiffs into delaying the filing of their complaint. Thus, unlike in Keefe v. Bahama Cruise Une, Inc., 867 F.2d 1318111th Cir.19891. where the carrier's claims representative had falsely represented to plaintiffs attorney that a full release had already been obtained from plaintitT, id. at 1324, there is no basis in this record for finding that the Bergs' counsel had been led to delay the filing of their complaint. Royal was wuler no obligation to expreuly inform the Bergs' counsel before October 12. 1991 that It intended to invoke the Umitatiollll prevision. Further. plaintitTs' claim that Royal Canbbean's failure to invoke the six month notice of cll\lJtl provision IiOmehow collltituted at1\nnaU\"t! bad faith conduct is wil.hout merit. Any watver by Royal Canbbean of its rillhtl under W notice provision did not constitute a waiver (If its rillhtl und..r the act.iOIlll linutaUoft provision. or constitute a Copr. · W...t 1991\ :\" Cloum t"llnr t'S ,"mot Woru \\'IS11.\\\' ~ Not Reported in F.Supp. (Cite as: 1992 WL 609803, .5 (D. N.J.)) Page 5 misrepresentation as to its intent to waive that provision. Absent an express representation to that effect, there is no basis for finding bad faith. Plaintiffs' further claim that they relied on any conduct by Royal Caribbean in delaying the filing of suit is belied by their concession that "in the instant action [they) rightfully relied upon the [two year New Jersey] statute of limitations due to the fact that the il\iury occurred on land." (Berg Brief in Opposition at 15. 16) (emphasis addedl. Thus, plaintiffs h'lve not raised any issue of fnet as to the bad faith of Royal Caribbean. FN2. That i\ not In \ay thai the incident thai tlccurn:d nn land is a marilime ton governed by manllme law. II" likely mal me law governing pl.mlllr, claim, II mal of e,mer New Je"ey or II,JlI1. Tn the e~lenllhat any t:ommon law tort rights and duties have been altered by contract however. lhey are glwemed by marilime law. FN3. A, a claim deperulenl on me validil)' of Laura Berg', cI.lIn. M,chael Berg', per quod claim i, also barred by lbe lickel contrac!. Lieb v. Royal Canbbean CruISe Line. loe.. 645 F.Supp. 232. 235 ISD.N.Y.1986). CONCLUSION FN.. Under general marilime Law. Ihe lerm .p.l!'lsenger" has acquired meaning for purposes of defining the nghts of marine travelers ,"is-a-vis their camero Thu,. it ba, been said lilal -Ihe relationship of p.usengers and canier ... exists from shore to ,hip and ,hip 10 ,bore. - Chervy v. P"niMuLar anI1 Orienl..1 SIc..m Navlgallon Co.. 2.3 F.Supp. (S.D.Cal.l%l); ,ee ..I", l.1wlor v. Incre, Na....u SlCamshlp Line. lnc.. 1958 A.M.C. 1701. 1705 ID.Ma".1958l. Some aulhonues ha\>e con.1itrued the passen.er. curier reblkll\~hlp (Ven more broadly. su.ting bl it: doe. 001 end Unlt! '!be ve,sel ba, rC.lCbed Ihc pon of !be p""enger's desllllJlIOn and Ihc pa,senger bas left !be vessel ..nd the ,hipov.1lCr', dock or premises." I No"". Manin 1.. The t..w of Manrimc Penollill InJune, t 3.2 at 61 (.m ed.I990) l""'l'ba.1S added); ,ee Shulm"" v. COllipllgnic Gencralc Tran",'Lanllque. 1~2 F.Supp. 833. 836 (SD.N.Y.1951) lh.bdil)' limlUlhlO e"ending . '10 !be peIMld v.bde the p.."enger .ndlor hi. banate ... .;are on board the "fuel ... J.ndJ(\r me premises or the carrier' ... ctlvtn ... me relanonship befWftll IpLainld'tl and Ihe Idefcnd.Jnt1 ... pa.sene" anI1 c",ricr." iempba,,, .Jddedn. Thus. under dlis line of ..uthonl)'. . IS posslbl. llw Ihc Beras might ",,0 be considered "p""engen' ... .. llI.IllCr of law. ,ince Ihcy alleee WI Ihcy dcpaned dcm.d.lnl's v....1 ycr lJCver \ell !be dcfendaltl's prnrll>Cs before l.1l1ta BetC was injured. Bee..... Ihc C,_ <oncluoln dlII Ihc <o.lra"....1 ptm...""n " bro.sder llwllhc CfllCraI ....nnme il1Ierpret..llo... or lbe p........r..amcr reIaIM.n;hlfl. . need "'" de<ide ..belhcr ..... ShulllI.In "",...db w.,.. .p.....nge... .. .. _r of matd.tnW lAv- This case does not involve the inaction of a plaintiff not knowledgeable about limitations periods and the law. It involves an attorney retained by plaintiffs to protect their interests. What Judge Debevoise said in :\fichelotti is vel)' appropriate in this case: -6 There was no reason for plainti.trs attorney to rely on [defendant's] letter as a basis for not filing suit within the time limits set forth in the contract. In his responsibility to his client, plaintift's attorney should have filed suit to protect her claim. and continued to pursue settlement while suit was pending. Plaintiffs attorney cannot now colTCCt his elTOr by means of a dubious theol)' of equitable estoppel. r.fichelotti, 1986 A.M.C. at 485. Accordingly. summary judgment will be granted dismissing counts four and five of plaintiffs' complaint. For the rellSOlIS set forth above, Royal Caribbean', motion for sumnuuy judp!ent will be granted, and Counts One, Two. Three. Four and Five will be dismissed with pnjudice . FN I. The Ct>IIIt no',,, dlII !be bnce. ,uhmlllcd by Royal C..""""an did DOl comply ..tlh Local R.1e 278 in dlII Ihe) co.....incd no lilble "f c_ or IIble ..f ..lIlIM....."'.. AkhootCh ,m.:1 ',_I...... ..llh th.. 1'fqIllnl1lt1ll .. 001 flll\m:td. lhc Nle " .. pl.1<e '>t .. ....""'. and Ihe C...... I'ffltn tha. . be <omrhcsi ..tdl k' f.1<~...", lhc n......' u... (-I """'f !met';. 1'N5 Aklt.lIl.h BlUh IO,,~.\ISI . ,-..,.. as ''l'I'''''"'' k' "_a<lIIOl. IIm_ pon>d. dleft IS 110 Copr · Wflt I~ ~o l'141m to Onll US Govt. Works \ \"l 511.'\\ \' t 97-1288 CIVIL I laving reccived their tickets two or three days before departure. the plaintiffs new to Florida on February 22.1997. Two days later, while aboard the Splendour of the Seas, Ms. McKain Toomey discovered somc vaginal spotting. She telephoned her husband, a physician. who concluded that his wife had had a miscarriage. He indicated that there was no mcdical emergency. that his wife should relax and enjoy herself and continue her vacation. lie did suggest. however, that she infonn the ship's doctor of what had occurred. Again according to the complaint. when the plaintiffs went to the ship's doctor. he declared an immediate medical emergency. opined that a blood transfusion might be needed. and that they would be removed from the ship. Despite protests from the plaintiffs that this was unnecessary. both women were evicted from their cabin. They were infonned that they would be transferred to a boat, containing medical personnel who would escort Ms. McKain Toomey to Curacao for treatment. They were, instead. transferred to what the)' describe as a ""tugboaC which contained no medical personnel. and whose crew spoke no English. Arriving for treatment (which the plaintiffs continued to believe wa.~ unnecessary). they were I\."quired to give the hospital a ""deposit"" of 52.000. D~spite the d\.'posil. no treatment was rendered. following discharge from the hospital. the plaintiffs l1ew to St. Maarten where the)' were to stay in a luxury hotel room. The accommodation were anything but luxurious. \\lh\.'1\ the two women reboarded the Splendour of the Se-dS on Fehruary 26. 1997. they found that they had been evicted lrom their cabin. had no place tt) stay and had. in any cwn!. missed the educational I<<tures which had been one of the purposes of the trir. It is un.Ji$pUt\."Il that the tid.(t is-."Il to both plaintiffs included a paraaraph C\'Itltlinintt a l,lf\IIfl scl<<Iklft dllU'll: II fCaIl, ~ t..>lktWli: ~ 97-1288 CIVIL complaint. The matter of cancellation is rclerred to in paragraph 10 of the ticket contract. It reads as follows: 10. Refunds for Passenger cancellations prior to sailing are limited to Carrier's refund policy. Passengers arc advised to consult the Details in Carrier's cruise brochure 1(1f the tenns of Carrier's refund policy. llte only "brochure" attached to the complaint makes reference in Section A to "Travel Arrangement I'rotection:' It provides for cancellation under certain circumstances: namely. if the traveler suffers an injury. sickness or death. the traveler is hijacked. quarantined. subpoena~-d or required to serve on a jury. has lx'Come the victim of a natural disaster or is directly in\'olwd in a documented traffic accident while en route to departure. We do not diseem any evidence of either the right to cancel or to receive a refund in the event that the traveler would take umbrage at a forum selection clause. Neither has the defendant admitted. in this case. that it would have refunded the fare. thr~-e days prior to the cruise. had the plaintilTs objected to the tcons and conditions of the ticket contract. Nor arc we otherwise troubkd by the argument that a forum selection clause ought to be fn.-ely bargained lor. Accordingly. we will deny the defendant's motion for summary judgment. We underscore that lllday's disposition of this case is based only on the record thus far adduced. We make this o~rvation in light of a comment in the plaintitTs' brief which we find curious. PlaintitTs note: How'C\u, since we arc ~ond l>nc ~ear frum the date the cause of action 3n>se. if this lcourtl re\~ itself and enforces the choice of li>Nm clause. it will dl<<tiwly dismiss the Amended (.'llI11r1aint lw~ the Plaintilf IIImJ on the COUI1's actkWl "hid\ l'-nnit1ed till: C~ 10 go fOl\\;srd in ""_~ Innia and lln~ht no Mlit in Fklfida. (tmpha..<J, aMedl- .