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HomeMy WebLinkAbout97-4288 civilREBECCA FAERBER-CHRENCIK and PAULA MCKAIN TOOMEY, Plaintiffs Vo ROYAL CARIBBEAN CRUISES LTD., Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION-LAW NO. 1997-4288 IN RE: DEFENDANT ROYAL CARIBBEAN CRUISES LTD.'S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY AND HESS, J.J... ORDER AND NO W, this day of August, 1999, the motion of the defendant for summary judgment is DENIED. BY THE COURT: Peter Hansen Bach, Esquire Attorney for defendant Shawn A. Bozarth, Esquire Attorney for plaintiffs :rlm REBECCA FAERBER-CHRENCIK and · PAULA MCKAIN TOOMEY, · · Plaintiffs · CIVIL ACTION-LAW v. · NO. 1997-4288 ROYAL CARIBBEAN CRUISES LTD., · Defendant · COURT OF COMMON PLEAS CUMBERLAND COUNTY IN RE: DEFENDANT ROYAL CARIBBEAN CRUISES LTD.'S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY AND HESS, J.J. OPINION AND ORDER Before the court in this case is a motion for summary judgment by the defendant seeking dismissal of complaint. The motion contends that this action has been wrongly brought in Cumberland County, Pennsylvania, and that the complaint should have been filed in Dade County, Florida, pursuant to a contractually binding forum selection clause. The record before the court consists of an amended complaint, an answer, preliminary objections, a response thereto, and portions of the plaintiffs' deposition transcripts. According to the complaint, the plaintiffs are podiatrists who arranged, through a travel agency, for a cruise which was to commence on or about February 22, 1997, for the purpose of participating in continuing education courses and touring. The cruise included visiting islands in the Caribbean in the vicinity of St. Maarten aboard a ship called Splendour of the Seas. According to the complaint, the cruise was anything but splendid. 97-4288 CIVIL Having received their tickets two or three days before departure, the plaintiffs flew to Florida on February 22, 1997. Two days later, while aboard the Splendour of the Seas, Ms. McKain Toomey discovered some vaginal spotting. She telephoned her husband, a physician, who concluded that his wife had had a miscarriage. He indicated that there was no medical emergency, that his wife should relax and enjoy herself and continue her vacation. He did suggest, however, that she inform 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 informed 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 they describe as a "tugboat" which contained no medical personnel, and whose crew spoke no English. Arriving for treatment (which the plaintiffs continued to believe was unnecessary), they were required to give the hospital a "deposit" of $2,000. Despite the deposit, no treatment was rendered. Following discharge from the hospital, the plaintiffs flew to St. Maarten where they were to stay in a luxury hotel room. The accommodation were anything but luxurious. When the two women reboarded the Splendour of the Seas on February 26, 1997, they found that they had been evicted from their cabin, had no place to stay and had, in any event, missed the educational lectures which had been one of the purposes of the trip. It is undisputed that the ticket issued to both plaintiffs included a paragraph containing a forum selection clause. It reads as follows' 97-4288 CIVIL 6. 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 LITIGATED, IF AT ALL, IN AND BEFORE A COURT LOCATED IN MIAMI, FLORIDA, USA, 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. The defendant seeks enforcement of this clause and dismissal of the case in Cumberland County. As plaintiffs are, at this stage, beyond the one-year limitation for filing their action in Miami, Florida, applicable according to another paragraph in the ticket, they would be, for all intents and purposes, out of court. The plaintiffs counter that they did not receive adequate notice of the forum selection clause and/or had no opportunity to reject the clause and, therefore, it is not binding. The standard for granting summary judgment is well settled: A motion for summary judgment may properly be granted only if the pleadings, depositions, answers to interrogatories, 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. In passing on a motion for summary judgment, the court must examine the record in the light most favorable to the non-moving party. Salerno v. Philadelphia Newspapers, Inc., 377 Pa. Super. 83, 88, 546 A.2d 1168, 1170-71 (1988). The Supreme Court of the United States has upheld the validity of a forum selection clause virtually identical to the one sub judice. In Carnival Cruise Lines, Inc. v. 97-4288 CIVIL Shute, 499 U.S. 585, 111 S.Ct. 1522, 13 L.Ed.2d 622 (1991), the court found that petitioner could validly include a choice of forum for litigation in its passenger contract, without violating Congress' statutory prohibition against contractual clauses which unduly limited a vessel owner's liability for negligence. In Shute, the Supreme Court noted: Including a reasonable clause in a form contract of this kind, well may be permissible for several reasons: first, a cruise line has a special interest in limiting the fora in which it potentially could be subject to suit. Because a cruise ship typically carries passengers from many locales, it is not unlikely that a mishap on a cruise could subject the cruise line to litigation in several fora. Additionally, a clause establishing ex ante the forum for dispute resolution has the salutary effect of dispelling any confusion about where suits arising from the contract must be brought and defended, sparing litigants the time and expense of pretrial motions to determine the correct forum and conserving judicial resources that otherwise would be devoted to deciding those motions. Finally, it stands to reason that passengers who purchase tickets containing a forum clause like that at issue in this case benefit in the form of reduced fares reflecting the savings that the cruise line enjoys by limiting the fora in which it may be sued. Shute 499 U.S. at 593-94, 111 S.Ct. at 1527-28. The mere determination that a forum selection clause is reasonable does not end the inquiry as to whether or not it is enforceable. A passenger ticket for an ocean voyage is a maritime contract. Thus, whether ticket conditions form part of the passenger's contract and the effect such conditions should be afforded are matters governed by general maritime and not local state law. Hodes v. S.N.C. Achille Lauro Ed Altri-Gestione, 858 F.2d 905 (3rd Cir. 1998), cert. dism'd 490 U.S.1001, 109 S.Ct. 1633, 104 L.Ed.2d 149 (1989). Thus, our analysis of 97-4288 CIVIL the enforceability of a forum selection clause and specifically the adequacy of the notice of it is guided in large measure by decisions of the federal courts. It is important to note that in the Shute case as well as in another case relied upon by the defendant, Moraites v. Royal Caribbean Cruise Ltd., 1994 WL 405919 (N.D. Ill.), the plaintiffs conceded that they had received adequate notice of the forum selection clause. In this case, the plaintiffs make no such concession. There are more than several federal cases dealing with the adequacy of notice with regard to ticket contract provisions. As the defendant acknowledges, however, these cases involve the enforcing of a one-year limitation within which the passenger must file suit. One such case relied upon heavily by the defendant is Marek v. Marpan Two, Inc., 817 F.2d 242 (3rd Cir. 1987). In that case, Mrs. Marek and her traveling companion made arrangements for a cruise. They did not receive their cruise ticket folder until they boarded the ship for departure. Notwithstanding, the court ruled that the plaintiff had had adequate notice of the time limitation within which she was compelled to bring her action. Significant, we believe, to the resolution of the Marek case was the following language which appears in the opinion: In addition, [a]lthough a passenger may almost never read all of the fine print on the ticket upon purchase, or as pleasure reading in the berth the first night at sea, the same passenger might very well be expected to consult the multifarious terms and conditions of the ticket/contract in the event of an accident resulting in a loss or injury. Shankles v. Costa Armatori, S.£.A., 722 F.2d 861 at 865 (1st Cir. 1983). As a court once noted in a similar case, "the type-size in which [the time limitations] clause is printed is not the significant matter, there is both ample time and a powerful incentive to study the passage contract ticket promptly after a loss has occurred," Lipton, 294 F.Supp. at 311, and Marek cannot blame others- the ship owner, the company that 97-4288 CIVIL chartered the ship for this cruise, or even the anonymous printer or type-setter who "made" this folder and its paragraph six- for her failure to read it within six months of her accident. Marek, 817 F.2d at 247. In short, a passenger can easily, said the court, discern from the ticket the time limit within whiCh to bring an action after an injury occurs. It is not surprising that forum selection clauses are treated somewhat differently. There are, after all, no steps which can be taken after an injury which would alter or even address an unwitting selection of an inconvenient forum. For these reasons, we will be guided by the federal case law which has specifically addressed forum selection clauses. In this regard, the defendant, indicating that it knows of no court decisions to the contrary, states that the ticket itself and the delivery of the ticket constitute sufficient notice of the clause. In support of its argument, the defendant has provided copies of two cases which have not been reported in F.Supp.; Amadore-Aviles v. Royal Caribbean Cruise, 1997 WL 397741 (D. Puerto Rico) and Moraites v. Royal Caribbean Cruises, Ltd., 1994 WL 405919 (N.D. Ill.). In the Amadore-Aviles case, the plaintiff challenged enforcement of the forum selection clause because of the "inconvenience and expense" it would have caused her to litigate the matter in Florida instead of Puerto Rico. Expense and inconvenience to the plaintiffs is not, as yet, an issue in this case. In Moraites, the plaintiff also argued non conveniens and, in addition, asserted that Carnival Cruise Lines v. Shute was no longer the law in light of subsequent amendments to federal legislation. In resolving this case, we find the rationale in Coma v. American Hawaii Cruises Inc., 794 F.Supp. 1005 (D. Hawaii 1992) to be persuasive. Interestingly, neither side cited this authority. In the Coma case, the defendant sought to transfer the action 97-4288 CIVIL from Hawaii to California pursuant to a forum selection clause in the travel ticket. Like the instant plaintiffs, Mr. and Mrs. Coma had received their tickets two or three days prior to their cruise. The court upheld the validity of the forum selection clause and opined that its existence had been reasonably communicated even though Mrs. Coma did not see the cruise tickets and Mr. Coma did not read the terms and conditions of them. In the end, the court determined that the forum selection clause was unenforceable making the following observations' Under the terms of the comract, plaintiffs would have forfeited the entire ticket price if they canceled their trip at that time. See section 3 of Exhibit A. Therefore, plaintiffs did not have an option to reject the cruise contract without forfeiting several thousands of dollars. Cf Shute~l 11 S.Ct. at 1528 (cottrt noted that passengers had the option of rejecting the contract with impunity.). Defendants counter that although the situation has never arisen, AHC "would in all probability" refund the entire purchase price, less the $25.00 administrative charge and any airline penalties for cancellation, provided the passenger rejects the contract within a reasonable period prior to the departure date. See Gately Declaration. However, the ticket itself states that cancellation within 4 days of the departure date, "will result" in a 100% forfeiture. Under these circumstances, the court cannot find that the forum-selection clause as applied to these plaintiffs is reasonable where plaintiffs had no opportunity under the express terms of the contract to reject the forum-selection clause without forfeiture of the entire purchase price and the imposition of additional penalties. Coma, 794 F.Supp. at 1011, 1012. The record of this case as it pertains to cancellation of the cruise is scant indeed. We garner the following, however, from the various attachments to the plaintiffs' 97-4288 CIVIL complaint. The matter of cancellation is referred 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 are advised to consult the Details in Carrier's cruise brochure for the terms of Carrier's refund policy. The only "brochure" attached to the complaint makes reference in Section A to "Travel Arrangement Protection." It provides for cancellation under certain circumstances: namely, if the traveler suffers an injury, sickness or death, the traveler is hijacked, quarantined, subpoenaed or required to serve on a jury, has become the victim of a natural disaster or is directly involved in a documented traffic accident while en route to departure. We do not discern 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, three days prior to the cruise, had the plaintiffs objected to the terms and conditions of the ticket contract. Nor are we otherwise troubled by the argument that a forum selection clause ought to be freely bargained for. Accordingly, we will deny the defendant's motion for summary judgment. We underscore that today's disposition of this case is based only on the record thus far adduced. We make this observation in light of a comment in the plaintiffs' brief which we find curious. Plaintiffs note' However, since we are beyond one year from the date the cause of action arose, if this [court] reverses itself and enforces the choice of forum clause, it will effectively dismiss the Amended Complaint because the Plaintiff relied on the Court's action which permitted the case to go forward in Pennsylvania and brought no suit in Florida. (emphasis added). 97-4288 CIVIL The plaintiffs' view that our disposition of this matter on preliminary objections somehow resolved the question of the forum selection clause in their favor is, indeed, misguided. We dismissed preliminary objections in this case because the plaintiffs, unlike the plaintiffs in the Shute case, did not concede the question of notice. We made no affirmative finding that venue here was proper. Thus, the plaintiffs' proceeding with this case in Pennsylvania in lieu of filing a suit in Florida, even after our order disposing of preliminary objections, has been at their own risk. ORDER AND NOW, this 2 n.~t day of August, 1999, the motion of the defendant for summary judgment is DENIED. BY THE COURT: Peter Hansen Bach, Esquire Attomey for defendant Hess, J. Shawn A. Bozarth, Esquire Attomey for plaintiffs