PENNSYLVANIA BASED CRUISE SHIP PASSENGER INJURED ON CELEBRITY CRUISE SHIP FILED SUIT IN PENNSYLVANIA. CRUISE SHIP MOVED TO DISMISS OR TRANSFER CASE TO SOUTHERN DISTRICT OF FLORIDA BASED ON FORUM SELECTION CLAUSE CONTAINED IN PASSENGER TICKET CONTRACT. DISTRICT COURT GRANTED CELEBRITY’S MOTION AND TRANSFERRED ACTION TO SOUTH FLORIDA.

Denise IRWIN, Plaintiff, v. CELEBRITY CRUISES, INC., et al., Defendants.

United States District Court, E.D. Pennsylvania.

Civil Action No. 12-4385. | April 2, 2013.

PROCEDURAL POSTURE:

Cruise Ship passenger injured aboard Celebrity vessel filed suit in Pennsylvania despite fact that passenger ticket contract contained forum selection clause selecting South Florida as the exclusive forum. Cruise line filed motion to dismiss and/or transfer.

OVERVIEW:

Plaintiff Denise Irwin purchased a ticket through a travel agent to take a cruise on a ship operated by Defendants Royal Celebrity Cruises, Inc., As part of the boarding process, she signed a boarding pass called an “Xpress pass”, which contains a forum selection clause requiring that any action commenced against Defendants in federal court must be filed in the United States District Court for the Southern District of Florida. On February 4, 2012, the first day of the cruise, Plaintiff slipped in a puddle of water on the deck of the cruise ship, the Celebrity Summit, and was injured. Plaintiff alleges that her injuries were caused by Defendants’ negligence. On August 2, 2012, Plaintiff filed the Complaint in this Court against Defendants for negligence. Defendants moved to dismiss the Complaint, arguing that this case is improperly venued in the United States District Court for the Eastern District of Pennsylvania because the forum selection clause is enforceable. In the alternative, Defendants seek the transfer of this case to the United States District Court for the Southern District of Florida. Plaintiff argues to the contrary, contending that she was never provided a copy of the Cruise Ticket Contract, and therefore could not assent to the forum selection clause because she was not on notice of its terms. She argues that Defendants have not produced a signed Cruise Ticket Contract, only a signed Xpress pass, which does not list the contract’s terms. Finally, she contends that she signed the Xpress Pass under duress, contending that “[s]he was given no choice; sign the Xpress pass [before boarding] or don’t get on the ship.” After analyzing the issue, court held it is apparent that the Motion to Transfer should be granted. Under all the circumstances, Plaintiff has not met her burden of demonstrating that enforcement of the forum selection clause would be unreasonable. Since the Court is granting the Motion to Transfer, the Motion to Dismiss the Complaint will be denied.

OUTCOME:

Court held that Plaintiff’s arguments are not persuasive, and granted the Motion to Transfer Venue and deny the Motion to Dismiss the Complaint. The case was transferred to the United States District Court for the Southern District of Florida. The Motion to Dismiss will be denied.

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RCCL’S MOTION TO DISMISS CRUISE SHIP PASSENGER INJURY CLAIM FILED AFTER ONE YEAR STATUTE OF LIMITATIONS AND IN WRONG VENUE, WAS DENIED SO THAT LIMITED DISCOVERY COULD BE CONDUCTED INTO THE ENFORCEABILITY OF THE PASSENGER TICKET CONTRACT.

Morty HOVA, Plaintiff, v. ROYAL CARIBBEAN CRUISES LTD. and Royal Caribbean International, Defendants.

E.D. New York.

No. CV 12-1358(DRH)(ETB). | April 30, 2013.

PROCEDURAL POSTURE:

Plaintiff Morty Hova brings this negligence action for damages arising out of injuries allegedly sustained while on a cruise ship owned and operated by defendants Royal Caribbean Cruises Ltd. and Royal Caribbean International. Presently before the Court is defendants’ motion which seeks to dismiss plaintiff’s Complaint as untimely under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) or, alternatively, to transfer this action to the United States District Court for the Southern District of Florida pursuant to 28 U.S.C. § 1404(a). For the reasons set forth below, the defendants’ motion is DENIED.

OVERVIEW:

On May 22, 2010, while Hova was a passenger on Grandeur of the Seas, he tripped and fell over a small platform on the deck of the ship that was intended by defendants to be utilized as a stage. According to plaintiff, the “platform was negligently placed, designed, and colored so as to obscure its presence to passengers traversing the ship’s deck.” As a result, Hova states that he sustained “severe and serious personal injuries.” (Based on the above incident, Hova filed a Complaint on March 20, 2012 which asserts claims of negligence under federal maritime law as well as New York state common law. Defendants argue that because plaintiff’s cruise ticket contract contains a one year limitation clause for personal injury claims, the Complaint, which was filed more than one year after Hova’s injury, should be dismissed as time-barred. The entire set of facts relied on by defendants, however, stem from assertions and documents outside the four corners of the Complaint. These materials include the Affidavit of David Banciella (“Banciella Aff.”) and two exhibits attached thereto, a “Cruise/CruiseTour Ticket Contract” (hereafter, “Ticket Contract”), and a “Charge Account & Cruise Ticket” (hereafter, “Cruise Ticket”). Defendants proffer three arguments as to why the Court may properly consider such evidence in deciding the instant motion to dismiss without treating the motion as one for summary judgment. None of the arguments advanced by defendants is persuasive. Defendants’ theory of dismissal hinges on establishing that the limitations clause in their passenger ticket contract was enforceable which, in turn, requires a showing that the contract provision was reasonably communicated to Hova. See Ward v. Cross Sound Ferry, 273 F.3d 520, 523 (2d Cir.2001). In examining whether a clause was reasonably communicated, courts look to “(1) whether the physical characteristics of the ticket itself reasonably communicated to the passenger the existence therein of important terms and conditions that affected the passenger’s legal rights, and (2) whether the circumstances surrounding the passenger’s purchase and subsequent retention of the ticket/contract permitted the passenger to become meaningfully informed of the contractual terms at stake.” Id. (internal quotation marks, citation, and brackets omitted). While the question of whether defendants reasonably communicated the contractual limitation to Hova is a question of law for the Court to decide, and thus appropriate to consider on summary judgment, see Palmer v. Norweigan Cruise Line & Norweigan Spirit, 741 F.Supp.2d 405, 412 (E.D.N.Y.2010), the present record is confusing and underdeveloped, especially on the issue of whether Hova was meaningfully informed of the contractual terms at issue. Because these and other facts which are relevant to the ultimate determination of whether Hova was meaningfully informed of the limitations clause in the Ticket Contract are lacking and/or unclear at this juncture, some reasonable expedited discovery limited to the issue of enforceability is warranted. The gravamen of defendants’ motion is that the forum selection clause in plaintiff’s Ticket Contract requires any suit to be brought exclusively before the District Court for the Southern District of Florida. Similar to the limitations clause, a forum selection clause must have been reasonably communicated to be enforceable. See Phillips v. Audio Active Ltd., 494 F.3d 378, 383 (2d Cir.2007). Having failed to present any other argument based on the above factors in support of transferring this action, and because the enforceability of both clauses hinge on whether they were reasonably communicated to Hova-an issue that will be fleshed out in the short term-the Court denies defendants’ motion to transfer at this time.

OUTCOME:

For the reasons set forth above, defendants’ motion is DENIED in its entirety. This action is respectfully referred to Magistrate Judge Boyle for purposes of establishing an expedited discovery schedule limited to the issue of enforceability. Subsequent to such discovery, defendants may seek leave to file a motion for summary judgment on this issue.