When people take a cruise, 99.99% of them never consider how things will turn out if things go terribly wrong and the cruise line ends up being on the receiving end of a lawsuit. Tickets are bought, ships are boarded and the only thing on the agenda and mind is having fun. Thinking about hospitals, life-flights and lawsuits is the furthest thing from the mind of vacation planners, although it should be the first thing to consider when choosing a cruise line to sail with.
A quick look at cruise lines’ ticket terms of service indicates some shark infested waters for those passengers who had their dream vacation turn into a nightmare. A look at Celebrity Cruises’ Forum Selection Clause outlines that any suit resulting from a cruise where a passenger purchased a ticket, either directly or indirectly must be brought before the United States District Court for the Southern District of Florida located in Miami-Dade County, or if the federal court lacks subject matter jurisdiction, to a state court located in Miami-Dade County in the state of Florida. The Forum Selection Clause was upheld in a suit brought in Pennsylvania , Marilyn Freed v. Celebrity Cruises, Azamara Cruise and Royal Caribbean Cruise Lines, Case #NO. 08-3348.
In Carnival Cruise Lines, Inc. v. Shute, the case made it to the U.S. Supreme court on the issue of the Forum Selection Clause.The Court , in an opinion by Justice Blackmun, held the Shutes to their deal. The Court noted that Florida is not a random jurisdiction – Carnival is headquartered there and does much business there, and Washington does not necessarily make sense in the context of an accident off the coast of Mexico on a ship that left from California .
Justice Stevens filed a dissenting opinion, joined by Justice Marshall. Stevens dissented for several reasons including objections to contracts of adhesion created by parties who have unequal bargaining power, the fact that the notice of the forum selection clause was not made available to the purchaser until after payment was tendered and a lack of an opportunity for refunds at the point when the forum selection clause was disclosed. Stevens attached a copy of the original ticket to his dissent to show how only the most meticulous passenger would notice the clause and that notice might be in contention.
Forum Selection Clauses are not uncommon. For example, Ebay, a worldwide corporation, has one that specifies legal action must be brought in Santa Clara County, California where their headquarters are located . Ramada’s forum selection clause specifies New Jersey, where their headquarters are located. Though they have properties around the world, most Ramada properties and their franchises are in the United States .
Typically, the forum selection clause makes some reasonable sense. If you live in the U.S. , purchase the ticket in the U.S. , begin the vacation in the U.S. then return to the U.S. AND the cruise line office headquarters are in the U.S. the proper place to sue would be in the U.S. That was not the case however for Nina Janet Seung.
Maritime Lawyer and Cruise Bruise partner Michael Winkleman of prominent maritime law firm Lipcon, Margulies, Alsina & Winkleman, P.A, tells Cruise Bruise that in the case of Ms. Seung the selection clause was unreasonable, “Our firm is fighting for the rights of cruise ship passengers against unreasonable and unfair contractual terms that the cruise lines bury in their passenger ticket contract.”
Mr. Winkleman is indeed correct, it couldn’t possibly be more unreasonable in the case of Ms Seung. Winkleman says that Seung worked for the U.S. State Department for a combined period of 27 years, both before and after retirement. She purchased a cruise through Regent Seven Seas Cruises for a voyage aboard the Paul Gauguin.
Seung flew out of Los Angeles , California for Papeete in Tahiti . While boarding a tender she was severely injured, requiring numerous surgeries. Although Seung lived in California , she brought the suit in Florida , where Regent has its corporate headquarters, as do all major cruise lines. However, the fine print on the ticket specified that legal action must be brought in France . The reason for filing in Florida , Regent’s headquarters state, was due to the medical condition of Ms. Seung and the distance to France making it unreasonable for her to travel to France . More importantly, Seung doesn’t speak French. Any court proceedings would be in French, making it nearly impossible for her to fully understand the proceedings.
Further, it would require her to hire legal representation, who was not only well-skilled in maritime law but also was capable of speaking fluent French, the dialect actually spoken in France , not elsewhere. The France dialect is entirely different than say Canadian French, for example. Now, if you don’t speak English, but you file suit against a cruise line headquartered in the U.S. , you at least will find it easy to get a qualified maritime attorney who speaks English. If you have trouble finding one, you can ask me. Finding a French speaking maritime lawyer, is like looking for the money you tucked into the cabin safe after you return from a shore excursion.
Regent argued their ticket contract terms specified, “for all cruises which do not include a port of the United States , it is agree . . . that any and all disputes . . . shall be litigated and determined in Paris, France .” Even though the cruise line is headquartered in the U.S. and offers several U.S. cruises such as San Francisco to New York City , New York City to Montreal , Quebec, Canada and Montreal to Ft. Lauderdale, Florida , which is the city their headquarters are in.
Mr. Winkleman told Cruise Bruise the firm fought hard for Ms. Seung to be able to keep her case in the U.S. But, cruise line ticket forum selection clauses are difficult to overcome.
Michael Winkleman is well-known within the law community for the article he wrote on Forum Selection Clauses for the Florida Justice Association’s monthly publication, the Journal. Where he says, “Traditionally, forum selection clauses in contracts were not favored by American courts because they were considered contrary to public policy or that their effect was to oust the jurisdiction of the court. This view abruptly changed in M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L. Ed. 2d 513 (1972).”
Winkleman further documented that later the Supreme court over-ruled with a decision that specified, the forum selection clause at issue was a “freely negotiated private international agreement, unaffected by fraud, undue influence, or overweening bargaining power,” and held that “the forum clause should control absent a strong showing that it be set aside.” Bremen at 15, 92 S.Ct. at 1916.
Truth be known, in any industry, customers simply do not read every bit of contact language and run it by a qualified attorney before they purchase. Most simply assume the ticket contract is reasonable and fair. What passengers need to know is that the contract terms are reasonable and fair, for the cruise line only.
If you want to do business in the U.S., under U.S. law, from the beginning of your cruise planning to the time you come home, hopefully safely, you need to interact with companies that actually are bound by U.S. law not just those that appear to be, simply because they have a presence here. Even then, when it comes to the cruise lines, there is so much U.S. law does not cover, it boggles the mind.
Michael A. Winkleman is an active trial attorney handling personal injury, cruise line sexual assault and wrongful death claims. Mr. Winkleman is admitted to practice in all Florida State Courts, the United States District Court for the Southern District of Florida and the Eleventh Circuit Court of Appeals. Mr. Winkleman is a member of the Appellate Committee of the Florida Justice Association, as well as a member of the American Bar Association, the Dade County Bar Association and its Appellate Practice Committee and Judicial Outreach Committee, the Miami Dade Justice Association, the Florida Admiralty Trial Lawyers Association and the Southeastern Admiralty Lawyers Institute.
Lipcon, Margulies, Alsina & Winkleman, P.A are a high profile maritime law firm operating out of Miami, Florida. Their website says, “If you or someone you love has been searching for a maritime attorney please do not hesitate to contact our unique law firm for a free consultation. Lipcon, Margulies, Alsina & Winkleman, P.A is a law firm comprised of seven maritime attorneys representing injured plaintiffs since 1971.”