695 F.3d 1233 (11th Cir. 2012), 10-15840, Estate of Myhra v. Royal Caribbean Cruises, Ltd.

Docket Nº:10-15840.
Citation:695 F.3d 1233
Opinion Judge:RIPPLE, Circuit Judge:
Party Name:The ESTATE OF Tore MYHRA, Plaintiff-Appellant, v. ROYAL CARIBBEAN CRUISES, LTD., a Liberian Corporation, a foreign corporation d.b.a., Royal Caribbean International, Defendant-Appellee.
Attorney:Philip D. Parrish, Philip D. Parrish, PA, South Miami, FL, Eric Bluestein, Manuel Leon Dobrinsky, Freidin & Dobrinsky, PA, Miami, FL, for Plaintiff-Appellant. Jerry D. Hamilton, Michael John Dono, Robert M. Oldershaw, Hamilton Miller & Birthisel, LLP, Miami, FL, for Defendant-Appellee.
Judge Panel:Before TJOFLAT, PRYOR and RIPPLE,[*] Circuit Judges.
Case Date:September 21, 2012
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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695 F.3d 1233 (11th Cir. 2012)

The ESTATE OF Tore MYHRA, Plaintiff-Appellant,

v.

ROYAL CARIBBEAN CRUISES, LTD., a Liberian Corporation, a foreign corporation d.b.a., Royal Caribbean International, Defendant-Appellee.

No. 10-15840.

United States Court of Appeals, Eleventh Circuit.

September 21, 2012

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         Philip D. Parrish, Philip D. Parrish, PA, South Miami, FL, Eric Bluestein, Manuel Leon Dobrinsky, Freidin & Dobrinsky, PA, Miami, FL, for Plaintiff-Appellant.

          Jerry D. Hamilton, Michael John Dono, Robert M. Oldershaw, Hamilton Miller & Birthisel, LLP, Miami, FL, for Defendant-Appellee.

         Appeal from the United States District Court for the Southern District of Florida.

          Before TJOFLAT, PRYOR and RIPPLE,[*] Circuit Judges.

         RIPPLE, Circuit Judge:

         In the fall of 2009, Tore Myhra and his family vacationed on a cruise ship operated by Royal Caribbean Cruises, Ltd. During his voyage, Mr. Myhra fell ill, and he died sometime later. His Estate instituted this action against Royal Caribbean, seeking damages for his injuries and death. It alleged that a bacterial infection that he had acquired while on board Royal Caribbean's vessel had caused these tragic events. Royal Caribbean moved to dismiss the action for improper venue under Federal Rule of Civil Procedure 12(b)(3); it relied upon a forum-selection clause among the conditions in Mr. Myhra's passage contract. That clause required that all personal injury claims be litigated in the courts of England and Wales and be governed by English law. At all times relevant to this litigation, the United Kingdom was a party to the Convention Relating to the Carriage of Passengers and Their Luggage by Sea (the " Athens Convention" or the " Convention" ).

          The district court agreed with Royal Caribbean and dismissed the case. 1 The

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Estate now appeals; 2 it contends that the forum-selection clause should be invalidated both because it is against the statutorily expressed public policy of the United States, see 46 U.S.C. § 30509(a), and because its terms were not reasonably communicated to the Myhras.

         We conclude that 46 U.S.C. § 30509(a) did not prevent Royal Caribbean from including the forum-selection clause in the Myhras' contract. Nor do we perceive any procedural or substantive error in the district court's conclusion that the clause was reasonably communicated to the Myhras. Accordingly, the decision of the district court to dismiss the case was correct, and its judgment must be affirmed.

         I

         BACKGROUND

         A. Facts

         According to the complaint, Mr. Myhra, the decedent, was a citizen of the England who also resided in England prior to his death. He traveled on a Royal Caribbean cruise aboard the vessel Liberty of the Seas, which departed Miami on October 24, 2009, and returned to the same port on November 1, 2009. On October 28, 2009, while on the cruise, Mr. Myhra became ill and later was diagnosed with Legionnaire's Disease. He subsequently died, apparently as a consequence of the disease.

         Another Liberty of the Seas passenger, Jean Young, had become ill on a September 2009 voyage of the same vessel and also had died of what later was determined to be Legionnaire's Disease. The complaint alleges that the Centers for Disease Control and Prevention (" CDC" ) examined the two cases and determined that both patients were infected with an identical strain of the bacteria and " that the only common source" between the two patients was the Liberty of the Seas.3 The complaint also alleges that, during the times of these voyages, Royal Caribbean negligently maintained its on-deck water system, a situation that could have encouraged the growth of legionella bacteria, the source of Legionnaire's Disease. The CDC's investigation found no evidence of legionella on the Liberty of the Seas, but also concluded that " the ship had undergone extensive remediation efforts prior to [its] inspection." 4 Specifically, although the deck-washing system was not chlorinated during either Ms. Young's or Mr. Myhra's voyages, that problem had been corrected by the time of the CDC's inspection.

         B. District Court Proceedings

         The Estate brought this negligence action against Royal Caribbean in the United States District Court for the Southern District of Florida. Attached to the complaint was a document labeled " Cruise/CruiseTour Ticket Contract." 5 That document contained a forum-selection clause, specifically providing that any litigation was to be brought in the Southern District of Florida.6 The attachment does not identify, however, the applicable vessel or the dates of passage.

          Royal Caribbean responded to the complaint with a motion to dismiss. The motion argued that, contrary to the assertion in the complaint, " the applicable terms and conditions of carriage" required that any

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action be brought in the courts of England and Wales.7 The motion and its attachments set forth additional venue facts: According to the declaration of a Royal Caribbean official testifying from business records, in June 2009, Susan Myhra booked a Royal Caribbean cruise for herself, her husband (the decedent Tore Myhra) and their daughter, through a travel agency called " 1st4Cruising." 8 This agency is located in England.9 Over the course of the next several months, 1st4Cruising received five invoices from Royal Caribbean relating to the Myhras' trip, which it forwarded to the Myhras. Each invoice noted that, for passages booked in the United Kingdom, the U.K. terms and conditions applied and could be accessed from a specified web address. In October, Royal Caribbean also mailed travel documents to 1st4Cruising to be forwarded to the Myhras. On the first page of those documents was a notice that the terms and conditions were binding on guests and could be located at the back of the brochure. The terms and conditions contained a provision defining Royal Caribbean's " limit of liability" to be the limit imposed by the Athens Convention.10 The brochure also provided: " We both agree that any dispute, claim or other matter arising out of or in connection with your contract or your holiday with us will only be dealt with by the Courts of England and Wales." 11 Finally, the brochure provided that English law is controlling. According to the declaration of a Royal Caribbean official that was submitted with the motion, the cruise contract that was attached to the Estate's complaint applied only to another vessel, the Brilliance of the Seas,12 although the face of the document contains no reference to the ship or to other limits on its application.

          The Estate responded to the motion to dismiss by explaining that the only terms and conditions that it initially had been able to locate through the Royal Caribbean website were those requiring litigation in Florida. The Estate submitted a declaration from its attorney describing the manner in which the terms and conditions attached to the complaint were obtained. The attorney stated that, in January 2010 and again in February 2010, several months after the Myhras' cruise, he had visited the Royal Caribbean website and had printed the terms and conditions. Furthermore, the Estate argued that, even if Royal Caribbean's motion had identified the correct terms for the specific voyage at issue, those terms were unenforceable as against the public policy of the United States. Specifically, the Estate invited the court's attention to 46 U.S.C. § 30509(a),13 which prohibits common carriers transporting passengers and making use of a port of the United States from contractually limiting liability for personal injury claims; the Athens Convention, to which the United Kingdom was a signatory, would impose just such a limitation. According to the Estate, because the provision of the contract applying the Athens Convention would be void in the United States courts, the forum-selection clause, which would have the effect of enforcing

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the Athens Convention, also should be void.

         In reply, Royal Caribbean submitted a supplemental affidavit from its legal director. As an explanation as to why the terms were no longer displayed prominently on the website, she stated that the website itself had been " extensively modified" between the time of the Myhras' cruise and their attorney's website search.14 Royal Caribbean submitted that the forum-selection clause was presumptively valid under federal law and that none of the requirements for invalidating a clause were present in this case.

         The district court agreed with Royal Caribbean and dismissed the case. The court began by setting forth the rule that forum-selection clauses are presumptively valid and enforceable absent " a strong showing that enforcement would be unfair or unreasonable under the circumstances." 15 Turning to the facts before it, the court noted that the Myhras contended that the Royal Caribbean website was unclear; however, they did not assert that they had not received in the mail the travel documentation that contained the correct terms and conditions.16 Under these circumstances, the court concluded that the Estate had not demonstrated that the Myhras had agreed to the forum-selection clause in the contract " through fraud or overreaching," nor had it shown that " the chosen law would deprive [the Estate] of a remedy." 17 Accordingly, the Estate had " failed to make the strong showing required" to void a presumptively valid forum-selection clause.18 With respect to the Estate's principal argument regarding the application of the Athens Convention as a violation of the public policy of the United States, the court determined that it...

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