844 F.2d 50 (2nd Cir. 1988), 87-9081, Chasser v. Achille Lauro Lines

Docket Nº:87-9081, 87-9083, 87-9085, 87-9087, 87-9089 and 87-9091.
Citation:844 F.2d 50
Party Name:Sophie CHASSER, Anna Schneider, Ilsa Klinghoffer and Lisa Klinghoffer, as Co-Executrixes of the Estate of Leon and Marilyn Klinghoffer, Viola Meskin, Seymour Meskin, Sylvia Sherman, Paul Weltman, Evelyn Weltman, Donald E. Saire and Anna G. Saire, Plaintiffs-Appellees, v. ACHILLE LAURO LINES, the Lauro Lines s.r.l., Flotto Achille, Chandris Cruise L
Case Date:April 07, 1988
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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844 F.2d 50 (2nd Cir. 1988)

Sophie CHASSER, Anna Schneider, Ilsa Klinghoffer and Lisa

Klinghoffer, as Co-Executrixes of the Estate of Leon and

Marilyn Klinghoffer, Viola Meskin, Seymour Meskin, Sylvia

Sherman, Paul Weltman, Evelyn Weltman, Donald E. Saire and

Anna G. Saire, Plaintiffs-Appellees,

v.

ACHILLE LAURO LINES, the Lauro Lines s.r.l., Flotto Achille,

Chandris Cruise Lines, ABC Tours Travel Club, S.N.C. Achille

Lauro Ed Altri-Gestione Motonave Achille Lauro In

Amministrazione Straordinaria, Commissario of the Flota

Achille Lauro in Amministrazione Straordinaria, Chandris

(Italy) Inc., Port of Genoa, Italy, Club ABC Tours, Inc.,

and Crown Travel Service, Inc., d/b/a Rona Travel and/or

Club ABC Tours, Defendants,

Lauro Lines s.r.l., Chandris Cruise Lines, Club ABC Tours,

Inc., Crown Travel Service, Inc., d/b/a Rona

Travel, and/or Club ABC Tours, and Club

ABC Tours, Inc., Defendants-Appellants.

Nos. 87-9081, 87-9083, 87-9085, 87-9087, 87-9089 and 87-9091.

United States Court of Appeals, Second Circuit

April 7, 1988

Argued Feb. 16, 1988.

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Morris J. Eisen, P.C., Arthur M. Luxemberg, New York City, for plaintiffs-appellees Sophie Chasser, Anna Schneider, Viola Meskin, Seymour Meskin, Sylvia Sherman, Paul Weltman, and Evelyn Weltman.

Jay D. Fischer, Fischer, Kagan, Ascione & Zaretsky, New York City, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., for Klinghoffer plaintiffs-appellees.

William P. Larsen, Jr., Charles D. Cole, Jr., Newman, Schlau, Fitch & Burns, P.C., New York City, for Saire plaintiffs-appellees.

Raymond A. Connell, Healy & Baillie, New York City, for defendant-appellant Lauro Lines s.r.l.

Kirlin, Campbell & Keating, Daniel J. Dougherty, New York City, for defendant-appellant Chandris Cruise Lines.

Rubin, Hay & Gould, P.C., Rodney E. Gould, Framingham, Mass., A. George Koevary, Parker & Duryee, New York City, for defendant-appellant Crown Travel Service, Inc., d/b/a Rona Travel and/or Club ABC Tours.

Before KEARSE and MAHONEY, Circuit Judges, and GLASSER, District Judge. [*]

KEARSE, Circuit Judge:

Defendants Lauro Lines s.r.l. ("Lauro"), et al., appeal from an interlocutory order of the United States District Court for the Southern District of New York, Louis L. Stanton, Judge, denying Lauro's motion to dismiss the present actions on the basis of forum-selection clauses in the ticket agreements between Lauro, owner of the cruise ship ACHILLE LAURO, and plaintiffs, who were or represent passengers on the ACHILLE LAURO. The clauses provided that any suit by passengers against Lauro was to be brought in Naples, Italy. Plaintiffs have moved to dismiss the appeals for lack of appellate jurisdiction. For the reasons below, we grant the motion.

BACKGROUND

Plaintiffs, citizens and residents of the United States, were passengers, or are the executrices of the estates of persons who were passengers, aboard the ACHILLE LAURO on a Mediterranean cruise in October 1985 when it was hijacked by terrorists of the Palestine Liberation Organization ("PLO"). The passengers were held captive and terrorized by the PLO, and they have brought the present actions, informally consolidated below, to recover damages for physical and psychological injuries and for the wrongful death of Leon Klinghoffer.

Lauro moved to dismiss the actions on several grounds, including the ground that a forum-selection clause in each passenger ticket required plaintiffs to bring these suits in Naples. The district court denied the motion to dismiss. With respect to the forum-selection clause, the court stated that the touchstone for enforceability was "whether the ticket reasonably communicates the importance of its contract provision." Transcript dated October 21, 1987 ("Tr."), at 3. The court described the "cover reference" to the forum clause as "unobtrusive" and noted that the clause itself appeared in "tiny type." Id. at 4. Further, the court noted that though the ticket

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provided that the passenger " 'specifically approves' " certain clauses, the forum-selection clause was not among them. Id. at 5. In addition, though there was a place for the passenger's signature at the bottom of the contract, apparently none of the tickets was signed. In sum, while the district court termed the question of adequacy of notice a close one as to which reasonable persons might differ, id. at 4, it concluded that "as a whole ... the ticket does not give fair warning to the American citizen passenger that he or she is renouncing and waiving his or her opportunity to sue in a domestic forum over a contract made and delivered in the United States," id. at 5. Accordingly, the court denied the motion to dismiss.

Lauro and two other defendants have appealed the court's refusal to dismiss on the basis of the forum-selection clause. Plaintiffs have moved to dismiss the appeals on the ground that the denial of the motion for dismissal is an interlocutory order that is not appealable under 28 U.S.C. Sec. 1291 (1982). Lauro, which made no effort to have the court's denial on forum-selection grounds certified for immediate appeal pursuant to 28 U.S.C. Sec. 1292(b) (1982), argues that that denial is a final order insofar as it determines where the litigation will be conducted and that it is immediately appealable under Sec. 1291 pursuant to the Cohen doctrine, Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). We conclude that the order is not appealable and we therefore dismiss the appeals.

DISCUSSION

Section 1291 gives the courts of appeals jurisdiction to review "final decisions" of the...

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