Effron v. Sun Line Cruises, Inc., 93 Civ. 0896 (MGC).
| Citation | 857 F. Supp. 1079,1994 AMC 2726 |
| Decision Date | 22 July 1994 |
| Docket Number | No. 93 Civ. 0896 (MGC).,93 Civ. 0896 (MGC). |
| Parties | Nettie EFFRON, Plaintiff, v. SUN LINE CRUISES, INC. and Sun Line Greece Special Shipping Co., Inc. Defendants. |
| Court | U.S. District Court — Southern District of New York |
Phillips Cappiello Kalban Hofmann & Katz, P.C. by Paul T. Hofmann, New York City, for plaintiff.
Walker & Corso by Scott A. Walker, New York City, for defendants.
Plaintiff sues for injuries allegedly suffered on a South American cruise. The ship's owner moves to dismiss on the ground that the forum-selection clause in plaintiff's ticket requires that her claims be brought in Greece. The tour operator who sold plaintiff her ticket moves for summary judgment on the ground that at all times it acted as agent for a disclosed principal. For the reasons discussed below, the motions are denied.
The Stella Solaris, which sails under the Greek flag, is owned by defendant Sun Line Greece Special Shipping Co., Inc. ("Sun Line Greece"), a Greek corporation. The ship's home port is Piraeus, Greece, although it spends several months each year cruising in the Caribbean and off the coast of South America.
Defendant Sun Line Cruises, Inc. ("Sun Line Cruises") is a New York corporation that markets cruises aboard the Stella Solaris and two sister ships, the Stella Oceanis and Stella Maris. Sun Line Cruises markets trips on the three ships. This name appears on the promotional materials distributed by defendants. A division of Sun Line Cruises called Sun Line Tours arranges air travel and issues airline tickets for customers taking particular cruises.
Plaintiff Nettie Effron, a 74 year-old widow, is a resident of Florida. In February 1992, she was a passenger on the "Jewels of South America Cruise." She arranged her vacation through a Florida travel agent who dealt with Sun Line Cruises in New York. The trip included air travel from Miami to Manaus, Brazil on February 12, passage on the South American cruise of the Stella Solaris from February 12 to February 28, and air travel from Buenos Aires, Argentina to Miami on February 28. Plaintiff's airline tickets were provided by Sun Line Tours and listed Sun Line Cruises as the charterer. In arranging her trip, plaintiff had no contact with anyone in Greece.
Plaintiff's ticket, which contains the passage contract on which defendant Sun Line Greece relies, is reproduced in its actual size in the Appendix to this opinion. The ticket consists of three double-sided leaves, each approximately 4" × 8½". The Sun Line logo and the words "Sun Line Cruises" appear in large type on the face of the ticket. In much smaller type is an "important notice" which states:
Please read carefully the terms of this ticket beginning on page 1 and continuing through page 4. All these terms are an integral part of the contract between passengers and the Carrier. In accepting this contract, you agree to the terms. Attention is particularly drawn to the Carrier's right of exemption and limitation set forth in Clauses 12 and 13 (pages 3 and 4).
It is only on the very last line of the ticket that Sun Line Greece is identified as the "operator and carrier," i.e. the putative contracting party.
The forum-selection clause appears in clause 13 on page 4 of the ticket. It is printed in the same size type as the rest of the fine print. It reads as follows:
Notwithstanding anything to the contrary contained herein, any action against the Carrier must be brought only before the courts of Athens Greece to the jurisdiction of which the Passenger submits himself formally excluding the jurisdiction of all and other court or courts of any other country or countries which court or courts otherwise would have been competent to deal with such action.
Plaintiff states in an affidavit that she did not notice either the warning on the front of her ticket or the forum-selection clause itself. She also states that she was unaware that she was contracting with a Greek company and not the New York corporation with which she had dealt.
Sun Line Greece's motion to dismiss is based on the language of the forum-selection clause. It relies on decisions enforcing forum-selection clauses in passenger tickets. See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991); Hodes v. S.N.C. Achille Lauro ed Altri-Gestione, 858 F.2d 905, 911 (3d Cir. 1988), cert. dismissed, 490 U.S. 1001, 109 S.Ct. 1633, 104 L.Ed.2d 149 (1989); Hollander v. K-Lines Hellenic Cruises, S.A., 670 F.Supp. 563, 566 (S.D.N.Y.1987). All of these cases are distinguishable. To enforce the forum-selection clause in plaintiff's ticket would be fundamentally unfair because doing so would effectively deprive her of her day in court.
Forum-selection clauses are "prima-facie valid." The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 1913, 32 L.Ed.2d 513 (1972). Nevertheless, "forum-selection clauses contained in form passage contracts are subject to judicial scrutiny for fundamental fairness." Carnival Cruise Lines, 499 U.S. at 595, 111 S.Ct. at 1528. When a party seeks to avoid application of a forum-selection clause, "it should be incumbent on the party seeking to escape his contract to show that trial in the contractual forum will be gravely difficult and inconvenient and that he will for all practical purposes be deprived of his day in court." The Bremen, 407 U.S. at 18, 92 S.Ct. at 1917. Plaintiff has made such a showing.
If this action were dismissed, plaintiff would be required to travel to Greece to pursue her claim. Plaintiff has provided an affidavit stating that if required to sue in Greece, she will be unable to do so for the reasons that follow. She cannot afford to travel to Greece. She would be afraid to stay in a strange city where she does not know the language and customs. She is partially disabled and would have to hire someone to assist her physically. She does not know any Greek lawyers, and is ignorant of the Greek legal system. She cannot afford to hire a Greek interpreter. All of her witnesses live in the United States, and she cannot afford to pay for them to travel to Greece to testify. Plainly, given these circumstances it would be a "grave inconvenience" to require plaintiff to sue in Greece, and it is unreasonable to assume that she would be able to do so. For all practical purposes, enforcement of the forum-selection clause would deprive her of her day in court. The Bremen, 407 U.S. at 18, 92 S.Ct. at 1917.
Plaintiff's circumstances are significantly different from those of the plaintiffs in the cases on which defendants rely. In Hodes, the Third Circuit enforced a forum-selection clause requiring a passenger on the Achille Lauro to sue the ship's owners in Italy. The ship was hijacked off the coast of Egypt during an eleven-day cruise to and from Genoa, Italy. 858 F.2d at 912-16. In Hollander, the Court enforced a clause requiring a passenger injured on a cruise of the Greek Islands to sue in Greece. 670 F.Supp. at 565-66. In both Hodes and Hollander, the designated forum was foreseeable because the cruise took place, at least in part, in the country of the designated forum. In each instance, the plaintiffs had travelled to the forum country to begin their cruise. Here, neither plaintiff, nor the occurrence sued on, had any connection with Greece.
Similarly, the effect of enforcing the forum-selection clause in Carnival was significantly less onerous than doing so here would be. In Carnival, the Supreme Court upheld a clause that required a resident of the State of Washington, who had taken a cruise from...
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Effron v. Sun Line Cruises, Inc.
...Stella Solaris, and Sun Line Cruises' motion for summary judgment in the claim against it arising out of the same accident. See 857 F.Supp. 1079 (S.D.N.Y.1994). For the reasons that follow, we reverse the denial of Sun Line Greece's motion and remand without ruling on the denial of Sun Line......