Afflerbach v. Cunard Line, Ltd.

• Decision Date: 16 July 1998
• Docket Number: No. 97-CV-245-J.,97-CV-245-J.
• Parties: Donna AFFLERBACH, Plaintiff, v. CUNARD LINE, LTD., Defendant.
• Court: U.S. District Court — District of Wyoming

14 F.Supp.2d 1260

Donna AFFLERBACH, Plaintiff, v. CUNARD LINE, LTD., Defendant.

No. 97-CV-245-J.

United States District Court, D. Wyoming.

July 16, 1998.

Charles Michael Aron, Karan Karla Tull, Aron & Hennig, Laramie, WY, for Plaintiff.

Corinne E. Rutledge, Louis Piccioni, Lathrop & Rutledge, Cheyenne, Karen C. Hilderbrandt, Kirlin Campbell & Keating, New York City, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION, AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT DISMISSING PLAINTIFF'S COMPLAINT AS TIME-BARRED AND/OR TRANSFERRING THIS ACTION PURSUANT TO THE FORUM SELECTION CLAUSE IN THE CUNARD PASSAGE CONTRACT AND DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

ALAN B. JOHNSON, Chief Judge.

I. Introduction

This matter is before the court on defendant's Motion to Dismiss for Lack of Personal Jurisdiction and Motion for Summary Judgment Dismissing Plaintiff's Complaint as Time-Barred and/or Transferring this Action Pursuant to the Forum Selection Clause in the Cunard Passage Contract and on Plaintiff's Motion for Partial Summary Judgment.

Plaintiff brings a complaint in Admiralty and alleges she was injured during a cruise as a result of the ship's owner's negligence. The pending motions require the court to determine if it has personal jurisdiction over the defendant cruise ship owner.

II. Undisputed Jurisdictional Facts

Plaintiff, Donna Afflerbach, is a Wyoming resident. She and her husband were passengers aboard the cruise ship Crown Dynasty from February 24, 1995, to March 8, 1996, as part of an air-sea transcanal tour (tour). This tour was "through the [University of Wyoming] Alumni Association." Pl.'s Aff. at ¶ 2. It included air travel from Denver, Colorado, to Fort Lauderdale, Florida, a cruise on the Crown Dynasty through the Panama Canal to Acapulco, Mexico and return air travel to Denver.

The cruise ship, the Crown Dynasty, is owned by defendant Cunard Line Limited Cunard). Cunard is a British corporation with offices in New York City, New York. Cohen Aff. ¶ 5. Other than its New York City office, Cunard has no other offices in the United States. Id. Cunard has no office, employees, bank accounts or phone numbers in Wyoming. Id. ¶ 7. It is not authorized, licensed or registered to do business in the state of Wyoming. Id. ¶ 6. Cunard advertises nationally in the United States to independent travel agents who sell its cruises. Id. ¶ 8. Cunard has not advertised its cruises directly in Wyoming. Id.

Vantage Travel is an independent travel agent and tour operator located in Brookline, Massachusetts. Broderick Aff. ¶ 2. It is not a corporate subsidiary or affiliate of Cunard. Id. It is a direct mail marketing company and provides group travel services to members of nonprofit organizations. It is completely independent of all of the railroads, airlines and shipping companies from whom it reserves space on behalf of its clients. Id. Thus, it is entirely independent from Cunard. Id. Vantage organized the Tour and through the auspices of the Wyoming Alumni Association it advertised the tour to the Afflerbachs. Id. ¶ 2. The Afflerbachs' Reservation Form is titled "University of Wyoming Alumni Association presents 12-Day Transcanal Cruise." Pl.'s Ex. 4. It identifies Vantage Travel as the organization arranging the reservations. It provides Vantage's toll-free number for reservations and also provides that reservations forms can be returned to the University of Wyoming Alumni Association at a Laramie, Wyoming address. The Reservation Form identifies the cruise ship as the "Cunard Crown Dynasty" as the cruise ship in two places. The Reservation Form does not provide any information on how to contact Cunard directly. Tour information received by plaintiff clearly identifies the Tour as being offered through Vantage and touts the "Vantage Exclusive Features." Pl.'s Ex. 5. The Tour information identifies the cruise ship as the "Cunard Crown Dynasty" or as the "Crown Dynasty," but provides no information on contacting Cunard directly.

The Afflerbachs booked the Tour through Vantage. Vantage then booked the Afflerbach's reservations with Cunard on August 25, 1995. Brand Aff. at ¶ 6. On February 5, 1996, Cunard issued cruise and air tickets and Passenger Contracts for the Afflerbachs and mailed those tickets by Federal Express to a travel agent at Vantage Travel in Brookline, Massachusetts. Id. ¶ 10. Cunard's Passenger Contracts contain a forum selection clause specifying that all litigation shall be litigated in the City and State of New York to the exclusion of all other jurisdictions and that all suits for bodily injury against Cunard shall be commenced within one year.

The Afflerbachs received their air tickets from Vantage. The air tickets had a cover decorated with Cunard's name and logo. Plaintiff's air ticket was issued to "Cunard Line Ltd" and "Client Afflerbach/Donna Mrs."

The Afflerbachs also received from Vantage a "Cruise Invoice" that identified the tour as "Transcanal 12-Day Cunard Crown Dynasty 1996 Group University of Wyoming." The Cruise Invoice provides Vantage's name and address but not Cunard's name or address.

Vantage's Reservation Form and its cruise invoice sent to the Afflerbachs contain identical "Tour Participation Agreement-General Terms and Conditions" that state as follows:

Responsibility: VANTAGE, its affiliated and subsidiary companies, sponsoring organizations and agents (collectively, VANTAGE) act only as agents for the suppliers of transportation, accommodations, food and other goods and services provided to the tour participant. All arrangements for transportation, accommodations and services are made upon the express condition that VANTAGE shall not be liable for any direct, indirect, consequential or incidental damages, injury, loss, accident, delay or irregularity of any kind occasioned by reason of any act or omission beyond its control, including without limitations, any act of negligence or breach of contract of any third party such as an airline, cruise line, train, hotel, restaurant, ground handler, etc., who is to or does supply any goods or services for the tour.... Any litigation concerning this tour must be brought in the Commonwealth of Massachusetts.... Pl.'s Ex. 3 and 4 (underlined emphasis added).

Plaintiff alleges that during a stop at Georgetown, Grand Cayman Island, on February 27, 1996, she lost her footing while disembarking and fell, injuring her buttocks, elbow and right shoulder. On October 15, 1997, she filed the present action as a complaint in admiralty pursuant to 28 U.S.C. § 1333. She alleges Cunard was negligent in failing to provide a competent ship's physician, failing to provide safe means of debarkation, and failing to provide reasonable assistance to the passengers. Complaint ¶¶ 10-13. She seeks $8,115 in medical damages and $100,000 in pain, suffering and general damages.

III. Disputed Fact

There is a genuine issue of fact on whether the Afflerbachs received the Passage Contracts issued in their names by Cunard. Cunard has submitted evidence to show that it issued the Afflerbachs Passage Contracts and mailed them to Vantage. Toemmervik Aff. at 8-10; Broderick Aff. at ¶ 4. Its evidence supports its position that the Afflerbachs turned in their Passage Contracts as they embarked on the cruise. Toemmervik Aff. at 4-7; Brand Aff. ¶ 11.

However, the Afflerbachs have submitted conflicting evidence to show that they, and at least one other passenger, did not receive Cunard's Passage Contracts. Pl.'s Ex. A ¶ 5; Pl.'s Ex. B ¶ 5; Pl.'s Ex. C ¶ 3.

IV. Motions

Defendant Cunard moves to dismiss pursuant to Fed.R.Civ.P. 12(b) for lack of personal jurisdiction. It also moves for summary judgment pursuant to Fed.R.Civ.P. 56, on the basis that the complaint is time barred because it was not filed within one year following the alleged injury. In the alternative, Cunard moves to dismiss or transfer venue pursuant to the forum selection clause set forth in its Passage Contract.

In response, plaintiff moves for partial summary judgment that the private limitations period and forum selection clauses are not enforceable because she never received the Passage Contract.

V. Motion to Dismiss

Defendant moves to dismiss based upon its contention that this court lacks personal jurisdiction.

Plaintiff brings this action based upon this court's admiralty jurisdiction pursuant to 28 U.S.C. § 1333.¹ "An admiralty action may be brought against a corporation in any United States District Court which can obtain personal jurisdiction over that corporation." Sunbelt Corporation v. Noble, Denton & Associates, Inc., 5 F.3d 28, 31 n. 5 (3rd Cir.1993) (quoting Ocean Science & Eng'g, Inc. v. International Geomarine Corp., 312 F.Supp. 825, 829 (D.Del.1970)).

Under Rule 4(e) of the Federal Rules of Civil Procedure, district courts have personal jurisdiction over nonresident defendants to the extent authorized under the law of the forum state in which the district court sits.

Id.

Thus, because this court may exercise personal jurisdiction over the non-resident defendants to the extent permitted by the law of the state in which it sits, this court looks to personal jurisdiction under Wyoming's long-arm statute to determine if it has personal jurisdiction over defendant in this admiralty case. In this case, as in Sunbelt, the "well-established minimum contacts analysis" — an analysis familiarly applied in the context of diversity jurisdiction — applies to determine if defendant is subject to personal jurisdiction in this case. 5 F.3d at 31 (applying Texas' long-arm statute to determine personal jurisdiction in admiralty case). The well-established minimum contacts analysis has been explained as follows:

In International Shoe Co. v. Washington, the Supreme Court held that:

due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of...