Gomez v. Royal Caribbean Cruise Lines, Civil No. 96-2325(SEC).

• Decision Date: 08 May 1997
• Docket Number: Civil No. 96-2325(SEC).
• Citation: 964 F.Supp. 47
• Parties: Andres GOMEZ, et al., Plaintiffs, v. ROYAL CARIBBEAN CRUISE LINES, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

Page 47

964 F.Supp. 47

Andres GOMEZ, et al., Plaintiffs, v. ROYAL CARIBBEAN CRUISE LINES, et al., Defendants.

Civil No. 96-2325(SEC).

United States District Court, D. Puerto Rico.

May 8, 1997.

Silvia Del-Rosario-Sanfeliu, San Juan, PR, for Plaintiffs.

José E. Alfaro-Delgado, Calvesbert, Alfaro & Lopez Conway, San Juan, PR, for Defendants.

OPINION AND ORDER

CASELLAS, District Judge.

Pending before the Court is a the motion for transfer of venue filed by defendant Royal Caribbean Cruises Ltd. ("RCCL") (Docket # 17). Upon review of the parties' arguments and the applicable law, defendants' motions for transfer is GRANTED.

Factual Background

RCCL is a Liberian corporation having its principal place of business in Miami, Florida, which operates several cruise ships, some of which, as the "LEGEND OF THE SEAS", ("Legend") depart from San Juan, Puerto Rico.¹

On or about September 1995, codefendant A & A Tours (A & A)² requested of RCCL certain reservations for the December 27, 1995 cruise of the Legend. The reservations were requested of A & A by Andrea Travel & Tours, Inc. (Andrea Travel) as travel agent for plaintiffs, Andres "Bubo" Gomez and Josefina Gomez ("the Gomez") and Maritza Gomez de Negron and Ramon Negron ("the Negrons"). The Gomez booked cabin 8002 and the Negrons booked cabin 8559. RCCL received full payment for the bookings on or about December 1995.

The Cruise Brochure published by RCCL contains the terms and conditions applicable to RCCL cruises, and includes, inter alia, the forum selection clause and RCCL's cancellation and refund policies. (Docket # 17, Exhibit 1 of Alina Castellanos' Affidavit) In the usual course of business, the passengers' travel agency provides the passengers with copies of the Cruise Brochure or otherwise informs them of the cancellation, refund and other applicable booking terms and conditions. Upon making final payment, passengers booking in Puerto Rico receive a travel voucher from A & A which advises them to be familiar with the conditions applicable to the cruise. Passengers receive their Ticket Contract during the embarkation procedure, before boarding the vessel. Passengers must sign the first page of the ticket, acknowledging receipt, below a warning that reads:

This is your cruise ticket contract. It is important that you read all terms of this contract (pp. 1-4). This ticket is not transferable and is not subject to alteration by the passenger.

On December 27, 1995, the day of departure from Puerto Rico, the Gomez did not board the cruise liner. The Gomez notified A & A on such date that they would not be boarding the vessel since their son was hospitalized after suffering a heart attack, but that they hoped to board the vessel at a later port of call. A & A attempted to arrange with the pier personnel for RCCL to hold the Gomez's cabin and to allow the Negrons to use the cabin until the Gomez's boarded the cruise.

After the LEGEND departed from San Juan, RCCL notified the ship of the request to hold the Gomez's cabin and to let the Negrons use it, but RCCL's ship board staff had assigned cabin 8002 to other passengers pursuant to RCCL procedures in a "no show" or "failure to be onboard" situation.

Andrea Travel notified A & A on December 29, 1995 that the Gomez would not be boarding the vessel at any later port of call. That same day, Andrea Travel requested a full refund for the fare paid for cabin 8002. On or about June 10, 1996, the Gomez were granted a credit equal to the full amount of the fare paid for cabin 8002, redeemable on any future RCCL sailing. The amount of the credit included the amount of the commission paid to Andrea Travel for the booking.

The cruise of the LEGEND ended on January 6, 1996. According to defendants, the first notice of plaintiffs' claim to RCCL was by means of a letter from their attorney of record herein, Carmen de Jesus, Esq., dated July 12, 1996. Upon the parties' failure to resolve their dispute, plaintiffs filed the present lawsuit on October 30, 1996.

On April 10, 1997, RCCL requested a transfer of the present case to the United States District Court for the Southern District of Florida, based on the forum selection clause of the Ticket Contract, which requires litigation from the contract of passage to be filed or commenced in a court located in Miami, Florida. Clause 6 of the Ticket Contract provides:

It is agreed by and between passenger and carrier that all disputes and matters whatsoever arising under, in connection with or incident to this contract shall be litigated, if at all, in and before a court located in Miami, Florida, U.S.A., to the exclusion of the courts of any other state, territory or country. Passenger hereby waives any venue or other objection that he may have to any such action or proceeding being brought in any court located in Miami, Florida.

We proceed to examine defendant's argument.

Applicable Law/Analysis

The Supreme Court upheld the validity of an identically worded provision in Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). In that case, the Court found that the petitioner cruise line could validly include a choice of forum for litigation in its passenger contract, without violating Congress' statutory prohibition against contractual clauses which unduly limited a vessel owner's liability for negligence. In Shute, The Court noted:

Including a reasonable clause in a form contract of this kind, well may be permissible for several reasons: first, a cruise line has a special interest in limiting the fora in which it potentially could be subject to suit. Because a cruise ship typically carries passengers from many locales, it is not unlikely that a mishap on a cruise could subject the cruise line to litigation in several fora. (Citations omitted) Additionally, a clause establishing ex ante the forum for dispute resolution has the salutary effect of dispelling any confusion about where suits arising from the contract must be brought and defended, sparing litigants the time and expense of pretrial motions to determine the correct forum and conserving judicial resources that otherwise would be devoted to deciding those motions. (Citations omitted). Finally, it stands to reason that passengers who purchase tickets containing a forum clause like that at issue in this case benefit in the form of reduced fares reflecting the savings that the cruise line enjoys by limiting the fora in which it may be sued. (Citations omitted) 499 U.S. at 593-94, 111 S.Ct. at 1527-28.

Reasonable Communicativeness Test

The Supreme Court based its determination of the validity of the forum selection clause on the "reasonable communicativeness" test. The First Circuit has played a leading role in defining the elements of the two-pronged test. See Shankles v. Costa Armatori, 722 F.2d 861 (1st Cir.1983).

The reasonableness of the notice afforded to a passenger in a ticket contract is a question of law for the court. Deiro v. American Airlines, Inc., 816 F.2d 1360, 1364 (9th Cir.1987). In Lousararian v. Royal Caribbean Corp., 951 F.2d 7, 8-9 (1st Cir. 1991), the First Circuit explained the two prongs of the test as follows:

First, a court must examine the facial clarity of the ticket contract and whether its language and appearance make the relevant provisions sufficiently obvious and understandable. The second prong focuses on `the circumstances of the passenger possession and familiarity with the ticket,' id., which involves scrutiny of `any extrinsic factors indicating the passenger's ability to become meaningfully informed of the contractual terms at stake,' id. (Citation omitted). Given this two-step analysis, it is obvious that the determination of enforceability must be made on a case-by case basis ... (citing Shankles, 722 F.2d at 864-66).

The courts have unequivocally stated that once the terms and conditions of a ticket contract have been "reasonably communicated" to the passenger, they are enforceable, whether or not the passenger has actually read them. Coleman v. Norwegian Cruise Lines, 753 F.Supp. 1490, 1497 (W.D.Mo.1991) (citing Barbachym v. Costa Line, Inc., 713 F.2d 216, 220 (6th Cir.1983)). The passenger has a contractual duty to read. Id. A passenger who chooses not to read, assumes the risk of such omission. Deiro, 816 F.2d at 1365.

The courts have also held that notice of important conditions of a passage contract can be imputed to a passenger who has not personally received the ticket or possession thereof. The ticket may be received by passengers themselves or by their travel agent. Marek v. Marpan Two, 817 F.2d 242, 247 (3rd Cir.1987); see also Kientzler v. Sun Line Greece Shipping Co., 779 F.Supp. 342 (S.D.N.Y.1991) (circumstantial evidence indicated that ticket contract was received by a co-worker of the plaintiff, as agent.); DeCarlo v. Italian Line, 416 F.Supp. 1136, 1137 (S.D.N.Y.1976) (passenger can be charged with knowledge of the provisions of a ticket in possession of a friend or relative.)

Furthermore, the "reasonable communicativeness test" does not require that the ticket call the passenger's attention to the specific pages in which important conditions may appear. Fagan v. Royal Caribbean Cruises, Ltd., 1992 AMC 2553, 2556, 1992 WL 361704 (D.N.J.1992) (citing Marek, 817 F.2d at 246.)

RCCL's Ticket Contract Reasonably Communicated the Terms of the Contract to the Negrons and the Gomez

Upon examination of the ticket contract, we hold that such provisions are clearly stated and understandable. Notice of RCCL's forum selection clause is conspicuously set out in the Ticket Contract, highlighted within a box. The ticket contains a notice of this important provision in the cover and in the first page. Finally, the ticket calls the passenger's attention to the specific pages where the contract terms and conditions appear. (Affidavit of Maria Elena Hernandez, Exhibit 2)

Plaintiffs may claim that they lack knowledge pursuant...