Reed v. Royal Caribbean Cruises, Ltd.
| Decision Date | 22 September 2021 |
| Docket Number | 20-cv-24979-RAR |
| Parties | IVY REED and PAUL REED, Plaintiffs, v. ROYAL CARIBBEAN CRUISES LTD., d/b/a/ ROYAL CARIBBEAN INTERNATIONAL, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
ORDER DENYING MOTION TO DISMISS, GRANTING MOTION TO STRIKE, AND DENYING AS MOOT MOTIONS TO STAY
THIS CAUSE comes before the Court on the following Motions: (1) Defendant's Motion to Dismiss Plaintiffs' Complaint Based on the Parties' Forum-Selection Clause and/or, in the Alternative, Forum Non Conveniens [ECF No. 18] (“Motion to Dismiss”); (2) Defendant's Motion to Stay All Proceedings Pending Ruling on Whether the Australian Court is the Proper Forum [ECF No. 25] (“Motion to Stay”); (3) Plaintiffs' Motion to Strike Declaration of Kathryn J. Lock Filed in Support of Defendant's Reply to Plaintiff's Opposition to Motion to Dismiss [ECF No. 33] (“Motion to Strike”); and (4) Defendant's Amended Motion to Stay All Proceedings Pending this Court's Ruling on Motion to Dismiss to Enforce Forum-Selection Agreement [ECF No. 43] (“Amended Motion to Stay”). The Court having considered the Motions, the pertinent portions of the record and being otherwise fully advised, it is hereby
ORDERED AND ADJUDGED that, as explained herein, the Motion to Strike [ECF No. 33] is GRANTED; the Motion to Dismiss [ECF No. 18] is DENIED and the Amended Motion to Stay [ECF No. 43] and Motion to Stay [ECF No. 25] are both DENIED AS MOOT.
The following is alleged in Plaintiffs' Complaint and in declarations and exhibits attached to the parties' filings. [ECF No. 1] (“Complaint”). Defendant submits three declarations in support of its Motion to Dismiss, along with multiple exhibits: (1) Declaration of Amanda Campos, Defendant's Director of Guest Claims and Litigation, [ECF No. 18-1] (“Campos Decl.”); (2) Declaration of Stephen Thompson, Australian lawyer, [ECF No 18-2] (“Thompson Decl.”); and (3) Declaration of Kathryn Jane Lock, which Defendant attaches to its reply brief, [ECF No. 26-1] (“Lock Decl.”). Plaintiff submits four declarations along with multiple exhibits: (1) Affidavit of Duncan Hall, Record Request Processor at the Internet Archive, [ECF No. 24-1] (“Hall Aff.”); (2) Declaration of Geoffrey Robert Brookes, Australian lawyer, [ECF No. 24-2] (“Brookes Decl.”); (3) Declaration of Stephen Diaz Gavin, [ECF No. 24-3] (“Gavin Decl.”); (4) Declaration of Ivy Reed [ECF No. 24-4] (“Ivy Reed Decl.”); and [ECF No. 25-5] through [ECF No. 25-8], which contain exhibits to Plaintiff Ivy Reed's declaration.
Husband and wife Paul and Ivy Reed are Maryland residents who, on December 9, 2019, were passengers aboard Defendant Royal Caribbean Cruise Lines' (“Defendant RCCL”) cruise ship, the Ovation of the Seas (“Ship”). Compl. ¶¶ 1-3, 12. Plaintiffs seek compensation for “permanent, disfiguring and disabling injuries” they sustained when a volcano erupted during a December 9, 2019 shore excursion to White Island off the coast of New Zealand. Id. ¶¶ 12-13.
Defendant RCCL is a corporation organized under the laws of the Republic of Liberia with its principal place of business in Miami, Florida. Id. ¶ 4. Royal Caribbean International (“RCI”) is a registered fictious name wholly owned by RCCL and under which RCCL does business, with its principal place of business in Miami, Florida. Id. ¶ 5. According to the declaration of Defendant RCCL's Director of Guest Claims and Litigation, Amanda Campos, the Ship is a Bahamian-flagged vessel operated by RCL Cruises, Ltd. (“RCL”), a company registered in the United Kingdom that is also registered as a foreign company in Australia. Campos Decl. ¶¶ 1-2.
On February 23, 2019, Plaintiffs purchased their passage on the Ship for a roundtrip cruise from Sydney, Australia to New Zealand, to commence on December 4, 2019 and continue for twelve nights. Compl. ¶ 26. Plaintiffs booked their cruise through Travel Managers Australia Pty. Ltd., an Australian travel agent (“Plaintiffs' Travel Agent”), who in turn obtained the tickets from Cruise Fusion, an Australian wholesaler (“Ticket Wholesaler”). Campos Decl. ¶ 7.
The parties submit conflicting evidence about which forum-selection clause governs. Plaintiffs rely on the Cruise/Cruisetour Ticket Contract (“Ticket Contract”) that provides for venue in the Southern District of Florida, while Defendant relies on the Australian terms and conditions (“AUS T&Cs”) located in a brochure referenced in the Guest Ticket Booklet, which provides for venue in New South Wales, Australia.
Defendant submits that Plaintiffs consented to jurisdiction in New South Wales based on the following: (1) booking invoices that contained links to the AUS T&Cs; (2) a March 2019 screenshot of RCL's website that included a link to the AUS T&Cs; and (3) the Guest Ticket Booklet's references to the AUS T&Cs, which directed passengers to a brochure where the AUS T&Cs could be found.
As indicated by the booking invoices provided by RCL to the Ticket Wholesaler, the cruise was booked through RCL, Level 12, 157 Walker Street, North Sydney, NSW 2060, a wholly owned subsidiary of Defendant RCCL. Campos Decl. ¶¶ 2(c), 8-10. According to the Campos Declaration, RCL sent a copy of the booking invoices to the Ticket Wholesaler, who was to send the booking invoices to Plaintiffs via email. Id. ¶ 8. The emails with these booking invoices contained links to the AUS T&Cs. Id. ¶¶ 8-11; id. at 10, 52, 62 (). The invoices are dated February 22, 2019, February 26, 2019, and August 12, 2019. Id. There is nothing in the record indicating that Plaintiffs received these exact email invoices; the emails that Defendant attaches to its briefing are emails Defendant forwarded to Australian lawyer Stephen Thompson. Id. at 8, 50, 60. According to Plaintiff Ivy Reed's declaration, Plaintiffs did not receive the email invoices. Reed Decl. ¶¶ 12-15. Further, there is nothing in the record indicating what exactly the T&Cs referred to in the booking invoice emails said.
A screenshot of “http://www.royalcaribbean.com.au/” dated March 4, 2019[1] included a link with the words “AUS T&Cs” at the bottom of the homepage. Campos Decl. ¶ 10; id. at 55, 59. The same screenshot included a Cruise Contract link close to the AUSA T&Cs link. Id. at 59.
On October 15, 2019, RCL provided the Ticket Wholesaler with the Guest Ticket Booklet for the subject cruise, which the Ticket Wholesaler forwarded to Plaintiffs' Travel Agent. Id. ¶¶ 11-12; id. at 66-80. In its email to the Ticket Wholesaler, RCL indicated that, as part of the check-in, Plaintiffs would have to “accept the Cruise Ticket Contract.” Id. ¶ 12. Plaintiffs received the Guest Ticket Booklet on October 16, 2019. Reed Decl. ¶ 3.
The Guest Ticket Booklet made three references to terms and conditions, two of which directed the reader to a brochure, and one of which directed the reader to a link. First, the bottom of the first page of the Guest Ticket Booklet stated the following:
Campos Decl. ¶ 14 (emphasis added); id. at 66. Second, page 10 of the Guest Ticket Booklet stated:
Id. at 75 (emphasis added). Third, also on page 10, the Guest Ticket Booklet directed the reader to review the terms and conditions at a link:
In the unlikely event that you have reached this message in error, our standard passenger cruise ticket contract [sic] shall apply, and you may be required to sign that contract prior to being allowed to board for your cruise. The Terms and Conditions of that standard passenger ticket contract can be found at www.RoyalCaribbean.com.au.
Id. (emphasis added).
According to the Campos Declaration, clicking the first link, www.RoyalCaribbean.com.au/onlinecheckin, would direct the user to Defendant RCCL's Australian website, where they could check in for the cruise and review the referenced Worldwide Cruises brochure (“Brochure”). Id. ¶ 15. There are no photographs or screenshots in the record indicating that the Brochure could be found at www.RoyalCaribbean.com.au/onlinecheckin during the relevant timeframe. At the beginning of the AUS T&Cs found on page 92 of the Brochure, in the “Overview” section, the Brochure states:
Please Note: . . . Please read these conditions carefully. These terms and conditions are to be construed under the laws of NSW and you agree to submit to the exclusive jurisdiction of the court of that state in the event of a dispute between you and Royal Caribbean International.
Campos Decl. ¶ 16; id. at 13. According to Plaintiff Ivy Reed's declaration, Plaintiffs never received or otherwise reviewed the Brochure at any time prior to the incident. Reed Decl. ¶ 16.
On October 16, 2019, Plaintiffs received the Guest Ticket Booklet. Reed Decl. ¶ 3; [ECF No. 24-5] at...
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