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WALKER v. CARNIVAL CRUISE LINES

August 3, 1999

BERNARD WALKER & CHRISTINA ADAMS, PLAINTIFF
v.
CARNIVAL CRUISE LINES; CARNIVAL CORPORATION; UNIQUE TRAVEL AGENCY; ANDRE'S TRAVEL AGENCY, DEFENDANTS.



The opinion of the court was delivered by: Henderson, District Judge.

  ORDER RE: MOTIONS TO DISMISS

This is a suit under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, California Health & Safety Code § 19955, and California Civil Code § 54.1. Plaintiffs allege that defendants failed to provide appropriately accessible accommodations on a cruise ship. Presently before the Court are two motions to dismiss. Defendants, Carnival Cruise Lines and Carnival Corporation (collectively "Carnival"), have moved to dismiss or transfer the case on the grounds that the passenger ticket contracts at issue contain forum selection clauses requiring suit to be filed in Florida. Unique Travel Agency and Andre's Travel Agency (the "Travel Agents"), move to dismiss on grounds that they are not liable for Carnival's ADA violations.

I. FACTUAL BACKGROUND

Plaintiffs Bernard Walker and Christina Adams each took separate 3-4 day trips on the Holiday, a ship owned and operated by Carnival. Walker made arrangements through Unique Travel prior to his departure on July 28, 1997. He received his tickets through his neighbor, an employee with Unique Travel, within a week of his departure. Unique Travel was informed that Walker was disabled, used a wheelchair, and would require a disabled accessible guest room as well as disabled accessible facilities on the Holiday. Despite receiving assurances from Unique Travel and from Carnival that his room and the ship were disabled accessible, Walker discovered on his voyage that neither his room nor the ship were in fact accessible. Adams, who booked passage with Andre's Travel Agency on the Holiday, is also disabled and uses a wheelchair. She received her tickets 10 days before her departure on September 12, 1997, and was given assurances by her travel agent that her room and the ship were disabled accessible. She had an equally disappointing voyage and both have filed suit alleging, among other things, that defendants violated the ADA's equal access requirements.

II. DISCUSSION

A. Carnival's 12(b)(3)

A motion to dismiss premised on the enforcement of a forum selection clause should be treated as a motion to dismiss for improper venue under Federal Rule of Civil Procedure 12(b)(3). Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 324 (9th Cir. 1996). Accordingly, the pleadings are not accepted as true and facts outside the pleadings may be considered by the district court. Id. Federal law governs the validity of a forum selection clause, id., and where a maritime contract is involved, its interpretation is governed by the general maritime law of the United States. See The Moses Taylor, 71 U.S. (4 Wall.) 411, 18 L.Ed. 397 (1866); Kendall v. American Hawaii Cruises, 704 F. Supp. 1010, 1018 (D.Hawai'i 1989).

Carnival argues that plaintiffs' tickets contain a Florida selection clause the enforceability of which was recently upheld by the Supreme Court in Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). In Shute, the Supreme Court considered whether Carnival's forum selection clause was enforceable in the context of a federal suit brought in Washington state by residents who suffered personal injuries on a Carnival cruise. The Shutes claimed that the Florida forum selection clause was not enforceable because it was not the subject of negotiation between the cruise line and its passengers. The Shutes also claimed that they were physically and financially incapable of proceeding with the litigation in Florida. The Supreme Court rejected these arguments, holding that the forum selection clause was reasonable. First, the Court noted that "it would be entirely unreasonable for us to assume that respondents — or any other cruise passenger — would negotiate with petitioner the terms of a forum-selection clause in an ordinary commercial cruise ticket. Common sense dictates that a ticket of this kind would be a form contract the terms of which are not subject to negotiation, and that an individual purchasing the ticket will not have bargaining parity with the cruise line." 499 U.S. at 593, 111 S.Ct. 1522. Thus a passenger cannot assert the absence of negotiation over a forum selection clause as a reason against enforcing it where no such negotiation is likely to take place.

The Court went on to list several reasons why a non-negotiated forum selection clause may be "permissible": (1) limiting the fora in which a cruise line is subject to suit avoids the possibility of litigation in multiple fora which could result from a single accident given the variety of places passengers hail from; (2) judicial economy is served by designating, ex ante, the forum for dispute resolution since parties and the courts will be spared the time and expense of motion practice to determine the appropriate forum; (3) passengers "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." Id. at 593-94, 111 S.Ct. 1522. Accordingly, the Supreme Court reaffirmed the rule in The Bremen v. Zapata OffShore Co., 407 U.S. 1, 17, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), that parties' challenging a forum selection clause bear a "`heavy burden of proof,'" to establish that the provision should be set aside. Shute, 499 U.S. at 595, 111 S.Ct. 1522. Absent evidence that enforcement would be fundamentally unfair (i.e., that the a particular forum was chosen "as a means of discouraging cruise passengers from pursuing legitimate claims," that accession to the forum provision was obtained by "fraud or overreaching," or that notice was inadequate), a forum selection clause must be given effect. Id.

Here, plaintiffs present three arguments against enforcement of Carnival's forum selection clause: (1) that they did not receive notice of the forum provision, (2) that the cancellation policy in the passenger contract nullifies the forum provision even if plaintiffs had constructive notice, and (3) that the forum provision cannot trump the strong public policy of enforcing rights created under the ADA and parallel state civil rights laws. Each of these arguments is without merit.

In the Ninth Circuit, as elsewhere, the adequacy of notice given by boilerplate language in a passenger contract is a question of law determined by assessing whether a particular provision was "reasonably communicated" to the passenger. Dempsey v. Norwegian Cruise Line, 972 F.2d 998, 999 (9th Cir. 1992) (following Deiro v. American Airlines, Inc., 816 F.2d 1360, 1364 (9th Cir. 1987)). This is a two-pronged inquiry. First, a court must examine "`[f]eatures such as size of type, conspicuousness and clarity of notice on the face of the ticket, and the ease with which a passenger can read the provisions in question. . . .'" Deiro, 816 F.2d at 1364 (quoting Shankles v. Costa Armatori, S.P.A., 722 F.2d 861, 864 (1st Cir. 1983)). Second, a court must evaluate the circumstances surrounding the passenger's purchase and subsequent retention of the ticket/contract such as "the passenger's familiarity with the ticket, the time and incentive under the circumstances to study the provisions of the ticket, and any other notice that the passenger received outside of the ticket." Id. As long as both the ticket and the surrounding circumstances indicate that the provisions of a passenger contract were reasonably communicated, a passenger need not have actually read the contract to be deemed on notice of its terms; See Shankles, 722 F.2d at 864 (the contract need only "reasonably communicate to the passenger the existence therein of important terms and conditions which affect legal rights").

Here the circumstances indicate that Carnival's forum provision was reasonably communicated to plaintiffs. The first page of the contract contains a conspicuous, underlined, all caps warning in 1/8" font stating: "IMPORTANT NOTICE TO GUESTS." Immediately underneath this text are two short all caps 1/16" font paragraphs which read as follows:

  This document is a legally binding contract issued by
  carrier to, and accepted by, guest subject to the
  important terms and conditions appearing on the
  following six pages. The provisions of the following
  pages of this contract are incorporated as though
  fully rewritten on the face of this contract. Notice:
  The attention of guest is especially directed to
  clauses 1, 3, 5, 6, 7, 8, 9, 11, 12, 14, 16, 21, 22,
  and 24, which contain important limitations on the
  rights of guest to assert claims against carrier, the
  vessel or any of their agents or employees.

The forum selection provision is specifically referenced as clause 8. It appears on the fourth page and provides:

  It is agreed by and between the guest and the 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 the State of Florida, U.S.A. ...

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