Thursday, October 29, 2015

A contractual forum selection clause contained in a cruise passenger ticket.

Practice point:  In this action to recover damages for personal injuries, defendant appealed the denial of its CPLR 3211 motion.  The Appellate Division reversed the motion court, and dismissed the complaint.

The injured plaintiff allegedly fell while in a defendant-owned boat that was returning her to the cruise ship. Defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(1), (2), and (8), arguing that the court lacked personal and subject matter jurisdiction based on the forum selection and one-year time limitation clauses in the contract of carriage which was printed on plaintiff's ticket.

 The Appellate Division found that defendant's submissions established that the contract of carriage included a clause requiring that any disputes between the parties "shall be litigated, if at all, before the United States District Court for the Southern District of Florida in Miami, or as to those lawsuits to which the Federal Courts of the United States lack subject matter jurisdiction, before a court located in Miami-Dade County, Florida, U.S.A. to the exclusion of the Courts of any other county, state or country."  In addition, the contract provided that an action to recover damages for personal injuries "shall not be maintainable unless filed within one year after the date of the injury." Defendant also established that plaintiff had a reasonable opportunity to review the ticket, and there is no allegation of fraud or overreaching.

Student note:  A contractual forum selection clause contained in a cruise passenger ticket is generally enforceable, as long as it has been reasonably communicated to the passenger and does not violate notions of fundamental fairness. The submission thereof constitutes documentary evidence that may provide a proper basis for dismissal of an action pursuant to CPLR 3211(a)(1).

Case:  Fritsche v Carnival Corp., NY Slip Op 07618 (2d Dept. 2105)

Here is the decision.

Tomorrow's issue:  Leave to renew and reargue.