On August 19, 2021, a panel of the Eleventh Circuit affirmed a district court dismissal of a putative class action filed by a cruise ship passenger against cruise ship operators for the alleged negligent failure to warn passengers of the danger of COVID-19, misleading advertisement, negligent infliction of emotional distress, and the intentional dismissal of emotional distress based upon the forum selection clause in the cruise contract. In Turner, on his own behalf and on behalf of others similarly situated passengers aboard the Costa Luminosa v. Costa Crociere S.P.A., Costa Cruise Lines, Inc., 2021 WL 3673727, __F.3d__ (11th Cir. 2021), the Panel held that Section 2(a) of the General Conditions of Passage Ticket Contract (the "Contract") required all passengers to file any suit arising out of the cruise in Genoa, Italy.
COVID-19 Transformed a Fairy Tale Cruise into a Nightmare
Plaintiff Paul Turner ("Plaintiff" or "Turner"), a resident of Wisconsin, booked a dream vacation aboard the Italian ship Costa Luminosa, for a transatlantic cruise to the Canary Islands scheduled to sail from Fort Lauderdale on March 5, 2020. Unknown to Plaintiff and other passengers, however, a 68 year old passenger on the preceding voyage fell ill with symptoms consistent with COVID-19 and the ship diverted to the Cayman Islands to allow him to disembark. On March 8, 2020, the Defendants Costa Crociere S.P.A. and Costa Cruise Lines, Inc. (collectively "Costa") learned that the passenger—who subsequently died—had been diagnosed with COVID-19.
The evening before the March 5 sailing, Costa emailed all passengers, including Turner, advising that Costa was liaising with health authorities to be certain that the Costa Luminosa provided "the highest level of safety for its guests and crewmembers." Despite the fact that it did not retain any experts to assure that the vessel had been sufficiently cleaned, Costa promised passengers that the ship was safe. Three days after departure, the ship diverted to Puerto Rico to allow an Italian couple manifesting COVID-19 symptoms to disembark. Costa, however, did not advise passengers that the Italian couple had tested positive for COVID-19 until a day later when the ship was at sea. Notably, Costa did not mandate that passengers quarantine until several passengers appeared to have contracted COVID-19. On March 19 when the ship docked in France, 36 passengers—including Turner—of the 75 passengers aboard the Costa Luminosa tested positive for COVID-19.
Turner Files Suit Against Costa in the Southern District of Florida
Turner filed suit in the United States District Court for the Southern District of Florida against Costa, asserting claims arising under the federal general maritime law and a claim for misleading advertising arising under Florida State law. Costa promptly filed a motion to dismiss Turner's lawsuit on the basis of the forum selection clause contained in the Contract. Specifically, Costa argued that the Contract required Turner to litigated his claims in Genoa, Italy. The District Court granted Costa's motion holding that (1) Turner's claims were within the ambit of the forum selection clause; (2) the forum selection clause in the Contract was enforceable; (3) the forum selection clause did not violate public policy and was not fundamentally unfair; and that the forum non conveniens factors weighed in favor of dismissal.
Turner Appeals the District Court Dismissal of his Lawsuit to the Eleventh Circuit
The Eleventh Circuit conducted a de novo review of the enforceability of the forum selection clause in the Costa Contract consistent with Rucker v. Oasis Legal Fin., LLC, 632 F.3d 1231, 1235 (11th Cir. 2011). The Panel ruled that given that jurisdiction of the suit was based on the general maritime law pursuant to 28 U.S.C. § 1333, that the analysis of the forum selection clause was controlled by federal law. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 590, 111 s. Ct. 2522 (1991). The Panel relied upon the tenets of the Supreme Court in its analysis of the enforceability of a forum selection clause, citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907 (1972) In Zapata, the Supreme Court determined that forum selection clauses are presumptively valid and unenforceable unless a party can prove (1) the clause was induced by fraud or overreaching; (2) a party would be deprived of its day in court because of inconvenience or the unfairness; (3) the law of the forum would deprive a party of a remedy; or (4) that enforcement of the clause would contravene public policy.
Turner Failed to Prove that an Italian Forum was Unfair or Against Public Policy
Turner failed to prove that the forum selection clause violated public policy or deprived him of a forum to litigate his claim. The Panel acknowledged that Italy was a remote forum, but held that Turner could appoint a special attorney and need not travel to Italy to pursue his lawsuit. The Court held that because Italy had a significant relationship over Costa, an Italian cruise line, that an Italian court was competent to adjudicate this dispute. In reaching this decision, the Court relied upon the Supreme Court analysis in Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6, 102 S.Ct. 252 (1981).
Second, the Panel rejected Turner's assertion that the forum selection clause contravened 46 U.S.C. § 30509(a) precluding a vessel owner from depriving a claimant of the right to assert a personal injury claim in a court of competent jurisdiction. Specifically, the Eleventh Circuit held that Turner's argument that a forum selection clause constituted a limitation of Costa's liability had been rejected by the United States Supreme Court in Shute.
The District Court Did Not Abuse its Discretion
The Court held that the forum selection clause requiring all passenger disputes with Costa to be litigated in Italy was valid and enforceable. The Panel affirmed the District Court's dismissal of Turner's lawsuit, holding that the District Court did not abuse its discretion.
Originally published by ATLP
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