*1 Dist., B166213. Second Div. Seven. June [No. 2004.] al., ROSE SCHLESSINGER et Plaintiffs and Appellants, AMERICA, N.V., HOLLAND Defendant and Respondent.
Counsel for Plaintiffs A. A. Schlessinger Gary Schlessinger Law Offices of Gary and Appellants. Lee Maltzman, M. and Sook H. & Lawrence W. Elsa Ward Kaye, Rose
Kaye, Respondent. for Defendant and
Opinion and Renee Ladenheim PERLUSS, Adams Schlessinger, Virginia P. J.Rose America caused failure warn (HAL) damages N.V. for sued Holland on a Alaskan cruise seven-day became ill they during after negligence HAL’s motion HAL. The trial court granted operatеd by ship ticket clause in the cruise on forum selection dismiss based complaint the cruise to be relating litigated all required disputes courts in the Schlessinger1 located State Washington. appeals ground she had insufficient notice of the clause. We forum selection affirm.
FACTUAL AND PROCEDURAL BACKGROUND 1. The Cruise Contract Terms and Conditions HAL’s cruise contract “All and matters whatsoever provides: disputes under, contract, cruise, arising connection with or incident to this cruisetour, the HAL land or the air HAL be if at trip package shall litigated, all, in and before the United States District Court for the Western District Seattle, or, as to those Washington lawsuits as to which federal courts of the United States lack matter subject jurisdiction, courts of King U.S.A., State of County, to the exclusion of all other Washington, courts.” HAL’s do not receive Although their cruise contracts until the passengers full cruise fare has bеen at the relevant time contracts were sample paid, addition, available on HAL’s In Web site. HAL travel with a provides agents *4 cruise brochure for distribution to HAL The 2002 potential passengers. Alaska cruises brochure in aboard the is provides part: “Transportation ships the provided solely by and charterers and to the Cruise shipowners pursuant you Contract that will receive to embarkation. A of the of prior form сopy cruise contract will be or provided can be viewed on our Web upon request site: that www.hollandamerica.com. Please note the contract clause includes a certain courts in State specifying the as the exclusive Washington The resolving same also site. disputes.” on HAL’s Web appeared 2. Schlessinger’s Cruise and Subsequent Complaint Vancouver, booked Schlessinger a HAL cruise from Canada Alаska to 27, a through agent travel on 2002. She made an initial on February deposit 20, contract, 6, and May made her final on June 2002. Her payment with of her along those was mailed to her travel agent July on coplaintiffs, 2002. The on cruise 2002. did review departed July Schlessinger HAL’s Web or the site cruise brochure before her The receiving contract. record no contains evidence that she the after it reviewed receiving contract, or that she to of the the objected terms of the forum any including clause, selection before time the cruise. any cruise, the number con-
During Schlessinger a of other passengers illness, tracted an intestinal as a result a virus apparently Norwalk 1 Although plaintiffs parties three are appeal only Schlessinger all to this Rose filed a opposition clarity, declaration in motion to For the referencеs HAL’s dismiss. sake Schlessinger coplaintiffs. include her filed a class action
infection. her Schlessinger coplaintiffs putative Court, HAL knew of alleging lawsuit in Los Angeles County Superior virus its The first amended risk of an of Norwalk on cruises. outbreak was for failure to warn and negligence, causes of action alleging complaint, class suit was filed virtually 2002. A identical action filed on September on for the Western District of Washington United States District Court October 2002. HAL’s Motion Dismiss
3. contract, clause in cruise HAL moved Based on forum selection 410.30, Civil Procedure section to Code of pursuant dismiss complaint of a or its (a), party which “When court motion upon subdivision provides, an action should be justice own motion finds that in interest substantial state, the action stay the court shall or dismiss heard in forum outside this that be any may just.” whole or conditions part motion, that notice of the forum selection Schlessinger arguing opposed too to be inconspicuous clause was clause untimely filed a declaration Schlessinger With her opposition papers enforceable. had the cruise brochure and had never viewed she never received stating received from her web site. She also declared documents she HAL’s her she not receive refund if she cancelled travel indicated wоuld agent of the date of days departure. cruise within *5 29, 22, On the January motion heard on November 2002. 2003 The was and a of HAL’s motion granting trial court issued statement decision action, maritime law that the under federal dismissing concluding applicable the an is has had a forum selection clause enforceable provided plaintiff to the read ticket contract before departure.2 opportunity 2 California, “allowing proceed action to in while trial court noted that this class The also essentially Washington, would proper filed in the forum of identical class action has been the class separate a subclass of entire impermissibly improperly this Court and create require to is a Additionally, and himself plaintiffs is married to one of plaintiffs’ here. counsel member, unlikely he can making a conflict interest it that putative class which сreates of And, Washington in attorney as HAL is located proceed representing class. properly as California, analysis a conveniens is within State of forum non ship and the not located Washington having proceed proper in as the forum.” likely the action would result in law, was enforced under federal maritime properly we find forum selection clause Because grounds for the trial court’s decision. we thеse alternative need address
557
DISCUSSION 1. Governing Standards Legal
a. Standard Review A trial court’s decision to or a enforce not enforce forum selection Online, (America Inc. v. clause is reviewed for an abuse of discretion. Bancomer, Court 1, Superior (2001) 699]; 90 9 Cal.App.4th Cal.Rptr.2d [108 S. A. v. 1450, (1996) Cal.App.4th Cal.Rptr.2d [52 Services, 435]; but see Cal-State Business & v. Ricoh Products Inc. (1993) 1666, 1680-1681 Cal.App.4th Cal.Rptr.2d [16 [substantial-evidence 417] test].) Enforceability Provisions the Cruise Contract
b. rights and liabilities Legal conduct that a relating allegedly injured aboard a party waters fall ship navigable exclusively within federal (Kermarec Generale Compagnie admiralty (1959) jurisdiction. 358 U.S. 625, S.Ct. 3 L.Ed.2d a injured aboard ship [79 550] [“[Plaintiff] upon waters. It was there that the which navigable conduct of he complained occurred. The legal and liabilities rights from conduct were arising therefore within full reach of the admiralty jurisdiction measurable the standards of maritime law. If this action had been in a brought [Citations.] court, state reference to law would have deter admiralty been necessary mine the rights liabilities This choice-of-law parties.”].) principle has been specifically forum selection cruise applied clauses commercial contracts: a Enforceability selection clause in cruise contract a case “is admiralty, federal law govеrns enforceability the forum-selection . . . .” (Carnival v. Shute clause (1991) accord, 499 U.S. 622]; S.Ct. 113 L.Ed.2d Hayman [111 Cruises, Sitmar Cal.App.4th Cal.Rptr.2d [18 412] of a validity is to be passage interpreted by [“The States, maritime law general law.”].) of the United not state Federal courts “employ ‘reasonable communicative two-pronged *6 determine ness’ test... under federal common law and maritime law when the of a common carrier is the of passenger bоund fine contractually print a ticket. passenger test of reasonable notice is “proper [Citations.] ‘[T]he basis, of the a analysis overall circumstances with an case-by-case itself, examination of the ticket but also of extrinsic factors only indicating to become informed passenger’s ability of meaningfully ’ Cruises, (Wallis v. Princess Inc. (9th terms at contractual stake.” [Citation.]” Armatori, 827, 835; see also Shankles v. Costa 2002) (1st Cir. F.3d S.P.A. 306 558 863-864; v. Klosters Rederi 861, (5th Cir. Carpenter 1983) F.2d
Cir. 722 11, 12-13; Navigazione Societa Per di Silvestri v. Italia 1979) 604 F.2d Azioni 11, 14-17.)3 and law (2d 1968) 388 F.2d Both California federal Cir. the burden a forum selection clause is valid contractual place presume (CQL Original selection clause. on the overturn the forum seeking party Products, Assn. (1995) Hockey League Players’ Inc. v. National 1347, The Bremen 412]; v. Zapata 1354 Cal.App.4th Cal.Rptr.2d 39 [46 1, 1907, 513].) Co. (1972) 407 U.S. 15 S.Ct. 32 L.Ed.2d [92 Off-Shore Selection 2. The Trial Court Did Not Err in Forum Enforcing Clause of cruise
Under test for a enforceability the federal two-prong clause, well its selection the trial court was within discretion grant forum conclude that the contract HAL’s motion to dismiss. It reasonable to clause, which was in printed itself disclosed the forum selection adequately letters, in ink tan under the heading all black on a capital background, the first of the passen- “IMPORTANT NOTICE TO PASSENGERS” on page that, the contract. contention beсause Schlessinger’s of ger’s copy was set and not in the numbered separately paragraphs selection clause forth conditions,” it the contract is under the was not of heading part “terms ticket the forum selection containing The of cruise page unpersuasive: is a contract.” clause states “this document legally binding to conclude The trial court was also well within its discretion extrinsic evidence sufficient and her failed to Schlessinger produce coplaintiffs under maritime law that forum selection strong to overcome the presumption Co., The Bremen v. at Zapata supra, (See are 407 U.S. clauses valid. Off-Shore Shute, 15; supra, at Carnival U.S. 590-595 v. 499 p. of enforce- showing bears the burden resisting application clause’s [party law,” novo, “question de a whether a has appellate Federal courts review as (E.g., in a commercial cruise contract. provided been with reasonable notice Cruises, Inc., 835; Dempsey Norwegian supra, Cruise Line v. Princess p. Wallis F.3d Armatori, S.P.A., supra, 999; see also Shankles v. Costa (9th 722 F.2d Cir. F.2d (2000) County Angeles 867.) Cal.App.4th Los explained As we however, 668], governs federal of substance with Cal.Rptr.2d even if law issues [92 court, practice law of the controls on matters respect pending claim in state “the state are, general, defining appellate We the standard of review procedure . . ..” believe rules Humanities, Gasperini (See v. Center 518 U.S. not substantive. procedural for apply district must state diversity case federal court S.Ct. L.Ed.2d [116 659] [in damages, but compensatory appeal award protecting against jury rule excessive substantive review].) Accordingly, rather governed by traditional federal standard of from that decision is reasonableness, deciding court’s decision to independently the issue of we review trial than controlling concluding, federal law under determine whether it abused its discretion standard, under circumstances of be enforced that HAL’s forum selection clause should this case.
559 First, ment is circumstances].) unreasonable under the fact that selection have “take it may clause been as a or leave it” presented proposi tion, and not tо does not make clause unenforceable. subject negotiation, Net2Phone, Lines, 593, 601; (Carnival Cruise Inc. v. Superior 583, Second, (2003) 109 a Cal.App.4th 149].) 588-589 Cal.Rptr.2d [135 need read not have or been aware of the to be passenger actually it, bound he had by long so as or she to review the contract opportunity (Hodes (3d before v. Achille Ed boarding. S.N.C. Lauro Altri-Gestione Cir. 905, 1988) 858 F.2d 911 essential remains whether ticket inquiry [“The communicated to the contract reasonably passenger conditions of the Indeed, vessel”].) boarded the passage passenger contractual before clauses have been affirmed where never the ticket passenger opened (Geller before packet boarding. (2d 1962) v. Holland-America Line Cir. 298 F.2d v. Ferketich Carnival period]; Cruise Lines [limitations 16, 2002, (E.D.Pa., Oct. 02-CV-3019) No. 2002 WL *4 [passenger contract, had notice of ticket adequate terms of selection including forum clause, because she received ticket before even she boarding, would though have forfeited entire cost of if she thereof].4) ticket had cancelled on receipt Third, forum selection clauses been when have upheld contract provides for losses the event monetary of cancellation even if the unlike passenger, received Schlessinger, has nо of the notice cancellation loss schedule to prior the ticket a few receiving (Walker before days v. Carnival Cruise sailing. Lines, (N.D.Ill. Inc. 477-479.)5 681 F.Supp.
In the case the trial court present reasonably found that Schlessinger had ample familiarize herself with opportunity the terms of the contract via HAL’s Web site or a by of the from her requesting copy travel agent. Net2Phone, She failed take simply advantage (See thеse opportunities. Court, supra, unfairness in Cal.App.4th [no certain contract to be requiring terms accessed via It also hyperlink].) concluded properly Schlessinger’s her failure produce coplaintiffs’ contract, any evidence that read they much less the forum objected to clause, at selection time to the current them prior litigation precluded fact, from after the that the contending, clause unenforceable because 4 Opinions of the United published States District Court that have not been in the Federal Supplement properly persuasive, although authority. are cited as precedential, this court (Bowen 777, Technologies, v. Ziasun (2004) Cal.App.4th Cal.Rptr.3d fn. 6 [11 522]; City Hawthorne ex Disposal rel. Wohlner v. H&C Co. see also Cal.App.4th 1668, 1678, 312].) Cal.Rptr.3d fn. 5 [1 enforceability We have penalty no occasion this case to determine the of the cancellation lodges against objection who fide the forum clause bona selection after note, however, receiving We the ticket. that at least line does apparently one cruise have “a long-standing providing object policy passengers full refunds to who to the terms of the (Lurie (S.D.N.Y. 2004) Norwegian Ltd. Passage.” F.Supp.2d Contract 352, 358.)
560 all the cruise have to it without some or of they cоuld not objected forfeiting Lines, (D.Or. fare. v. Cruise Ltd. 897 (See F.Supp. Cross Kloster not read the where “did even [enforcing plaintiff forum selection clause the ticket until after she boarded ship”].)
In her that clause is unenforce contention the forum selection support the late to without forfeiting able because she received the contract too cancel fare, relies on Corna v. American Hawaii cruise Schlessinger primarily Cruises, trial (D.Hawaii 1992) (Corna), published 794 F.Supp. decision, court the court refused to enforce a cruise-ticket forum which standby clause the who booked their cruise on a selection because plaintiffs, did not days basis received the tickets two to three before only departure, the entire cruise forfeiting have the the contract without option rejecting (Id. 1011-1012.) The court concluded under the cirсum fare. district that the forfeiture violated the requirement stances of case provision (Ibid.) “fundamental fairness.” dismiss, the
As trial court motion to the HAL’s recognized granting the from the circumstances in situation in Coma is plainly distinguishable Corna, between standby booking case at bar. In the short extremely period meant did have to become any ability meaning sailing plaintiffs clause, terms, selection fully including informed the contract time (Corna, their fare. to avoid cruise forfeiting supra, F.Supp. Lines, contrast, case, as in Carnival Cruise 1011.) In in the Hicks v. present 388678, *4, 26, 1994, 93-5427) No. 1994 WL (E.D.Pa., July plaintiffs had to become booked the cruise months in advance and ample opportunity brochure, via the HAL’s Web site with terms of contract acquainted not, she, (Ibid. can claim travel does nor she agent. their [“Hicks tickets its terms at concerning from her or information obtaining prevented Lines, Ltd., date.”]; supra, see also Lurie v. Norwegian earlier that when concluding in Coma and [rejecting holding F.Supp.2d “had and incentive review provisions plaintiffs ample opportunity relieve them of the . . failure to do so on their does not part contract. (D.P.R. 1997) therein”]; Lines Royal Caribbean Cruise limitations Gomez held courts have also that notice of important 964 F.Supp. [“The can to a who has not conditions of a be passаge imputed or The ticket be may received the ticket thereof. personally possession Moreover, their as agent.”].) themselves or travel by received passengers discussed, authority of federal maritime holds weight previously if the cruise accept is enforceable even failure forum selection clause all of the fare. result in forfeiture of some or cruise contract terms would *4 (Ferketich [citing Carnival Cruise 2002 WL supra, received her ticket cases Ferketich admittedly and concluding “[b]ecause with reasonable Court finds that Ferketich was before this departure, provided satisfies clause and therefore of the forum selection notice standard.”].)6 ‘reasonable communication’
DISPOSITION *9 its costs on The is affirmed. HAL is to recover appeal. judgment Woods, J., concurred.
JOHNSON, J. of the well-written majority’s typically cоncur in result I Because it recited in footnote 2 of that opinion. for reasons opinion primarily did not I saw no reason to I agree was then an unpublished opinion explain that it to be with the rationale on which it was based. Now is wholeheartedly however, time does not although thorough exposition published, permit concerns, This I feel to some is briefly register of my position, compelled affect might so because the broad used in language opinion particularly situations far more than the one involving egregious trial court decisions before this court. Cruises, American Hawaii Inc.1 Coma view, (discussed in the
In my ante, 560) at the correct and should apply maj. opn., p. represents approach their not to last minute but to who receives just standby anyone passengers, to forfeiture if they ticket a short time before boarding subject ship case, when, unlike the instant decide to cancel. This is true especially Timbuktu, is or its provided equivalent. can be held to have “become There also is an implication passengers informed” of the forum selection clause because merely meaningfully form contract or contracts on the Internet. has its shipping company posted There come a time when it is fair to assume all may prospective passengers are Internet surfers. Especially given computer savvy proficient Lines, Superior Cruise Carnival Cal.App.3d In 1019 [286 323], Cal.Rptr. proceedings Division Three of this court remanded the case for further sufficiency notice of the cruise ticket contract’s passenger’s trial court on the issue of the court, guidance explained its view forum-selection clause. For the of the trial Division Three plaintiff if the court particular that “the clause is unenforceable as to forum-selection prior did have sufficient notice of the forum-selection clause plaintiff determines that such notice, requisite mutual consent entering passage. into the contract for Absent such exists. lacking respect valid contract with to such clause thus that contractual term is and no (Id. Code, 1550, 1565, 1026-1027.) 1580.)” (See, Because Division Three’s e.g., at Civ. §§ law, admiralty еxpressly law as now analysis contract rather than federal is based on California Shute, supra, no Inc. v. page provides it Carnival 499 U.S. required Schlessinger’s argument the clause at issue in this case is unenforceable. support for that Cruises, (D.Hawaii 1992) American F.Supp. 1005. Corna v. Hawaii however, line
average of cruise that is not a realistic age passengers, yet Nor was there in the record of this case assumption. anything particular had either the to access those on the establishing ability contracts appellants Net2Phone, ante, Internet or had done so. Inc. v. Court2 (maj. opn., on which the relies for this is not to the majority opinion point It can contrary. deals with what be who reasonably expected people Internet, is, are on the already terms. hyperlink applicable It about those who lack or an Internеt says nothing binding may computers connection or who are illiterate to that are only terms accessible computer a website.
I also am concerned the elevates the in a majority holdings opinion pair U.S. District Court decisions to the status of California unpublished binding (See of federal maritime law as to certain critical interpretations issues. *10 Lines, ante, Ferketich v. Carnival Cruise at discussed maj. opn., lines, Inc., 560-561 Hicks v. Carnival Cruise discussed at maj. opn., ante, 560.)4 These cases foundation for fragile such appear lay influential California important potentially precedent.
On was modified to read as above. July opinion printed for review Court was denied Appellants’ petition Supreme J.,C. did not therein. George, 2004. September participate 2 Net2Phone, Cal.App.4th Cal.Rptr.2d Inc. v. 149]. [135 (E.D.Pa. 2002) WL Ferketich v. Carnival Cruise Lines 3131977. (E.D.Pa. Hicks Carnival Cruise WL 388678.