Arbitration & Mediation

Carnival Cruise Ticket's "Forum Selection Clause" Is (again) Deemed Valid by 3rd DCA

By Christopher B. Hopkins, Esq.

Clever lawyers from West Palm Beach may have breathed the last clever argument in the war waged by injured passengers seeking to avoid cruise line forum selection clauses. But they did not win and the Southern District will have another cruise injury case.

The cruise line clause states:

"It is agreed by and between Guest and Carnival that all disputes and matters arising under, in connection with or incident to this Contract or the Guest's cruise, including travel to and from the vessel, 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."

The Plaintiffs in the consolidated appeal, Thomas Leslie et al. v. Carnival Corp., make the "intriguing" argument that the forum selection clause is unfair because it contractually constrains the subject matter jurisdiction of the available courts. In other words, their complaint is not that they are geographically limited but that the forum selection clause eliminates their rights to access to state court under the maritime statute.

There is considerable discussion of the "Savings to Suitors" clause of the Jones Act which will be of interest to those who dabble in maritime law. Suffice it to say, a maritime claimant can traditionally sue in state or federal court. Here, by consent to the forum selection clause, the claimant loses his/her right to state court.

Interesting to note how the courts feel about waver of a statutory right when the court does not deem that statute much more than a "legal fiction." See, by comparison, how waiver of statutory rights can alternatively be deemed unconscionable or against public policy, as in Prieto / Perez v. Health Care.

The Third DCA held that this was a "vestigial legal fiction" and that the suggestion that the federal courts did something less than the state courts was "provincial" at best.

For more "traditional" efforts to avoid Carnival's forum selection clause, see Stephen Booth v. Carnival Corp.

Full post as published by Florida Arbitration Law on January 09, 2008 (boomark / email).