YANKEL FINKELSCHTEIN et al. v. CARNIVAL CRUISE LINES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0300-05T10300-05T1

YANKEL FINKELSCHTEIN and DVORIA

FINKELSCHTEIN, his wife,

Plaintiffs-Appellants,

v.

CARNIVAL CRUISE LINES,

Defendant-Respondent.

_____________________________________

 

Submitted May 3, 2006 - Decided June 1, 2006

Before Judges Parker and Newman.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, MON-L-850-05.

Zucker, Facher & Zucker, attorneys for appellants (Irwin L. Facher, on the brief).

Bennett, Giuliano, McDonnell, & Perrone, attorneys for respondent (Joseph J. Perrone, on the brief).

PER CURIAM

Plaintiffs Yankel Finkelschtein and Dvoria Finkelschtein

appeal from an order dismissing their complaint with prejudice for lack of subject matter jurisdiction based on a forum selection clause in defendant Carnival Cruise Lines' passenger ticket contract. We affirm.

The facts are relatively straight-forward. Yankel Finkelschtein was injured when he slipped and fell on a Carnival vessel, the m/v LEGEND, that departed on April 13, 2004 from Port Everglades, Florida on a seven day Caribbean cruise. On March 20, 2004, Carnival mailed the cruise passenger tickets to C&C Cruises Inc. for distribution to plaintiffs. On the first page of the cruise ticket contract, there was an underlined heading entitled "IMPORTANT NOTICE TO GUESTS." There was a notice clause in capital letters calling the attention of the guests to clauses one and thirteen through seventeen, which contained "important limitations on the rights of guests to assert claims against Carnival Cruise Lines, the vessel, their agents and employees, and others."

In paragraph fifteen the cruise ticket contract provided:

It is agreed by and between the Guest and Carnival that all disputes and matters whatsoever 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 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.

Pursuant to this clause, defendant moved to dismiss the complaint for lack of jurisdiction.

In arguing against the motion, plaintiffs certified that Yankel Finkelshtein was a sixty-seven year old Russian migr who does not read, speak, or understand English, that his wife did not read the ticket contract, and that he had no knowledge of the limitation on where a lawsuit could be filed. He further certified that it would be an economic and physical hardship for him to travel to Florida for trial.

In rejecting these arguments, Judge English recognized the enforceability of suit forum selection clauses where there is no presumptuous or unequal bargaining power, citing Carnival Cruise Lines v. Shute, 499 U.S. 585, 111 S. Ct. 1522, 113 L. Ed. 2d 622 (1991).

He also concluded that there was reasonable notice of the clause in the cruise ticket contract. The test was not a subjective one of whether it in fact was read, but whether the notice was reasonable. Judge English amplified this issue, stating:

First the plaintiff states that he did not have adequate notice of the forum selection clause because it was hidden in the contract and the fact that he does not speak or understand any of the English language.

Here, the contract clearly gives the purchaser adequate notice of the provision in question. In capital letters on the first page of the agreement, the buyer is told to pay special attention to certain paragraphs that are tendered on limiting the buyers legal rights.

That fact is buttressed against the fact that the plaintiff does not speak or read English. However, the plaintiff's wife does speak English as is stated in the papers and as well as counsel and she did sign a certification which was attached to the motion and it had the following language in it.

It says "I certify that all of the above statements have been translated to me by my wife and I certify that they are true and I am aware that I am subject to punishment if anything set forth here and [sic] is willfully false." And that was signed by Mr. Finkelschtein.

Additionally, both plaintiff and his wife signed the ticket contract acknowledgement which meant that they received, read and agreed with the terms and conditions of the guest ticket contract. When I say read, again, meaning that the wife understood English and presumably would have the opportunity to have communicated that to her husband.

The parties received the tickets before boarding the vessel and the plaintiff's wife had time to read over the terms and conditions as well. This notice provision is similar to that discussed in CAPSI where the Court concluded that there was not an over looming in bargaining power. Consequently, plaintiff's arguments under the first prong of the test is not persuasive.

In rejecting the contention that the plaintiffs would be seriously inconvenienced if they had to travel to Florida, Judge English explained:

Plaintiff further argues that enforcement in this matter would seriously inconvenience them so that they would have to travel to Florida to participate in this litigation. This is a negligence matter arising out of a slip and fall that occurred on the cruise ship. The discovery in this matter can essentially be conducted the same way it would if the forum was to remain in New Jersey.

If travel to Florida becomes an issue, the plaintiffs, through their attorney can utilize videotape depositions and written discovery sent through the mail. If the matter is not set up prior to trial, the trial may be able to be conducted on an expedited basis similar to the New Jersey system where reports of doctors are submitted for review to jurors without the necessity of calling doctors to testify.

Furthermore, if an expedited system is not available in Florida, doctors or expert witnesses can be videotaped and testimony can be played at trial similar to the New Jersey system.

Judge English made it clear that the dismissal of the complaint was solely on the basis of jurisdictional grounds and that plaintiffs were free to re-file the matter in the State of Florida. He further noted that the original complaint was filed within one year of the date of the alleged injury.

On appeal, plaintiffs contend that the judge erred in upholding the forum selection clause. They refer to certain cases that Judge English purportedly did not consider in deciding the dismissal motion. Citing Walker v. Carnival Cruise Lines (Walker II), 107 F. Supp. 2d 1135 (N.D. Cal. 1999), plaintiffs maintain that the severity of the injuries, as well as their poverty, support retaining jurisdiction in California despite the forum selection clause. Interestingly, in Walker v. Carnival Cruise Lines (Walker I), 63 F. Supp. 2d 1083, 1089 (N.D. Cal. 1999), on reconsideration by, motion denied by 107 F. Supp. 2d 1135 (N.D. Cal. 1999), the court recognized that the legally blind plaintiff was bound by the ticket's clauses because she failed to have someone read the entirety of the ticket to her. Likewise, Yankel Finkelschtein could have had his wife read and translate the ticket for him. However, the facts in Walker I and Walker II are distinguishable because the plaintiffs were unable to travel to Florida due to their physical disabilities because of the injuries and the cruise ship departed from California. Walker II, supra, 107 F. Supp. 2d. at 1136. Here, the cruise ship departed from Florida.

Plaintiffs also contend that the trial judge overlooked the decisions in Kubis, supra, 46 N.J. at 176 and Param Petroleum Corp. v. Commerce and Indus. Ins. Co. 296 N.J. Super. 164 (App. Div. 1997), where the courts declined to enforce forum selection clauses. These cases are readily distinguishable. Both of the forum selection clauses at issue were unenforceable because they were contained in agreements subject to the Franchise Act. Kubis, supra, 146 N.J. at 176; Param, supra, 296 N.J. Super. at 166-67. The protection of franchisees from the superior bargaining power of franchisors violates our State's public policy. No such public policy considerations exist with regard to forum selection clauses in cruise line passenger tickets.

We are satisfied that Judge English properly enforced the forum selection clause in dismissing plaintiffs' complaint, and we affirm substantially for the reasons expressed in his oral decision of July 22, 2005.

Affirmed.

 

In Shute, supra, the Court held that a forum selection clause in a passenger contract did not violate the Limitation of Vessel Owner's Liability Act, 46 U.S.C. 183c. "The Act prohibits contractual clauses which unduly limit a vessel owner's liability for negligence." Smith v. Doe, 991 F. Supp. 781, 782 (E.D. La 1998). Congress amended 183c twice since the Court's decision in Shute, yet the statute reads exactly the same as it did when the Court rendered its decision. Ibid.

Due to these amendments, however, there is disagreement regarding whether 183c superseded Shute. Compare Smith v. Doe, supra, 991 F. Supp. at 782 (holding that 183c does not overturn Shute, supra) with Yang v. M/V Minas Leo, 1 996 U.S. App. LEXIS 2235 (9th Cir. 1996) (holding that Congress overruled Shute in 183c).

In examining forum selection agreements, this State follows M/S Bremen v. Zapata Off-Shore Co. (Bremen), 407 U.S. 1, 10-15, 92 S. Ct. 1907, 1913-16, 32 L. Ed. 2d 513, 520-23 (1972). Generally, a forum selection clause will be enforceable unless it is the result of "'fraud, undue influence, or overweening bargaining power,' is 'unreasonable,' or violates a 'strong public policy.'" Paradise Enters. Ltd. v. Sapir, 356 N.J. Super. 96, 103 (App. Div. 2002), certif. denied, 175 N.J. 549 (2003) (citing Bremen, supra, 407 U.S. at 10-15, 92 S. Ct. 1913-16, 32 L. Ed. 2d at 520-23). In fact, our Supreme Court has categorized Bremen as the "prevailing view" on the enforceability of forum selection clauses. Kubis & Perszyk Assocs v. Sun Microsystems, 146 N.J. 176, 188 (1966). Bremen is also consistent with the principles set forth in the Restatement (Second) of Conflict of Laws 80 (1988 rev): "The parties' agreement as to the place of the action will be given effect unless it is unfair or unreasonable."

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A-0300-05T1

June 1, 2006