Lischinskaya v Carnival Corp.

[*1] Lischinskaya v Carnival Corp. 2006 NY Slip Op 52571(U) [14 Misc 3d 1230(A)] Decided on October 4, 2006 Supreme Court, Kings County Dabiri, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 4, 2006
Supreme Court, Kings County

Viktoriya Lischinskaya, Plaintiff,

against

Carnival Corporation d/b/a/ Carnival Cruise Lines, Sunexpress Travel Inc. and National Registered Agents, Inc., Defendants.



12356/05

Gloria M. Dabiri, J.

Upon the foregoing papers, defendant Carnival Corporation d/b/a Carnival Cruise Lines (Carnival), moves for an order, pursuant to CPLR 3211(a) (2) and (a) (8), dismissing the action of plaintiff Viktoriya Lischinskaya (plaintiff) insofar as asserted against it.[FN1]

Plaintiff commenced the instant action to recover damages for personal injuries she allegedly sustained while a passenger aboard the motor vessel (m/v) Imagination, a cruise ship owned and operated by Carnival Cruise Line ship. Carnival moves to dismiss for lack of subject matter jurisdiction based upon the forum selection clause contained in plaintiff's passenger ticket contract, which requires that suit be brought in the courts of Florida. Plaintiff opposes, arguing that Carnival waived its objections to jurisdiction by its participation in the present action, that factual issues exist as to whether she received adequate notice of the forum selection clause, and that assuming the validity of the clause, the action should not be dismissed, but transferred to a court in Florida. [*2]

Facts and Procedural History

In November 2004, plaintiff booked a five-day western Caribbean cruise with Carnival through travel agent defendant Sunexpress Travel Inc. (Sunexpress).[FN2] The cruise was scheduled to depart from Miami, Florida on January 8, 2005. Plaintiff received confirmation from Carnival on or about November 13, 2004. The confirmation warned plaintiff of penalties for any changes or cancellation of the tickets (for plaintiff and her companion) and advised plaintiff to review the General Information Section of the brochure for Passport Data, Vacation Protection Plan coverage and cancellation policies. Plaintiff states that this was the only document she received from Carnival at the time she paid the entire amount due for the cruise, and that her cruise and plane tickets were mailed to her in sealed envelopes sometime thereafter.

On December 3, 2005, Carnival, via first class mail, sent Sunexpress a cruise packet to distribute to plaintiff. The cruise packet consisted of, among other things, plaintiff's cruise ticket; Carnival's standard form contract of carriage, embodied within the ticket; a boarding pass; and a "Welcome Aboard" brochure. An exemplar ticket jacket provided by Carnival contains the words "IMPORTANT NOTICE TO GUESTS" and further states in bold capital letters:

"THE ATTENTION OF GUEST IS ESPECIALLY DIRECTED TO CLAUSES 1 AND 13 THROUGH 17, WHICH CONTAIN IMPORTANT LIMITATIONS ON THE RIGHTS OF GUESTS TO ASSERT CLAIMS AGAINST CARNIVAL CRUISE LINES, THE VESSEL, THEIR AGENTS AND EMPLOYEES, AND OTHERS."

In addition, the ticket contract contains the following forum selection clause at paragraph 15:

"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 to those lawsuits to which the Federal Courts of the United States lack subject matter jurisdiction, before a court located in Miami-Date County, Florida, U.S.A. to the exclusion of the Courts of any other county, state or country."

According to Ms. Menendez, all passengers who sail on Carnival vessels receive their passenger ticket contracts prior to sailing, and cannot board the ship without the ticket.

On January 8, 2004, plaintiff boarded the m/v Imagination and was asked to produce [*3]her ticket packet. According to plaintiff, she handed the entire packet over to ship personnel, who removed "something" from the ticket and handed the packet back to her. According to Ms. Menendez, when boarding, plaintiff signed a "Guest Ticket Acknowledgment" in order to board the ship, which confirmed to Carnival that plaintiff received, read and understood the passenger ticket and passage contract. However, the annexed Guest Ticket

Acknowledgment does not contain plaintiff's signature. Moreover, plaintiff avers in her affidavit that she was never asked by anyone whether she had read her ticket nor was she advised by anyone to read her ticket. In this regard, plaintiff states that the only thing she was told to read and did read was the confirmation at the time she purchased her tickets.

On January 13, 2005, while aboard the ship, plaintiff allegedly slipped on a wet and slippery deck, and sustained a fractured vertebrae. In April 2005, plaintiff commenced the instant negligence action against defendants National Registered Agents, Inc. (National), Sunexpress and Carnival. Plaintiff effected service upon Carnival, a Panamanian corporation, by service of a summons and verified complaint upon defendant National, Carnival's registered New York agent, pursuant to Business Corporation Law § 306.

Carnival served its answer on June 23, 2005, interposing the affirmative defenses of, among other things, lack of subject matter jurisdiction and lack of personal jurisdiction. Counsel for plaintiff states that Carnival served discovery demands along with its answer, as well as a demand for a bill of particulars, to which plaintiff responded, but produces no evidence to support this claim.

Counsel for Carnival states that contrary to plaintiff's contentions, it did not engage in discovery in this case - it served no demands upon plaintiff and has not responded to any demands from any party. In fact, Carnival's counsel asserts that after National joined issue, it was National which served upon plaintiff a demand for a bill of particulars, as well as a demand for discovery and inspection; that National wrote a good faith letter to plaintiff, dated August 25, 2004, when plaintiff failed to provide responses to National's discovery demands; and that National filed an RJI and moved to strike the complaint or preclude plaintiff from producing evidence at trial pursuant to its demands, which motion was adjourned, and eventually withdrawn when plaintiff provided discovery responses to National. Carnival's counsel further states that by letter dated October 28, 2005, plaintiff requested a preliminary conference, and that pursuant to a PC order issued on or about November 7, 2005, all parties were required to appear before this court on November 18, 2005. On that date, a discovery schedule was set, wherein plaintiff and Carnival were scheduled for depositions on February 28, 2006, and March 14, 2006, respectively. On or about February 1, 2006, however, Carnival moved to dismiss the complaint, and this motion is presently before the court.

Discussion

In support of its motion to dismiss, Carnival argues that this court lacks subject matter jurisdiction based upon the forum selection clause in the parties' contract, which requires that the instant suit be brought in either the United States District Court for the Southern District [*4]of Florida or the state courts of Miami-Dade County.

Plaintiff opposes, arguing that Carnival's participation in this action acts as a waiver of its right to assert its jurisdictional defense. Specifically, plaintiff argues that Carnival engaged in discovery and delayed making the instant motion so that the one-year statute of limitations would run and preclude her from recommencing the action in Florida should the motion be granted.

Plaintiff also asserts that Carnival's requirement that its passengers sign its "Guest Ticket Acknowledgment" before boarding demonstrates its acknowledgment that the mere existence of the forum selection clause in the passenger contract does not constitute sufficient notice to the passenger of the clause. In this regard, since plaintiff denies signing the Acknowledgment, she maintains that an issue of fact exists as to whether she received adequate notice of the forum selection clause.

Lastly, plaintiff contends that should the court uphold the forum selection clause, the proper remedy is to transfer the action to a Florida court pursuant to CPLR 327, rather than dismissing the action.

Carnival replies that it did not engage in extensive litigation or avail itself of the jurisdiction of this court; that the forum selection clause was reasonably communicated to plaintiff since she had the opportunity to read the ticket; and that the remedy of transfer pursuant to CPLR 327 is unavailable.

As a threshold matter, "a passenger ticket contract is a maritime contract and therefore governed by the general maritime law of the United States" (Lurie v Norwegian Cruise Lines, Ltd., 305 F Supp 2d 352, 356 [SDNY 2004]; see also Cronin v Cunard Line Ltd., 250 AD2d 486, 486, citing Feingold v Cunard Line, 767 F Supp 84, 85 [D NJ 1991] ["A passenger cruise ticket for an ocean voyage constitutes a maritime contract"]). "In maritime cases, State courts must apply Federal law to secure a single and uniform body of maritime law'" (Lerner v Karageorgis Lines, Inc., 66 NY2d 479, 485 [1985], quoting Matter of Rederi [Dow Chem. Co.], 25 NY2d 576, 581[1970], cert denied 398 US 939 [1970]). Under maritime law, as a general matter, forum selection clauses are presumptively valid (Carnival Cruise Lines v Shute, 499 US 585, 589 [1991]; see also LSPA Enterprise, Inc. v Jani-King of New York, Inc., 31 AD3d 394 [2006] ["A contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court"]; Botial v Ace Navigation Co., Inc., 271 AD2d 373, 373 [2000] ["forum selection clauses in maritime actions are routinely enforced"]). In this regard, forum selection clauses in form passage contracts must be reasonably communicated' by the carrier to cruise line passengers and such clauses are subject to judicial scrutiny for reasonableness and fundamental fairness (Shute, 499 US at 590, 593-595; Lurie, 305 F Supp 2d at 359). As a result, "[a] two-part test has evolved to evaluate the legal effect of a forum selection clause: (1) whether the physical characteristics [*5]of the ticket reasonably communicate the existence of the terms and conditions at issue; and (2) whether the circumstances surrounding the passenger's purchase and subsequent retention of the tickets permitted the passenger to become meaningfully informed of its contractual terms" (Golden v Celebrity Cruises Inc., 4 Misc 3d 33, 35 [2004], citing Shute, 499 US at 595, Effron v Sun Line Cruises, Inc., 67 F3d 7 [2d Cir 1995], and Lerner, 66 NY2d at 486; see also Ward v Cross Sound Ferry, 273 F3d 520, 523 [2d Cir 2001]; Valenti v Norwegian Cruise Line, 2005 WL 927167, *3 [SDNY 2005]; Lurie, 305 F Supp 2d at 359). In determining whether the terms of a form passage contract are reasonably communicated to the passenger, courts consider the "adequacy of so-called warning language,' often found on the front cover of a cruise ticket, directing a passenger to read the particular terms inside the ticket" (cf. Marek v Marpan Two, Inc., 817 F2d 242, 245 [3d Cir 1987] [analyzing time limitations]). Courts also look to the ticket terms themselves, as well as "such physical characteristics as the location of the terms within the ticket, the size of the typeface in which they are printed, and the simplicity of the language they employ" (id.). "The question is thus whether, taken together, the various notices and provisions of this cruise ticket contract' suffice legally to give effect to the time limits it contains" (id., quoting Lubick v Travel Servs., Inc., 573 F Supp 904, 907 [D VI 1983]). "A party contesting enforcement of a forum selection provision bears the heavy burden' of demonstrating why enforcement would be unreasonable" (Ferketich v Carnival Cruise Lines, 2002 WL 31371977, *2 [ED Pa 2002], quoting The Bremen v Zapata Off-Shore Co., 407 US 1, 9-10 [1972]). Whether the terms and conditions of the passage contract were reasonably communicated is a question of law for the court to determine (Marek, 817 F2d at 245).

Here, Carnival has amply demonstrated that the passage contract and the accompanying brochure [FN3] reasonably communicate and warn passengers of the forum selection clause. As noted, the ticket jacket, in bold capital letters, states "IMPORTANT NOTICE TO GUESTS," and directs the attention of passengers to various clauses of the contract, which contain "important limitations on rights of guests to assert claims" against Carnival, including the forum selection clause. The brochure contains in large bold capital letters "CONDITION OF CONTRACT" and provides, in pertinent part, that:

"If you look at the cover of your ticket booklet, you will see an Important Notice to Guests.' This notice directs your attention to the terms and conditions of your contract. It is important to read this and become acquainted with the specific conditions and limitations of your passage, including time limitations and proper venue in which to file suit (emphasis added)." [*6]

Further, beneath the "Ground Transportation/Hotel Reservation Information," on page 2 of the contract, it states in bold, underlined capital letters: "IMPORTANT TERMS AND CONDITIONS OF CONTRACT - READ CAREFULLY." Moreover, the contract contains a section in bold entitled "Before you leave home, please be sure to: "Familiarize yourself with the important information in this ticket packet, including the terms and conditions of the ticket contract and the Welcome Aboard booklet." Courts have repeatedly held that this ticket and those similar to it "reasonably communicate to passengers the existence of the forum selection clause in the ticket contract" (Igneri v Carnival Corp., 1996 WL 68536 [EDNY 1996]; see also Ferketich, 2002 WL 31371977; Hicks v Carnival Cruise Lines, Inc., 1994 WL 388678 [ED PA 1994]; Partesi v Carnival Cruise Lines, Inc., 1990 WL 302890 [D NJ 1990]; Tone, 1993 WL 437650; Grivesman v Carnival Cruise Lines, WL 62580 [ND Ill 2001], vacated by, transferred by, 2001 WL 436202 [ND Ill 2001]; Lemoine v Carnival Cruise Lines, 854 F Supp 447 [ED La 1994]).

In addition, the record reveals that the circumstances surrounding plaintiff's purchase and subsequent retention of the tickets permitted her to become meaningfully informed of the contractual terms of the contract. Specifically, Ms. Menendez states in her affidavit that all passengers who sail on Carnival vessels receive their passenger ticket contracts before sailing, and that Carnival sent plaintiff's cruise packet to Sunexpress, which included the tickets, on December 3, 2003, for distribution to plaintiff. Plaintiff does not dispute the foregoing, and admits having received the tickets sometime after November 13, 2003, before the cruise began on January 8, 2004. Thus, a reasonable time existed before the cruise to enable plaintiff to review the terms of the ticket contract (see Golden, 4 Misc 3d at 35 ["plaintiff . . . has not contested defendant's assertion that the tickets were mailed to him on approximately November 16, and that he was thus in possession of the tickets for two to three weeks prior to . . . canceling his reservations]; Valenti, 2005 WL 927167 at * 4 [forum selection clause reasonably communicated where ticket received October 24, 2003 and trip commenced November 23, 2004]; Lurie, 305 F Supp 2d at 361 [reasonable communication where ticket received almost two weeks prior to cruise]; Hicks, 1994 WL 388678 at *3 [reasonable communication where ticket received the night before cruise departed]).

In opposition, plaintiff has failed to rebut this showing. In this regard, plaintiff argues that Carnival concedes, at least implicitly, that by virtue of its sign-in policy, there must be an express written acknowledgment by the passenger in order for the limitations in its tickets to apply. Plaintiff also states that she only read the confirmation she received from Carnival, which did not mention the contractual limitations contained in the ticket; that she was never orally advised of the contractual limitations before she purchased the ticket; and that she received the ticket in a sealed envelope, which she presented to the Carnival agent when she boarded the ship. Plaintiff concludes that since she did not see the ticket or sign the Guest Ticket Acknowledgment, a question of fact exists as to whether she received adequate notice of the forum selection clause. The argument is rejected. In this regard, as noted above, "[t]he essential inquiry remains whether the ticket reasonably communicated to the passenger [*7]the conditions of the contract of passage before the passenger boarded the vessel" (Tone, 1993 WL 437650, *2, quoting Hodes v S.N.C. Achille Lauro ed Altri-Gestione, 858 F2d 905, 910 [3d Cir 1988], cert dismissed 490 US [1989]; overruled on other grounds by Lauro Lines S.R.L. v Chasser, 490 U.S. 495 [1989]), or "whether the circumstances surrounding the passenger's purchase and subsequent retention of the tickets permitted the passenger to become meaningfully informed of its contractual terms" (Golden, 4 Misc 3d at 35). Here, it is undisputed that plaintiff received her tickets sometime after December 3, 2003, and that the cruise began on January 8, 2004. Plaintiff does not dispute that she had a reasonable time to read her ticket contract and review the forum selection clause before her cruise began on January 8, 2004.

Plaintiff's contention that she was unaware of the contents of the contract fails to raise an issue of fact as to whether she received adequate notice of the forum selection clause. "The passenger who has the ticket in his possession and fails to read it takes the risk of such omission" (Lerner, 66 NY2d at 487 [internal citation and internal quotation marks omitted]; see also Baron v Compagnie Generale Transatlantique, 108 F2d 21, 23 [2d Cir 1939] [lawful provisions on a ticket as part of a contract of passage bind the passenger regardless whether passenger read them]; Melnik v Cunard Line Ltd., 875 F Supp 103, 107 [NDNY 1994] ["(f)ailure to read a ticket will not relieve a passenger of the contractual limitation" [internal citation and internal quotation marks omitted]; De Carlo v Italian Line, 416 F Supp 1136, 1137 [SDNY 1976] [plaintiff charged with notice of ticket provisions even though plaintiff never saw ticket which was held by traveling companion]; Barkin v Norwegian Caribbean Lines, 1987 WL 766923, *4 [D Mass 1987] [plaintiff charged with notice provisions even though she did not read the ticket contract, which contained both her and her mother's name]). In sum, the ticket packet reasonably communicated to plaintiff the forum selection clause, and thus is enforceable.

Plaintiff also argues that Carnival waived its right to assert the defense of lack of subject matter jurisdiction because of its extensive participation in this action. This argument lacks merit. As an initial matter, Carnival properly asserted its jurisdictional defenses in its answer (CPLR 3211[e]). Moreover, it did not receive any demands for a bill of particulars concerning its affirmative defenses, and neither sought nor provided any discovery. Further, while it attended a preliminary conference, it made the instant motion approximately three months later. Inasmuch as Carnival asserted the affirmative defense of lack of subject

matter jurisdiction in its answer, and did not meaningfully participate in discovery, it cannot be said that it waived its right to assert this defense. In any event, "[a] judgment or order issued without subject matter jurisdiction is void, and that defect may be raised at any time and may not be waived" (Montella v Bratton, 93 NY2d 424, 432 [1999] [internal citation

and internal quotation marks omitted]; see also Feustel v Feustel, 242 AD2d 628, 629 [1997] ["subject matter jurisdiction may never be waived]; Sangiacomo v County of Albany, 302 AD2d 769, 771-772 [2003] [based upon nonfiling of summons, "the subject matter jurisdiction of the court was not invoked, resulting in a nonwaivable defect. Accordingly, [*8]the defendants' participation in discovery . . . does not constitute a waiver"]). Further,

inasmuch as the action could have been dismissed for lack of subject matter jurisdiction at any time, plaintiff could have promptly moved to dismiss the jurisdictional defense under CPLR 3211 (b), which would have brought the matter to an early adjudication (Siegal, Practice Commentaries, McKinney's Cons. Law of NY, Book 7B, C3211:41 at 63). "Having failed to bring the issue to prompt adjudication, plaintiff[] may not now be heard to complaint" (cf. Dickinson v Houston, 97 AD2d 665, 666 [1983], lv denied 61 NY2d 606 [1984] [where plaintiffs elected to rely on the validity of service instead of promptly moving to strike the defense of lack of personal jurisdiction pursuant to CPLR 3211(b)]).

Plaintiff's reliance upon Biener v Hystron Fibers (78 AD2d 162 [1980]) for the proposition that Carnival waived its right to assert the defense of lack of subject matter jurisdiction based upon its participation in this litigation, is misplaced. First, unlike the defendant in Biener, Carnival engaged in litigation only minimally before it moved to dismiss. Second, in Beiner, the court already had subject matter jurisdiction over the defendant, and held that the defendant had waived personal jurisdiction by virtue of a stipulation defendant had entered into settling the action with the plaintiff, which clearly evinced an intent to waive its jurisdictional defense, unlike the conduct of Carnival here.

Plaintiff also argues in the alternative that, should the court find the forum selection clause enforceable, an order should be entered pursuant to CPLR 327 dismissing this action conditioned upon Carnival's acceptance of service in a Florida court, waiver of its defenses of jurisdiction and statute of limitations, and that plaintiff be given a reasonable period of time in which to retain Florida counsel to recommence this action. In this regard, plaintiff relies upon the analogous provisions of 28 USC 1404, which provides that: "For the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."

CPLR 327, entitled "Inconvenient forum," provides that:

"When the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just. The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action."

Here, the court lacks authority to condition the dismissal as plaintiff suggests. In this regard, "[a]pplication of forum non conveniens should turn on considerations of justice, fairness and convenience', with dismissal directed when it plainly appears that New York is an inconvenient forum and that another is available which will best serve the ends of justice and the convenience of the parties'" (Foley v Roche, 68 AD2d 558, 565, quoting Silver v Great Amer. Ins. Co., 29 NY2d 356, 365 [1971]). While conditional dismissals are predicated upon this doctrine, "where it is found that jurisdiction is lacking a conditional dismissal is inappropriate" (id.). Stated otherwise, "where the challenge is to the jurisdiction of the court in the first instance, the central issue is whether jurisdiction exists. If the court determines [*9]that it lacks jurisdiction, the action must be dismissed and, in such case, there is no authority to condition the dismissal" (id. at 566; Gager v White, 53 NY2d 475, 487, fn 8 [1981] cert denied 454 US 1086 [1981] [where jurisdiction of action founded on attachment of an out-of-State defendant's liability insurance policy, and action did not survive jurisdictionally, court would not condition dismissal on defendant's willingness to stipulate that it would not plead the statute of limitations if suit pursued in an appropriate forum because, "where basis jurisdiction is lacking there just is no power to condition the dismissal"]; Kalman v Newman, 80 AD2d 116, 126, fn 2 [1981] [where defendants moved to dismiss on the grounds that court lacked quasi-in-rem jurisdiction, court would not grant defendant's motion on condition that defendant agree not to assert the Statue of Limitations in any later action "for reasons stated by the First Department in Foley v Roche (68 AD2d at 565-566)]).

Finally, to the extent plaintiff argues that the action should not be dismissed since it would cause her to be without any forum at all in which to prosecute her claim, the court is not unmindful of the consequences of a dismissal. Nevertheless, "the running of a statute of limitations . . . does not present a basis for invalidating the forum selection clause" (Best Cheese Corporation v All-Ways Forwarding Int'l Inc., 24 AD3d 580, 581 [2005] [enforcing a forum selection clause involving the United States Carriage of Goods by Sea Act]; see also Oltman v Holland America Line-USA, Inc., 2006 WL 2222293, *4 [W.D. Wash 206] ["passengers can protect their rights by filing suit within one year of their injuries and in the forum specific in the contract . . . Moreover . . . Congress has indicated that vessels may contractually provide for a one-year limitation on filing suit" (id., citing 46 USC § 183b [internal citation omitted]). Absent subject matter jurisdiction, the court lacks the authority to enter an order conditionally dismissing the action pursuant to CPLR 327.

In summary, the motion of defendant to dismiss the complaint insofar as asserted against it is granted.

This constitutes the decision, order and judgment of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1:Plaintiff has discontinued her action against the other defendants.

Footnote 2:Liz Menendez, Claims Representative for Carnival, states in her sworn affidavit that plaintiff purchased her ticket through C&C Cruises Inc. travel agency, although she also avers that Carnival sent plaintiff's cruise packet to Sunexpress.

Footnote 3:The brochure "was sent with the ticket and there is no reason why it should not be considered part of the totality of warnings and notices alerting plaintiffs to read their ticket contract" (Tone v Carnival Cruise Lines, Inc., 1993 WL 437650, *4 [ED Pa 1993]).

"[I]t simply adds further support to the conclusion that the ticket contract terms were reasonably communicated to the plaintiff[]" (id.).