RIPPLE, Circuit Judge:
In the fall of 2009, Tore Myhra and his family vacationed on a cruise ship operated by Royal Caribbean Cruises, Ltd. During his voyage, Mr. Myhra fell ill, and he died sometime later. His Estate instituted this action against Royal Caribbean, seeking damages for his injuries and death. It alleged that a bacterial infection that he had acquired while on board Royal Caribbean's vessel had caused these tragic events. Royal Caribbean moved to dismiss the action for improper venue under Federal Rule of Civil Procedure 12(b)(3); it relied upon a forum-selection clause among the conditions in Mr. Myhra's passage contract. That clause required that all personal injury claims be litigated in the courts of England and Wales and be governed by English law. At all times relevant to this litigation, the United Kingdom was a party to the Convention Relating to the Carriage of Passengers and Their Luggage by Sea (the "Athens Convention" or the "Convention").
The district court agreed with Royal Caribbean and dismissed the case.
We conclude that 46 U.S.C. § 30509(a) did not prevent Royal Caribbean from including the forum-selection clause in the Myhras' contract. Nor do we perceive any procedural or substantive error in the district court's conclusion that the clause was reasonably communicated to the Myhras. Accordingly, the decision of the district court to dismiss the case was correct, and its judgment must be affirmed.
According to the complaint, Mr. Myhra, the decedent, was a citizen of the England who also resided in England prior to his death. He traveled on a Royal Caribbean cruise aboard the vessel Liberty of the Seas, which departed Miami on October 24, 2009, and returned to the same port on November 1, 2009. On October 28, 2009, while on the cruise, Mr. Myhra became ill and later was diagnosed with Legionnaire's Disease. He subsequently died, apparently as a consequence of the disease.
Another Liberty of the Seas passenger, Jean Young, had become ill on a September 2009 voyage of the same vessel and also had died of what later was determined to be Legionnaire's Disease. The complaint alleges that the Centers for Disease Control and Prevention ("CDC") examined the two cases and determined that both patients were infected with an identical strain of the bacteria and "that the only common source" between the two patients was the Liberty of the Seas.
The Estate brought this negligence action against Royal Caribbean in the United States District Court for the Southern District of Florida. Attached to the complaint was a document labeled "Cruise/CruiseTour Ticket Contract."
Royal Caribbean responded to the complaint with a motion to dismiss. The motion argued that, contrary to the assertion in the complaint, "the applicable terms and conditions of carriage" required that any
The Estate responded to the motion to dismiss by explaining that the only terms and conditions that it initially had been able to locate through the Royal Caribbean website were those requiring litigation in Florida. The Estate submitted a declaration from its attorney describing the manner in which the terms and conditions attached to the complaint were obtained. The attorney stated that, in January 2010 and again in February 2010, several months after the Myhras' cruise, he had visited the Royal Caribbean website and had printed the terms and conditions. Furthermore, the Estate argued that, even if Royal Caribbean's motion had identified the correct terms for the specific voyage at issue, those terms were unenforceable as against the public policy of the United States. Specifically, the Estate invited the court's attention to 46 U.S.C. § 30509(a),
In reply, Royal Caribbean submitted a supplemental affidavit from its legal director. As an explanation as to why the terms were no longer displayed prominently on the website, she stated that the website itself had been "extensively modified" between the time of the Myhras' cruise and their attorney's website search.
The district court agreed with Royal Caribbean and dismissed the case. The court began by setting forth the rule that forum-selection clauses are presumptively valid and enforceable absent "a strong showing that enforcement would be unfair or unreasonable under the circumstances."
The Estate timely appealed.
In this appeal, we must determine whether the forum-selection clause designating the courts of England and Wales as the appropriate venue for any litigation arising out the Myhras' voyage is contrary to the public policy of the United States and therefore unenforceable in its courts. We treat a dismissal based on a forum-selection clause as a question of proper venue under Federal Rule of Civil Procedure 12(b)(3). Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285, 1290 (11th Cir.1998). Although, as a general rule, we review a district court's decision to dismiss under Rule 12(b)(3) with
With that standard in mind, we now turn to the specifics of the case before us. The relevant portion of the particular forum clause reads as follows:
R.18-2 at 5 (emphasis added).
The Estate asks us to invalidate the clause. Its principal contention is that the effect of the forum-selection clause is to impose a limitation on liability that is against the public policy of the United States. Further, even if the clause does not contravene public policy, the Estate maintains that the court should invalidate it nonetheless because it was not reasonably communicated to the Myhras. We address these arguments in turn.
We begin by setting forth the principles that govern the enforcement of forum-selection clauses in the United States courts. The foundational authority is The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). In The Bremen, the Court examined such a clause in a commercial shipping contract and held that it should be regarded as "prima facie valid" and should be enforced "absent a strong showing that it should be set aside." Id. at 10, 15, 92 S.Ct. at 1913, 1916. The burden is on the party resisting enforcement to "clearly show that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching." Id. at 15, 92 S.Ct. at 1916. The Court also identified, however, specific reasons why a United States court would hold a contractual choice-of-forum clause unenforceable; chief among them was the possibility that "enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision." Id., 92 S.Ct. at 1916. The Court acknowledged that some lower courts also had held that a forum-selection clause should not be enforced "if the chosen forum is seriously inconvenient for the trial of the action," and maintained that such a consideration may be relevant to enforceability in some cases. Id. at 16, 92 S.Ct. at 1916 (emphasis in original). Nevertheless, it found no evidence in the record before it that any inconvenience was outside the contemplation of the contracting parties. See id. at 17-18, 92 S.Ct. at 1917. The Court also noted that, under certain circumstances, "[t]he remoteness of the forum might suggest that the agreement was an adhesive one, or that the parties did not have the particular controversy in mind when they made their agreement; yet even there the party claiming should bear a heavy burden of proof." Id. at 17, 92 S.Ct. at 1917. Perceiving none of these impediments in this "freely negotiated international commercial transaction" to substantiate those concerns, the Court upheld the forum-selection clause. Id., 92 S.Ct. at 1917.
The Bremen confirmed a substantial change in the approach of United States courts. It made clear that the days when forum-selection clauses were considered null and void because they purported to "oust" a court of the authority given it by constitutional or statutory authority were no longer with us. Id. at 9, 92 S.Ct. at 1913 (internal quotation marks omitted). The Bremen recognized the reality that privately bargained-for forum-selection clauses were a necessary component of the expanded international commercial relationships of our time. "The expansion of American business and industry will hardly be encouraged if, notwithstanding solemn contracts, we insist on a parochial concept that all disputes must be resolved under our laws and in our courts." Id., 92 S.Ct. at 1912.
Nevertheless, The Bremen left for another day significant questions. Chief among those was whether its holding applied to cases in which the parties displayed a significant inequality of bargaining power, such as between a consumer and a company, as opposed to two sophisticated commercial entities. In Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991), the Supreme Court clarified, however, that the principles of The Bremen apply even to some decidedly unbalanced relationships, and, specifically, to contracts of passage on
The Court's decision in Shute also makes clear that a routine contract for passage on a cruise ship also may be scrutinized to determine whether it violates a strong national public policy embodied in legislation or in a judicial decision. Indeed, in Shute, the Court was asked to examine whether the forum-selection clause at issue violated the public policy embodied in the statute at issue in the present case, 46 U.S.C. § 30509(a).
The precise dispute here is whether the designation of the courts of England and Wales as the exclusive forum for adjudicating disputes violated the strong public policy of the United States such that the clause should not be enforced by United States courts. As we have just noted, the Estate contends that such a public policy is set forth in 46 U.S.C. § 30509, which reads, in pertinent part:
In Shute, the Supreme Court made clear that we are to discern the contours of the public policy embodied in the statute through the process of statutory interpretation. Indeed, the Court, by its own example, demonstrated that it was by reference to the plain wording of the statute and its legislative history that we can discern that public policy. Shute, 499 U.S. at 596, 111 S.Ct. at 1528-29. With Shute as our guide, we turn now to our assessment of the forum-selection clause at issue in this litigation.
We turn first to the language of the statute. In essence, the statute prevents, in pertinent part, a ship owner from placing, in the terms and conditions of a contract of passage or similar instrument, a limitation on liability for personal injury or death. On its face, therefore, the statute's plain wording does not prohibit the use of a forum-selection clause.
The Estate contends, nevertheless, that Royal Caribbean in effect accomplished a limitation on liability and damages by placing in the contract a stipulation that any suit must be brought in the courts of England and Wales. According to the Estate, when the United Kingdom ratified the Athens Convention and expressly incorporated the Convention into its law, it effected a limitation on liability.
Several considerations militate against accepting the Estate's view and against answering the question in the affirmative. The danger presented by a ship owner's unilateral imposition of a limitation on liability is decidedly different from that posed by a valid choice-of-law clause. As the statute's legislative history makes clear, Congress's concern in enacting § 30509(a) was the unilateral imposition of bargaining power by a ship owner to limit its liability for its negligent acts. In Shute, the Supreme Court specifically noted that § 30509(a) "was enacted in response to passenger-ticket conditions purporting to limit the shipowner's liability for negligence or to remove the issue of liability from the scrutiny of any court by means of a clause providing that `the question of liability and the measure of damages shall be determined by arbitration.'" 499 U.S. at 596, 111 S.Ct. at 1529 (quoting S.Rep.
The plaintiffs are quite correct in contending that, in many cases, a forum eventually will apply its own law or enforce the choice-of-law clause of the contract. In this case, for instance, a choice-of-law clause calls for the application of the Convention with its limitation on damages. Although we reach no conclusion on the likely course of litigation in the courts of England and Wales, the plaintiffs contend that those courts would apply the Convention, either as a provision of English law
Furthermore, it is not at all clear whether Congress would consider it appropriate to extend the scope of the statute to cover forum-selection clauses or, if it were to do so, how Congress would craft such a statute. We have noted above the very significant role that such clauses play in the maintenance of the present international legal order. They allow the courts of the United States to respect not only the rights and expressed preferences of nationals of other countries, but also to respect the ability of other national jurisdictions to adjudicate disputes. Accordingly, our continued recognition of these clauses, subject to the limitations the Court has identified, substantially affects the foreign relations of the United States. A prudential respect for the prerogatives of the political branches counsels that we not infer a statutory limitation on such devices absent an explicit exercise of congressional judgment. To prevent another sovereign from applying its substantive policy choices to a case involving its own nationals and its internal commercial relationships is a course that we should not undertake on our own. Under these circumstances, we think the appropriate course is to interpret the statute to its plain language unless Congress, by appropriate amendment, makes policy choices on the contours of choice-of-forum clauses that involve the Country's international commercial relationships.
Finally, the Estate maintains that, even if § 30509 is no bar to the forum-selection clause, that clause nevertheless should be held unenforceable because it was achieved by overreaching.
Krenkel v. Kerzner Int'l Hotels Ltd., 579 F.3d 1279, 1281 (11th Cir.2009) (per curiam).
Attached to Royal Caribbean's motion to dismiss is a short section photocopied from an obviously lengthy booklet entitled "Royal Caribbean International, Worldwide Cruises, Second Edition 2009-2010."
According to the affidavits and attachments submitted by Royal Caribbean with its motion to dismiss, the Myhras' booking agent received and forwarded to the Myhras five separate invoices for their October 2009 voyage. Each contained a notice directing the Myhras to the "UK terms and conditions" accessible at a specific web address, and, in each case, the notice was printed on the page of the invoice with the most important information: the reservation number, passenger names, dates of the voyage and costs.
We turn now to the sufficiency, in physical characteristics and in communication to the plaintiffs, of this clause. In Wallis v. Princess Cruises, Inc., 306 F.3d 827, 836 (9th Cir.2002), the Ninth Circuit reviewed a similar provision in a ticket contract; it was printed in type 1/16th of an inch high and "buried six sentences into [a] paragraph." It also was labeled clearly, however, and was contained on one of several pages marked "PASSAGE CONTRACT" at the top. Id. (internal quotation marks omitted). Further, each passenger received a ticket packet, and at the bottom of several pages was a section labeled "IMPORTANT NOTICE," which, also in 1/16th of an inch type, directed passengers to the contract terms and specifically to a number of paragraphs "affect[ing] ... legal rights," including the paragraph at issue. Id. at 830 (capitalization modified) (internal quotation marks omitted). The Ninth Circuit held that, as a matter of physical presentation, the clause was reasonably communicated. Similarly, in Spataro v. Kloster Cruise, Ltd., 894 F.2d 44 (2d Cir.1990) (per curiam), the Second Circuit held that a clause was reasonably communicated when it was included in small type on page seven of an eight-page
With Wallis and Spataro as our guide, we conclude that the physical characteristics of the warning in this case were sufficient to reasonably communicate the forum-selection clause to the Myhras. The term is printed in a typeface and included within a section similar to that which at least two other federal appellate courts have approved. Although the term appears 131 pages into the Royal Caribbean brochure, the terms and conditions section itself, of which the clause is a part, appears to be only four pages, and it would be inaccurate to characterize this term as somehow "buried" within that section; it can be found under a clear heading, surrounded by related headings, and it appears in identical typeface and size to all of the other terms and conditions.
With respect to whether the Myhras "had the ability to become meaningfully informed of the clause and to reject its terms," Krenkel, 579 F.3d at 1281, we similarly find no difficulty here. On five separate occasions, invoices were sent to the Myhras containing a notice about the binding terms and conditions and directing the Myhras to where those terms and conditions could be found. On an additional occasion, a similar notice was placed under an all-capital headline on the very first page of a large travel packet, ahead of virtually all other information provided about the cruise, again directing the Myhras' attention to the terms and conditions. Furthermore, the term is clear on its face, directing litigation unambiguously to the courts of England and Wales.
Under these circumstances, we conclude that the terms were sufficiently communicated to the Myhras to preclude any claim that they were achieved by overreaching on the part of Royal Caribbean.
Plaintiffs seeking to invalidate forum-selection clauses in contracts have a heavy burden to demonstrate unenforceability. In the present case, the Estate cannot succeed with the arguments it has put forth. We hold that 46 U.S.C. § 30509(a) does not bar a ship owner from including a forum-selection clause in a passage contract, even if the chosen forum might apply substantive law that would impose a limitation on liability. We further hold that, under the particular circumstances set forth in the record before us, the forum-selection clause was reasonably communicated to the Myhras and, therefore, cannot
Id. at 1290-91 (citations omitted).