Sterling v. Carnival Corporation & PLC

Filing 18

ORDER granting in part 10 Motion to Dismiss. The Clerk of the Court is directed to transfer this matter to the Southern District of Florida, Miami Division. See memorandum attached. Signed by Judge Kari A. Dooley on 1/6/2021. (D'Amato, Joseph)

Case 3:20-cv-01142-KAD Document 18 Filed 01/06/21 Page 1 of 11

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
SURAYA STERLING
Plaintiff,
v.
CARNIVAL CORPORATION & PLC
Defendant.

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3:20-CV-01142 (KAD)

January 6, 2021

MEMORANDUM OF DECISION RE: DEFENDANT’S MOTION TO DISMISS (ECF
NO. 10)
Kari A. Dooley, United States District Judge
This negligence action arises out of Plaintiff Suraya Sterling’s slip-and-fall aboard a cruise
ship operated by Defendant Carnival Cruise Line (“Carnival”). Pending before the Court is
Defendants Carnival Corporation & PLC and Carnival’s1 motion to dismiss the complaint for lack
of subject matter jurisdiction, lack of personal jurisdiction, improper venue, and failure to state a
claim upon which relief can be granted or, in the alternative, to transfer venue to the United States
District Court for the Southern District of Florida in Miami. Plaintiff objects. For the following
reasons, the Court transfers this action to the Southern District of Florida, Miami Division.
Relevant Background
The following facts are either undisputed or as alleged in Plaintiff’s complaint. Through
Carnival’s internet-based portal, Plaintiff booked a trip on a cruise ship called CARNIVAL

Plaintiff incorrectly identified the corporate defendant as “Carnival Corporation & PLC a/k/a Carnival Cruise Line.”
(ECF No. 1). In the affidavit of Maurice Vega, Guest Claims Representative in the Legal Services Department of
Carnival Cruise Line, which is attached to the Defendants’ motion to dismiss, Defendants explain that there are two
separate entities: (1) Carnival Corporation & PLC, a Panamanian corporation with its principal place of business
located in London, England and (2) Carnival, a Panamanian corporation with its principal place of business in Florida,
which is a wholly owned subsidiary of Carnival Corporation & PLC. (ECF No. 10-1 ¶¶ 3–5). Thus, use of the “a/k/a/”
descriptor is incorrect. Although it appears that only Carnival was served (ECF No. 7), counsel appeared for both
entities (ECF No. 8) and they “join together to make the instant motion to dismiss Plaintiff’s complaint,” (ECF No.
10-2 at 5).
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CONQUEST set to embark from Miami, Florida on August 17, 2019. Two days before departure,
on August 15, 2019, Carnival e-mailed Plaintiff her boarding pass and passenger ticket. On the
same day at 6:44 PM, Plaintiff acknowledged receipt of and accepted the terms and conditions
contained in Carnival’s standard form contract of carriage (“Cruise Contract”), which is part of the
passenger ticket. Thereafter, while aboard the cruise ship off the coast of Miami, Florida, on
August 24, 2019 at around 1:00 AM, Plaintiff slipped and fell on a wet floor en route to her cabin
from the Monet Restaurant causing her to suffer a broken leg, among other injuries.
On August 10, 2020, Plaintiff brought the instant action against Defendants alleging
negligence for, inter alia, failing to maintain the floor of the cruise ship in a reasonably safe
condition. On September 16, 2020, Defendants filed the instant motion to dismiss “pursuant to
Fed. R. Civ. P. 12(b)(1), 12(b)(2), 12(b)(3), and 12(b)(6) on the grounds that: (a) this honorable
Court lacks subject-matter jurisdiction; (b) this honorable Court lacks personal jurisdiction over
Defendants; (c) this honorable Court is the improper venue for this matter; and (d) the complaint
fails to state a claim upon which relief can be granted.” (ECF No. 10-2 at 5). In substance,
Defendants move to dismiss (1) for lack of personal jurisdiction, (2) for failure to state a claim due
to Plaintiff’s lack of compliance with the Cruise Contract’s notice provision, and (3) on the basis
of forum non conveniens because the Cruise Contract’s forum selection clause required Plaintiff
to bring her lawsuit in Florida.2 Defendants also argue, in the alternative, that the Court should
transfer the action to the Southern District of Florida in Miami.

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The Defendants argue that the enforceable forum selection clause strips this Court of subject matter jurisdiction.
Whether a forum selection clause is enforceable may have bearing on a motion brought pursuant to Rule 12(b)(6) or,
as discussed above, the question of transfer. It does not however implicate the Court’s subject matter jurisdiction. See
Karl Koch Erecting Co. v. New York Convention Ctr. Dev. Corp., 838 F.2d 656, 658 (2d Cir. 1988) (“A forumselection clause, although it can have jurisdictional consequences, does not oust a district court of subjectmatter jurisdiction.”); Atl. Marine Const. Co. v. United States Dist. Court for W. Dist. of Texas, 571 U.S. 49, 60–61
(2013) (noting that the appropriate way to enforce forum-selection clauses is through Section 1404(a) for cases in
which the transferee forum is within the federal court system).

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Discussion
Preliminarily, the Court has subject matter jurisdiction over this dispute because this claim
implicates the Court’s admiralty jurisdiction. See Ward v. Cross Sound Ferry, 273 F.3d 520, 523
(2d Cir. 2001) (finding admiralty jurisdiction proper in personal injury case where plaintiff fell on
gangway while boarding a ferry). The Court further finds that it is appropriate to bypass the
question of personal jurisdiction because this matter may be disposed of through enforcement of
the forum selection clause. Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 432
(2007) (“A district court . . . may dispose of an action by a forum non conveniens dismissal,
bypassing questions of subject-matter and personal jurisdiction, when considerations of
convenience, fairness, and judicial economy so warrant.”).3 Additional undisputed facts are set
forth as necessary.
The Cruise Contract sent to the Plaintiff and accepted by her contains the following
provision:
TICKET CONTRACT
IMPORTANT NOTICE TO GUESTS: THIS DOCUMENT IS A LEGALLY
BINDING CONTRACT ISSUED BY CARNIVAL CRUISE LINE TO, AND
ACCEPTED BY, GUEST SUBJECT TO THE IMPORTANT TERMS AND
CONDITIONS APPEARING BELOW.
NOTICE: THE ATTENTION OF GUEST IS ESPECIALLY DIRECTED TO
CLAUSES 1, 4, AND 11 THROUGH 14, WHICH CONTAIN IMPORTANT
LIMITATIONS ON THE RIGHTS OF GUESTS TO ASSERT CLAIMS
AGAINST CARNIVAL CRUISE LINE, THE VESSEL, THEIR AGENTS
AND EMPLOYEES, AND OTHERS, INCLUDING FORUM SELECTION,
CHOICE OF LAW, TIME LIMITATIONS FOR FILING SUIT,
ARBITRATION, AND WAIVER OF JURY TRIAL FOR CERTAIN
CLAIMS.

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In making this determination, the Court will apply federal law. See Carnival Cruise Lines, Inc. v. Shute, 499 U.S.
585, 590 (1991) (“First, this is a case in admiralty, and federal law governs the enforceability of the forum-selection
clause we scrutinize.”).

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IMPORTANT TERMS AND CONDITIONS OF CONTRACT –
READ CAREFULLY!
(ECF No. 10-1 at 9 (capitalization and bold in original)). In Clause 1, subsection (e), the Cruise
Contract provides that “[t]he acceptance or use of this ticket by the person(s) named hereon as
Guests shall be deemed acceptance and agreement by each of them to all of the terms and
conditions of this cruise Contract.” (Id.). In Clause 13, subsection (c), regarding forum selection,
the Cruise Contract, in relevant part, provides:
[I]t 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 Sates 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.
(Id. at 20). Thus, if enforceable, the Cruise Contract unequivocally requires that Plaintiff bring her
suit in the Southern District of Florida, Miami Division.
Although raised as a basis for dismissal, the Supreme Court has “held that generally ‘the
appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is through
the doctrine of forum non conveniens,’ rather than Rule 12(b).” Martinez v. Bloomberg LP, 740
F.3d 211, 216 (2d Cir. 2014) (quoting Atl. Marine Const. Co. v. United States Dist. Court for W.
Dist. of Texas, 571 U.S. 49, 60 (2013)). Accordingly, the Court views the Defendants’ motion
through the lens of a motion for transfer made pursuant to 28 U.S.C. § 1404(a), which codifies
“the doctrine of forum non conveniens for the subset of cases in which the transferee forum is
within the federal court system[.]” Atl. Marine Const. Co., 571 U.S. at 60. “This clarification of
the proper procedural vehicle for enforcing a forum selection clause, however, does not appear to
alter the materials on which a district court may rely in granting a motion to dismiss based on a

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forum selection clause.” Martinez, 740 F.3d at 216. “In deciding a motion to dismiss for forum
non conveniens, a district court normally relies solely on the pleadings and affidavits, though it
may order limited discovery.” Id. (citations omitted). “Similarly, in evaluating a motion to dismiss
based on a forum selection clause, a district court typically relies on pleadings and affidavits, but
must conduct an evidentiary hearing to resolve disputed factual questions in favor of the
defendant.” Id. at 216–17 (citations omitted). Here, the Court relies upon the pleadings as well as
the parties’ submissions seeking and opposing the motion to dismiss.
Generally, “when a defendant moves to dismiss on the ground of forum non conveniens,
courts assess: (1) the deference to be accorded the plaintiff’s choice of forum; (2) the adequacy of
the alternative forum proposed by the defendants; and (3) the balance between the private and
public interests implicated in the choice of forum.” Fasano v. Yu, 921 F.3d 333, 335 (2d Cir. 2019)
(per curiam). “Where the parties have contractually selected a forum, however, the forum selection
clause substantially modifies the forum non conveniens doctrine” and the analysis undertaken by
the Court. Id. (internal quotation marks and alterations omitted). “Instead, a district court must
[first] consider three factors: . . . whether (1) the clause was reasonably communicated to the party
resisting its enforcement; (2) the clause is mandatory or permissive; and (3) the claims and parties
to the dispute are subject to the clause.” Id. Satisfaction of these factors creates a presumption of
enforceability, which can be overcome at step four only by “a sufficiently strong showing that
enforcement would be unreasonable or unjust, or that the clause was invalid for such reasons as
fraud or overreaching.” Martinez, 740 F.3d at 217 (quotation marks and citations omitted); see Atl.
Marine Const. Co., 571 U.S. at 61 (noting that courts evaluate forum selection clauses in the same
way pursuant to § 1404(a) as they do pursuant to the forum non conveniens doctrine). While “it is
conceivable [that a district court] would refuse to transfer a case notwithstanding the counterweight

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of a forum-selection clause, such cases will not be common.” Atl. Marine Const. Co., 571 U.S. at
64 (internal quotation marks and citation omitted). Thus, “forum-selection clauses should control
except in unusual cases.” Id.
Here, Plaintiff makes no claim that the forum selection clause is not mandatory or that the
parties here are not subject to the clause. Rather, Plaintiff appears to argue that the Court should
find the forum selection clause unenforceable because (1) Carnival did not reasonably
communicate it to her4 and (2) it is unreasonable or unjust.
Reasonable Communication
In the context of contracts arising out of the issuance and acceptance of passenger tickets,
to determine whether a carrier reasonably communicated a specific clause to a passenger, the
district court must apply a two-part test: “(1) whether the physical characteristics of the ticket itself
reasonably communicated to the passenger the existence therein of important terms and conditions
that affected the passenger’s legal rights, and (2) whether the circumstances surrounding the
passenger’s purchase and subsequent retention of the ticket/contract permitted the passenger to
become meaningfully informed of the contractual terms at stake.” Ward, 273 F.3d at 523 (internal
quotation marks and brackets omitted) (hereinafter, “the Ward test”); Zuber v. Cross Sound Ferry
Servs., Inc., No. 04CV4708ADSAKT, 2007 WL 9724568, at *8 (E.D.N.Y. Feb. 8, 2007) (“It does
not make a difference whether [the passenger], like most other ordinary passengers, did not
actually read the terms on the back of the ticket . . . The Court is only to be concerned with whether
the passenger had a[] reasonable opportunity to read the back of the ticket.” (emphasis in

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Inexplicably, Plaintiff does not address the forum non conveniens question in the context of a forum selection clause
at all. Rather, she argues the factors germane to a traditional forum non conveniens analysis. Notwithstanding, the
Court considers her arguments as best it can within the confines of the applicable law. In that vein, Plaintiff refers to
the clause as a “hidden clause.” The Court therefore construes the Plaintiff’s argument as asserting that the Defendants
did not reasonably communicate the clause to her, though such an argument is not explicitly advanced.

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original)). Plaintiff’s arguments are construed as attacking both prongs of the Ward test. First,
Plaintiff asserts that the forum selection clause was a “hidden clause.” (ECF No. 11-1 at 11); see
fn. 4 supra. The Court disagrees. At the outset of the Cruise Contract, Carnival specifically directed
Plaintiff’s attention to the forum selection clause by bold and capitalized letters. (ECF No. 10-1 at
9). Carnival then advised Plaintiff to “READ CAREFULLY!” (Id.). And, in Clause 13, by regular
print, the Cruise Contract mandates that disputes “shall be litigated, if at all, before the United
States District Court for the Southern District of Florida in Miami[.]” (Id. at 20). Similarly
communicated forum selection clauses are regularly upheld as enforceable by the Second Circuit,
and Plaintiff offers no persuasive reason why the result should be different in her case. See, e.g.,
Effron v. Sun Line Cruises, Inc., 67 F.3d 7, 9 (2d Cir. 1995) (“The warning ‘IMPORTANT
NOTICE—READ BEFORE ACCEPTING’ is found in bold, capitalized, medium-sized lettering
on the face of the ticket. Immediately below the warning, in somewhat smaller print, the ticket
purchaser’s attention is directed specifically to the contract clause that limits choice of forum. The
forum-selection clause itself states in clear and unambiguous language—albeit in fine print—that
all suits against the carrier must be brought in Athens, Greece.”).
Although advanced as part of her argument that enforcement would be unjust, Plaintiff also
argues that Carnival should have called Plaintiff’s attention to the clause before she purchased her
ticket. However, the second prong of the Ward test “focuses on the subjective circumstances
attending a particular plaintiff’s opportunity to review the ticket terms before embarkation.” Ward,
273 F.3d at 525 (emphasis added; internal quotation marks omitted). In Ward, the Second Circuit
found that defendant-carrier did not give plaintiff-passenger reasonable notice of the contract term
at issue where defendant issued the ticket just minutes prior to plaintiff boarding the ship. Id. at
524–26. Further, plaintiff’s accident occurred while boarding the ship and her husband carried her

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onto the ship before handing the tickets to the ticket collector. Id. at 525–26. Here, unlike the
plaintiff in Ward, who had little or no time to review the ticket, Plaintiff had ample time to review
the Cruise Contract prior to embarkation. Indeed, on August 15, 2019 at 6:44 PM, two days before
the cruise embarked, Plaintiff acknowledged receipt of the Cruise Contract and accepted its terms
and conditions. Carnival also granted Plaintiff continuous access to her booking information and
documentation via Carnival’s website and portal. There was no reason Plaintiff would have been
unable to review the Cruise Contract before boarding the cruise and she offers none. The Court
finds that Carnival reasonably communicated the forum selection clause to Plaintiff. Accordingly,
the forum selection clause is entitled to the presumption of enforceability and it becomes Plaintiff’s
obligation to make “a sufficiently strong showing that enforcement would be unreasonable or
unjust, or that the clause was invalid for such reasons as fraud or overreaching.” Martinez, 740
F.3d at 217 (quotation marks and citations omitted).
Unreasonable or Unjust
In addition to the assertions advanced and rejected above, Plaintiff appears to argue that
limiting her choice of forum is unconscionable. Specifically, Plaintiff argues that a reasonable
person would not expect to find a forum selection clause in similar contracts and that its inclusion
caused her unfair surprise.5
In considering whether the forum selection clause is unreasonable, the Supreme Court’s
decision in Carnival Cruise Lines, Inc. v. Shute is instructive. 499 U.S. 585 (1991). There,
Washington-based plaintiff-passengers sought to pursue a negligence action arising out of a slip
and fall during a cruise in the Western District of Washington despite a forum selection clause

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This argument is advanced in the context of whether any unconscionable contract is enforceable.

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requiring any such action to be brought in Florida. Id. at 588.6 The Supreme Court found that the
forum selection clause contained in the ticket contract was enforceable, id. at 595, and in so
finding, rejected the notion that the forum selection clause was unreasonable or unjust by
accounting for “the realities of form passage contracts,” id. at 593. Instead of decrying such
contracts as inherently unjust, the Supreme Court set forth several reasons such forum selection
clauses are permissible. Id. For example, the Supreme Court noted that (1) cruise lines have a
special interest in limiting the fora in which they potentially could be sued because they carry
passengers from many locales; (2) “establishing ex ante the forum for dispute resolution” reduces
confusion regarding where suits must be brought thereby “sparing litigants the time and expense
of pretrial motions” and “conserving judicial resources that otherwise would be devoted to
deciding those motions”; and (3) “passengers who purchase tickets containing a forum clause . . .
benefit in the form of reduced fares reflecting the savings that the cruise line enjoys by limiting
the fora in which it may be sued.” Id. at 593–94 (emphasis added). Accordingly, the Supreme

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The face of each ticket contained an admonition in capital letters that read:
SUBJECT TO CONDITIONS OF CONTRACT ON LAST PAGES IMPORTANT! PLEASE
READ CONTRACT-ON LAST PAGES 1, 2, 3

Id. at 587. On “contract page 1” each ticket included the following:
TERMS AND CONDITIONS OF PASSAGE CONTRACT TICKET
...
3. (a) The acceptance of this ticket by the person or persons named hereon as passengers shall be
deemed to be an acceptance and agreement by each of them of all of the terms and conditions of this
Passage Contract Ticket.
...
8. It is agreed by and between the passenger and the Carrier that all disputes and matters whatsoever
arising under, in connection with or incident to this Contract shall be litigated, if at all, in and before
a Court located in the State of Florida, U.S.A., to the exclusion of the Courts of any other state or
country.
Id. at 587–88.

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Court was not persuaded by the argument Plaintiff appears to advance here, that a “nonnegotiated
forum-selection clause in a form ticket contract is never enforceable simply because it is not the
subject of bargaining.” Id. at 593. The Court sees no basis, and the Plaintiff offers none, upon
which to distinguish the contract at issue here from the contract considered by the Supreme Court
in Shute.
Lastly, though advanced in connection with her legally misplaced forum non conveniens
argument, Plaintiff argues that she would be unfairly inconvenienced if she were forced to litigate
in Florida because of the expense associated with her physician-witnesses having to travel. “In
Atlantic Marine, the Supreme Court held that such ‘private interests’ play no role in determining
whether to transfer a case based on a forum selection clause.” Martinez, 740 F.3d at 229 (citing
Atl. Marine Const. Co., 571 U.S. at 582). “It concluded that ‘[w]hen parties agree to a forumselection clause, they waive the right to challenge the preselected forum as inconvenient or less
convenient for themselves or their witnesses, or for the pursuit of the litigation.’” Martinez, 740
F.3d at 229 (quoting Atl. Marine Const. Co., 571 U.S. at 582).
In addition, in Shute, the Supreme Court rejected a similar argument regarding the
inconvenience of litigating in Florida. There, plaintiffs purchased their cruise tickets in
Washington, departed from and returned to California, and suffered injury off the coast of Mexico.
499 U.S. at 587–88. Notwithstanding, the Supreme Court held that Florida was “not a remote alien
forum” and that the dispute, insofar as the accident occurred off the coast of Mexico, was not “one
inherently more suited to resolution in the State of Washington than in Florida.” Id. at 594. Even
more so here, where Plaintiff purchased her ticket in Connecticut, departed from Florida, and
suffered injury off the coast of Florida, Florida is not a remote alien forum and the dispute is,
arguably, inherently more suited to resolution in Florida than in Connecticut. Thus, like the

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plaintiffs in Shute, Plaintiff has not satisfied the “heavy burden of proof required to set aside the
[forum selection] clause on grounds of inconvenience.” Id. at 595 (internal citation and quotation
marks omitted).
For the foregoing reasons, the forum selection clause in the Cruise Contract is neither
unjust nor unreasonable and is therefore enforceable. Accordingly, the Court transfers this matter
to the Southern District of Florida, Miami Division.7
Conclusion
For the foregoing reasons, Defendants’ motion to dismiss is granted in part. The Clerk of
the Court is directed to transfer this matter to the Southern District of Florida, Miami Division.

SO ORDERED at Bridgeport, Connecticut, this 6th day of January 2021.
/s/ Kari A. Dooley
KARI A. DOOLEY
UNITED STATES DISTRICT JUDGE

Pursuant to 28 U.S.C. § 1404(a), the appropriate remedy is transfer rather than “outright dismissal.” Atl. Marine
Const. Co., 571 U.S. at 60; 28 U.S.C. § 1404(a) (“For the convenience of 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
or to any district or division to which all parties have consented.”).
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