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HannaS77 March 18th, 2001 10:06 AM

That Nasty Forum Clause

Although I have written a number of time on this subject, there have been an increase in the number of lawsuits against cruise lines that involved the forum selection clause. For those that may not be familiar with this clause, it is usually hidden in the bowels of the small print encompassing the passenger ticket. The forum clause designates where a suit must be filed. For example if you live in New York and cruise aboard a Princess Cruises or Crystal ship,, suit must be filed in Los Angeles, California; for Holland American, Seattle, Washington; for Royal Caribbean or Carnival in Miami, Florida.

The passenger has agreed to the forum clause when he or she accepts the passenger ticket that is an enforceable contract. In the legal world it is known as a "contract of adhesion," i.e. "take it or leave it" but the cancellation provisions in the ticket can make it expensive to cancel. It is no surprise the cruise lines do not provide the passenger with the ticket(contract) until the cancellation penalty period is in force.

When the plaintiff passenger files a suit in a court other than that designated in the ticket, the first line of defense for the cruise line is to ask the judge to dismiss the suit since the passenger has not filed suit in the designated forum. The forum selection clause was upheld by the United States Supreme Court in the case of Carnival v. Shute so it represents case precedent for lower courts, specially the Federal Courts.

My study of the subject is that since the Supreme Court decision, the federal courts have been consistently inconsistent. To compound matters, the Supreme court decision received so much criticism from the legal profession that it now seems to refuse to grant certiorari(review) to any cases offered for review. Congress did not agree with Carnival v.. Shute so it changed USCA Code 46 Section, 183) so that the forum clause was held to be unlawful . Money talks louder than justice for in less than a year, the lobbyist for the cruise lines, that cabal of scoundrels, scalawags and carpetbaggers got Congress to amends Section 183 to what it was before. I always through Congress is supposed to protect United States citizens, not foreign operators. While Congress has made noise that
it opposes the forum clause, holding " These forum selection clauses do restrict a passengers ability to bring suit before a court of competent jurisdiction, are contrary to public policy, and should be declared null and avoid."(*) It is evident the courts are not paying attention to the will of Congress in absence of appropriate legislation. (*) From Congressional Record-not subject to copyright

When the Supreme Court decided Carnival v. Shute it left a loophole. The forum clause may not be enforceable if it is unfair or unreasonable but it did not give guidance on these terms. So what has happened in the interim ?. The federal courts, specially the Court of Appeals may not be as favorable to the plaintiff as state court when it comes to what is or is not unfair or unfavorable. Since I am not a lawyer, my intent is not to give legal advice. You should leave this up to a lawyer who has experience with Maritime claims and the history of the forum clause .

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