COVID No Excuse to Void Forum Selection Clause in Contract of Carriage
Author: Claire Dulle
Turner v. Costa Crociere S.p.A.,9 F.4th1341; 2021 U.S. App. LEXIS 24824*; 2021 WL 3673727 (11th Cir. 2021).
On August 19, 2021, the United States Court of Appeals for the Eleventh Circuit affirmed the district court’s holding to dismiss Plaintiff Paul Turner’s complaint on forum non conveniens grounds.
Plaintiff Turner appealed the district court’s dismissal of the class action claim against Costa Crociere, S.p.A, an Italian cruise line, and its American subsidiary Costa Cruise Lines. Turner was a passenger on the COSTA LUMINOSA cruise ship beginning March 5, 2020, on which there was an outbreak of COVID-19. On March 8th, the ship docked in Puerto Rico to send an Italian couple with COVID-19 symptoms to the hospital. The passengers were not informed of the outbreak until the ship was already on a week long journey across the Atlantic. Costa Cruise Lines did not advise any of their passengers to quarantine, even after the company stated that it would take “the most adequate measures to ensure the highest level of safety for its guests and crewmembers.” After multiple other passengers began to have COVID-19 symptoms, the captain ordered a quarantine. Thirty-six of the seventy-five passengers tested positive for COVID-19 when the vessel docked in France on the 19th of March, including Turner.
Turner sued Costa Cruise Lines and Costa Crociere in the United States District Court for the Southern District of Florida, seeking damages for himself and a class of fellow passengers asserting claims of negligence, negligent misrepresentation, negligent infliction of emotional distress, intentional infliction of emotional distress, and misleading advertising. The Defendants moved to dismiss on the grounds of forum non conveniens stating that Turner must litigate his claims in Italy in accordance with the “General Conditions of Passage Ticket Contract” contained in the ticket. That provision required: “[a]ny claim, controversy, dispute, suit, or matter of any kind whatsoever arising out of, concerned with, or incident to any Cruise or in connection with this Contract shall be instituted only in the courts of Genoa, Italy, to the exclusion of the courts of any other country, state, or nation. Italian law shall apply to any such proceedings, without effect to Italian choice-of-law principles.”
The Eleventh Circuit reviewed the enforceability of a forum selection clause under General Maritime Law and rejected Turner’s argument that a cruise ship’s forum selection clause is fundamentally unfair because it requires claimants to travel to a remote forum and that it is effectively a limitation of liability prohibited by 46 U.S.C. §30509(a).[1]
The Eleventh Circuit held that the district court appropriately considered public factors including administrative difficulties, the interest of the United States in making sure citizens have access to an American forum, Italy’s interest in adjudicating claims that involve their tourism industry, the need to apply Italian law to the case, and the fact that the issue happened upon the Costa Luminosa cruise ship. The court also held that the district court was correct in holding that Italy bears a significant relationship to the dispute at hand, and Italian jurors need to be a part of its resolution.
The Eleventh Circuit further held that the contention that it violated 46 U.S.C. § 30509(a) is without merit as the Supreme Court in Carnival Cruise Lines v. Shute, 499 U.S. 585 (1991) previously held that a forum selection clause in a contract of carriage does not contravene the statue and is thus enforceable.
[1] (a) Prohibition.
(1) In general. The owner, master, manager, or agent of a vessel transporting passengers between ports in the United States, or between a port in the United States and a port in a foreign country, may not include in a regulation or contract a provision limiting—
(A) the liability of the owner, master, or agent for personal injury or death caused by the negligence or fault of the owner or the owner’s employees or agents; or
(B) the right of a claimant for personal injury or death to a trial by court of competent jurisdiction.
(2) Voidness. A provision described in paragraph (1) is void.
