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Forum Selection — A Thumb on Carnival’s Side of the Scale of Justice

As noted in our last blog post, in the 1991 U.S. Supreme Court case of Carnival Cruise Lines v. Shute, a “choice of forum” clause in a cruise ship ticket was upheld.

In dissent, Mr. Justice John Paul Stevens explained the purpose of choice of forum clauses like the one contained in the COSTA CONCORDIA tickets:

“Clauses limiting a carrier’s liability or weakening the passenger’s right to recover for the negligence of the carrier’s employees come in a variety of forms. Complete exemptions from liability for negligence or limitations on the amount of the potential damage recovery, requirements that notice of claims be filed within an unreasonably short period of time, provisions mandating a choice of law that is favorable to the defendant in negligence cases, and forum-selection clauses are all similarly designed to put a thumb on the carrier’s side of the scale of justice.”

In the Shute case, the plaintiff was a lady from Arlington, Washington. She and her husband purchased tickets through a local travel agent. She was injured aboard the Carnival ship TROPICALE, enroute from Los Angeles to Puerta Vallarta, Mexico. The ticket called for suit in Florida.

The Ninth Circuit Court of Appeals ruled that the forum selection clause was unenforceable. The Supreme Court reversed, relying on it’s previous opinion in Bremen v. Zapata Offshore (1972). That case involved a clause in a contract for towage of an oil rig from Louisiana to a location in the Adriatic Sea, calling for litigation in London. To those of us representing injured passengers, it seemed a stretch to extend the Bremen doctrine to require a lady in Arlington to travel to Florida to seek redress for injury.

Justice Stevens would have none of it. Joined by Justice Marshall, he said that the clause in question was “the product of disparate bargaining power between the carrier and the passenger” which “undermine[d] the strong public interest in deterring negligent conduct.”

If the courts will not permit suit against Carnival in this country, the Congress should act to rectify the injustice resulting from Carnival v. Shute and its progeny.

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