The opinion of the court was delivered by: NEALON
William J. Nealon, Chief Judge, Middle District of Pennsylvania.
Plaintiff commenced this action seeking to recover for injuries suffered on or about January 13, 1986 while plaintiff, Lottie Everett, was a passenger on board the M/S Holiday, a cruise ship operated by defendant. Defendant filed a Motion to Dismiss alleging lack of in personam jurisdiction and improper venue on March 25, 1987. Defendant filed a supporting brief on April 3, 1987 and plaintiffs opposed on April 21, 1987. Subsequently, plaintiffs requested an extension of time to complete discovery on the personal jurisdiction and venue issues. This request was granted and plaintiffs were given until July 1, 1987 to complete discovery on these issues. Upon completion of this discovery, the parties filed supplemental briefs. Accordingly, the motion is ripe for disposition. For the reasons set forth below, the court will grant defendant's Motion to Transfer this action to the United States District Court for the Southern District of Florida.
Defendant seeks to have this action transferred to the United States District Court for the Southern District of Florida based on a forum selection clause contained in the Passage Contract Tickets (tickets) that plaintiffs received when they purchased passage on board the M/S Holiday cruise ship. In support, defendant attaches a copy of a specimen ticket which, through affidavit, defendant establishes is a copy of the tickets issued to and used by plaintiffs. See Document 8 of the Record, Exhibit B. As a term and condition of each ticket it is stated:
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. The issue for the court to decide is whether this limitation applies in this case.
The court emphasizes that plaintiffs have not denied receiving replicas of the specimen ticket provided to the court. The affidavit of Jack J. Stein (Stein) provided by defendants states "from my review of the records of Carnival Cruise Lines, Inc., I can certify that, with regard to the contract conditions contained on Contract Page 1, Contract Page 2, Contract Page 3, Exhibit 'A' are identical to those terms as they appeared on the tickets issued to Lottie and Robert Everett." See Document 8 of the Record, Exhibit A at para. 9. Indeed, the affidavit of Lottie Everett indicates that tickets were purchased for the cruise from Magic Travel and Tour Agency in Wilkes-Barre, Pennsylvania. While it is not clear exactly when these tickets were purchased, plaintiffs acknowledge that the tickets were received by them approximately two (2) or three (3) weeks before their departure in January 1986.
In Marek v. Marpan Two, Inc., 817 F.2d 242 (3d Cir. 1987), our Court of Appeals considered the long line of cases involving the enforcement of contractual conditions that are invariably located deep in the fine print of cruise ship tickets. Id. at 243. In Marek, the court found that the ticket in issue was reasonably communicative in giving notice of the existence and importance of its limiting conditions. Therefore, the court affirmed the district court's entry of summary judgment for the defendant cruise line. As the court stated:
One focal point is the adequacy of so-called 'warning language,' often found on the front cover of a cruise ticket, directing a passenger to read the particular terms inside the ticket. The other focal point is the ticket terms themselves, and concerns such physical characteristics as the location of the terms within the ticket, the size of the typeface in which they are printed, and the simplicity of the language they employ. The question is thus whether, 'taken together, the various notices and provisions of this cruise ticket contract' suffice legally to give effect to the time limits it contains.
Id. at 245 (citation omitted). Thus, the Court of Appeals held "we therefore follow in the wake of those courts, including those in our Circuit (footnote omitted), that have adopted the more practical 'standard of reasonable communicativeness,' (footnote omitted) (citation omitted), and we apply that standard as we assess Marek's (plaintiff's) particular contentions." Id. See also Gardner v. Greek Line, 388 F. Supp. 856 (M.D. Pa. 1975) (Muir, D.J.) (contract's paragraphs if read are reasonably comprehensible).
The ticket in question is a four-part tear-away form which contains the words "final confirmation" on the first page which provides that it is "Accounting Copy -- Not Good For Passage." The second page, yellow in color, states in red type on the bottom center of the ticket "Passenger Ticket -- To Be Presented For Passage." This second yellow page contains, in the lower righthand corner, in blue capital letters "SUBJECT TO CONDITIONS OF CONTRACT ON LAST PAGES 1, 2, 3." The third page of the ticket is similar to the first page except that in the lower left hand corner, in a blue box, is printed:
SUBJECT TO CONDITIONS OF CONTRACT ON LAST PAGES
IMPORTANT! PLEASE READ CONTRACT ON LAST PAGES 1, 2, 3 [See ...