Walker v. Carnival Cruise Lines, Inc.

889 N.E.2d 687, 383 Ill. App. 3d 129
CourtAppellate Court of Illinois
DecidedMay 21, 2008
Docket1-07-3538
StatusPublished
Cited by30 cases

This text of 889 N.E.2d 687 (Walker v. Carnival Cruise Lines, Inc.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walker v. Carnival Cruise Lines, Inc., 889 N.E.2d 687, 383 Ill. App. 3d 129 (Ill. Ct. App. 2008).

Opinion

JUSTICE THEIS

delivered the opinion of the court:

Plaintiff Jerry Walker brought this action for personal injuries she sustained while she was a passenger on one of defendant Carnival Cruise Lines’ ships. Defendant moved to dismiss the complaint under section 2 — 619(a)(9) of the Code of Civil Procedure (the Code) (735 ILCS 5/2 — 619(a)(9) (West 2006)), because the cruise ticket plaintiff purchased contained a forum-selection clause requiring that all disputes arising in connection with the cruise be litigated in a court in Miami, Florida. The circuit court ultimately found the forum-selection clause unenforceable and certified two questions for review pursuant to Supreme Court Rule 308. 155 Ill. 2d R. 308. Carnival now appeals, requesting review of the first certified question. We answer the question in the affirmative, holding that plaintiff is bound by the forum-selection clause in the cruise ticket contract.

BACKGROUND

Plaintiff embarked on a seven-day Western Caribbean cruise aboard defendant’s ship the M/V Carnival Miracle. The cruise departed from the Port of Tampa, Florida, on October 30, 2005, and returned to the Port of Tampa on November 6, 2005. Carnival delivered the tickets for the cruise to plaintiff’s travel agent by two-day express mail on September 23, 2005. Upon receipt, the travel agent immediately delivered the tickets to plaintiff’s sister, the designated person in charge of making travel arrangements for plaintiff’s cruise. Plaintiff received her cruise ticket booklet in a blue envelope from her sister a week prior to her departure. This cruise was plaintiffs seventh or eighth Carnival cruise since 1994. For all of her cruises, she received a cruise ticket booklet similar to the one she received for her trip in October 2005.

While the ship was in international waters, on November 3, 2005, plaintiff slipped and fell on a platform leading to a waterslide. A year later, on November 2, 2006, plaintiff filed this action for negligence against Carnival and its employees. In response, Carnival moved to dismiss the complaint pursuant to section 2 — 619(a)(9) of the Code (735 ILCS 5/2 — 619(a)(9) (West 2006)), arguing that the cruise ticket forum-selection clause required plaintiff to litigate her claim in Miami, Florida. The ticket booklet, attached to the motion to dismiss, contained the following admonitions, and the following appeared in capital letters on the face of the ticket booklet:

“IMPORTANT NOTICE TO OUR GUESTS: THE GUEST TICKET CONTRACT IN THIS BOOKLET CONTAINS CONDITIONS ON NUMBERED PAGES 1 THROUGH 11 IN THE REAR PORTION OF THIS BOOKLET. YOUR ATTENTION IS DIRECTED TO THESE CONDITIONS, CERTAIN OF WHICH CONTAIN IMPORTANT LIMITATIONS ON RIGHTS OF GUESTS TO ASSERT CLAIMS AGAINST THE CRUISE LINE, VESSEL, OR THEIR AGENTS OR EMPLOYEES. PLEASE READ THE CONTRACT AND THESE TERMS AND RETAIN THE CONTRACT FOR FUTURE REFERENCE.”

An additional notice appears on the third page of the ticket booklet under the title “IMPORTANT REMINDERS” and states that “all guests must familiarize themselves with the specific conditions and liabilities in the ‘Terms and Conditions of Contract.’ ”

On the face of the cruise ticket contract, the following notice appears in all capital letters:

“NOTICE: THE ATTENTION OF GUEST[S] IS ESPECIALLY DIRECTED TO CLAUSES 1 AND 13 THROUGH 17, WHICH CONTAIN IMPORTANT LIMITATIONS ON THE RIGHTS OF GUESTS TO ASSERT CLAIMS AGAINST CARNIVAL CRUISE LINES, THE VESSEL, THEIR AGENTS AND EMPLOYEES, AND OTHERS.”

Paragraph 15 of the cruise ticket contract contains the forum-selection clause as follows:

“It 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 *** 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 States 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.”

Additionally, prior to boarding the ship on October 30, 2005, plaintiff signed a “Guest Ticket Contract Acknowledgment” attached to the ticket contract which indicated in bold letters that she had received and had an opportunity to read all of the terms and conditions of the contract and understood and accepted all such terms and conditions.

The circuit court allowed limited discovery on the circumstances surrounding plaintiff’s receipt of her cruise ticket booklet and issues related to the motion to dismiss. After briefing and oral argument, the trial court denied Carnival’s motion to dismiss. The court found that the cruise ticket contract did not satisfy the first prong of the “reasonable communicativeness” test as reiterated in Mack v. Royal Caribbean Cruises, Ltd., 361 Ill. App. 3d 856, 838 N.E.2d 80 (2005), because the envelope of the cruise ticket package contained no notification of the forum-selection clause’s existence and the language on the cover of the booklet was insufficient notice of the clause contained in paragraph 15 of the contract. Additionally, the court found that plaintiff’s claimed damages were not so extensive as to justify the cost to litigate the cause in Miami, Florida, which would have a deterrent effect on plaintiff’s ability to litigate her case against Carnival.

Subsequently, Carnival filed a motion to reconsider the circuit court’s ruling. During the hearing, a discussion ensued regarding the appealability of the court’s order. As the court acknowledged in its order, the court was “uncertain as to whether appeal should be sought pursuant to Supreme Court Rule 304, 306 or 308.” After hearing oral argument, the trial court denied the motion to reconsider and granted leave to appeal under all three supreme court rules. The court then certified the following two questions for review under Supreme Court Rule 308 (155 Ill. 2d R. 308), finding that its order involved a substantial ground for difference of opinion and that an immediate appeal might materially advance the ultimate termination of the litigation:

“1. Whether the trial court erred in its application of law pertaining to its denial of Carnival’s 735 ILCS 5/2 — 619(a)(9) motion to dismiss and subsequently filed motion to reconsider.
2. Whether the court orders denying Carnival’s motions to dismiss and to reconsider are properly appealable subject to Illinois Supreme Court Rule 304, 306 or 308.”

ANALYSIS

As a threshold matter, it is evident from the trial judge’s order and remarks at the hearing on the motion to reconsider that there were several questions and concerns raised as to the appealability of this interlocutory order. Carnival has only appealed under Rule 308 and asks this court to consider only the first certified question.

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Cite This Page — Counsel Stack

Bluebook (online)
889 N.E.2d 687, 383 Ill. App. 3d 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-carnival-cruise-lines-inc-illappct-2008.