COVID-19 and Cruise Ship Forum Selection Clauses
The United States Court of Appeals for the Eleventh Circuit today decided another cruise ship forum selection clause case, this time with an outbreak of COVID-19 looming in the background. In Turner v. Costa Crociere S.P.A., plaintiff Turner contracted COVID-19 in the course of a transatlantic cruise departing from Fort Lauderdale. So did thirty-six of his seventy-five fellow passengers aboard the Costa Luminosa. The plaintiff attempted to sue in the United States District Court for the Southern District of Florida, offering himself as the representative of a "putative class" consisting of himself and the other passengers. His cruise ticket, however, contained a term requiring all disputes arising out of the cruise to be litigated in Genoa, Italy, where the cruise ship operator was based. The plaintiff’s efforts to evade this clause failed before the lower court and on appeal before the Eleventh Circuit.
Forum selection clauses in cruise ship tickets are routinely enforced, as many maritime practitioners are aware. In terms of new ground, the Turner court rejected the argument that traveling to Italy would put the putative class of passengers at risk of complicating their existing symptoms or catching COVID-19 anew. Travel, the court reasoned, is not essential to pursuing an injury case. Quoting another federal court of appeals, the Eleventh Circuit noted that “a plaintiff may have his ‘day in court’ without ever having set foot in a courtroom.”
The plaintiff also argued, somewhat forlornly, that the forum selection clause violated the U.S. Limitation of Liability Act. That Act forbids carriers of passengers by water from limiting their liability for death or injury. That is to say, a complete liability waiver in a cruise ticket is void. Turner argued that forcing him and his fellow passengers to litigate in Italy was effectively a limitation on liability, particularly in view of Italian restrictions on foreign travel. The Eleventh Circuit lost no time pointing out that plenty of other cases, including a well-known United States Supreme Court case, have rejected this argument—and as the court had just stated, merely pursuing a claim did not necessarily entail traveling to Italy.