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Mack v. Royal Caribbean Cruises10/20/2005
Plaintiffs James and Sheila Mack brought suit against defendant Royal Caribbean Cruise Lines, Ltd., alleging that James cut his foot in the swimming pool area of a cruise ship owned and operated by defendant. Plaintiffs alleged that defendant was liable for negligently maintaining its swimming pool area; that defendant was vicariously liable for the negligent medical treatment James received from defendant's on-board physician; and that defendant was liable to Sheila for loss of consortium. Pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308), defendant now appeals the trial court's interlocutory orders reinstating the plaintiffs' vicarious liability count and denying defendant's motion to dismiss.
Plaintiffs filed suit on November 29, 2001. Defendant moved to dismiss the vicarious liability and loss of consortium counts of plaintiff's complaint on the grounds that federal admiralty law did not recognize those causes of action. Initially, the trial court granted defendant's motion; however, on June 2, 2004, the trial court granted plaintiff's motion to reinstate the vicarious liability count after considering the recent holding of the Florida appellate court in Carlisle v. Carnival Corp., 864 So. 2d 1 (Fla. 2003), appeal allowed, 904 So. 2d 430 (2005). Carlisle held that a passenger injured by the negligent treatment of a cruise line's on-board physician could maintain a vicarious liability cause of action against the cruise line.
Defendant also moved to dismiss the case on the grounds that the forum selection clause in the ticket contract between the parties required plaintiffs to bring suit in Miami, Florida. The case proceeded to an evidentiary hearing on this issue.
Nancy Calvo Varela testified that on March 2001, plaintiffs met with her to discuss Mediterranean cruises. Varela, a travel agent for American Express Travel, doing business as Crossroads Travel Service (hereinafter Crossroads Travel), provided plaintiffs with several brochures. Varela testified that on March 14, 2001, Sheila visited Crossroads Travel to place a deposit on a cruise offered by defendant. On June 8, 2001, Sheila visited Crossroads Travel to make final payment on the cruise. On June 28, 2001, Sheila visited Crossroads Travel a final time to pick up her trip information. Varela identified a ticket booklet at the hearing. While not identical, the booklet was essentially the same as the one Varela testified that she had given Sheila. It provided in relevant part:
"IT IS AGREED BY AND BETWEEN PASSENGER AND 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 MIAMI, FLORIDA, U.S.A., TO THE EXCLUSION OF THE COURTS OF ANY OTHER STATE, TERRITORY, OR COUNTRY. PASSENGER HEREBY WAIVES ANY VENUE OR OTHER OBJECTION THAT HE MAY HAVE TO ANY SUCH ACTION OR PROCEEDING BEING BROUGHT IN ANY COURT LOCATED IN MIAMI, FLORIDA."
Varela testified that on June 28, 2001, when she gave Sheila the ticket booklet, she explained that Sheila should read the booklet and that it would need to be signed before the plaintiffs could board the ship. Varela did not discuss the substance of the booklet or specifically refer Sheila to the forum selection clause. Varela testified that the booklet would have contained both ground transportation vouchers that would have allowed plaintiffs to board the bus from the airport in Rome to the pier in Civitavecchia, Italy, and tickets that would allow them to board the ship once they arrived at the pier. Varela testified that if a cruise passenger arrived at the dock without a ticket, he would be required to sign a ticket dockside before boar
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