“[C]onditions and limitations in contracts for the carriage of passengers by water . . . become binding on the passenger by his mere acceptance of the ticket within such a time as to give him an ample opportunity to examine its contents.”
How later courts described this case
- “[C]onditions and limitations in contracts for the carriage of passengers by water . . . become binding on the passenger by his mere acceptance of the ticket within such a time as to give him an ample opportunity to examine its contents.”
- “[C]ourts have uniformly held that passengers are bound by provisions printed on a ticket, even though the passenger did not actually read those provisions . . . [before] accept[ing] passage on the ship.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
FRANCO CRUZ, AS NEXT FRIEND §
FOR F.M.C., A.V.C. & D.M.; NANCY §
CRUZ, KYLE ESPINOZA, AS NEXT § SA-23-CV-00834-XR
FRIEND FOR L.E., M.C., M.M. & N.R.; §
AND KRIZEL CRUZ, §
Plaintiffs §
§
-vs- §
§
CARNIVAL CORPORATION, §
Defendant §
ORDER ON MOTION TO TRANSFER VENUE
On this date, the Court considered Defendant Carnival Corporation’s motion to transfer
venue (ECF No. 6). After careful consideration, the Court issues the following order.
BACKGROUND
Plaintiffs brought this action against Defendant Carnival Corporation (“Carnival”),
alleging claims for breach of contract, Texas Deceptive Trade Practices Act violations, and various
common law torts arising out of a week-long cruise in March 2022 and Carnival’s allegedly
misleading COVID-19 policies and procedures.
On June 4, 2021, Plaintiffs Franco Cruz and ten of his family members purchased vacation
packages on a Carnival ship departing Galveston, Texas on March 6, 2022. Plaintiffs’ family
members included two young children: a 3-year-old and a 6-month-old. The entire family tested
negative for COVID-19 within 48 hours before their departure. When they arrived at Port
Galveston, Plaintiffs were told that, although the infant was exempt from further testing, the 3-
year-old would need to be retested because he was not vaccinated. The next day, Plaintiffs learned
that children under the age of five were prohibited from attending the ship’s daycare, “Camp
Ocean,” because, at the time, a COVID-19 vaccine was not available for young children. Plaintiffs
were also informed that, because of the unvaccinated children, they would need to book—and pay
additional fees for—a “bubble tour” in order to disembark the ship. As a result, “Plaintiffs stayed
on the ship for the week; sleeping, eating, and walking around the ship on port days was all that
was made available to them.” ECF No. 1-2, Original Pet. ¶ 14. “Plaintiffs felt as if they were
captives, they felt discriminated against because of having small children, and for not having all
of his family vaccinated; even though certain vaccines were not recommended at the time for
certain ages[.]” Id.
Plaintiffs booked their cruises in three separate bookings. On June 4, 6, and 7, 2021,
Carnival sent a Guest Confirmation Email to each Plaintiff. ECF No. 6-1, Borcegue Decl. at ¶¶
12–15; Exhs. B1–B4 (Booking History Notes). The Guest Confirmation Email provided notice
that the cruise was subject to the terms and conditions set forth in the Cruise Ticket Contract (the
“Contract”). ECF No. 6-1, Borcegue Decl. at ¶ 16; Exh. C (Exemplar Guest Confirmation Email).
Plaintiffs accepted the terms of the Contract by acknowledging it electronically during the online
check-in process approximately two weeks before the cruise.1 ECF No. 6-1, Borcegue Decl. at ¶¶
17–21; ECF No. 8-1, Cruise Ticket Contract Acceptance Report. The Contract included Section
14 of the ticket contract contains the following forum-selection clause:
[I]t 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, including travel to and from the vessel, 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.
1 Paragraph 1(e) of the Contract also explains that the named guest automatically accepts the terms of the
contract when she accepts or uses the ticket: “The acceptance or use of this ticket by the person(s) named hereon as
Guests shall be deemed acceptance and agreement by each of them to all of the terms and conditions of this Cruise
Contract.” ECF No. 6-9 at 3.
ECF No. 6-9 at 16. The first page of the Contract draws special attention to the forum-selection
clause:
IMPORTANT NOTICE TO GUESTS
THIS DOCUMENT IS A LEGALLY BINDING CONTRACT ISSUED BY
CARNIVAL CRUISE LINE TO, AND ACCEPTED BY, GUEST SUBJECT TO
THE IMPORTANT TERMS AND CONDITIONS APPEARING BELOW.
THE ATTENTION OF GUEST IS ESPECIALLY DIRECTED TO
SECTIONS 1, 4, AND 12 THROUGH 15, WHICH CONTAIN IMPORTANT
LIMITATIONS ON THE RIGHTS OF GUESTS TO ASSERT CLAIMS
AGAINST CARNIVAL CRUISE LINE, THE VESSEL, THEIR AGENTS AND
EMPLOYEES, AND OTHERS, INCLUDING FORUM SELECTION.
ECF No. 6-9 at 2.
Plaintiffs originally filed this action in the 166th Judicial District Court, Bexar County,
Texas on May 4, 2023, seeking over $250,000 in damages. See id. at 1. Carnival removed the case
to federal court on the basis of diversity jurisdiction and this courts admiralty jurisidiction. ECF
No. 1 at 2–3. Carnival now seeks to transfer this case to the Miami Division of the United States
District Court for the Southern District of Florida pursuant to the forum-selection clause. ECF No.
6. Plaintiffs have not filed a response and the time in which to do so has expired.
DISCUSSION
I. Legal Standard
Pursuant to 28 U.S.C. § 1404(a): “[f]or the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil action to any other district or division
where it might have been brought.” After determining that the suit could have been filed in the
destination venue, the Court weighs the parties’ private interests in convenience and the public
interest in the fair administration of justice. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947).
The burden of showing “good cause” rests with the defendant under 28 U.S.C. § 1404(a),
requiring him to persuade the court “that the transferee venue is clearly more convenient.” In re
Volkswagen of Am., Inc. (“Volkswagen II”), 545 F.3d 304, 314 (5th Cir. 2008). However, the
burden is easier to satisfy than that for forum non conveniens, and a district court has broader
discretion in ordering transfer under § 1404(a). Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253
(1981). This is because, unlike forum non conveniens, a change of venue maintains the same
federal forum, so a defendant’s burden of showing “good cause” is already enough to protect the
plaintiff’s choice of venue. Volkswagen II, 545 F.3d at 314–15.
This “calculus” of § 1404(a) changes, however, where transfer is sought based on a forum-
selection clause. When a contract includes a valid forum-selection clause, the district court
ordinarily should transfer the case to the forum stated in the clause. Atl. Marine Const. Co. v. U.S.
Dist. Ct. for W. Dist. of Tex., 571 U.S. 49, 62 (2013). Only under extraordinary circumstances
unrelated to the convenience of the parties should a § 1404(a) motion be denied Id. The court must
deem the private interests to weigh in favor of the preselected forum, the parties having struck that
balance by their contract. In re Rolls Royce Corp., 775 F.3d 671, 678 (5th Cir. 2014). Before giving
this “controlling” weight to a forum-selection clause, however, the clause must first be a valid and
controlling one. Atl. Marine, 134 S. Ct. at 581 n.5. Forum-selection clauses are presumed to be
valid and must be enforced by the court unless shown to be unreasonable. See Haynsworth v. The
Corp., 121 F.3d 956, 962 (5th Cir. 1997).
II. Analysis
The Supreme Court has found forum-selection clauses in passenger ticket contracts
presumptively valid and enforceable. Carnival Cruise Lines v. Shute, 499 U.S. 585 (1991). The
Fifth Circuit too, has held that they are prima facie valid and enforceable. See Seattle-First Nat’l
Bank v. Manges, 900 F.2d 795, 799 (5th Cir. 1990). To overcome the presumption of validity, the
party challenging the forum-selection clause has a “heavy burden” of establishing that enforcement
of the clause would be “unreasonable under the circumstances.” See Int’l Software Sys. v.
Amplicon, Inc., 77 F.3d 112, 114 (5th Cir. 1996).
In evaluating a cruise ticket contract substantially similar to the one at issue in this case,
the Supreme Court held that passengers are bound by non-negotiated forum-selection provisions
contained in their cruise ticket contracts. Shute, 499 U.S. 585. In Shute, a couple purchased a cruise
from Carnival. Id. at 587. Carnival sent the Shutes a ticket contract containing a Florida forum-
selection clause. Id. at 587–88. The Shutes boarded the ship in Los Angeles, California. Id. at 588.
While on the cruise, Mrs. Shute sustained injuries when she slipped on a deck mat. Id. The Shutes
filed suit in a Washington federal district court instead of Florida, and Carnival moved for
summary judgment contending the forum-selection clause in the contract required the Shutes to
bring suit in Florida. Id.
Disagreeing with the lower court, the Court held that the forum-selection clause was not
unenforceable “simply because it [was] not the subject of bargaining.” Id. at 594. The Court further
concluded that “there [was] no indication that [Carnival had] set Florida as the forum in which
disputes were to be resolved as a means of discouraging cruise passengers from pursuing legitimate
claims.” Id. at 595. “Any suggestion of such a bad-faith motive,” it noted, was “belied by two
facts: Petitioner has its principal place of business in Florida, and many of its cruises depart from
and return to Florida ports.” Id. Indeed, the Court identified numerous reasons for including a
forum-selection provision in the ticket contract:
[F]irst, a cruise line has a special interest in limiting the fora in which it potentially
could be subject to suit. Because a cruise ship typically carries passengers from
many locales, it is not unlikely that a mishap on a cruise could subject the cruise
line to litigation in several different fora. Additionally, a clause establishing ex ante
the forum for dispute resolution has the salutary effect of dispelling any confusion
about where suits arising from the contract must be brought and defended, sparing
litigants the time and expense of pretrial motions to determine the correct forum,
and conserving judicial resources that otherwise would be devoted to deciding those
motions. Finally, it stands to reason that passengers who purchase tickets
containing a forum clause like that at issue in this case benefit in the form of reduced
fares reflecting the savings that the cruise line enjoys by limiting the fora in which
it may be sued.
Id. at 593–94 (citations omitted). Finally, the Court pointed out that the plaintiffs provided “no
evidence” of the clause being “obtained . . . by fraud or overreaching” and that plaintiffs “conceded
that they were given notice of the forum provision and, therefore, presumably retained the option
of rejecting the contract with impunity.” Id. In short, the Court held that the forum-selection clause
was enforceable.
As in Schute, the language of the forum selection clause, and the Contract’s terms
impressing the importance of provisions such as the forum selection clause, “reasonably
communicate” the clause “to Carnival’s passengers.” Cline v. Carnival Corp., No. 3:13-CV-1090-
B, 2014 WL 550738, at *3 (N.D. Tex. Feb. 12, 2014) (citing Spataro v. Kloster Cruise, Ltd., 894
F.2d 44, 46 (2d Cir.1990) (holding that “sea carriers [must] reasonably communicate [relevant
contractual terms] to their passengers”)). It is undisputed that Plaintiffs acknowledged receipt of
the Contract weeks before boarding the ship and ultimately accepted passage on the ship; they are
therefore bound by the terms of the Contract, including the forum-selection provision. See
Carpenter v. Klosters Rederi A/S, 604 F.2d 11, 13 (5th Cir. 1979) (“[C]onditions and limitations
in contracts for the carriage of passengers by water . . . become binding on the passenger by his
mere acceptance of the ticket within such a time as to give him an ample opportunity to examine
its contents.”); Harden v. Am. Airlines, 178 F.R.D. 583, 587 (M.D. Ala. 1998) (“[C]ourts have
uniformly held that passengers are bound by provisions printed on a ticket, even though the
passenger did not actually read those provisions . . . [before] accept[ing] passage on the ship.”).
The forum-selection clause itself is presumptively reasonable. Haynsworth, 121 F.3d at
962. Plaintiffs have not presented any evidence that their consent to the clause was obtained by
fraud or overreach or that the provision is otherwise invalid or unreasonable. Nor have they
identified any “extraordinary circumstances” that would warrant denying Carnival’s motion. Afi.
Marine Const. Co., 571 U.S. at 62. Not only have Plaintiffs failed to respond to the motion, but
they appear to be asserting a claim against Carnival for breach of the very same contract containing
the forum-selection clause. See ECF No. 1-2, Original Pet. § 26.
Accordingly, the Court concludes that the forum-selection clause in the Contract is valid
and enforceable, and that this case must be transferred to the Miami Division of the Southern
District of Florida pursuant to 28 U.S.C. § 1404.
CONCLUSION
For the foregoing reasons, Defendant’s motion to transfer venue (ECF No. 6) is
GRANTED. The hearing previously set for Tuesday, August 15, 2023 is CANCELED.
The case is TRANSFERRED to the to the Miami Division of the United States District
Court for the Southern District of Florida pursuant to 28 U.S.C. § 1404.
It is so ORDERED.
SIGNED this Ist day of August, 2023.
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE