# Melancon v. Carnival Corporation

> District Court, E.D. Louisiana · February 28, 2020

URL: https://www.frixlaw.com/law-library/cases/10185284

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** February 28, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10185284

## How later opinions describe it (automated extraction)

- noting that a cruise ticket is a maritime contract and governed by federal maritime law

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

MARION FRANCES MELANCON CIVIL ACTION

VERSUS NO. 19-9721

CARNIVAL CORPORATION D/B/A SECTION: B(5)
CARNIVAL CRUISE LINE, CARNIVAL
DREAM, AND ABC INSURANCE COMPANY

ORDER & REASONS
Before the Court are: (1) defendants Carnival Corporation
and the Carnival DREAM’s (“Carnival”) motion to dismiss for failure
to state a claim, or alternatively to transfer venue (Rec. Doc.
6); (2) plaintiff Marion Frances Melancon’s opposition (Rec. Doc.
10); and (3) defendants’ reply memorandum in support of dismissal
(Rec. Doc. 19). Accordingly,
IT IS ORDERED that defendants’ motion to dismiss (Rec. Doc.
6) is GRANTED, and the alternative transfer request is moot.
FACTS AND PROCEDURAL HISTORY
This is a case of admiralty and maritime jurisdiction, arising
under the General Maritime Law of the United States. Rec. Doc. 1
at ¶ 3. Plaintiff Marion Melancon is a resident of Louisiana and
domiciled in the Parish of East Baton Rouge. Rec. Doc. 1 at ¶ 2.
Defendant Carnival Corporation is domiciled in Florida. Id.
Plaintiff is “deaf, mute, visually impaired, and functionally
illiterate . . .” and communicates primarily through American Sign
Language (“ASL”). Id. at ¶ 10; see also Rec. Doc. 10 at 3. Shortly

after boarding the Carnival Dream cruise ship (the “Dream”) on
April 24, 2016, plaintiff slipped and fell on the deck of the
Dream, while the ship was at port in New Orleans, Louisiana. Rec.
Doc. 1 at ¶ 4, 5. Plaintiff alleges that this fall was caused by
a “foreign substance” on the deck of the Dream. Id.
Plaintiff claims that as a result of her alleged slip and
fall that she suffered injuries to her leg and hip, which required
surgical procedures. Id. at ¶ 6. Plaintiff further alleges that
her alleged injuries “continue to cause plaintiff great pain and
physical suffering, as well as mental suffering . . .” Id.
Plaintiff alleges that defendants have a duty to provide a
seaworthy vessel to its passengers, as contemplated under the

General maritime Law of the United States, and to keep the deck
safe for normal use by passengers of the Dream. Id. at 7. Plaintiff
also avers that the cause of her injuries and disability was due
to the negligence of defendants in failing to: (1) maintain the
premises in a safe condition; (2) warn of the unreasonably unsafe
condition; (3) adequately inspect the premises; (4) provide an
interpreter or services, as required by the Americans with
Disabilities Act; and (5) failure to meet the proper standard of
care. Id. at ¶ 8.
Plaintiff filed her complaint on April 24, 2019. Rec. Doc. 1.
Defendants answered the complaint with the instant motion to
dismiss, contending that plaintiff has failed to bring suit within

the stipulated period in the Ticket Contract. Rec. Doc. 6.
Defendant further contends that, should this case not be dismissed,
it should be transferred to the Southern District of Florida,
pursuant to the forum selection clause in the Ticket Contract.
Plaintiff has filed an opposition to the motion to dismiss
contending that she lacked the requisite capacity to consent to
the terms of the Ticket Contract (Rec. Doc. 10) and defendants
filed a reply to plaintiff’s opposition (Rec. Doc. 19).
LAW AND ANALYSIS
A. Motion to Dismiss Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state

a claim upon which relief can be granted. To survive a motion to
dismiss under Rule 12(b)(6), a plaintiff’s complaint “must contain
‘enough facts to state a claim to relief that is plausible on its
face.’” Varela v. Gonzalez, 773 F.3d 704, 707 (5th Cir. 2014)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In
other words, a plaintiff’s “[f]actual allegations must be enough
to raise a right to relief above the speculative level.” Twombly,
550 U.S. at 555. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Twombly, 556 U.S. at 556).

When deciding whether a plaintiff has met his or her burden,
a court “accept[s] all well-pleaded factual allegations as true
and interpret[s] the complaint in the light most favorable to the
plaintiff, but ‘[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements’ cannot
establish facial plausibility.” Snow Ingredients, Inc. v.
SnoWizard, Inc., 833 F.3d 512, 520 (5th Cir. 2016) (quoting Iqbal,
556 U.S. at 678) (some internal citations and quotation marks
omitted). Plaintiff must “nudge[] [his or her] claims across the
line from conceivable to plausible.” Twombly, 550 U.S. at 570.
B. Evidence Attached to Motions to Dismiss
This Court declines to consider several of defendants’

attached exhibits to their 12(b)(6) motion to dismiss for failure
to state a claim. It is well-established that in deciding whether
to grant a motion to dismiss, a district court may not “go outside
the complaint.” See, e.g., Scanlan v. Texas A & M Univ., 343 F.3d
533, 536 (5th Cir.2003). If a district court considers other
information “outside the complaint,” it must treat the motion to
dismiss as a motion for summary judgment. Kennedy v. Chase
Manhattan Bank USA, 369 F.3d 833, 839 (5th Cir.2004). However,
“[d]ocuments that a defendant attaches to a motion to dismiss are
considered part of the pleadings if they are referred to in the
plaintiff's complaint and are central to [the] claim.” Causey v.
Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir.
2004)(citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496,

498–99 (5th Cir. 2000)). A court may also consider matters of
public record, and information subject to judicial notice when
analyzing a motion to dismiss for failure to state a claim. Cinel
v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994); Dorsey v.
Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008).
This Court declines to consider defendant Carnival’s website,
the declaration attached as exhibit A, or the Cruise Contract
Acceptance Report attached as exhibit B, as they are not matters
of public record, nor are they able to be considered under the
doctrine of judicial notice. Fed. R. Evid. 803(8) defines a public
record as “[a] record or statement of a public office.” Clearly,

Carnival’s website, Ticket Acceptance documentation, and
declaration, are not statements from a public office, subject to
any of the conditions set out in Fed. R. Evid. 803(8).
Further, the Court will not take judicial notice of the above
noted exhibits, as it is not permitted to do so. A court may take
judicial notice of a known adjudicative fact, “if the fact is ‘not
subject to reasonable dispute in that it is either (1) generally
known within the territorial jurisdiction of the trial court or
(2) capable of accurate and ready determination by resort to
sources whose accuracy cannot be questioned.” Taylor v. Charter
Med. Corp., 162 F.3d 827, 829 (5th Cir. 1998)(quoting Fed. R. Evid.
201(b). This Court cannot determine that the accuracy of the above-

mentioned sources beyond question, and therefore declines to
consider them.
However, the Ticket Contract attached to defendants’ motion
will be considered by this Court as it is directly referenced in
plaintiff’s complaint and central to the issues in this case. Rec.
Doc. 1 at ¶ 10 (“Plaintiff further avers that the venue and
arbitration clauses contained within the boarding pass / cruise
contract supplied to plaintiff by defendant is (sic) invalid and
unenforceable . . .”)(emphasis added). The court will consider
plaintiff’s complaint and the Ticket Contract attached to
defendants’ motion to dismiss without converting the motion to a
motion for summary judgment. The aforementioned remaining exhibits

shall not be considered by this Court when analyzing this 12(b)(6)
motion for failure to state a claim.
C. General Maritime Law Governs the Formation of the Contract
The pertinent issue in this matter is whether plaintiff
Frances Melancon possessed the capacity to enter into the Ticket
Contract, thereby binding herself to the terms within. Defendant
contends that plaintiff has failed to adequately plead that she
lacks the requisite capacity to consent to the terms of the Cruise
Contract, and in fact, agreed to those terms. See Rec. Doc. 6.
Plaintiff opposes this contention by arguing that plaintiff is
deaf, mute, and “functionally illiterate.” See Rec. Doc. 10.
First, as this case involves a maritime contract1, and arises

under the federal admiralty and maritime jurisdiction, the issue
of plaintiff’s capacity and consent shall be construed pursuant to
federal law. Rec. Doc. 1 at ¶ 3(“This is a case of admiralty and
maritime jurisdiction arising under the General Maritime Laws of
the United States.”).
Plaintiff notes that the court’s ruling in Atlantic Marine
Const. Co., Inc. v. U.S. Dist. Ct. for the Western Dist. Of Texas,
did not address whether state or federal or state law controls in
an analysis of contractual capacity. Rec. Doc. 10 at 5. However,
in John W. Stone Oil Distrib., L.L.C. v. Penn Maritime., Inc., the
Eastern District of Louisiana recently addressed a contractual
consent issue in a maritime towage contract. See John W. Stone Oil
Distrib., L.L.C. v. Penn Mar., Inc., No. CV 17-4942, 2018 WL
6018804 (E.D. La. Nov. 16, 2018). In Stone, the Eastern District

of Louisiana noted “‘As a general rule, admiralty law applies to
all maritime contracts . . .’” Id. at *6 (quoting 1 THOMAS J.
SCHOENBAUM, ADMIRALTY & MAR. LAW § 5:1 (6th ed. 2018)). Further,
when determining whether the parties each assented to the contract,

1 “A passenger ticket for an ocean cruise is a maritime contract governed by
general maritime contract law.” Padel v. Carnival Corp., No. CIV.A. 97-1936,
1997 WL 732424, at *1 (E.D. La. Nov. 24, 1997)(citing Carnival Cruise Lines,
Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991)).
the court looked to the Restatement (Second) of Torts for guidance,
not Louisiana based contract law principles. Id. at *7. The Court
stated:

The general maritime law “is the product of the maritime
jurisprudence of the federal courts” and “‘is an amalgam
of traditional common law rules, modifications of those
rules, and newly created rules’” that are “‘drawn from
state and federal sources.’” Id. (quoting E. River
Steamship Corp. v. Transam. Delaval, Inc., 476 U.S. 858,
864-65 (1986)). Applying federal law in the context of
maritime contracts “includes looking to ‘principles of
general contract law’ that can be found in treatises or
restatements of the law.” Int'l Marine, L.L.C. v. FDT,
L.L.C., 619 F. App'x 342, 349 (5th Cir. Aug. 10, 2015)
(citing Univ. of Tex. Sys. v. United States, 759 F.3d
437, 443 (5th Cir. 2014) (quoting Franconia Assocs. v.
United States, 536 U.S. 129, 141-42 (2002))).

Id. at *6; See also Angel v. Royal Caribbean Cruises, Ltd., No.
02-20409-CIV, 2002 WL 31553524, at *4 n.3 (S.D. Fla. Oct. 22,
2002)(noting that a cruise ticket is a maritime contract and
governed by federal maritime law); Milanovich v. Costa Crociere,
S.p.A., 954 F.2d 763, 766 (D.C. Cir. 1992). As such, this court
will analyze whether plaintiff has stated a claim with reference
to the general maritime law, i.e. the principles of federal
contract law.
D. Plaintiff Did Not Lack Capacity to Properly Consent to The
Terms of the Ticket Contract

Defendants allege that plaintiff’s complaint fails to
adequately allege plaintiff lacked the requisite capacity to
consent to the terms of the Ticket Contract. Rec. Doc. 6-1 at 3.
In her complaint, plaintiff avers that “the venue and arbitration
clauses contained within the boarding pass/cruise contract
supplied to plaintiff by defendant[s] is (sic) invalid and

unenforceable, as plaintiff is deaf, mute, visually impaired and
functionally illiterate, and therefore did not have the capacity
to consent to the terms of said contract.” Rec. Doc. 1 at ¶ 10.
Plaintiff does not allege that she failed to enter into the
contract, but only that her alleged lack of capacity rendered said
contract unenforceable. Id. This Court finds that plaintiff’s
complaint fails to adequately allege that plaintiff lacked the
capacity to consent to the terms of the Ticket Contract.
It is a well-known principle that those who sign a written
instrument, even without reading its terms, will be bound by the
instrument’s terms. Am. Heritage Life Ins. Co. v. Lang, 321 F.3d
533, 538 (5th Cir. 2003)(citing Samson Plastic Conduit & Pipe Corp.
v. Battenfeld Extrusionstechnik GMBH, 718 F. Supp. 886, 890 (M.D.
Ala. 1989); St. Petersburg Bank & Trust Co. v. Boutin, 445 F.2d

1028, 1032 (5th Cir.1971)). The illiteracy, blindness, or
inability to understand the foreign language in which the contract
is written, does not excuse the signee of an instrument from
complying with its terms. Id. (citing Paper Express, Ltd. V.
Pfankuch Maschinen, 972 F.2d 753, 757 (7th Cir. 1992)). Although
blindness, inability to read, and the inability to comprehend a
foreign language of the signee do not void consent, a meeting of
the minds must still take place regarding the terms of the contract
for formation. Id. If a signee’s ignorance of the terms of a
contract are fraudulently induced by the signor, then consent will
be vitiated, as there has been no true meeting of the minds. Id.
(citing Samson Plastic, 718 F. Supp. at 890).
In American Heritage, the Fifth Circuit considered whether a

plaintiff who had a first-grade education, could not read, and
could only write his own name, was bound by a “stand-alone”
arbitration agreement that he signed in tandem with loans received
from the defendant. American Heritage, 321 F.3d at 535. The court
held that generally a person who signs or accepts a contract is
bound by its terms, regardless of their literacy. Id. at 538.
However, in American Heritage, the defendant had knowledge that
plaintiff was illiterate, and failed to inform him that he was
signing an arbitration agreement. Id. Therefore, the court held

that defendant’s knowledge of plaintiff’s illiteracy, and failure
to identify and explain the arbitration agreement to an illiterate
plaintiff, resulted in an invalidated arbitration agreement. Id.
In the present case, plaintiff did not allege that she was
induced, duped, or otherwise tricked into entering into the Ticket
Contract. Instead, plaintiff attempts to persuade this Court that
plaintiff lacked the requisite capacity to contract, and therefore
could not have created a valid contract due to her inability to
understand its terms. Rec. Doc. 1 at ¶ 10. Plaintiff’s complaint
alleges that she is deaf, mute, visually impaired, and functionally
illiterate, do not result in a finding that she lacked the
requisite capacity to consent to the terms in the Ticket Contract,

in the absence of fraudulent inducement by defendants. While
plaintiff has lifelong challenges, the fact remains that she has
not alleged that she is an incompetent, nor that she was
fraudulently induced into accepting the terms of the Ticket
Contract upon purchase. A such, plaintiff has failed to allege
sufficient facts to state a plausible claim that she lacked
capacity to consent to the terms of the Ticket Contract.
E. Plaintiff’s Claims Have Prescribed

Plaintiff’s claims have prescribed in accordance with the
terms of the Ticket Contract. Congress has explicitly authorized
cruise lines to shorten the time period to bring a personal injury
action against said cruise lines. 46 U.S.C. § 30508(b)(2) provides
in pertinent part:
The owner, master, manager, or agent of a vessel
transporting passengers or property between ports in the
United States, or between a port in the United States
and a port in a foreign country, may not limit by
regulation, contract, or otherwise the period for . . .
bringing a civil action for personal injury or death to
less than one year after the date of the injury or death.

(emphasis added). The only exception to the aforementioned
defendants’ rights to contractually limit the time period for
bringing personal injury actions is with respect to minors and

incompetents. 46 U.S.C. § 30508(d) provides:
If a claimant is a minor or mental incompetent . . . any
period provided by a contract for giving notice of the
claim is tolled until . . . 3 years after the injury or
death.

Courts have held that contractually created one-year
limitations on the period to bring an action for personal injury
are enforceable if “the cruise ticket provided the passenger with
reasonably adequate notice that the limit existed and formed part
of the passenger contract.” Nash v. Kloster Cruise A/S, 901 F.2d
1565, 1566 (11th Cir. 1990)(citing Kornberg v. Carnival Cruise
Lines, 741 F. 2d 1332, 1335 (11th Cir. 1984); Carpenter v. Klosters
Rederi A/S, 604 F. 2d 11, 13 (5th Cir. 1979); Annotation, Federal
View as to Effect of Conditions Appearing on Back or Margin of
Passenger’s Ticket for Ocean Voyage, 5 A.L.R. 394 (1970)). The
determination of whether the notice to passengers was reasonably
adequate is a question of law. Id. at 1567 (citing Shankles v.
Costa Armatori, S.P.A., 722 F.2d 861, 867 (1st Cir. 1983);
Barbachym v. Costa Line, 713 F.2d 216, 218 (6th Cir. 1983)).
The terms of the contract are binding on plaintiff in this
case. Plaintiff is not a minor, nor has plaintiff alleged that she
is an incompetent. Plaintiff merely contends that the Ticket
Contract’s terms are not binding on her due to defendants’ alleged
failure to “do all [they] reasonably could to warn the passenger
that the terms and conditions [of the Ticket Contract] were
important matters of contract affecting his legal rights.” Rec.
Doc. 10 at 7 (citing Lieb v. Royal Carribean Cruise Line, Inc.,

645 F. Supp. 232, 234 (S.D.N.Y 1986)). This Court is not persuaded
by plaintiff’s assertion.
First, the Ticket Contract states, in bold typeface, on the
first page:
IMPORTANT NOTICE TO GUESTS THIS DOCUMENT IS A LEGALLY
BINDING CONTRACT ISSUED BY CARNIVAL CRUISE LINES TO, AND
ACCEPTED BY, GUEST SUBJECT TO THE IMPORTANT TERMS AND
CONDITIONS APPEARING BELOW.

NOTICE: THE ATTENTION OF GUEST IS ESPECIALLY DIRECTED TO
CLAUSES 1, 4, AND 11 THOUGH 14, WHICH CONTAIN IMPORTANT
LIMITATIONS ON THE RIGHTS OF GUESTS TO ASSERT CLAIMS
AGAINST CARNIVAL CRUISE LINES, THE VESSEL, THEIR AGENTS
AND EMPLOYEES, AND OTHERS, INCLUDING FRUM SELECTION,
CHOICE OF LAW, ARBITRATION AND WAIVER OF JURY TRIAL FOR
CERTAIN CLAIMS.

IMPORTANT TERMS AND CONDITIONS OF CONTRACT – READ
CAREFULLY

Rec. Doc. 6, Exhibit C (Ticket Contract)(emphasis added). This
section of text is located at the very top of the first page of
the ticket contract, which was provided to plaintiff by defendants
Carnival. Id. Second, the language is in all bolded capital
letters, larger and more distinct that the remaining portions of
the contract. Id. The language then “especially direct[s]”
plaintiff to “clauses 1, 4, and 11 through 14, which contain
important limitations on the rights of guests to assert claims
against Carnival Cruise lines . . .” Id. The time limitation clause
is located within clause 13(a) of the Ticket Contract and states
in pertinent part:
Suit to recover on any [personal injury] claim shall not
be maintainable unless filed within one year after the
date of the injury . . .

Id. at 13.
Defendants cite Davis v. Valsamis, Inc., for support that the
notice located at the top of the first page of the Ticket Contract
provides sufficient notice. In Davis, the Eleventh Circuit held
that a cruise ticket contract, with the same verbiage and language
as the instant Ticket Contract, barred plaintiff’s claims due to
plaintiff’s failure to give timely notice of suit to defendants.
See Davis v. Valsamis 752 Fed. App’x 688 (11th Cir. 2018). The
court stated, “[e]ven when strictly construed, the ticket contract
unambiguously extends the rights afforded Carnival to Carnival’s
suppliers . . .and reasonably communicates that fact to
passengers.” Id. at 694.
Defendant has clearly shown that the Ticket Contract
contained sufficient language and notice to provide reasonably
adequate notice to plaintiff that there was a term limiting the
time period in which to bring a claim against defendants. Plaintiff

alleges in their complaint that the purported incident took place
on April 24, 2016. Rec. Doc. 1 at ¶ 5. Plaintiff filed their
complaint against defendants on April 24, 2019, three years after
the date of the accident, and two years after required time period
to bring suit. The period in which plaintiff contractually agreed
to bring her claim has passed, thus rendering her suit time barred.

Plaintiff has failed to state a claim against defendants
Carnival. Plaintiff entered into the Ticket Contract upon her
acceptance of the Ticket Contract, whose terms were binding on
plaintiff notwithstanding her physical limitations. Although this
Court is sympathetic to plaintiff’s physical limitations and
challenges, plaintiff’s complaint, and the controlling law,
mandate that this case be dismissed as plaintiff’s claims have
prescribed. Lastly, it is not necessary to delve into the
alternative motion to transfer venue, as this matter warrants
dismissal.
New Orleans, Louisiana this 28th day of February, 2020.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10185284. Public record. Not legal advice.