AQUACHILE, INC. v. DAWN WILLIAMS

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

AQUACHILE, INC.,

Appellant,

v.

DAWN WILLIAMS, ST. JAMES SMOKEHOUSE, INC., and

SHERWOOD FOOD DISTRIBUTORS, LLC.

Appellees.

No. 4D21-1453

[December 22, 2021]

Appeal of a non-final order from the Circuit Court for the Seventeenth

Judicial Circuit, Broward County; Michael A. Robinson, Judge; L.T. Case

No. CACE20-003779.

Naim S. Surgeon and Ta’Ronce Stowes of Akerman LLP, Fort

Lauderdale, Alexandra M. Mora of Akerman LLP, Miami, and Kristen M.

Fiore of Akerman LLP, Tallahassee, for appellant.

David B. Pakula of David B. Pakula, P.A., Pembroke Pines, and Todd S.

Stewart of Law Office of Todd S. Stewart, P.A., Jupiter, for appellee Dawn

Williams.

PER CURIAM.

In this appeal, we consider whether a forum selection clause in the

plaintiff’s cruise ticket contract applies in her suit against a non-party to

the contract. The contract contained a “Himalaya clause” 1 purporting to

extend the forum selection clause, among other rights and defenses, to

non-parties. The trial court ruled that the defendant in this case was not

entitled to enforce the forum selection clause because the Himalaya clause

did not apply to the defendant and was not reasonably communicated to

the plaintiff. We affirm.

Background

1 See Davis v. Valsamis, Inc., 752 F. App’x 688, 690 n.1 (11th Cir. 2018)

(“Himalaya Clauses extend liability limitations to downstream parties and take

their name from an English case involving a steamship called Himalaya.”).

The plaintiff alleges that she became severely ill after she was served

contaminated fish on board a Royal Caribbean cruise ship. She alleges

that the fish was originally sourced by AquaChile, Inc., and was sold to at

least one other company before it was ultimately sold to Royal Caribbean

to be served to cruise passengers. She sued AquaChile and two other

companies in the supply chain for strict liability, negligence, violations of

the Florida Food Safety Act, breach of implied warranty, and breach of

express warranty. She filed her complaint in Broward County circuit

court. AquaChile moved to dismiss, arguing that Broward County was an

improper venue pursuant to a forum selection clause in the plaintiff’s

contract with Royal Caribbean.

The contract at issue is contained in the “guest ticket booklet” that

Royal Caribbean provided to the plaintiff before her cruise. On the cover

of the booklet, and in bold print at the top of the first page of the contract,

there is an “important notice” advising passengers to carefully read the

contract, paying particular attention to section 3 and sections 9 through

11. The forum selection clause appears in section 9(a) and is printed in

all-capital letters. It provides that any dispute between the passenger and

the carrier must be litigated in Miami-Dade County. A separate clause in

section 2(b)—the so-called “Himalaya clause”—purports to extend the

forum selection clause, among other rights and defenses, to parties other

than the carrier.

Section 2(b) is part of the “definitions” section of the contract and

ostensibly defines the word “carrier.” It is printed in non-bold, regular-

case letters. The first two sentences of section 2(b) define “carrier” to

include the vessel, the operator, and related entities and individuals. The

third sentence contains the Himalaya clause, which provides in relevant

part: “The exclusions or limitations of liability of Carrier set forth in the

provisions of this Ticket Contract, as well as all rights, defenses or

immunities set forth herein, shall also apply to and be for the benefit of

agents, independent contractors, concessionaires and suppliers of Carrier

. . . .” In its motion to dismiss, AquaChile argued that it was entitled to

enforce the forum selection clause, pursuant to the Himalaya clause, as a

“supplier” of Royal Caribbean.

The circuit court denied AquaChile’s motion. The court ruled that the

Himalaya clause did not apply to AquaChile because it was an indirect

supplier to Royal Caribbean and was not engaged in the type of maritime

activity that would be expected to be covered by the ticket contract. The

court also ruled that the Himalaya clause was not reasonably

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communicated to the plaintiff because of its physical characteristics and

ambiguous language.

AquaChile appealed. We have jurisdiction under Florida Rule of

Appellate Procedure 9.130(a)(3)(A), which provides for appeal of nonfinal

orders that concern venue.

Analysis

We review the order denying AquaChile’s motion to dismiss de novo.

Palm Beach Cnty. Sch. Bd. v. Doe, 210 So. 3d 41, 43 (Fla. 2017); see also

Davis v. Valsamis, Inc., 752 F. App’x 688, 691 (11th Cir. 2018) (contract

interpretation is an issue of law subject to de novo review); DannaMarie

Provost v. Hall, 757 F. App’x 871, 875 (11th Cir. 2018) (whether the terms

of a cruise ticket contract were adequately communicated to passengers is

a question of law subject to de novo review). Because the contract at issue

is a maritime contract, federal law governs its interpretation. See Davis,

752 F. App’x at 691 (citing Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 22–23

(2004)).

A. Interpretation of the Himalaya Clause

The court denied AquaChile’s motion to dismiss primarily because it

interpreted the Himalaya clause in the plaintiff’s ticket contract not to

apply to AquaChile. Himalaya clauses generally extend contractual

limitations of liability to certain “downstream parties” expected to take part

in the execution of the contract. Kirby, 543 U.S. at 20; Davis, 752 F. App’x

at 690 n.1. Himalaya clauses are construed, according to general

principles of contract interpretation, “by their terms and consistent with

the intent of the parties.” Kirby, 543 U.S. at 31. The court must determine

whether the plain language of the contract as a whole reflects an intent to

extend limitations of liability to the party seeking protection. See id. at

31–32; Davis, 752 F. App’x at 692. Any ambiguity must be construed

against the drafter. Davis, 752 F. App’x at 692.

Factors to be considered in determining whether a party qualifies for

protection under a Himalaya clause include (1) the nature of the

relationship between the party seeking protection and the contracting

party, and (2) the nature of the services provided by the party seeking

protection compared to the contracting party’s responsibilities under the

contract. See id. at 693 (holding that the defendant was within the

reasonable scope of a Himalaya clause in a maritime contract and

distinguishing cases where the defendant’s relationship to the contracting

party was “tangential or uncertain” or the defendant was “engaged in non-

maritime activity that one would not reasonably expect to be covered by

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the contract”); Caterpillar Overseas, S.A. v. Marine Transp., Inc., 900 F.2d

714, 726 (4th Cir. 1990) (stating that, in determining whether a party

qualifies for protection under a Himalaya clause in a carriage contract,

“the court is to take into consideration the nature of the services performed

compared to the carrier’s responsibilities under the carriage contract”)

(internal quotation marks omitted); La Salle Mach. Tool, Inc. v. Maher

Terminals, Inc., 611 F.2d 56, 60 (4th Cir. 1979) (explaining that, in

determining whether a defendant qualifies for protection under a Himalaya

clause in a maritime contract, the court should consider whether the

defendant performed a maritime service).

The Himalaya clause at issue here does not reflect a clear intent to

extend Royal Caribbean’s rights and defenses under the ticket contract to

parties like AquaChile. The relevant language refers to “suppliers of

Carrier.” AquaChile was not a direct supplier of Royal Caribbean and had,

at best, an indirect, tangential relationship to the company. The fish that

the plaintiff consumed was allegedly sourced by AquaChile but was sold

to at least one other company before it reached Royal Caribbean. We do

not hold that the Himalaya clause applies only to direct suppliers, but it

cannot be reasonably read to extend protection to an indefinite chain of

indirect suppliers, like AquaChile, that have little to no relationship with

Royal Caribbean. See Davis, 752 F. App’x at 693.

In addition to being an indirect supplier to Royal Caribbean, AquaChile

was not engaged in the type of maritime activity that one would reasonably

expect to be covered by the ticket contract. See id.; Caterpillar Overseas,

900 F.2d at 726. Although Royal Caribbean’s activity of serving fish to its

passengers might be considered maritime activity, see Bird v. Celebrity

Cruise Line, Inc., 428 F. Supp. 2d 1275, 1278–79 (S.D. Fla. 2005),

AquaChile’s non-maritime business of farming and selling fish to various

on-land customers was not transformed into a maritime activity simply

because some of its fish ended up being sold to Royal Caribbean at the

end of the supply chain.

To the extent the Himalaya clause is ambiguous as applied to the

plaintiff’s suit against AquaChile, the court properly construed it against

AquaChile. See Sharpe v. W. Indian Co., 118 F. Supp. 2d 646, 652–53

(D.V.I. 2000) (concluding that a nearly identical Himalaya clause in a Royal

Caribbean ticket contract was ambiguous as applied to the defendants,

and would therefore be construed against them, because it failed to clearly

define which parties were covered and failed to specify which limitations

applied to which parties).

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For these reasons, the court did not err in ruling that the Himalaya

clause in the plaintiff’s ticket contract did not extend the forum selection

clause to her suit against AquaChile.

B. Reasonable Communication of the Himalaya Clause

The court also ruled that AquaChile could not rely on the Himalaya

clause to enforce the forum selection clause because the Himalaya clause

was not reasonably communicated to the plaintiff. A forum selection

clause in a cruise ticket contract must be reasonably communicated to the

passenger to be enforceable. See Lebedinsky v. MSC Cruises, S.A., 789 F.

App’x 196, 200 (11th Cir. 2019); Est. of Myhra v. Royal Caribbean Cruises,

Ltd., 695 F.3d 1233, 1244–46 (11th Cir. 2012), superseded by statute on

other grounds as stated in Caron v. NCL (Bahamas), Ltd., 910 F.3d 1359,

1364 n.2 (11th Cir. 2018). Here, because AquaChile can enforce the forum

selection clause only through application of the Himalaya clause, the

Himalaya clause also must have been reasonably communicated to the

plaintiff. See, e.g., Davis, 752 F. App’x at 694; Stotesbury v. Pirate Duck

Adventure, LLC, No. 3:11-cv-00018, 2013 WL 3199353, at *2–3 (D.V.I.

June 25, 2013).

Courts apply a two-part test of “reasonable communicativeness,”

evaluating (1) the physical characteristics of the clause at issue, and (2)

whether the passenger had the ability to become meaningfully informed of

the clause and reject its terms. Lebedinsky, 789 F. App’x at 200. Here,

the court focused on the first prong, which considers features such as the

placement of the clause within the contract, the conspicuousness of notice

on the face of the contract, the size and appearance of the typeface, and

the clarity of the language and headings. See id. at 200–01 (citing Est. of

Myhra, 695 F.3d at 1244–45); Wallis v. Princess Cruises, Inc., 306 F.3d

827, 835–36 (9th Cir. 2002).

We agree with the circuit court that the Himalaya clause at issue here

was not reasonably communicated to the plaintiff based on its physical

characteristics. The Himalaya clause appears in section 2(b) of the ticket

contract, which is part of the “definitions” section and ostensibly defines

the word “carrier.” Section 2(b) is printed in non-bold, regular-case letters,

and there is nothing in the “important notice,” or anywhere else in the

contract, to draw the reader’s attention to it. The first two sentences of

section 2(b) define “carrier”—somewhat predictably—to include the vessel,

the operator, and related entities and individuals. The Himalaya clause

does not appear until the third sentence, and it is only loosely related to

the apparent topic of section 2(b), defining the word “carrier.” There is

nothing about the placement, appearance, or heading of section 2(b) to

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suggest to the reader that it contains a clause extending Royal Caribbean’s

limitations of liability to unrelated parties. See Stotesbury, 2013 WL

3199353, at *3 (concluding that the Himalaya clause in a Royal Caribbean

ticket contract was not reasonably communicated to the plaintiff because

it was “buried in fine print” in the “definitions” section of the contract). In

addition, to the extent the language of the Himalaya clause is ambiguous

as applied to the plaintiff’s suit against AquaChile, it could not have been

reasonably communicated to her. See Sharpe, 118 F. Supp. 2d at 652–

53; Universal Grading Serv. v. eBay, Inc., No. 08-CV-3557, 2009 WL

2029796, at *11 (E.D.N.Y. June 10, 2009).

For these reasons, the court did not err in ruling that AquaChile could

not rely on the Himalaya clause because it was not reasonably

communicated to the plaintiff.

Conclusion

In conclusion, we affirm the order denying AquaChile’s motion to

dismiss for improper venue. The court did not err in ruling that AquaChile

was not entitled to enforce the forum selection clause in the plaintiff’s

ticket contract as a “supplier” under the Himalaya clause. The Himalaya

clause does not reflect a clear intent to extend Royal Caribbean’s rights

and defenses under the contract to parties like AquaChile, and it was not

reasonably communicated to the plaintiff. 2

Affirmed.

WARNER, GROSS and MAY, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

2 We have considered AquaChile’s argument that the trial court erred in ruling

that a federal court had already rejected its improper venue argument. We agree

that the court erred in this respect, but we find the error to be harmless in light

of our affirmance of the court’s rulings on the merits.

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