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VALENTI v. NORWEGIAN CRUISE LINE

April 21, 2005.

IRENE VALENTI and JOSEPH VALENTI, Plaintiffs,
v.
NORWEGIAN CRUISE LINE, Defendant.



The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

OPINION

Defendant NCL (Bahamas) Ltd., sued in this action as "Norwegian Cruise Line" ("NCL"), has moved pursuant to Rule 12(b) and 12(c),*fn1 Fed.R.Civ.P., to dismiss the complaint of plaintiffs Irene and Joseph Valenti (the "Valentis") based upon the forum selection clause contained in the ticket purchased by the Valentis for a cruise on the Norwegian Dawn. For the reasons set forth below, the motion is granted.

Prior Proceedings

  On November 10, 2004, the Valentis filed a complaint alleging that on November 27, 2003, Irene Valenti suffered personal injuries arising out of the negligence of the crew of the NCL ship. More specifically, it is alleged that Irene Valenti "was caused to sustain injury as a result of a negligent condition then and there existing on the steps leading to the dining room." (Compl. ¶ 6.)

  The instant motion was filed on January 6, 2005. It was heard and marked fully submitted on January 26, 2005. The Facts

  The following facts are drawn from the complaint and the affidavits of the parties. It is well established that when evaluating a motion to dismiss a complaint based on the existence of a forum selection clause, the Court may consider materials outside the pleadings. See New Moon Shipping Co., Ltd. v. MAN B & W Diesel AG, 121 F.3d 24, 30 (2d Cir. 1997); Lurie v. Norwegian Cruise Lines, Ltd., 305 F. Supp. 2d 352, 357 (S.D.N.Y. 2004) (stating that in making its determination concerning the application of a forum selection clause, the court may consider the parties' supporting affidavits and declarations but it may resolve a disputed fact in a manner adverse to the plaintiff only after an evidentiary hearing); J.B. Harris, Inc. v. Razei Bar Indus., Ltd., 37 F. Supp. 2d 186, 188-89 (E.D.N.Y. 1998), aff'd 181 F.3d 82 (2d Cir. 1999).

  NCL maintains its principal place of business and corporate headquarters at Airport Corporate Center, 7665 Corporate Center Drive, Miami, Florida 33126. (See Declaration of Jane E. Kilgour of January 5, 2005 ("Kilgour Decl."), at ¶ 2.)

  The ticket issued by NCL has two components. The top portion of the ticket ("the Lifted Ticket") is perforated so that it can be removed by NCL personnel at the time that the passenger first boards the ship. (See id. ¶ 5.) The bottom portion of the ticket is retained by the passenger. (See id.) This retained portion of the ticket contains the 28-paragraph Contract of Passage. (See id.)

  The Lifted Ticket is marked "Cruise Ticket/Do Not Separate Until Pier Check-in" in its upper right corner and "To Be Presented for Passage" on its bottom edge. (See id. Ex. A.) The Lifted Ticket reveals that NCL issued the Lifted Ticket and Contract of Passage to the Valentis in Miami on October 24, 2003 for a round-trip cruise from New York City on the cruise ship Norwegian Dawn which commenced on November 23, 2003. (See id. Ex. B.)

  The following legend appears on both the Lifted Ticket and also on the portion of the ticket retained by the Valentis after boarding:
IMPORTANT NOTICE
The Passenger's attention is specifically directed to the terms and conditions of this contract set forth below. These terms and conditions affect important legal rights and the passenger is advised to read them carefully.
(Id. Ex. A.) This legend is printed in white lettering against a dark blue background with a bold blue margin. (See id. ¶ 7.) At the top of the Contract of Passage, the following legend is printed in bold-face type in a text box with a broad border:
Passengers are advised to read the terms and conditions of the Passenger Ticket Contract set forth below. Acceptance of this Passenger Ticket Contract by Passenger shall constitute the agreement of Passenger to these Terms and Conditions.
(Id. Ex. A at 1.)
  Paragraph 1 of the Contract of Passage states as follows:
This passenger ticket contract (hereafter "Contract") constitutes a contract of passage between the Carrier, Norwegian Cruise Line Limited d/b/a Norwegian Cruise Line (hereafter referred to as "Carrier"), and the passenger or purchaser (whether or not signed by or on his behalf). All the terms and provisions of all sides of this Contract, including all of the following matter printed below, are a part of this Contract to which the passenger and/or purchaser, both on his/her behalf and on behalf of any other person or persons, including children, for whom this ticket is purchased, acknowledge and agree to be bound thereby by accepting this Contract or transportation from the Carrier. The fare includes only the transportation as specified herein, full board, ordinary ship's food, but does not include spirits, wine, beer, sodas or mineral waters. This Contract shall be the entire agreement between the parties and supersedes all representations or conditions contained in Carrier's advertisements, notices, brochures or other literature and all promises and agreements made or claimed to have been made to or with the passenger or anyone representing him by any party.
(Id.) Paragraph 28 of the Contract of Passage provides in pertinent part as follows:
[A]ny and all claims, disputes or controversies whatsoever arising from or in connection with this Contract and the transportation furnished hereunder shall be commenced, filed and litigated, if at all, before a court of proper jurisdiction located in Dade County, Florida, U.S.A.
(Id. Ex. A at 2.)

  Irene Valenti has stated that prior to purchasing the NCL tickets, she obtained and reviewed an NCL brochure that stated that a purchaser would forfeit 50% of the purchase price if the trip was cancelled within 29 days prior to the sailing date. (See Affidavit of Irene Valenti ("Valenti Aff.") sworn to January 14, 2005, at ¶ 6.)

  The January 19, 2005 supplemental declaration of NCL's Jane Kilgour states as follows:
NCL's standing policy is to provide full refunds to passengers who object to the terms of the contract of passage within a reasonable time after receiving their ticket contracts.
* * *
Plaintiffs here did not reject the ticket contract even though they had the tickets at their home for almost a month before their cruise.
As such, although Plaintiffs received their tickets within a period which carried a cancellation penalty, they could have received a full refund if they had rejected the terms and conditions of the ...

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