United States District Court, S.D. New York
THOMAS P. GRIESA, District Judge.
Plaintiff Elizabeth Starkey brings this civil action against Gap Adventures, alleging that she was sexually assaulted by her tour guide while vacationing in the Galapagos Islands. Starkey claims that Gap Adventures, Inc., the company that organized the vacation, is liable in damages.
Gap Adventures moves to dismiss the complaint on the basis that Starkey has filed suit in the wrong forum. Gap Adventures claims that when she purchased her ticket for the Galapagos tour, Starkey agreed to a forumselection clause requiring her to litigate any claims resulting from the trip in Canada.
The motion to dismiss is granted.
On September 6, 2011, Starkey, a New York resident, purchased a ticket for a nine-day tour of the Galapagos Islands provided by Gap Adventures. The trip-"Galapagos on a Shoestring"-was scheduled for October 2011 and cost $5, 000. Gap Adventures is a travel company that offers tours throughout the world.
After she purchased her ticket, Starkey received a confirmation email, confirmation invoice, and service voucher from Gap Adventures. These three communications stated that in purchasing her ticket, Starkey read, understood, and agreed to the contract's "Terms and Conditions." Each communication included a hyperlink that Starkey could click on to review the "Terms and Conditions" of the contract on a separate webpage.
Specifically, the confirmation email advised that "all Gap Adventures passengers must read, understand and agree to the following terms and conditions" and then provided a link that Starkey could click on to review the "Terms and Conditions." Additionally, both the confirmation invoice and the service voucher included the following language: "Confirmation of your reservation means that you have already read, agreed to and understood the terms and conditions, however, you can access them through the below link if you need to refer to them for any reason." The invoice and voucher also included a link that would direct Starkey to the "Terms and Conditions."
At the beginning of the "Terms and Conditions" of the contract, Gap Adventures advised the purchaser to read the terms carefully because the purchaser will be bound by all of the terms. For the purposes of this litigation, the most relevant provision is paragraph 32, entitled "Applicable Law." In this section, Gap Adventures explains that the "Terms and Conditions and Conditions of Carriage including all matters arising from it are subject to Ontario and Canadian Law and the exclusive jurisdiction of the Ontario and Canadian Courts."
Starkey acknowledges that she received the three communications from Gap Adventures and that each communication contained a hyperlink to the "Terms and Conditions" of the contract. Despite the language in the confirmation email, confirmation invoice, and service voucher, advising her that she would be bound by the "Terms and Conditions" of the contract, Starkey chose not to click on any of the hyperlinks or review the "Terms and Conditions" of her contract with Gap Adventures.
On October 20, 2011, Starkey flew to Quito, Ecuador, to join her tour group of 10 travelers. Gap Adventures had entered into an agreement with Galakiwi, a local Ecuadorian tour company, to lead and operate the trip. Daniel Doe (last name unknown) led the trip for Galakawi.
Starkey claims that on October 26, 2011, Daniel sexually assaulted her in the early evening hours. The claimed assault took place in a cabin on one of the islands in the Galapagos, when Starkey felt sea sick and tired one night and decided to go to sleep early. The rest of the group members and Daniel were nearby having dinner and consuming alcohol. During the course of the night, on two separate occasions, Starkey claims that Daniel entered her bed and touched her without consent, and then massaged her back, lifted up her skirt, and at one point, put his hand in her underwear and touched her buttocks. Starkey feared that Daniel would become violent and hurt her. Starkey managed to escape each encounter.
Upon returning to New York, Starkey wrote a letter documenting her experience to Gap Adventures. As a result of the sexual assault, Starkey has ...