THIRD DI VISI ON May 21, 2008

No. 1-07-3538

JERRY WALKER, ) ) Appeal from Plaintiff-Appellee, ) the Circuit Court ) of

Co ok Co un ty. v. ) ) CARNIVAL

CRUISE LI

NES, INC., a Corporation, ) CARNIVAL

CRUISE LI

NES, a Corporation, and ) No. 06 M1 304126 CARNIVAL

CORPORATION, a Panama Corporation, ) doing bu siness in the United S tates, ) ) Honorab le ) Moira Johnson, Defend ants-App ellants. ) Judge Presi ding.

JUSTICE THEI S deliver

ed the opi nion of the

court: Plaintiff Jerry Walker broug ht this action for personal injuries she sustained while she was a pa ssenge

r on one o f defen

dant Carn ival Cruis e Lines’ ships . Defen dant move d to dismiss the compl aint unde

r section 2-619(a )(9) of the Code o f Civil Proc edure ( the Code)(735 I

LCS 5/2-619( a)(9) (

West 2006) ), beca

use the c ruise ticket plain

tiff purc hased co ntained aforumselection clause requiring that all disputes arising in c onnection with the cruise be litigated in a court in M iami, Flo rida. The circuit c ourt ultima

tely found the

forum-se lection c lause unenforceable and certified two que stions for review pursuant to Supreme Court Rule 308. 155 Ill . 2d R. 308. C arni

val n ow ap

peal s, re ques ting

revi ew of

the f irst c erti fied

ques tion. We1-07-3538

- 2 -

answer the question in the affirmative, holding that plaintiff is bound by the forum-selection clause i n the cru ise ticke t contra ct. BACKGROUND Plaintiff embarked on a seven day Western Caribbean cruise aboard defe ndant’s ship the M/V Carnival Miracle. The cruise departed f rom the Port of Tampa, Florida, on October 30, 2005, and returned to the Port of Tampa on November 6, 2005. Carnival de livered the tickets for the cruise to plaintiff’s travel agent by two-day express mail on September 23, 2005. U pon receipt, the travel agent immediately delivered the tickets to plaintiff’s sister, the designated person in charge of making travel arrangements for pla intiff’s cruise. Plaintiff received her cruise ti cket book

let in a blu

e envelo pe from h er sister

a week prior to he

r depar ture. Thi s cruise was plaintiff’s seventh or eighth Carnival cruise since 1994. For all of her cruises, she rece ived a cruise ticket booklet similar to the one she received for he r trip in October 2005. While the ship was in international waters, on November 3, 2005, plaintiff slipped and fell on a platform leading to a wate rslide. A ye ar later , on Novem

ber 2, 20 06, plaint

iff file d this action f or neg ligenc e aga

inst Carni val and it s employ

ees. I n respons e, Carniv al moved t o dismiss the

complain t pursuan t to section 2-619(a

)(9) of the Code ( 735 I LCS 5/2 -619(a) (9) (West 2006)), a rguing that the c ruise ticket foru

m-selection clau se requi

red plai ntiff to lit igate h er claim in Miami, Florida. The ticket booklet, attached to the motion to dismiss, contained the following admonition s, and the

following

appear ed in cap ital lette

rs on the f

ace of t he ticket booklet:

“ IMPORTA

NT NOTICE TO O UR GUESTS : THE GUE ST TICKET CONTRACT I

N THIS BOOKL

ET CONTAINS1-07-3538

- 3 - CON DITIO NS ON N UMB ER ED P AGE S 1 THR OUG H 11 IN THE REAR PORTION OF THI S BOOKLET. YOUR ATTENTI

ON I S DIRE CTED TO TH ESE CONDI

TION S, CERTAIN OF WHI CH CONTAIN I MPORTANT LI

MITATI ONS ON RI GHTS OF G

UESTS TO AS SERT CL AIMS A GAI

NST THE CRUISE LI

NE, VESSEL, OR THEI

R AGENTS OR EMPLO YEES. PL

EASE READTHE CONTR ACT AND T HESE TERMS AND R

ETAI N THE CON TRACT FOR FUTURE REFERENCE.” An additional notic e appea rs on the t hird pag e of the t

icket boo klet unde

r the title

“ IMPORTA

NT REMIND ERS ” and sta tes that “ all gue sts must fa miliarize t

hemselve s with the specific conditions and liabilities in the ‘Terms and Conditions of Contract.’ ” On the fa ce of the cruise ti cket con

tract, the followi

ng notic e appea

rs in all c apital le

tters:

“ NOTI CE : TH E AT TEN TION OF G UES T[ S] IS ES PE CIALLY DIRE CTED TO CL

AUSES 1 AND

13 THROUG

H 17, WHI CH CONTAIN I

MPORTANT LI

MITATI ONS ON THE RIGHTS OF GUESTS TO ASSERT CLAIMS AGAI NST CARNIVAL CRUISE LI

NES, THE VESSEL, THEI R AGENTS AND EMPLOYEES, AND OTHERS.” Parag raph 15 o f the cr

uise ticke t contra ct conta ins the fo rum-sele ction cla

use as fo llows: “It i s agre ed by

and betw een the G

uest and C arnival

that all1-07-3538

- 4 - disputes a nd matters whatsoe

ver ari sing und

er, in connection

with or incident to this Contract or the Guest’s cruise *** shall be litigated, if at all, before the United States District Court for the Southern D istrict 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.” Additionally, prior to boarding the ship on October 30, 2005, plaintiff signed a “Guest Ticket Contract Acknowledgment” attached to the ticke t contract which indicated in bold letters that she had received and had an opportunity to read all of the terms and conditions of the contract and understo od and ac cepted a ll such ter ms and con

ditions. The circuit court allowed limited discovery on the circumstances surrounding plaintiff’s receipt of her cruise ticket booklet and issues rela ted to the motion to dismiss. After briefing and oral argument, the trial court denied Carniva l’s motion to dismiss. The court found that the cruise ticket contract did not satisfy the first prong of the “reasonable c ommunicativeness” test as reiterated in Mack v. Royal Caribbe an Cruises, Ltd. , 361 Ill. App. 3d 856, 838 N.E.2d 80 (2005), because the envelope of the cruise ticke t package contained no notification of the for um-selection clause’s existence and the languag e on the cover of the booklet was insufficient notice of the clause contained in paragra ph 15 of the contract. Additionally , the court found that plaintiff’s claimed d amage s were not so extens ive as to ju stify the cost to

litigate the caus e in Miami,1-07-3538

- 5 -

Florida , which wo

uld have a

deterr ent eff ect on pla intiff’s ability to litiga te her c ase ag ainst Carnival. Subsequently, Carnival filed a motion to rec onsider the circuit court’s ruling. During the hearing, a discussion ensued reg arding the appealability of the court’s order. As the court acknowledged in its order, the court wa s “uncertain as to whether appeal should be soug ht pursuant to Supreme Court Rule 304, 306 or 308.” After hearing or al argument, the trial court denied the motion to reconsider and granted lea ve to appeal under all three supreme cour t rules. The court then certified the following two questions for r eview under Supreme Court Rule 308 (155 Ill. 2d R. 308), finding that its order involved a substantial g round for difference of opinion and that an immediate appeal might materially advance the ultimate termination of the litigation: 1. “Whether the trial court erred in its application of law pertaining to its denial of Carnival’s 735 ILCS 5/2-619(a)(9) motion to dismiss and subsequently filed motion to reconsider. 2. Whether

the cour t orders deny ing Car nival’s mo tions to dismiss and

to recon sider ar

e proper ly a ppealab le subject to Il linois Supreme Court Rule 304, 306 or 308.” ANA LYSIS As a threshold matter, it is evident from the trial judge’s order a nd remarks at the hearing on the motion to reconsider that there were severa l questions and concerns raised as to the appeala bility of this inte

rlocutor y or der. Car nival has only appeale d under Ru

le 308 and

asks this court to consider only the f irst certified question. Plaintiff, in turn, maintains that the trial court’s1-07-3538

- 6 -

ruling depended on factual findings a nd, therefore, is not an appeal over which we have jurisdiction under Rule 308. Given the confusion, we address the relevant supre me court rules and the scope of our jurisdict ion to hea r this Rule

308 appe al. I

t is well es tablished

that the ju

risdiction of appe llate courts is limited to reviewing appeals from final judgments, subject to statutory or supreme court rule exce ptions. 155 Ill. 2 d R. 301; State Fa rm Mutual A

utomobile I

nsuranc e Co. v. Illinois Farmers Insur

ance Co. , 226 Ill . 2d 39 5, 415 , 875 N .E.2d 1096, 1108 ( 2007) . A tri al cou rt's denial of a motion to dismiss is an interlocutory orde r that is not final and appealable. State Farm Mutual Automobile Insurance Co. , 226 Ill. 2d at 415, 875 N.E.2d at 1108. Nevertheless, Supreme Court Rules 306, 307 and 308 (155 I ll. 2d Rs. 306, 307, 308) provide for appeals from certain spec ified orders that are not final judgments either by leave of the appellate court (155 I ll. 2d Rs. 306, 308) or as of right (155 Ill. 2d R. 307). This court ha s previous ly c onsidere d the appe alability of a deni al of a mo tion to dismi ss based u pon a forumselection clause in a contract and has held that it does not fall within the ambit of Supreme Court Rule 306. Ferguson v. Bill Berg er Associates, Inc. , 302 Ill. App. 3d 61, 69-70, 704 N.E.2d 830, 836 (1998 ). Additionally , the orde r does not fall withi n the plai n language of

Rule 307. 1 55 Ill

. 2d R. 307. T

hus, the on

ly p ossible mod

e of appe al at this j uncture is Rule 308, which is th e rule under which Carnival has appealed. Rule 308 provides an avenue of permissive appeal for inter locutory orders where the trial court has deemed that they involve a question of law as to which there is substantial ground for difference of opinion and where a n immediate appeal from the order may materially adva

nce the1-07-3538

- 7 -

ultimate te

rmination of the liti gation. 155 I ll. 2d R. 308 . Thus, the rule was not intend

ed to allow for an inter locutory appeal o f merely

an applic ation of the law to th e facts of a spec ific

case. Thoma s v. P age , 361 Ill. App. 3d 484, 494, 837 N.E.2d 483, 494 (2005). Moreover , we are ordinarily limited to the question certified a nd are not to rule on the propriety of the underlying order. Barbara’s Sales, I

nc. v. Intel Corp. , 227 Ill. 2d 45, 58, 879 N.E.2d 910, 918 (2007). Here, the first c ertifie d question , as fra med by the circ uit court, althoug

h proper ly couched in Rule 308 language, e ssentially asks this court to review the unde rlying or der, finding the forum-selection clause unenforcea ble. This request is merely seeking a review of the trial court’s application of the law to a given set of fa cts rather than a properly

written certified question which articulates a specific question of law. See, e.g., Mack v. Royal Caribbe an Cruises, Ltd. , 361 Ill. App. 3d 856, 838 N.E.2d 80 (2005) (allowing a Rule 308 appeal articulating a specific question of law with reg ard to the forum-selection clause). However, in the interest of judicial economy and reaching an equitable re sult, a reviewing court may g o beyond the ce rtified question and consider the appropriateness of the orde r giving rise to an appeal. Boyd v. Tra velers Insurance

Co. , 166 Ill. 2d 188, 193, 652 N.E.2d 267, 270 (1995), quoting 134 Ill. 2d R. 366(a)(5) (The reviewing court may “enter any

judgment and make any order that ought to have been given or made , and make any other and further orders and g rant any relief * ** that the

case ma y r equire. ”). Her

e, despit e the poor ly d rafted question, we find it

necessa ry to addre ss the appropriate ness of th e trial c ourt’s un derly ing orde r. The e nforce ability of the forum-sele ction cla use in a pa ssenge

r cruise ticket involves a qu

estion of federa l maritime law, and the resolution of this issue at this early stage would indeed materially advance the1-07-3538

- 8 -

ultimate termination of the litigation in Illinois. A cruise ticket is a maritime contract gover ned by fede

ral admiralty law

. Carnival Cruise Line s, Inc. v. Shute , 49 9 U. S. 585 , 59 0, 1 13 L. Ed. 2d 6 22, 629 , 11 1 S . C t. 152 2, 1 525 (19 91) . In admiralt y c ases, forum-sele ction cla uses “ar e prima f acie va lid and sho

uld be enf

orced un less enforcement is shown by

the resisting party

to be ‘unreasonable’ under the circ umstances.” M/S Bremen v. Zapata Of

f-Shore Co. , 407 U.S. 1, 10, 32 L. Ed. 2d 513, 520, 92 S. Ct. 1907, 1913 (1972). The United States Supreme Court in Shute articulated some specific justifications for enforcing these clauses despite the pur chaser’s lack of negotiating power : The cruise ship has an interest in limiting the fora in which it can be subject to suit; the clause clarifies for the parties where the suit must b e broug ht, there by s paring litigant s and the c ourts time and expen se to determine the proper forum for the suit; and passeng ers benefit in the form of reduced fa res. Shute , 499 U.S. at 593-94, 113 L. Ed. 2d at 632, 111 S. Ct. at 1527. Nevertheless, forum-selection clauses in form cr uise ship contracts are “subject to judicial scrutiny for funda

mental fairness.” Shute , 499 U.S. at 595, 113 L. Ed. 2d at 633, 111 S. Ct. at 1528. In determining whe ther a forum-selection clause is fundamentally fair, courts consider (1) whether the foru m has bee n select ed to disc ourag e passen

gers f rom pursu

ing legitimate c laims; (2) whether there was fraud or overreaching involved in obtaining the pa ssenger’s acceptanc e of the clause; and (3) whether the passeng ers were given sufficient notice of the clause. Shute , 499 U.S. at 595, 113 L. Ed. 2d at 633, 111 S. Ct. at 1528. With respe ct to notic e, a two- part “r easonab le commun

icativeness” tes t has evol

ved to evaluate whether the terms of the clause were reasonably communicated and, therefore, binding1-07-3538

- 9 -

on the passenger. Under this two-part ana lysis, the court considers: (1) whether the phy sical characteristics of the ticket reasonably communicate the existence of the terms and conditions at issue; and (2) whether the circumstances surrounding the passenger’s purchase a nd subsequent retention of the tic

kets per mitted the

passeng er to bec ome mean ingfull y in formed o f its contractual terms. Wallis v. Princess Cruises, Inc. , 306 F.3d 827, 835- 36 (9th

Cir. 2002) ; Mack , 361 Ill. App. 3d at 862-63, 838 N.E.2d at 85 (articula ting the test as applied by the federal courts). Both prongs of the test must be met for the clause to be e nforceable. Ward v. Cro ss Sound Ferry , 273 F.3d

520, 523 ( 2d Cir. 200 1); Mack , 361 Ill. App. 3d at 862-63, 838 N.E.2d at 85. As to the first prong of the test, courts gener ally consider the c onspicuousness of the clause at issue, font size, clarity of the terms, and the ease with which a passeng er can read the provisions. Wallis , 306 F.3d at 836. Whether these phy sical characteristics of plaintiff’s ticket were sufficiently

conspicuous is a question of law for the court to determine. Wallis , 306 F.3d at 835; Ward , 273 F.3d at 523 ; Effron v. Sun Line Cruises, I nc. , 67 F.3d 7, 9 (2d Cir. 1995); Dempsey v. Nor

wegian Cruise Line , 972 F.2d 998, 999 ( 9th

Cir. 1992); Marek v. Marpan Two, Inc. , 817 F.2d 242, 245 (3d Cir. 1987). Here, the front cover of the cr uise ticket booklet announces, in all capital letters and set off by a bla

ck background, an “I

MPORTANT NOTICE TO GUESTS,” and indicates tha t the contract contains important limitations affecting the rights of pa ssengers. It dire cts the passenger to specific pages of the contrac t. The face of the cruise ticket contra ct conspicuously notifies the passeng er of the

importanc e of rea

ding the terms and

condition s of the c ontract . It sp ecifica lly1-07-3538

- 10 -

directs the passenger to clauses 13 throug h 17 of the contract, which contain the forum-selection clause a nd warn t he passe nger that these

clauses limit the pa ssenge

r’s rig hts to asse

rt claims against Carnival. The forum-selection clause is straightforward and unambiguous. The weig ht of fed eral mar itime authority

holds that

this ty pe of tic ket and ot

her simila rly designed tickets reasonably communicate the existence of the forum-selection clause in the ticket contract. Effron , 67 F.3d at 9 (clause reasonably communicated where face of ticke t directed passeng er to con

tract cl ause); Spataro v. Kloster Cruise, Ltd. , 894 F.2d 44, 45-47 (2d Cir. 1990) (warning on page five

of passenger ticket contract g ave reasonable and sufficiently conspicuous notice) ; Perez v. Carnival Cruise Lines , 993 F. Su pp. 39, 41 (

D.P.R. 1998 ); Lemoine v. Carnival Cruise Lines , 854 F. Su

pp. 447, 44 9 (E.D. La 1994); Walker v. Carnival Cruise Lines, I nc. , 681 F. Supp. 470, 478-79 (N.D. Ill. 1987). We see no r eason to impose a different result here. Accordingly , we find that the physica l characteristics of the contract rea sonably communicated the existen

ce of the forum-se lection c lause an d that the trial cou rt erre d as a mat

ter of la w in finding otherwise. As to the se cond pro ng, cou rts have consider ed the pa ssenge

r’s fami liarity

with the cruise ticket, the time and incentive to study the pr ovisions of the ticket contract, and any other notice the passenger may

have received reg arding the ticket contract provisions. Ward , 273 F.3d at 525. We recognize that in some cases, as in Mack , 361 Ill. App. 3d at 863, 838 N.E.2d at 85, the court may be ca

lled upon to make credibility deter minations and resolve conflicts in the evidence and that not all issues relating to a forum-selection clause will be issues of law. I n those cases, a deferential standard of review is war ranted. Mack , 361 Ill. App. 3d at 863, 838 N.E.2d at 85.1-07-3538

- 11 -

However, here, the trial court did not make any findings with respect to the second prong, a nd the undisputed facts of record reveal that plaintiff ha d an adequate opportunity to read the provisions. Based upon plaintiff’s own affidavit and deposition testimony , the travel agent receive d the ticket booklet and delivered them to plaintiff’s sister, the designated pe rson in charge of making the travel arrang ements, one month prior to the cruise. Plaintiff indicates that she persona lly r eceive d the tick

et in an e nvelope one week

prior to her trip a

nd that she

chose no t to open the ticket booklet and was not advised by anyone to do so. Prior to boarding the ship, she opened the envelo

pe and pr esented her book let to the c

ruise ship agent a nd signe d the cru

ise ticket contract, acknowledging that she had read and understood the terms and conditions of the contract. Plaintiff has traveled with Carnival on at least eig ht previous occasions with a similar cruise ti cket con

tract. Despite p laintiff

’s conte ntion that she did not o

pen up the

envelope and rea d the cont ract, and was n ot advise d to do so, u

nder this prong, the focu s is not on whether th e passen ger ac tually read the contract but, rather, on whethe r she had the opportunity to re ad it. Lousararian v. Roy al Caribbean Corp. , 951 F.2d 7, 11 (1st

Cir. 1991) ; Geller v. Holland-America Line , 298 F.2d 618 (2d Cir. 1962) (enforcing limitation provision despite plaintiff’s failure to open the enve lope and read the contract); Morales v. Royal Caribbe an Cruises, Ltd. , 419 F. Su pp. 2d 97, 1 00 (D.P.R. 2006); Elliot v. Carnival Cruise Lines , 231 F. Su pp. 2d 555, 561 (S.D. T ex 2002); Walker v. Carnival Cruise Lines , 63 F. Sup p. 2d 1083, 1089 (N.D . Cal. 1999 ); Schaff v . Sun L ine Cruise s, Inc. , 999 F. Supp. 924, 926 (S.D. Tex. 1998) (“[T]he failure or inability of [a cr uise ship] passeng er to re ad the tic

ket does n

ot precl ude her b eing bo

und by [its] conditions and limit ations,1-07-3538

- 12 -

provided they ar

e not unlawful in content.”); see also Hill v. Gateway 2000, I nc. , 105 F.3d 1147, 1148 (7th Cir. 1997) (“A contract need not be rea d to be effective; people who acce pt take the risk that the unread terms may in retrospect prove unwelcome.”)

. Plaintiff does not dispute that she had a reasonable time to read her ticke t contract and review i t on this tri

p or on an

y of the eig ht previo us trips. A ccordin

gly , the undis

puted fa cts reveal that plaintiff had the opportunity to become meaningfully

informed of the contract terms. Conseque ntly , the cir

cuit cour t erred as a matte

r of law i n finding that the ti cket con

tract fa iled to provide plaintiff with reasonable notice of the forum-sele ction clause. We next consider the trial court’s ruling that the forum-selection clause would have a deterrent effect on plaintiff’s ability to pursue her case against Carnival whe n comparing the minimal va

lue of the claim with

the cost to

litigate her cla im in Miami. I

t has bee n held tha t in scrutinizing the forum-selection clause for fundamenta l fairness, the clause may be found

unreasonable if

the contr actually selecte d forum is s o grav ely unfair a nd inconv enient th at, for a ll practical purposes, it deprives the plaintiff of his day in court. Bremen , 407 U.S. at 10, 32 L. Ed. 2d at 520, 92 S. Ct. at 1 913. Howe ver, the plaintiff faces a heavy burden o f proof t

o overcome the presumption that enforcement of the forum-selection cla use is reasonable. Shute , 499 U.S. at 595, 113 L. Ed. 2d at 633, 111 S. Ct. at 1528. See, e.g. , Effron , 67 F.3d at 10-11 (rejecting the notion that the mere expense or inconvenience of prosecuting an action in the designated forum rises to the level of depriving plaintiff of his day in court). Although some courts have considered phy sical and financial impediments in rejecting forum se lection c lauses in evaluat ing fund amental f airness , these c ases hav e involve d extreme1-07-3538

- 13 -

situations regarding disability , poverty, and public policy issues. See Walker v. Carnival Cruise Lines , 107 F. Supp. 2d 1135 (N.D. Ca. 2000) (severity of passengers’ handicaps, evide nce of poverty, and important c ivil rights issues warranted refusal to enforc e forum-selection clause); Mack , 361 Ill. App. 3d at 863, 838 N.E.2d at 86 (plaintiffs never received documentation containing forum-selection clause and plaintiff wa s partially para lyzed and wheelc

hair bound). None of t hese obst acles a re pres ent in this c ase. Although the cost and i

nconven ience to litigate the claim might deter plaintiff from bring ing suit in Miami, it does not preclude her from litigating her claim and is insufficient to satisfy the high burden of proof required to nullify the forum-selection clause. Requiring plaintiff to pursue her claim in Florida does not impose an unreasonable burden by

mandating litigation in a “remote alien forum.” Shute , 499 U.S. at 594, 113 L. Ed. 2d at 632, 111 S. Ct. at 1528. To invalidate the contract on the basis of the value of plaintiff’s claim would render the forum-selection clause meaningless and nullify

the justifications for enforcement set forth in Shute . Accor dingly , for all o f the for

egoing reasons , plaintiff is bound by the forum-sele ction clause and we answer the cer tified question in the affirmative. Certified question answered; cause remande d. QUINN, P.J., and GREI

MAN, J., concur.REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

_________________________________________________________________ JERRY WALKER, Plaintiff-Appellee,

v. CARNIVAL CRUISE LINE S, INC., a C orporat ion, CARN IVAL CRUI SE LINES, a Corp orati on, a nd CA RNIVA L CORPO RATIO N, a Pan ama Corporat ion, doing busine ss in the Unit ed States , Defendants -Appellant s.

________________________________________________________________ No. 1-07-3538 Appellate

Court of Ill

inois First District, Third Division Filed: May 21, 2007

_________________________________________________________________

JUSTICE THEIS delivered the opinion of the court. Quinn, P.J., and Greiman, J., concur.

_________________________________________________________________

Appeal from the Circuit Court of Cook County Honorable M oira Johnso n, Judge P residing

_______________________________________________________________ __ For PLAI NTIFF- Ronald S. Fishman APPEL LEE, Kenneth A. Fishman Fishm an & Fishm an, Ltd. 25 East Washington St., Suite 1450 Chicago, IL 60602 For DEF ENDANTS- Paul J. K ozacky APPEL LANTS, Jerome R. Weitzel Jeffrey S. Becker Kozacky & Weitzel, P.C. 55 West Monroe St., 24th Floor Chicago, IL 60603