# FILED
April 7, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT JA CKSON PAULA H. CHAFFIN, MANNY ) FORMIGO, and BRENDA THURMON, ) et al, ) ) Plaintiffs/Appellants, ) Dyer Chancer y No. 97C183 ) VS. ) Appeal No . 02A01-9803-CH- 00080 ) NORWEGIAN CRUISE LINE LTD. ) a/k/a NORWEGIAN C RUISE LINES, ) INC. a/k/a NORWEGIA N CRUISE ) LINES, a Division o

f Kloster Cruise ) Limited and KLOSTER CRUISE ) LIMITED, et al, ) ) Defendants/Appellees. ) APPEAL FROM

THE CHANCE RY COURT O F DYER CO UNTY AT DYERSBURG, TENNESSEE THE HONORABLE J. STEVEN STAFFO RD, CHANCELLOR William R. Neese Roy B. Herron Nancy C. Miller-Herron NEESE, HERRON & MIL LER-HERRON Dresden, Tennessee Attorneys for Appellants Joel H. Porter Todd A. Ros

e BURCH, PORTER & JOHNSON, PLLC Memphis, Tennessee Attorneys for Defendants/Appellees Norwegian Cruis

e Lines Limited and Kloster Cruise Limited R. Dale Grimes Bryan E. Larson BASS, BERRY & SIMS PLC Nashville, Tennessee Attorneys for Royal C

aribbean Cruises, Ltd. Eugene J. Podesta, Jr. BAKER, DONELSON, BEARMA N & CALDWELL Memphis, Tennessee Attorney for Defendant/Appellee Princess Cruises, Inc. Jeffrey L. Lay FARMER, JON ES & HAMILT ON Dyersburg, Tennessee Attorney for Defendant/Appellee Princess Cruises, Inc. Kirk A. Patrick GIBSON, DUNN & CR UTCHER Los Angeles, California Attorney for Defendant/Appellee Princess Cruises, Inc. Douglas W. WilkersonMark L. Hayes

WILKERSON GAU LDIN & HAYES Dyersburg, Tennessee Attorneys for Defendant/Appellee C arnival Corporation Lewis R. Clayton Steven C. Herzog Jeffrey A

. Udell PAUL, WEISS, RIF KIND, WHART ON & GARRISO N New York, New York Attorneys for Defendant/Appellee C arnival Corporation Marianna Williams ASHLEY, ASHLEY & A RNOLD Dyersburg, Tennessee Attorne y for Interven ing Pla intiffs

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR: DAVID R. FA

RMER, J. HEWITT P. TOMLIN, JR. , Sp. J. Paula Chaffin, Manny Formigo, Br enda Thurman, B re nt Mezzacasa, Maria3

Rod riguez, Robert Kirk, Lloyd R amer, Jerry Knott, and M ike Freeman (“Plaintiffs”) , who
were appointed by

the trial court as class representatives in this conditionally certified class action, appeal from the trial court’s dismissal of

their claims against fourseparate cruise line businesses, which included: (1) Norwegian Cruise Line Limited f/k/a Kloster Cruise Limited (“Norwegian”) ; (2) Carnival Co rporation and/or Carniv al Cruise Lines, Inc

. (“Carnival”); (3) Royal Caribbean Cruises, Ltd. (“R oyal Caribbean”); an d (4) Princess Cruise Lines, Inc. (“Princess”). Pl aintiffs’ claims were base d upon alleged Tennessee Consumer Protection Act (TCPA) violations and upon alleged fraudulent misrepresentat ions. The trial court dismissed Plaintiffs’ clai ms based upon forum selectionclauses containedin written cruise contracts. Based upon the follow ing, we fin d that the subject forum selection clauses are neit her in valid based upon fraud nor unenforc eable based upon
unreasona bleness. Moreover, we find that the subject forum selection c lauses do n o t contravenea strong Tennessee public pol icy. Accordingl y, we find that

the forum selection clauses are enforceable and that the trial court’s dismissal w

as prop er. We the refore affirm.

Facts and Procedural His tory

On March 24, 1997, five indiv idual plai ntiffs c ommenced this action against No rwegian, Carnival, Royal Caribbean, and Princess. They applied for an order o f conditional class certification to sue as representatives of a class, which was grantedand entered by

the trial court on Marc

h 25, 1997. This order appointed the five na med plai ntiffs
as class repr esentat ives, and e ssential ly describe d the clas s as “All pe rsons who h ave been or will be assesse d and who have paid or w ill pay port charg es as a result of purchasing a cruise on any vess el . . . operaated [sic] by any Defendant . . . .”

Thereafter, three additional named plaintiffs w ere added to the suit.

Each of the eight named plaintiffs that are parties tothis suit had purchased a cruise from at l east one of the named defen dants. Paula Chaffin (a Shelby County resident), Manny Formigo (a Dade County, Florida resident), and Brenda Thurman (a Dyer Cou nty4

resident) each purchased a cruise from N orwegian. Brent Mezzacasa (a Weakley County resident), Maria Rodriguez (a Dade County, Florida resident), Robert Kirk(a Dyer County resident), and Lloyd Ramer (a Dy er County resident) eac h purchased a crui se f rom Carnival. Jerry Knot t (a Henry Co unty resid ent) and Lloyd Ramer (a Dyer County resident) each purchased a cruise from Royal Caribbean. Last, Mike Freeman (a Weakley County resident) purchased a cruise from Princess.
Plaintiffs asserted the following factual allegations: This class ac

tion is ba sed on the manner and method in which Defendants lure customers with very attractiv e all-inclusive pric

es for their cruisesand then, in addition to the advertised price, assess customers with non-existent or artific

ially inflated Port Charges

. Speci ficall y, each Defendant is a luxury cruise ship operator and disseminatesuniform and standardized adv ertising and p romotiona l material and sells cruises i n Te nnessee and in the other States of the U nion designated to c rea te the im pression to their cu stomers and prosp ective custom ers th at the Port Charges , which are usually well over one hundr

ed dollars ($100.00) per passenger, are charges assessed by and paid directly to domestic and foreign port authorities and government agencies. Defendan ts del iberately and intentionally failed to disclose to their customers that a significant portion of the money charged and collected as Port Charges

is not, in fact, assessed by and paid to d ome stic and foreign port authorities and government agencies, but retained by Defendants as a secondary revenuestream. Therefore, Defendants assess and collect these non-existent

and/or artificially in fla ted Port Charges under false pretenses and through unfair and deceptive practices. In reality, Port Charges may include, but are not l imited t o taxes , generator fuel costs, garbage disposal, pollution fines, certain sal aries and other costs, expenses

and fees directly associated with the normal operation of the vessel, which are not actual port charges, but which are not included in the advertised crui se price.

. . . . Plai ntiff s . . . have been sold crui ses as a result of the false, misleading and fraudulent adve rtising and representations made by Defendants.

. . . . As a direct and proximate result of Defendants’ conduct as aforesaid, Plainti ffs and the other members of the class w ere assessed and paid the non-existent or artific

ially inflated Port Charges , to their detriment.
The action was

originally broug ht pursuant to Tennessee Code Annotated s ection 47-18 -109 b ased upon each defendant’s alleged us e or employment of an unfair or decepti ve act or practice declar ed to be unlawful by the Tenness ee Consumer Protection1. Interest ingly , secti on 47-18-109 authoriz es persons to “bring an acti on individ ually ,” yet Plainti ffs ass ert this action both individ ually and as representat ives on behalf of a class.Though we are unaware o f any pri or Tennessee case addressing t his issue, this i ssue is not pr esently before thi s Court, and we therefore express no judg men t or opinion re garding it. 2. (a) Norwegian : Norwegian’s f orum selection clause states t he foll owing: 28. This contract

shall be g overned in all respects by the laws of the State of Florida and the laws of the Unit

ed States of America.It i s hereby agreed that any and all claims, di sputes or controversi es whatso ev er arisi ng from or in connect ion wit h this Contr act . . .shall be commenced, filed a nd litiga ted, if at all, b efor e a co urt of prop er jur isdic tion lo cate d in Dade County,Flori da, U.S. A. (b) Carnival : Carnival ’s forum select ion clause st ates the fol lowing: 8. It is agreed by and between the guest and the Ca rrier that all disputes and m atters whatsoever

arisin g under, i n connection with orincide nt to th is Con tract shall b e litigat ed, if at all, in and befor

e a Court locat

ed in the St

ate of Flor

ida, U.S. A. to the exclusion of t he Cou rts of any ot her s tate o r cou ntry. (c) Royal Caribbean : Royal Cari bbean’s forum selection clause st ates the fol lowing: 6. IT IS AGREED BY AND BETW EEN PASSENGER AND CARRIER THAT ALL DISPUTES AND MATT ERS WHAT SOEVER ARISI NG UND ER, I N CONNECTION WITH OR INCI DENT TO THIS CON TRA CT S HALL BE LIT IGAT ED, IF A T ALL , I N AND BE FOR E A COURT 5 Act (“the TCPA”). 1 In addition to seeking recovery of actual damages under section 47-18- 109, Plaintiffs sought treble damag es based upon willfulor knowing TCPA violations, and reasonable attorney fees and costs. See Tenn. Code Ann. § 47-18-109(a)(1), (a)(3), & (e).
Subseque ntly, Plaintiffs asserted an additi onal claim based upon fraudulent misrepresentation agains t three o f t he defen dants -- Norwegi an, Carnival, and Roy al Caribbean. In support of their f raudul ent misrepresentation claims , Plaintiffs asserted substantially the same factual allegations that were asserted to support their TCPA

claim. Among other things, they al leged that “Norwegian, C arnival, and Royal

Caribbean, each advertised cruisesat attrac tive all-inclusive prices plus port charges to the general public throughout

Dyer County, the St

ate of Tennessee and the United States by various means including, but not limited to, print and br oadcast media, printed brochur es and other materials.”
Thereafter, each defendant moved for dismissal based, among other things, upon forum selection clauses that w ere contained in written cr uise contracts. Each of these forum selectio n clauses essentia lly provide d that an y a nd all claims, disputes, or controversies

whatso ev er arising from, in connection with, or incident to each cruise contract must be litigated, if at all, in a p articular forum. 2 The forum selection clause inLOCATED IN MIAMI,FLORIDA, U.S. A., TO THE EXCLUSION OF THE COURTS OF ANY OTHER STAT E, T ERR ITORY OR COUNTRY. PASSENGER HERE BY WAIVES ANY VENUE OR OTHER O BJECT ION TH AT HE MA Y HAV E TO A NY SUCH AC TION OR PROCEEDING BEING BROUGH T IN ANY COURT LOCATED IN MIAMI, FLORIDA. (d) Princess : Princess’ s forum selecti on clause stat es the fol lowing: 17. NOTICE OF CLAIMS AND SUITS; TIME LI MITATION; VENUE.

. . . . You may sue only i n Los Angeles, Cal iforni a. Any l awsui t ari sing out of or relat ing to Your Cruise

. . . must be brought by You and li tigate d before a court loca ted in t he County of Los Angeles, California, U .S.A., to the exclusi on of the courts of any other countr

y, stat e, cit y or cou nty.
6 Norwegian’s cruise contract establi shed “Dade Cou nty, Florida, U.S.A.” Car nival’s forum selection clause established “the State of Florida, U.S.A.” Royal Caribbean’s cl ause established “Miami, Fl orida, U.S.A.” Last, Princess’s forum sel ection clause established “the County of Los Angeles,California, U.S.A.”

The defendants’ motions to dismiss w ere heard by the trial court on Octob er 15 , 1997, at which time the trial court limited its consideration exclusi

vely to whether d ismissal
was appropriate based upon the forum selection clauses. In its subsequent order, which
was not entered until February 13, 1998, the trial co urt granted the defendants’ motions to dismiss based upon the forum selection clauses. Plaintiffs thereafter moved for the t rial court to alter

or amend its order. In supp ort of its motion, Plaintiffs filed and brought to the trial court’s attention various pleadings, of which Plaintiffs had previously been unaware, that had been filed by the Flori da defendants (Norwegian, Carnival, and Royal Caribbean) in federal court in Florida.Plaintiffs argued that the Florid a defendants had maintained positionsin the Florida cases that were inconsistent and c ontrary to the positions they asserted in this action. On February 24, 1998, Plaintiffs’ motion to alter or amend was denied by the trial cour t. Thereafter, Plaintiffs appealed.

Accord ingly, t his Court is faced with whether the trial cour t erred in dismissing Plaintiffs’ claims based upon t h e forum selection clauses. It should be noted, however, that all othe r defenses that were raised by the defendants, such as lack of personal jurisdiction and forum non conveniens, are not presently before this Court, and our opi nion, like the trial court’s orde r of dismissal, is limited to the enforceability of the forum selection3. Even though this action w as brou ght in state c ourt, the iss ue of wh ether co nduct a mou nts to a “m aritim e

tort,” subject to

maritime law, can be determined base d upo n wh ethe r fed eral “a dm iralty or ma ritim e jurisdi ction”

could be i nvoked based up on suc h cond uct. See 28 U.S.C. § 1333(1 ). In Jerom e B. Gru bart, Inc. v. Great Lakes Dredge & Dock Co. , 513 U.S. 527, 115 S. Ct. 1043, 130 L .Ed.2d 1024(1995), t he United States Supreme Court reviewed whether admiralty or maritime juri sdicti on can be invoked based upontorti ous conduct by st

ating t he foll owing: [A] party seek ing to invok e federa l admira lty jurisdiction . . . over a tort claim mus t sati s fy conditi ons both of location and of connection with marit ime activity. A court apply ing the locati on test must determine whether the t ort occurred on navigable water or whether injury suffered on land was caused by a vesselon navi gable wat er. The con necti on test raises two issues. A court, f irst, must “assess the general features of the ty pe of inci dent invol ved” to determine whether the i ncident has “a potent ially disru ptive i mpact on m aritime c omm erce.” Second, a court must determine whethe r “the genera l charac ter” of the [tor tious con duct] shows a “subs tantial relations hip to traditiona l maritim e activity.” 513 U.S. at 53 4 (citations omitted ). In the inst ant case, Pl ainti ffs clai ms do not satisfy the locati on test t hat wou ld be ne ces sary to invok e adm iralty or ma ritim e jurisdicti on. The all eged conduct did not occur on navigable

water, and the alleged financia l loss r esultant from the port cha rges was not“caused by a vesse l on navig able w ater. ” The refo re, the allege d con duc t doe s not am oun t to a “m aritim e tort” subj ect to ma ritim e law. If the al leged conduct hadamounted to a maritime tort , the same substanti ve law as would be appl ied had the suit

been instituted in admiralty i n a federal court would govern the unde rlying claims

. See Hodes , 858 F.2d at 90 9; Shannon v. Anchorage , 478 P.2d 815 (Ala ska 19 70). See also Martin J. Norris, The Law of Maritime Persona l Injuries § 5:11, at 279-80 (4th ed.1990). 7 clauses.
Analysis

“Apassenger ticket for an oce an voyage isa maritime contract.” Hodes v. S.N.C. Achille Lauro ed Altrigestione , 858 F.2d 905, 909 (3rd Cir. 1988 ) (citing The Moses Taylor , 71 U.S. 411, 427 (1886)). See also Thomas v. Costa Cruise Li nes N.V. , 892 S.W.2d 837, 840 (Tenn. App. 1994). In this case, the ticket contracts, within w hich the forum selection clauses are contained, are such maritime contracts, while the conduct underlying Plaintiffs’ claims does not amount

to a maritime tort gov

erned by maritime law. 3 The enforceability of aforum selection clause in a maritime contract, however, does not require a plaintiff’s claims to be maritime clai ms. See Rams v. Royal Caribbean Cruise Lines, Inc. , 17 F.3d 11, 12 (1st Cir. 1994). In this case, each defendant’s forum selecti on clause is broadly worded to encompass all claims which aris

e in connection w it h the applicable cruise contract. No language limits the applicability of the clauses to c

ontract claims, tort claims that arise out of events occurring at sea, or claims that ari se out of eventsoccurring after the cruise ticket purchase.Moreover, no language limits the applicabili ty ofthe clausesto maritime claims, general ly. As written,each clause pertains also to tort claims that arise out of events occurring on land before the ticket purch ase, provided

the claim asserted nonetheless arises from or is in connec tion with the cruise contract. In this case, the4. In the ir brief, Plain tiffs fu rther cont end that N orwe gian, Carn ival, an d Ro yal Ca ribbe an sh ould be ju dicially

estopped from arguing tha t mariti me law has any application t o the inst

ant case because they maintained inconsist

ent positi ons in simil ar Flori da federal cases.In s upport ofthis cont ention, Plaint iffs submitt ed pleadings

that each of these three defendan ts filed in these Florida federal cases. Upon revi ew of these pleadings, we not e that eac h of these defendan ts asserted jurisdi ctional challenges t

o the federal

courts’ authority to adjudic ate the sim ilar Florida ca ses. They sought dism issal of the cases pending in federal court because, among other things, the cases were purpo rtedly filedunder the feder

al courts’

admiralty

jurisdi ction, yetthe consumer protect ion and fraud clai ms b eing ass erted we re not m aritime c laims. T he defe ndants argued to the federal cour t, among other t hings, t hat the cl aims were land based t ort clai ms arising out o f events occurring bef ore entry

into a m aritim e contract. These jurisdi ctionalarguments, however, are not inconsist

ent with t hese defendants’ positions that have been asserted in the instant case. In fact, we have recognizedthat th e claims asserted in the i nstant case are not maritime clai ms. The applicat ion ofma ritim e law in the instan t case, ho wever, d oes no t pertain to the underlying c laims b ut, rat her, pert ains to t he constructi on and enf orcem ent of the f orum selection c lauses w ithin ma ritime co ntracts. The fact that these defend ants assert that maritime law gover

ns the validity

and en forcement of the for um selection cl auses, therefore,is not

inconsist

ent withtheir ea rlier

positi ons in the Fl orida cases. 8 claims are based upon port charges assessed “ as a result of purchasing a cruise” and, as such, are clearly related to or in connection with the cruise contracts.

In this case, Pl aintiffs

contend that,because thei r claims ar e not mariti me claims, the enforceability of the applicable forum selection clau ses sh ould not be governed by maritim e (fe deral) law. As with the maritime contracts within which the clauses are contained, however, maritime law governs the vali dit y and enforcement of the forum selection clauses. 4 Hodes , 858 F.2d a t 909 (stating that the enforceability of a forum selection clause within a maritime contract is a matter “governed by the general maritime, not the local state, law”).

I n M/ S Bremen v. Zapata Off-Shore Co. , 407 U.S. 1, , 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972) the UnitedStat es Supreme Court recogniz ed that, under federal law, forum selection clauses in particular cases can be found to be invalid and unenforcea ble if they
are shown to be unreasonable or unjust under the circumstance s , or if the clause was invalid for such reasons as fraud or ov erreaching. 407 U.S. at 10, 1 5 . The Court subsequently elaborated upon its fraud reference in Scherk v. Alberto-C ulver Co. , 417 U.S. 506, 94 S.Ct. 2 449, 41 L.Ed. 2d 270 (1974), wherein the Court st ated the foll owing: In The Bremen

we noted that forum-selectio n clauses “should be giv en full effect” when “a freely negoti ated private . . . agr eement [is] unaffected by fraud . . . .” 407 U.S. at [12- 13]. This qualification does not mean thatany time a dispute arising out of a t ransaction is based upon an all egation of fraud, as in this case, the clause in u nenforceable. Rather, it means tha t .

. . [a] forum-selection clause in a contract is not enforceable if the inclusion of that clause in the contract was the product of fraud or coer cion. 417 U.S. at 519 n. 14 . In this case, Plaintiffs hav e not asserted that the inclus ion of the9

forum selection clauses was the product of fraud or coercion. Moreover, wh ile they ha ve asserted claims involving fraudulent misrepresentations, they have not sought rescission of the cruise contract. There fore, the clauses are n ot simply vo id, and the issue of enfor c eability

remains based upon whether the forum selection clauses in th is case are unreasonable under the circumstances. In these regards, the Supreme C ourt has further recogni zed that p arties seeking to hav e forum selection clauses set as ide based upon unreasonableness “should bear a heavy burden of proof .” Id. at 17.

In Carnival Cruise Lines, Inc. v. Shute , 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991), the United States Supr eme Court specifically a ddressed and analyzed the reasonableness of forum selection clauses under federal law in cruise line contracts . 499 U.S. at 587-90. In Shute , the Supreme Court observed th e following:

[The plaintiff/p assengers’] pass age cont ract was purely r outine and doubtless nearly identical to every commercial pas sage contract issued by [the defendant cruise line business] and most other cruise lines. In th is context, it w ould be entirely unreasonable for us to assume that [the plainti ffs] -- or any other cr uise passenger -- w

ould negotiate with [

th e defendant] the terms of a forum-selection cl ause in an ordinary commerc ial cruise ticket. Common sense dictates thata ticket of this kind will be a form contract the terms of which are not s ubject to n egotia tion, and that an individual purchasi ng the tick et will not h ave bargainingparity with the cruise line. . . . . 499 U.S. at 593 (citations omitted). These observations are equally appli c able to the instantcase. The Shute Court went on to analyze Carnival’s forum selection clause, which
was identical to

Carnival’s forum selection clause in the instant case and which was quite similar to the ot her forum sele ction clauses in this case, by statin g the following: Including a reasonable forum clause in a form contract of this kind w ell may be permissible for

several reasons: Fi rst, a cruise line has a special interest in limiting the

fora in which it potentially could be subject to suit. Because a cruise ship typically carr ies passengers from many l ocales, it is not unlikely that a mishap on a cruise could subject the cruise line to litigation i n several different f ora. Additionally, a cla use establishin g ex ante the forum for dispute res oluti on has the salutary effect of dispel ling any confusion about where suits arising from the contract must be brought and defended, sparing litigants the time and expense of pr e trial motions to determine the correct forum and conserving judicial resources that otherwise would be devoted to deciding those motions. F inall y, it stands to reason th at passengers who purchase tickets co ntaining a forum clau se like that at issue in this case benefit in the form ofreduced fares reflecting the s avings that the cruis

e line enjoys by limiting

the fora in which it may be sued. Id. at 593-94 (citations omitted). After considering the abo ve m atters in Shute , and5. This conclusion is consistent with several other cases, including two federal district court cases, that are sub stan tially the same as the inst ant suit. In Ackerman v. CarnivalCorp. , No. 3:97CV-339- H (W.D.Ky. Jan. 21 , 1998), Kentucky Cons umer Protection Act claim s and fraud claims, which w ere brought on behalf of a class that w as lim ited to only “ pe rsons in Kentu cky who paid por t charges,”

were dismissed based upon Car nival’s foru m s elec tion c laus e. Sim ilarly, in Drogmiller v . Carnival Corp. , No. 97-CV-72882-DT (E.D.Mi ch. March 11, 1998), Michigan Consumer Protection Act claims and other

claims, i ncluding f raud, were di smissed based upon Carnival ’s forum select ion clause i n another “por t charges” case. Moreover, we note that each defendant

in this case suppo rted its resp ective m otion to dism iss with testimony t

o counter any

assertion of unreasonablen ess. (a) Norwegian : In support of Norwegian’ s motion to di smiss, Norwegian fi led a support ing affi davit t hat explained, among other thing s, the fol lowing:

Norwegian

. . . has its pri ncipal pl ace of business i n Miami, Dade County,Florida. Acc ordin gly, mos t of Norw egian’s re cords re lating to cruis es are loc ated ther e. Many of the potenti al wit nesses in a case i nvolvi ng port charges work in the Miami, Florida office.

Most of Norwegian’ s ships sail

. . . from ports in the State of Fl orida. (b) Carnival : In sup port o f Ca rniva l’s motion to di smiss, Carnival fileda supporti ng affidavi t that e xplained, among other things,the following:

[T]he Carnival

. . . executives who would tes tify at trial, and the C arnival . . . documents that would be int roduced into evidence, are conveniently avai lable i n Florida. Carnival . . . has its principal office and corporate headqua rters . . . in Miam i, Florida. . . . . [Carnival ’s] records, documentat ion and other evi dence of port char ges are m ainta ined o nly in Florida. [Carnival’s] ma nag em ent, a s we ll as its accounting and sales departm ents, are also locat

ed in Florida. (c) Royal Caribbean : In support o f Royal Cari bbean’s motion, Royal Cari bbean fil ed a supporti ng affid avit that expl ained, among other things, the following:

Royal Caribbe an . . . has i ts prin cipa l place of bu sine ss in M iam i, Dad e Co unty, Florida. Royal Caribbean operat es its cruise ships fro m its M iami offic es. Moreover, Flo rida ports are the primary

point of departure f

or Royal Cari bbean’s crui ses from the United St ates. Acc ordin gly, most of Royal Car ibbea n’s bu sine ss re cord s rela ting to cruis es an d it’s employees wit h knowledge about t he prici ng of cruises ar e located i n Florida. (d) Princess : In support of Princess’ s motion, Pri nces s f iled a suppo rting af fidavi t that e

xplained why Princes s incorp orated its fo rum selection c lause in its P assag e Tick et and C ontract:

First, [Princess]

has passengers from ma ny d ifferent states and for

eign countries, and specifyi ng o n e location for liti gation alleviates confusion as to where litigation could occur. Second , [Princess]

maintains i ts princi pal place of business in Los Angeles. I ts O ffice o f Legal Affai rs and its Legal Department oper ate out of Los Angeles. Acc ordin gly, the County of Los Angeles has served as a conveni ent locat ion for production o f corp orate and vessel records as well

as for deposin g corporate of ficers and 10 because the cruise passengers in Shute did not claim lackof notice of the forum clause, the Supreme Court conclude d that th e cruise p assenger s did not s atisfy “th e ‘heavy burden of proof’ required to set asi de the clause” based upon unreasonab leness. Id. at 595.

As in Shute , no dispute exists before th is Court as to whether Plaintiffs had sufficient notice of the pertinent forum selection clauses before entering into their respective cruise contracts. Therefore, consistent with the Supreme Court’ s reasoning in Shute , we find that Plainti ffs in the instant case have no t satisfied “the‘heavy

burden o

f proof’required to set aside the clause” and that each defen dant’s forum selection clause woul d, thus far, be valid and enforceable. 5employees. Moreover, i f [Prin cess] found that it was requ ired to l iti gate in numerous for a, that fact would create

pressure to i ncrease ticket prices.

11 Our analysis, howev

er, does not end withconsideringwhether the forum selection clauses are invalid based upo n frau d or overreaching or whether the forum selection clauses are unenforceable basedupon un reasonableness under the cir cumstances. In M/S Bremen , the Supreme Court further stated : A contractual choice-of-forum cl ause sh ould be held unenforceable if enforcementwould contravene a st rong public policy of the forum in which suit is brought, wh ether declared by statute or by judicial deci sion. 407 U.S. at 15. Cf. 15A C.J.S. Conflict of Laws § 4(10) (1967) (“A contract v alid under its governinglaw

will be enforced ever

ywhere unless contr

ary to the. . . public policy of the forum, [or] unle ss it would wo rk injury to the state or its citize ns.”). Give n that we ha ve already concluded that maritime law, and not Tennessee law, gov erns the construction and enforcementof the forum selection clauses in this case, Plaintiffs would hav e us conclude tha t enforce ment of the forum selection clauses w ould contravene the TCPA and, therefore, the public policy underlying the TCPA.

The TCPA wasenacted “[t]o protect consumers and legitimate bus iness enterprises from those who engage in unfair or deceptive acts or pr

actices in the conduct of any trade
or commerce in part or wholly within this state .” Tenn. Code Ann. § 47-18-102 (emphasis added). Therefore, the TCPA’s purpose is not contravened by enforcing forumselection clauses like those in the instant case as to any plaintiff whose dealings with any defendant did not occur in part or who lly within Tennessee. Accordingly , the forum selection clauses in the instant case are enforceable as to any such plaintiff, and dismi ssal ofsuch plaintiff’s claims is proper. This is not to say, however, that the forum selection clauses are unenforceable as to tho se plai ntiffs

whose claims arose from an act committed duringtrade
or comme rce within T ennesse e. Such cl aims mus t be consi dered fu rther bel ow.

Section 47-18 -109(a)(2) of th e TCPA provides th e following: The [TCPA] action may be brought in a court of competent jurisdiction in the county where the alleged unfair or deceptive act or practice took place, is taking place, or is about to take pl ace, or in the county in which such person6. As s tated earlie r, the o nly issue befo re this Cou rt is the enfo rcea bility of th e for um selec tion c laus es. W hile

the record demonstrates that each defendant’s prin ciple pl ace of business i s elsewhere, a nd that none of the defend ants “res ide” in Dyer County , we express no opi nion as to whether Dy er County i s a proper venue as to particular plai ntiff

s ( i.e. , whether each act from which each plaintiff’ s claim arose too k place in Dye r Cou nty, or whether each defend ant conducts, transacts, or has transac ted business in Dyer County). 12 resides, has such person’s principle place of business, conducts, transacts, or has tra nsacted

busines s, or, if the per

son cann ot be fo und in any of the foregoing locations, in the county in which s uch person can be found. Tenn. Code Ann. § 47-18-109(a)(2) (1995). The “person” referr ed to in this statute

is the person who has used or emplo yed an unfair or deceptive act or practice declared to be unlawful by the TCPA. See id. § 47-18-109(a)(1) & (2)

. Cf. id. § 47-18-108( a)(1) & (3)

. Section 47-18-113(a ) of the TCPA further provides,“No provision of this part may be limited or waived by c

ontract, agreement, or otherwise, notw ithstanding any other pr ovision of law to the contrary

. . . .” Tenn. Code Ann. § 47-18- 113(a). Based upon these two statutes, Plaintif fs co ntend that the forum selection clauses canno t limit or waive their ability to bring their action in Tennessee.

In furtherance of the TCPA’s purpose, th e TCPA confers various substantiv e rights and benefits including, among other things, the right to bring an action to rec over actual damages. See Tenn. Code Ann. § 47-18-109(a). Section 47-18-109(b), however, simply establishesthe particular counties i n Tennessee in which plaintiffs may bring consumer protection claims. 6 These same or similar consumer protection claims can someti mes be litigated, however, in other jurisdictions. In fact, this Court has previously implicitly recognized in tw

o prior unpublished opinions that a party’s ability

to bring a TCPA action in T ennessee can, in some such instan ces, be limited or wai ved. See Ten nsonit a (Memphis), Inc. v. Cucos, Inc. , 1991 WL 66993 (Tenn. App. Ma y 2, 1991) (affirming the enforcementof a forum selection clause in accordance with Tennessee law, even though the plai ntiffs’ claims included TCPA cl aims); Lien v. Couch , No. 01A01-9609-CV-00398, 1998 WL 848101 (Tenn. App. Dec. 8, 1998) (recogni zing that a plaintif f’s ability to brin g a TCPAaction in Tennessee can be limited through the judic ial doctrine of claim precl usion,
even thou gh suc h an action was commenced pri or to entry of the foreign j udgment on relat ed claims). In this case, whether the forum selection clauses can be enforced (for claims that arose from an act committed during trade or comm erce in part or wholly within7. Had Plaintiffs properly rais ed thi s matter in t he tr ialcourt , the

tri al cou rt wou ld hav

e been co mpelle d to t ake judici al noticeof the applic able f oreig n law s und er T enn ess ee R ule of Evidence 202(a). This Cou rt, however, is authoriz

ed to take judicial not ice of a l aw or statut e of another st

ate only when the law or

statute is incl uded in the reco rd on ap peal. De Soto Hardwood Flooring Co. v. Old Dominion Table & Cabi net Works , 163 Tenn. 13 Tennessee) depends upon w hether the su bstantive rights and reme die s afforded under the TCPA and asserted and/or sought in this cas e can similarly be

asserted and/or sought in the selected forum. Cf. Tennsonita , 1991 WL 66993, *3-4 (enforcement of a forum selection clause under Tennessee law depends, in part, upon whether “effective relief” can be secured in the selected forum); Lien , 1998 WL 848101, *3-5 (precluding a plaintiff from asserting a TCPA action in Tennessee based upon c laim preclusion depends, in part, upon whether the same claims could hav e been asserted in the foreign j urisdiction). In other words, enforcement of the forum selection clauses dep ends upon whether such enforcementwould limit or waive Plaintiffs’ substantive ri ghts and remedies afforded under the TCPA. Ifsuch rights can be asser ted and remedies can be sought in the designated fora, then the TCPA’s purpose is not contravened by the fo rum selection clauses.

In order todetermine whether Plaintiffs will be able to assert substantial ly the same rightsand seek substantially the same remediesin a selected forum, two questions must be answered. See Lien , 1998 WL 848101, *3. First, could the same rights and remedies be asserted under the law of the selected forum? Id. Second, could the TCPAclaims be asserted and litigated in the sel ected forum? Id. If the answer to answer to either or both of these ques tions is yes, then the substantiv e rights or benefits establ ished under the TCPAare not limited or waived, the TCPA’s purpose is not contra vened, and the applicable forum selection cl ause is enforceable. See id.

In this case, the forum selection clauses that are applicable to

three of the named defendants, Norwegian, Carni val, and Royal Car

ibbean, d esi gnated Florida. The forum selection clause that is applicab le to th e remaining defendant, Princess , designated California. Plaintif fs, howeve r, have not raised and averred ei ther Florida’s or

California’s laws. Because t hey have f ailed to r aise thes e foreign laws, and b ecause t he forei gn laws
are not included in the record on appeal, we find it unnecessary for this Court to ascertain and judiciall y notice an y such laws

. 7 Theref ore, we must presume that the consumer532, 43 S.W.2d 1069, 1070 (1931) (section 5586 of Th ompson’s Shannon’s Code (now codified as Tenn.

Code Ann. § 24-6-207)“authorizes this Cou rt to take jud icial notice of th e laws an d statutes of anoth er state and decide upon them according ly . . .only . . . when such laws are read in evidence in the lower court-- pleaded, or at l east proven , below”); Kaset v. Freedman , 22 Tenn. App. 213, 120 S .W.2d 97 7, 980 (1938). 14 protection laws of Florida and of Cal ifornia are the same as the law s of the state of Tennessee. See Kaset v. Freedman , 22 Tenn. App. 213, 120 S.W.2d 977, 980 (19 38). Accordin gly, we find that enforcementof the f orum sele ction cla uses will no t limit or wa ive Plaintiffs’ substantive rights and remedies afforded under the TCPA and will not contravene the TCPA’s purpose. As su ch, we conclude that enforcement of the foru m selection clauses will not “contrav ene a strong public polic y,” and that the

clauses are enforceable.

Conclusion

Based upon the foregoing, we affirm the trial court’s dismissal. C osts of this appeal are taxed to Plaintiffs, for w hich execution may is

sue if necessary.

HIGHERS, J.

CONCUR:

FARMER, J.15

TOMLIN, Sp. J.