FILED

April 7, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

PAULA H. CHAFFIN, MANNY )

FORMIGO, and BRENDA THURMON, )

et al, ) 

)

Plaintiffs/Appellants, ) Dyer Chancery No. 97C183

)

VS. ) Appeal No. 02A01-9803-CH-00080

)

NORWEGIAN CRUISE LINE LTD. )

a/k/a NORWEGIAN CRUISE LINES, )

INC. a/k/a NORWEGIAN CRUISE )

LINES, a Division of Kloster Cruise )

Limited and KLOSTER CRUISE )

LIMITED, et al, )

)

Defendants/Appellees. )

APPEAL FROM THE CHANCERY COURT OF DYER COUNTY

AT DYERSBURG, TENNESSEE

THE HONORABLE J. STEVEN STAFFORD, CHANCELLOR

William R. Neese

Roy B. Herron

Nancy C. Miller-Herron

NEESE, HERRON & MILLER-HERRON

Dresden, Tennessee

Attorneys for Appellants

Joel H. Porter

Todd A. Rose

BURCH, PORTER & JOHNSON, PLLC

Memphis, Tennessee

Attorneys for Defendants/Appellees

Norwegian Cruise Lines Limited and

Kloster Cruise Limited

R. Dale Grimes

Bryan E. Larson

BASS, BERRY & SIMS PLC

Nashville, Tennessee

Attorneys for Royal Caribbean Cruises, Ltd.

Eugene J. Podesta, Jr.

BAKER, DONELSON, BEARMAN & CALDWELL

Memphis, Tennessee

Attorney for Defendant/Appellee Princess Cruises, Inc.

Jeffrey L. Lay

FARMER, JONES & HAMILTON

Dyersburg, Tennessee

Attorney for Defendant/Appellee Princess Cruises, Inc.

Kirk A. Patrick

GIBSON, DUNN & CRUTCHER

Los Angeles, California

Attorney for Defendant/Appellee Princess Cruises, Inc.

Douglas W. Wilkerson
Mark L. Hayes

WILKERSON GAULDIN & HAYES

Dyersburg, Tennessee

Attorneys for Defendant/Appellee Carnival Corporation

Lewis R. Clayton

Steven C. Herzog

Jeffrey A. Udell

PAUL, WEISS, RIFKIND, WHARTON & GARRISON

New York, New York

Attorneys for Defendant/Appellee Carnival Corporation

Marianna Williams

ASHLEY, ASHLEY & ARNOLD

Dyersburg, Tennessee

Attorney for Intervening Plaintiffs

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR:

DAVID R. FARMER, J.

HEWITT P. TOMLIN, JR., Sp. J.

Paula Chaffin, Manny Formigo, Brenda Thurman, Brent Mezzacasa, Maria
3

Rodriguez, Robert Kirk, Lloyd Ramer, Jerry Knott, and Mike 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 four separate cruise

line businesses, which included: (1) Norwegian Cruise Line Limited f/k/a Kloster Cruise

Limited (“Norwegian”); (2) Carnival Corporation and/or Carnival Cruise Lines, Inc.

(“Carnival”); (3) Royal Caribbean Cruises, Ltd. (“RoyalCaribbean”); and (4) Princess Cruise

Lines, Inc. (“Princess”). Plaintiffs’ claims were based upon alleged Tennessee Consumer

Protection Act (TCPA) violations and upon alleged fraudulent misrepresentations. The trial

court dismissed Plaintiffs’ claims based upon forum selection clauses contained in written

cruise contracts. Based upon the following, we find that the subject forum selection

clauses are neither invalid based upon fraud nor unenforceable based upon

unreasonableness. Moreover, we find that the subject forum selection clauses do not

contravene a strong Tennessee public policy. Accordingly, we find that the forum selection

clauses are enforceable and that the trial court’s dismissal was proper. We therefore

affirm. 

Facts and Procedural History

On March 24, 1997, five individual plaintiffs commenced this action against

Norwegian, Carnival, Royal Caribbean, and Princess. They applied for an order of

conditional class certification to sue as representatives of a class, which was granted and

entered by the trial court on March 25, 1997. This order appointed the five named plaintiffs

as class representatives, and essentially described the class as “All persons who have

been or will be assessed and who have paid or will pay port charges as a result of

purchasing a cruise on any vessel . . . operaated [sic] by any Defendant . . . .” Thereafter,

three additional named plaintiffs were added to the suit. 

Each of the eight named plaintiffs that are parties to this suit had purchased a cruise

from at least one of the named defendants. Paula Chaffin (a Shelby County resident),

Manny Formigo (a Dade County, Florida resident), and Brenda Thurman (a Dyer County
4

resident) each purchased a cruise from Norwegian. Brent Mezzacasa (a Weakley County

resident), Maria Rodriguez (a Dade County, Florida resident), Robert Kirk (a Dyer County

resident), and Lloyd Ramer (a Dyer County resident) each purchased a cruise from

Carnival. Jerry Knott (a Henry County resident) 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 action is based on the manner and method in which

Defendants lure customers with very attractive all-inclusive prices for their

cruises and then, in addition to the advertised price, assess customers with

non-existent or artificially inflated Port Charges.

Specifically, each Defendant is a luxury cruise ship operator and

disseminates uniform and standardized advertising and promotional material

and sells cruises in Tennessee and in the other States of the Union

designated to create the impression to their customers and prospective

customers that the Port Charges, which are usually well over one hundred

dollars ($100.00) per passenger, are charges assessed by and paid directly

to domestic and foreign port authorities and government agencies.

Defendants deliberately 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 domestic and foreign

port authorities and government agencies, but retained by Defendants as a

secondary revenue stream. Therefore, Defendants assess and collect these

non-existent and/or artificially inflated Port Charges under false pretenses

and through unfair and deceptive practices.

In reality, Port Charges may include, but are not limited to taxes,

generator fuel costs, garbage disposal, pollution fines, certain salaries 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 cruise price.

. . . .

Plaintiffs . . . have been sold cruises as a result of the false,

misleading and fraudulent advertising and representations made by

Defendants.

. . . .

As a direct and proximate result of Defendants’ conduct as aforesaid,

Plaintiffs and the other members of the class were assessed and paid the

non-existent or artificially inflated Port Charges, to their detriment.

The action was originally brought pursuant to Tennessee Code Annotated section

47-18-109 based upon each defendant’s alleged use or employment of an unfair or

deceptive act or practice declared to be unlawful by the Tennessee Consumer Protection
1. Interestingly, section 47-18-109 authorizes persons to “bring an action individ ually ,” yet Plaintiffs assert this

action both individ ually and as representatives on behalf of a class. Though we are unaware of any prior

Tennessee case addressing this issue, this issue is not presently before this Court, and we therefore express

no judg men t or opinion re garding it.

2. (a) Norwegian: Norwegian’s forum selection clause states the following:

28. This contract shall be governed in all respects by the laws of the State of Florida and the

laws of the United States of America. It is hereby agreed that any and all claims, disputes

or controversies whatsoever arising from or in connection with this Contract . . . shall be

commenced, filed a nd litiga ted, if at all, before a co urt of prop er jurisdic tion locate d in Dade

County, Florida, U.S.A.

(b) Carnival: Carnival’s forum selection clause states the following:

8. It is agreed by and between the guest and the Ca rrier that all disputes and m atters

whatsoever arising under, in connection with or incide nt to th is Con tract shall b e litigated, if

at all, in and before a Court located in the State of Florida, U.S.A. to the exclusion of the

Cou rts of any other s tate o r cou ntry.

(c) Royal Caribbean: Royal Caribbean’s forum selection clause states the following:

6. IT IS AGREED BY AND BETW EEN PASSENGER AND CARRIER THAT ALL DISPUTES

AND MATTERS WHAT SOEVER ARISING UNDER, IN CONNECTION WITH OR INCIDENT

TO THIS CON TRA CT S HALL BE LIT IGATED, IF AT ALL , IN AND BEFORE A COURT

5

Act (“the TCPA”).1

 In addition to seeking recovery of actual damages under section 47-18-

109, Plaintiffs sought treble damages based upon willful or knowing TCPA violations, and

reasonable attorney fees and costs. See Tenn. Code Ann. § 47-18-109(a)(1), (a)(3), & (e).

Subsequently, Plaintiffs asserted an additional claim based upon fraudulent

misrepresentation against three of the defendants -- Norwegian, Carnival, and Royal

Caribbean. In support of their fraudulent misrepresentation claims, Plaintiffs asserted

substantially the same factual allegations that were asserted to support their TCPA claim.

Among other things, they alleged that “Norwegian, Carnival, and Royal Caribbean, each

advertised cruises at attractive all-inclusive prices plus port charges to the general public

throughout Dyer County, the State of Tennessee and the United States by various means

including, but not limited to, print and broadcast media, printed brochures and other

materials.” 

Thereafter, each defendant moved for dismissal based, among other things, upon

forum selection clauses that were contained in written cruise contracts. Each of these

forum selection clauses essentially provided that any and all claims, disputes, or

controversies whatsoever arising from, in connection with, or incident to each cruise

contract must be litigated, if at all, in a particular forum.2

 The forum selection clause in
LOCATED IN MIAMI, FLORIDA, U.S.A., TO THE EXCLUSION OF THE COURTS OF ANY

OTHER STAT E, TERRITORY OR COUNTRY. PASSENGER HEREBY WAIVES ANY

VENUE OR OTHER OBJECTION THAT HE MAY HAVE TO ANY SUCH ACTION OR

PROCEEDING BEING BROUGH T IN ANY COURT LOCATED IN MIAMI, FLORIDA.

(d) Princess: Princess’s forum selection clause states the following:

17. NOTICE OF CLAIMS AND SUITS; TIME LIMITATION; VENUE.

. . . .

You may sue only in Los Angeles, California. Any lawsuit arising out of or relating to Your

Cruise . . . must be brought by You and litigated before a court located in the County of Los

Angeles, California, U .S.A., to the exclusion of the courts of any other country, state, city or

county.

6

Norwegian’s cruise contract established “Dade County, Florida, U.S.A.” Carnival’s forum

selection clause established “the State of Florida, U.S.A.” Royal Caribbean’s clause

established “Miami, Florida, U.S.A.” Last, Princess’s forum selection clause established

“the County of Los Angeles, California, U.S.A.”

The defendants’ motions to dismiss were heard by the trial court on October 15,

1997, at which time the trial court limited its consideration exclusively to whether dismissal

was appropriate based upon the forum selection clauses. In its subsequent order, which

was not entered until February 13, 1998, the trial court granted the defendants’ motions

to dismiss based upon the forum selection clauses. Plaintiffs thereafter moved for the trial

court to alter or amend its order. In support 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 Florida defendants (Norwegian, Carnival, and Royal Caribbean)

in federal court in Florida. Plaintiffs argued that the Florida defendants had maintained

positions in the Florida cases that were inconsistent and contrary to the positions they

asserted in this action. On February 24, 1998, Plaintiffs’ motion to alter or amend was

denied by the trial court. Thereafter, Plaintiffs appealed. 

Accordingly, this Court is faced with whether the trial court erred in dismissing

Plaintiffs’ claims based upon the forum selection clauses. It should be noted, however,

that all other 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 opinion,

like the trial court’s order of dismissal, is limited to the enforceability of the forum selection
3. 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 whethe r federal “a dm iralty or ma ritime

jurisdiction” could be invoked based upon 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), the United

States Supreme Court reviewed whether admiralty or maritime jurisdiction can be invoked based upon tortious

conduct by stating the following:

[A] party seek ing to invok e federa l admira lty jurisdiction . . . over a tort claim mus t satisfy

conditions both of location and of connection with maritime activity. A court applying the

location test must determine whether the tort occurred on navigable water or whether injury

suffered on land was caused by a vessel on navigable water. The connection test raises two

issues. A court, first, must “assess the general features of the type of incident involved” to

determine whether the incident has “a potentially disruptive impact on m aritime c omm erce.”

Second, a court must determine whether “the genera l charac ter” of the [tortious con duct]

shows a “subs tantial relations hip to traditiona l maritim e activity.”

513 U.S. at 53 4 (citations omitted ). In the instant case, Plaintiffs claims do not satisfy the location test that

wou ld be ne ces sary to invok e adm iralty or ma ritime jurisdiction. The alleged conduct did not occur on

navigable water, and the alleged financial loss resultant from the port charges was not “caused by a vessel

on navig able w ater.” The refore, the allege d con duc t does not am ount to a “m aritim e tort” subj ect to ma ritime

law. If the alleged conduct had amounted to a maritime tort, the same substantive law as would be applied

had the suit been instituted in admiralty in 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

“A passenger ticket for an ocean voyage is a 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 Lines N.V., 892 S.W.2d 837,

840 (Tenn. App. 1994). In this case, the ticket contracts, within which the forum selection

clauses are contained, are such maritime contracts, while the conduct underlying Plaintiffs’

claims does not amount to a maritime tort governed by maritime law.3 The enforceability

of a forum selection clause in a maritime contract, however, does not require a plaintiff’s

claims to be maritime claims. See Rams v. Royal Caribbean Cruise Lines, Inc., 17 F.3d

11, 12 (1st Cir. 1994). In this case, each defendant’s forum selection clause is broadly

worded to encompass all claims which arise in connection with the applicable cruise

contract. No language limits the applicability of the clauses to contract claims, tort claims

that arise out of events occurring at sea, or claims that arise out of events occurring after

the cruise ticket purchase. Moreover, no language limits the applicability of the clauses to

maritime claims, generally. As written, each clause pertains also to tort claims that arise

out of events occurring on land before the ticket purchase, provided the claim asserted

nonetheless arises from or is in connection with the cruise contract. In this case, the
4. In their brief, Plaintiffs fu rther contend that N orwe gian, Carn ival, an d Ro yal Ca ribbe an sh ould be judicially

estopped from arguing that maritime law has any application to the instant case because they maintained

inconsistent positions in similar Florida federal cases. In support of this contention, Plaintiffs submitted

pleadings that each of these three defendan ts filed in these Florida federal cases. Upon review of these

pleadings, we note that each of these defendants asserted jurisdictional challenges to 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 purportedly filed under the federal courts’ admiralty jurisdiction,

yet the consumer protection and fraud claims b eing ass erted we re not m aritime c laims. T he defe ndants

argued to the federal court, among other things, that the claims were land based tort claims arising out of

events occurring before entry into a m aritim e contract. These jurisdictional arguments, however, are not

inconsistent with these defendants’ positions that have been asserted in the instant case. In fact, we have

recognized that the claims asserted in the instant case are not maritime claims. The application of ma ritime

law in the instan t case, ho wever, d oes no t pertain to the underlying c laims b ut, rather, pertains to the

construction 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 governs the validity and enforcement of the forum selection clauses,

therefore, is not inconsistent with their earlier positions in the Florida 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, Plaintiffs contend that, because their claims are not maritime claims,

the enforceability of the applicable forum selection clauses should not be governed by

maritime (federal) law. As with the maritime contracts within which the clauses are

contained, however, maritime law governs the validity and enforcement of the forum

selection clauses.4

 Hodes, 858 F.2d at 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”).

In M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, , 92 S.Ct. 1907, 32 L.Ed.2d

513 (1972) the United States Supreme Court recognized that, under federal law, forum

selection clauses in particular cases can be found to be invalid and unenforceable if they

are shown to be unreasonable or unjust under the circumstances, or if the clause was

invalid for such reasons as fraud or overreaching. 407 U.S. at 10, 15. The Court

subsequently elaborated upon its fraud reference in Scherk v. Alberto-Culver Co., 417 U.S.

506, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974), wherein the Court stated the following:

In The Bremen we noted that forum-selection clauses “should be given full

effect” when “a freely negotiated private . . . agreement [is] unaffected by

fraud . . . .” 407 U.S. at [12-13]. This qualification does not mean that any

time a dispute arising out of a transaction is based upon an allegation of

fraud, as in this case, the clause in unenforceable. Rather, it means that .

. . [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 coercion.

417 U.S. at 519 n. 14. In this case, Plaintiffs have not asserted that the inclusion of the
9

forum selection clauses was the product of fraud or coercion. Moreover, while they have

asserted claims involving fraudulent misrepresentations, they have not sought rescission

of the cruise contract. Therefore, the clauses are not simply void, and the issue of

enforceability remains based upon whether the forum selection clauses in this case are

unreasonable under the circumstances. In these regards, the Supreme Court has further

recognized that parties seeking to have forum selection clauses set aside 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 Supreme Court specifically addressed 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 the following:

[The plaintiff/passengers’] passage contract was purely routine and

doubtless nearly identical to every commercial passage contract issued by

[the defendant cruise line business] and most other cruise lines. In this

context, it would be entirely unreasonable for us to assume that [the

plaintiffs] -- or any other cruise passenger -- would negotiate with [the

defendant] the terms of a forum-selection clause in an ordinary commercial

cruise ticket. Common sense dictates that a ticket of this kind will be a form

contract the terms of which are not subject to negotiation, and that an

individual purchasing the ticket will not have bargaining parity with the cruise

line. . . . .

499 U.S. at 593 (citations omitted). These observations are equally applicable to the

instant case. 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 other forum selection clauses in this case, by stating the following:

Including a reasonable forum clause in a form contract of this kind well may

be permissible for several reasons: First, 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 carries passengers from many locales, it is not unlikely

that a mishap on a cruise could subject the cruise line to litigation in several

different fora. Additionally, a clause establishing ex ante the forum for

dispute resolution has the salutary effect of dispelling any confusion about

where suits arising from the contract must be brought and defended, sparing

litigants the time and expense of pretrial motions to determine the correct

forum and conserving judicial resources that otherwise would be devoted to

deciding those motions. Finally, it stands to reason that passengers who

purchase tickets containing a forum clause like that at issue in this case

benefit in the form of reduced fares reflecting the savings that the cruise line

enjoys by limiting the fora in which it may be sued.

Id. at 593-94 (citations omitted). After considering the above matters in Shute, and
5. This conclusion is consistent with several other cases, including two federal district court cases, that are

substan tially the same as the instant suit. In Ackerman v. Carnival Corp., 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 “persons in Kentucky who paid port charges,” were dismissed based upon

Carnival’s forum s elec tion c lause. Sim ilarly, in Drogmiller v. Carnival Corp., No. 97-CV-72882-DT (E.D.Mich.

March 11, 1998), Michigan Consumer Protection Act claims and other claims, including fraud, were dismissed

based upon Carnival’s forum selection clause in another “port charges” case.

Moreover, we note that each defendant in this case suppo rted its resp ective m otion to dism iss with

testimony to counter any assertion of unreasonableness.

(a) Norwegian: In support of Norwegian’s motion to dismiss, Norwegian filed a supporting affidavit that

explained, among other things, the following:

Norwegian . . . has its principal place of business in 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

potential witnesses in a case involving port charges work in the Miami, Florida office.

Most of Norwegian’s ships sail . . . from ports in the State of Florida.

(b) Carnival: In sup port o f Carniva l’s motion to dismiss, Carnival filed a supporting affidavit that explained,

among other things, the following:

[T]he Carnival . . . executives who would tes tify at trial, and the C arnival . . . documents that

would be introduced into evidence, are conveniently available in Florida.

Carnival . . . has its principal office and corporate headqua rters . . . in Miam i, Florida. . . . .

[Carnival’s] records, documentation and other evidence of port charges are m aintained o nly

in Florida. [Carnival’s] ma nagem ent, a s well as its accounting and sales departm ents, are

also located in Florida.

(c) Royal Caribbean: In support of Royal Caribbean’s motion, Royal Caribbean filed a supporting affidavit

that explained, among other things, the following:

Royal Caribbe an . . . has its prin cipal place of bu siness in M iam i, Dad e Co unty,

Florida.

Royal Caribbean operates its cruise ships fro m its M iami offic es. Moreover, Florida

ports are the primary point of departure for Royal Caribbean’s cruises from the United States.

Acc ordin gly, most of Royal Caribbea n’s bu siness re cord s rela ting to cruis es an d it’s

employees with knowledge about the pricing of cruises are located in Florida.

(d) Princess: In support of Princess’s motion, Princess filed a supporting affidavit that explained why

Princes s incorp orated its fo rum selection c lause in its Passag e Tick et and C ontract:

First, [Princess] has passengers from ma ny different states and foreign countries, and

specifying one location for litigation alleviates confusion as to where litigation could occur.

Second, [Princess] maintains its principal place of business in Los Angeles. Its Office of

Legal Affairs and its Legal Department operate out of Los Angeles.

Acc ordin gly, the County of Los Angeles has served as a convenient location for

production of corporate and vessel records as well as for deposing corporate officers and

10

because the cruise passengers in Shute did not claim lack of notice of the forum clause,

the Supreme Court concluded that the cruise passengers did not satisfy “the ‘heavy burden

of proof’ required to set aside the clause” based upon unreasonableness. Id. at 595.

As in Shute, no dispute exists before this 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

Plaintiffs in the instant case have not satisfied “the ‘heavy burden of proof’ required to set

aside the clause” and that each defendant’s forum selection clause would, thus far, be

valid and enforceable.5
employees. Moreover, if [Princess] found that it was required to litigate in numerous fora,

that fact would create pressure to increase ticket prices.

11

Our analysis, however, does not end with considering whether the forum selection

clauses are invalid based upon fraud or overreaching or whether the forum selection

clauses are unenforceable based upon unreasonableness under the circumstances. In

M/S Bremen, the Supreme Court further stated:

A contractual choice-of-forum clause should be held unenforceable if

enforcement would contravene a strong public policy of the forum in which

suit is brought, whether declared by statute or by judicial decision.

407 U.S. at 15. Cf. 15A C.J.S. Conflict of Laws § 4(10) (1967) (“A contract valid under its

governing law will be enforced everywhere unless contrary to the . . . public policy of the

forum, [or] unless it would work injury to the state or its citizens.”). Given that we have

already concluded that maritime law, and not Tennessee law, governs the construction and

enforcement of the forum selection clauses in this case, Plaintiffs would have us conclude

that enforcement of the forum selection clauses would contravene the TCPA and,

therefore, the public policy underlying the TCPA.

The TCPA was enacted “[t]o protect consumers and legitimate business enterprises

from those who engage in unfair or deceptive acts or practices 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 forum selection

clauses like those in the instant case as to any plaintiff whose dealings with any defendant

did not occur in part or wholly within Tennessee. Accordingly, the forum selection clauses

in the instant case are enforceable as to any such plaintiff, and dismissal of such plaintiff’s

claims is proper. This is not to say, however, that the forum selection clauses are

unenforceable as to those plaintiffs whose claims arose from an act committed during trade

or commerce within Tennessee. Such claims must be considered further below.

Section 47-18-109(a)(2) of the TCPA provides the 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 place, or in the county in which such person
6. As s tated earlie r, the o nly issue befo re this Cou rt is the enfo rcea bility of th e forum selec tion c lauses. W hile

the record demonstrates that each defendant’s principle place of business is elsewhere, and that none of the

defend ants “res ide” in Dyer County, we express no opinion as to whether Dyer County is a proper venue as

to particular plaintiffs (i.e., whether each act from which each plaintiff’s claim arose took 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 transacted business, or, if the person cannot be found in any of the

foregoing locations, in the county in which such person can be found.

Tenn. Code Ann. § 47-18-109(a)(2) (1995). The “person” referred to in this statute is the

person who has used or employed 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 contract, agreement, or otherwise, notwithstanding any other provision

of law to the contrary . . . .” Tenn. Code Ann. § 47-18-113(a). Based upon these two

statutes, Plaintiffs contend that the forum selection clauses cannot limit or waive their

ability to bring their action in Tennessee.

In furtherance of the TCPA’s purpose, the TCPA confers various substantive rights

and benefits including, among other things, the right to bring an action to recover actual

damages. See Tenn. Code Ann. § 47-18-109(a). Section 47-18-109(b), however, simply

establishes the particular counties in Tennessee in which plaintiffs may bring consumer

protection claims.6

 These same or similar consumer protection claims can sometimes be

litigated, however, in other jurisdictions. In fact, this Court has previously implicitly

recognized in two prior unpublished opinions that a party’s ability to bring a TCPA action

in Tennessee can, in some such instances, be limited or waived. See Tennsonita

(Memphis), Inc. v. Cucos, Inc., 1991 WL 66993 (Tenn. App. May 2, 1991) (affirming the

enforcement of a forum selection clause in accordance with Tennessee law, even though

the plaintiffs’ claims included TCPA claims); Lien v. Couch, No. 01A01-9609-CV-00398,

1998 WL 848101 (Tenn. App. Dec. 8, 1998) (recognizing that a plaintiff’s ability to bring a

TCPA action in Tennessee can be limited through the judicial doctrine of claim preclusion,

even though such an action was commenced prior to entry of the foreign judgment on

related claims). In this case, whether the forum selection clauses can be enforced (for

claims that arose from an act committed during trade or commerce in part or wholly within
7. Had Plaintiffs properly raised this matter in the trial court, the trial court would have been compelled to take

judicial notice of the applic able f oreig n laws und er Tennessee R ule of Evidence 202(a). This Cou rt, however,

is authorized to take judicial notice of a law or statute of another state only when the law or statute is included

in the reco rd on ap peal. De Soto Hardwood Flooring Co. v. Old Dominion Table & Cabinet Works, 163 Tenn.

13

Tennessee) depends upon whether the substantive rights and remedies afforded under

the TCPA and asserted and/or sought in this case 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 claim preclusion depends, in part, upon

whether the same claims could have been asserted in the foreign jurisdiction). In other

words, enforcement of the forum selection clauses depends upon whether such

enforcement would limit or waive Plaintiffs’ substantive rights and remedies afforded under

the TCPA. If such rights can be asserted and remedies can be sought in the designated

fora, then the TCPA’s purpose is not contravened by the forum selection clauses.

In order to determine whether Plaintiffs will be able to assert substantially the same

rights and seek substantially the same remedies in 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 TCPA claims be

asserted and litigated in the selected forum? Id. If the answer to answer to either or both

of these questions is yes, then the substantive rights or benefits established under the

TCPA are not limited or waived, the TCPA’s purpose is not contravened, and the

applicable forum selection clause is enforceable. See id.

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

defendants, Norwegian, Carnival, and Royal Caribbean, designated Florida. The forum

selection clause that is applicable to the remaining defendant, Princess, designated

California. Plaintiffs, however, have not raised and averred either Florida’s or California’s

laws. Because they have failed to raise these foreign laws, and because the foreign laws

are not included in the record on appeal, we find it unnecessary for this Court to ascertain

and judicially notice any such laws.

7

 Therefore, we must presume that the consumer
532, 43 S.W.2d 1069, 1070 (1931) (section 5586 of Thompson’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 accordingly . . . only . . . when such laws are read in evidence in the lower court--

pleaded, or at least proven , below”); Kaset v. Freedman, 22 Tenn. App. 213, 120 S.W.2d 97 7, 980 (1938).

14

protection laws of Florida and of California are the same as the laws of the state of

Tennessee. See Kaset v. Freedman, 22 Tenn. App. 213, 120 S.W.2d 977, 980 (1938).

Accordingly, we find that enforcement of the forum selection clauses will not limit or waive

Plaintiffs’ substantive rights and remedies afforded under the TCPA and will not contravene

the TCPA’s purpose. As such, we conclude that enforcement of the forum selection

clauses will not “contravene a strong public policy,” and that the clauses are enforceable.

Conclusion

Based upon the foregoing, we affirm the trial court’s dismissal. Costs of this appeal

are taxed to Plaintiffs, for which execution may issue if necessary. 

 

HIGHERS, J.

CONCUR:

 

FARMER, J.
15

 

TOMLIN, Sp. J.