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26 ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

INGOLF R. DINKLAGE,

Plaintiff,

v.

HOLLAND AMERICA LINE-WESTOURS

INC., HOLLAND AMERICA LINE NV, HAL

ANTILLEN NV, and STEINERTRANSOCEAN, LTD.,

Defendants.

CASE NO. C06-0018-JCC

ORDER

This matter comes before the Court on Defendants’ Motion for Partial Summary Judgment (Dkt.

No. 22), asking that the Court limit Plaintiff’s recovery to 46,666 Special Drawing Rights. Having

considered the parties’ relevant submissions on the matter and determined that oral argument is

unnecessary, the Court hereby DENIES Defendants’ motion.

I. BACKGROUND AND FACTS

Plaintiff alleges that he was injured during the course of a cruise aboard the M/S Amsterdam

during January 2005 as a result of Defendants’ negligence. (Amended Complaint 2-3 (Dkt. No. 14).)

Roughly two weeks prior to departure, he received a booklet of travel documents made up of 33 colored

8-inch by 3-inch stubs that included sections labeled “Arrival Advice,” “Itinerary,” “Contract (Please

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26 ORDER – 2

Read),” and “Cancellation Information.” (Dinklage Decl. 2 (Dkt. No. 26); Travel Documents 6 (Ex. 1 to

Dinklage Decl., Dkt. No. 26). At issue here is whether this Court should enforce a limitation of liability

clause contained in the Contract section of those documents.

Every other page of the Contract section is labeled “CONTRACT” in large lettering going down

the right-hand margin of the page. (Id. at 19-33.) The second page of the Contract section says

“IMPORTANT NOTICE TO PASSENGERS” in large, bold font. (Id. at 21.) The second paragraph

below this notice states: “NOTICE: YOUR ATTENTION IS ESPECIALLY DIRECTED TO

CLAUSES A.1, A.3, A.4, A.5, A.6, A.7, A.9, A.10, and C.4 BELOW, WHICH CONTAIN

IMPORTANT LIMITATIONS ON YOUR RIGHT TO ASSERT CLAIMS AGAINST US AND

CERTAIN THIRD PARTIES.” (Id.) On the next page above the title “A. GENERAL PROVISIONS,”

the Contract states: “IMPORTANT TERMS AND CONDITIONS OF CONTRACT - READ

CAREFULLY BEFORE ACCEPTING.” (Id.)

Paragraph A.14 of the Contract section contains the following provision in 8-point font. 

14. Governing Law; Transferability; Separability: This contract is issued at Seattle,

Washington. As to any cruise that does not begin, end or call at a port in the United States

of America, we shall be entitled to any and all damages limitations, immunities and rights

applicable to us under the “Convention Relating to the Carriage of Passengers and Their

Luggage by Sea” of 1976 (“Athens Convention”) which limits our liability for death of or

personal injury to a passenger to no more than 46,666 Special Drawing Rights (as defined

therein), and all other limits for damage or loss to personal property. Otherwise, this

contract and its interpretation shall, to the maximum extent allowed under the general

maritime law of the United States, be governed by and construed in accordance with the

general maritime law of the United States, to the extent such maritime law is not

applicable, it shall be governed by and construed in accordance with the laws of the State

of Washington (U.S.A.). This contract cannot be transferred by you. Any additions,

deletions or other alterations to, or waivers of any term of, this contract which are

purported to have been made by us and which have not been agreed to in writing by the

President of HAL will not be legally binding upon us. Any provision of this contract which

is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective

to the extent of such prohibition or uneforceability and the validity and enforceability of

the remaining terms and conditions of this contract will not otherwise be affected, nor will

the validity and enforceability of such provision be affected in any other jurisdiction.

(Id. at 29.)

//

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26 ORDER – 3

II. STANDARD OF REVIEW

Rule 56 of the Federal Rules of Civil Procedure states that a party is entitled to summary

judgment in its favor “if the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In determining whether

an issue of fact exists, the Court must view all evidence in the light most favorable to the nonmoving

party and draw all reasonable inferences in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248-50 (1986); Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996). A genuine issue of material

fact exists where there is sufficient evidence for a reasonable factfinder to find for the nonmoving party.

Anderson, 477 U.S. at 248. The inquiry is “whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”

Id. at 251-52. The moving party bears the burden of showing that there is no evidence which supports an

element essential to the nonmovant’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once

the movant has met this burden, the nonmoving party then must show that there is in fact a genuine issue

for trial. Anderson, 477 U.S. at 250. 

III. ANALYSIS

Plaintiff alleges that any limitation of liability to 46,666 Special Drawing Rights is unenforceable

because it was not reasonably communicated. Cruise line passage contracts are governed by general

federal maritime law. Wallis v. Princess Cruises, Inc., 306 F.3d 827, 834 (9th Cir. 2002). The Ninth

Circuit requires that fine-print limitations contained in passenger tickets be reasonably communicated to

be enforceable, and uses a two-part test to determine whether this standard has been met. Id. at 835. The

issue of whether such communication was reasonable is a question of law, to be determined by the Court.

Id; Deiro v. American Airlines, Inc., 816 F.2d 1360, 1364 (9th Cir. 1987). The first part of the analysis

examines the physical characteristics of the ticket and the second part looks to the circumstances

surrounding its purchase and retention. Wallis, 306 F.3d at 836.

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26 ORDER – 4

a. Physical Characteristics

The first (psychical characteristic) prong of the analysis requires that the Court “assess features such as

size of type, conspicuousness and clarity of notice on the face of the ticket, and the ease with which a

passenger can read the provisions in question.” Id. at 835-36 (internal citations and quotations omitted).

In Wallis, for example, the Ninth Circuit confronted a limitation of liability provision similar to the one at

issue in this case, which purported to limit Princess Cruise Line’s liability to the amount of Special

Drawing Rights defined in the Convention Relating to the Carriage of Passengers and Their Luggage by

Sea of 1976 (“Athens Convention”). Id. at 830. In this first part of the analysis, it held that the physical

characteristics of the ticket sufficiently warned passengers of this limitation of liability. The Ninth Circuit

wrote:

The reference to the Athens Convention liability limitation is buried six sentences into

paragraph 16 in extremely small (1/16 inch) type. However, paragraph 16 is legible, and it

carries the heading: “16. LIMITATIONS ON CARRIER’S LIABILITY;

INDEMNIFICATION.” The “IMPORTANT NOTICE” warning headline reminds the

passenger at least five times to read “SECTIONS 15 THROUGH 18.” The pages upon

which paragraph 16 is printed are marked with the words, “PASSAGE CONTRACT,” in

the upper right hand corner.

Id. at 836. Like the ticket in Wallis, the relevant Contract term at issue here is printed on passenger

tickets in relatively small—but legible—font and is buried several sentences into the relevant clause in a

section clearly labeled as “CONTRACT.” Thus, these features favor a finding that the limitation was

reasonably communicated.

Unlike the ticket in Wallis, however, the passenger’s attention was not once directed specifically

to the relevant paragraph (let alone five times) by any other portion of the contract. This omission is

especially glaring because the carrier highlighted several other paragraphs, stating “NOTICE: YOUR

ATTENTION IS ESPECIALLY DIRECTED TO CLAUSES A.1, A.3, A.4, A.5, A.6, A.7, A.9, A.10,

and C.4 BELOW, WHICH CONTAIN IMPORTANT LIMITATIONS ON YOUR RIGHT TO ASSERT

CLAIMS AGAINST US AND CERTAIN THIRD PARTIES.” (Travel Documents 24.) There are only

fourteen numbered paragraphs in the “General Provisions” (Section “A”) of the Contract. That Paragraph

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26 ORDER – 5

A.14 was not one of those flagged sections further underscores the significance of the carrier’s failure to

mention this provision as “an important limitation” on passengers’ rights.

Further distinguishing the notice in case from that in Wallis, is the heading of the relevant

paragraph. Here, Paragraph A.14 contains no reference to words such as “limitation,” “liability,” or

similar limiting terms, but rather is contained under a section titled “Governing Law; Transferability;

Separability.” (Contract ¶ A.14.) This language stands in stark contrast to the heading in Wallis, 306

F.3d at 836 (“LIMITATIONS ON CARRIER’S LIABILITY; INDEMNIFICATION”) and the other

paragraphs in the contract that this carrier sought fit to highlight (see Contract ¶ A.3 (“Time Limits for

Noticing Claims and Filing and Service of Lawsuits”); Contract ¶ A.4 (“Limitation on

Liability/Non-HAL Services”); Contract ¶ C.4 (“Liability and Relationship with Airlines”)). As this

Court can see no way in which the carrier’s reference to the Athens Convention involves “Severability”

or “Transferability,” it is left to infer that the liability provision is listed under this heading as a statement

of “Governing Law” because the limitation mirrors that contained in the “law” of the Athens Convention.

Yet this categorization is inappropriate here, where it is undisputed that the Athens Convention could

never be the governing law on its own accord because no relevant country to the dispute is a signatory to

it. See Wallis, 306 F.3d at 837. Thus, what is labeled as “Governing Law” is merely a contract term that

is incorporated by reference from what happens to be a legal document. Accordingly, this provision

constrains the rights of the litigants in a way that other forum-selection clauses do not by grafting on to

the substantive law of the chosen forum a cap on damages that is otherwise inapplicable to it. As a result,

the physical placement of a limitation on liability under the confusing heading of “Governing Law”

supports Plaintiff’s argument that the monetary cap on damages was not reasonably communicated. 

As, with the ticket in Deiro, the Court acknowledges “[t]he instant case falls between those cases

in which notice on the face of the ticket is virtually nonexistent, and those in which the notice is clear and

conspicuous.” Deiro, 816 F.2d at 1364 (9th Cir. 1987) (internal quotations and alterations omitted). On

balance, however, an examination of the totality of the physical characteristics in light of the standards

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outlined in Wallis favors Plaintiff’s interpretation that there was not adequate notice of the liability

limitation at issue here.

b. Surrounding Circumstances

Also like Deiro, “[w]hat is a close case under the first part of our analysis, however, becomes

decidedly clear upon consideration of the [second prong of the analysis].” Id. at 1365. Here, the Court

must evaluate “the circumstances surrounding the passenger’s purchase and subsequent retention of the

ticket/contract.” Wallis, 306 F.3d at 836 (internal quotations omitted). In Wallis, the Ninth Circuit

examined a similar contract that likewise incorporated the terms of the Athens Convention by reference.

The carrier in Wallis notified the passenger that its liability was limited to the amount of damages

applicable to it under the Athens convention, though it did not spell out precisely what those limits were.

The Ninth Circuit found the contract failed the second prong of the analysis because the significant

amount of legal and financial sophistication customers would need in order to decipher the contract’s

terms made it unlikely that a passenger would undertake the effort to become informed of his or her legal

rights. This Court can discern two primary extrinsic factors identified by the Ninth Circuit in Wallis that

justified a finding that the limitation on liability was not reasonably communicated, both of which apply to

this contact as well.

First, the Ninth Circuit faulted the Wallis contract for not specifying the limitation on liability. The

relevant provision of the Wallis contract stated:

Carrier shall be entitled to any and all liability limitations, immunities and rights applicable

to it under the “Convention Relating to the Carriage of Passengers and Their Luggage by

Sea” of 1976 (“Athens Convention”) which limits the Carrier’s liability for death of or

personal injury to a Passenger to no more than the applicable amount of Special Drawing

Rights as defined therein, and all other limits for damage or loss of personal property.

(Id. at 830.) The Ninth Circuit held that a typical passenger who wanted to understand what this language

meant would have to (i) look up the Athens Convention; (ii) research its amendments, (iii) find the stated

liability limitation of “46,666 units of account per carriage,” (iv) cross reference another section of the

Convention to learn that a “‘Unit of Account’ is the same as a ‘Special Drawing Right as defined by the

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26 ORDER – 7

International Monetary Fund,’” and (v) check a financial source to convert that unit into a currency

valuation he or she could understand, calculated on the expected date of judgment. Wallis, 306 F.3d at

836-37.

The contract in this case has extremely similar characteristics. It reads: 

As to any cruise that does not begin, end or call at a port in the United States of America,

we shall be entitled to any and all damages limitations, immunities and rights applicable to

us under the “Convention Relating to the Carriage of Passengers and Their Luggage by

Sea” of 1976 (“Athens Convention”) which limits our liability for death of or personal

injury to a passenger to no more than 46,666 Special Drawing Rights (as defined therein),

and all other limits for damage or loss to personal property. 

(Travel Documents 29.) This language requires a passenger to undertake virtually the same tortured line

of research that the Ninth Circuit found objectionable in Wallis. Both statements list—but do not

define—Special Drawing Right and rely on the passenger to conduct outside research to discover what

this term means. Both contracts require the passenger to consult an outside financial resource—one that

exists neither in the Contract nor in the Athens Convention itself—to calculate the current value of a

Special Drawing Right once the customer becomes aware that a Special Drawing Right is a unit of

currency. Both contracts require that the passenger estimate what that rate might be at some as-of-yetunknown date of judgment. Both contracts refer to the Athens Convention of 1976, and thus require an

examination of both the original 1974 protocol and its amendments. 

The only relevant difference between these two constructions is that the contract in this case

specifically lists the number “46,666.” This one alteration is not enough justify a finding that the limitation

was reasonably communicated, especially given the obscure nature and confusing name of a “Special

Drawing Right.” While another Court in this district has found that mentioning the number “46,666”

helps put passengers on notice that the Special Drawing Right is a monetary unit, see Paul v. Holland

America Line Inc., No. C05-2016-RSM (W.D. Wash. Nov. 6, 2006), this Court respectfully disagrees

with its decision. Paul substantially relied on language from Mills v. Renaissance Cruises, Inc.,1992 WL

471301, at *1 (N.D. Cal. 1992), an unpublished district court case that was written several years before

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1

 At the present time, only the Westlaw citation for this case is available to the Court. The Court

is aware of the strange formatting and punctuation of the quoted contract language and has opted to

leave the formatting as it is listed on Westlaw.

ORDER – 8

Wallis. The contractual language in Mills was substantially clearer than the instant contract. It read:

The Carrier shall not be liable for any such. injury. except the negligence of the Carrier or

its employees’ action within the scope of their Employment, and if such negligence be

proven, the Carrier’s liability therefor shall not exceed the following limitations per

Passenger in Special Drawing Rights (S.D.R.) as defined in the amendment of 1978 to the

Athens Convention, article 9:

Personal Injury or Death S.D.R. 46,666

The first S.D.R. 13 to be borne by the Passenger according to the Athens Convention,

article 8.1

Id. at The subsequent reference to “the first S.D.R. 13” and the more substantial discussion regarding

negligence and liability limitations would be more likely to communicate to a passenger that a Special

Drawing Right is a monetary unit. It is worth noting that Mills is cited approvingly by Wallis as one of

fifteen cases, listed in a string citation, as a case in which “the nature and/or amount of the limitation in

question was explicitly stated in the contract.” Wallis, 306 F.3d at 839. The specific citation to Mills

contained the following parenthetical: “(provision explicitly limiting liability for personal injury or death

to “S.D.R. 46,666).” Id. Nevertheless, given the substantial differences between Mills and the instant

case, the substantial similarities between the language of Wallis and the language of the contract in this

case, and the cursory treatment given to Mills in Wallis, this Court finds the addition of the number

“46,666” insufficient to alter the fundamental result dictated by Wallis that this term was not reasonably

communicated. Further, the fact that the name Special Drawing Right contains the term “right” rather

than a reference to a word clearly designating a monetary unit such as “dollars,” “cents,” “accounts,” or

the like, makes it extremely unlikely that anyone hearing the term for the first time—even with the

preceding number “46,666”—would understand that term as a monetary one. Accordingly, relying on the

binding Ninth Circuit precedent in Wallis, this Court holds the level of legal and financial sophistication

required to interpret the terms of this contract weighs against a finding that its terms were reasonably

communicated.

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2

 While this Court takes no position on whether this language would be sufficiently precise to

successfully incorporate the Athens Convention into the agreement as a matter of contract law between

parties in typical contract situations, the “reasonably communicated” inquiry before the Court involves a

more “subjective” inquiry into the circumstances surrounding typical passengers. Wallis 306 F.3d at 836.

Thus the Court is not saying that the limits of the Athens Convention can never be incorporated into a

passenger contracts where, as here, the two relevant nations are not signatories to the Convention.

Rather, the Court merely insists that the carrier reasonably communicate the limitations contained in the

Athens Convention to the passenger if it wants the passenger to be bound by those terms.

ORDER – 9

 The second major extrinsic factor militating against a finding of reasonable communication in

Wallis was the contract’s facial ambiguity as to whether the Athens Convention actually applied. The

Wallis contract contained language stating “[i]f the Athens Convention or such exemptions and

limitations are held not to apply for any reason . . . . ” Wallis, 306 F.3d at 830. The appellate court held

that this hedging language provided a significant disincentive to study the ticket and become meaningfully

informed, and that this disincentive counted as an extrinsic factor against finding that the limitation had

been reasonably communicated. Id. at 837 (9th Cir. 2002).

Similar, though not identical, language appears in the contract in this case. After reciting the

limitation to “any and all damages limitations, immunities, and rights applicable to” the carrier under the

Athens Convention, the contract states:

[O]therwise, this contract and its interpretation shall, to the maximum extent allowed

under the general maritime law of the United States, be governed by and construed in

accordance with the general maritime law of the United States, to the extent such

maritime law is not applicable, it shall be governed by and construed in accordance with

the laws of the State of Washington (U.S.A.).

 (Contract ¶A.14 (emphasis added).) As in Wallis, it is not facially apparent whether or not these

limitations are definitely “applicable to” the carrier, or those which only hypothetically may be available to

the carrier in the event that the Athens Convention applies.2 Further, it is hard to read the word

“otherwise” as anything but an indication that the Athens Convention might not apply. References to the

conditional application of federal maritime and Washington State law may further add to the confusion as

to whether the Athens Convention Applies, and provide yet another disincentive for the passenger to

research the contours of whatever limits the Athens Convention, with its 46,666 Special Drawing Rights,

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3

 Because the Court finds that the liability limitation is unenforceable under the reasonable

communicativeness test, the Court need not address Plaintiff’s argument under Carnival Cruise Lines,

Inc. v. Shute, 499 U.S. 585, 595 (1991), that the limitation itself is inherently unfair because Plaintiff did

not receive the hardcopy ticket until after it was too late to obtain a refund. 

ORDER – 10

may impose. 

Accordingly, because the same two primary factors identified in the second prong of the

“reasonably communicated” analysis outlined in Walls exist here, the Court likewise finds that the

contract fails this second prong.

* * * 

Having found that the contract fails both prongs of the reasonably communicated analysis, the

liability limitation to 46,666 Special Drawing Rights was not reasonably communicated and is thus

unenforceable.3

III. CONCLUSION

For the foregoing reasons, Defendants’ Motion for Partial Summary Judgment is DENIED.

SO ORDERED this 27th day of March, 2007

AJohn C. Coughenour

United States District Judge

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