[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-10455

Non-Argument Calendar

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D.C. Docket No. 0:18-cv-62522-UU

TANYA LEBEDINSKY, 

 Plaintiff - Appellant,

versus

MSC CRUISES, S.A., 

 Defendant - Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(November 27, 2019)

Before MARTIN, JILL PRYOR and NEWSOM, Circuit Judges.

PER CURIAM: 

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Tanya Lebedinsky appeals the district court’s grant of MSC Cruises, S.A.’s 

motion to dismiss for improper venue. On appeal, Lebedinsky argues that the 

district court erred when it ruled that the forum selection clause contained in MSC 

Cruises’ contractual terms and conditions was enforceable, requiring her to bring 

her lawsuit in Italian court. After careful review, we affirm the district court’s 

dismissal. 

I. BACKGROUND

A. Factual Background

Lebedinsky took a cruise aboard the MSC Musica, beginning and ending in 

Venice, Italy, with intermediate stops in Italy, Greece, and Montenegro. 

Lebedinsky’s daughter purchased the ticket for her mother through an online ticket 

agent. Lebedinsky’s involvement was limited to payment; she does not recall 

reviewing confirmation documents for the trip. She does not dispute that she 

received the documents, however. While on the cruise, Lebedinsky fell, resulting 

in a host of serious injuries. She was medically disembarked to an Italian hospital 

and then flown to a New York hospital where she continued to receive treatment. 

MSC Cruises issued a Booking Confirmation to Lebedinsky five months 

prior to the start of her voyage and again to her travel agent days prior to the 

voyage. The Booking Confirmation contained a “Booking Terms and Conditions”

section, under the heading “IMPORTANT INFORMATION”: 

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Booking Terms and Conditions

The present booking is regulated by the Booking Terms and 

Conditions. Passengers acknowledge that they have received a copy, 

read and accepted the Booking Terms and Conditions before 

confirming their booking. A copy of the Standard Booking Terms and 

Conditions [] is also available on our website www.msccruises.com. 

Changes and cancellations are subject to penalties according to the 

Booking Terms and Conditions. 

Doc. 9-3 at 10.1

 The Booking Terms and Conditions were on the same page as 

other important information such as when final payments were due, what charges 

applied to cancellation requests, and what travel documents were required to board 

the cruise. 

Following the link in the Booking Terms and Conditions led to MSC 

Cruises’ website home page. A link at the bottom of the home page led to the 

“Terms and Conditions” governing MSC Musica’s voyage. On the Terms and 

Conditions page, there was the following notice: 

NOTICE TO PASSENGER: Below and attached to your Boarding 

Coupon, Passenger Ticket and (if contracted) Transfer Voucher are 

the terms and conditions of the Passenger Contract. Before accepting 

them, carefully read all the terms of the following Passenger Contract 

which contains important conditions and limitations including 

Clauses 20 to 26 which set out some of our rights, limitations of 

liability, court jurisdiction and time limits to file claims or to bring 

suit. 

Id. at 18 (“Passenger Notice”) (emphasis added). Directly below the Passenger 

Notice was a “Passenger Contract” paragraph: 

1 “Doc. #” refers to the numbered entry on the district court’s docket.

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PASSENGER CONTRACT: Carefully read all terms and conditions 

before accepting them. Clauses 20 to 26 set out your rights and 

limitations to make claims. Please retain this document for future 

reference. TO REVIEW THE PASS[ENGER] CONTRACT CLICK 

HERE.

Id. at 18 (emphasis added). Clicking on the link within the phrase “TO REVIEW 

THE PASS[ENGER] CONTRACT CLICK HERE,” led to all the provisions 

within the Passenger Contract.

An “Applicable Law” section in the Passenger Contract contained a forum 

selection clause stating that “[f]or Voyages that do not include a port in [the] 

U.S.A., all claims arising out of this Contract or relating to or arising from this 

Contract or your cruise shall be brought in and be subject to the exclusive 

jurisdiction of the Courts of Naples, Italy.” Id. at 19-20. The “Jurisdiction”

section further noted that “[u]nless differently provided by any applicable law, [] 

all claims against [MSC Cruises] shall be brought in and be subject to the 

exclusive jurisdiction of the Courts of Naples, Italy.” Id. at 24.

The Passenger Contract also included Conditions of Carriage governing the 

voyage on MSC Musica: 

CONDITIONS OF CARRIAGE

Standard conditions of carriage

These Conditions of Carriage set out the terms that govern the 

relationship, responsibilities and liabilities as between the Passenger 

and the Carrier and are BINDING ON THE PARTIES.

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The Passenger has entered into a Passage Contract with an Organizer 

and these conditions have been incorporated into the Passenger’s 

contract with the Organizer. These Terms and Conditions of Carriage 

will also apply where the Vessel is being used as a floating hotel 

whether or not there is a Passage Contract and whether or not there is 

any carriage.

You must carefully read these conditions of carriage which set out 

your rights, responsibilities and limitations to make claims against the 

Carrier, its servants and/or agents. The Carrier’s liability is limited as 

set out in Clauses 22 and 23.

Doc. 9-2 at 2. Under the “Liability” section of the Conditions of Carriage, MSC 

Cruises expressly incorporated the Athens Convention, an international treaty

governing the carriage by sea of passengers and their luggage. Here, MSC Cruises 

noted that “[t]he liability of the Carrier for death, personal injury or illness to the 

Passenger shall not exceed 46,666 Special Drawing Rights (“SDR”)[2

] as provided 

and defined in the Athens Convention.” Appellant Br., Addendum 1 at 39-40. 

We refer to the Booking Terms and Conditions, the Passenger Contract, and 

the Conditions of Carriage on MSC Cruises’ website collectively as the “terms and 

conditions.”

2 An SDR is an artificial currency instrument created by the International Monetary Fund

(“IMF”), which uses SDRs for internal accounting purposes. The SDR serves as the unit of 

account of the IMF and some other international organizations. Special Drawing Right, 

International Monetary Fund (Mar. 8, 2019), https://www.imf.org/en/About/Factsheets/Sheets/

2016/08/01/14/51/Special-Drawing-Right-SDR (last visited Nov. 19, 2019). 

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B. Procedural Background

Lebedinsky filed a lawsuit against MSC Cruises in the United States District 

Court for the Southern District of Florida. MSC Cruises moved to dismiss for 

improper venue and on forum non conveniens grounds. The district court granted 

the motion, concluding that the forum selection clause required Lebedinsky to 

bring her lawsuit in Italy. This appeal followed. 

II. STANDARD OF REVIEW

We review de novo a district court’s dismissal based on a forum selection 

clause in an international agreement. Lipcon v. Underwriters at Lloyd’s, London, 

148 F.3d 1285, 1290-91 (11th Cir. 1998).

III. DISCUSSION

Forum selection clauses are presumptively valid and enforceable unless the 

plaintiff makes a “strong showing” that enforcement would be unfair or 

unreasonable under the circumstances. Krenkel v. Kerzner Int’l Hotels Ltd., 579 

F.3d 1279, 1281 (11th Cir. 2009) (citing Carnival Cruise Lines, Inc. v. Shute, 499 

U.S. 585, 593–95 (1991); M/S Bremen v. Zapata Off–Shore Co., 407 U.S. 1, 10 

(1972)). A forum selection clause will be invalidated when: “(1) its formation was 

induced by fraud or overreaching; (2) the plaintiff would be deprived of [her] day 

in court because of inconvenience or unfairness; (3) the chosen law would deprive 

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the plaintiff of a remedy; or (4) enforcement of the clause would contravene public 

policy.” Id.

On appeal, Lebedinsky argues that the district court erred in concluding that 

the forum selection clause was valid and enforceable because: (1) the forum 

selection clause was induced by overreaching because it was not reasonably 

communicated to passengers, (2) the invocation of the Athens Convention 

contravenes public policy and would effectively deprive her of a remedy, and (3) 

circumstances, including her injuries and her treatment in New York, make Naples, 

Italy an inconvenient forum. We address these arguments in turn.

A. The Forum Selection Clause’s Formation Was Not Induced by Fraud or 

Overreaching.

Lebedinsky argues that the terms and conditions, including the forum 

selection clause, were not reasonably communicated because MSC Cruises did not 

include a sufficiently prominent warning about the content of the terms and 

conditions nor did it present them in a clear enough manner.

We apply a two-part test of “reasonable communicativeness” when 

determining whether a forum selection clause was induced by fraud or 

overreaching, considering (1) the clause’s physical characteristics and (2) whether 

the plaintiffs had the ability to become meaningfully informed of the clause and to 

reject its terms. Id.; see also Estate of Myhra v. Royal Caribbean Cruises, Ltd., 

695 F.3d 1233, 1244–46 (11th Cir. 2012), superseded on other grounds as 

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recognized by Caron v. NCL (Bahamas) Ltd., 910 F.3d 1359 (11th Cir. 2018)

(applying the two-part “reasonable communicativeness” test). MSC Cruises’

forum selection clause satisfies both prongs. 

1. The Clause’s Physical Characteristics

Lebedinsky contends that MSC Cruises’ forum selection clause failed the 

physical characteristics prong because the clause lacked “clarity in plain language”

and the information MSC Cruises provided did not “conspicuously call attention”

to the forum selection clause. Appellant Br. at 23, 25. To satisfy this prong, 

however, it is enough that the forum selection clause was clearly set out and 

contained clear language. MSC Cruises’ forum selection clause met these criteria. 

The placement and appearance of MSC Cruises’ forum selection clause were

like the clause in Estate of Myhra, which we held satisfied the physical 

characteristics prong. See 695 F.3d at 1244–45. There, the forum selection 

language was included near the bottom of a “Booking Conditions” section, which 

appeared on page 128 of a cruise line’s “obviously lengthy booklet.” Id. at 1244. 

The forum selection language was set out in identical type as the rest of the 

conditions but under “clear plain-English headings.” Id. at 1245. In this case, the 

passenger was required to follow two hyperlinks and then scroll down to locate the 

forum selection clause; we find no meaningful difference between doing so and 

paging through a booklet. And because the forum selection language in MSC 

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Cruises’ terms and conditions had the same characteristics—set out in identical 

typeface under clear headings—it satisfied the physical characteristics prong. See 

id. 

2. Lebedinsky’s Opportunity to Become Meaningfully Informed of 

the Clause

The second prong of the “reasonably communicated” test asks whether a 

plaintiff had the ability to “become meaningfully informed of the clause and reject 

its terms.” Krenkel, 579 F.3d at 1281. Citing Wallis v. Princess Cruises, Inc. as 

support, Lebedinsky contends that MSC Cruises failed to “meaningfully inform”

her of the relevant terms and conditions, including the forum selection clause, 

because a layperson could not understand the implications of the inclusion of the 

Athens Convention in the limitations of liability provisions. See 306 F.3d 827, 

836–37 (9th Cir. 2002). This argument fails for two reasons. First, Lebedinsky

impermissibly shifts the focus of the “meaningfully inform” inquiry from the 

forum selection clause to the terms and conditions in their totality. See Krenkel, 

579 F.3d at 1281 (“A useful two-part test of ‘reasonable communicativeness’ takes 

into account . . . whether the plaintiff[] had the ability to become meaningfully 

informed of the [forum selection] clause and to reject its terms” (emphasis added)). 

Second, the court in Wallis was examining a more complex provision than the one

found here. See 306 F.3d at 830, 836–37. The limitation of liability provision in 

Wallis required the passenger to reference and interpret several outside sources to 

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fully understand its implications. The court held that a layperson could not be 

expected to fully understand the provision and, therefore, it was not reasonably 

communicated to the passengers. Id. But, here, the forum selection clause’s 

language is clear and unambiguous, requiring that all claims be brought in Italian 

court if, like the MSC Musica, the cruise ship did not enter a United States port. 

Therefore, Wallis is inapposite. 

Unlike in Wallis, in this case Lebedinsky had the opportunity to become 

meaningfully informed of the forum selection clause. Both Lebedinsky and her 

travel agent were given the Booking Confirmation with a notice regarding the 

Booking Terms and Conditions, which contained a link to MSC Cruises’ website, 

where the terms and conditions, including the forum selection clause, could be 

found. Lebedinsky does not dispute receipt of the Booking Confirmation over five 

months before the cruise. And the language of the forum selection clause 

unambiguously stated that claims arising out of the voyage on MSC Musica had to 

be brought in Italy. Therefore, Lebedinsky had the time and opportunity to 

become meaningfully informed of the forum selection clause. See id.; see also

Vanderham v. Brookfield Asset Mgmt., Inc., 102 F. Supp. 3d 1315, 1319–20 (S.D. 

Fla. 2015) (concluding that plaintiff was meaningfully informed when sent an

email with a link containing information regarding forum selection clause).

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MSC Cruises’ forum selection language satisfies the two-part test of 

“reasonable communicativeness” and, therefore, was not induced by fraud or 

overreaching. 

B. The Forum Selection Clause Does Not Deprive Lebedinsky of Her Day 

in Court Because of Inconvenience or Unfairness.

A forum selection clause can be unreasonable—and therefore 

unenforceable—“if the chosen forum is seriously inconvenient for the trial of the 

action.” M/S Bremen, 407 U.S. at 16. When the parties to an agreement 

“contemplated the claimed inconvenience,” however, a court requires “a heavy 

burden of proof” to render a forum selection clause unenforceable. Id. at 16-17. 

Lebedinsky has not met that burden. 

Lebedinsky contends that circumstances—including the continued pain she 

suffered in the United States from her injury, her treatment in New York, fact 

witnesses located in New York, and MSC Cruises’ connection to the United 

States3

— render the forum selection clause so inconvenient that it is 

unenforceable. But these circumstances are not the type of uncontemplated 

inconveniences that justify the invalidation of a forum selection clause. See id. at 

16. 

3 Lebedinsky characterizes MSC Cruises as a “U.S. headquartered company.” Appellant 

Br. at 32. MSC Cruises disputes that it is headquartered in the United States. We do not resolve 

this factual dispute because it does not affect our determination that the forum selection language 

binds Lebedinsky. 

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The MSC Musica did not travel to any United States port of call; its journey 

began and ended in Italy with stops in other European ports. Italy, therefore, is not 

a remote alien forum for this dispute. Instead, Italy is the forum where a dispute 

relevant to voyage on the MSC Musica would most likely arise. That Lebedinsky’s 

injury was treated in New York does not change that fact; an injury taking place on 

the MSC Musica is exactly the “particular controversy [the parties had] in mind”

when they selected Italy as a forum. Id. at 17.

We are sympathetic to Lebedinsky’s injuries, but “whatever inconvenience 

[she] would suffer by being forced to litigate in the contractual forum as [she] 

agreed to do was clearly foreseeable at the time of contracting.” Id. at 17-18

(internal quotation marks omitted). The enforcement of the forum selection clause

thus does not deprive Lebedinsky her day in court due to inconvenience. 

C. Italian Law Would Not Deprive Lebedinsky of a Remedy.

Lebedinsky asserts that she has incurred approximately $750,000 in 

damages, and due to MSC Cruises’ invocation of the Athens Convention and its 

liability limitations, Italian courts offer essentially no remedy. Even if we assume 

that the Italian court would apply the Athens Convention,4 Lebedinsky would not 

be deprived of a remedy. 

4 See Estate of Myhra, 695 F.3d at 1243 (“[A] choice-of-forum clause merely directs the 

litigation to a particular forum, usually one with a significant connection with the incident or 

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MSC Cruises’ terms and conditions limit liability pursuant to the Athens 

Convention for voyages where the cruise ship embarks or disembarks from a 

country in the European Union, as MSC Musica did. The Athens Convention 

states: “The liability of the carrier for the death of or personal injury to a 

passenger shall in no case exceed 46,666 [SDR] per carriage.” Athens Convention 

Relating to the Carriage of Passengers and Their Luggage by Sea, art. 7, Nov. 19, 

1976, 1463 U.N.T.S. 19. Thus, assuming without deciding that the Athens 

Convention would be applied, it would appear to limit Lebedinsky’s recovery to 

46,666 SDRs, or approximately $64,000,5 well short of the $750,000 in damages 

that Lebedinsky claims to have incurred. But the potential for decreased recovery 

is not the same as no remedy. 

This Court does not invalidate a forum selection clause “simply because the 

remedies available in the contractually chosen forum are less favorable than those 

available in the courts of the United States.” Lipcon, 148 F.3d at 1297. Only 

remedies that are “so inadequate that enforcement would be fundamentally unfair”

render a chosen forum inadequate. Id.; see also Riley v. Kingsley Underwriting 

Agencies, 969 F.2d 953, 958 (10th Cir. 2002) (“The fact that an international 

transaction may be subject to laws and remedies different and less favorable than 

with the parties, for adjudication.”). A forum selection clause does not mandate what substantive 

law applies; the jurisdiction where a case is heard makes that determination. 

5 Conversion rates for SDRs to U.S. dollars can be found at https://www.imf.org/external/

np/fin/data/rms_sdrv.aspx. 

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those of the United States is not a valid basis to deny enforcement, provided that 

the law of the chosen forum is not inherently unfair.”). We acknowledge that there 

may be a point at which a reduced recovery dictated by the law of a chosen forum 

is so low relative to the plaintiff’s damages as to render the choice of forum 

fundamentally unfair. But here, the possibility of reduced recovery does not 

amount to fundamental unfairness, and the potential application of the Athens 

Convention cannot justify the forum selection clause’s invalidation. See Lipcon, 

148 F.3d at 1297.

Lebedinsky offers no other argument as to the inadequacy of Italy as a 

forum. Therefore, she has not shown that Italy as a forum would deprive her of a 

remedy. 

D. Enforcement of the Forum Selection Clause Would Not Contravene 

Public Policy.

Lebedinsky contends that there is a strong public policy contained within the 

United States’ “general maritime law that opposes carrier limits on passenger 

liability for negligence,” evidenced by Congress’s passage of 46 U.S.C. § 30509 

prohibiting the owner of a ship that travels between ports in the U.S. and a port in a 

foreign country from limiting its liability to passengers. Appellant Br. at 19. For 

this argument, too, she assumes that enforcement of the forum selection clause 

would likely result in application of the Athens Convention. Because the Athens 

Convention limits liability for negligence, she argues that its application would 

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contravene public policy. This Court has previously rejected the argument that 

where enforcing a forum clause would effect a limitation of liability, public policy 

bans enforcement of the clause. See Estate of Myhra, 695 F.3d at 1242-43. 

Specifically, in Estate of Myhra, we addressed the questions of “whether the 

use of a forum-selection clause that selects venue where domestic law, if 

applicable, would effect a limitation of liability should be considered within the 

ambit of [§ 30509’s] prohibition,” and “whether such a prohibition constitutes a 

sufficiently strong public policy of the United States to bar enforcement of the 

clause.” Id. at 1242. We answered both questions in the negative. See id. at 1243. 

Further, as explained in Estate of Myhra, Congress’s opposition to liability 

limitation provisions “was to forbid the unilateral imposition of a limitation of 

liability by a ship owner without any recourse to judicial process.” Id. (emphasis 

added). This policy concern does not extend to forum selection clauses because 

forum selection clauses merely direct a dispute to a particular jurisdiction. “[I]t is 

clear that Congress understood that the usual rules of jurisdiction and choice of law 

would produce, in some instances, a limitation on liability.” Id. Applying the 

reasoning we employed in Estate of Myhra, MSC Cruises’ forum selection clause 

would not contravene public policy.

Accordingly, MSC Cruises’ forum selection clause (1) was not induced by 

fraud or overreaching, (2) would not deprive Lebedinsky of her day in court, (3) 

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would not deprive her of a remedy, and (4) did not contravene public policy. 

Lebedinsky therefore has not made a “strong showing” that its enforcement would 

be unfair or unreasonable under the circumstances. Krenkel, 579 F.3d at 1281. 

Lebedinsky may bring suit for redress of her injuries only in an Italian court, 

consistent with the terms of the forum selection clause. 

IV. CONCLUSION

For the foregoing reasons, we affirm the district court’s grant of MCS 

Cruises’ motion to dismiss.

AFFIRMED.

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