occurred,” 46 App. U.S.C. section 183b(a). However, more on point to the facts of this
case is sub-section (c) of this statute which states in part, “if the action is one for
wrongful death, any lawful limitation of time prescribed ini such contract shall not be
applicable so long as no legal representative has been appointed for . . . decedent’s estate,
but shall be applicable from the date of the appointment of such legal representative.” 46
App. U.S.C. section 183b(c).

Defendants contend that the limitation period in clause 16 bars the maintenance of
this action. They argue that the one-year limitation period begins to run from the date of
injury and not the date of death.' In light of the language of the statute, however, neither
event is outcome determinative.

Plaintiffs’ cause of action is one for wrongful death and thus, it is clearly
governed by 46 App. U.S.C. section 183b(c). Therefore, any provisions of the contractual
agreement, in particular clause 16, which are contrary to federal law are preempted and
impermissible. Subsection (c) of section 183b of Appendix A provides that any lawful
limitation of time in the ticket contract “shall be applicable from the date of the
appointment of the legal representative. Schwartz v. S. S. Nassau, 223 F. Supp. 374, 375
(D.C. N.Y 1963). In this case it is uncontested that Thomas H. Cafcas, Jr. was appointed
personal representative of the Estate of Constance F. Cafcas on March 17, 2000 and this
suit was filed on December 1, 2000. Thus, this suit satisfies the limitations period

governed by 46 App. U.S.C. section 183b(c).

Defendants have not raised any argument as to the 6 month period.

4


yy

inconvenience are not enough to nullify a forum selection clause, particularly as local
parties and witnesses can be heard in Florida by deposition).

Plaintiffs next allege that the relevant terms of the ticket contract were too small and
therefore, inadequate to give notice. The ticket contract in question contains warning
about the existence of limitations provisions near the top of the ticket. Further, this
section is entitled IMPORTANT NOTICE TO PASSENGERS and is underlined and in
bold face type. We feel that this introductory provision of the ticket was clear enough to
draw attention to the limitations below.

Finally, without citing any authority, plaintiffs argue that the ticket contract is
unreasonable because plaintiffs were not afforded the opportunity to reject the clause
without losing 25% of their payment. However, the courts have found forfeiture clauses
are not basis to invalidate the terms of the contract. Lauri v. Cunard Line Ltd., 2000 U.S.
Dist. LEXIS 8627 (E.D. Mich. 2000) (stating forfeiture of 100% of ticket price upon
cancellation would not invalidate a forum selection clause); Boyles v. Cunard Line Ltd.,
1994 U.S. Dist LEXIS 21449 (S.D. N.Y. 1994) (finding a passenger ticket contract
enforceable despite a significant cancellation fee); Hicks v. Carnival Cruise Lines, Inc.,
1994 U.S, Dist LEXIS 10194 (E.D. Pa. 1994) (rejecting argument that terms of contract
were unreasonable because the plaintiff did not receive her ticket in time to collect a
refund if she canceled).

Plaintiffs do not cite to authority and have not demonstrated a compelling argument
for this Court to hold that the forum selection clause is invalid. Thus, we would be
justified in dismissing the action for improper venue. However, rather than dismissal, we

7


true, and must draw all reasonable inferences in favor of the plaintiff. Pickrel v. City of
Springfield, 45 F. 3d 1115, 1116 (7th Cir.1995).

Clause 16 of the ticket contract under scrutiny contains the following notice:
16. PERSONAL INJURY CLAIMS/NOTICE:

REQUIREMENTS/TIME LIMITS: ANY INCIDENT OR ACCIDENT
RESULTING IN BODILY INJURY, EMOTIONAL DISTRESS OR
INJURY OR DEATH TO THE PASSENGER MUST BE REPORTED
IMMEDIATELY TO A VESSEL’S OFFICER. COMPANY WILL NOT
BE LIABLE THEREFOR EXCEPT AS PROVIDED BY LAW AND
THEN ONLY IF A WRITTEN CLAIM IS PRESENTED TO COMPANY
WITHIN SIX (6) MONTHS OF THE INCIDENT OR ACCIDENT
ALLEGED TO HAVE CAUSED THE BODILY INJURY, EMOTIONAL
DISTRESS OR INJURY OR DEATH. COMPANY WILL FURTHER
NOT BE LIABLE THEREFOR UNLESS SUIT IS COMMENCED
WITHIN TWELVE (12) MONTHS OF THE SAID INCIDENT OR
ACCIDENT TO HAVE CAUSED THE BODILY INJURY,
EMOTIONAL DISTRESS OR INJURY OR DEATH. IF A WRITTEN
CLAIM IS NOT MADE AND SUIT IS NOT COMMENCED WITHIN
THE TIMES PROVIDED IN THIS ARTICLE THEN THE PASSENGER
WAIVES AND RELEASES ANY RIGHT HE MAY HAVE TO MAKE
A CLAIM AGAINST COMPANY FOR ANY SUCH BODILY INJURY,
EMOTIONAL DISTRESS OR INJURY OR DEATH.

Defendant is correct in stating that one-year contractual limitation periods in
passenger contracts for bodily injury are permitted under federal admiralty law pursuant
to 46 App. U.S.C. section 183b. “It shall be unlawful for the manager, agent, master, or
owner of any sea-going vessel . . . transporting passengers . . . from or between ports of
the United States and foreign ports to provide by rule, rule contract, regulation, or
otherwise a shorter period for giving notice of, or filing claims for loss of life or bodily
injury, than six months, and for the institution of suits on such claims, than one year, such

period for institution of suits to be computed from the day when the death or injury

3


Now that we have established that the suit is timely, we turn to the issue of venue.
The cruise ticket contract contains a forum-selection clause requiring that all disputes
arising in connection with the cruise be litigated in a court in Broward County, Florida.
Specifically clause 18 states:
18. PLACE OF SUIT:

b. Choice of Law Forum. All questions arising on this Ticket/Contract shall be

decided according to the Convention, the general maritime laws of the United States

of America and, otherwise, in accordance with the laws of the State of Florida, with
references to which this Ticket/Contract is made, Any dispute arising out of or in
connection with this Ticket/Contract shall be determined by the Courts in Broward

County, State of Florida, the jurisdiction of which the Carrier and Passenger hereby

submit themselves.

Defendants argue that contrary to the express language of the forum selection clause,
plaintiffs filed their action in Illinois, as opposed to Broward County, Florida and thus,
the defendants seek to have the suit dismissed. We agree that the correct venue to litigate
this suit is in Florida not Illinois.

Forum-selection clauses are “prima facie valid and should be enforced unless
enforcement is shown by the resisting party to be unreasonable under the circumstances.”
See M/S Bremen v, Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S. Ct. 1907, 32 L. Ed. 2d
513 (1972), The Supreme Court upheld the enforceability of a forum-selection clause in
Carnival Cruise Lines, Inc. v. Shute. 499 U.S. 585, 111 S. Ct. 1522, 113 L. Ed. 2d 622
(1991). In Shute, similar to the plaintiffs’ in our case, the plaintiff was injured on the
cruise, and filed suit against the cruise line in her resident state. Jd. The Supreme Court
upheld the forum selection clause. The Supreme Court listed several justifications for

permitting the cruise line to inset a reasonable forum clause including the cruise line’s

5


conclude that justice would be better served by transferring the case to Florida. Under
28. U.S.C, section 1406 (a), “the district court of a district in which is filed a case laying
venue in the wrong division or district shall dismiss or if it be in the interest of justice,
transfer such case to any district or division in which it could have been brought.”
Whether dismissal or transfer is appropriate lies within the sound discretion of the district
court. Benvenuti & Stein, Inc. v. Computer Software Specialists, Inc. No. 87 C 2507,
1987 WL 12699 (N.D. Ill. 1987). Under the explicit language of the forum selection
clause, this matter could have been brought in the transferee district. Accordingly, we
will transfer this case in the interest of justice to Florida.
CONCLUSION

For the foregoing reasons, defendants’ motions to dismiss pursuant to 12(b)(6) and

12(b)(3) are denied (#3-1) and this case is transferred to District Court of Florida in

Miami pursuant to 28 U.S.C 1406 in the interest of justice.

SO ORDERED: ENTERED:

Y
2 wil

HON. RONALD A. Simm
United States Judge

MAY 17 2008


TC

Minute Order Form (06/97)

a United States District Court, Northern District of Dlinois
vay Magierae Jue Ronald A. Guzman than Arsigved Judge
CASE NUMBER 00 C 7936 DATE 5/17/2001
CASE CAFCAS, JR. vs. RADISSON SEVEN SEAS
TITLE

nature of the motion being presented.)

{in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the

MOTION:

DOCKET ENTRY:

qd) im) Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

(3) Oo Answer brief to motion due___. Reply to answer brief due

(4) a Ruling/Hearingon_____sset for__—_att

(5) a Status hearing[held/continued to} [set for/re-set for] on setfor at

(6) a Pretrial conference[held/continued to] [set for/re-set for]on___—setfor__——sat_
(7) a Trial[set for/re-set for] on_____att

(8) Oo [Bench/Jury trial] [Hearing] held/continued to_____at

(9) Q This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) OGeneral Rule21 OC FRCP41(a)(1) OFRCP41(a)(2).

Florida in Miami pursuant to 28 U.S.C. 1406 in the interest of justice.

(il) [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required,
ea number of notices

do) «of {Other docket entry] ENTER MEMORANDUM OPINION AND ORDER: defendants’ motions
to dismiss pursuant to 12(b)(6) and 12(b)(3) are denied and this case is transferred to District Court of

Notices mailed by judge's staff,

MAY 21 2001

Notified counsel by telephone. dete docket

Y | Docketing to mail notices.

Y | Mail AO 450 form. c\)

[ag dgButy initiate

$

Copy to judge/magistrate judge.

is]

FILED POR DOCKETIN

‘ G
“y we date mailed notice
TBK ‘opus OLHAY 18 FH 433

initials

Date/time received in

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“special interest” in limiting the number of fora in which it potentially should be sued, the
“salutary effect” of dispelling any confusion about where suits arising from the contract
must be brought and defended, and increased benefits to passengers 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; Moraites v. Royal Caribbean, 1995 A.M.C. 348
(N.D. Ill. 1994).

Plaintiffs attempt to distinguish Shute, by arguing that there were substantial contacts
between the parties in Shute and Florida, while no such contacts exist in this case.
Plaintiffs’ argument is unpersuasive. The defendants have their corporate headquarters in
Florida and therefore, Florida is a reasonable venue to defend lawsuits in. Further, as
defendants assert, all of their American-based employees, with the exception of 14 sales
representatives are employed in Florida. In Shute, the Supreme Court stated that any
suggestion of bad faith motive in choosing a forum would be overcome by the fact that a
cruise line has its principal place of business in the chosen forum. 499 U.S. at 595.

Plaintiffs further argue that the forum selection clause should be invalidated because
litigating in Florida would be too inconvenient. Plaintiffs assert that they would have to
bring 17 witness and doctors to Florida for trial and that this is too burdensome. The
Supreme Court and other courts have rejected similar arguments finding them insufficient
to override the forum-selection clause. Id at 585; Moraites v. Royal Caribbean Cruises,
Ltd., 1994 U.S. Dist LEXIS 10474 (N.D. Ill. 1994); Walker v. Carnival Cruise Lines,

Inc., 1987 U.S. Dist. LEXIS 12716 (N.D. Ill. 1987) (stating that expense and witness


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
DOCKETED
MAY 2 1 2004
Thomas H. Cafcas, Jr., Administrator of
The Estate of Constance F. Cafcas, and
Thomas H. Cafecas,
Plaintiffs, No. 00 C 7936
v. Judge Ronald A. Guzman

Radisson Seven Seas, Radisson Seven Seas
Cruises, Inc., and M/S SEVEN SEAS
NAVIGATOR

wwe were reer

Defendants.

MEMORANDUM OPINION AND ORDER

Pending is defendants’ Radisson Seven Seas, Radisson Seven Seas Cruises, Inc.,
and M/S SEVEN SEAS NAVIGATOR (“defendants”) motions to dismiss plaintiffs’
Thomas H. Cafcas, Jr., Administrator of the Estate of Constance F. Cafcas, and Thomas
H. Cafcas (“plaintiffs”) complaint pursuant to Fed. R’s. Civ. Proc. 12(b)(6) for not filing
the claim within the time required by the parties’ contractual period of limitations, or in
the alternative pursuant to Fed. R’s. Civ. Proc. 12(b)(3) dismissing the action for
improper venue. For the reasons set forth below, these motions are denied.

BACKGROUND FACTS
Plaintiffs allege that the decedent, Constance F. Cafcas, while aboard the M/S

SEVEN SEAS NAVIGATOR on September 11, 1999, due to the defendants’ conduct,

1


broke her leg and incurred other injuries that resulted in her death on December 19, 1999.
Thomas H. Cafcas, Jr. was appointed personal representative of the Estate of Constance
F, Cafcas on March 17, 2000 and this suit was initiated on December 1, 2000.

Plaintiffs allege that the defendants were negligent in that they failed to
adequately prepare the M/S SEVEN SEAS NAVIGATOR (“Ship”) and its crew for safe
operations; maintain and operate the Ship in a safe manner with due regard for the health
and safety of the plaintiffs; maintain proper navigation equipment in good order to avoid
sudden changes of direction and to avoid collision with other vessels; and take proper
care of the decedent after suffering the injury. Relating to this conduct, plaintiffs allege
claims for wrongful death, bodily injuries, loss of services, consortium and emotional
distress, and willful and wanton conduct.

Defendants argue that the time limitation for filing claims is governed by the
standard contract on the back of the cruise ticket and that this period had expired before
the plaintiffs filed their claims. Defendants further assert that the proper venue is also
governed by the contractual agreement between the parties and therefore, venue to litigate
this suit lies in the courts of Broward County, Florida. Each of these arguments will be
addressed in turn.

DISCUSSION

Tn ruling on a 12(b)(6) motion to dismiss, the court must consider, “whether relief
is possible under any set of facts that could be established consistent with the
allegations.” Bartholet v. Reishauer A.G., 953 F. 2d 1073, 1078 (7th Cir.1992), In
deciding a motion to dismiss, the court must consider all allegations of the complaint as

2