On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4700-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn and Grall.
Defendant Carnival Cruise Lines (Carnival), by leave granted, appeals from an interlocutory order denying its motion to dismiss this personal injury action for lack of subject matter jurisdiction. Carnival's motion to dismiss was based on a forum-selection clause in the passenger ticket contract. The trial judge denied the motion because Carnival "deliberately" delayed its assertion of the defense until the limitations period stated in the contract had run. Because the forum-selection clause is valid and enforceable and because any delay by Carnival is relevant to the propriety of enforcing the contract limitations period, not the forum-selection clause, we reverse.
The pertinent facts are as follows. Plaintiffs Patsy and Fannie Riccardello purchased tickets for a cruise on a Carnival ship. They received their tickets before they boarded the ship in New York.
The cover of the ticket includes the following:
IMPORTANT NOTICE TO OUR GUESTS: THE GUEST TICKET CONTRACT IN THIS BOOKLET CONTAINS CONDITIONS ON NUMBERED PAGES 1 THROUGH 11 IN THE REAR PORTION OF THIS BOOKLET. YOUR ATTENTION IS DIRECTED TO THESE CONDITIONS, CERTAIN OF WHICH CONTAIN IMPORTANT LIMITATIONS ON RIGHTS OF GUESTS TO ASSERT CLAIMS AGAINST THE CRUISE LINE, VESSEL, OR THEIR AGENTS OR EMPLOYEES. PLEASE READ THE CONTRACT AND THESE TERMS AND RETAIN THE CONTRACT FOR FUTURE REFERENCE.
The "Cruise Ticket - Guest COPY" also includes an "IMPORTANT NOTICE TO GUESTS." Beneath that underlined heading, the following information is provided:
NOTICE: THE ATTENTION OF GUEST IS ESPECIALLY DIRECTED TO CLAUSES 1, 4, AND 10 THROUGH 13, WHICH CONTAIN IMPORTANT LIMITATIONS ON THE RIGHTS OF GUESTS TO ASSERT CLAIMS AGAINST CARNIVAL CRUISE LINES, THE VESSEL, THEIR AGENTS AND EMPLOYEES, AND OTHERS, INCLUDING FORUM SELECTION, ARBITRATION AND WAIVER OF JURY TRIAL FOR CERTAIN CLAIMS.
Clause twelve of the document is entitled "JURISDICTION, VENUE AND TIME LIMITS FOR CLAIMS." Subparagraph (a) of that clause states that a suit to recover on any claim of injury must be filed within one year of the injury. Subparagraph (c) is the forum-selection clause. It provides:
. . . [I]t is agreed by and between the Guest and Carnival that all disputes and matters whatsoever arising under, in connection with, or incident to this Contract or the Guest's cruise, including travel to and from the vessel, shall be litigated, if at all, before the United States District Court for the Southern District of Florida in Miami, or as to those lawsuits to which the Federal Courts of the United States lack subject matter jurisdiction, before a court located in Miami-Dade County, Florida, U.S.A. to the exclusion of the Courts of any other county, state or country.
On July 23, 2006, Patsy Riccardello was injured while on the ship. On October 5, 2006, plaintiffs' attorney wrote Carnival asserting that his client tripped and fell on a railing and injured his right knee, wrist and shoulder. By letter dated November 20, 2006, Daniel J. Blanco, a Senior Claims Representative for Carnival, responded. In that letter Blanco asked plaintiffs' lawyer to provide additional information. In the final sentences of the letter, Blanco advised: "All rights in equity, law and those contained within the passenger ticket are reserved. Should you have any questions, please feel free to contact [me]." Blanco did not refer expressly to the forum-selection clause or the limitations period in the passenger ticket contract.
Plaintiffs filed their complaint on June 8, 2007, and it was sent to Carnival on June 27, 2007, by certified mail. The limitations period imposed by the contract expired on July 23, 2007. On August 1, 2007, Carnival filed its answer, which included an affirmative defense of lack of jurisdiction based on the terms and conditions of ...