Q: Our agency booked a group of four couples on a cruise. Unfortunately, a member of the group was seriously injured in an accident on the ship. Now, over a year later, when she has finally healed, she has sued the cruise line for negligence. The cruise line has moved to dismiss her case because the passenger contract requires suits to be filed within one year after an injury, even though the maritime statute of limitations for negligence is three years. She claims that she never saw the passenger contract and in fact has never even heard of it. Will the court dismiss her case? If so, might she then sue our agency because we did not tell her about the one-year rule?
A: If the court follows precedent, it will dismiss her case because it was filed too late under the passenger contract. On the other hand, if the court has any courage, it will realize the absurdity of the precedents and rule in her favor, leading the cruise line to appeal and giving the court of appeals a chance to establish a better precedent.
The latest case that follows precedent and upholds the terms of a cruise line’s passenger contract is Tara McCluskey El v. Celebrity Cruises, decided three months ago by the U.S. Court of Appeals for the 11th Circuit, which covers Florida. The cruise line’s contract has a clause requiring the former passenger to give written notice to the line within six months of the injury and to file suit within one year after the injury.
McCluskey El missed the one-year deadline because she was unaware of it. The line sent the contract to the group’s travel agency, not to the passengers, and it is not clear whether the agency forwarded copies to the members of the group.
The court held that it did not matter whether McCluskey El received or read the contract because her agent (the travel agency) received it on her behalf. Under principles of agency law, delivery to the agent constituted delivery to her.
Furthermore, the court stated that El could have read the contract because it was posted on the agency’s website, and she had the opportunity to read it. “What mattered was the opportunity to read the contract, not whether McCluskey El had done so.”
Let’s start with the elephant in the room: Nobody except lawyers with a specialization in cruise line litigation avails themselves of the “opportunity” to read these boilerplate contracts. The Celebrity contract is 6,614 words long, and other lines have longer contracts.
In my opinion, courts should not hold consumers to be bound by these contracts unless there is some evidence that the consumer did agree to be bound, such as a manual or electronic signature on the contract, a checked box or an email exchange.
In the absence of such a logical and fair precedent, travel advisors need to be sure to send the cruise line’s contract to the consumer as soon as it is received from the cruise line.
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