Generally, when people book vacations, the worst thing they expect is bad weather or unsatisfactory accommodations. What happens, though, when a person is seriously injured or assaulted during a vacation? The answer often turns on what that person had agreed to, but unfortunately people are commonly unaware that they have agreed to anything that may affect their rights in the event of an injury.
In the recent case of Starkey v. G Adventures, Inc., the Second Circuit had to determine if a hyperlink to a document with a forum selection clause constituted a sufficient communication to the customer. In this case, the plaintiff had booked a tour to the Galapagos Islands through the defendant travel company. Following her purchase, the defendant sent the plaintiff an email with booking information, an email with a confirmation invoice, and another email with a service voucher.
The booking email stated that customers were required to “read, understand, and agree” to the terms and conditions, and it contained a link to them. The other two emails also included the link, with a statement that confirmation of the reservation meant the customer had read, agreed to, and understood those terms and conditions.
The terms and conditions in the linked document included a forum selection clause that stated that disputes were “the exclusive jurisdiction of the Ontario and Canadian Courts.” The plaintiff said she had not clicked the links or read the linked document.
She alleged that one of the defendant’s employees sexually assaulted her during the tour.
She filed a negligence suit against the defendant in a New York federal court. The defendant argued that the claims fell under the jurisdiction of Ontario and Canadian courts, pursuant to the terms and conditions, and moved to dismiss. The District Court determined that the forum selection provision prevented the plaintiff from bringing her claims before it and granted the motion to dismiss. The plaintiff appealed.
The Second Circuit applied a four-prong analysis to determine if it could enforce the forum selection clause. The first three prongs determine whether a presumption of enforceability exists. The court must decide: 1) whether the defendant had reasonably communicated the forum selection clause to the plaintiff; 2) whether the clause requires that disputes be brought in the selected forum or just allows disputes to be brought there; and 3) whether the provision applies to the claims and parties to the suit. If the court finds that the clause was properly communicated, mandatory, and applicable to the parties and claims, the court applies the fourth prong to determine if the plaintiff has overcome the presumption of enforceability by showing that the forum selection provision was invalid or that enforcement would be unjust or unreasonable.
The primary issue in this case was whether the defendant had reasonably communicated the clause to the plaintiff. The Second Circuit found that the three emails had directed the plaintiff’s attention to the terms and conditions. The court determined that this method served the same function as a brochure that directs the customer to the terms and conditions that are printed on the ticket when the ticket clearly sets out the clause. This cross-referencing method has been accepted by the Second Circuit as a reasonable communication of the forum selection clause. The Second Circuit found that both methods can reasonably communicate the forum selection clause to the customer.
The question then was whether the language in the terms and conditions reasonably communicated the forum selection clause to the plaintiff. The court found that it did. Since the plaintiff did not dispute the second and third prongs of the analysis, the clause was presumptively enforceable.
The plaintiff argued the forum selection clause was unreasonable and unjust. The Second Circuit noted that it would apply the forum selection provision unless it was the “result of fraud or overreaching,” the designated forum’s law was “fundamentally unfair,” enforcement of the clause would conflict with strong public policy, or bringing the case in the designated forum would be difficult and inconvenient enough to effectively deny the plaintiff the right to try the case.
The court found that the plaintiff had not shown her case would not be fairly heard in Canada. She had not shown that the defendant chose Canada as the forum to prevent its customers from pursuing valid claims. The court found it reasonable that the defendant would designate a single forum for claims against it when it would otherwise be subject to claims all over the world.
The plaintiff also argued that it would violate public policy to require her to pursue her case in a Canadian court because she could be liable for attorneys’ fees if she were unsuccessful in her claims. The court noted that enforcing the forum selection provision is not against public policy just because an aspect of the law is different or unfavorable. Furthermore, the time and expense of travel and the difficulty of securing witnesses were not sufficient to prevent enforcement of the clause.
The Second Circuit affirmed the district court’s dismissal of the complaint.
It is important to know the terms and conditions of any agreement you make, including travel arrangements. Many companies, including cruise lines, include forum selection and liability limitation provisions in their terms and conditions. If you are injured while traveling, our skilled New York personal injury attorneys can review your documentation and evaluate the strength of any forum selection provision.
The Law Offices of Nicholas Rose, PLLC offers free consultations. Call 1-877-313-7673.
Additional Resources:
Starkey v. G Adventures, Inc., August 7, 2015, United States Court of Appeals for the Second Circuit
More Blog Entries:
Hough v. McKiernan – Suing for Damages After a Violent Attack, November 11, 2014, New York City Injury Lawyer Blog
