
    Nettie EFFRON, Plaintiff, v. SUN LINE CRUISES, INC. and Sun Line Greece Special Shipping Co., Inc. Defendants.
    No. 93 Civ. 0896 (MGC).
    United States District Court, S.D. New York.
    July 22, 1994.
    
      Phillips Cappiello Kalban Hofmann & Katz, P.C. by Paul T. Hofinann, New York City, for plaintiff.
    Walker & Corso by Scott A. Walker, New York City, for defendants.
   MEMORANDUM OPINION AND ORDER

CEDARBAUM, District Judge.

Plaintiff sues for injuries allegedly suffered on a South American cruise. The ship’s owner moves to dismiss on the ground that the forum-selection clause in plaintiffs ticket requires that her claims be brought in Greece. The tour operator who sold plaintiff her ticket moves for summary judgment on the ground that at all times it acted as agent for a disclosed principal. For the reasons discussed below, the motions are denied.

Facts

The Stella Solaris, which sails under the Greek flag, is owned by defendant Sun Line Greece Special Shipping Co., Inc. (“Sun Line Greece”), a Greek corporation. The ship’s home port is Piraeus, Greece, although it spends several months each year cruising in the Caribbean and off the coast of South America.

Defendant Sun Line Cruises, Inc. (“Sun Line Cruises”) is a New York corporation that markets cruises aboard the Stella Solar-is and two sister ships, the Stella Oceanis and Stella Maris. Sun Line Cruises markets trips on the three ships. This name appears on the promotional materials distributed by defendants. A division of Sun Line Cruises called Sun Line Tours arranges air travel and issues airline tickets for customers taking particular cruises.

Plaintiff Nettie Effron, a 74 year-old widow, is a resident of Florida. In February 1992, she was a passenger on the “Jewels of South America Cruise.” She arranged her vacation through a Florida travel agent who dealt with Sun Line Cruises in New York. The trip included air travel from Miami to Manaus, Brazil on February 12, passage on the South American cruise of the Stella So-laris from February 12 to February 28, and air travel from Buenos Aires, Argentina to Miami on February 28. Plaintiffs airline tickets were provided by Sun Line Tours and listed Sun Line Cruises as the charterer. In arranging her trip, plaintiff had no contact with anyone in Greece.

Plaintiffs ticket, which contains the passage contract on which defendant Sun Line Greece relies, is reproduced in its actual size in the Appendix to this opinion. The ticket consists of three double-sided leaves, each approximately 4" x 8&". The Sun Line logo and the words “Sun Line Cruises” appear in large type on the face of the ticket. In much smaller type is an “important notice” which states:

Please read carefully the terms of this ticket beginning on page 1 and continuing through page 4. All these terms are an integral part of the contract between passengers and the Carrier. In accepting this contract, you agree to the terms. Attention is particularly drawn to the Carrier’s right of exemption and limitation set forth in Clauses 12 and 13 (pages 3 and 4).

It is only on the very last line of the ticket that Sun Line Greece is identified as the “operator and carrier,” i.e. the putative contracting party.

The forum-selection clause appears in clause 13 on page 4 of the ticket. It is printed in the same size type as the rest of the fine print. It reads as follows:

Notwithstanding anything to the contrary contained herein, any action against the Carrier must be brought only before the courts of Athens Greece to the jurisdiction of which the Passenger submits himself formally excluding the jurisdiction of all and other court or courts of any other country or countries which court or courts otherwise would have been competent to deal with such action.

Plaintiff states in an affidavit that she did not notice either the warning on the front of her ticket or the forum-selection clause itself. She also states that she was unaware that she was contracting with a Greek company and not the New York corporation with which she had dealt.

Enforceability of the Forum-Selection Clause

Sun Line Greece’s motion to dismiss is based on the language of the forum-selection clause. It relies on decisions enforcing forum-selection clauses in passenger tickets. See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991); Hodes v. S.N.C. Achille Lauro ed Altri-Gestione, 858 F.2d 905, 911 (3d Cir.1988), cert. dismissed, 490 U.S. 1001, 109 S.Ct. 1633, 104 L.Ed.2d 149 (1989); Hollander v. K-Lines Hellenic Cruises, S.A., 670 F.Supp. 563, 566 (S.D.N.Y.1987). All of these cases are distinguishable. To enforce the forum-selection clause in plaintiffs ticket would be fundamentally unfair because doing so would effectively deprive her of her day in court.

Forum-selection clauses are “pri-ma-faeie valid.” The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 1913, 32 L.Ed.2d 513 (1972). Nevertheless, “forum-selection clauses contained in form passage contracts are subject to judicial scrutiny for fundamental fairness.” Carnival Cruise Lines, 499 U.S. at 595, 111 S.Ct. at 1528. When a party seeks to avoid application of a forum-selection clause, “it should be incumbent on the party seeking to escape his contract to show that trial in the contractual forum will be gravely difficult and inconvenient and that he will for all practical purposes be deprived of his day in court.” The Bremen, 407 U.S. at 18, 92 S.Ct. at 1917. Plaintiff has made such a showing.

If this action were dismissed, plaintiff would be required to travel to Greece to pursue her claim. Plaintiff has provided an affidavit stating that if required to sue in Greece, she will be unable to do so for the reasons that follow. She cannot afford to travel to Greece. She would be afraid to stay in a strange city where she does not know the language and customs. She is partially disabled and would have to hire someone to assist her physically. She does not know any Greek lawyers, and is ignorant of the Greek legal system. She cannot afford to hire a Greek interpreter. All of her witnesses live in the United States, and she cannot afford to pay for them to travel to Greece to testify. Plainly, given these circumstances it would be a “grave inconvenience” to require plaintiff to sue in Greece, and it is unreasonable to assume that she would be able to do so. For all practical purposes, enforcement of the forum-selection clause would deprive her of her day in court. The Bremen, 407 U.S. at 18, 92 S.Ct. at 1917.

Plaintiff’s circumstances are significantly different from those of the plaintiffs in the cases on which defendants rely. In Hodes, the Third Circuit enforced a forum-selection clause requiring a passenger on the Achille Lauro to sue the ship’s owners in Italy. The ship was hijacked off the coast of Egypt during an eleven-day cruise to and from Genoa, Italy. 858 F.2d at 912-16. In Hollander, the Court enforced a clause requiring a passenger injured on a cruise of the Greek Islands to sue in Greece. 670 F.Supp. at 565-66. In both Hodes and Hollander, the designated forum was foreseeable because the cruise took place, at least in part, in the country of the designated forum. In each instance, the plaintiffs had travelled to the forum country to begin their cruise. Here, neither plaintiff, nor the occurrence sued on, had any connection with Greece.

Similarly, the effect of enforcing the forum-selection clause in Carnival was significantly less onerous than doing so here would be. In Carnival, the Supreme Court upheld a clause that required a resident of the State of Washington, who had taken a cruise from Los Angeles to Mexico, to sue in Florida, the home state of the defendant. 499 U.S. at 590-95, 111 S.Ct. at 1525-28. The Court refused, however, to adopt a per se rule as to the validity of forum-selection clauses. “It bears emphasis that forum-selection clauses contained in form passage contracts are subject to judicial scrutiny for fundamental fairness.” 499 U.S. at 595, 111 S.Ct. at 1528. It may be fair to require a citizen of one state to sue in another, but it is fundamentally unfair to require a citizen of Florida, who is injured on a cruise off the coast of South America, to travel to Greece to sue the Greek shipowner, who does extensive business in the United States.

Agent and Disclosed Principal

Plaintiffs second claim alleges breach of contract against both defendants. The complaint alleges that plaintiff contracted with both defendants for safe passage and that both defendants breached that contract by failing to provide a safe vessel. Sun Line Cruises moves for summary judgment on the ground that at all times it acted as an agent for a disclosed principal. “When an agent makes a contract for a disclosed principal, it becomes neither a party to the contract nor liable for the performance of the contract.” Seguros Banvenez, S.A. v. S/S Oliver Drescher, 761 F.2d 855, 860 (2d Cir.1985).

Summary judgment is appropriate “[i]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Once the movant properly supports a summary judgment motion, the party opposing the motion must establish a genuine issue of material fact in order to preclude summary judgment. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). In deciding whether a genuine issue of fact exists, the court must “examine the evidence in the light most favorable to the party opposing the motion, and resolve ambiguities and draw reasonable inferences against the moving party.” In re Chateaugay Corp., 10 F.3d 944, 957 (2d Cir.1993).

Whether Sun Line Cruises disclosed to plaintiff that it was acting on behalf of Sun Line Greece is a jury question. In support of its motion, Sun Line Cruises relies primarily on plaintiffs ticket, which states that it is a contract between passengers and “the Carrier.” Sun Line Greece is identified as the Carrier only in small print at the bottom of page 4.

In opposing the motion, plaintiff has marshalled a variety of evidence suggesting that she was unaware that she was contracting only with Sun Line Greece. The brochure advertising the cruise was distributed by Sun Line Cruises, and only mentions in fine print on the last page that “transportation of passengers and baggage on the Stella Solaris is provided solely by Sun Line Greece ...” Plaintiffs airline ticket was delivered along with a letter from Sun Line Tours. Her airline ticket was purchased by Sun Line Cruises and the jacket it was delivered in bears the Sun Line Logo. Her credit card receipts show that while she was on the Stella Solaris, payments for food went to Sun Line Cruises. Based on this evidence, a jury could plausibly decide that Sun Line Cruise’s status as agent was not adequately disclosed to plaintiff. A reasonable jury could find that plaintiff was led to believe that she had purchased steamship passage from a New York company. Accordingly, plaintiff has raised a genuine issue of fact about whether Sun Line Cruises disclosed to plaintiff that it was acting only as an agent for Sun Line Greece.

For the foregoing reasons, defendants’ motions are denied.

SO ORDERED.

APPENDIX  