In the case of Aquachile, Inc. v. Williams, 2021 Fla. App. LEXIS 15944 (Fla. 4th DCA Dec. 22, 2021), a passenger of a Royal Caribbean cruise line fell extremely ill after being served contaminated fish while aboard the ship. The passenger claims that the fish originated from AquaChile, although the fish was sold to at least one other company prior to it being sold to Royal Caribbean. The passenger filed her complaint in Broward County Circuit Court against AquaChile, and two other companies in the supply chain, for strict liability, negligence, violations of the Florida Food Safety Act, breach of implied warranty, and breach of express warranty. Prior to the cruise, Royal Caribbean provided the passenger with a “guest ticket booklet” which contained the contract between the cruise and the passengers. On the cover of the booklet, and in bold print at the top of the first page of the contract, was an “important notice” advising the passengers to carefully read the contract, directing attention specifically to section 3 and section 9 through 11. In Section 9(a), printed in all-capital letters, the forum clause stated that “any dispute between the passenger and the carrier must be litigated in Miami-Dade County.” However, the Himalaya clause at issue, was contained in section 2(a), the definitions section of the contract. In non-bold, regular-case letters, the first two sentences of section 2(b) define "carrier" to include the vessel, the operator, and related entities and individuals.[1] Then, the third sentence, the Himalaya clause, stated in relevant part that: “[t]he exclusions or limitations of liability of Carrier set forth in the provisions of this Ticket Contract, as well as all rights, defenses or immunities set forth herein, shall also apply to and be for the benefit of agents, independent contractors, concessionaires and suppliers of Carrier . . . .”
[1] "Himalaya clause"—purports to extend the forum selection clause, among other rights and defenses, to parties other than the carrier.
AquaChile filed a motion to dismiss the passenger’s claim on two grounds. First, AquaChile argued that Broward County Circuit Court was an improper venue pursuant to the forum selection clause contained in the guest ticket booklet provided to the passenger by Royal Caribbean. Second, AquaChile argued that it was entitled to enforce the forum selection clause, pursuant to the Himalaya clause, as a "supplier" of Royal Caribbean.
The Circuit Court denied AquaChile’s motion to dismiss and held that the Himalaya clause did not apply to AquaChile as an indirect supplier to Royal Caribbean, and was not engaged in the sort of maritime activity that would be expected to be covered under the contract. Furthermore, the circuit court held that the Himalaya clause was not reasonably communicated to the plaintiff due to its physical characteristics and ambiguous language.
The question to the District Court for consideration was whether the Himalaya clause in the plaintiff’s cruise ticket contract applies in her suit against a non-party to the contract. The District Court found that it did not. First, the appellate court found that the interpretation of the Himalaya clause was ambiguous and could not be construed to extend the rights and defenses of Royal Caribbean to AquaChile. AquaChile sold the contaminated fish to at least one company before reaching Royal Caribbean. Thus, Royal Caribbean had an indirect, tangential relationship with AquaChile, such that AquaChile cannot be considered a supplier of Royal Caribbean pursuant to the contract. Moreover, AquaChile’s non-maritime business of farming and selling fish to several on-land purchasers was not deemed a maritime activity just because “some of its fish ended up being sold to Royal Caribbean at the end of the supply chain.” In sum, the interpretation of the Himalaya clause was ambiguous as applied to AquaChile and can be construed against them.
Second, the appellate court found that the Himalaya clause was not reasonably communicated to the plaintiff based on its physical characteristics, and the plaintiff’s inability to become meaningfully informed of the clause and reject its terms. Not only was section 2(a) not included in the “important notice,” or anywhere else in the contract to capture the plaintiff’s attention, it was written in non-bold, regular-case letters. Therefore, section 2(a) could not have suggested to the plaintiff or any reader that it contained a clause extending the rights and defenses of Royal Caribbean to unrelated parties where the Himalaya clause was buried in fine print in the definitions section of the contract.
This case is very important where carriers and their servants are involved, as now, a Florida state court has refused to extend the clause to a party that was clearly a provisions provider to the carrier. The reasoning that the provider was tangentially related should be of no import in the cruising context, as that same provider would be entitled to assert a maritime lien if it had not been paid by that same carrier. It is the second holding, that the clause was not reasonable communicated to the passenger is more troubling, as there is no binding precedent requiring Himalaya clauses to be bolded and conspicuous. This holding will require all carriers to rethink their Himalaya clauses to ensure they are “conspicuous enough” for a consumer.
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