Claimants went on a cruise on the SS Voyager from Beijing, China to Bangkok, Thailand. The cruise was operated by Regent Seven Seas Cruises (RSSC). Upon their arrival on board the ship on 23 March 2017, the claimants found that the handle of one of their suitcases had been damaged. They asked several employees of the SS Voyager for compensation of CAD 500 for the damage. They were offered CAD 150 compensation in accordance with the RSSC policy but this proposal was deemed unsatisfactory by the claimants. The situation subsequently degenerated into conflict with various employees of the ship. Claimants allege that they were intimidated and threatened by RSSC employees. They maintain that their dignity and their fundamental rights were violated. Claimants add that they were forced to spend the rest of the cruise in their cabin, fearing for their safety. They gave up all the excursions planned during the cruise.

In compensation for the damages they claim to have suffered, the claimants claim CAD 45,539.70 broken down as follows:

• CAD 25,539.70 in full refund of the cruise;
• CAD 10,000.00 as moral damages;
• CAD 10,000.00 as punitive damages;

The defendant RSSC has no place of business in Québec or elsewhere in Canada. The ship's captain is also not domiciled in Québec or elsewhere in Canada. The defendants therefore applied for the action to be transferred to a competent court or dismissed under art 167 CCP. Their contention was that this litigation is governed by Canadian maritime law, which incorporates the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974 (Athens Convention) as Schedule 2 to the Marine Liability Act (MLA). The facts of this case would therefore fall within federal jurisdiction over navigation and, in particular, would raise the application of the law governing the transportation of passengers and their luggage by water. None of the connecting factors provided for in this Agreement gives the Québec courts jurisdiction to hear the claimants' claim. In addition to the applicable principles provided for in the Athens Convention, the defendants relied on cl 27 of the Sea Transport Agreement with the claimants which provided that any claim in connection with the Sea Transport Contract or the Cruise was subject to US arbitration or trial in the United States District Court for the Southern District of Florida in Miami. Finally, the defendants relied on the limitation of liability provisions in the Marine Transportation Agreement that applied to both RSSC and the ship's captain.

The claimants argued that this was a consumer contract within the meaning of art 1384 of the Civil Code of Québec (CCQ). They had purchased a service (a trip) from a travel agency in Québec that offers such a service as part of its business activities. The rights and obligations of the parties should therefore be delimited by the mandatory provisions of the Consumer Protection Act (CPA) that would override the forum selection in cl 27, amongst others. 

Held: Claim dismissed with costs.

The first step is to determine whether the claim falls under Québec civil law, in which case the relevance of the application of the CPA is at stake, or if it comes under Canadian maritime law. It is important to note that, despite the fact that the claimants have argued on the basis of a service contract with a travel agency in Québec, they instead chose to invoke the legal relationship they have directly with RSSC. The contractual document that binds them (Ticket Contract, Exhibit R-3) states the following: 'this Ticket Contract constitutes the entire agreement between You and the Carrier and supersedes all other agreements, oral, implied or written'. Thus, both the contractual relationship with RSSC and the events giving rise to the claimants' rights are linked to a maritime activity. They must therefore be analysed in accordance with the principles of Canadian maritime law under federal statutory jurisdiction.

The carriage of passengers and their luggage by water is governed by the MLA. Part 4 of the MLA gives the force of law to the Athens Convention in Canada. There is no connecting factor in the Athens Convention that allows the claimants to resort to Canada, since neither the place of departure nor the place of destination is in Canada (art 17.1.b of the Athens Convention) and RSSC has neither a place of business nor residence in Canada (arts 17.1.a, 17.1.c and 17.1.d of the Athens Convention).

Further, the Sea Transport Agreement between the parties provides in cl 27 that any claim in connection with maritime transport must be submitted to arbitration. The validity of forum selection clauses has been examined by the case law, which recognises that they are enforceable unless the person wishing to avoid them proves a serious reason justifying its non-application. In this case, the MLA does not provide for any derogation from the common law rules and the principle that maritime law recognises freedom of contract unless there are 'serious grounds' on which the claimant relies.

Here, all the facts took place aboard a ship. They began when the vessel berthed in Beijing, China and, according to the originating application, the alleged acts of intimidation continued throughout the cruise in international waters. The defendant RSSC has no place of business in Canada and the ship's captain is not domiciled there. The claimants have not established any serious reason for not being bound by the arbitration clause.

The impact of the limitation of liability clause in the contract is a substantive issue over which the Tribunal has no jurisdiction.