Monique Bond (the plaintiff) slipped, dislocating and fracturing her knee while she was a passenger onboard the MS Noordam, a cruise ship owned and operated by Cruiseport Curacao CV, Holland America Line LV and Holland America Line Inc (the defendants). MS Noordam was on a voyage from New Zealand to Australia. The plaintiff brought an action against the defendants for negligence and loss of consortium. The defendants filed a motion to dismiss and to enforce the limitation of liability regime of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974 (Athens Convention 1974).

The defendants argued that the Athens Convention 1974 was incorporated into the passenger ticket contract that they issued to the plaintiff. Therefore, the contract limited the plaintiff's monetary recovery against the defendants to 400,000 Special Drawing Rights (SDRs). The contract included a provision titled 'LIMITATIONS ON CARRIER'S LIABILITY; INDEMNIFICATION', which provided: 'Cruises To/From or Within the EU: On international cruises which neither embark, disembark nor call at any US port and where You commence the cruise by embarking or disembarking in a port of a European Member State, Carrier shall be entitled to any and all liability limitations and immunities for loss of or damage to luggage, death and/or personal injury as provided under EU Regulation 3921/2009 on the liability of carriers to passengers in the event of accidents. Unless the loss or damage was caused by a shipping incident, which is defined as a shipwreck, capsizing, collision or stranding of the ship, explosion or fire in the ship, or defect in the ship (as defined by the Regulation), Carrier's liability is limited to no more than 400,000 SDRs per passenger, (approximately USD 564,000, which fluctuates depending on the daily exchange rate as published in the Wall Street Journal) if the passenger proves that the incident was a result of Carrier's fault or neglect ... '. The defendants claimed that this provision placed the plaintiff on notice that the Athens Convention 1974 limited their liability.

Held: Motion denied.

The United States is not a signatory to the Athens Convention 1974. Thus, its limitation of liability regime applies only if the Athens Convention 1974 is validly incorporated into the contract. The Court considered the overall circumstances in making the determination, including: 1) the physical characteristics of the ticket, such as, 'size of type, conspicuousness and clarity of notice on the face of the ticket, and the ease with which a passenger can read the provisions in question'; and 2) the 'surrounding circumstances' and 'extrinsic factors indicating the passenger's ability to become meaningfully informed'. Whether a ticket provides reasonable notice is a question of law.

The Court found that the limitation of liability regime did not apply to the MS Noordam cruise, which manifestly did not 'commence ... by embarking or disembarking in a port of a European Member State'. Although the heading 'LIMITATIONS ON CARRIER'S LIABILITY; INDEMNIFICATION' of the provision appeared sufficient to put the plaintiff on notice, the use of the conjunctive 'and' in the first sentence of the provision would lead a reasonable passenger to believe that the Athens Convention 1974 applied only where the cruise embarked or disembarked within the EU. There would be no incentive whatsoever to research its provisions or otherwise learn that its reach was broader than stated in the contract.