Joy Friesen (the plaintiff), who was a resident of British Columbia, slipped and fell while travelling on the cruise ship Norwegian Wind. The accident occurred on 18 July 2001 in Alaskan waters. The plaintiff brought an action in British Columbia for damages for negligence against Norwegian Cruise Lines Ltd (the defendant), the owner of the ship. The defendant argued that cl 28 of the ticket included an exclusive jurisdiction clause, which provided:

This Contract shall be governed in all respects by the laws of the State of Florida and the laws of the United States of America. It is hereby agreed that any and all claims, disputes or controversies whatsoever arising from or in connection with this Contract and the transportation furnished hereunder shall be commenced, filed and litigated, if at all, before a court of proper jurisdiction located in Dade County, Florida, USA.

The defendant applied for an order that the Court should decline to exercise jurisdiction over this action.

Held: The defendant's application is dismissed.

Articles 17 and 18 of the Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea 1974 (Athens Convention 1974), as adopted by Canada only weeks after the plaintiff's accident, render null and void any clause such as cl 28. But these provisions were not available to the plaintiff by law because Canada was not a party to the Convention at the time of her accident. Additionally, the Court rejected the submission that art 18 provided a free-standing avenue to the result contended for. Article 18 only operated if art 17 was applicable, which it was not in this case.

The Court found that cl 28, standing alone, was unambiguous and successfully asserted exclusive jurisdiction in the Florida court. The burden then fell on the plaintiff to establish a strong cause for this Court to exercise its discretion not to decline to exercise jurisdiction. The analysis was conducted along familiar forum conveniens lines, except that the plaintiff must put forward a strong cause for the court not to decline jurisdiction (The Eleftheria test). Given the presented evidence, the Court concluded that the plaintiff had satisfied this burden. The plaintiff, her husband and her doctors were located in British Columbia. In addition, most witnesses associated with the defendant lived in foreign countries, and no advantage existed in having a trial in Florida. Forcing the plaintiff to present the entire case through video-link evidence would amount to prejudice.