The plaintiffs embarked on a cruise from Spain to Italy when Mr Mills fell and broke his leg. The plaintiffs sued the defendants (owner/operator of the cruise ship) for Mr Mills' injuries and Mrs Mills' loss of consortium. The ticket/contract of carriage incorporated the Athens Convention limitation of liability on damages, and both parties moved for summary judgment on the enforceability of this provision. The Court applied the two-pronged 'reasonable communicativeness' standard regarding: (1) the physical characteristics of the provision; and (2) the surrounding circumstances/extrinsic factors of the provision.

Held: The provision was sufficiently conspicuous because (a) it was under a bold, larger-type, all-caps heading 'TERMS AND CONDITIONS OF CONTRACT (INCORPORATED IN AND FORMING PART OF PASSENGER CONTRACT TICKET'; and (b) although the provision itself was in smaller type, it was set out in an indented, double-spaced paragraph. The Court also rejected the argument that the reference to SDRs instead of a discrete monetary amount was confusing, finding that regardless of the monetary unit, the provision clearly enunciated a limitation on damages.

As to 'surrounding circumstances'/'extrinsic factors', the Court rejected the plaintiffs' contention that they did not have a chance to read and become reasonably informed of the ticket's terms, particularly in light of the fact that they had been on five previous cruises, all of which were arranged by their daughter, a travel agent.

The Court also rejected the plaintiffs' public policy argument that 46 USC § 183c (now 46 USC § 30509) invalidated the limitation provision on public policy grounds. That statute prohibits limitation of liability for domestic US passenger cruises, but does not apply to international cruises. Accordingly, the Court refused to 'wield the trump of American public policy' in an entirely foreign context.

Finally, the Court considered the actual monetary limit applicable under the specific language used of the limitation provision in the ticket/contract of carriage, which provided that the defendants' 'liability … shall not exceed the following limitations per Passenger in Special Drawing Rights (S.D.R.) as defined in the amendment of 1978 [sic, 1976] to the Athens Convention'. The plaintiffs argued that the limitation amount should be 176,000 SDRs as provided in the 1990 Protocol to the Athens Convention, rather than 46,000 SDRs, as provided in the 1976 Protocol, based on the language stating that limitation would be governed by the Athens Convention with revisions and amendments. The Court rejected this argument because the 1990 Protocol would not enter into force until ratified by ten countries, and only one country had ratified the protocol at the time of the Mills case. Thus, even if amendments/revisions to the Athens Convention were applicable under the ticket/contract of carriage, the 1990 Protocol was not yet effective and did not govern.