The plaintiffs, a husband and wife, were passengers on the cruise ship Pacific Explorer, owned/operated by Cruise West, on a cruise originating in Panama and terminating in Costa Rica with no US port calls. They were injured during a shore excursion in Costa Rica when a rigid inflatable Zodiac tender vessel lurched forward during disembarkation. The plaintiffs sued and Cruise West moved for summary judgment limiting their damages pursuant to the Athens Convention 1974, which it claimed was incorporated in the terms and conditions of the ticket/contract of passage.

Held: Motion denied. The limitation of liability under the Athens Convention 1974 was not reasonably communicated to the plaintiffs. The Court applied the two-prong 'reasonable communicativeness' standard, which is fact intensive and considers: (1) the physical characteristics of the ticket, including type size, the conspicuousness and clarity of the notice, and the ease with which a passenger can read the provisions in question; and (2) the 'extrinsic factors' surrounding the purchase and retention of the contract of passage indicating the passenger's ability to become meaningfully informed.

The Court held that the limitation of liability provision in the Cruise West contract failed the first prong because it was written in difficult to read language; buried pages deep in the terms and conditions of the passage contract; obscured by multiple liability limiting provisions intended to address a variety of alternative and mutually exclusive circumstances, all within an extremely long and grammatically complex single sentence; and did not in any way clearly and conspicuously highlight the actual amount of the limited liability.

Likewise, under the second prong, even though the contract specified a limitation amount of approximately USD 67,000 (as opposed to merely referring to the indirect monetary SDR unit as in the Athens Convention 1974 itself), this information was inconspicuously present in series of alternately applicable provisions, which only applied if certain other non-Athens Convention limits of liability were to be held inapplicable. The Court noted that while other lower courts have held that specifying the monetary limit is sufficient to meet the 'reasonable communicativeness' test, the Cruise West contract used 'ambiguous and hedging language' that disincentivised passengers from reading and meaningfully understanding the complex limitation provision.