The plaintiff brought a maritime personal injury action for injuries sustained as a result of a slip-and-fall accident while on the defendant carrier's cruise ship, the Norwegian Gem, which was scheduled to depart from and return to Italy with stops throughout the Mediterranean Sea.

The issue for the Court was whether the defendant's liability might be properly limited by applying the Athens Convention, as incorporated in the contract into which the plaintiff entered in purchasing her ticket. The plaintiff argued that she was entitled to summary judgment on the limitation of liability issue because: (1) the Athens Convention's limitations violate public policy; and (2) those limitations were not reasonably communicated to the plaintiff. The defendant denied these allegations.

Held: The plaintiff's motion for summary judgment is denied.

The Athens Convention has not been ratified by the United States and therefore 'carries no force of law on its own', but 'a contract provision that incorporates the Athens Convention to limit carrier liability for personal injury may be enforceable as a term of a valid contract'. Limitation of liability provisions may only be enforced 'when a cruise ship embarks from and disembarks in a foreign port with an entirely foreign itinerary': Wajnstat v Oceania Cruises Inc, No 09-21850-Civ, 2011 WL 13099034 *2 (SD Fla, 12 July 2011) (CMI790).

Here, the Athens Convention can properly apply. Courts in this District have consistently held that a contract provision incorporating the Athens Convention may be enforceable. It is undisputed that the plaintiff's cruise, which was intended to begin and end in Italy, never touched a US port. Therefore, the clause incorporating the Athens Convention may be enforceable as a contract term in this case.

A limitation of liability clause will be enforced where it 'reasonably communicates to the passenger the existence therein of important terms and conditions which affects legal rights': Wajnstat *3. Reasonable communication is a question of law for the court to decide. To determine reasonable communication of a non-negotiated contract clause, the Eleventh Circuit has promulgated a two-part test that assesses: (1) the clause's physical characteristics; and (2) whether a plaintiff had the ability to become meaningfully informed of the clause and to reject its terms.The first prong assesses objective characteristics including the size, placement, font, and readability of the clause, whether customers were alerted to the importance of the clause, and whether the form of the clause required an acknowledgment or agreement from the customer. The second prong assesses whether a passenger had a reasonable opportunity to be apprised of any limitation. Whether they chose to avail themselves of the notices and to read the terms and conditions is not relevant to the reasonable communicativeness inquiry.

As to the first prong, the defendant argues that the physical characteristics of the ticket contract were sufficient, specifically that the top of the first page states IMPORTANT NOTICE in bold, capital letters and directs passengers to s 6 (Limitations and Disclaimers of Liability) and all other liability limitations clauses as well as to the defendant's website. The plaintiff does not rebut that argument.

The second prong relates to whether the plaintiff had a meaningful opportunity to be informed of the defendant's incorporation of the Convention into the ticket contract and the resulting limitation of liability. The plaintiff primarily argued that she did not have an opportunity to become informed about the Convention prior to the cruise, 'would have had to look up all of the different foreign treaties referenced in the provision to understand the ticket contract', did not have the legal knowledge to do so, one of the links in the ticket was not accurate when retyped into a browser, and not all of the information in the Convention including the 2002 amendment thereto was reflected in the ticket contract. The defendant contended that the full terms of the contract were available to the plaintiff on the website, that she accepted those terms and conditions about a month after her ticket was purchased and 12 days before the cruise began, and that because the plaintiff had already been on 24 cruises she was familiar with the process of accepting the terms of cruise ticket contracts prior to embarkation.

The provision here does not suffer from the same deficiencies as that in Wajnstat. The provision provides an approximate currency value of the SDR amount, unlike in Wallis v Princess Cruises Inc, 306 F 3d 827, 837 (9th Cir 2002) (CMI814). While the provision includes multiple links to regulations, some of them are just further explanations of the Athens Convention limitation claimed, and the others relate to affirmative rights under EU Regulation 1177/2010 that passengers may be afforded. The only regulation that the contract purports to include as a liability limitation is the Athens Convention, and there is no contention that the defendant is attempting to impose any other limitations. The provision also explains how the limitation applies only to non-US voyages, specifies the different bases of liability that could lead to different recoveries, and clarifies remedies that are not available. Accordingly, the contract reasonably communicated the liability limitations of the Athens Convention so as to make those limitations enforceable against the plaintiff.