) ) ) ) ) ) ) ) ) ) ) ) ) ) ) The Defendants Royal Caribbean International and Royal Caribbean Cruises, Ltd.

STATE OF SOUTH CAROLINA COUNTY OF GREENVILLE Ryan Manquen and Brookelyn Manquen, vs. Plaintiffs, Royal Caribbean International and Royal Caribbean Cruises, Ltd. Defendants. IN THE COURT OF COMMON PLEAS CASE No. 2018-CP-23-03688 MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT The Defendants Royal Caribbean International and Royal Caribbean Cruises, Ltd. (together, RCCL have moved this Honorable Court for an Order, pursuant to Rules 12(b(1, 12(b(3, and 12(b(6 of the South Carolina Rules of Civil Procedure, dismissing this action against the Defendants. For the reasons set forth below, this relief is warranted and should be granted. I. Facts Booklet. 1 Before boarding an RCCL cruise ship, all passengers are provided with a Guest Ticket The Guest Ticket Booklet contains the Cruise/Cruisetour Ticket Contract (the Ticket Contract. 2 The Guest Ticket Booklet, a copy of which is attached hereto as Exhibit A, contains the Ticket Contract and the exact terms and conditions for all RCCL passengers who boarded RCCL ships in June 2018, including the Plaintiffs. The Plaintiffs, like all other 1 See Affidavit of Ivette Gagi, a Guest Claims Adjuster in the Risk Management Department at RCCL (the Gagi Affidavit, at Paragraph 4, attached hereto as Exhibit B. 2 Gagi Affidavit at 4. 1

passengers, were provided a copy of the Guest Ticket Booklet and Ticket Contract prior to their cruise. 3 RCCL requires a valid signed contract before any passenger can board one of its ships. 4 The Ticket Contract in Exhibit A was issued to and received by the Plaintiffs prior to their boarding the ship and reasonably communicated the importance of the terms and conditions contained within the contract in clear and unambiguous language. 5 In this regard, the cover page of the Cruise Ticket Booklet contains language in bold print which specifically directs the passengers attention to important limitations and rights contained within the Ticket Contract, stating: IMPORTANT NOTICE TO GUESTS: Your Cruise/Cruisetour Ticket Contract is contained in this booklet. The Contract contains important limitations on the rights of passengers. It is important that you carefully read all terms of this Contract, paying particular attention to Section 3 and Sections 9 through 11, which limit our liability and your right to sue, and retain it for future reference. This Agreement requires the use of arbitration for certain disputes and waives any right to a trial by jury to resolve those disputes. See Cover Page of Exhibit A. 6 The first paragraph of the Cruise/CruiseTour Ticket Contract also contains language in bold print which specifically directs passengers attention to important limitations and rights contained within the contract, as follows: IMPORTANT NOTICE TO GUESTS YOUR CRUISE/CRUISETOUR TICKET CONTRACT CONTAINS IMPORTANT LIMITATIONS ON THE RIGHTS OF PASSENGERS. IT IS IMPORTANT THAT YOU CAREFULLY READ ALL TERMS OF THIS CONTRACT, PAYING PARTICULAR ATTENTION TO SECTION 3 AND 3 Gagi Affidavit at 4. 4 Gagi Affidavit at 5. 5 Gagi Affidavit at 5. 6 Gagi Affidavit at 6. 2

SECTIONS 9 THROUGH 11, WHICH LIMIT OUR LIABILITY AND YOUR RIGHT TO SUE, AND RETAIN IT FOR FUTURE REFERENCE. See Exhibit A at p. 12. 7 In this regard, Paragraph 9a of the Ticket Contract provides: 9. FORUM SELECTION CLAUSE FOR ALL LAWSUITS; CLASS ACTION WAIVER: a. EXCEPT AS PROVIDED IN SECTION 10 (b WITH REGARD TO CLAIMS OTHER THAN FOR PERSONAL INJURY, ILLNESS OR DEATH OF A PASSENGER, IT IS AGREED BY AND BETWEEN PASSENGER AND CARRIER THAT ALL DISPUTES AND MATTERS WHATSOEVER ARISING UNDER, IN CONNECTION WITH OR INCIDENT TO THIS AGREEMENT, PASSENGER S CRUISE, CRUISETOUR, LAND TOUR OR TRANSPORT, SHALL BE LITIGATED, IF AT ALL, IN AND BEFORE THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA LOCATED IN MIAMI-DADE COUNTY, FLORIDA, U.S.A., (OR AS TO THOSE LAWSUITS TO WHICH THE FEDERAL COURTS OF THE UNITED STATES LACK SUBJECT MATTER JURISDICTION, BEFORE A COURT LOCATED IN MIAMI-DADE COUNTY, FLORIDA, U.S.A. TO THE EXCLUSION OF THE COURTS OF ANY OTHER STATE, TERRITORY OR COUNTRY. PASSENGER HEREBY CONSENTS TO JURISDICTION AND WAIVES ANY VENUE OR OTHER OBJECTION THAT HE MAY HAVE TO ANY SUCH ACTION OR PROCEEDING BEING BROUGHT IN THE APPLICABLE COURT LOCATED IN MIAMI-DADE COUNTY, FLORIDA. See Exhibit A at p. 14, paragraph 9a. 8 The Ticket Contract was also available to the Plaintiffs on RCCL s websites www.rccl.com and www.royalcaribbean.com prior to their cruise and through the present day. 9 In order to board the ship, the Plaintiffs were required to check-in and accept the terms and conditions of the Ticket Contract. 10 The Plaintiffs accepted the terms and conditions of the Ticket Contract when the On-Line Check-in process was completed. 11 Pursuant to the terms of the Ticket Contract, Plaintiffs were required to file suit for their alleged personal injuries, if at all, exclusively in the United States District Court for the Southern District of Florida, located in Miami-Dade County, Florida (or as to those lawsuits to which the 7 Gagi Affidavit at 7. 8 Gagi Affidavit at 8. 9 Gagi Affidavit at 9. 10 Gagi Affidavit at 10. 11 Gagi Affidavit at 10. 3

federal courts of the United States lack subject matter jurisdiction, before a court located in Miami-Dade County, Florida to the exclusion of the courts of any other state, territory, or county. 12 Notwithstanding the express and exclusive forum selection requirements of the Ticket Contract, the Plaintiffs filed this action in the Greenville County Court of Common Pleas in Greenville County, South Carolina. The enforceability of the forum selection clause contained in the passenger ticket contract has been decided under general maritime law, including in cases decided by the Fourth Circuit Court of Appeals. As such, Plaintiffs Complaint must be dismissed as a matter of law. MEMORANDUM OF LAW I. STANDARD OF REVIEW It appears that the Courts of South Carolina have not set forth a standard of review for a motion filed pursuant to Rule 12(b(3 for improper venue. However, it is probably analogous that [a] Rule 12(b(6 motion is converted to a Rule 56, SCRCP, motion for summary judgment if matters outside the pleading are presented to and not excluded by the Court... Gilbert v. Miller, 356 S.C. 25, 27, 586 S.E.2d 861, 862 (Ct. App. 2003 (quoting South Carolina Rule of Civil Procedure 12(b. In this case, RCCL has submitted a copy of the Plaintiff s Guest Ticket Booklet, Exhibit A, and the Affidavit of Ivette Gagi, a Guest Claims Adjuster in the Risk Management Department at RCCL, Exhibit B, in support of its Motion. As these items may be matters outside the pleading, the Court could convert this to a Motion for Summary Judgment. In that event, [a] trial court s decision to grant a motion for summary judgment is appropriate only when there is no genuine issue of material fact so that the moving party is entitled to 12 See Paragraph 9a of Ticket Contract at page 14 of Exhibit A; See also Gagi Affidavit at 11. 4

judgment as a matter of law. Id. All ambiguities, conclusions, and inferences arising from the evidence must be construed against the movant. Id. II. THE APPLICABLE LAW The law governing suits involving passengers against cruise lines is the general maritime law of the United States. See generally, THOMAS J. SCHOENBAUM, 1 ADMIRALTY AND MARITIME LAW 3-5 (2d ed. 1994; Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318 (11th Cir. 1989; Beard v. Norwegian Caribbean Lines, 900 F.2d 71 (6th Cir. 1990; see also, Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959; Pope & Talbot, Inc. v. Hawn, 346 U.S. 406 (1953. A cause of action involving a maritime contract is governed exclusively by the general maritime law. The Moses Taylor, 71 U.S. 411 (1867; Milanovich v. Costa Crociere, S.P.A., 954 F.2d 763, 766 (D.C.Cir. 1992; Vavoules v. Kloster Cruise Limited, 822 F.Supp. 979, 982 (E.D.N.Y. 1993; Lubick v. Travel Services, 573 F.Supp. 904, 906 (D.V.I. 1983. Further, the validity of a provision contained in a passenger ticket contract is to be interpreted by the general maritime law of the United States, not by the law of the state in which an action is brought. McQuillan v. Italia Societa Per Axione di Navigacione, 386 F. Supp. 462, 468 (S.D.N.Y. 1974, aff d without opinion, 516 F.2d 896 (2d Cir. 1975. III. THE TERMS AND CONDITIONS OF THE PASSENGER TICKET CONTRACT ISSUED TO THE PLAINTIFFS BY RCCL, ARE ENFORCEABLE AND BAR THIS ACTION FROM BEING MAINTAINED IN SOUTH CAROLINA A. Forum-Selection Clauses in Cruise Line Tickets Are Enforceable and Binding. It is well settled law that forum selection clauses in cruise line ticket contracts are enforceable. In evaluating a cruise line ticket contract similar to the one at issue in this case, the United States Supreme Court unequivocally held that passengers are bound by the forum- 5

selection provisions contained in their passenger contracts. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991. In Shute, a couple purchased a passenger ticket contract from the defendant cruise line. The cruise line sent the Shutes tickets containing a Florida forum-selection clause. The Shutes boarded the ship in Los Angeles, California, and while on the cruise, Mrs. Shute sustained injuries when she slipped and fell. Mrs. Shute filed suit near her home in a Washington federal district court instead of in Florida, and the defendant cruise line moved for summary judgment, contending that the forum-selection clause in the contract required the plaintiff to file suit in Florida. The District Court granted Carnival s Motion for Summary Judgment and dismissed the action. The Ninth Circuit Court of Appeals reversed, holding the forum selection clause unenforceable. In the end, the Supreme Court reversed again and held that the Court of Appeals erred in refusing to enforce the forum-selection clause and stated: In this context, it would be entirely unreasonable for us to assume that respondents - or any other cruise passenger - would negotiate with petitioner the terms of a forum-selection clause in an ordinary commercial cruise ticket. Common sense dictates that a ticket of this kind will be a form contract the terms of which are not subject to negotiation, and that an individual purchasing the ticket will not have bargaining parity with the cruise line. Id. at 1527 (citations omitted (emphasis added. The Supreme Court went on to explain why forum-selection clauses nearly identical to the one contained in the Passenger Ticket Contract issued to the Plaintiffs in this case should be enforceable: As an initial matter, we do not adopt the Court of Appeals determination that a non-negotiated forum-selection clause in a form ticket contract is never enforceable simply because it is not the subject of bargaining. Including a reasonable forum clause in a form contract of this kind well may be permissible for several reasons: First, a cruise line has a special interest in limiting the 6

forum in which it potentially could be subject to suit. Because a cruise ship typically carries passengers from many locales, it is not unlikely that a mishap on a cruise could subject the cruise line to litigation in several different fora. Additionally, a clause establishing ex ante the forum for dispute resolution has the salutary effect of dispelling any confusion about where suits arising from the contract must be brought and defended, sparing litigants the time and expense of pretrial motions to determine the correct forum, and conserving judicial resources that otherwise would be devoted to deciding those motions. Finally, it stands to reason that passengers who purchase tickets containing a forum clause like that at issue in this case benefit in the form of reduced fares reflecting the savings that the cruise line enjoys by limiting the fora in which it may be sued. Id. at 1527 (citations omitted. See also Catalana v. Carnival Cruise Lines, 618 F. Supp. 18 (D. Md. 1984, aff'd, 806 F.2d 257 (4th Cir. 1986; Bailey v. Carnival Cruise Lines, Inc., 774 F.2d 1577 (11th Cir. 1985; Doran v. Carnival Cruise Lines, Inc., 2001 A.M.C. 1733 (E.D.La. August 26, 1999, aff d, 2000 U.S. App. LEXIS 40570 (5th Cir. La. May 3, 2000 (per curiam. Although the federal statute considered by the United States Supreme Court in Shute has been recodified, no substantive changes were enacted so as to impact the Court s analysis. Compare 46 U.S.C. App. 183(c (considered in Shute with 46 U.S.C.A. 30509 (current version. Therefore, unless the Plaintiffs can establish exceptional circumstances militating against enforcement of this provision, this Court should afford the forum selection clause the same controlling weight the U.S. Supreme Court has given such clauses. See Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 33 (1988 Furthermore, the courts of Florida have been instructive in this area, as they have addressed at length the issue of forum selection clauses contained in passenger ship ticket contracts. For example, Florida s Third District Court of Appeals upheld the identical language contained in the forum selection clause at issue in this case to dismiss actions for failure to properly file in the United States District Court for the Southern District of Florida. See, e.g., 7

Assiff v. Carnival Corp., 930 So. 2d 776 (3d DCA 2006; Carnival Corp. v. Booth, 2006 Fla. App. LEXIS 20780 (3d DCA 2006. See also, Schertzer v. Carnival Corp., 03-30122 CA 21, Gerstein, J., June 3, 2004 (granting Carnival s Motion for Summary Judgment. In both Assiff and Booth, the Third District Court of Appeals dismissed actions against cruise lines for the plaintiffs failure to bring the actions in the forum pre-selected in the Passenger Ticket Contract. Assiff., 930 So. 2d 776; Carnival, 2006 Fla. App. LEXIS 20780. The Assiff Court affirmed and ruled the plaintiff s failure to file the action in the proper forum warranted dismissal. Assiff, 930 So. 2d at 777-78. Similarly, the Booth Court reversed the trial court s error and held that the forum selection terms of the passenger ticket contract were absolute conditions for filing a complaint against the cruise line. Booth, 2006 Fla. App. LEXIS 20780 at *11. Although the plaintiff unsuccessfully argued that Carnival waived its forum selection by engaging in discovery, the Booth Court disagreed and found as a matter of law that a timely motion to dismiss was asserted, and that interrogatories were only limited participation. Id. at *6-8. The Booth Court thus dismissed the plaintiff s complaint against the defendant cruise line because it was filed in the wrong venue. Id. at *11. The foregoing case law, abundant as it is, makes clear that Plaintiffs Complaint in this case must also be dismissed because it was filed in an improper forum. B. Passengers Need Not Read the Cruise Line Ticket to be Subject to Its Conditions The provisions contained in the Passenger Ticket Contract issued to the Plaintiffs by RCCL are binding and enforceable regardless of whether the Plaintiffs read or even retained their copy of the cruise line ticket contract. Carpenter v. Klosters Rederi A/S, 604 F.2d 11, 13 (5th Cir. 1979; Strauss v. Norwegian Lines, Inc., 613 F.Supp. 5, 8 (E.D. Pa. 1984; see also, Miller v. Lykes Bros. Steamship Co., 467 F.2d 464, 465 (5th Cir. 1972. Thus, it is immaterial whether 8

the passengers in question had actual knowledge of the provisions in the cruise line ticket contract prior to sailing. DeNicola v. Cunard Line, Ltd., 642 F.2d 5, 11 (1st Cir. 1981. In fact, passengers are bound by the terms of a cruise line ticket contract even where they have never opened the ticket envelope. Geller v. Holland America Line, 298 F.2d 618, 619 (2d Cir. 1962, cert. denied, 370 U.S. 909 (1962. In the words of Justice Cardozo, the passenger who omits to read takes the risk of omission. Murray v. Cunard Steamship Co., 139 N.E. 226, 228 (N.Y. 1923. Furthermore, passengers are bound by a cruise line ticket contract even where the particular ticket page with the limitation language in question is missing from the ticket booklet. Kendall v. American Hawaii Cruises, 704 F. Supp. 1010, 1017 (D. Haw. 1989. Finally, it is noteworthy that provisions in a cruise line ticket contract written in English have been held to be binding even on a passenger who could not read English. Horvath v. Cunard Steamship Co., Ltd., 103 F.Supp. 356 (D.N.Y. 1952. The relevant inquiry is not whether the passenger read his or her ticket, but rather, whether the passenger had the opportunity to read the ticket. Barkin v. Norwegian Caribbean Lines, 1988 A.M.C. 645, 650 (D.Mass. 1987; Kendall, 704 F. Supp. at 1016. In following this doctrine, courts have even gone so far as to enforce the terms of a ticket contract where the passenger s ticket contract was destroyed in the same ship fire that caused the passenger plaintiff s loss. Morak v. Costa Armatori, 1982 A.M.C. 1859, 1863 (E.D.N.Y. 1981. In this regard, the First Circuit Court of Appeals has held: Although a passenger may almost never read all of the fine print on a ticket upon purchase, or as pleasure reading in the berth the first night at sea, the same passenger might very well be expected to consult the multifarious terms and conditions of the ticket contract in the event of an accident resulting in a loss or injury. 9

Shankles v. Costa Armatori, S.P.A., 722 F.2d 861, 865 (1st Cir. 1983. There is a powerful incentive to study the cruise line ticket contract after an alleged wrong has occurred. Sullivan v. Home Lines, 1986 A.M.C. 1617, 1619 (D.Conn. 1985. Thus, even if the Plaintiffs claimed they were somehow unaware of the exculpatory and forum selection provisions quoted herein, that argument fails as a matter of law, and the Court should dismiss the Complaint. C. The Terms of Plaintiffs Cruise Line Ticket Were Reasonably Communicated Finally, in order for a forum selection clause to be binding, the cruise line ticket contract need only reasonably communicate its provisions to passengers. Milanovich, 954 F.2d at 768l; Nash v. Kloster Cruise A/S, 901 F.2d 1565, 1567 (11th Cir. 1990; see also, Dempsey v. Norwegian Cruise Line, 972 F.2d 998 (9th Cir. 1992. Whether provisions of a Passenger Ticket Contract are reasonably communicated is a question of law to be determined by the court. Dempsey, 972 F.2d at 999 (citing Deiro v. American Airlines, Inc., 816 F.2d 1360, 1364 (9th Cir. 1987. Some physical characteristics which the courts have examined to determine reasonableness include: the size of type used, conspicuousness and clarity of notice on the face of the ticket, and the ease with which a passenger can read the provisions in question. Deiro, at 1364. In Tone v. Carnival Cruise Lines, Inc., 1993 WL 437650 at *2 (E.D. Pa. Oct. 28, 1993 (citing Hodes v. S.N.C. Achille Lines, 858 F.2d 905 (3d Cir. 1988, the court specifically reiterated the established principal of longstanding federal maritime cases upholding passage contracts if same meet a practical standard of reasonable communicativeness. Id. at *2. The two prong test for reasonable communicativeness, as enunciated by Tone is: (1 examination of the warning language on the ticket directing the passenger to read the contract terms in the ticket, and (2 examination of the contract terms themselves looking at such physical characteristics as 10

the location of the terms within the ticket, the size of the terms, the size of the typeface, and the simplicity of the language employed. Id. at *2 (citing Hodes, 858 F.2d at 905. In this case, the bold language printed on the first page, the cover page, of the Guest Ticket Booklet, separately set out in bold type, specifically directs the Plaintiffs and all other passengers to the forum selection provision contained in Paragraphs 9 of the within Passenger Ticket Contract. See Exhibit A. Moreover, it provided them with additional notice that this Paragraph contained limitations on their rights as against the Defendant. Id; See also, Catalana v. Carnival Cruise Lines, Inc., 618 F. Supp. 18, 24 (D. Md. 1984, aff'd, 806 F.2d 257 (4th Cir. 1986. ( There is little more that the defendant could have done to call the contract conditions to the attention of the passengers and to impress upon them their importance. As such, in accordance with the uniform holdings in case law from around the United States, these forum selection and limitation provisions were reasonably communicated to the Plaintiffs, and as a result, the Plaintiffs Complaint must be dismissed as a matter of law. CONCLUSION As the foregoing discussion shows, the Plaintiffs suit is barred in this Court by the forum selection clause contained in the Passenger Ticket Contract issued to the Plaintiffs by the Defendant before the Plaintiffs boarded the cruise ship, as notice of the terms was reasonably communicated as a matter of law. Plaintiffs nevertheless filed suit in the wrong forum. Accordingly, the Plaintiffs Complaint should be dismissed with prejudice. See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 590-91 (1991; Catalana v. Carnival Cruise Lines, 618 F. Supp. 18 (D. Md. 1984, aff d, 806 F.2d 257 (4th Cir. 1986; Bailey v. Carnival Cruise Lines, Inc., 774 F.2d 1577 (11th Cir. 1985; Doran v. Carnival Cruise Lines, Inc., 2001 A.M.C. 1733 (E.D.La. August 26, 1999, aff d, 2000 U.S. App. LEXIS 40570 (5th Cir. La. May 3, 2000 (per 11

curiam; Hodes v. S.N.C. Achille Lauro ed Altzi-Gestione, 858 F.2d 905 (3d Cir. 1988, cert. dismissed, 490 U.S. 1001 (1989; Ciliberto v. Carnival Cruise Lines, 1986 A.M.C. 2317 (E.D. Pa. 1986; Henderson v. Carnival Corp., 125 F. Supp.2d 1375 (S.D. Fla. 2000. WHEREFORE, Defendants Royal Caribbean International and Royal Caribbean Cruises, Ltd, respectfully request that this Honorable Court grant this Motion to Dismiss or, in the alternative, Motion for Summary Judgment, and dismiss this action with prejudice and provide whatever further relief it should deem just and proper under the circumstances. October 30, 2018 WOMBLE BOND DICKINSON (US LLP By: _/s/ Ryan Gilsenan Ryan Gilsenan, SC Bar No. 74756 Sean Houseal, SC Bar No. 66501 5 Exchange Street/P.O. Box 999 Charleston, SC 29402-0999 (843 722-3400 Ryan.gilsenan@wbd-us.com Sean.houseal@wbd-us.com 12