Cruise Ship Limitation to File Suit in Contract of Carriage Enforced

Cruise Ship Limitation to File Suit in Contract of Carriage Enforced

By: Neal C. Walton

 Chang v. Carnival Corp., 2016 U.S. App. LEXIS 18128The Plaintiff, Gracita Chang, alleged that she slipped and fell on the Defendant Carnival Corporation’s cruise ship on December 9, 2012. Ms. Chang’s cruise ticket contained a time limitation of one-year within which to file suit (though by statute there is a three-year statute of limitations for personal injury or death arising out of a maritime tort, 46 U.S.C. Sec. 30106), as well as a forum-selection clause requiring that all actions be instituted in federal court. It was more than a year later that she untimely filed suit in federal court in Miami, Dade County, Florida.Carnival moved for summary judgement based on this one-year limitation period. Ms. Chang argued that this limitation period should be extended based on the doctrine of equitable tolling. The district court rejected her argument and granted Carnival’s motion for summary judgment. Ms. Chang appealed; the court of appeals then affirmed that judgement.Carnival twice informed Ms. Chang’s attorney that it would not waive its rights under the forum-selection clause. Less than a month later, Ms. Chang substituted Florida counsel for her previous California counsel. Just a few days before the one-year deadline, she filed her slip-and-fall claim in a Florida state court even though the contract of carriage required the suit to be filed in federal court in Miami.On January 28, 2014, Carnival moved to dismiss the state court action, asserting Ms. Chang’s violation of the forum-selection clause. While Carnival’s motion to dismiss was pending in state court, Ms. Chang filed this parallel federal action. However, the federal action was filed almost three months after the one-year limitations period had expired.Carnival moved for summary judgement in federal court based on Ms. Chang’s failure to file suit within the one-year time limit. Ms. Chang argued that even though she was bound by the time limitation, by filing the state court action within a year of her injury, the limitation period had been equitably tolled. The district court concluded that Ms. Chang had failed to justify any equitable tolling and therefore had run afoul of the limitation period. The court entered summary judgement for Carnival and Ms. Chang appealed. Carnival responded that Ms. Chang’s filing of the state court action failed to equitably toll the limitation because the cruise ticket contained a clause requiring the selection of a federal forum so long as there was federal jurisdiction and there clearly was federal jurisdiction over the claim. Carnival had made clear to Ms. Chang that it would insist on her compliance with the forum-selection clause. The court agreed.With respect to the Ms. Chang’s equitable tolling argument, “[t]he Supreme Court has made clear that tolling is an extraordinary remedy which should be extended only sparingly.” Justice v. United States, 6 F.3d 1474, 1479 (11th Cir. 1993). The party relying on equitable tolling bears the burden to show that the relief requested is warranted. Id. at 1479. In this case, this extraordinary remedy was not applicable as Ms. Chang failed to sustain the burden of proof.The court cited Booth v. Carnival Corporation, 522 F.3d 1148 (11th Cir. 2008), which focused on four factors. First, the “state court…possessed subject matter jurisdiction concurrently with the federal courts.” Id. at 1153. Second, “the state suit was dismissed solely on grounds of improper venue.” Id. Third, the defendant was aware prior to expiration of the limitation period that the plaintiff intended to file suit. Id. Fourth, the plaintiff “was entitled to believe that his state filing might be sufficient given the fact that defendants can, and often do, waive their defense of improper venue.” Id. The court in Booth concluded that the plaintiff had prosecuted his claim with the diligence necessary to warrant consideration of an equitable tolling claim. This allowed the limitations period to be properly tolled from the date on which he filed this state-court action. Id. at 1158.Here, the fourth factor articulated in Booth was not satisfied because Ms. Chang chose to file suit in the wrong forum. Moreover, Carnival appropriately warned her attorney that it intended to enforce the forum-selection clause, but Ms. Chang continued to sue in the wrong forum. Ms. Chang finally sued Carnival in the correct forum after the expiration of the limitations period. The court found that equitable tolling does not apply under the circumstances in this case.