DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
AQUACHILE, INC.,
Appellant,
v.
DAWN WILLIAMS, ST. JAMES SMOKEHOUSE, INC., and
SHERWOOD FOOD DISTRIBUTORS, LLC.
Appellees.
No. 4D21-1453
[December 22, 2021]
Appeal of a non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Michael A. Robinson, Judge; L.T. Case
No. CACE20-003779.
Naim S. Surgeon and Ta’Ronce Stowes of Akerman LLP, Fort
Lauderdale, Alexandra M. Mora of Akerman LLP, Miami, and Kristen M.
Fiore of Akerman LLP, Tallahassee, for appellant.
David B. Pakula of David B. Pakula, P.A., Pembroke Pines, and Todd S.
Stewart of Law Office of Todd S. Stewart, P.A., Jupiter, for appellee Dawn
Williams.
PER CURIAM.
In this appeal, we consider whether a forum selection clause in the
plaintiff’s cruise ticket contract applies in her suit against a non-party to
the contract. The contract contained a “Himalaya clause” 1 purporting to
extend the forum selection clause, among other rights and defenses, to
non-parties. The trial court ruled that the defendant in this case was not
entitled to enforce the forum selection clause because the Himalaya clause
did not apply to the defendant and was not reasonably communicated to
the plaintiff. We affirm.
Background
1 See Davis v. Valsamis, Inc., 752 F. App’x 688, 690 n.1 (11th Cir. 2018)
(“Himalaya Clauses extend liability limitations to downstream parties and take
their name from an English case involving a steamship called Himalaya.”).
The plaintiff alleges that she became severely ill after she was served
contaminated fish on board a Royal Caribbean cruise ship. She alleges
that the fish was originally sourced by AquaChile, Inc., and was sold to at
least one other company before it was ultimately sold to Royal Caribbean
to be served to cruise passengers. She sued AquaChile and two other
companies in the supply chain for strict liability, negligence, violations of
the Florida Food Safety Act, breach of implied warranty, and breach of
express warranty. She filed her complaint in Broward County circuit
court. AquaChile moved to dismiss, arguing that Broward County was an
improper venue pursuant to a forum selection clause in the plaintiff’s
contract with Royal Caribbean.
The contract at issue is contained in the “guest ticket booklet” that
Royal Caribbean provided to the plaintiff before her cruise. On the cover
of the booklet, and in bold print at the top of the first page of the contract,
there is an “important notice” advising passengers to carefully read the
contract, paying particular attention to section 3 and sections 9 through
11. The forum selection clause appears in section 9(a) and is printed in
all-capital letters. It provides that any dispute between the passenger and
the carrier must be litigated in Miami-Dade County. A separate clause in
section 2(b)—the so-called “Himalaya clause”—purports to extend the
forum selection clause, among other rights and defenses, to parties other
than the carrier.
Section 2(b) is part of the “definitions” section of the contract and
ostensibly defines the word “carrier.” It is printed in non-bold, regular-
case letters. The first two sentences of section 2(b) define “carrier” to
include the vessel, the operator, and related entities and individuals. The
third sentence contains the Himalaya clause, which provides in relevant
part: “The exclusions or limitations of liability of Carrier set forth in the
provisions of this Ticket Contract, as well as all rights, defenses or
immunities set forth herein, shall also apply to and be for the benefit of
agents, independent contractors, concessionaires and suppliers of Carrier
. . . .” In its motion to dismiss, AquaChile argued that it was entitled to
enforce the forum selection clause, pursuant to the Himalaya clause, as a
“supplier” of Royal Caribbean.
The circuit court denied AquaChile’s motion. The court ruled that the
Himalaya clause did not apply to AquaChile because it was an indirect
supplier to Royal Caribbean and was not engaged in the type of maritime
activity that would be expected to be covered by the ticket contract. The
court also ruled that the Himalaya clause was not reasonably
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communicated to the plaintiff because of its physical characteristics and
ambiguous language.
AquaChile appealed. We have jurisdiction under Florida Rule of
Appellate Procedure 9.130(a)(3)(A), which provides for appeal of nonfinal
orders that concern venue.
Analysis
We review the order denying AquaChile’s motion to dismiss de novo.
Palm Beach Cnty. Sch. Bd. v. Doe,
210 So. 3d 41, 43 (Fla. 2017); see also
Davis v. Valsamis, Inc., 752 F. App’x 688, 691 (11th Cir. 2018) (contract
interpretation is an issue of law subject to de novo review); DannaMarie
Provost v. Hall, 757 F. App’x 871, 875 (11th Cir. 2018) (whether the terms
of a cruise ticket contract were adequately communicated to passengers is
a question of law subject to de novo review). Because the contract at issue
is a maritime contract, federal law governs its interpretation. See Davis,
752 F. App’x at 691 (citing Norfolk S. Ry. Co. v. Kirby,
543 U.S. 14, 22–23
(2004)).
A. Interpretation of the Himalaya Clause
The court denied AquaChile’s motion to dismiss primarily because it
interpreted the Himalaya clause in the plaintiff’s ticket contract not to
apply to AquaChile. Himalaya clauses generally extend contractual
limitations of liability to certain “downstream parties” expected to take part
in the execution of the contract. Kirby,
543 U.S. at 20; Davis, 752 F. App’x
at 690 n.1. Himalaya clauses are construed, according to general
principles of contract interpretation, “by their terms and consistent with
the intent of the parties.” Kirby,
543 U.S. at 31. The court must determine
whether the plain language of the contract as a whole reflects an intent to
extend limitations of liability to the party seeking protection. See
id. at
31–32; Davis, 752 F. App’x at 692. Any ambiguity must be construed
against the drafter. Davis, 752 F. App’x at 692.
Factors to be considered in determining whether a party qualifies for
protection under a Himalaya clause include (1) the nature of the
relationship between the party seeking protection and the contracting
party, and (2) the nature of the services provided by the party seeking
protection compared to the contracting party’s responsibilities under the
contract. See id. at 693 (holding that the defendant was within the
reasonable scope of a Himalaya clause in a maritime contract and
distinguishing cases where the defendant’s relationship to the contracting
party was “tangential or uncertain” or the defendant was “engaged in non-
maritime activity that one would not reasonably expect to be covered by
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the contract”); Caterpillar Overseas, S.A. v. Marine Transp., Inc.,
900 F.2d
714, 726 (4th Cir. 1990) (stating that, in determining whether a party
qualifies for protection under a Himalaya clause in a carriage contract,
“the court is to take into consideration the nature of the services performed
compared to the carrier’s responsibilities under the carriage contract”)
(internal quotation marks omitted); La Salle Mach. Tool, Inc. v. Maher
Terminals, Inc.,
611 F.2d 56, 60 (4th Cir. 1979) (explaining that, in
determining whether a defendant qualifies for protection under a Himalaya
clause in a maritime contract, the court should consider whether the
defendant performed a maritime service).
The Himalaya clause at issue here does not reflect a clear intent to
extend Royal Caribbean’s rights and defenses under the ticket contract to
parties like AquaChile. The relevant language refers to “suppliers of
Carrier.” AquaChile was not a direct supplier of Royal Caribbean and had,
at best, an indirect, tangential relationship to the company. The fish that
the plaintiff consumed was allegedly sourced by AquaChile but was sold
to at least one other company before it reached Royal Caribbean. We do
not hold that the Himalaya clause applies only to direct suppliers, but it
cannot be reasonably read to extend protection to an indefinite chain of
indirect suppliers, like AquaChile, that have little to no relationship with
Royal Caribbean. See Davis, 752 F. App’x at 693.
In addition to being an indirect supplier to Royal Caribbean, AquaChile
was not engaged in the type of maritime activity that one would reasonably
expect to be covered by the ticket contract. See id.; Caterpillar Overseas,
900 F.2d at 726. Although Royal Caribbean’s activity of serving fish to its
passengers might be considered maritime activity, see Bird v. Celebrity
Cruise Line, Inc.,
428 F. Supp. 2d 1275, 1278–79 (S.D. Fla. 2005),
AquaChile’s non-maritime business of farming and selling fish to various
on-land customers was not transformed into a maritime activity simply
because some of its fish ended up being sold to Royal Caribbean at the
end of the supply chain.
To the extent the Himalaya clause is ambiguous as applied to the
plaintiff’s suit against AquaChile, the court properly construed it against
AquaChile. See Sharpe v. W. Indian Co.,
118 F. Supp. 2d 646, 652–53
(D.V.I. 2000) (concluding that a nearly identical Himalaya clause in a Royal
Caribbean ticket contract was ambiguous as applied to the defendants,
and would therefore be construed against them, because it failed to clearly
define which parties were covered and failed to specify which limitations
applied to which parties).
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For these reasons, the court did not err in ruling that the Himalaya
clause in the plaintiff’s ticket contract did not extend the forum selection
clause to her suit against AquaChile.
B. Reasonable Communication of the Himalaya Clause
The court also ruled that AquaChile could not rely on the Himalaya
clause to enforce the forum selection clause because the Himalaya clause
was not reasonably communicated to the plaintiff. A forum selection
clause in a cruise ticket contract must be reasonably communicated to the
passenger to be enforceable. See Lebedinsky v. MSC Cruises, S.A., 789 F.
App’x 196, 200 (11th Cir. 2019); Est. of Myhra v. Royal Caribbean Cruises,
Ltd.,
695 F.3d 1233, 1244–46 (11th Cir. 2012), superseded by statute on
other grounds as stated in Caron v. NCL (Bahamas), Ltd.,
910 F.3d 1359,
1364 n.2 (11th Cir. 2018). Here, because AquaChile can enforce the forum
selection clause only through application of the Himalaya clause, the
Himalaya clause also must have been reasonably communicated to the
plaintiff. See, e.g., Davis, 752 F. App’x at 694; Stotesbury v. Pirate Duck
Adventure, LLC, No. 3:11-cv-00018,
2013 WL 3199353, at *2–3 (D.V.I.
June 25, 2013).
Courts apply a two-part test of “reasonable communicativeness,”
evaluating (1) the physical characteristics of the clause at issue, and (2)
whether the passenger had the ability to become meaningfully informed of
the clause and reject its terms. Lebedinsky, 789 F. App’x at 200. Here,
the court focused on the first prong, which considers features such as the
placement of the clause within the contract, the conspicuousness of notice
on the face of the contract, the size and appearance of the typeface, and
the clarity of the language and headings. See
id. at 200–01 (citing Est. of
Myhra, 695 F.3d at 1244–45); Wallis v. Princess Cruises, Inc.,
306 F.3d
827, 835–36 (9th Cir. 2002).
We agree with the circuit court that the Himalaya clause at issue here
was not reasonably communicated to the plaintiff based on its physical
characteristics. The Himalaya clause appears in section 2(b) of the ticket
contract, which is part of the “definitions” section and ostensibly defines
the word “carrier.” Section 2(b) is printed in non-bold, regular-case letters,
and there is nothing in the “important notice,” or anywhere else in the
contract, to draw the reader’s attention to it. The first two sentences of
section 2(b) define “carrier”—somewhat predictably—to include the vessel,
the operator, and related entities and individuals. The Himalaya clause
does not appear until the third sentence, and it is only loosely related to
the apparent topic of section 2(b), defining the word “carrier.” There is
nothing about the placement, appearance, or heading of section 2(b) to
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suggest to the reader that it contains a clause extending Royal Caribbean’s
limitations of liability to unrelated parties. See Stotesbury,
2013 WL
3199353, at *3 (concluding that the Himalaya clause in a Royal Caribbean
ticket contract was not reasonably communicated to the plaintiff because
it was “buried in fine print” in the “definitions” section of the contract). In
addition, to the extent the language of the Himalaya clause is ambiguous
as applied to the plaintiff’s suit against AquaChile, it could not have been
reasonably communicated to her. See Sharpe,
118 F. Supp. 2d at 652–
53; Universal Grading Serv. v. eBay, Inc., No. 08-CV-3557,
2009 WL
2029796, at *11 (E.D.N.Y. June 10, 2009).
For these reasons, the court did not err in ruling that AquaChile could
not rely on the Himalaya clause because it was not reasonably
communicated to the plaintiff.
Conclusion
In conclusion, we affirm the order denying AquaChile’s motion to
dismiss for improper venue. The court did not err in ruling that AquaChile
was not entitled to enforce the forum selection clause in the plaintiff’s
ticket contract as a “supplier” under the Himalaya clause. The Himalaya
clause does not reflect a clear intent to extend Royal Caribbean’s rights
and defenses under the contract to parties like AquaChile, and it was not
reasonably communicated to the plaintiff. 2
Affirmed.
WARNER, GROSS and MAY, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2 We have considered AquaChile’s argument that the trial court erred in ruling
that a federal court had already rejected its improper venue argument. We agree
that the court erred in this respect, but we find the error to be harmless in light
of our affirmance of the court’s rulings on the merits.
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