Marrinan v. Carnival Corp., 2008 WL 728202(E.D.Tex. Mar 17, 2008) (NO. 6:06-CV-294) Judge: Michael Schneider
Holding: Defendant's Second Motion for Summary Judgment GRANTED.
Plaintiff
and his wife took a Carnival cruise for their 25th anniversary. Their
cruise contract contained a one-year statute of limitations and a forum
selection clause requiring suit to be filed in Florida. Five days after
boarding, plaintiff was injured aboard the ship when the side window of
Plaintiff's cabin came loose and hit him on the head. Plaintiff filed
suit in Texas state court not quite two years after the injury.
At the beginning of this case Judge Schneider denied a motion to
dismiss based on these clauses. He held that the issue could only be
considered in a motion for summary judgment, because the alleged
failure to comply with the limitation period did not appear on the face
of the complaint, and both parties submitted evidence outside of the
pleadings, including the tickets, brochures, and affidavits. The Court
also denied Carnival's motion to transfer, holding that because
Plaintiff could not have cancelled his ticket with impunity, the forum
selection clause was fundamentally unfair. Finally, the Court held that
Section 1404(a) allows for transfer, not dismissal, and denied
Carnival's motion to dismiss based on improper venue.
Now on summary
judgment, Judge Schneider granted the motion for summary judgment based
on the one-year limitations provision. Although the evidence was not
clear whether the provision was available prior to the accident, it was
clear that it was for the year subsequent to the accident. The court
rejected the plaintiff's claim that the provision was fundamentally
unfair, or that equitable estoppel principles prevented its application.