Starkey v. G Adventures, Inc. – Tour Injury and Notice of Forum


Florida is a vacation destination in itself, and we also here have many ports from which people depart for cruises or shipping charters or flights to other destinations. If someone is injured while on vacation, the question of which court must be used to seek compensation is important. Failure to get it right could mean losing out on the opportunity to file at all, if the statute of limitations runs out.

What’s more, the answer isn’t always necessarily straightforward. Generally, if an injury happens in Florida, state courts are going to handle the claim. However, there may be some cases in which federal court is the appropriate forum. And still in other cases, certain contracts can dictate the terms of resolution.

This was the case of Starkey v. G. Adventures, Inc., recently before the U.S. Court of Appeals for the Second Circuit. According to court records, the question was whether a hyperlink contained in an email was sufficient notice of a designated forum, per a contract between plaintiff and defendant. The court ruled that it was.

The facts that gave rise to this case began in late 2011, when plaintiff purchased a vacation tour package to the Galapagos Islands through the defendant, a travel agency based in Canada.

Soon after she submitted the booking, she received three e-mails. One was a confirmation e-mail. The other was a service voucher. The last one contained booking information.

Within that booking information email was a statement containing “TERMS AND CONDITIONS.” This portion indicated that by confirming one’s reservations, passengers read, understand and agree to all terms and conditions, which were contained in a hyperlink that brought the user to a separate page that contained all the fine print. If one clicked on that link, they would find a section indicating that “all matters arising… are subject to the exclusive jurisdiction of the Ontario and Canadian Courts.”

Plaintiff doesn’t dispute that she received these emails. What she says, however, is she never saw the full terms and conditions because she never clicked on the hyperlinks.

She left for the island tour. While there, she alleges she was sexually assaulted by one of defendant’s employees.

Thereafter, she filed a personal injury lawsuit against the company for negligence on a number of theories, including vicarious liability, negligent hiring and more.

However, defendant responded the claim had to be dismissed because it was filed in a New York court, when the terms and conditions stated it had to be filed in Canada.

The district court, upon review, determined the terms and conditions portion of the agreement did indeed bar plaintiff from bringing her lawsuit in the U.S. The U.S. Court of Appeals for the Second Circuit affirmed.

The question before the appeals court was whether the clause was reasonably communicated to the party resisting enforcement of it. That meant determining whether a hyperlink was sufficient to satisfy this requirement.

Courts have previously held that tour agencies meet this “reasonable communication” forum selection clause when it is clearly stated in promotional brochures directing travelers’ attention to that portion and also when it’s contained on the passenger ticket contract.

Although we’re dealing with an email, which is a relatively newer form of communication, the court ruled the travel company had given plaintiff sufficient direction to the terms and conditions which contained the forum selection clause.

Therefore, if she still wishes to pursue damages, she will have to do so in a Canadian court.

If you have been injured in Florida, contact the Hollander Law Firm at (561) 347-7770 for a free and confidential consultation. There is no fee unless we win.

Additional Resources:

Starkey v. G. Adventures, Inc., Aug. 7, 2015, U.S. Court of Appeals for the Second Circuit

More Blog Entries:

Sorrels v. NCL – Coefficient of Friction in Slip-and-Fall Injury on Cruise Ship, Aug. 12, 2015, Boca Raton Personal Injury Attorney