Jones v. Ponant USA LLC

Background

Kimberly Moffatt Jones reserved a cruise on Ponant’s ship Le Soléal for herself and her daughter, later purchasing tickets for her two sons as well. The cruise was scheduled to travel from Ushuaia, Argentina, to Antarctica from December 20, 2018, through January 5, 2019. Jones allegedly chartered a private jet for her family and her autistic son’s therapist to travel to the cruise’s departure port because her autistic son could not fly commercially.

After Le Soléal suffered damage to a propeller, Ponant allegedly told Jones through a travel agent that the cruise would depart from Concepcion, Chile, rather than Ushuaia, and that the damage and repairs were minor. Jones changed the private flight’s itinerary. After she and her family arrived in Concepcion, the ship’s captain allegedly disclosed that the propeller problem was major and that repairs were continuing. Jones left with her family, and Ponant later refunded the full $125,028 cost of the cruise tickets.

Jones’s first amended complaint asserted intentional and negligent misrepresentation claims. She alleged that Ponant made the statements to defraud her and that she suffered losses including $355,000 in private-airfare costs.

Motion and governing standard

Ponant moved to dismiss under Federal Rule of Civil Procedure 12(b)(3), arguing that a forum-selection clause made venue improper in the Southern District of New York. The court explained that a forum-selection clause pointing to a foreign court is enforced through the doctrine of forum non conveniens, rather than Rule 12(b)(3), which addresses whether federal venue law permits the case to be heard in the district. The court therefore treated Ponant’s motion as a motion to dismiss for forum non conveniens.

The court applied a four-part test to determine whether the clause was enforceable: whether it was reasonably communicated to Jones; whether it was mandatory or permissive; whether it covered the parties and claims; and whether Jones made a sufficiently strong showing that enforcement would be unreasonable or unjust, including because of fraud, overreaching, unfairness, public policy, or extreme inconvenience.

Reasonable communication

The court found that Ponant reasonably communicated the clause to Jones. Ponant’s email to Jones’s travel agent referred to its general sales terms and conditions through a conspicuous teal-colored hyperlink. The attached reservation option stated that paying the deposit meant accepting the full terms and conditions and emphasized that Ponant could, in certain situations, change the route, delay the journey, or terminate it.

The court also found that Jones had sufficient time to review the terms before paying. She had five days before the initial deposit was due, more than three months between paying the balance and the scheduled departure, and signed sworn statements stating that she had read, understood, and accepted the terms governing the tickets.

Mandatory clause and covered claims

The contract stated: “Only the courts in the area of the Marseille District Court, France, have jurisdiction to hear any proceedings initiated against CDP, its employees, subsidiaries, or sub-contractors, even in the event that third parties are involved.” The court held that the word “only” made the clause mandatory and gave exclusive jurisdiction to the courts in the area of the Marseille District Court in France.

The court further held that the clause applied to Ponant because Ponant was a subsidiary of Compagnie du Ponant SAS. It also covered Jones’s intentional and negligent misrepresentation claims. The clause applied broadly to “any proceedings” against the parent company or its subsidiaries, and the court concluded that Jones’s claims were connected to the contractual relationship because the alleged statements concerned Ponant’s contractual right to reroute or delay the cruise and its ability to perform the cruise contract.

Challenge to enforcement

The court found that the clause was presumptively enforceable and that Jones did not overcome that presumption. Jones did not argue that the clause was incorporated through fraud or overreaching, that French law was fundamentally unfair, that enforcement violated a strong public policy, or that litigation in Marseille would effectively deprive her of her day in court. The court rejected her arguments that the clause was overbroad, incomprehensible, and not negotiated between sophisticated businesses.

Public-interest factors

The court stated that valid forum-selection clauses receive controlling weight and should be enforced unless unusual public-interest circumstances justify refusing enforcement. Jones did not identify public-interest factors against enforcement. Her arguments that the alleged statements were made in the United States, witnesses were located there, Ponant was a U.S.-domiciled subsidiary, and she was an individual rather than a business concerned private interests, which the court gave no weight in this analysis.

Disposition

The court granted Ponant’s motion to dismiss. It dismissed the case without prejudice to refiling abroad consistently with the forum-selection clause and directed the Clerk of Court to terminate pending motions and close the case.