In St. Aubin v. Island Hotel Company1 the U.S. District Court in the Southern District of Florida court once again considered the enforceability of a Bahamas forum selection and choice of law clause in a hotel registration agreement which guests at the Atlantis Resort in Nassau are required to sign upon checking in. The forum selection clause was not enforced this time (“She did not sign the Agreement—or any other document containing a forum-selection clause—or authorize anyone else to do so on her behalf and she did not receive reasonable notice of the forum-selection clause before or during the check-in process.”) and defendant’s forum non conveniens motion was not granted (“There is no dispute that the Bahamas is an available and adequate forum for plaintiff to bring her claims”; however, the private interest factors determine the outcome here). Nonetheless, such clauses are enforceable not only in Florida, under the right circumstances and, but especially, here in New York. This article compares the Florida and New York law regarding the enforceability of hotel and resort forum selection clauses.
Importance
Forum selection clauses (FSCs) are important to defendants since forcing injured travelers to pursue their claims in distant forums, with legal systems that do not recognize contingency fees or jury trials and with laws not necessarily as accommodating as those in the United States, may chill the enthusiasm of injured travelers to pursue their claims abroad. A particularly important factor in a forum selection clause analysis is whether the hotel guest has “consented” to a change of forum upon the existence of a forum selection clause in a travel contract, which states, in essence, that any and all claims against the hotel or purveyor of other travel services must be brought before a court in a specific forum and subject to local law, typically where the accident took place or where the hotel is located.2
