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                                                                                                                            FOURTH DIVISION
                                                                                                    October 20, 2005

 JUSTICE GREIMAN delivered the opinion of the court:

Plaintiffs filed suit on November 29, 2001. Defendant moved to dismiss the vicariousliability and loss of consortium counts of plaintiff's complaint on the grounds that federaladmiralty law did not recognize those causes of action. Initially, the trial court granteddefendant's motion; however, on June 2, 2004, the trial court granted plaintiff's motion toreinstate the vicarious liability count after considering the recent holding of the Florida appellatecourt in Carlisle v. Carnival Corp., 864 So. 2d 1 (Fla. 2003), appeal allowed, 904 So. 2d 430(2005). Carlisle held that a passenger injured by the negligent treatment of a cruise line's on-board physician could maintain a vicarious liability cause of action against the cruise line.

Defendant also moved to dismiss the case on the grounds that the forum selection clausein the ticket contract between the parties required plaintiffs to bring suit in Miami, Florida. Thecase proceeded to an evidentiary hearing on this issue.

Nancy Calvo Varela testified that on March 2001, plaintiffs met with her to discussMediterranean cruises. Varela, a travel agent for American Express Travel, doing business asCrossroads Travel Service (hereinafter Crossroads Travel), provided plaintiffs with severalbrochures. Varela testified that on March 14, 2001, Sheila visited Crossroads Travel to place adeposit on a cruise offered by defendant. On June 8, 2001, Sheila visited Crossroads Travel tomake final payment on the cruise. On June 28, 2001, Sheila visited Crossroads Travel a final timeto pick up her trip information. Varela identified a ticket booklet at the hearing. While notidentical, the booklet was essentially the same as the one Varela testified that she had givenSheila. It provided in relevant part:"IT IS AGREED BY AND BETWEEN PASSENGER AND CARRIER THATALL DISPUTES AND MATTERS WHATSOEVER ARISING UNDER, INCONNECTION WITH OR INCIDENT TO THIS CONTRACT SHALL BELITIGATED, IF AT ALL, IN AND BEFORE A COURT LOCATED IN MIAMI, FLORIDA, U.S.A., TO THE EXCLUSION OF THE COURTS OF ANYOTHER STATE, TERRITORY, OR COUNTRY. PASSENGER HEREBYWAIVES ANY VENUE OR OTHER OBJECTION THAT HE MAY HAVE TOANY SUCH ACTION OR PROCEEDING BEING BROUGHT IN ANYCOURT LOCATED IN MIAMI, FLORIDA."

Varela testified that on June 28, 2001, when she gave Sheila the ticket booklet, sheexplained that Sheila should read the booklet and that it would need to be signed before theplaintiffs could board the ship. Varela did not discuss the substance of the booklet or specificallyrefer Sheila to the forum selection clause. Varela testified that the booklet would have containedboth ground transportation vouchers that would have allowed plaintiffs to board the bus from theairport in Rome to the pier in Civitavecchia, Italy, and tickets that would allow them to board theship once they arrived at the pier. Varela testified that if a cruise passenger arrived at the dockwithout a ticket, he would be required to sign a ticket dockside before boarding the ship.

Sheila testified that she, James and their daughter met with Varela in early March 2001 todiscuss booking a cruise. On March 14, 2001, Sheila placed a deposit on the trip and Varela gaveher an itinerary, a confirmation slip from Fun Jet airline and confirmation vouchers for plaintiffs'transportation from the airport to the ship. On June 8, 2001, James made the final payment on thetrip. On June 28, 2001, Sheila received a folder from Varela that included plaintiffs' airline ticketsand luggage tags. Sheila testified that she did not receive a ticket booklet. James testified thathis wife was responsible for making all of the arrangements for the trip. He also did not receive aticket booklet at any time.

Plaintiffs testified that upon their arrival in Rome, they were directed to a bus that wouldtransport them to the cruise ship in Civitavecchia, Italy. Defendant's staff asked plaintiffs topresent their ground transportation tickets, which they did not have. Nonetheless, plaintiffs werepermitted to board the bus because their names appeared on the passenger list. Plaintiffs testifiedthat when they arrived at the pier, defendant's representatives requested that plaintiffs presenttheir tickets to board the ship, which plaintiffs also did not have. Plaintiffs were directed to waitin the "problem" line. Plaintiffs were each asked to sign a small perforated sheet that provided:

"THIS IS YOUR CRUISE TICKET CONTRACT. IT IS IMPORTANT THATYOU READ ALL TERMS OF THIS CONTRACT (PP1-2). THIS TICKET ISNOT TRANSFERABLE AND IS NOT SUBJECT TO ALTERATIONS BY THEGUEST."

Plaintiffs testified that nothing was attached to the small sheet. Plaintiffs signed the perforated sheet after being informed that no family member couldboard the ship without signing the document. Sheila assumed the document was to open an on-board charge account. James admitted that he did not scrutinize the perforated sheet. When theplaintiffs signed the perforated sheet, both were distracted by their young daughter and had hadlittle rest since leaving for their trip.

Concerning the hardship that plaintiffs would endure if forced to litigate their case inFlorida, Sheila testified that James is partially paralyzed and that he is unable to use the bathroomand must use a urine bottle when traveling. James testified that he must switch to a smallerwheelchair when he boards airplanes and must carefully monitor what he eats and drinks. Jamestestified that both his wife and daughter would accompany him to Miami, Florida, to litigate thesuit because he requires Sheila's help in traveling and his second-grade daughter would havenobody to take care of her in Chicago. Nonetheless, plaintiffs admitted that since his injury,James had taken trips to New York, Denver and Cancun.

On July 12, 2004, the trial court made several factual and legal findings. The trial courtfound that plaintiffs never received a complete ticket contract containing the forum selectionclause, and the only portion of a ticket contract ever provided by defendants to plaintiffs was theperforated sheet to which nothing was attached. Furthermore, the trial court found that at notime was the forum selection clause otherwise communicated to plaintiffs by defendant orCrossroads Travel. Accordingly, plaintiffs never accepted the terms of the clause. The courtfurther found that litigating the suit in Miami, Florida, would be "extremely difficult, if notimpossible" for James, given his physical handicap and financial hardships. Accordingly, the trialcourt denied defendant's motion to dismiss.

The trial court certified the following two questions to this court:

"1. Under federal admiralty law, is a state court bound to apply federaladmiralty precedent precluding vicarious liability claims against cruise lines for thealleged negligence of shipboard doctors, or is it free to permit such a vicariousliability claim against a cruise line?

2. Under federal admiralty law, does a passenger's signature on a ticketcontract which contains a forum selection clause bind the passenger to the forumdesignated therein despite the passenger's claim that he did not timely receive orread the forum selection clause?"On October 20, 2004, pursuant to Rule 308, we granted defendant's application to appeal. After the parties had fully briefed their arguments, on March 31, 2005, defendant moved to strikeplaintiffs' argument that the forum selection clause should not be enforced because enforcementwould cause them undue physical and financial hardship. According to the motion, on October22, 2004, defendant served plaintiffs with interrogatories inquiring about any trips James hadtaken since his original deposition. Plaintiffs had failed to respond to the interrogatories. OnApril 11, 2005, we allowed the motion and took it with the case.

We will first address the outstanding motion. In reviewing the trial court's order denyingdefendant's motion to dismiss, this court is confined to consider evidence and matters consideredby the trial court in issuing its order. Wieser v. Missouri Pacific R.R. Co., 98 Ill. 2d 359, 363-64(1983); Logan v. Old Enterprise Farms, Ltd., 139 Ill. 2d 229, 237 (1990). The trial court's July12, 2004, determination that the case should not be dismissed was based on the evidencepresented during the evidentiary hearing. Defendant's interrogatories were served after this courthad granted defendant's application for appeal. Because we review only the matters consideredby the trial court, plaintiffs' failure to respond to the interrogatories at issue has no bearing on ouranalysis. Accordingly, we deny defendant's motion to strike plaintiffs' argument regarding thephysical and financial hardship they would experience as a result of enforcement of the forumselection clause.

We turn now to the trial court's second certified question regarding the enforceability ofthe forum selection clause. Defendant contends that the trial court erred in refusing to dismissthis suit based upon the forum selection clause in the ticket contract because the evidenceadduced at the hearing supports the conclusion that the forum selection clause was reasonablycommunicated to plaintiffs. Plaintiffs respond that the evidence indicated that the clause was notreasonably communicated and that the evidence further indicated they would suffer physical andfinancial hardship if the clause were enforced.

A cruise ticket is a maritime contract governed by federal admiralty law. Carnival CruiseLines, Inc. v. Shute, 499 U.S. 585, 590, 113 L. Ed. 2d 622, 629, 111 S. Ct. 1522, 1525 (1991). Forum selection clauses are " 'prima facie valid.' " Shute, 499 U.S. at 589,113 L. Ed. 2d at 629,111 S. Ct. at 1525, quoting The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 9-10, 32 L. Ed. 2d513, 520, 92 S. Ct. 1907, 1913 (1972). Nonetheless they are subject to "judicial scrutiny forfundamental fairness." Shute, 499 U.S. at 595, 113 L. Ed. 2d at 633, 111 S. Ct. at 1528. Federalcourts have employed a two-pronged "reasonable communicativeness" test to determine whethera contract clause was reasonably communicated to a passenger and was, therefore, contractuallybinding. Wallis v. Princess Cruises, Inc., 306 F. 3d 827, 835 (9th Cir. 2002); Ward v. CrossSound Ferry, 273 F.3d 520, 523 (2nd Cir. 2001) . Unless both prongs of the test are met, thecontract clause will not be enforced. See Wallis, 306 F.3d at 835-37; Ward, 273 F.3d at 523. The first prong of the test examines the appearance of the ticket, including " ' "size of type,conspicuousness and clarity of notice on the face of the ticket, and the ease with which apassenger can read the provisions in question." ' " Wallis, 306 F.3d at 835-36, quoting Deiro v.Am. Airlines, Inc., 816 F.2d 1360, 1364 (9th Cir. 1987), quoting Shankles v. Costa Armatori,S.P.A., 722 F. 2d 861, 864 (1st Cir. 1983). The second prong of the test focuses on externalcircumstances, such as the passenger's familiarity with the ticket, the time and incentive under thecircumstances to study the provisions of the ticket, and any other notice the passenger receivedoutside of the ticket. Ward, 273 F.3d at 525. In order to determine whether a clause wasreasonably communicated, a court applies " ' "an analysis of the overall circumstances on a case-by-case basis, with an examination not only of the ticket itself, but also of any extrinsic factorsindicating the passenger's ability to become meaningfully informed of the contractual terms atstake." ' " Wallis, 306 F.3d at 835, quoting Deiro, 816 F.2d at 1364, quoting Shankles, 722 F.2dat 866. Courts may also consider physical or financial impediments suffered by plaintiffs whendeciding whether to enforce a forum selection clause. Walker v. Carnival Cruise Lines, 107 F.Supp. 2d 1135, 1140-41 (N.D. Cal. 2000). Because the trial court's determination that the forumselection clause would not be enforced depended on its factual findings, we will not reverse unlessthose findings were contrary to the manifest weight of the evidence. Hernandez v. New RogersPontiac, Inc., 332 Ill. App. 3d 461, 464 (2002).

At the evidentiary hearing, Varela testified that she gave plaintiffs the ticket bookletcontaining the forum selection clause before embarking on their trip. Varela further testified thatthe booklet would have contained plaintiffs' bus and cruise tickets. Plaintiffs testified that theywere not given the booklet. Plaintiffs' testimony was supported by the uncontested fact that,upon arrival in Italy, plaintiffs were unable to provide defendant's representatives with either thebus or cruise tickets. Plaintiffs further testified that the perforated sheet they signed dockside wasnot attached to a larger document containing the forum selection clause. While defendant nowargues that a document containing the clause would have been attached to the perforated sheet, itoffered no direct testimony to that effect during the hearing. Plaintiffs' testimony furtherindicated that, though James had taken several trips since the cruise, traveling to Miami, Florida,to litigate the case would be difficult because of James' disability and because Sheila andplaintiffs' daughter would be forced to accompany him. The court found that plaintiffs werenever given any document containing the forum selection clause or otherwise informed of thecontent and restrictions imposed by the clause. Consequently, plaintiffs had not accepted theterms of the clause. The court further found that forcing plaintiffs to litigate in Miami, Florida,would cause undue hardship. Given the evidence presented during the hearing in support of thetrial court's conclusion and the scant evidence presented to dispute it, we cannot say that the trialcourt's conclusion that the forum restriction was not reasonably communicated to plaintiff wascontrary to the manifest weight of the evidence.⁽¹⁾ We turn now to the trial court's inquiry as to whether federal law requires dismissal ofplaintiffs' vicarious liability count. Defendant argues that, in reinstating the vicarious liabilityclaim, the trial court ignored a largely established rule of law which precludes vicarious liabilitycounts against carriers for the alleged negligence of shipboard doctors. Plaintiffs respond that thetrial court was correct to follow the more reasoned approach of modern cases, which allowsvicarious liability claims against carriers.

Torts committed within the boundaries of maritime jurisdiction are subject to maritimelaw. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628, 3 L. Ed. 2d 550, 553,79 S. Ct. 406, 408-09 (1959). Generally, under maritime law, a carrier owes a duty to itspassengers to exercise reasonable care under the circumstances. See Kermarec, 358 U.S. 625, 3L. Ed. 2d 550, 79 S. Ct. 406. Section 1333(1) of the Judiciary and Judicial Procedure Actprovides that "[t]he district courts shall have original jurisdiction, exclusive of the courts of theState, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases allother remedies to which they are otherwise entitled." 28 U.S.C.