A Drafting Catastrophe

Image by jorono from Pixabay

While on vacation at the Breathless Montego Bay Resort and Spa in Jamaica, Jacqueline Williams slipped and fell. Upon returning home to Wisconsin, Williams filed a lawsuit in federal district court in Illinois alleging negligence against five companies that allegedly owned or operated the resort. The corporate defendants moved to dismiss based on forum non conveniens, citing a forum selection clause in the agreement that Williams signed when she checked in to the hotel. That clause stated:

This Agreement shall be governed by and interpreted in accordance with the laws of the [country of] Jamaica and for all matters relating to its interpretation, application, and compliance, the Parties agree to submit to the administrative process of the Federal Consumer Office. The parties waive any other jurisdiction that may now or be entitled to in the future for reason of their current or future domicile or any other reason whatsoever.

The U.S. District Court for the Northern District of Illinois (Judge Sara A. Ellis) denied the defendants’ motion to dismiss for three reasons.

First, the court pointed out that there is no “Federal Consumer Office” in Jamaica. Jamaica is not a federal state and none of its government agencies are federal in character. Why then would the resort draft a clause calling for disputes to be resolved by a non-existent entity? The court hypothesized that the Breathless resort in Jamaica may have reused a form drafted for Breathless resorts in Mexico. The agreement for the Mexican resort states that guests agree to submit to the administrative process of the “Procuraduria Federal del Consumidor,” i.e., the “Federal Consumer Office.” There is no equivalent entity in Jamaica.

Second, the court noted that it was unclear whether any of the named defendants were actually parties to the agreement containing the forum selection clause. The agreement signed by Williams referred to the “Hotel” without defining that term. If the corporate defendants were not parties to the agreement, the court held, then the forum selection clause in that agreement could not support a forum non conveniens dismissal.

Third, the court commented that Williams was asserting tort claims—not contract claims—and the clause was not broad enough to encompass tort claims. This rationale is less persuasive. The clause selected a forum for “all matters relating to [the contract’s] interpretation, application, and compliance.” A slip and fall at the hotel arguably “relates to” the contract. The fact that the court assigned an unduly narrow scope to the clause, however, in no way redeems the hotel for the drafting blunders identified above.

In the final analysis, the forum selection clause prepared by the Breathless Montego Bay Resort and Spa in Jamaica deserves a place in the Terrible Drafting Hall of Fame solely because it appears to have inadvertently selected an administrative tribunal in an entirely different country as the sole and exclusive forum for resolving disputes with its guests. This is nothing more (and nothing less) than a drafting catastrophe.