BALTIMORE (LN) — A Maryland federal judge dismissed a maritime negligence suit brought by a California couple injured aboard a chartered catamaran in French Polynesia, ruling in a matter of first impression that the "reasonably communicated" test — a consumer-protection doctrine developed to protect cruise-ship passengers — has no place in bareboat yacht charter disputes.
Peter Barker fell three or four feet through a floor into the hull of a 55-foot catamaran on March 28, 2023, while the vessel was sailing through the islands surrounding Raiatea, French Polynesia, suffering severe leg injuries. He and his wife Jessica sued Dream Yacht Charter, a Mauritius-incorporated company, and its Annapolis-based subsidiary Dream Yacht Americas, Inc., alleging negligence and loss of consortium.
The wrinkle: the Barkers never signed the charter contract. Their traveling companion Jonathan Ziskind, described in the complaint as a former professional sailor, was the sole contracting party, signing the bareboat charter agreement on July 1, 2022. That contract contained a "Governing Laws" provision stating that any legal action "arising under or in connection with this contract will be adjudicated in Port Louis, Mauritius."
The Barkers' only defense against dismissal was that the forum-selection clause could not bind them because its terms were never "reasonably communicated" to them — invoking a doctrine that traces to the Supreme Court's 1897 decision in The Majestic, in which passengers on a White Star Line ocean liner successfully challenged a liquidated-damages clause buried in their booking contract.
U.S. Senior District Judge Richard D. Bennett, writing March 31, declined to transplant that doctrine across the doctrinal divide. "This is an issue of first impression," he wrote, holding that the reasonably communicated test "does not apply of bareboat charter contracts."
The distinction, Bennett explained, is structural. A bareboat charterer is treated as the vessel's pro hac vice owner for the charter term — responsible for safe operation and the safety of any passengers aboard — making the arrangement far closer to a rental-car contract than a cruise-ship ticket. Cruise passengers, like bus passengers, surrender operational control in exchange for the protections that come with booking passage on a common carrier; bareboat charterers do the opposite.
Bennett cited the Second Circuit's decision in Silvestri v. Italia Societa per Azioni di Navigazione for the proposition that the thread running through the cruise-ship cases is that the steamship line had done all it reasonably could to warn the passenger that the terms and conditions were important matters of contract affecting his legal rights. That consumer-protection rationale, Bennett held, simply does not translate to a commercial arrangement in which the contracting party voluntarily assumes ownership-level responsibility for the vessel.
The Barkers argued that Ziskind functioned as a de facto tour operator — analogizing their situation to First Circuit and Southern District of New York cases in which cruise lines were required to communicate contract terms to passengers who booked through tour companies rather than directly. Bennett rejected that framing, noting that nothing supported the claim that Ziskind was providing a booking service to the rest of the group, and that the argument in any event skips over the preliminary and fundamental hurdle: the Barkers never bridged the doctrinal gap between cruise-ship tickets and bareboat charters place.
With the reasonably communicated test off the table, the Barkers had no remaining challenge to the forum-selection clause. Under Atlantic Marine Construction Co. v. U.S. District Court, Bennett wrote, a valid mandatory forum-selection clause pointing to a foreign forum must be enforced through forum non conveniens dismissal in all but the most exceptional cases — and the Barkers had conceded the clause was both mandatory and reasonable if enforceable against them.
Back in Santa Barbara, Peter Barker underwent five surgeries over two months after the accident, followed by months of additional physical therapy. The couple must now pursue their claims in Port Louis, Mauritius, against a company headquartered there.