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4/8/2017 Study Aids Subscription | Book Preview 1/23 93 CHAPTER 4 Janet S. Kellerman and her spouse, Gregory K. Kellerman, commenced an action against Inter­Island Launch d/b/a Prince of Whales Whale Watching (Inter­Island) and Bo J. Garrett in the federal district court for the Western District of Washington (located in Seattle). The plaintiffs claimed that Ms. Kellerman sustained injuries during a whale watching tour that departed from Victoria, British Columbia. The defendants moved to dismiss for improper venue arguing that the plaintiffs signed a release containing a forum selection clause and choice of law provision requiring that any suit arising from the tour be brought in British Columbia. The plaintiffs claimed that they never signed such a release. The defendants brought a motion pursuant to Fed.R.Civ.P. 12(b)(3) to enforce a forum selection clause that they claim the plaintiffs signed. The plaintiffs purchased tickets for a three­hour whale watching tour on Inter­Island’s vessel, the Countess . Defendant Garrett, the skipper and guide for the Countess , intended to depart from Victoria and return to Victoria with no stops at any other ports. However, the Countess made an unanticipated stop at a dock in San Juan County, Washington after Ms. Kellerman sustained injuries. According to the plaintiffs, Ms. Kellerman’s injuries occurred after the Garrett turned toward the wake of a large yacht. Once the Countess docked in San Juan County, Ms. Kellerman was airlifted to Harborview Medical Center in Seattle and treated for her injuries. The plaintiffs initiated a tort action against the defendants in the Western District of Washington. However, the defendants argued that the plaintiffs had signed a release, which required that any suit resulting from the whale watching tour be brought in British Columbia. According to the defendants, all guests, including the plaintiffs, were required to review, complete, and sign a “Participant Agreement, Release, and Acknowledgement of Risk.” The defendants describe this document as a single­spaced document, printed with twelve­ point Times New Roman font on a single 11″ x 17″ sheet that is folded over like a booklet. The first page of the booklet included the title “Participant Agreement, Release, And Acknowledgement of Risk,” the acknowledgment and assumption of risk clauses, and a release of liability clause. The second page of the booklet contained an indemnification clause, an insurance clause, a forum selection clause, a choice of law provision, and a waiver clause. Neither the first nor the second page required a passenger’s signature or initials.
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