The plaintiff alleged injuries during a cruise aboard the M/S Amsterdam, owned/operated by the defendants (collectively HALW). HALW argued that the plaintiff’s alleged damages should be limited pursuant to the Athens Convention 1974 because the ticket/contract of passage incorporated the Convention.

Held: Applying the two-part 'reasonable communicativeness' test, the ticket/contract of passage did not sufficiently inform the plaintiff of the limitation of liability.

As to the first prong ('physical characteristics'), the Court noted that while the contract of passage specifically noted and directed the passenger to five discrete provisions that might limit rights to sue, this express notice/cross-reference did not direct the passenger to the clause incorporating the Athens Convention limitation of liability. Likewise, the heading of the relevant provision was phrased 'Governing Law; Transferability; Separability' and did not mention or otherwise suggest limitation of liability.

Further, under the second prong ('surrounding circumstances'/'extrinsic factors'), the Court held that merely referencing/incorporating the Athens Convention limitation of liability does not reasonably inform the passenger of the applicable limitation. In order to determine the actual applicable limit, a passenger would have to undertake the following 'tortured' line of reasoning/analysis: (i) look up the Athens Convention; (ii) research its amendments; (iii) find the stated liability limitation of '46,666 units of account per carriage'; (iv) cross-reference another section of the Convention to learn that a '"Unit of Account" is the same as a "Special Drawing Right as defined by the International Monetary Fund"'; and (v) check a financial source to convert that unit into a currency valuation s/he could understand, calculated on the expected date of judgment. Likewise, the Court noted that a reference to 'special drawing rights' does not its face indicate to a lay person a monetary limitation. Additionally, the Court found that the contract included 'hedging' language indicating that the Athens Convention might or might not apply; and that references to the conditional application of federal maritime and Washington State law would add further confusion as to whether the Athens Convention applies, resulting in another 'disincentive' for the passenger to determine the actual limitation applicable.