MIAMI – Royal Caribbean has filed a motion to dismiss the class action filed against it by a Canadian passenger upset at how the cruise line handled communication when Hurricane Harvey forced the cruise to be canceled.

The Nov. 17 motion to dismiss states, “The claims must be dismissed because plaintiff agreed, through paragraph 6(a) of the ticket contract, that she would not assert claims against Royal Caribbean arising from those decisions.”

According to her original Sept. 28 complaint filed in the U.S. District Court for the Southern District of Florida, Nikki McIntosh had been booked on a cruise aboard the Liberty of the Seas that was supposed to depart Galveston on Aug. 27. The cruise was canceled altogether. Hurricane Harvey struck on Aug. 25 and lingered, with record rainfall and flooding, causing billions in damages and the deaths of more than 70 people.

McIntosh left her home in Canada and flew to Texas where she rode out the storm and its aftermath for days, fearful that if she didn’t, she would lose her refund, she claims. The complaint filed by McIntosh states, in part, “...RCCL forced hundreds of would be passengers, including children and the elderly, to be subjected to catastrophic flooding and potential loss of life.” The suit states Royal Caribbean would not offer any refund and would not cancel the voyage until after the original departure date.

In its motion to dismiss, RCC maintains that because McIntosh received her ticket more than 49 days before departure she should have been aware that “The first page of the booklet informed plaintiff that her cruise ticket contract was contained within the booklet, that the cruise ticket contract limited her rights, and that it was important that she read it, paying particular attention to the paragraph that contains the class action waiver. The first page of the cruise ticket contract, itself, contained the same warning."

McIntosh is represented by Marc E. Weiner, Jason R. Margulies and Michael A. Winkleman of Lipon, Margulies, Alsina and Wikleman in Miami. RCCL is represented by Scott Daniel Ponce of Holland & Knight.

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