[No. 79529-1. En Banc.]
Argued November 27, 2007. Decided March 13, 2008.
[1] Judgment Summary Judgment Review Standard of Review. A summary judgment is reviewed de novo, applying the standard of CR 56(c). [2] Judgment Summary Judgment Determination Discretionary Rulings Review Standard of Review. A trial court's discretionary rulings made in the course of a summary judgment proceeding generally are reviewed under an abuse of discretion standard. [3] Courts Judicial Discretion Review Standard of Review. A trial court's discretionary rulings generally are reviewed under an abuse of discretion standard. [4] Pleading Defenses Affirmative Defense Motion To Strike Review Standard of Review. A trial court's denial of a motion to strike an affirmative defense is a discretionary ruling that is reviewed for an abuse of discretion. [5] Pleading Defenses Affirmative Defense Waiver Untimely Answer. An affirmative defense is not necessarily waived merely because it is pleaded in an untimely answer. [6] Courts Jurisdiction Consent Agreement to Venue Enforcement Waiver Untimely Pleading Prejudice No Effect on Plaintiff's Ability To Refile. A plaintiff is not prejudiced by a defendant's tardy assertion of a contractual forum selection defense if, under the circumstances, the plaintiff would have been time barred from refiling the action in the correct forum even if the defense had been timely raised. [7] Judgment Summary Judgment Review Matters Considered Evidence Called to Trial Court's Attention Affidavit or Declaration Motion To Strike Review Standard of Review. A trial court's decision on a motion to strike a declaration or affidavit containing allegedly inadmissible evidence is reviewed for an abuse of discretion. [8] Courts Stare Decisis Trial Court Decisions Citation to Trial Court. A litigant is not precluded from citing an unpublished trial court decision to another trial court, which the court can be presumed to know is not precedential. [9] Judgment Summary Judgment Findings of Fact Conclusions of Law Necessity. Findings of fact and conclusions of law are inappropriate on summary judgment. [10] Courts Jurisdiction Consent Agreement to Venue Enforcement Third Party. A contractual forum selection clause is not binding on a third party who is not a party to the contract, who has not agreed to be bound by the contract, and who is not otherwise subject to the contract on some alternative basis, such as a third party beneficiary theory. [11] Husband and Wife Loss of Consortium Right of Action Independent Right. A loss of consortium claim against a party arising from an injury to the claimant's spouse is separate and independentnot derivativeof any personal injury claim the spouse may have against the party and may be brought independently of the spouse's claim. [12] Limitation of Actions Husband and Wife Loss of Consortium Accrual of Cause Time of Injury. A loss of consortium action accrues when the claimant first experiences injury due to loss of consortium, not when the spouse is injured. [13] Husband and Wife Loss of Consortium Right of Action Procedural Bar to Spouse's Right of Action Effect. A loss of consortium claim is not barred simply because no action can be brought by the injured spouse. [14] Admiralty Cruise Ships Passenger Contracts Forum Selection Clause Applicability Loss of Consortium Claim Spouse Not Bound by Contract. A loss of consortium claim against a cruise ship company arising from an injury to the claimant's spouse aboard ship is not subject to a forum selection clause in the cruise ship passenger contract if the claimant is not in any manner subject to or bound by the passenger contract. [15] Admiralty Cruise Ships Passenger Contracts Forum Selection Clause Governing Law In General. Federal law governs cruise ship passenger contracts and the enforceability of forum selection clauses in those contracts. [16] Courts Jurisdiction Consent Agreement to Venue Validity Burden of Proof. A party challenging the enforceability of a contractual forum selection clause bears the heavy burden of establishing that enforcement of the clause would be unreasonable. [17] Courts Jurisdiction Consent Agreement to Venue Validity Nonnegotiated Contract. A forum selection clause may be enforced even if it is in a standard form consumer contract not subject to negotiation. [18] Admiralty Cruise Ships Passenger Contracts Forum Selection Clause Validity Fundamental Fairness Factors. A forum selection clause in a cruise ship passenger form ticket contract is subject to judicial scrutiny for fundamental fairness. Factors considered in assessing for fundamental fairness include whether there is any indication that the selected forum was chosen to discourage legitimate complaints, whether there is any evidence of fraud or overreaching, and whether the passengers were sufficiently on notice of the clause and had the option of rejecting it. [19] Courts Jurisdiction Consent Agreement to Venue Validity Test. A contractual forum selection clause can be found to be unenforceable if the party challenging the enforceability of the clause establishes that the contractually selected forum is so unfair and inconvenient as to essentially deprive the plaintiff of his or her day in court or that enforcement would contravene a strong public policy of the state where the action is filed. [20] Admiralty Cruise Ships Passenger Contracts Validity Fundamental Fairness "Reasonable Communicativeness" Test. Under the "reasonable communicativeness" test for determining the fundamental fairness of a limitation in a cruise ship contract, a court engages in a two-part analysis that considers (1) whether the physical characteristics of the contract reasonably communicate the existence of the terms and conditions at issue and (2) whether the circumstances surrounding the purchase of the passenger ticket and contract and subsequent retention thereof allowed the passenger to become meaningfully informed of the contract terms. Whether the provision is reasonably communicated is a question of law for the court. Considerations under the first prong of the test include the conspicuousness of the provision, font size, clarity of the term, and the ease with which a passenger can read the provision. The primary consideration of the second part of the test is whether the passenger had an opportunity to become meaningfully informed of the contract terms. In determining whether the passenger had a reasonable time to review the contract terms, considerations include whether the passenger retained the contract after boarding ship and whether any delay in the passenger's obtaining the ticket and contract was of the passenger's own doing. [21] Admiralty Cruise Ships Passenger Contracts Forum Selection Clause Enforceability "Saving to Suitors" Clause Effect. The "saving to suitors" clause of 28 U.S.C. § 1333(1) does not entitle a cruise ship passenger to a state court remedy for an injury occurring aboard ship if a valid and enforceable forum selection clause in the passenger contract specifies a federal forum. [22] Appeal Assignments of Error Argument Authority Necessity. An appellate court may decline to consider an argument unsupported by authority. [23] Admiralty Cruise Ships Passenger Claims Governing Law. Admiralty law governs personal injury and contract disputes between passengers injured on cruise ships and the cruise ship companies. [24] Admiralty Jurisdiction Torts Committed at Sea. Federal courts have admiralty jurisdiction over torts committed and resulting injuries occurring solely at sea. STEPHENS, J., did not participate in the disposition of this case. Nature of Action: Cruise ship passengers who allegedly contracted a gastrointestinal disease while on the cruise sought damages from the cruise ship line for negligence, breach of contract, and fraud. The spouse of one of the passengers also sought damages for loss of consortium. The form passenger contract that the passengers received after booking their cruise contained a forum selection clause designating the United States District Court for the Western District of Washington as the chosen forum for all lawsuits arising under the contract. The defendants asserted the forum selection clause, improper venue, and other contract limitations as affirmative defenses. Superior Court: After denying the plaintiffs' motion to strike the affirmative defenses, the Superior Court for King County, No. 05-2-10552-6, Julie Spector, J., on June 16, 2005, entered a summary judgment in favor of the defendants. Court of Appeals: The court affirmed the judgment at 136 Wn. App. 110 (2006), holding that federal law governed the issues raised, that the forum selection clause in the cruise ship contract is valid and enforceable, and that the trial court did not abuse its discretion by refusing to strike the defendants' affirmative defenses or their attorney's declaration. Supreme Court: Holding that the trial court did not abuse its discretion by refusing to strike the defendants' affirmative defenses or their attorney's declaration, that the forum selection clause in the cruise ship contract is valid and enforceable, and that the passengers were not entitled to file their action in state court under the federal saving to suitors clause, but that the spouse's loss of consortium claim is not subject to the forum selection clause, the court affirms the decision of the Court of Appeals and the judgment in part, reverses them in part, and remands the loss of consortium claim to the trial court for further proceedings. Noah C. David- (of In Pacta, PLLC), for petitioners. John P. Hayes- and Jeremy H. Rogers- (of Forsberg & Umlauf, PS), for respondents. Bryan P. Harnetiaux- on behalf of Washington State Trial Lawyers Association Foundation, amicus curiae. Stephen M. Rummage-, Kristina S. Bennard-, Lawrence W. Kaye-, Gerald L. Gorman-, and Aksana Moshiav- on behalf of Cruise Line International Association, amicus curiae. En Banc Ά1 MADSEN, J. Petitioners Jack Oltman and his mother Bernice Oltman FACTS Ά2 Jack Oltman booked a cruise on the luxury cruise ship ms Amsterdam through Vacations to Go in Houston, Texas, on March 18, 2004, 13 days before the ship was to sail from Valparaiso, Chile, to San Diego, California. Jack and Bernice each received a "Cruise and CruiseTour Contract," and a "Cruise Ticket." Ά3 Although Jack and Bernice have not submitted complete copies of their travel documents, they did submit copies of their Cruise Tickets. An exemplar of the complete travel documents was submitted by Holland America. Ά4 The ms Amsterdam was scheduled to depart from Valparaiso on March 31, 2004, and arrive in San Diego at 8 a.m. on April 17, 2004. Jack and Bernice boarded the ship March 31. Sometime after they boarded, a severe gastrointestinal disease broke out and infected a number of passengers on board, resulting in an announcement about the illness by the ship's captain and issuance of a health notice. The Oltmans maintain that because none of the passengers were quarantined, the virus continued to be transmitted from passenger to passenger. Toward the end of the cruise, Jack and Bernice allege, they contracted the gastrointestinal illness and began to experience severe symptoms. Although the exact dates of the onset of their illnesses have not been established, the record shows that on April 16, 2004, each consulted with the ship's medical staff. Insurance claim forms in connection with these consultations show that Jack's visit was a "followup exam" for gastritis, Clerk's Papers (CP) at 45, and that Bernice's visit was a "consultno exam" and that she was diagnosed with gastroenteritis, CP at 46. Ά5 On March 30, 2005, plaintiffs Jack, Bernice, and Susan Oltman filed suit in King County Superior Court against Holland America. Jack and Bernice asserted claims of negligence, breach of contract, and fraud. Susan asserted a claim for loss of consortium. The plaintiffs served Holland America on April 1, 2005. Thirty-one days after service of the complaint, on May 2, 2005, Holland America served their answer (filed April 29, 2005) on the Oltmans, past the 20-day time limit of CR 12(a)(1) for serving an answer. In the answer, Holland America asserted the forum selection clause, improper venue, and other contract limitations as affirmative defenses. The plaintiffs filed a motion to strike the affirmative defenses, claiming that an affirmative defense is waived when asserted in an untimely answer. The trial court denied the motion. Holland America then moved for summary judgment based solely on the forum selection clause. The trial court granted the motion. The Court of Appeals affirmed. Oltman v. Holland Am. Line USA, Inc., 136 Wn. App. 110, 148 P.3d 1050 (2006). The Oltmans' petition for review was granted. ANALYSIS Ά7 The first issue is whether, as the Oltmans claim, Holland America waived its affirmative defenses. There is no dispute that Holland America's answer to the complaint was served 31 days after service of the complaint, 11 days beyond the 20-day period allowed under CR 12(a)(1). The Oltmans ask the court to hold that affirmative defenses are waived if they are asserted in an untimely answer and the late assertion causes actual prejudice to the plaintiff. They claim they were prejudiced because if the forum selection clause defense had been raised in a timely answer, then they would have been able to refile their complaint in federal court in conformity with the forum selection clause within the one-year contractual limitations period. Ά8 The Court of Appeals held that the waiver issue was not preserved because the plaintiffs did not claim prejudice in the trial court. Oltman, 136 Wn. App. at 115. However, contrary to the Court of Appeals' view, the Oltmans did claim prejudice in response to Holland America's motion for summary judgment. Then, as now, they argued prejudice resulting from assertion of the forum selection clause defense in the late answer. Ά11 As Holland America maintains, a number of federal courts hold that an affirmative defense is not waived merely because it is asserted in a late response. E.g., Breland v. ATC Vancom, Inc., 212 F.R.D. 475, 477 (E.D. Pa. 2002) (rejecting plaintiffs' argument that the defendant waived the right to assert a defense of improper venue when the defendant filed its response to the complaint 11 days late); Foss v. Klapka, 95 F.R.D. 521, 522 (E.D. Pa. 1982) (defense of lack of personal jurisdiction is not waived when asserted in the first response to a complaint filed over 20 days after service of the complaint). Some courts have concluded, to the contrary, that an affirmative defense is waived if asserted in an untimely response. E.g., Granger v. Kemm, Inc., 250 F. Supp. 644 (E.D. Pa. 1966) (answer under Fed. R. Civ. P. 12(a) is required within 20 days after service of the complaint and unless an objection to venue is made either in the answer or by motion within this 20-day period, the objection to venue is waived; defendant's motion to dismiss on improper venue grounds was waived where it was filed 55 days after service of the complaint). But a leading treatise notes that the conclusion that a defense of improper service or venue is waived if asserted in an untimely response "is premised on an overly strict interpretation" of the rules, which do not provide for waiver in these circumstances. 5C CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1391, at 519 (3d ed. 2007). The treatise notes, "[t]here do not appear to be any recent cases applying the Rule 12(a) benchmark for waiver." Id. at 519-20. Ά12 Nevertheless, Amicus Curiae Washington State Trial Lawyers Association Foundation (WSTLAF) argues, in support of the Oltmans' claim, that waiver should be found if an affirmative defense is filed in a late answer and the delay causes actual prejudice to the plaintiff, adding that this principle should be applied where the defendant knows or should know that prejudice would result. WSTLAF premises its argument on Lybbert v. Grant County, 141 Wn.2d 29, 1 P.3d 1124 (2000), where the plaintiffs properly filed a summons and complaint but failed to serve it correctly on the defendant Grant County. Ά13 We reasoned that under the common law doctrine of waiver, waiver of affirmative defenses can occur under certain circumstances in two ways: if the defendant's assertion of the defense is inconsistent with the defendant's previous behavior and if defendant's counsel has been dilatory in asserting the defense. Id. at 38-39. We found waiver of the affirmative defense of insufficiency of service of process because the county engaged in conduct inconsistent with asserting the defense and was dilatory in filing its answer. Id. at 41-45; see also King v. Snohomish County, 146 Wn.2d 420, 424, 47 P.3d 563 (2002). Ά14 WSTLAF argues the dilatory defense prong of Lybbert should be applied here and Holland America should be deemed to have waived the forum selection clause defense if its delayed answer resulted in actual prejudice to the Oltmans. Ά16 Moreover, as Holland America correctly argues, the timing of the complaint in state court left too little time to correct the filing mistake in any event. The 20-day period to file the answer ended April 21, 2005, since the complaint was served April 1. Even if the alleged injuries did not occur until the very last day of the cruise, April 17, Ά17 We hold that the trial court did not abuse its discretion in denying the motion to strike the affirmative defenses. Ά18 The next issue is whether the trial court abused its discretion when it denied the Oltmans' motion to strike a declaration submitted by one of Holland America's attorneys. The attorney stated that he had been counsel or cocounsel in a number of cases where the same forum selection clause at issue here was found valid by the courts. He cited the cases and appended copies of the decisions as evidence that other courts had found the clause valid. Some of the decisions were orders from King County Superior Court, which are unpublished, and others were unpublished decisions from federal district court. The Oltmans contend citation and inclusion of the unpublished decisions was improper and prejudicial because they were meant to influence the trial judge to take the same position as her judicial colleagues. They seek reversal and remand. Ά21 Like the Court of Appeals, we have disapproved citing unpublished decisions. Kitsap County v. Allstate Ins. Co., 136 Wn.2d 567, 577 n.10, 964 P.2d 1173 (1998) (trial court decisions cited to this court); Dahl-Smyth, Inc. v. City of Walla Walla, 148 Wn.2d 835, 839 n.4, 64 P.3d 15 (2003) (unpublished Court of Appeals opinions are not precedential in the appellate courts). Ά22 Plaintiffs cite no relevant authority for the proposition that it is improper to cite unpublished opinions to a trial court. Insofar as the analysis in another trial judge's decision might be helpful, there is no rule or precedent that bars its consideration by a trial judge. Further, trial judges can be presumed to know that other trial court rulings are not precedential. Ά23 The trial court did not abuse its discretion in declining to strike the declaration citing unpublished trial court decisions. Ά25 The Court of Appeals affirmed the trial court's dismissal, reasoning that although loss of consortium is not a derivative claim, an element of the loss of consortium cause of action is the tort committed against the spouse who was injured. Oltman, 136 Wn. App. at 126 (quoting Conradt v. Four Star Promotions, Inc., 45 Wn. App. 847, 853, 728 P.2d 617 (1986)). The court also reasoned that the cruise contract states that it applies to any dispute or matter arising under or in connection with or incident to the contract and the cruise, and said that Susan's claim is not separate from the alleged injury to Jack Oltman while on the cruise but instead arises under and in connection with the cruise. Id. The court held the contract, and thus the forum selection clause, applies to her. Id. Ά28 Holland America relies, however, on federal cases holding that spouses of passengers injured on a ship were bound by the terms of cruise contracts. All of the cases that Holland America relies on rest on the analysis in Miller v. Lykes Brothers Steamship Co., 467 F.2d 464 (5th Cir. 1972), in which the court held that a one-year contractual time bar in a passenger contract that barred a wife's claim operated equally to bar the husband's claim for loss of consortium. The court noted that the husband's losses may have conceptually occurred subsequent to his wife's injuries, and that courts have found a spouse's loss of consortium claim to be separate from the other spouse's physical injury, i.e., a distinct cause of action. Id. at 466. But the court's analysis centered on contract interpretation of the term "injury" in the contractual limitation provision that was at issue. The court reasoned that, under a commonsense reading, claims for bodily injury as well as claims derivative of that bodily injury must be filed within a year from " 'such injury.' " Id. at 467. The court said that "[f]ine distinctions between claims for bodily injury and claims for loss of services caused by the injury only obscure the plain meaning of the contract and leave the parties in doubt as to their contractual rights." Id. Ά29 However, in Miller, both spouses were passengers subject to the contract. Ά30 Because all of the cases ultimately rest on Miller, and all but one involve situations where both spouses were parties to the passenger contracts, they are not persuasive on the issue herewhether a spouse who is a third party vis-a-vis a cruise contract and who asserts a separate, independent claim (not a derivative claim) for loss of consortium is bound to the forum selection clause in the contract. Ά31 We hold that Susan Oltman's loss of consortium claim is not subject to the forum selection clause and therefore the trial court erred in dismissing on summary judgment her claim based on the forum selection clause. We express no opinion on the issue whether the loss of consortium claim is nevertheless barred under federal maritime law because the issue whether loss of consortium damages is a cognizable claim under federal law was not part of the summary judgment proceedings. Ά32 Susan Oltman's loss of consortium claim is remanded to the trial court for further proceedings. Ά36 Considerations under the first prong of this test include the conspicuousness of the clause at issue, font size, clarity of the term, and the ease with which a passenger can read the provisions. Wallis, 306 F.3d at 836. Ά37 Here, the index to the travel documents lists "contract" and directs the passenger to read it. The first page of the contract itself conspicuously states in large, bold capital letters that the document is a binding contract. The same designation appears later in the document. The designated "Passenger's Copy" states that it embodies "Terms and Conditions." CP at 304. Ά38 The first prong of the test is satisfied. The second prong concerns circumstances surrounding the passenger's purchase of the ticket and subsequent retention. The question here is whether the passenger had the opportunity to become meaningfully informed of the contractual limitations. Wallis, 306 F.3d at 836. For example, in a case where the passenger was issued a ticket bearing the terms of limitations just moments before boarding and then the entire ticket was collected upon boarding, the court held that possession of the ticket for such a short time was insufficient to give reasonable notice that the ticket contained important contractual limitations. Ward, 273 F.3d at 524-25. Ά39 The Oltmans maintain that viewing the facts in the light most favorable to them, the nonmoving parties, Jack and Bernice did not receive their travel documents, including the cruise contracts, until they boarded the ship for departure. The fact that the passenger held the ticket a short time before boarding is not dispositive, however. Courts have held that passengers had sufficient notice of limitations clauses in cruise contracts where the passenger received them a short time before sailing provided they had the opportunity to review them. E.g., Roberson v. Norwegian Cruise Line, 897 F. Supp. 1285 (C.D. Cal. 1995); Hodes, 858 F.2d 905. The focus is not so much on the length of time the passenger had before or after the cruise, but instead on whether the passenger had a reasonable time to review the ticket contract terms. Ά40 Both Bernice and Jack declared they had no opportunity to review the documents, however. But no explanation is offered as to why they had no opportunity. Moreover, the Oltmans have offered no objective evidence that if they had read the contract, they would have canceled their cruise. And most significantly, as Holland America contends, the Oltmans' argument that the second prong of the test is not met is based on circumstances of their own creation. Jack Oltman did not book the cruise until 13 days before the ship sailed. Ά41 Casavant v. Norwegian Cruise Line, Ltd., 63 Mass. App. Ct. 785, 829 N.E.2d 1171 (2005), on which the Oltmans heavily rely, is distinguishable. In Casavant the plaintiffs bought their tickets a year before departure, but the cruise line delayed sending the tickets and the plaintiffs received them 13 days before sailing. The cruise line caused the delay, not, as in this case, the plaintiffs. Also, in Casavant the plaintiffs cancelled the trip under extraordinary circumstances because they were scheduled to depart right after the September 11 terrorist attacks and reasonably feared traveling. Id. at 799. Here, in contrast, Jack and Bernice Oltman took the cruise and now seek to set aside the contact after it has been fully performed. Ά42 The second prong of the reasonable communicativeness is satisfied, especially because delay in obtaining the tickets was plaintiffs' doing. Ά43 The Oltmans also contend that the forum selection clause is against public policy and so seriously inconvenient as to deprive them of their day in court. Ά44 However, at the heart of this complaint is the contractual one-year limitations period in the cruise contract. It is not the forum selection clause so much as the shortened time limit that prevented the Oltmans from proceeding in federal court after their dismissal in state court. Ά45 Moreover, the Oltmans' argument that the forum selection clause here does not satisfy the rationales in Carnival Cruise Lines is not persuasive. In Carnival Cruise Lines the Court rejected the Ninth Circuit's reasoning that a nonnegotiated forum selection clause in a cruise contract is never enforceable because it is not the subject of bargaining. The Court identified three rationales that supported enforcing forum selection clauses despite the lack of negotiation. The Court first observed that a cruise line has a special interest in limiting the forums in which it could be sued because a cruise ship typically carries passengers from many locations and, following a mishap, could be subjected to suit in several forums. Carnival Cruise Lines, 499 U.S. at 594. The Oltmans say, however, that Holland America would have no financial savings because both forums mentioned in the forum selection clause are in the same city. But this argument fails to account for the fact that there are innumerable other potential forums, such as the home states of all the other passengers and foreign countries such as Chile. Ά46 The Court also reasoned in Carnival Cruise Lines that a forum selection clause eliminates confusion about where suit must be brought, thus saving time and expense and conserving judicial resources. Id. The Oltmans say that the forum selection clause makes things more confusing, not less, because it attempts to limit plaintiffs to one city, and requires claims to first be filed in federal court and then, only if the federal court lacks jurisdiction, filed in state court. But the "confusion" that the Oltmans refer to is of their own doing. They failed to comply with the forum selection clause and failed to file in the federal court in the first place. Ά47 Finally, the Court in Carnival Cruise Lines reasoned that passengers benefit because reduced fares reflect savings enjoyed by the cruise line as a result of limiting the forums in which it could be sued. Id. The Oltmans say, however, that by filing in state court and abiding by the contract, they kept the cruise line's costs down. This argument reflects the Oltmans' erroneous view that they were entitled to file in state court under the savings to suitors clause and could do so and still comply with the forum selection clause. The savings to suitors clause, discussed below, does generally permit a plaintiff to bring in personam admiralty claims in state court, but the forum selection clause did not give the Oltmans the option of suing in state court at the outset. The Oltmans also seem to believe that Holland America must prove it is financially less burdensome to be sued in federal court than in state court. But again, this reasoning overlooks the fact that the more relevant comparison comes from all of the potential forums in which Holland America might be sued. In short, the Oltmans have not shown that the Court's rationales in Carnival Cruise Lines are inapplicable here. Ά48 The Oltmans have not established that the forum selection clause deprives them of their day in court and is against public policy. Ά49 We hold that the forum selection clause is valid and enforceable. The Oltmans have not overcome the presumptive validity of the clause. Ά51 The savings to suitors clause, 28 U.S.C. § 1333(1), states that "[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled." This provision enables a plaintiff to bring an admiralty or maritime claim in state court, i.e., the state and federal courts have concurrent jurisdiction. The United States Supreme Court has explained that "[t]racing the development of the clause since the Judiciary Act of 1789, it appears that the clause was designed to protect remedies available at common law . . . . Trial by jury is an obvious, but not exclusive, example of the remedies available to suitors." Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 454-55, 121 S. Ct. 993, 148 L. Ed. 2d 931 (2001) (citation omitted). Federal maritime law applies in state court, however. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628, 79 S. Ct. 406, 3 L. Ed. 2d 550 (1959). "[T]he 'saving to suitors' clause allows state courts to entertain in personam maritime causes of action, but in such cases the extent to which state law may be used to remedy maritime injuries is constrained by a so-called 'reverse-Erie' doctrine which requires that the substantive remedies afforded by the States conform to governing federal maritime standards." Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 222-23, 106 S. Ct. 2485, 91 L. Ed. 2d 174 (1986). Ά52 While the savings to suitors clause allows for concurrent state and federal jurisdiction over admiralty matters, the Oltmans cite no authority that supports their claim that they were entitled to file in state court under the savings to suitors clause despite the forum selection clause in the cruise contract. The forum selection clause required them to file in federal court in the first instance. Had they done so, the federal court would have jurisdiction and the exception in the forum selection clause providing for suit in the King County courts would simply not apply. The only way they make their argument at all is because they failed to comply with the contractual forum selection clause in the first place. Ά54 We hold that the Oltmans were required under the forum selection clause to bring their suit in federal court, which has subject matter jurisdiction over admiralty claims. We reject their contention that they could ignore the forum selection clause and file in state court under the savings to suitors clause, and by this device take advantage of the exception in the forum selection clause permitting them to file in state court if the federal court lacked jurisdiction. CONCLUSION Ά55 We agree with the Court of Appeals that the trial court did not abuse its discretion in refusing to strike the answer and affirmative defenses and in refusing to strike the declaration of Holland America's attorney that contained citations to unpublished trial court decisions and copies of the decisions. We affirm the Court of Appeals' holding that the forum selection clause is valid and enforceable, and that the Oltmans could not file their suit in state court under the savings to suitors clause and thereby deprive the federal court of jurisdiction when the forum selection clause required them to file in federal court in the first place. We reverse the Court of Appeals' holding that Susan Oltman's loss of consortium claim is governed by the forum selection clause. Ά56 Accordingly, we affirm summary judgment in favor of Holland America on all issues except the loss of consortium claim. We reverse summary judgment on the loss of consortium claim and remand this claim to the trial court for further proceedings consistent with this opinion. ALEXANDER, C.J.; C. JOHNSON, SANDERS, CHAMBERS, OWENS, FAIRHURST, and J.M. JOHNSON, JJ.; and BRIDGE, J. PRO TEM., concur.