                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

JACK OLTMAN, individually and as         
Executor of the Estate of Bernice
Oltman; SUSAN OLTMAN,
              Plaintiffs-Appellants,           No. 07-35135
                v.
                                                D.C. No.
                                              CV-05-01408-JLR
HOLLAND AMERICA LINE, INC., a
Washington corporation; HOLLAND                  OPINION
AMERICA LINE—USA, INC., a
Delaware corporation,
            Defendants-Appellees.
                                         
        Appeal from the United States District Court
           for the Western District of Washington
         James L. Robart, District Judge, Presiding

                    Argued and Submitted
              July 9, 2008—Seattle, Washington

                     Filed August 19, 2008

       Before: Richard R. Clifton and N. Randy Smith,
     Circuit Judges, and Brian Sandoval,* District Judge.

                    Opinion by Judge Clifton




  *The Honorable Brian Sandoval, United States District Judge for the
District of Nevada, sitting by designation.

                               10985
10988        OLTMAN v. HOLLAND AMERICA LINE


                      COUNSEL

Noah C. Davis (argued), In Pacta, PLLC, Seattle, Washing-
ton, for the plaintiffs-appellants.

John P. Hayes (argued) and Paul S. Smith, Forsberg &
Umlauf, P.S., Seattle Washington, for the defendants-
appellees.
                 OLTMAN v. HOLLAND AMERICA LINE                   10989
                              OPINION

CLIFTON, Circuit Judge:

   Jack Oltman and his mother, Bernice Oltman,1 allege that
they both contracted a serious gastrointestinal illness on a
cruise ship operated by Defendants Holland America Line,
Inc. and Holland America Line—USA, Inc. (collectively,
Holland). Together with Jack’s wife Susan, they filed an
action against Holland in Washington state court, which later
dismissed the action based on a forum selection clause in the
cruise contract.2 The same day the state court dismissed the
action, the Oltmans filed an essentially identical action
against Holland in the federal court specified in the forum
selection clause. Holland moved for summary judgment,
arguing that the federal filing was too late based on a one-year
limitations clause contained in the cruise contract. The Olt-
mans objected, arguing, among other things, that their filing
in state court had been timely even though the one-year period
had expired prior to their federal filing. The district court
granted summary judgment on all claims in favor of Holland
after concluding the claims were time-barred under the con-
tract.

   The primary question presented by this appeal is whether
the contractual limitations period should have been equitably
tolled based on the timely filing of the state court action and
the prompt filing in federal court after the state action was
dismissed. We answer that question in the affirmative and
reverse.
  1
    Bernice passed away on September 19, 2006. Her interests in this law-
suit are now represented by Jack, as the executor of Bernice’s estate.
  2
    Because Jack, Bernice, and Susan Oltman share the same last name, in
this opinion they are identified by their first names.
10990             OLTMAN v. HOLLAND AMERICA LINE
I.       Background

   Jack booked a cruise for himself and his mother, Bernice,
on March 18, 2004. They boarded Holland’s ship, the MS
Amsterdam, in Chile less than two weeks later, on March 31,
2004, and arrived in San Diego, California, as scheduled on
April 17. They received their travel documents at the time
they boarded the ship in Chile.3

   The travel documents were contained in a travel booklet,
which included their itinerary, the contract governing the
cruise (the cruisetour contract), and cancellation information.
The contract began on page 11 of the booklet and stated that
it was “ISSUED SUBJECT TO THE TERMS AND CONDI-
TIONS ON THIS PAGE AND THE FOLLOWING PAGES.”
The contract advised the Oltmans to “READ TERMS AND
CONDITIONS CAREFULLY.” The contract noted that
“THIS DOCUMENT IS A LEGALLY BINDING CON-
TRACT” and included a forum selection clause stating that
any lawsuit arising out of the cruise or contract must be liti-
gated in the United States District Court for the Western Dis-
trict of Washington or, if that court lacked subject matter
jurisdiction, “in the courts of King County, State of Washing-
ton.”

   The contract also informed the Oltmans that “YOUR
ATTENTION IS ESPECIALLY DIRECTED TO” various
clauses in the contract, including clause A.3, which provided:

         3. Time Limits for Noticing Claims and Filing
         and Service of Lawsuits. In any case governed by
     3
    According to Jack, they received their travel documents either “six
days prior to the cruise[ ] or at the time [they] boarded the cruise ship in
Valparaiso, Chile.” Construing this evidence in the light most favorable to
the Oltmans, for purposes of this appeal we assume they received the
travel documents at the time they boarded the ship. See Olsen v. Idaho
State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).
              OLTMAN v. HOLLAND AMERICA LINE             10991
    46 United States Code Section 183b, which is a
    United States statute that permits any shipowner to
    limit the time during which a passenger may file a
    claim or commence suit against a shipowner, you
    may not maintain a lawsuit against us or the Ship for
    loss of life or bodily injury unless written notice of
    the claim is delivered to us not later than six (6)
    months after the day of death or injury, the lawsuit
    is commenced not later than one (1) year after the
    day of death or injury, and valid service of the law-
    suit on Owner, the HAL Company or the Ship, as
    applicable, is made within thirty (30) days following
    the expiration of that one-year period. For all other
    claims, including but not limited to claims for loss or
    damage to baggage, breach of contract, illness or
    death or injury, not governed by 46 United States
    Code Section 183b, you may not maintain a lawsuit
    against us or the Ship, nor will we or the Ship be lia-
    ble therefore, unless we are provided with written
    notice of claim within thirty (30) days after conclu-
    sion of the Cruise or Cruisetour, the lawsuit for such
    claim is commenced not later than one-year after
    conclusion of the Cruise or Cruisetour, and valid ser-
    vice of the lawsuit on Owner, the Ship or the HAL
    Company, as applicable, is made within thirty (30)
    days following the expiration of that one-year
    period.

   While on the cruise, Jack and Bernice allege that they con-
tracted “a severe gastrointestinal disease [that] broke out and
infected many of the passengers.” On April 16, 2004, the day
before the ship arrived in San Diego, Jack visited the ship’s
infirmary for “stomach discomfort.” That night, Jack “felt
much better.” The next morning, however, his “disposition
changed drastically” and he “fell horribly ill” with “pounding
in my head,” “aching throughout my body,” and “feelings of
being hot and cold” and “nauseas with diarrhea.” Jack and
10992          OLTMAN v. HOLLAND AMERICA LINE
Bernice continued to suffer from the “illness, its symptoms
and/or side effects” for more than a year.

   On March 30, 2005, shortly before expiration of the one-
year time limit set by the contractual provision quoted above,
the Oltmans, who were then residents of California, filed a
complaint against Holland in King County Superior Court. It
alleged, among other things, that Holland’s negligence led to
the illnesses of Jack and Bernice. The complaint also included
a claim by Susan for loss of consortium.

   Holland moved to dismiss that action on the ground that the
forum selection clause required the action to be filed in the
U.S. District Court for the Western District of Washington.
On August 12, 2005, the state trial court granted that motion.
The Oltmans appealed that state court dismissal, but to protect
themselves, they also filed the current action in the Western
District of Washington on the same day the state court action
was dismissed.

   That was, however, more than one year after Jack and Ber-
nice became ill and their cruise trip ended. Holland brought
a motion for summary judgment in federal district court on
the ground that the federal action was filed after the one-year
limitations period established by the contract. The district
court granted that motion with regard to the claims brought by
Jack and Bernice. The court concluded that the one-year limi-
tations period in the cruise contract was reasonably communi-
cated and was fundamentally fair, so it was effective and
barred the claims brought by Jack and Bernice, both of whom
were parties to the contract. The court denied summary judg-
ment on Susan’s loss of consortium claim, however, conclud-
ing that the contract, including its limitations clause, did not
apply to Susan, as she was not a party to the contract.

  Holland subsequently brought another motion for summary
judgment on Susan’s loss of consortium claim on a different
ground, arguing that her claim must be dismissed because
               OLTMAN v. HOLLAND AMERICA LINE             10993
Jack contracted his illness outside of United States territorial
waters while federal maritime law recognizes such a claim
only where the illness was contracted within territorial waters.
After that motion was filed but before it was resolved, the
Washington Court of Appeals, on appeal from the state trial
court’s dismissal, concluded that the cruise contract does
apply to Susan. See Oltman v. Holland Am. Line USA, Inc.,
148 P.3d 1050, 1058 (Wash. Ct. App. 2006), overruled in part
by 178 P.3d 981, 990, 995 (Wash. 2008). The district court
honored that ruling by granting Holland’s motion for sum-
mary judgment on Susan’s claim on collateral estoppel
grounds, holding that Susan’s loss of consortium claim, like
the claims of Jack and Bernice, was time-barred under the
contract. The court did not address Holland’s argument based
on the contention that Susan’s claim should not be recognized
because Jack did not become ill within U.S. territorial waters.

   The Oltmans later brought two separate motions, one each
under Rules 59 and 60(b) of the Federal Rules of Civil Proce-
dure, for the court to reconsider its summary judgment orders.
They argued that the limitations period should have been
equitably tolled and cited for the first time two cases in sup-
port of that argument: Burnett v. N.Y. Cent. RR. Co., 380 U.S.
424 (1965), and Berry v. Pac. Sportfishing, Inc., 372 F.2d 213
(9th Cir. 1967). The district court denied both motions.

  On February 26, 2007, the Oltmans appealed the district
court’s summary judgment orders and orders denying relief
under Rules 59 and 60(b). While this appeal was pending, the
Washington Supreme Court reversed the state court of
appeals’ decision that Susan is bound by the cruise contract,
held that the contract does not apply to Susan, and remanded
her loss of consortium claim to the King County Superior
Court. See Oltman, 178 P.3d at 990, 995. The state supreme
court, in effect, reached the same conclusion that the district
court reached when it first considered the issue. Because this
case was already on appeal, though, the district court has not
10994              OLTMAN v. HOLLAND AMERICA LINE
been able to revisit that question, and it is left for us to take
into account this subsequent development.

II.       Discussion

   The Oltmans seek reversal of the district court’s summary
judgment orders. They contend that the one-year limitations
clause in the contract is invalid because it was not reasonably
communicated and is fundamentally unfair. They further
assert that, even if the limitations clause is enforceable, the
limitations period should have been equitably tolled during
the pendency of the state court action. Lastly, the Oltmans ask
this court to remand Susan’s loss of consortium claim in light
of the Washington Supreme Court’s recent decision.

   We review a district court’s decision to grant summary
judgment de novo. Olsen, 363 F.3d at 922. Under Federal
Rule of Civil Procedure 56, we must determine whether,
viewing the evidence in the light most favorable to the non-
moving party, there are any genuine issues of material fact
and whether the district court correctly applied the relevant
substantive law. Id.; see generally Fed. R. Civ. P. 56.

A.        Validity of the One-Year Limitations Clause

     1.    Reasonable Communicativeness Test

   [1] This court employs the two-pronged “reasonable com-
municativeness test” to “determine under federal common law
and maritime law when the passenger of a common carrier is
contractually bound by the fine print of a passenger ticket.”
Wallis v. Princess Cruises, Inc., 306 F.3d 827, 835 (9th Cir.
2002). The first prong of the test “focuses on the physical
characteristics of the ticket” and requires courts to “assess
features such as size of type, conspicuousness and clarity of
notice on the face of the ticket, and the ease with which a pas-
senger can read the provisions in question.” Id. (internal quo-
tation marks and brackets omitted). The second prong
               OLTMAN v. HOLLAND AMERICA LINE             10995
“requires us to evaluate the circumstances surrounding the
passenger’s purchase and subsequent retention of the ticket/
contract,” including “the passenger’s familiarity with the
ticket, the time and incentive under the circumstances to study
the provisions of the ticket, and any other notice that the pas-
senger received outside of the ticket.” Id. at 836 (quotation
marks and emphasis omitted).

    [2] Jack and Bernice were given a travel booklet that
included their itinerary and the cruise contract. The table of
contents appears before the itinerary and lists four items,
including “CONTRACT (PLEASE READ),” which begins on
page 11. On the third page of the contract, the passengers’
cabin number is listed, under which the following appears:
“ISSUED SUBJECT TO THE TERMS AND CONDITIONS
ON THIS PAGE AND THE FOLLOWING PAGES. READ
TERMS AND CONDITIONS CAREFULLY.” The upper
right side of that page states “CRUISE AND CRUISETOUR
CONTRACT” and the word “CONTRACT” appears in large
print on the right margin of that page. The next page is enti-
tled “IMPORTANT NOTICE TO PASSENGERS” and states
that “THIS DOCUMENT IS A LEGALLY BINDING CON-
TRACT” and that “YOUR ATTENTION IS ESPECIALLY
DIRECTED TO CLAUSES A.1, A.3, . . . WHICH CON-
TAIN IMPORTANT LIMITATIONS ON YOUR RIGHT TO
ASSERT CLAIMS AGAINST US.” The top of the next page
says “IMPORTANT TERMS AND CONDITIONS OF
CONTRACT—READ CAREFULLY BEFORE ACCEPT-
ING.” The following page contains clause A.3, to which pas-
sengers are “especially directed,” and is entitled “Time Limits
for Noticing Claims and Filing and Service of Lawsuits.” That
clause clearly states that “you may not maintain a lawsuit
against us or the Ship for loss of life or bodily injury unless
. . . the lawsuit is commenced not later than one (1) year after
the day of death or injury.” Based on the physical characteris-
tics of the contract, the terms and conditions of the one-year
limitations clause are sufficiently conspicuous and meet the
first prong of the test. See Wallis, 306 F.3d at 835-36.
10996          OLTMAN v. HOLLAND AMERICA LINE
   [3] Regarding the Oltmans’ “purchase and subsequent
retention of the ticket/contract,” see id. at 836 (quotation
marks omitted), construing the evidence in their favor, they
received the travel booklet at the time of departure because
Jack purchased the tickets only thirteen days prior. Although
the Oltmans may not have read the terms and conditions
before departing, they were free to read them at their leisure
and presented no evidence that their travel booklets were
taken away from them during or after the cruise trip. Because
the Oltmans had the opportunity to read the contract at any
point before filing their first complaint, they had the “ability
to become meaningfully informed,” and the second prong of
the reasonable communicativeness test is met. See id. (empha-
sis and quotation marks omitted). Accordingly, we uphold the
district court’s decision that the limitations clause was reason-
ably communicated to Jack and Bernice.

  2.    Fundamental Fairness

   [4] Cruisetour contract clauses are also “subject to judicial
scrutiny for fundamental fairness.” Carnival Cruise Lines,
Inc. v. Shute, 499 U.S. 585, 595 (1991). Courts focus on
whether the clause was included because of “bad-faith
motive” and whether the clause was “a means of discouraging
cruise passengers from pursuing legitimate claims.” Id. Here,
there is no evidence that Holland included the limitations
clause out of bad faith or that the clause was intended to dis-
courage legitimate claims. Moreover, “Congress has . . . indi-
cated that [cruisetour] contracts may legally shorten the
limitations period to one year.” Dempsey v. Norwegian Cruise
Line, 972 F.2d 998, 999 (9th Cir. 1992) (per curiam).

   [5] In determining whether the clause is fundamentally fair,
this court also considers whether Holland obtained Jack’s and
Bernice’s “accession to the . . . clause by fraud or overreach-
ing.” Shute, 499 U.S. at 595. The Oltmans argue that Holland
“either induced Plaintiffs to enter into this contract based
upon the misrepresentations (that the trip was safe and enjoy-
                 OLTMAN v. HOLLAND AMERICA LINE                   10997
able) and the failure to disclose (that there had been at least
863 other cases of gastrointestinal illness aboard the [ship]
. . .) or [Holland] breached this covenant.” In order to estab-
lish fraudulent inducement, the Oltmans must show, among
other things, that Holland knew of the falsity and intended
that they rely on that falsity. See Webster v. L. Romano Eng’g
Corp., 34 P.2d 428, 430 (Wash. 1934). The Oltmans offer no
evidence establishing whether Holland intended that they rely
on the alleged misrepresentations or otherwise acted with
fraud. The limitations clause is therefore fundamentally fair,
and we uphold the district court’s conclusion that the one-year
limitations clause is valid and enforceable.

B.    Equitable Tolling of the Limitations Period

  The Oltmans contend that, even if the limitations clause is
enforceable, the district court erred in dismissing their claims
as time-barred because the limitations period should have
been tolled during the pendency of the state court action. The
Oltmans rely on Burnett v. N.Y. Cent. RR. Co., 380 U.S. 424
(1965), and Berry v. Pac. Sportfishing, Inc., 372 F.2d 213 (9th
Cir. 1967).4

   In Burnett, the plaintiff timely filed his action under the
Federal Employers’ Liability Act (FELA) in Ohio state court,
where the defendant moved to dismiss based on improper
venue. 380 U.S. at 424-25. Eight days after the state court dis-
missed the action on that ground, the plaintiff brought an
identical action in federal court. Id. at 425. Because the fed-
eral complaint was filed after the limitations period had
  4
    Although the Oltmans did not cite these cases in their summary judg-
ment papers, we consider all pertinent legal authority when conducting a
de novo review. See Thomas v. Or. Fruit Prods. Co., 228 F.3d 991, 995
(9th Cir. 2000) (noting that under de novo review, a court “consider[s]
anew both the legal and factual aspects of” a claim). Moreover, the Olt-
mans raised the issue of tolling in their summary judgment papers, in
some fashion at least, when they urged that “this suit was a continuation
of the state court action.”
10998          OLTMAN v. HOLLAND AMERICA LINE
expired, it was dismissed as untimely. Id. The dismissal was
affirmed on appeal, and the Supreme Court granted certiorari
to determine “whether petitioner’s suit in the Ohio state court
tolled the FELA statute of limitations.” Id. at 425-26.

   [6] The Supreme Court first examined FELA’s congressio-
nal intent, acknowledging that the “basic question to be
answered in determining whether, under a given set of facts,
a statute of limitations is to be tolled, is one ‘of legislative
intent whether the right shall be enforceable after the pre-
scribed time.’ ” Id. at 426 (ellipses and internal citation omit-
ted). The Court also observed the general policies underlying
statutes of limitations and equitable tolling, noting that stat-
utes of limitations “are primarily designed to assure fairness
to defendants” and to “promote justice by preventing surprises
through the revival of claims that have been allowed to slum-
ber until evidence has been lost, memories have faded, and
witnesses have disappeared.” Id. at 428 (quotation marks and
citation omitted). The Court also stated, however, that “[t]his
policy of repose . . . is frequently outweighed . . . where the
interests of justice require vindication of the plaintiff’s
rights.” Id. The Court observed that “[b]oth federal and state
jurisdictions have recognized the unfairness of barring a
plaintiff’s action solely because a prior timely action is dis-
missed for improper venue after the applicable statute of limi-
tations has run.” Id. at 430, 434 (“[B]oth Congress and the
States have made clear, through various procedural statutes,
their desire to prevent timely actions brought in courts with
improper venue from being time-barred merely because the
limitation period expired while the action was in the improper
court.”).

   [7] The Court ultimately concluded that the FELA statute
of limitations was tolled. Id. at 427-28. This decision “effectu-
ate[d] the basic congressional purposes” behind FELA. Id. at
427. The Court also reasoned that tolling applied because the
plaintiff “did not sleep on his rights but brought an action
within the statutory period in the state court.” Id. at 429. The
               OLTMAN v. HOLLAND AMERICA LINE               10999
Court noted that the plaintiff’s failure to file in federal court
was “not because he was disinterested, but solely because he
felt that his state action was sufficient.” Id. Further, the defen-
dant “could not have relied upon the policy of repose
embodied in the limitation statute, for it was aware that peti-
tioner was actively pursuing his FELA remedy; in fact, [the
defendant] appeared specially in the [state] court to file a
motion for dismissal on grounds of improper venue.” Id. at
430.

  In Berry, which the Oltmans also cite, the plaintiff brought
a claim for the wrongful death of her husband, which
occurred on the high seas. 372 F.2d at 213-14. The plaintiff
had filed a timely action in state court and later filed an
untimely claim in federal court, after realizing that the federal
court had exclusive jurisdiction over her claim. Id. This court
applied Burnett’s reasoning to conclude that the limitations
period was tolled during the pendency of the state action, not-
ing that “the claim certainly had not been allowed to slumber
until evidence had been lost, memories had faded, and wit-
nesses had disappeared” because the plaintiff “had been press-
ing her suit” in state court. Id. at 215. Because the state court
action “accomplished the purposes referred to in the Burnett
case, . . . the statute of limitations was tolled.” Id.

   [8] Holland argues on appeal that Burnett and Berry are
distinguishable because they dealt with statutory limitations
periods, while the limitations period in this case was “set by
contract.” Holland asks this court to instead follow Levick v.
Steiner Transocean Ltd., 377 F. Supp. 2d 1251, 1258 (S.D.
Fla. 2005), which concluded that “[t]he instant case is distin-
guishable from Burnett in that the limitations period at issue
arises out of a contract.” (Emphasis added). We note, how-
ever, that the court to which appeals from the Southern Dis-
trict of Florida are taken—the Eleventh Circuit—recently
described Levick’s distinction between statutory and contrac-
tual limitations periods to be “dubious” and “questionable”
and observed that it “had expressly rejected this distinction
11000          OLTMAN v. HOLLAND AMERICA LINE
in” a case that pre-dated Levick. See Booth v. Carnival Corp.,
522 F.3d 1148, 1151 n.4 (11th Cir. 2008) (noting that the
Eleventh Circuit had previously rejected Levick’s distinction
in Bailey v. Carnival Cruise Lines, Inc., 774 F.2d 1577, 1579
n.3 (11th Cir. 1985)).

   The Eleventh Circuit’s decision in Booth is also pertinent
because it addressed the very issue currently before us. Booth
concerned a wrongful death action that stemmed from a fatal
scuba diving accident that occurred while the decedent was a
passenger on a Carnival cruise ship. 522 F.3d at 1149. The
cruise contract contained clauses specifying a one-year limita-
tions period and designating the Southern District of Florida
as the appropriate forum. Id. The plaintiff, Victor Booth, as a
personal representative of the decedent’s estate, filed a timely
action against Carnival in state court where it was dismissed
for improper venue. Id. at 1149-50. More than five months
after filing the state court complaint, Booth filed an identical
action in the proper federal court, after the limitations period
had expired. Id. at 1150. Carnival challenged the federal com-
plaint as untimely, but the district court ruled that “the con-
tractual limitation period was subject to equitable tolling.” Id.

   On appeal, the Eleventh Circuit concluded that “Burnett’s
reasoning extends beyond the FELA context and sheds impor-
tant light on the instant case.” Id. at 1151 n.4. The court noted
that, although the Burnett Court examined the legislative
intent behind FELA, “the Court did not limit its analysis to a
FELA-specific inquiry; rather, the Court articulated several
general principles that supported equitable tolling under the
circumstances.” Id. at 1151 (footnote omitted). Because Booth
“timely filed suit in a state court,” the Eleventh Circuit con-
cluded that “Booth in no way slept on his claims.” Id. at 1152.
Further, the court stated that, “[e]ven though Booth filed the
instant federal suit after the contractual limitation period had
run, Carnival was aware within the limitation period that
Booth was actively pursuing his cause of action.” Id. Finally,
the court observed that the “underlying policy of repose . . .
               OLTMAN v. HOLLAND AMERICA LINE              11001
is not violated by equitable tolling in this case” because
“Booth diligently pursued his claim.” Id. at 1152-53. The
Eleventh Circuit therefore “equitably tolled the parallel fed-
eral action during the pendency of the state suit.” Id. at 1153.

   We conclude, like the Booth court, that Burnett guides our
decision in the present case. Burnett articulated general prin-
ciples concerning equitable tolling and statutes of limitations
that are applicable to this case. Further, we previously noted
that “[e]quitable tolling is routinely held to be proper where,
as here, a claimant filed suit in a venue without jurisdiction
over the claim.” Sloan v. West, 140 F.3d 1255, 1262 (9th Cir.
1998) (applying equitable tolling to Title VII discrimination
claims).

   [9] Holland acknowledged that it would not be prejudiced
by a decision to toll the limitations period. The Oltmans did
not sleep on their claims, but brought a timely action in state
court. See Burnett, 380 U.S. at 429. Holland was served pro-
cess and notified of the claims on a timely basis. Holland was
aware that the Oltmans were actively pursuing their claims
and even “appeared specially in the [state] court to file a
motion for dismissal on grounds of improper venue.” See id.
at 430. Like in Burnett, the Oltmans’ failure to file suit in fed-
eral court was “not because [they were] disinterested, but
solely because [they] felt that [their] state action was suffi-
cient.” See id. at 429. Further, as the Oltmans note, during the
state court hearing on Holland’s motion to dismiss the origi-
nal complaint, Holland’s counsel stated his understanding that
the Oltmans could “refile in federal court.” Had Holland
removed the case to federal court rather than moved to dis-
miss it, the timeliness of the Oltmans’ claims would have
been preserved. Under the circumstances of this case, where
the Oltmans’ timely state court complaint was dismissed for
improper forum, they then promptly filed in federal court, and
Holland is not prejudiced by tolling the limitations period, we
hold that the policy of repose is outweighed by the interests
of justice and that the limitations period should have been
11002           OLTMAN v. HOLLAND AMERICA LINE
equitably tolled. See Burnett, 380 U.S. at 428, 434-35; Booth,
522 F.3d at 1152-53. We therefore reverse the district court’s
dismissal of the claims via summary judgment as time-barred.5

C.     Loss of Consortium Claim

   Even if Susan’s claims were deemed subject to the one-
year limitations period, those claims would similarly be enti-
tled to equitable tolling. In light of the subsequent reversal by
the state supreme court, Holland acknowledges that the deci-
sion of the state court of appeals, on which the district court
expressly relied in granting summary judgment to Holland on
Susan’s claim, is no longer good law, such that Susan is not
subject to the one-year contractual limitations period in any
event. We agree. Summary judgment on that basis must be
reversed.

   [10] Holland argues that we should affirm the judgment
against Susan’s claim on other grounds, however, offering to
us the argument that was presented to but not ruled upon by
the district court, that Susan’s claim cannot be recognized
because Jack became ill outside of U.S. territorial waters.
Because the district court did not address the merits of this
argument and the Oltmans’ other claims have been revived,
we decline the invitation to take up Holland’s argument at this
time, reverse the district court’s summary judgment as to
Susan’s loss of consortium claim based on the purportedly
untimely filing, and remand that claim to the district court for
further consideration.

III.    Conclusion

  Under the circumstances of this case, equitable tolling
applies and the Oltmans’ claims were not untimely. We there-
  5
   Because we reverse the district court’s summary judgment, we need
not and do not decide whether the Oltmans were entitled to relief under
Federal Rules of Civil Procedure Rules 59 or 60(b).
              OLTMAN v. HOLLAND AMERICA LINE             11003
fore reverse the district court’s orders granting summary judg-
ment on the Oltmans’ claims and remand the claims to the
district court for further proceedings.

  REVERSED and REMANDED.
