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November 4, 1994


ROSEMARY S. POOLER, U.S. District Judge

The opinion of the court was delivered by: ROSEMARY S. POOLER

Defendant Cunard Line Limited ("Cunard") moves to transfer this personal injury action to the Southern District of New York. Cunard relies on a forum selection clause in the ticket purchased by plaintiff Margaret Kearney Melnik ("Melnik") for a voyage aboard defendant's cruise ship. In the alternative, Canard moves for transfer of venue or dismissal of the action pursuant to 28 U.S.C. §§ 1406(a), 1404(a). Oral argument took place on October 3, 1994. *fn1"

 Melnik commenced this action in New York State Supreme Court, Onondaga County, in May 1994. On June 16, 1994, defendant Cunard filed a notice of removal in this court on the grounds of complete diversity among the parties. Cunard now asks that this action be transferred to federal court in the Southern District of New York pursuant to a forum selection clause contained in Article 22(b) of the ten-page cruise ticket purchased by Melnik. Article 22(b) states that "any and all disputes and matters whatsoever arising under, in connection with, or incident to this Passage Contract shall be litigated, if at all, in and before any court located in the City of New York, State of New York, U.S.A. to the exclusion of the courts of any other city, state or country."

 In her underlying claim, Melnik contends that she was injured while a passenger aboard the Queen Elizabeth II, an ocean liner operated by Cunard. According to the allegations contained in her complaint, Melnik was struck in the left wrist and left upper arm by a golf ball on June 27, 1993. The golf ball escaped from fencing enclosing a shipboard practice driving range near where Melnik was walking. Melnik claims that Cunard's negligence caused her permanent injuries, and she seeks damages of $ 1 million.


 To resolve this matter, we first must decide whether the jurisdictional basis for Melnik's action determines the applicability of the forum selection clause. Second, we must determine whether applicable law obliges us to enforce the terms of the forum selection clause contained in Melnik's passage contract ticket.

 I. Subject Matter Jurisdiction

 Cunard removed this action to federal court on complete diversity grounds because plaintiff is a citizen of New York and defendant is a British corporation. Relying on these facts, Melnik argues that Cunard is an alien that may be sued in any district pursuant to Section 1391. 28 U.S.C. § 1391(d). According to plaintiff's reasoning, if Cunard can be sued in any district, then any request to change venue is governed solely by Section 1404(a), which provides that "for the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404 (a). By relying on Section 1404(a) and its convenience test, Melnik seeks to avoid the effect of the forum selection clause contained in her passage contract ticket. She argues that such clauses are interpreted by federal courts sitting in admiralty in accordance with maritime law and do not apply in diversity cases. Cunard responds that even though removal was based on diversity jurisdiction, this action is governed by maritime law because a cruise ship ticket is a maritime contract.

 A plaintiff who is injured aboard a ship has several legal options. First, she may bring suit in federal court invoking admiralty subject matter jurisdiction. 28 U.S.C. § 1333(1). Second, she may bring suit in state court or federal court under diversity jurisdiction pursuant to the saving to suitors clause of Section 1333(1). Klinghoffer v. S.N.C. Achille Lauro, 739 F. Supp. 854, 859 (S.D.N.Y. 1990), vacated and remanded on other grounds, 937 F.2d 44 (2d Cir. 1991). The saving to suitors clause provides that in admiralty or maritime cases the federal district courts have exclusive jurisdiction "saving to suitors in all cases all other remedies to which they are otherwise entitled." 28 U.S.C. § 1333(1). The chief advantage of a federal suit based in diversity as opposed to admiralty is the plaintiff's ability to elect to have a jury trial. Clark v. Solomon Navigation, Ltd., 631 F. Supp. 1275 1277 n.1 (S.D.N.Y. 1986); see also Neal v. McGinnis, Inc., 716 F. Supp. 996, 998 (E.D. Ky. 1989). As discussed more fully below, the substantive law to be applied in any of these circumstances is federal maritime law.

  Melnik's lawsuit can rest on either diversity or admiralty jurisdictional grounds. The facts alleged in Melnik's complaint meet the requirements of federal diversity jurisdiction. 28 U.S.C. § 1332(a)(2). In addition, it is well settled that an action involving personal injuries sustained aboard a ship is a case in admiralty. Id. § 1333(1); see also Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S. Ct. 1522, 1525, 113 L. Ed. 2d 622 (1991); Archawski v. Hanioti 350 U.S. 532, 76 S. Ct. 617, 619, 100 L. Ed. 676 (1956). Melnik contends that because she chose to bring her suit in state court and deliberately decided not to invoke federal admiralty jurisdiction, she bypasses not only admiralty jurisdiction but also all of maritime law. We disagree. Regardless of the choice of forum or the basis of subject matter jurisdiction for Melnik's lawsuit, the substantive law to be applied is maritime law. See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S. Ct. 406, 408-09, 3 L. Ed. 2d 550 (1959); see also Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1320-21 (11th Cir. 1989); Mulvihill v. Furness, Withy & Co., 136 F. Supp. 201, 205 (S.D.N.Y. 1955). The Florida decision upon which Melnik relies holds no differently. In that case, the district court applied principles of maritime law as developed by the Supreme Court and the Ninth Circuit Court of Appeals in admiralty cases. Berman v. Cunard Line, Ltd., 771 F. Supp. 1175, 1176-77 (S.D. Fla. 1991). *fn2" As described more fully in Section II, federal maritime law has addressed fully the circumstances under which forum selection clauses in cruise ship passage contracts are enforced. Melnik cannot avoid the effect of this jurisprudence by relying on a general transfer statute.

 II. Forum Selection Clause

 We therefore apply maritime law to determine whether the forum selection clause contained in Melnik's passage contract ticket should be enforced. Cunard contends that the ticket is a binding contract requiring litigation to take place in the Southern District of New York. Melnik responds that the forum selection clause is not binding as a matter of law because such clauses are disfavored by the courts and because Melnik never read or accepted the passage contract. Moreover, Melnik argues that the equities compel rejection of defendant's motion because she lacks the financial resources to litigate in the Southern District and because it would be disruptive to her disabled son, who witnessed the accident, to travel to New York City.

 The Supreme Court has determined that forum selection clauses in cruise ship passage contract tickets generally are valid. In Carnival Cruise Lines, Inc. v. Shute, plaintiffs brought a personal injury action in their home state of Washington. The Supreme Court required the plaintiffs to litigate their claim against a Florida-based cruise line in Florida because that forum was designated on their passage contracts. Shute, 111 S. Ct. at 1527-28. The Supreme Court held that a forum selection clause substantially similar to the one employed by Cunard was reasonable and thus enforceable. Id. at 1524, 1527-28. The Court considered and rejected the argument that a forum selection clause is not enforceable merely because it is not the subject of bargaining between the cruise line and passenger. Id. at 1527. Because the forum selection clause at issue here is nearly identical to ...

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