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CARRON v. HOLLAND AMERICA LINE-WESTOURS INC.

June 12, 1999

ELISSA CARRON, AN INFANT, BY HER PARENT AND NATURAL GUARDIAN, LAURIE CARRON AND LAURIE CARRON, INDIVIDUALLY, PLAINTIFFS,
v.
HOLLAND AMERICA LINE-WESTOURS INC., WIND SURF LIMITED AND HAL CRUISES LIMITED, DEFENDANTS.



The opinion of the court was delivered by: Spatt, District Judge.

  MEMORANDUM OF DECISION AND ORDER

On September 17, 1998, Laurie Carron filed a complaint on behalf of her daughter, Elissa Carron, an infant, and herself (the "plaintiffs") against Holland American Line-Westours Inc. ("Holland"), Wind Surf Limited ("Wind Surf"), and HAL Cruises Limited ("HAL") (collectively the "defendants") alleging personal injuries sustained by Elissa Carron resulting from the alleged negligent conduct of the defendants while she was on a Holland cruise vacation. Elissa Carron alleges that while she was in the pool on the MS Veendam, she was "caused to be propelled into a sharp statute . . . causing injury."

Presently before the Court are two motions by the defendants: First, the defendants move to dismiss the plaintiffs' complaint for improper venue pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P."). Alternatively, the defendants move to transfer the case to the District Court for the Western District of Washington, pursuant to 28 U.S.C. § 1406(a).

I. BACKGROUND

The following facts are derived from the pleadings, the contract at issue and the supporting affidavits. Except where otherwise indicated, the facts are not in dispute. The plaintiffs are domiciled and reside in the State of New York. Holland is a corporation with its principle place of business in the State of Washington. Since merging with Westours in 1984, Holland's corporate headquarters have been located in Seattle, Washington.

Through a travel agent, the plaintiffs contracted with Holland for a cruise vacation in 1998. They agreed to the dates, price and payment for a seven day cruise. The plaintiffs received the ticket and cruise contract three weeks prior to the cruise date. The cruise contract contained a forum selection clause, which provided in pertinent part that:

  All disputes and matters whatsoever arising under, in
  connection with or incident to this contract, the
  Cruise or the Cruisetour shall be litigated, if at
  all, in and before the United States District Court
  for the Western District of Washington at Seattle . .

Pursuant to Holland's ticketing and embarkation procedures, an embarkation/ticket receipt form and a cruise contract is issued to families traveling in the same cabin upon receipt of final payment by Holland. On the day of departure, each passenger must check in with a Holland representative who examines their cruise contract and identification, takes the embarkation coupon from the cruise contract and returns the cruise contract to the passenger.

Based on the forum selection clause contained in the cruise contract, Holland argues that either: (1) the plaintiffs' complaint should be dismissed for improper venue; or (2) the case should be transferred to the District Court for the Western District of Washington. In opposition, the plaintiffs contend that the case should remain in the Eastern District of New York for the convenience of the witnesses, the convenience of the parties, and due to the unreasonableness of the forum selection clause. In particular, the plaintiff Laurie Carron asserts that litigation in the State of Washington would cause her and her husband to be compelled to lose additional time from work. In addition, she contends that litigation in the State of Washington would cause her daughter to miss periods of her schooling. Further, the plaintiffs argue that the costs associated with litigating the case in Washington would be prohibitive. Finally, the plaintiffs argue that it would be inconvenient for their two witnesses, a treating physician and another cruise passenger, both residents of the State of New York, to be compelled to testify in the State of Washington.

II. DISCUSSION

A. Validity of the Forum Selection Clause

Federal law governs the enforceability of forum selection clauses in admiralty cases. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 590, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). In this regard, the Court views the facts in the light most favorable to the party seeking to avoid enforcement of the clause, and, if required, will provide an opportunity for a hearing when material facts are in dispute. New Moon Shipping Co., Ltd. v. Man B&W Diesel Ag, 121 F.3d 24, 29 (2nd Cir. 1997). Also, the Court may consider supplemental affidavits for the purposes of deciding the question of venue. ESI, Inc. v. Coastal Power Production Co., 995 F. Supp. 419, 422 (S.D.N.Y. 1998).

Forum selection clauses are deemed to be prima facie valid. Carnival Cruise Lines, 499 U.S. at 589, 111 S.Ct. 1522. A plaintiff challenging the validity of a forum selection clause has the burden to make a "strong showing" in order to overcome the presumption of enforceability. New Moon Shipping, 121 F.3d at 29 (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)). The non-negotiable nature of a forum selection clause in an ordinary commercial cruise ticket does not negate its enforceability. Carnival Cruise Lines, 499 U.S. at 593, 111 S.Ct. 1522. However, the court will scrutinize such clauses for fundamental fairness. Id. at 595, 111 S.Ct. 1522.

Factors that the Court must consider in deciding the fundamental fairness of a forum selection clause include: whether the plaintiffs had notice of the forum selection clause; whether the defendant chose its corporate location, to avoid litigation; whether the forum selection clause designates a "remote alien forum;" and whether the defendant acted in bad faith in obtaining the plaintiffs' consent to the forum selection clause. Carnival Cruise ...


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