The opinion of the court was delivered by: Robert L. Carter, District Judge
On September 24, 1999, defendant Oldendorff issued a bill of lading,
numbered LCLB-1, for the carriage and transportation of 1,735 rolls of
fluting paper, allegedly tendered in good order and condition, aboard the
vessel M.V. GERTRUDE OLDENDORFF from the port of Laem Chabang, Thailand
to the port of Long Beach, California. The M.V. GERTRUDE OLDENDORFF is
employed for hire in the common carriage of goods by water and, at all
times pertinent to this litigation, was owned, operated, chartered, and
controlled by defendant Oldendorff.*fn1 On October 22, 1999, the M.V.
GERTRUDE OLDENDORFF arrived at the port of Long Beach, California and
defendant Oldendorff discharged plaintiff's shipment of fluting paper.
Upon inspection, it was discovered that the shipment had sustained serious
physical and water damage. The damaged rolls were subsequently segregated
and sold for salvage.
Plaintiff Gottesman as owner, shipper, consignee, and purchaser of the
aforesaid shipment of 1,735 rolls of fluting paper instituted this action
on its behalf and on behalf of all other interested parties to recover
the sum of $600,000 for damage sustained to the shipment. On January 26,
2001, plaintiff Gottesman also commenced an action in the High Court of
Justice, Queens Bench Division, London, UK, in which the registered owner
of the vessel, New Resolution Shipping Corp., is named as a defendant.
When considering a motion to dismiss for improper venue pursuant to
Rule 12(b)(3), F.R.Civ.P., the court has to accept facts alleged in
the complaint as true and must construe all reasonable inferences in
favor of the plaintiff. Dolson v. New York State Thruway Auth., No. 00
Civ. 6439, 2001 WL 363032, at *1 (S.D.N.Y. April 11, 2001) (Carter, J.);
Burrell v. State Farm Fire and Cas. Co., No. 00 Civ. 5733, 2001 WL
797461, at *3 (S.D.N.Y. July 12, 2001) (Koeltl, J.). These benefits of
construal aside, the plaintiff ultimately bears the burden of showing
that venue is proper once it has been challenged. Imagineering, Inc. v.
Lukingbeal, No. 94 Civ. 2589, 1996 WL 148431, at *2 (S.D.N.Y. Apr. 2,
1996) (Carter, J.).
Defendant Oldendorff argues that venue is improper in this district
because of a forum selection clause in the bill of lading calling for the
adjudication of all disputes in London. (Defs.' Mem. of Law at 4-5.)
Clause 3 of the bill of lading provides:
Any disputes under the Bill of Lading to be decided in
London according to English Law.
(Ryan Aff. Exh. 1.) Oldendorff argues that, given its wording, the forum
selection clause is mandatory, thereby barring plaintiff from bringing
suit in this district. (Defs.' Mem. of Law at 4.)
Forum selection clauses, in the context of admiralty actions, are
presumptively valid. Thyssen, Inc. v. M/V ALPHA JUPITER, No. 96 Civ.
8734, 1997 WL 882595, at *7 (S.D.N.Y. Aug. 15, 1997) (Koeltl, J.) (citing
M/S BREMEN v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972)). So long as
the clause is mandatory and exclusive as opposed to permissive, it will
be presumed enforceable. See Leasing Service Corp. v. Patterson
Enterprises, Ltd., 633 F. Supp. 282, 284 (S.D.N.Y. 1986) (Walker, J.);
Thyssen, 1997 WL 882595, at *7. Even assuming exclusivity, however, the
presumption of validity attaching to a mandatory forum selection clause
may be overcome by a clear showing that the clause is unreasonable. M/S
BREMEN, 407 U.S. at 15. A clause can be unreasonable if: 1) its
incorporation into the agreement was the product of fraud or
overreaching; 2) the complaining party will be deprived of its day in
court due to the grave inconvenience of the selected forum; 3) the chosen
law is manifestly unfair so as to deprive plaintiff of a remedy; or 4)
the clause is in contravention of a strong public policy of the forum
state. Roby v. Corp. of Lloyd's, 996 F.2d 1353, 1363 (2d Cir. 1993).
It is clear that the forum selection clause at issue here is mandatory
and exclusive. For a forum selection clause to be deemed mandatory,
jurisdiction and venue must be specified with mandatory or exclusive
language. Thyssen, 1997 WL 882595, at *7 However, in the situation where
only jurisdiction is specified, the clause will generally not be enforced
without additional language indicating the intent of the parties to make
jurisdiction exclusive. John Boutari & Sons, Wines & Spirits, S.A. v.
Attiki Importers & Distribs. Inc., 22 F.3d 51, 52 (2d Cir. 1994). "Of
course if mandatory venue language is employed, the clause will be
enforced" even in the absence of language making jurisdiction exclusive.
Id. at 53.
The language of the forum selection clause under consideration here,
"[a]ny disputes under the Bill of Lading to be decided in London
according to English Law," rather than simply stating that the court in
London shall have jurisdiction over all disputes, actually makes explicit
that such disputes are to be resolved in that forum and nowhere else.
Faced with similar facts and language, numerous courts have reached
parallel conclusions. See, e.g., Thyssen, 1997 WL 882595, at *7 ("All
disputes arising under and in connection with this Bill of Lading shall
be determined by the court in the People's Republic of China" held
enforceable); Bison Pulp & Paper Ltd. v. M/V PERGAMOS, No. 89 Civ. 1392,
1995 WL 880775, at *11 (S.D.N.Y. Nov. 29, 1995) (Lowe, J.) ("Any dispute
arising under this Bill of Lading shall be decided in the country where
the carrier has his principal place of business" held enforceable); AVC
Nederland B.V. v. Atrium Inv. P'ship, 740 F.2d 148, 151 (2d Cir. 1984)
("All and any disputes, differences or questions arising from the present
Agreement shall be decided and determined by the competent court in
Utrecht" held enforceable). In fact, in the seminal case of M/S BREMEN,
which established standards for the enforceability of forum selection
clauses in international transactions, the United States Supreme Court
enforced a forum selection clause substantially similar to the one at
issue here. M/S BREMEN involved an admiralty dispute over the
enforceability of a foreign forum selection clause in a contract
involving the towing of a drilling rig from Louisiana to a point off
Italy. The clause provided that "[a]ny dispute arising ...