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Caputo v. Holland America Line

July 29, 2009


The opinion of the court was delivered by: Sifton, Senior Judge


Plaintiff Thomasina Caputo commenced this action against Holland America Line, Inc. ("defendant") on November 12, 2008, alleging that plaintiff tripped over a door-saddle on defendant's cruise ship and suffered injuries as a result of defendant's negligence in failing to maintain, inspect, and repair its premises. Now before the Court is a motion by defendant to transfer venue to the Western District of Washington State pursuant to Federal Rule of Civil Procedure 1406(a) and a forum selection clause in defendant's standard "Cruise and Cruisetour" contract. On June 24, 2009, I held an evidentiary hearing to determine whether Ms. Caputo was fit to travel to Washington State. Based on the findings of fact and conclusions of law below, the motion is granted.


The following facts are drawn from the complaint, the parties' submissions in connection with this motion, and the transcript of the hearing.

Plaintiff is 81 years old and a resident of New York. Hearing Transcript at 5 ("Tr.").*fn1 On November 12, 2007, plaintiff was a passenger on the cruise ship M/S Noordam, owned by defendant. Compl. at ¶¶ 6-7. At 9:30 p.m. on that day, plaintiff tripped and fell in a doorway and suffered a right hip fracture. Compl. at ¶ 7, Caputo Aff. at ¶ 2. Plaintiff had surgery to her hip, which required the insertion of pins into her bone to hold her hip together. Caputo Aff. at ¶ 2. She underwent extensive physical therapy and received injections for pain. Id.

Defendant's 2007 "Cruise and Cruisetour contract" included a one page "Important Notice to Passengers," printed in capital letters and separated from the text of the contract. Declaration of Carol Kidd Ex. 3. This notice provided, in relevant part, that "all disputes and matters whatsoever arising under, in connection with or incident to this contract, the cruise, the cruisetour, the Holland trip or the Hal Air package shall be litigated, if at all, in and before the United States District Court for the Western District of Washington at Seattle..." Id. Plaintiff opposed the motion to change venue on the ground that she was unable to travel to Washington State for trial. I determined that it was necessary to conduct a hearing in order to assess whether plaintiff is physically able to travel. See New Moon Shipping Co. v. MAN B&W Diesel AG, 121 F.3d 24, 29 (2d Cir. 1997) (a court may not resolve a disputed fact against a party opposing a forum selection clause without conducting an evidentiary hearing).

At the hearing, plaintiff testified that when taking any action, she must do so slowly, and she suffers pain. Tr. 8, 10. She is unable to walk alone, as she is afraid that her hip may collapse. Tr. 9. She is able to walk around the block assisted by her husband, and walks around her house regularly. Id. She testified that it is "very annoying" for her to sit for a long time, because her bones hurt and she suffers general pain. Id. She suffers this pain whenever she sits. Id. Plaintiff testified that she cannot sit on an airplane due to the pain, which sometimes makes her nauseous. Tr. 10.

Dr. Peter Sultan, an orthopedic surgeon who operated on plaintiff's hip following the injury and has continued treating her since that time, gave testimony regarding his June, 2009 examination of plaintiff, stating that her condition had deteriorated from the year before, which was not uncommon. Tr. 27. He noted that she was walking at a slow pace and experiencing discomfort. Tr. 28. He stated that she was a candidate for hip replacement surgery, but that it was an elective procedure. Tr. 29. Her condition will continue to deteriorate, and she will never return to normal functioning. Tr. 30. When asked what physical restrictions plaintiff has, Dr. Sultan stated that her main limitation was pain, and that her ability to tolerate pain would control the extent of her activities. Tr. 30.*fn2 Dr. Sultan stated that he would not advise her to travel long distances, as she would suffer on the trip. Tr. 31. However, he further testified that she could travel by air, although it would be difficult. Tr. 40. Dr. Sultan stated that plaintiff indicated to him that she does not want to take pain medication, because she does not want to become dependant on it. Tr. 41. Ms. Caputo declined to take medication after the initial medication gave her pains in her chest, and refused to have pain management injections. Tr. 15. Dr. Sultan believes that pain medication might help her to tolerate a plane flight. Tr. 42.

Plaintiff testified that she and her husband traveled 60 miles by taxi to reach the courthouse on the day of the hearing, which is a journey she would be required to repeat every day for the trial. Tr. 10-11. In November of 2008, plaintiff and her husband took a cruise (distinct from the one at issue in this case). Tr. 19.


Defendant seeks enforcement of the forum selection clause. Plaintiff responds that it would be a severe hardship for her to travel back and forth to Washington State from New York due to her physical limitations.

A. Applicable Law

Federal Rule of Civil Procedure 1404(a) provides that "[f]or the convenience of parties and witnesses, and in the interests of justice, a district court may transfer any civil action to any other district or division where it might have been brought." "[T]he presence of a forum-selection clause... will be a significant factor that figures centrally in the district court's [1404(a)] calculus." Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed. 2d 22 (1988). A passenger cruise ticket is a maritime contract to which federal maritime law applies. See Valenti v. Norwegian Cruise Line, 2005 U.S. Dist. LEXIS 6811, at *7 (S.D.N.Y. April 21, 2005) (citing Vavoules v. Kloster Cruise Ltd., 822 F.Supp. 979, 982 (E.D.N.Y. 1993)). "[F]orum selection clauses in maritime contracts are presumably valid," and "the burden is on the plaintiff who files suit outside the contractually designated forum to overcome this presumption." Lurie v. Norwegian Cruise Lines, Ltd., 305 F.Supp. 2d 352, 357 (S.D.N.Y. 2004) (citing New Moon Shipping Co. v. MAN B&W Diesel AG, 121 F.3d 24, 29 (2d Cir. 1997)).

In Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595-96; 111 S.Ct. 1522; 113 L.Ed. 2d 622 (1991), the Supreme Court held that a forum selection clause in a form passage contract is enforceable if: (1) it is "reasonably communicated" by the carrier to the passenger, see id. at 590, and (2) it stands up to judicial scrutiny as to reasonableness and fundamental fairness. See id. at 593-95; see also The Bremen v. Zapata Off-Shore Company, 407 U.S. 1, 15, 16, 92 S.Ct. 1907, 32 L.Ed. 2d 513 (1972) (a forum selection clause is prima facie valid and ...

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