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Carron v. Holland America Line-Westours, Inc.

United States District Court, Eastern District of New York
51 F. Supp.2d 322, 1999.ENY

June 12, 1999

Law Offices of Daniel M. Tanenbaum, Great Neck, New York, Daniel
M. Tanenbaum, of counsel, for plaintiffs.

Healy & Baillie, Llp, New York City, John G. Ingram, Julie Pateman
Ward, of counsel, for defendants.

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


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).


The following facts are derived from the pleadings, the contract
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,

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.


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.

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 Lines, 499 U.S. at 594-595, 111 S.Ct. 1522; see
also Effron v. Sun Line Cruises, Inc., 67 F.3d 7, 9-10 (2nd Cir. 1995).

Reviewing these factors and the evidence establishing Holland's
ticketing and embarkation procedures, the Court is satisfied that the
plaintiffs had notice of the forum selection clause. In addition, there is
no evidence that Holland located its business in Washington State in an
effort to avoid litigation. Holland's principal place of business has been
located in the Western District of Washington State since 1984 when a move
occurred in connection with a merger. While none of Holland's cruises
depart from Washington State, a significant number of the cruises do
depart from Vancouver, Canada, a nearby location. Washington cannot be
considered a "remote alien forum" nor can the dispute be considered an
essentially local one given that Holland has cruises departing from both
the east and west coasts. See Carnival Cruise Lines, 499 U.S. at 594, 111
S.Ct. 1522 (holding that Florida was not a remote alien forum to
plaintiffs from Washington State). Finally, there is no evidence that
Holland obtained the plaintiffs' consent to the forum selection clause
through fraud or overreaching or that it otherwise acted in bad faith in
obtaining the plaintiffs' consent to the forum selection clause.

Therefore, the Court finds that the plaintiffs have failed to
satisfy their burden in order to set aside the forum selection clause
based on fundamental unfairness of the clause. In sum, the presumption of
enforceability has not been overcome by a strong showing that the forum
selection clause was fundamentally unfair.
B. Holland's Motions

28 U.S.C. 1406(a) provides that:
The district court in which is filed a case laying venue in the wrong
division or district shall dismiss, or if it be in the interest of justice,  
transfer such case to any district or division in which it could have
been brought.

A valid forum selection clause does not render improper what would
otherwise be a proper venue. Haskel v. FPR Registry, Inc., 862 F. Supp.
909, 913 (E.D.N.Y. 1994). The Court in Haskel held that a motion to
dismiss for improper venue based on a forum selection clause should be
denied, as the issue is not whether venue is proper, but whether there is
a contractual right to litigate in another forum. Id. at 915. Therefore,
at the outset, the Court notes that the proper procedure for the Court to
apply in enforcing the forum selection clause at issue is not by dismissal
pursuant to Fed.R.Civ.P. 12(b)(3) but by an analysis under 28 U.S.C.

Initially, the Court notes that the existence of a forum selection
clause is a relevant and significant factor in determining whether to
transfer the dispute to the contractual forum. Haskel, 862 F. Supp. at
913. In seeking to avoid a transfer based on an otherwise valid forum
selection clause, the plaintiff has the burden of proving that "trial in
the contractual forum will be so gravely difficult and inconvenient that
[s]he will for all practical purposes be deprived of [her] day in court."
Haskel, 862 F. Supp. At 912 (citing M/S Bremen v. Zapata Off-Shore Co.,
407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)). Inconvenience and
expense alone are insufficient to form a basis for not enforcing a
contractual forum selection clause. Bense v. Interstate Battery Sys. of
America, 683 F.2d 718, 722 (2nd Cir. 1982).

1. The New World of Video Depositions and Testimony
and Two-Way Closed-Circuit Testimony
While the Court sympathizes with the plight of the plaintiffs
facing the prospect of traveling to Washington State from New York, the
travel inconvenience to the plaintiffs is not sufficient to prevent
transfer to the Western District of Washington. In addition, the
possibility that school or work may be missed, and that the plaintiff may
have to pay substantial fees for witnesses to travel from New York to
Washington State does not demonstrate that the plaintiffs would be
deprived of their ability to vigorously prosecute their claims so that
they will be deprived of their day in Court. The Court notes the familiar
reality of living in this era that coast to coast traveling has become
commonplace in today's high-tech, modernized, global world. As we move
into the 21st Century, a litigant residing in New York can now litigate
thousands of miles away from home. We are now a mobile community both for
pleasure and business. In short, modern travel has made the World smaller
and travel to the State of Washington to litigate a viable cause of action
is not unprecedented or overly burdensome.

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