Samalot-Martinez v. Norwegian Cruise Line Holdings, Ltd.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

MANUEL J. SAMALOT-MARTINEZ,

Plaintiff,

Civil No. 23-1514(RAM)

v.

NORWEGIAN CRUISE LINE

HOLDINGS, LTD., ET AL,

Defendants

MEMORANDUM AND ORDER

Raúl M. Arias-Marxuach, United States District Judge

This matter comes before the Court on Defendant Norwegian

Cruise Lines (“NCL” or “Defendant”) Motion to Dismiss or to

Transfer Venue (“Motion to Transfer Venue”) (Docket No. 9) and

Plaintiff Manuel J. Samalot-Martínez’s (“Plaintiff”) Informative

Motion Regarding Consent to Transfer Venue in Response to Motion

to Dismiss or to Transfer Venue and Motion Requesting Order to

Transfer Venue (“Informative Motion”) (Docket No. 14). For the

reasons set for herein, the Motion to Transfer Venue is GRANTED IN

PART. This action shall be transferred to the Southern District

of Florida pursuant to 28 U.S.C. § 1404(a) in accordance with

Section 15 of the Guest Ticket Contract.

I. BACKGROUND

This case arises from an alleged slip and fall onboard the

cruise ship M/V Norwegian Dawn. (Docket No. 1 ¶ 1). According to

Civil No. 23-1514(RAM) 2

the Complaint filed on October 13, 2023, Mr. Samalot-Martínez was

injured when he tripped on unattended cleaning buckets just outside

his cabin. Id. ¶¶ 25-26. The Complaint invokes this Court’s

admiralty and maritime jurisdiction and seeks $500,000 in damages.

Id. ¶¶ 4, 74.

NCL filed its Motion to Transfer Venue on December 6, 2023.

(Docket No. 9). Defendant asserts that Section 15 of the Guest

Ticket Contract, under which Mr. Samalot-Martínez sailed on the

Norwegian Dawn, contains a forum selection clause. Id. at 3-4.

Premised on the clause, Defendant NCL seeks dismissal of this

action or its transfer to the Southern District of Florida. Id. at

5-12.

On December 28, 2023, Plaintiff filed his Informative Motion

consenting to the transfer of venue and affirmatively requesting

an order transferring this action to the Southern District of

Florida. (Docket No. 14).

II. APPLICABLE LAW

A. Choice of Forum Clauses in Passenger Contracts

Pursuant to the Supreme Court of the United States’ seminal

opinion in M/S Bremen v. Zapata Off-Shore Co., “[t]he prevailing

view towards contractual forum selection clauses is ‘that such

clauses are prima facie valid unless enforcement is shown by the

resisting party to be unreasonable under the circumstances.’”

Civil No. 23-1514(RAM) 3

Silva v. Encyclopedia Britannica, Inc., 239 F.3d 385, 386 (1st

Cir. 2001) (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S.

1, 10 (1972)).

In Carnival Cruise v. Shute, 499 U.S. 585, 593-594 (1991),

the Supreme Court held that reasonable choice of forum clauses in

passengers’ contracts are not void simply because they are not

freely negotiated. Moreover, the Supreme Court noted that such

clauses may serve legitimate interests such as limiting the places

where the cruise lines may be sued given their far-flung

operations, injecting predictability as to where suits may be

brought, and generating savings that in turn can result in reduced

fares. The Supreme Court rejected the Ninth Circuit’s conclusory

assertion that plaintiffs were physically and financially

incapable of litigating in the contractually chosen forum, a

relevant factor in determining whether the clause was reasonable.

Id. at 594. Instead, the Supreme Court held that choice of forum

clauses in passenger contracts are subject to review for

fundamental fairness and found that the clause at issue in Shute

was fair as it provided for litigation in Florida, where

Defendant’s principal place of business was located and where many

of its cruises departed and arrived. Id.

In the First Circuit, courts apply a two-pronged, case by

case, “reasonable communicativeness” standard to evaluate choice

Civil No. 23-1514(RAM) 4

of forum clauses in cruise ship passenger tickets. See Lousararian

v. Royal Caribbean Corp., 951 F.2d. 7, 8-9 (1st Cir. 1991); see

also Godreau v. Royal Caribbean, 2018 WL 637398 (D.P.R. 2018).

The first prong requires that the Court “examine the facial clarity

of the ticket contract and whether its language and appearance

make the relevant provisions sufficiently obvious and

understandable.” Lousararian, 951 F.2d at 8. The second prong

deals with “the circumstances of the passenger’s possession and

familiarity with the ticket” and mandates “scrutiny of any

extrinsic factors indicating the passenger’s ability to become

meaningfully informed of the contractual terms at stake.” Id., at

9.

B. Mandatory Choice of Forum Clauses

“Under federal law, the threshold inquiry when analyzing a

forum selection clause is whether the clause is permissive or

mandatory.” Claudio-De Leon v. Sistema Universitario Ana G.

Mendez, 775 F.3d 41, 46 (1st Cir. 2014) (quoting Rivera v. Centro

Médico de Turabo, Inc., 575 F.3d 10, 17 (1st Cir.2009)). Mandatory

clauses dictate “the exclusive forum for litigation” whereas

permissive clauses merely “authorize personal jurisdiction in a

designated forum, but do not prohibit litigation of covered claims

elsewhere.” Rivera v. Kress Stores of Puerto Rico, Inc., 30 F.4th

98, 103 (1st Cir. 2022). See also Huffington v. T.C. Grp., LLC,

Civil No. 23-1514(RAM) 5

637 F.3d 18, 21 (1st Cir. 2011) (“A forum selection clause may

make the designated forum merely available for resolution of

disputes or it may make it ‘exclusive,’ at least in the sense that

either side can insist upon it as the venue).

Whether a choice of forum clause is considered mandatory or

permissive “often hinges on whether the provision includes any

terms with a mandatory connotation.” Haddock-Acevedo v. Bd. of

Governors of Univ. of Puerto Rico, 615 F. Supp. 3d 78, 83 (D.P.R.

2022). The First Circuit has repeatedly found that the use of the

term “shall” in a forum selection clause is indicative that the

clause is mandatory. See Claudio-De Leon, 775 F.3d at 46 (“[I]t is

axiomatic that the word ‘shall’ has a mandatory connotation.”);

Centro Medico de Turabo, 575 F.3d at 17, n.5 (noting that “shall”

is a typical mandatory term).

C. Enforcement of Choice of Forum Clauses under 28 U.S.C. 1404(a)

When a choice of forum clause provides for a federal forum,

the appropriate enforcement mechanism is 28 U.S.C. § 1404(a). See

Atlantic Marine Const. Co., Inc. v. U.S. Dist. Court for Western

Dist. of Texas, 571 U.S. 49, 59-60 (2013). This section of the

Judicial Code of the United States is a codification of the forum

non conveniens doctrine which provides that “[f]or the convenience

of parties and witnesses, in the interest of justice, a district

court may transfer any civil action to any other district or

Civil No. 23-1514(RAM) 6

division where it might have been brought or to any district or

division to which all parties have consented.” 28 U.S.C. § 1404(a).

The presence of a valid choice of forum clause alters the

usual § 1404(a) analysis in three ways:

First, the plaintiff's choice of forum merits

no weight, and the plaintiff, as the party

defying the forum-selection clause, has the

burden of establishing that transfer to the

forum for which the parties bargained is

unwarranted. Second, the court should not

consider the parties' private interests aside

from those embodied in the forum-selection

clause; it may consider only public interests.

[…] Third, when a party bound by a forum-

selection clause flouts its contractual

obligation and files suit in a different

forum, a § 1404(a) transfer of venue will not

carry with it the original venue's choice-of-

law rules.

Atlantic Marine Const. Co., 571 U.S. at 63-64. (emphasis added).

Consequently, a district court may only consider arguments about

public factors and “[b]ecause those factors will rarely defeat a

transfer motion, the practical result is that forum-selection

clauses should control except in unusual cases.” Id. at 64. Among

the public-interest factors district courts may consider are court

congestion and the ensuing administrative difficulties, the

interest in having localized controversies decided locally, and

the interest in having diversity cases tried in a forum at home

with the law. Id. at 63, n. 6 (quoting Piper Aircraft Co. v. Reyno,

Civil No. 23-1514(RAM) 7

454 U.S. 235, 241, n. 6 (1981)).

III. DISCUSSION

In the case at bar, Plaintiff did not challenge the validity

of the choice of forum clause in Section 15 of his Guest Ticket

Contract. Nevertheless, the Court has evaluated the clause before

ordering enforcement. Section 15 of the Guest Ticket Contract

provides:

15. VENUE AND GOVERNING LAW: EXCEPT AS

OTHERWISE SPECIFIED HEREIN, ANY AND ALL

DISPUTES WHATSOEVER ARISING OUT OF OR RELATING

TO THIS CONTRACT OR THE GUEST’S CRUISE, AS

WELL AS THE INTERPRETATION, APPLICABILITY, AND

ENFORCEMENT OF THIS CONTRACT SHALL BE GOVERNED

EXCLUSIVELY BY THE GENERAL MARITIME LAW OF

THEUNITED STATES, WHICH SHALL INCLUDE THE

DEATH ON THE HIGH SEAS ACT (46 USCS § 30302)

WITHOUT REGARD TO CHOICE OF LAW RULES, WHICH

REPLACES, SUPERSEDES AND PREEMPTS ANY

PROVISION OF LAW OF ANY STATE OR NATION TO THE

CONTRARY. IT IS HEREBY AGREED THAT ANY AND ALL

CLAIMS, DISPUTES OR CONTROVERSIES WHATSOEVER

ARISING FROM, RELATED TO, OR IN CONNECTION

WITH THIS CONTRACT OR THE GUEST'S VOYAGE,

INCLUDING ANY ACTIVITIES ON OR OFF THE VESSEL

OR TRANSPORTATION FURNISHED THEREWITH, WITH

THE SOLE EXCEPTION OF CLAIMS SUBJECT TO

BINDING ARBITRATION UNDER SECTION 11(B) ABOVE,

SHALL BE COMMENCED, FILED AND LITIGATED, IF AT

ALL, BEFORE THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA IN MIAMI,

FLORIDA, U.S.A., OR AS TO THOSE LAWSUITS FOR

WHICH THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA LACKS SUBJECT

MATTER JURISDICTION, BEFORE A COURT OF

COMPETENT JURISDICTION IN MIAMI-DADE COUNTY,

FLORIDA, U.S.A., TO THE EXCLUSION OF THE

COURTS OF ANY OTHER COUNTRY, STATE, CITY OR

COUNTY WHERE SUIT MIGHT OTHERWISE BE BROUGHT.

Civil No. 23-1514(RAM) 8

(Docket No. 9-1 at 28) (emphasis added).

First, per its clear text, the forum selection clause in

Section 15(b) is mandatory, rather than permissive. The clause

expressly states that claims “shall be commenced, filed and

litigated” in either the Southern District of Florida or before a

court of competent jurisdiction in Miami-Dade County. Id. The use

of “shall” evinces the clauses mandatory nature. See Haddock-

Acevedo, 615 F. Supp. 3d at 83; Claudio-De Leon, 775 F.3d at 46.

Second, the Florida choice of forum clause was reasonably

communicated. Section 15(b) of the Guest Ticket Contract clause is

facially clear in language and appearance, thereby meeting the

first prong of the reasonable communicativeness standard. With

respect to language, Section 15 states it requires litigation

before the Southern District of Florida, or if that court lacks

subject matter jurisdiction, in a Court located in Miami-Dade

County, Florida as to “any and all claims, disputes or

controversies whatsoever arising from, related to, or in

connection with this contract or the guest's voyage, including any

activities on or off the vessel or transportation furnished

therewith” that are not subject to arbitration. Section 15’s

Florida choice of forum clause clearly encompasses Plaintiff’s

claims for personal injury. The choice of forum clause applies to

“any and all claims, disputes or controversies whatsoever arising

Civil No. 23-1514(RAM) 9

from, related to, or in connection with this contract or the

guest's voyage.” Id. The First Circuit has interpreted broad

language of this nature as covering “contract-generated or

contract-related disputes between the parties however labeled: it

is immaterial whether claims are in contract or in tort[.]”  Acevedo

Maldonado v. PPG Indus. Inc., 514 F.2d 614, 616 (1st Cir.

1975) (emphasis added).

With respect to appearance, the cover of the Guest Ticket

Contract contains a text box titled “IMPORTANT NOTICE” which warns

guests or passengers that they should carefully read and review

the contracts terms and conditions and specifically directs their

attention to Section 15’s Venue and Governing law provisions as

follows:

IMPORTANT NOTICE: GUESTS ARE ADVISED TO

CAREFULLY READ AND REVIEW THE TERMS AND

CONDITIONS OF THE GUEST TICKET CONTRACT SET

FORTH BELOW WHICH AFFECT YOUR LEGAL RIGHTS AND

ARE BINDING. THE GUEST’S ATTENTION IS

SPECIFICALLY DIRECTED TO SECTION 6

(LIMITATIONS AND DISCLAIMERS OF LIABILITY),

SECTION 8 (LIABILITY LIMITATION FOR BAGGAGE

AND VALUABLES), SECTION 11 (TIME LIMITATIONS

FOR ACTIONS, MANDATORY ARBITRATION FOR CERTAIN

CLAIMS AND WAIVER OF CLASS ACTIONS) AND

SECTION 15 (VENUE AND GOVERNING LAW).

GUESTS ARE ALSO ADVISED TO CAREFULLY READ AND

REVIEW SECTION 4 AND CARRIER’S WEBSITE AT

HTTPS://WWW.NCL.COM/SAFE WHICH CONTAIN

IMPORTANT TERMS, CONDITIONS, POLICIES,

PROCEDURES AND REQUIREMENTS RELATED TO PUBLIC

HEALTH AND COVID-19.

Civil No. 23-1514(RAM) 10

ACCEPTANCE OR USE OF THIS CONTRACT SHALL

CONSTITUTE THE AGREEMENT OF GUEST TO THESE

TERMS AND CONDITIONS.

(Docket No. 9-1 at 17). See Jimenez v. Peninsular & Oriental Steam

Nav. Co., 974 F.2d 221, 224 (1st Cir. 1992) (enforcing a less

prominent notice where similar language was included but on the

second page of the passenger ticket packet).

Third, the circumstances relating to the passenger’s

possession and familiarity with the ticket also meet the

requirements of the second prong of the “reasonable

communicativeness” standard. As explained by the First Circuit,

“prong two’s inquiry into the passenger's possession of and

familiarity with the ticket does not depend upon actual knowledge

of the terms in the contract of passage, but focuses instead on

the opportunity for such knowledge.” Lousararian, 951 F.2d at 11

(internal quotations omitted, emphasis in the original). According

to the Declaration of Under Penalty of Perjury submitted with NCL’s

Motion to Dismiss, Plaintiff checked in electronically and

accepted the reservation and Guest Ticket Contract 16 days before

boarding. (Docket No. 9-1 at 2, ¶¶ 6-8). Thus, the Court finds

that Plaintiff had ample opportunity to familiarize himself with

the forum selection clause contained therein.

Fourth, Plaintiff consented to the Motion for Venue Transfer.

Therefore, no fundamental fairness concerns tantamount to

Civil No. 23-1514(RAM) 11

stripping plaintiff of his day in Court have been raised, and

hardly could be raised given Florida’s proximity by air travel to

Puerto Rico. See Godreau, 2018 WL 637398, at *3-4.

IV. CONCLUSION

“When parties have contracted in advance to litigate disputes

in a particular forum, courts should not unnecessarily disrupt the

parties’ settled expectations [...] In all but the most unusual

cases, therefore, ‘the interest of justice’ is served by holding

parties to their bargain.” Caribbean Restaurants, LLC v. Burger

King Corporation, 23 F.Supp. 3d 70, 78 (D.P.R. 2014) (quoting

Atlantic Marine Const. Co., 571 U.S. at 66) (emphasis added). This

is not an unusual case.

Because choice of forum clauses are deemed prima facie valid

and there are no reasons for denying enforcement, Defendant NCL’s

Motion to Dismiss or For Venue Transfer at Docket No. 9 is GRANTED

in PART. This action shall be transferred to the Southern District

of Florida pursuant to 28 U.S.C. § 1404(a) pursuant to Section 15

of the Guest Ticket Contract.

IT IS SO ORDERED.

In San Juan, Puerto Rico this 26th day of January 2024.

S/ RAÚL M. ARIAS-MARXUACH

United States District Judge