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

> District Court, S.D. Florida · January 26, 2024

URL: https://www.frixlaw.com/law-library/cases/10122941

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** January 26, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10122941

## How later opinions describe it (automated extraction)

- noting that “shall” is a typical mandatory term

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10122941. Public record. Not legal advice.