Martin v. Scenic Tours USA Inc.
Filing
112
ORDER AND REASONS: IT IS HEREBY ORDERED that Defendants Scenic Tours Europe AG's and MS Emerald Star AG's 81 Motion for Summary Judgment is DENIED. Signed by Chief Judge Nannette Jolivette Brown on 12/19/2018. (mmv)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SHAREN MARTIN
CIVIL ACTION
VERSUS
NO. 16-15809
SCENIC TOURS USA INC.
SECTION: AG@(3)
ORDER AND REASONS
Pending before this Court is Defendants Scenic Tours Europe AG’s and MS Emerald Star
AG’s (“the Movants”) “Motion for Summary Judgment.”1 In this litigation, Plaintiff Sharen
Martin’s (“Plaintiff”) claims that Defendants Scenic Tours (USA) Inc., Scenic Tours Europe AG,
Couples Cruise, LLC, and MS Emerald Star AG acted negligently in failing to warn Plaintiff of
an allegedly hazardous fire door sill in the hallway of the riverboat the MS EMERALD STAR. 2
In the instant motion, the Movants argue that Plaintiff is subject to a binding forum selection
clause, which requires that any litigation be brought in a civil court in Switzerland.3 The Movants
also argue that they did not breach a duty to Plaintiff in maintaining the fire door sill.4 In
opposition, Plaintiff argues that the Movants waived their right to assert improper venue and that
several issues of material fact remain regarding whether the Movants breached a duty to maintain
the fire door sill.5 Having considered the motion for summary judgment, the memoranda in support
and opposition, the record, and the applicable law, the Court will deny the motion.
1
Rec. Doc. 81.
2
Rec. Doc. 42.
3
Rec. Doc. 81-12 at 2–4.
4
Id.
5
Rec. Doc. 97 at 1.
1
I. Background
On October 27, 2015, Plaintiff allegedly tripped and fell on a fire door sill in the hallway
of the riverboat the MS EMERALD STAR.6 In the amended complaint, Plaintiff asserts that
Defendants Scenic Tours (USA) Inc., Scenic Tours Europe AG, Couples Cruise, LLC, and MS
Emerald Star AG acted negligently in failing to warn Plaintiff of the allegedly hazardous fire door
sill.7 Plaintiff contends that as a result of the fall, she “sustained injuries to her face, facial structure,
nose, and right shoulder.”8
On October 24, 2016, Plaintiff filed a complaint against Scenic Tours (USA) Inc.9 On
October 3, 2017, Plaintiff amended the complaint, adding Scenic Tours Europe AG (“Scenic
Europe”), MS Emerald Star AG, and Couples Cruise, LLC (“Couples Cruise”) as defendants in
the action.10 On March 8, 2018, the Clerk of Court granted an entry of default against Couples
Cruise, LLC.11 On November 9, 2018, the Court dismissed Scenic Tours (USA) Inc. as a party via
a joint motion to dismiss.12
On November 5, 2018, the Movants filed the instant motion for summary judgment.13 On
November 13, 2018, the Court granted oral argument on the motion.14 Also on November 13,
6
Rec. Doc. 1 at 2.
7
Id.
8
Id.
9
Rec. Doc. 1.
10
Rec. Doc. 42.
11
Rec. Doc. 69.
12
Rec. Doc. 93.
13
Rec. Doc. 81.
14
Rec. Doc. 96.
2
2018, Plaintiff filed an opposition to the motion.15 With leave of Court, the Movants filed a reply
on November 19, 2018.16 On November 21, 2018, the Court heard oral argument on the motion.17
II. Parties’ Arguments
A.
The Movants’ Arguments in Support of the Motion for Summary Judgment
The Movants urge the Court to grant summary judgment in their favor for two reasons.18
First, the Movants argue that Plaintiff’s suit is improperly filed in this Court because Plaintiff is
bound by a forum selection clause to pursue all litigation against the Movants in a civil court in
Switzerland.19 Next, the Movants assert that they are not liable for negligence because they had no
duty to Plaintiff regarding the fire door sill.20
1.
Forum Selection Clause Agreement
The Movants contend that prior to embarking on the cruise, Plaintiff received notice that
she would be bound by a forum selection clause agreement (“FSC”).21 The Movants assert that
Scenic Europe chartered the MS EMERALD STAR to Couples Cruise.22 The Movants allege that
they issued a ticket to Couples Cruise, and the Passenger Ticket Terms and Conditions (“PTTC”)
“contain[ed] a provision that provides that the sole jurisdiction for any suit by any passenger or
15
Rec. Doc. 97.
16
Rec. Doc. 100.
17
Rec. Doc. 109.
18
Rec. Doc. 81-12 at 1.
19
Id. at 2.
20
Id. at 3.
21
Id. at 2.
22
Id.
3
any person in a passenger’s party against MV Emerald Star AG and/or its agents is in the civil
court in Basel, Switzerland.”23
The Movants further allege that Plaintiff had notice of this provision because her friends
and hosts, Teresa and Robert Hannaford (“the Hannafords”), received the ticket, and “under the
general maritime law a guest of a fellow passenger, who has received notice of the provisions of a
ticket, has constructive notice of the contractual limitations associated with the ticket, even if the
guest has never had possession of the ticket and has no actual contractual limitations.”24 Thus, the
Movants argue that Plaintiff had constructive notice of the terms of the FSC.25
The Movants further argue that the terms of the FSC are enforceable under federal maritime
law.26 The Movants assert that the Hannafords, and hence Plaintiff, received and agreed to the
terms before embarking and the terms were not unreasonable so as to preclude enforcement.27 The
Movants allege that the FSC “is clear and unambiguous” and was “in readable print and not hidden
in a voluminous document or on the back of another document.”28 Further, the Movants contend
that it is not unfair to have Switzerland as a chosen forum when the cruise was in Europe.29 The
Movants assert that Plaintiff admitted in her deposition that she has traveled to Europe at least
23
Id.
24
Id. at 3.
25
Id. at 20–21.
26
Id. at 21–22.
27
Id. at 22.
28
Id. at 23.
29
Id. at 22–23.
4
twice, and Swiss law would not be unfair or “deprive Plaintiff of a remedy.”30 Therefore, the
Movants argue that the FSC should be enforced.31
2.
Negligence
Next, the Movants argue that they are not liable for negligence because Plaintiff cannot
prove that the Movants had a duty to her or that they breached any duty.32 The Movants first assert
that the fire door sill was not a dangerous condition because it “complies with all law, rules and
regulations.”33 The Movants rely on the Declarations of Lucas Sandmeier (“Mr. Sandmeier”), the
General Manager of Operations and Administration for Scenic Europe, and Bas Joormann (“Mr.
Joormann”), an individual with 30 years of experience in design, construction, and certification of
inland waterway passenger vessels.34 The Movants assert that these declarations establish that “the
EMERALD STAR, in general, and the fire door sill at issue, in particular, complied with all
applicable laws, rules and regulations and had acquired all legally required certificates and
documentation.”35 The Movants also point to Mr. Joormann’s statement that the EMERALD
STAR was manufactured similar to other European ships and the fire door sill had a “very common
construction for fire door sills on many vessels.”36
30
Id. at 23.
31
Id. at 24.
32
Id.
33
Id. at 3.
34
Id. at 5–9.
35
Id. at 25.
36
Id. at 9.
5
Next, the Movants assert that the fire door sill did not create an unreasonable risk to
Plaintiff because it was an “open and obvious condition” of which Plaintiff was aware.37 The
Movants argue that Plaintiff “successfully traversed the fire door sill at issue at least 40-50 times
over the seven plus days she was on the ship before the occasion when she tripped on October 27,
2015.”38 The Movants further assert that “Plaintiff could have easily avoided tripping on the open
and obvious fire door sill by paying reasonable attention to where she was going, which she
admittedly did not do.”39 The Movants allege that “[a]t the time of the incident, Plaintiff was
hurrying to the ship’s dining room for lunch, talking to her husband and she cannot attest that she
was paying proper attention at the time that she fell.”40 Accordingly, the Movants argue that
Plaintiff was “not in ordinary use of her senses” and “her injury could have been avoided.”41
Finally, the Movants argue that they did not breach a duty to Plaintiff because they had no
knowledge of a dangerous condition.42 The Movants allege that they did not construct the fire door
sill,” and they “had no knowledge, prior to October 27, 2015, that the fire door sill posed any risk
of injury to passengers.”43 The Movants allege that “over 17,000 passengers and crew” have
traversed the ship and there have been “no reported incidents with the fire door sill, other than the
37
Id. at 24.
38
Id. at 3.
39
Id. at 26.
40
Id. at 3.
41
Id. at 26 (citing Lombardi v. NCL (Bahamas) Ltd., No. 15-20966, 2016 WL 1429586, at *2 (S.D. Fla. Apr.
12, 2016)).
42
Id. at 26.
43
Id. at 3.
6
one involving Plaintiff.”44 For these reasons, the Movants argue that they did not breach a duty to
Plaintiff and the motion for summary judgment should be granted.45
B.
Plaintiff’s Arguments in Opposition to the Motion for Summary Judgment
In opposition, Plaintiff asserts that the Movants waived their right to assert improper venue
and that several issues of material fact remain regarding whether the Movants breached a duty to
Plaintiff.46 First, Plaintiff asserts that the Movants waived their right to assert improper venue when
they failed to raise the issue in their answer to the complaint or in a separate motion to dismiss.47
Next, Plaintiff argues that there remain genuine issues of material fact as to whether the fire door
sill presented an unreasonable risk of harm to Plaintiff, whether the Movants were on notice of the
dangerous condition, and whether the Movants failed to adequately warn Plaintiff of the
condition.48
1.
Forum Selection Clause Agreement
Plaintiff asserts that the Movants “waived the defense of improper venue.”49 Plaintiff
contends that “[u]nder Federal Rule of Civil Procedure 12(b)(3), the defense of improper venue
must be raised by either a pre-answer motion to dismiss or in a responsive pleading.”50 Plaintiff
alleges that the Movants “failed to file a motion to dismiss and failed to assert improper venue as
44
Id.
45
Id. at 27.
46
Rec. Doc. 97 at 1.
47
Id. at 1.
48
Id. at 1–2.
49
Id. at 1.
50
Id.
7
an affirmative defense in their Answer.”51 Plaintiff further asserts that the Movants stated in their
answer that “they do not contest this Court’s jurisdiction over this dispute or that venue is
proper.”52 Plaintiff further asserts that the Movants’ “waiver is further documented by the
Scheduling Order in this matter which provides, after a conference with the parties, that
‘jurisdiction and venue are established.’”53 Therefore, Plaintiff contends that the Movants have
waived the ability to enforce the FSC.
2.
Negligence
Plaintiff also argues that several genuine issues of material fact remain in the case on
whether the fire door sill presented an unreasonable risk of harm to Plaintiff, whether the Movants
were on notice of the dangerous condition, and whether the Movants failed to adequately warn
Plaintiff of the condition.54 First, Plaintiff asserts that the Movants “had actual knowledge the fire
door sill was an unreasonable risk of harm because during the site inspection of the Emerald
Waterways vessel, Teresa Hannaford, co-owner of Defendant, Couples Cruise, LLC, slipped and
fell on the exact same fire door sill injuring her knee.”55 Plaintiff alleges that Paola Guzman, the
head of international sales for the Movants, was present for the site inspection and witnessed the
fall.56 Plaintiff argues that Teresa Hannaford’s (“Mrs. Hannaford”) fall put the Movants on notice
that the fire door sill was a “dangerous condition,” yet, the Movants “failed to take any corrective
51
Id. at 1–2.
52
Id. at 10 (quoting Rec. Doc. 53).
53
Id. at 10 (quoting Rec. Doc. 26).
54
Id. at 1–2.
55
Id. at 2.
56
Id.
8
action to prevent the dangerous condition from causing injury to any other passengers, including
Plaintiff.”57
Plaintiff asserts that the Movants and Couples Cruise coordinated to address two other
issues that caused injuries during the site inspection, but failed to address the fire door sill as a
hazard.58 Plaintiff further asserts that after she fell, Robert Hannaford (“Mr. Hannaford”), sent an
email to Paola Guzman stating, “‘A passenger, Sharon Marten, fell today when she tripped over
the raised section in the hallway. If you remember, Tess tripped on the same exact obstacle on our
site inspection after being on board for a very short time.’ ‘The obstacle is painted with yellow
stripes, but it is a hazard.’”59 Plaintiff asserts that “despite clear notice that this area was a problem,
neither the Hannafords or[sic] Scenic addressed the problem by placing signs or clear markings to
warn that the stainless-steel strip posed a safety risk to passengers.”60
Next, Plaintiff contends that this case is similar to Thomas v. W&T Offshore, Inc.,61 where,
Plaintiff argues, this Court “determined that the question of whether a particular condition was an
open and obvious hazard was a genuine question of material fact that could not be decided on a
motion for summary judgment.”62 Plaintiff asserts that the plaintiff in Thomas alleged that he
tripped and fell on a vessel, but the defendant insisted it did not have a duty to plaintiff because
the condition was “open and obvious.”63 Plaintiff asserts that this Court applied Louisiana law to
57
Id.
58
Id. at 3–5.
59
Id. at 7 (quoting Rec. Doc. 81-8 at 41–42).
60
Id.
61
No. 16-14694, 2018 WL 4223589 (E.D. La. Aug. 27, 2018).
62
Rec. Doc. 97 at 11.
63
Id.
9
the facts to find that despite the defendant’s assertion that no dangerous condition existed, the issue
was one for the trier of fact.64 Plaintiff also asserts that “[i]t is squarely within the province of the
trier-of-fact to determine the degree to which [Plaintiff] could have, or should have observed, the
fire door sill.”65 Thus, Plaintiff urges this Court to deny the Movants’ motion for summary
judgment.66
C.
The Movants’ Arguments in Further Support of the Motion for Summary Judgment
In reply, the Movants argue that Plaintiff “failed to demonstrate any valid reason or basis
to bar or limit the enforcement of [the] forum selection provision.”67 The Movants assert that under
both Louisiana and federal law “Plaintiff bears the burden of proving that [the Movants] waived
their right to seek enforcement of the forum selection [clause.]”68 The Movants contend that
“[w]aiver of a forum selection clause does not occur when a party fails to file [a] motion to dismiss
in advance of answering because [t]here is, however, a strong public policy in favor of enforcing
forum selection clauses, and as such, waiver of a forum selection clause should not be found
lightly.”69 The Movants assert that a defendant may raise a forum selection clause as a defense
64
Id. at 11–14 (citing Hutchinson v. Knights of Columbus, 2003-1533 (La. 2/20/04); 866 So.2d 228, 235 (the degree
to which a danger may be observed by a potential victim is one factor in the determination of whether the condition
is unreasonably dangerous); Eisenhardt v. Snook, 2008-1287, (La. 3/17/09), 8 So.3d 541, 544-45 (“It is the court’s
obligation [i.e., the trier of fact] to decide which risks are unreasonable based upon the circumstances of each case.”);
Waller v. Shelter Mut. Ins. Co., 41-215, (La. App. 2 Cir. 6/28/06), 935 So.2d 288, 289-290 (“Whether a defect presents
an unreasonable risk of harm is a mixed question of fact and law that is a peculiarly a question for the jury or trier of
fact.”)).
65
Id. at 14.
66
Id. at 14–15.
67
Id. at 3–4.
68
Id. at 2 (citing Steptore v. Masco Const. Co., 93-2064 (La. 8/18/94), 643 So.2d 1213, 1216).
69
Id. at 3 (quoting Kasper Glob. Collection & Brokers, Inc. v. Glob. Cabinets & Furniture Mfrs. Inc., 952 F.Supp.2d
542, 566-570 (S.D.N.Y. 2013) (internal quotation marks omitted)).
10
even after the defendant answers.70 Because “Plaintiff failed to demonstrate any valid reason or
basis to bar or limit the enforcement of the forum selection provision,” the Movants contend that
the case should be dismissed.71
The Movants also argue that Plaintiff failed to provide evidence that the fire door sill was
a dangerous condition.72 First, the Movants assert that “‘[Plaintiff] testified in her deposition that
she does not know how she fell.’ Since Plaintiff doesn’t know how she fell, it follows that Plaintiff
has no personal knowledge of whether there was any defect in the fire door sill that caused her
injury or that some defect caused her fall.”73 Then, the Movants argue that “Plaintiff has offered
no evidence that the fire door sill was not in compliance with any applicable law, rule or
regulation.”74
The Movants also allege that testimony regarding Mrs. Hannaford’s fall during the vessel
inspection is “inadmissible and irrelevant evidence.”75 The Movants assert that this evidence is
particularly irrelevant on the issue of a dangerous condition because “Ms. Hannaford’s incident
undeniably happened because she was not paying attention, like Plaintiff. Both Mr. and Ms.
Hannaford testified that Ms. Hannaford fell because she was not paying attention and that she is
clumsy and often falls.”76 The Movants also object to Plaintiff’s use of the “conclusory statements
and opinions of Mr. Hannaford” and Plaintiff’s own “speculative and conclusory statement that
70
Id.
71
Id. at 3–4.
72
Id. at 4.
73
Id. (quoting Rec. Doc. 81-2).
74
Id.
75
Id.
76
Id. (citing Rec. Doc. 81-7, 81-8).
11
the fire door sill was not ‘clearly marked’ and that the fire door sill was a ‘hazardous condition.’”77
The Movants contend that Plaintiff’s “testimony is inadmissible non-expert opinion testimony
regarding warnings.”78 Finally, the Movants assert that Plaintiff’s reliance on Louisiana law is
misplaced because the case is governed by general maritime law.79
Last, the Movants argue the fire door sill was an “open and obvious condition” that the
Movants had no duty to warn Plaintiff about.80 The Movants assert that Plaintiff has not shown
that the Movants had actual or constructive knowledge of the condition.81 The Movants contend
that Mrs. Hannaford’s fall during the vessel inspection does not establish actual or constructive
notice as Mrs. Hannaford admitted she fell because she was not paying attention.82 The Movants
further argue that even if Paola Guzman was present for the fall, “[k]nowledge of a mere employee
of the corporation ordinarily is not imputed to the company.”83 Accordingly, the Movants assert
that Plaintiff presents no evidence that the company was on notice of a dangerous condition
because of Mrs. Hannaford’s fall.84 For these reasons, the Movants urge the Court to grant their
motion for summary judgment.85
77
Id. at 4–5.
78
Id. at 5.
79
Id.
80
Id. at 5–7.
81
Id. at 7.
82
Id.
83
Id. at 8 (citing 10 WILLIAM MEADE FLETCHER ET AL., FLETCHER CYCLOPEDIA OF THE LAW OF
CORPORATIONS § 807 (2012)).
84
Id.
85
Id. at 10.
12
III. Legal Standard
Summary judgment is appropriate when the pleadings, the discovery, and any affidavits
show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.”86 When assessing whether a dispute as to any material fact exists, the court
considers “all of the evidence in the record but refrains from making credibility determinations or
weighing the evidence.”87 All reasonable inferences are drawn in favor of the nonmoving party,
but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and
conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”88
If the record, as a whole, “could not lead a rational trier of fact to find for the non-moving party,”
then no genuine issue of fact exists, and the moving party is entitled to judgment as a matter of
law.89 The nonmoving party may not rest upon the pleadings, but must identify specific facts in
the record and articulate the precise manner in which that evidence establishes a genuine issue for
trial.90
The party seeking summary judgment always bears the initial responsibility of informing
the Court of the basis for its motion and identifying those portions of the record that it believes
demonstrate the absence of a genuine issue of material fact.91 “To satisfy this burden, the movant
may either (1) submit evidentiary documents that negate the existence of some material element
86
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994).
87
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).
88
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.
89
Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
90
See Celotex, 477 U.S. at 325; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
91
Celotex, 477 U.S. at 323.
13
of the opponent’s claim or defense, or (2) if the crucial issue is one on which the opponent will
bear the ultimate burden of proof at trial, demonstrate that the evidence in the record insufficiently
supports an essential element of the opponent’s claim or defense.”92 If the moving party satisfies
its initial burden, the burden shifts to the nonmoving party to “identify specific evidence in the
record, and articulate” precisely how that evidence supports his claims.93
In doing so, the nonmoving party may not rest upon mere allegations or denials in its
pleadings, but rather must set forth “specific facts showing the existence of a ‘genuine’ issue
concerning every essential component of its case.”94 The nonmovant=s burden of demonstrating a
genuine issue of material fact is not satisfied merely by creating “some metaphysical doubt as to
the material facts,” “by conclusory allegations,” by “unsubstantiated assertions,” or “by only a
scintilla of evidence.”95 Rather, a factual dispute precludes a grant of summary judgment only if
the evidence is sufficient to permit a reasonable trier of fact to find for the nonmoving party.
Hearsay evidence and unsworn documents that cannot be presented in a form that would be
admissible in evidence at trial do not qualify as competent opposing evidence.96
IV. Analysis
As stated more fully above, the Movants argue that the Court should grant summary
judgment because the case is governed by the FSC, but even if the FSC is unenforceable, the
92
Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir. 1991) (citing Little v. Liquid Air Corp., 939 F.2d 1293,
1299 (5th Cir. 1991)).
93
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994); see also Morris v. Covan
World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
94
Morris, 144 F.3d at 380 (citing Thomas v. Price, 975 F.2d 231, 235 (5th Cir. 1992); see also Bellard v. Gautreaux,
675 F.3d 454, 460 (5th Cir. 2012).
95
Little, 37 F.3d at 1075.
96
Fed. R. Civ. P. 56(c)(2); Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987).
14
Movants did not breach a duty toward Plaintiff.97 In opposition, Plaintiff argues that the Movants
waived their ability to assert improper venue based on the FSC and that there remain several issues
of material fact regarding whether the Movants breached a duty in maintaining the fire door sill.98
A.
The Forum Selection Clause Agreement
1.
Waiver of the Right to Enforce the FSC
The Movants argue that the FSC requires that this case be litigated in a civil court in
Switzerland.99 Plaintiff asserts that under Federal Rule of Civil Procedure 12(h), the Movants
waived their right to assert this argument because they did not previously raise the issue in their
answer or in a motion to dismiss.100 Federal Rule of Civil Procedure 12(h) provides, in relevant
part, that a party waives the right to raise the defense of improper venue under Rule 12(b)(3) “by
“failing to either: (i) make it by motion under this rule; or (ii) include it in a responsive pleading
or in an amendment allowed by Rule 15(a)(1) as a matter of course.”101 Here, the Movants failed
to raise the FSC in their answer or any prior documents. Thus, the Movants would not be entitled
to raise the FSC if enforcement of the FSC is properly characterized as an improper venue defense.
However, in Atl. Marine Constr. Co., Inc. v. U.S. Dist. Ct. W.D. Tex.,102 the United States
Supreme Court concluded that “Rule 12(b)(3) motions are not proper mechanisms to enforce a
forum-selection clause.”103 The Court reasoned that Rule 12(b)(3) only applies where venue is
97
Rec. Doc. 81-12 at 2–4.
98
Rec. Doc. 97 at 1–2.
99
Rec. Doc. 81-12 at 20–21.
100
Rec. Doc. 97 at 9–11.
101
Fed. R. Civ. P. 12(h).
102
571 U.S. 49 (2013).
103
Id. at 580.
15
improper because the facts of the case fail to satisfy one of the criteria described in 28 U.S.C. §
1391.104 However, if the case fits within one of the provisions of § 1391, then venue is proper and
“a forum-selection clause does not [then] render venue in a court ‘wrong’ or ‘improper.’”105
Instead, the Court views the forum selection clause as a separate issue, best analyzed as a motion
to transfer.106 The Court specifically noted that “the appropriate way to enforce a forum-selection
clause pointing to a state or foreign forum is through the doctrine of forum non conveniens.”107
In Weber v. PACT XPP Techs., AG, the Fifth Circuit followed the Supreme Court’s
decision in Atlantic Marine, declaring that “the proper mechanism to enforce an [sic] FSC that
calls for litigation in a domestic state court or in a foreign court is through a motion to dismiss on
grounds of [forum non conveniens].”108 In the instant motion, the Movants argue that the litigation
is governed by the FSC that mandates a civil court in Switzerland as the proper forum.109 Because
the forum selection clause at issue calls for litigation in a foreign court, Fifth Circuit precedent
directs this Court to analyze the waiver and enforceability of the FSC under the doctrine of forum
non conveniens (“FNC”).
Fifth Circuit law is unsettled on what constitutes waiver of a FSC, and the Circuit has noted
that “[t]here is a lack of authority determining whether federal or state law principles control the
104
Id.
105
Id. at 579.
106
Id. The Supreme Court acknowledged that some circuits treat a forum selection clause argument as a 12(b)(6)
motion to dismiss but declined to rule on whether it is an appropriate mechanism because the issue was not before it
in that case. Id.at 580. The Fifth Circuit has likewise declined to decide “[w]hether Rule 12(b)(6) is a valid mechanism
for enforce a forum selection clause.” Sultana Entm't, L.L.C. v. Gutierrez, 740 F. App'x 81, 82 (5th Cir. 2018).
107
Atlantic Marine, 571 U.S. at 580.
108
811 F.3d 758, 766 (5th Cir. 2016)
109
Rec. Doc. 81-12 at 20–21.
16
standard for determining a party's waiver of rights under a forum selection clause.” 110 Yet, the
Fifth Circuit has articulated two potential tests to access whether a defendant has waived
enforcement a forum selection clause.111 One line of authority “applies a traditional waiver
standard to forum selection clauses.”112 “These cases hold that waiver of a forum selection clause
requires: ‘(1) an existing right, benefit, or advantage; (2) actual or constructive knowledge of its
existence; and (3) actual intent to relinquish that right.’”113 Waiver can also occur if a party engages
in “conduct so inconsistent with the intent to enforce the right as to induce a reasonable belief that
it has been relinquished.”114 “A second line of authority, articulating both federal and [state]law,
would apply essentially the test used by federal courts to assess waiver of arbitration clauses, which
are a species of forum selection clause.”115 Under this test, “the party to the [forum selection]
clause waives its right if it ‘(1) substantially invokes the judicial process [in derogation of the
forum selection clause] and (2) thereby causes detriment or prejudice to the other party.’”116
Under the first line of authority that examines whether a party “intentionally or voluntarily
relinquished its rights under the clause,” courts look to whether a party already raised the forum
selection clause argument in earlier pleadings or other legal settings.117 If a party asserts a forum
110
SGIC Strategic Glob. Inv. Capital, Inc. v. Burger King Europe GmbH, 839 F.3d 422, 426 (5th Cir. 2016) (quoting
Wellogix, Inc. v. SAP Am., Inc., 648 Fed. Appx. 398, 401 (5th Cir. 2016)).
111
Id.
112
Id. at 426.
113
Id. at 426 (quoting GP Plastics Corp. v. Interboro Packaging Corp., 108 Fed. Appx. 832, 835–36 (5th Cir. 2004)).
114
Id. (quoting N. Am. Specialty Ins. Co. v. Debis Fin. Servs., Inc., 513 F.3d 466, 470 (5th Cir. 2007)).
115
Wellogix, 648 Fed. Appx. at 401.
116
Id. at 402 (quoting Al Rushaid v. Nat'l Oilwell Varco, Inc., 757 F.3d 416, 421 (5th Cir. 2014)).
117
Id. at 401 (finding that defendant successfully enforced the clause by using it in other litigation and preserving
rights when filing documents in the current case); GP Plastics Corp., 108 Fed. Appx. at 836–37 (finding forum
selection clause not waived where defendant already filed litigation in the forum).
17
selection clause within litigation, this may demonstrate that the party did not intend to relinquish
the right.118 However, where a defendant failed to raise the argument earlier in a case and never
submitted a motion to dismiss based on that argument, these actions can be indicative of a party
“intentionally and voluntarily relinquish[ing] its rights under the forum-selection clause through
‘conduct so inconsistent with the intent to enforce the right as to induce a reasonable belief that it
has been relinquished.’”119
Analyzed under the first line of authority, the Movants engaged in several actions that
seemed to waive their right to assert that the FSC applies. In the thirteen months since the Movants
were joined in the litigation, they did not raise enforcement of the FSC argument in their answers
or any prior motions. Further, the Movants stated in their answer that “[t]o the extent that a
response is required, Defendants state that they do not contest this Court’s jurisdiction over this
dispute or that venue is proper.”120 Though Atlantic Marine clarified that a FSC can apply even
where venue is proper, the Movants’ admission that they did not contest this Court’s jurisdiction
could signal their intent to relinquish the right to enforce the FSC. Further, even if the Court
stopped short of drawing this conclusion, the Movants acceptance of this Court’s jurisdiction could
118
GP Plastics Corp., 108 Fed. Appx. at 836–37.
119
Hampton v. Equity Tr. Co., 736 F. App'x 430, 436 (5th Cir. 2018) (quoting SGIC Strategic, 839 F.3d at 426); Am.
Int'l Grp. Europe S.A. (Italy) v. Franco Vago Int'l, Inc., 756 F. Supp. 2d 369, 381 (S.D.N.Y. 2010) (finding waiver of
the forum selection clause where the “[defendant] made no mention of the clause in its answer, nor did it at any time
file a motion to dismiss based on the forum selection clause”); MoneyForLawsuits V LP v. Rowe, No. 4:10-CV-11537,
2012 WL 1068171, at *5 (E.D. Mich. Jan. 23, 2012) (finding waiver where defendants failed to raise the issue in their
answers or a motion to dismiss or transfer the case); In re Deleas Shipping Ltd., 1996 AMC 434 (W.D. Wash. 1995)
(“forum selection clause will be deemed waived if the party invoking it has taken actions inconsistent with it, or
delayed its enforcement, and other parties would be prejudiced.”); In re Rationis Enterprises, Inc. of Panama, No. 97
CV 9052 (RO), 1999 WL 6364, at *2 (S.D.N.Y. Jan. 7, 1999).
120
Rec. Doc. 53 at 6.
18
at the least represent “conduct so inconsistent with the intent to enforce the right as to induce a
reasonable belief that it has been relinquished.”121
Similarly, the Movants may have waived the FSC under the second line of authority. In
applying the second line of authority, the Fifth Circuit examines the extent to which a party has
invoked the judicial process to the detriment of the other party.122 The Fifth Circuit stated that “[t]o
invoke the judicial process, a party must, at the very least, engage in some overt act in court that
evinces a desire to resolve the...dispute through litigation. Litigation on the merits can substantially
invoke the judicial process.”123 An example of litigation on the merits can be a party delaying
filing an opposition based on a FSC and never filing a motion to dismiss or transfer venue.124 Yet,
the Fifth Circuit has also looked for more substantive reliance on the judicial process such as
pursuing litigation in another forum or seeking a decision on the merits.125
Here, it is arguable that the Movants invoked the judicial process by litigating the case in
this Court for over a year and filing joint documents with the Plaintiff in observation of this Court’s
deadlines and rules.126 The Movants did not assert enforcement of the FSC in any document before
the instant motion for summary judgment and they did not mention the FSC in the joint status
121
SGIC Strategic, 839 F.3d at 426.
122
Hampton, 736 F. App’x at 435.
123
Id. (quoting In re Mirant Corp., 613 F.3d 584, 589 (5th Cir. 2010)) (internal citations omitted).
124
Id. at 436.
See id. (finding that defendant substantially invoked the judicial process after “ignoring readily available
mechanisms for invoking the forum-selection clause,” conducting depositions, completing discovery, delaying two
years, and filing a summary-judgment motion based on res judicata); In re Mirant Corp., 613 F.3d at 589 (finding
invocation of the judicial process where defendant filed two motions to dismiss based on affirmative defenses of
waiver and release); see also Petroleum Pipe Ams. Corp. v. Jindal Saw, Ltd., 575 F.3d 476, 480 (5th Cir. 2009) (“A
party waives arbitration by seeking a decision on the merits before attempting to arbitrate.”).
125
126
See Rec. Docs. 57, 72.
19
report that was filed on May 3, 2018.127 The Movants also included negligence arguments in the
instant motion “as an independent and alternative basis for dismissal of Plaintiff’s suit, with
prejudice.”128 In In re Mirant Corp., the Fifth Circuit acknowledged that seeking a dismissal with
prejudice can be a decision on the merits.129
The Movants also created some prejudice to Plaintiff by invoking the judicial process in
this Court. Per the Fifth Circuit, “[p]rejudice in the context of arbitration waiver refers to delay,
expense, and damage to a party’s legal position.”130 Though this statement focuses on waiver of
an arbitration clause, the Fifth Circuit has acknowledged that arbitration clauses “‘are a species of
forum selection clause.’”131 Applying concepts of delay and expense to this case, the Court notes
that the litigants engaged in litigation for over a year, taking depositions and completing discovery.
The Movants raised enforcement of the FSC after Plaintiff had expended significant effort and
expense to litigate in this forum. Requiring Plaintiff to litigate the case to Switzerland would not
only delay Plaintiff’s case, but because Plaintiff has litigated in this Court for two years, it could
prejudice Plaintiff’s legal position.
Despite several factors indicating that the Movants waived enforcement of the FSC, this
Court also acknowledges that there is “a ‘strong public policy’ in favor of enforcing forum
selection clauses, and as such, waiver of a forum selection clause ‘should not be found lightly.’”132
127
Rec. Doc. 72.
128
Rec. Doc. 81-12 at 3.
129
In re Mirant Corp., 613 F.3d at 589.
130
Hampton, 736 F. App'x at 435 (quoting Nicholas v. KBR, Inc., 565 F.3d 904, 910 (5th Cir. 2009)).
131
SGIC Strategic, 839 F.3d at 426 (quoting Wellogix, 648 Fed. Appx. at 401).
132
Wachovia Bank Nat'l Ass'n v. EnCap Golf Holdings, LLC, 690 F.Supp.2d 311, 327 (S.D.N.Y. 2010) (internal
citations omitted).
20
Several courts have declined to find that a party waived enforcement a forum selection clause even
where there was delay in invoking the argument.133 Further, while the Movants have delayed in
asserting the enforceability of the FSC, they did not pursue litigation in any other forums and did
not seek a decision on the merits in any prior motions. Thus, while the Movants may have waived
enforcement of the FSC, there are also arguments that support the Movants’ assertion that their
ability to seek enforcement of the FSC was not waived. For these reasons, and also because Fifth
Circuit precedent on this issue remains unsettled, this Court will not rule on whether the FSC was
waived. Instead the Court will follow the Supreme Court’s directive in Atlantic Marine and analyze
the enforcement of the FSC under the doctrine of forum non conveniens.
2.
Enforceability of the Forum Selection Clause
As stated above, “[t]he Supreme Court recently clarified that ‘the appropriate way to
enforce a forum-selection clause pointing to a state or foreign forum is through the doctrine of
forum non conveniens.’”134 According to the Fifth Circuit, “the analysis of forum non conveniens
turns in large part on whether the forum selection clause is enforceable.”135 Courts typically “apply
a ‘strong presumption’ in favor of enforcing mandatory forum-selection clauses.”136 “This
presumption may be overcome by a clear showing that a forum-selection clause is ‘unreasonable’
under one of the following circumstances:”
(1) [T]he incorporation of the forum-selection clause into the agreement was the
product of fraud or overreaching; (2) the party seeking to escape enforcement will
for all practical purposes be deprived of his day in court because of the grave
inconvenience or unfairness of the selected forum; (3) the fundamental unfairness
133
Id.; Kasper Glob. Collection & Brokers, Inc. v. Glob. Cabinets & Furniture Mfrs. Inc., 952 F. Supp. 2d 542, 567
(S.D.N.Y. 2013).
134
Barnett v. DynCorp Int'l, L.L.C., 831 F.3d 296, 300 (5th Cir. 2016) (quoting Atlantic Marine, 571 U.S. at 580).
135
Vloeibare Pret Ltd. v. Lloyd's Register N. Am., Inc., 606 F. App'x 782, 784 (5th Cir. 2015).
136
Al Copeland Investments, L.L.C. v. First Specialty Ins. Corp., 884 F.3d 540, 543 (5th Cir. 2018).
21
of the chosen law will deprive the plaintiff of a remedy; or (4) enforcement of the
clause would contravene a strong public policy of the forum state.137
The party resisting enforcement on these grounds bears a “heavy burden of proof.”138
In this case, Plaintiff’s only argument against the FSC is that the Movants waived
enforcement of the clause. Plaintiff does not present any evidence that the FSC is unreasonable.
Under The Breman’s standard, Plaintiff failed to meet her “heavy burden of proof.”139 However,
the Supreme Court’s decision in Carnival Cruise Lines, Inc. v Shute, guides this Court in
independently examining enforcement of the FSC for fairness.140
In Carnival Cruise Lines, the Supreme Court found that a forum selection clause in a cruise
ship contract is enforceable where the clause is reasonable.141 The Court noted a cruise line’s
interest in limiting the fora in which it can be subject to suit, the saved expense of parties litigating
over a correct forum, and reduced fares resulting from a cruise line limiting the fora in which it
can be sued.142 The Court further found that the Plaintiff did not meet her “heavy burden of proof”
in showing that the enforcement of the clause was inconvenient because Florida was not a “remote
alien forum” and the alleged accident was not local to Plaintiff’s home state of Washington.143 The
Court also noted that the Plaintiff presented no evidence of fraud, overreaching, or lack of notice.144
137
Id. at 543 (quoting Haynsworth v. The Corp., 121 F.3d 956, 962 (5th Cir. 1997)).
138
Haynsworth, 121 F.3d at 963 (quoting The Bremen v. Zapata Off–Shore Co., 407 U.S. 1, 17 (1972)).
139
The Bremen, 407 U.S. at 17.
140
Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595 (1991).
141
Id.
142
Id. at 593–94.
143
Id.
144
Id. at 595–96.
22
Although the Court determined that the Plaintiff had not met her burden of proof, it emphasized
that “forum-selection clauses contained in form passage contracts are subject to judicial scrutiny
for fundamental fairness.”145
Some courts have interpreted this statement to indicate that “although a party would
continue to bear ‘the heavy burden of proof’ established in The Bremen, courts remain[] free to
examine these clauses for proof of a lack of ‘fundamental fairness,’ including for the concerns
identified in The Bremen such as fraud or overreaching, or a lack of notice to the party resisting
enforcement.”146 Here, though Plaintiff does not present any evidence to meet her burden of proof
that the FSC is unreasonable, counsel for the defense presented information during oral argument
that compels this Court to examine whether there was a lack of notice that would render
enforcement of the FSC fundamentally unfair.
During oral argument, the Movants’ counsel informed the Court that though Mrs.
Hannaford previously stated in her deposition that she had obtained a copy of the PTTC, when she
later searched her email for the document, she was unable to locate it. The Movants’ counsel
indicated that Mrs. Hannaford now only recalls receiving a copy of a PTTC when she went on the
site inspection of a different ship. Thus, it remains unclear whether Mrs. Hannaford received a
PTTC regarding the EMERALD STAR. Though defense counsel urged the Court that Mrs.
Hannaford’s deposition testimony stating that she received notice is what should control, the Court
now has conflicting facts in the record on whether Mrs. Hannaford received notice of the FSC.
145
Id. at 596.
146
Estate of Myhra v. Royal Caribbean Cruises, Ltd., 695 F.3d 1233, 1241 (11th Cir. 2012) (quoting Carnival Cruise
Lines, 499 U.S. at 595); see also Monteville v. M/V ENCHANTED SEAS, No. 95-3762, 1992 WL 752899, at *1 (E.D.
La. Apr. 16, 1996) (independently finding adequate notice on even though plaintiff did not meet the burden of proof).
23
The Movants’ argument that the FSC should be enforced against Plaintiff is based on the
premise that as the Hannafords’ guest on the EMERALD STAR, Plaintiff received constructive
notice of the FSC via her fellow passengers. Yet, if Mrs. Hannaford did not receive notice of the
FSC for the specific cruise in question, then this notice cannot be imputed to Plaintiff. “[I]n order
for a forum selection clause to be enforceable, it must have been reasonably communicated to the
non-drafting party.”147 Because it is unclear whether Mrs. Hannaford, and hence Plaintiff, received
notice of the FSC terms, there remains a genuine issue of material fact. Accordingly, the Court
will deny the Movants request for summary judgment on enforcing the forum selection clause.
B.
Negligence
The Movants argue that under general maritime law, Plaintiff cannot prove that the
Movants had a duty regarding the fire door sill or breached a duty of care regarding Plaintiff. 148
Plaintiff cites Louisiana law for the assertion that the fire door sill was an “open and obvious”
condition that the Movants failed to remedy.149 The Movants replied by asserting that general
maritime law, and not Louisiana law, applies to the case.150
The Fifth Circuit has consistently found that “[i]njuries caused by slip and fall accidents
on board a vessel…constitute maritime torts.”151 The elements of a maritime negligence cause of
147
Flowserve Corp. v. Hallmark Pump Co., No. 09-0675, 2010 WL 2232285, at *2 (S.D. Tex. Feb. 3, 2010) (citing
Carnival Cruise Lines, 499 U.S. at 590); (noting that the non-movant was given notice of the forum provision before
entering the contract); Effron v. Sun Line Cruises, Inc., 67 F.3d 7, 9 (2d Cir. 1995) (noting that “the legal effect of a
forum selection clause depends in the first instance upon whether its existence was reasonably communicated to the
plaintiff”); Effron v. Sun Line Cruises, Inc., 67 F.3d 7, 9 (2d Cir. 1995) (“The legal effect of a forum-selection clause
depends in the first instance upon whether its existence was reasonably communicated to the plaintiff.”).
148
Rec. Doc. 81-12 at 24.
149
Rec. Doc. 97 at 1–2.
150
Rec. Doc. 105-2 at 5.
151
Palmer v. Fayard Moving and Transportation Corp., 930 F.2d 437, 441 (5th Cir. 1991).
24
action are essentially the same as land-based negligence under the common law.152 “To establish
maritime negligence, a plaintiff must ‘demonstrate that there was a duty owed by the defendant to
the plaintiff, breach of that duty, injury sustained by [the] plaintiff, and a causal connection
between the defendant's conduct and the plaintiff's injury.’”153 A duty is owed only with respect to
an interest that is foreseeably jeopardized by an act or omission.”154 A harm is not foreseeable
unless it “might have been anticipated by a reasonably probable result of the act or omission.”155
Here, Plaintiff asserts that the Movants were on notice of a dangerous condition when Mrs.
Hannaford tripped and fell over “the exact same fire door sill” on an “exact same” ship as the
EMERALD STAR.156 Plaintiff contends that Ms. Guzman, an employee of the Movants, was
present for the fall, and this constituted notice to the defendants regarding the hazard presented by
the fire door sill.157 Plaintiff thus argues that her fall was foreseeable and avoidable had the
Movants exercised reasonable care.158 The Movants assert that Mrs. Hannaford fell “because she
was not paying attention, like Plaintiff.”159 The Movants also argue that the fact that Ms. Guzman
witnessed the fall does not equate with the company having notice of that the condition on that
152
Withhart v. Otto Candies, L.L.C., 431 F.3d 840, 842 (5th Cir. 2005).
153
Canal Barge Co., Inc. v. Torco Oil Co., 220 F.3d 370, 376 (5th Cir. 2000) (citing In re Cooper/T. Smith, 929 F.2d
1073, 1077 (5th Cir. 1991)).
154
Penn Mar., Inc. v. Rhodes Elec. Servs., Inc., 41 F. Supp. 3d 507, 516 (E.D. La. 2014), as corrected (Sept. 19, 2014)
(citing In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 211 (5th Cir. 2010)).
155
Id. (quoting In re Great Lakes Dredge & Dock Co. LLC, 6 F.3d at 211–12).
156
Rec. Doc. 97 at 2–3.
157
Id.
158
Id. at 4–5.
159
Rec. Doc. 105-2 at 4.
25
particular ship would pose a hazard to Plaintiff on the EMERALD STAR.160 Examining both sides’
arguments, it is clear there is a genuine issue of material fact over whether the Movants had notice
that the fire door sill was a hazard. The issue of foreseeability, and hence whether the Movants had
a duty regarding the fire door sill, cannot be decided if there is a genuine issue of fact on whether
the Movants had notice of the condition. Accordingly, the Court will deny summary judgment on
the issue of negligence.
V. Conclusion
There remains a genuine issue of material fact on whether Plaintiff had notice of the forum
selection clause and whether the Movants had notice of a dangerous condition. Because genuine
issues of fact remain in the case, the Movants are not entitled to judgment as a matter of law.
Accordingly,
IT IS HEREBY ORDERED that Defendants Scenic Tours Europe AG’s and MS Emerald
Star AG’s “Motion for Summary Judgment”161 is DENIED.
NEW ORLEANS, LOUISIANA, this 19th
day of December, 2018.
__________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
160
Id. at 6–8.
161
Rec. Doc. 81.
26
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?