MEMORANDUM OPINION AND ORDER

HON. GEORGE E. WOODS.

AT A SESSION of said Court, held in the United States Courthouse, in the City of Detroit, State of Michigan, on the 15th day of May, 2000.

PRESENT: THE HONORABLE GEORGE E. WOODS United States District Judge

This matter having come before the Court on Defendant's Motion to Dismiss [Document No. 3];

The Court having reviewed the pleadings submitted herein and being otherwise fully informed in the matter;

IT IS HEREBY ORDERED that Defendant's Motion to Dismiss shall be DENIED.

IT IS FURTHER ORDERED that this matter be transferred to the United States District Court for the Southern District of Florida.

I. INTRODUCTION

Plaintiff, Carol Lauri, was a passenger aboard the Queen Elizabeth II from May 26, 1999, through June 1, 1999. Plaintiff became ill while on board and filed a complaint in Oakland County Circuit Court against Defendant, Cunard Line Limited, alleging negligence.

Defendant removed the matter to this Court and filed this motion requesting dismissal based upon the forum selection clause contained in the Passage Contract. The terms and conditions of the forum selection clause appear in Article 15 on page 7 of the contract. It reads in pertinent part:

SUITS OR LITIGATION OF ANY KIND AND VENUE (A) THIS PASSAGE CONTRACT APPLIES TO CLAIMS, SUITS AND LITIGATION OF ANY KIND WHETHER AGAINST THE COMPANY "IN PERSONAM" OR THE VESSEL "IN REM" OR OTHERWISE. (B) FOR ALL CRUISES WHICH INCLUDE A PORT OF THE UNITED STATES IT IS AGREED BY AND BETWEEN THE PASSENGER(S) AND THE COMPANY THAT ANY AND ALL DISPUTES AND MATTERS WHATSOEVER ARISING UNDER, IN CONNECTION WITH, OR INCIDENT TO THIS PASSAGE CONTRACT SHALL BE LITIGATED, IF AT ALL, IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA. . . .

Defendant's Exhibit A. The Court discusses the merits of Defendant's motion below.

II. DISCUSSION

The enforceability of forum selection clauses is governed byM/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972), and generally are valid. Id. at 10. The rule holds even in cases involving passenger cruise contracts. In Carnival Cruise Lines v. Shute, 499 U.S. 585 (1991), the Supreme Court held that a forum selection clause was enforceable even though it had not been bargained for because it was not fundamentally unfair and the passenger had received reasonable notice of it.

Plaintiff asserts that Shute is distinguishable from her situation because the clause at issue here was not "reasonably communicated" to her and that the clause itself is not reasonable." The Court addresses both arguments below.

A. Was Clause Reasonably Communicated?

To determine whether a forum selection clause has been reasonably communicated, the Court examines the physical characteristics of the ticket, including font, conspicuousness and clarity of notice; and the Court also examines circumstances surrounding the purchase and retention of the ticket. Shankles v. Costa Armatori, S.P.A., 722 F.2d 861, 863-65 (1^st Cir. 1983).

Here, Plaintiff observes that the notice that she was giving up legal rights did not appear on the front of the ticket; it appears on the eleventh page of the passage contract "booklet." Moreover, Plaintiff asserts that Defendant neither pointed out the fact that she was giving up her legal rights nor instructed her to read the entire passage contract. Further, she maintains that the forum selection clause is "buried" in Article 15, on the 17th and 18th pages of the twenty-page booklet. Finally, Plaintiff states that she did not read the passage contract. She concludes that these facts, when combined with the location of the forum selection clause, fail to establish reasonable communication of the clause's existence.

As support for her contention, Plaintiff relies on Berman v. Cunard Line, Ltd., 771 F. Supp. 1175 (S.D.Fla. 1991). The Berman opinion, issued before the Supreme Court's decision in Shute, refused to enforce a forum selection clause. After the Supreme Court decision, the defendant asked for reconsideration, which the Berman court denied. It based its denial on the fact that the plaintiff never read the cruise ticket and was unaware of the provision. The Berman court found that that fact distinguished its case from Shute.

The analysis in the Berman case is not persuasive. It does not address the notice in the ticket. The issue to be resolved in deciding whether the clause is enforceable is not whether the plaintiff had actual knowledge, but whether the information has been reasonably communicated. See also Cross v. Kloster Cruise Lines, Ltd., 897 F. Supp. 1304, 1308 (D.Or. 1995) (collecting cases rejecting the argument that because the passenger had not read the terms the clause was not enforceable).

In the case before this Court, the ticket and passage contract contain a warning at the top of the Passenger's Coupon that it is "ISSUED SUBJECT TO TERMS AND CONDITIONS PRINTED ON THE COVER AND SUCCEEDING PAGES OF THE PASSAGE CONTRACT." Defendant's Reply, Exhibit A. Page 1 of the Passage Contract contains notice at the top of the first page, "IMPORTANT: PLEASE READ ENCLOSED TERMS OF PASSAGE CONTRACT AS IT LIMITS YOUR LEGAL RIGHTS." Id.

The fact that the warnings did not appear on the cover of the ticket do not render them unreasonable. The quoted language is set apart from other information in the ticket and passage contract because it is capitalized. The forum selection clause likewise is capitalized. The clause is written in a straightforward manner. This Court finds that the physical characteristics of the ticket reasonably communicate the information.

Plaintiff also asserts that the clause was not reasonable because she received her ticket and passage contract shortly before boarding the ship. According to Plaintiff, Defendant issued the ticket on or around May 7, 1999, about 19 days before sailing. The cancellation charge, if canceled less than 30 days before the sailing date, is 100% of the full price. See Article 8 of the Passage Contract. Thus, if Plaintiff had chosen not to sail, she would have forfeited her entire fee for the cruise and would have been left alone in an unfamiliar country. These circumstances render the clause unreasonable.

As support for her position, Plaintiff observes that the Shute Court, in upholding the forum selection clause, presumed that the plaintiffs retained the option of rejecting the ticket with impunity. Shute, 499 U.S. at 596. Moreover, in Corna v. American Hawaii Cruises, Inc., 794 F. Supp. 1005 (D.Hawaii 1992), the district court refused to apply a forum selection clause to passengers who received their tickets too late to cancel without forfeiting the entire fare.

The Court finds Plaintiff's argument unpersuasive. Lauri purchased her trip through the Nomads travel group. She testified at her deposition that she has been a member of the Nomads for many years and she was familiar with the manner in which the Nomads operated group trips. The leader held the ticket until shortly before it was needed. Defendant's Exhibit B, Deposition of Plaintiff at 10, 11, 22, 24-25. Defendant did not prevent Plaintiff from reviewing her ticket and passage contract. Moreover, there is ample authority rejecting the argument that the refundability of the tickets is dispositive. See Boyles v. Cunard Line Ltd., No. 93-Civ.5472, 1994 WL 449251 (S.D.N.Y. Jan 11, 1994) (finding a passenger ticket contract enforceable despite a significant cancellation fee); Hicks v. Carnival Cruise Lines, Inc., No. Civ.A. 93-5427, 1994 WL 388678 (E.D. Pa. July 26, 1994) (rejecting argument that terms unreasonable because the plaintiff did not receive her ticket in time to collect refund if she canceled). Accord, Nasale v. Regency Maritime Corp., 94 CV-0256, 1995 WL 117611 (S.D.N.Y. March 17, 1995) (enforcing a passenger ticket contract's statute of limitations despite a penalty of ninety percent of the ticket price).

In sum, the Court finds that Defendant reasonably communicated the terms of the clause to Plaintiff.

B. Reasonableness of Clause

In Bonny v. Society of Lloyd's, 3 F.3d 156, 160 (7^th Cir. 1993) (citing Shute, 499 U.S. at 590-95), cert. denied, 510 U.S. 1113 (1994), the court observed that a forum selection clause is unreasonable if its "incorporation into the contract was the result of fraud, undue influence or overweening bargaining power . . . if the selected forum is so `gravely difficult and inconvenient that [the complaining party] will for all practical purposes be deprived its day in court'" or if enforcement "would contravene a strong public policy of the forum in which the suit is brought, declared by statute or judicial decision." Only the second provision is at issue here.

Specifically, Plaintiff claims that her health would likely prevent her from pursuing this action in Florida and that a transfer would deprive her of her day in court. In addition, Plaintiff observes that her witnesses are in the Detroit area and litigation in Florida would be inconvenient. In contrast, Defendant's witnesses would come from all over this country. Further, Defendant's only tie to Florida may be records of the ship which could be easily transferred to Michigan.

Expense and inconvenience are not enough to nullify the forum selection clause. See, e.g. Hodes v. S.N.C. Achille Lauro ed Altri-Gestione, 858 F.2d 905, 916 (3d Cir. 1988) (upholding a forum selection clause that required situs in Italy); Cross v. Kloster Cruise Lines Ltd., 897 F. Supp. 1304. 1309 (D.Or. 1995) (rejecting argument that passenger's age and limited income warranted setting aside forum clause); Miller v. Regency Maritime Corp., 824 F. Supp. 200, 202 (N.D. Fla. 1992) (finding that passenger's alleged physical and financial inability to travel to forum did not render ticket's forum selection clause fundamentally unfair). Moreover, Plaintiff's health problems did not prevent her from traveling abroad, and she testified in her deposition that she has recovered from her bout with E coli. Defendant's Exhibit B, Plaintiff's Deposition at 39, 42. Accordingly, the Court finds that the clause is fundamentally fair.

C. Transfer

Plaintiff requests that the Court transfer this case to the Southern District of Florida in the event that it finds the forum selection clause is enforceable. Defendant does not protest transfer.

Under 28 U.S.C. § 1406 (a), "the district court of a district 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." Whether dismissal or transfer is appropriate lies within the sound discretion of the district court. See 15 C. Wright, A. Miller E. Cooper, Federal Practice and Procedure § 3827 at 261-62 (2d ed. 1986)

Before the Court would deem transfer appropriate, it must assess whether this action could have been brought in the proposed transferee district. Under the explicit language of the forum selection clause, there is no question that this matter could have been brought in the transferee district. Accordingly, the Court will exercise its statutory authority and, in the interest of justice, will transfer this case to the District Court for the Southern District of Florida.

III. CONCLUSION

For the reasons stated, Defendant's motion to dismiss this matter is DENIED. This matter is hereby transferred to the District Court for the Southern District of Florida.

IT IS SO ORDERED.