Opinion
CIVIL ACTION NO. 01-0738 SECTION "K" (4)
June 25, 2001
MINUTE ENTRY
Before the Court is a Motion to Dismiss filed by defendants Chios Dream Shipping Trading, S.A., Chios Sea Shipping Trading, S.A., Harbor Shipping Trading, S.A., and Sunrise Shipping Agency, Inc. (rec. doc. 6). The motion was originally set for hearing on May 9, 2001 but on plaintiff's motion was reset to June 20, 2001 (rec. doc. 8). The Court took the motion on the papers without oral argument and has considered the pleadings, memoranda and relevant law and finds defendants' motion shall be granted for the reasons that follow.
Background
This basic facts underlying this seaman's suit can summarized concisely. Plaintiff, Nestor Miguel Castillo Flores, is a resident and citizen of the Republic of Nicaragua. On or about June 12, 1998 he joined the M/V CHIOS DREAM, in the Port of New Orleans for a series of voyages between the United States and the Dominican Republic. The CHIOS DREAM is a vessel registered in Panama and owned by a Panamanian corporation. While assisting the Third Assistant Engineer on board the vessel fitting a large section of pipe, on or about October 10, 1998, plaintiff allegedly suffered sever injuries to his lower back. Although he claims to have notified the Master of his injury, plaintiff states that he was instructed to continue work. Nearly one year later, plaintiff was examined by a doctor, who diagnosed plaintiff as having a herniated disk at L3-L4. Nevertheless, plaintiff joined a second vessel, the M/V CHIOS SEA, on November 30, 1999 and reinjured his back on April 1, 2000 while helping load a large tank aboard the vessel. Like the CHIOS DREAM, the CHIOS SEA was registered in Panama and owned by a Panamanian corporation. Both the CHIOS SEA and the CHIOS DREAM were managed and operated by Harbor Shipping and Trading, S.A., a Panamanian corporation with its principal place of business in Piraeus, Greece. Plaintiff was eventually released from the vessel on December 5, 2000 and filed suit under the Jones Act and general maritime law on March 20, 2001.
Defendants filed a motion to dismiss on April 24, 2001 claiming that plaintiff's service on board both vessels was pursuant to a Memoranda of Agreement and Undertaking-Declarations that contained forum selection and choice of law clauses. Specifically, both contracts provided that,
15. It is mutually agreed that all disputes arising from this contract including illness and injury claims will be determined by the Piraeus Courts Greece, in accordance with the existing Greek law
6. I also declare that any and all disputes arising from the Contract of Employment I have signed shall be determined by the Piraeus Courts Greece, in accordance with the existing Greek Law.
Defendant's exhibits "H" and "I".
As such, defendants argue that the valid and enforceable forum selection clauses require plaintiff's claims to be brought in Greece and in turn make the United States District Court for the Eastern District of Louisiana an improper venue. Indeed, defendants cite several cases from this district, two of which have been affirmed by the United States Court of Appeals for the Fifth Circuit, involving the same fleet of vessels and otherwise similar circumstances where the courts have dismissed the actions on the strength of forum selection clauses. See e.g, Orozco v. Trinity Ship Management et al., C.A. 99-2810 (ED. La. 5/31/00), aff'd, No. 00-30865 (5th Cir. 5/15/01); Belloza v. Chios Sky Shipping Trading. S.A., et al., C.A. 98-2092 (E.D. La. 2/9/99); Valle v. Chios Venture Shipning et al., C.A. 98-0748 (E.D. La. 3/17/99).
In response, plaintiff does not dispute defendants' reading of the relevant law in this area. Instead, plaintiff's counsel submits an affidavit (exhibit "A" to plaintiff's opposition memorandum) in which Mr. Flores testifies that he does not recall signing contracts that contained forum selection and choice of law clauses. According to plaintiff, then, this affidavit raises an issue of fact as to the authenticity of the documents relied upon by defendants that should thwart their motion to dismiss. Similarly, plaintiff asserts that the relevant documents are not supported or verified by affidavits. In both instances, it is noteworthy that plaintiff makes no positive representation as to the veracity of the documents introduced by defendants.
Plaintiff's failure to attack the pertinent law and its application to the instant leaves the Court with one issue to resolve, namely, how, if at all, plaintiff's failure to remember signing the documents effects their reliability.
Law and Analysis
The United States Court of Appeals for the Fifth Circuit has characterized the issue of whether a motion to dismiss based upon a forum selection clause should be brought under Rule 12(b)(1), Rule 12(b)(3), Rule 12(b)(6), or 28 U.S.C. § 1406(a) as an "enigmatic question."Haynsworth v. Lloyds of London, 121 F.3d 956, 961 (5th Cir. 1997); See also Wright Miller, Federal Practice and Procedure: Civil 2d § 1352 (2001 Supp.) (circuits are split as to whether dismissal is proper under Rule 12(b)(3) when based on a forum selection clause). However, the trend in this circuit is that such motions are taken under Rule 12(b)(3). See e.g., Hartash Construction. Inc. v. Drury Inns. Inc., 2000 WL 1140498 (E.D. La. 8/11/200) (Fallon, J.) (granting motion to dismiss on account of forum selection clause under Rule 12(b)(3)); Nissho Iwai American Corp. v. The M/V KYVERNITIS, 1998 WL 2853 (E.D. La. 1/5/1998) (Vance, J.) (surveying Fifth Circuit precedent and finding 12(b)(3) the proper procedural vehicle); Kessman and Associates v. Barton-Aschman Associates. Inc., 10 F. Supp.2d 682 (S.D. Tex. 1997) (motion to dismiss based on forum selection clause brought under Rule 12(b)(3)). Finding this approach to be sound, the Court shall consider defendant's motion as brought under Rule 12(b)(3).
For purposes of the motion before this Court, the only distinction of consequence would arise if the Court were to construe the motion as brought under Rule 12(b)(6). If that were the case, consideration of exhibits outside the pleadings would transform the motion into one for summary judgment. However as will be discussed at pages 6-7, in this case, the Court finds plaintiff's affidavit to have no probative value. Therefore, even were the Court to consider this motion as one under Rule 12(b)(6) transformed into a Rule 56 motion, plaintiff's affidavit does not create a genuine issue of material fact that would block entry of summary judgment in defendants' favor.
Choice of law or forum provisions are usually upheld if the "sovereign whose law is selected has a substantial connection to the transaction, and application of its law would not conflict with fundamental goals and principles of maritime law." Frank L. Maraist and Thomas C. Galligan, PERSONAL INJURY IN ADMIRALTY, § 14-2(a) at p. 226 (2000). The United States Supreme Court has held that forum selection clauses in admiralty cases are prima facie valid and should be enforced unless it would be unreasonable under the circumstances to do so. M/S BREMEN v. Zapata Offshore, 407 U.S. 1, 10, 92 S.Ct. 1907, 1913(1972). "To overcome the presumption that the forum selection clause is enforceable, the party challenging the clause must make a "strong showing" that the clause is unreasonable." Marinechance Shipping v. Sebastian, 143 F.3d 216, 220 (5th Cir. 1998). If a party cannot meet its burden, dismissal is an appropriate disposition of the claim. See Mitsui Co. v. MIRA M/V, 111 F.3d 33 (5th Cir. 1997) (per curiam). In this case, plaintiff does not contest the state of the law or that if the facts of this matter are taken as true, that dismissal is inappropriate. Without such a dispute, the Court need not undertake a detailed analysis of the particular facts of this case and whether if true they support dismissal. However, it is clear to the Court that the overwhelming majority of state and federal district and appellate court decisions, some cited above, support dismissal in the factual context presented to this Court. With that in mind, the Court turns to plaintiff's sole argument against dismissal.
In an attempt to circumvent the well settled law with respect to forum selection clauses, plaintiff's counsel has submitted an affidavit that he claims creates issues of material fact as to the validity of the contract itself. The affidavit purports to be that of plaintiff himself, Nestor Miguel Castillo Flores, and states that "he does not recall executing a document whereby he was required to bring claims for illness or injury in the Court of Greece pursuant to Greek law." Plaintiff's Memorandum in Opposition to Motion To Dismiss, Exhibit A. The aforementioned exhibit also represents that Flores "recalls signing no documents aboard the M/V CHIOS DREAM which required that claims for injury or illness be brought in Greece, pursuant to Greek law." Id. The value of plaintiff's ephemeral testimony lies as much in what he omits as in what he admits. Plaintiff does not dispute the authenticity of the signature on the contracts. Nor does he claim to have not signed any contracts. Rather, he merely states that he doesn't recall signing a contract with a forum selection clause. The Court also is acutely aware of the fact that plaintiffs signature does not appear on the affidavit, instead his name is carefully printed on the document. Notwithstanding the representations in the affidavit, the Court finds that plaintiff's lapse in memory is insufficient to create an issue of fact as to the veracity of defendants' exhibits and preclude dismissal. Moreover, plaintiff's statements have minimal legal relevance in that the case law is clear that failure to read and understand the English language does not diminish the effect of forum selection clauses.
With respect to contractual disputes, the federal courts consistently hold that a party's failure to recall a relevant event is insufficient to raise an issue as to the occurrence vel non of that event. See Batiste v. Island Records, Inc., 179 F.3d 217, 223 (5th Cir. 1999) (plaintiff's inability to remember signing contracts is insufficient to raise a material issue as to validity of the agreement); I.V. Services of America, Inc. v. Inn Development Management. Inc., 182 F.3d 51, 55 (1st Cir. 1999) (plaintiff's failure to remember receiving document not a specific fact to defeat summary judgment); Posey v. Skyline Corp., 702 F.2d 102, 106 (7th Cir. 1983) (inability to recall is a "mere possibility" of a fact dispute and is insufficient basis to deny a motion for summary judgment); Chandler v. James, 985 F. Supp. 1094, (M.D. Ala. 1997) (witness' inability to remember does not demonstrate a genuine issue of material fact); See generally Singleton v. ASI Corporation, 2001 WL 167911 (N.D.Tex. 1/19/01) (plaintiff considered to have signed arbitration agreement when he attacks defendant's evidence but never states that he did not sign the contract); Jones v. Fujitsu Network Communications, 81 F. Supp.2d 688 (N.D.Tex. 1999) (plaintiff considered to have attended meeting when he states in affidavit that he did not remember attending, but did not deny that he was present). Accordingly, this Court too refuses to grant any weight to plaintiff's assertion that he did not remember signing a contract that contained a forum selection clause. As such, plaintiff's failure to simply testify that the signature on the documents was not his own is taken as an admission that the signature on the documents is his. In sum, plaintiff's affidavit does not create an issue of fact sufficient to stave off dismissal. Accordingly,
In light of plaintiff's inability to simply testify as to the genuineness of the signature on the relevant documents, the Court also notes that all four documents presented to the Court, two executed in June 1998 and two in November 1999, all contain identical signatures.
IT IS ORDERED that defendants' Motion to Dismiss is GRANTED.