Opinion
CIV. NO. 99-2810 SECTION "K"(4)
March 31, 2000
ORDER AND REASONS
Before the court is defendants' Motion to Dismiss the action of plaintiff Arnoldo Jose Robleto Orozco ("Orozco"). For the reasons that follow, the court finds that defendants' Motion to Dismiss has merit and should be granted.
I. Background
Plaintiff, Arnoldo Jose Robleto Orozco ("Orozco"), a citizen of Nicaragua, complains that he was injured on December 4, 1996, while working as a welder aboard the M/V GALINI. Orozco brought suit against Trinity Ship Management, S.A. ("Trinity"), Harbor Shipping Trading, S.A. ("Harbor"), Sunrise Shipping Agency Inc. ("Sunrise"), and the vessel, GALINI, in rem. The vessel was owned by Trinity, a Panamanian corporation, and managed by Harbor, also a Panamanian corporation with its principal place of business in Piraeus, Greece. The GALINI is an ocean-going bulk carrier of Panamanian registry.
After being flown from Nicaragua to the United States by his employer, Orozco joined the crew of the GALINI by signing an employment contract that consisted of a Memorandum of Agreement and an Undertaking-Declaration. The contract provides that all disputes arising from personal injury are to be litigated in the Piraeus Courts Greece, subject to relevant Greek law. The contract is written in English, but Orozco speaks and reads only Spanish. Furthermore, the contract was never explained to Orozco, nor was he provided with a Spanish translation. Defendants now move this Court to dismiss the action for improper venue pursuant to the forum selection clause contained in the contract.
II. Law and Application
Dismissal of a lawsuit is an appropriate means of enforcing forum selection clauses in admiralty cases. See Carnival Cruise Lines. Inc. v. Shute, 499 U.S. 585 (1991); see also Zapata Marine Serv. v. O/Y Finnlines, Ltd., 571 F.2d 208 (5th Cir. 1978). In M/S Bremen, the Supreme Court held that forum selection clauses "are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be `unreasonable' under the circumstances." M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1972). "The burden of proving unreasonableness is a heavy one, carried only by a showing that the clause results from fraud or overreaching, that it violates a strong public policy, or that enforcement of the clause deprives the plaintiff of his day in court." Mitsui Co. (USA), Inc. v. MIRA M/V, 111 F.3d 33, 35 (5th Cir. 1997) (per curiam); see also International Software Sys., Inc. v. Amplicon, Inc., 77 F.3d 112, 115 (5th Cir. 1996) (recognizing that the Bremen test, a non-discretionary, "broad-based balancing," is the appropriate measure for dismissal based on a forum selection clause).
Before beginning work aboard the M/V GALINI, Orozco signed a Memorandum of Agreement and an Undertaking-Declaration which clearly provide that all disputes arising from the employment contract with defendants, including illness and injury claims, will "be determined by the Piraeus Court Greece, in accordance with existing Greek Law." Orozco maintains in this action that the forum selection clause is unenforceable on several grounds. With the standards mentioned above in mind, the court turns to the merits of these arguments in turn.
First, Orozco points out that the contract is written in English, but its terms were never explained to him in his native Spanish, nor was he provided a Spanish translation. He also suggests that he faced a Hobson's choice upon arrival in the United States: either he had to sign a contract that he did not understand, or, he could reject the contract, but he would find himself in a foreign land, with no source of income and subject to deportation. Thus, Orozco claims that the agreement is a contract of adhesion, procured by defendants' overreaching, and that he should be excused from the operation of the forum selection clause contained therein.
The Fifth Circuit, however, has held that allegations that the entire contract was procured by defendants' overreaching are "inapposite to our [forum-selection clause] enforceability determination, which must . . . precede any analysis of the merits [of the contract's validity]." Afram Carriers, Inc. v. Moeykens, 145 F.3d 298, 301 (5th Cir. 1998) (internal quotation omitted, alteration in original), petition for cert. filed, 67 U.S.L.W. 3364 (Nov. 18, 1998) (No. 98-839). Therefore, in order to escape enforcement of the forum selection clause, Orozco must demonstrate that the forum selection clause itself was obtained through overreaching. He has not made this showing, and, therefore, this court may not disregard the forum selection agreement.
Furthermore, the Fifth Circuit emphasized this point in Afram by relying on principles of comity and deference to foreign courts:
The Supreme Court has . . . instructed American courts to enforce [forum-selection] clauses in the interests of international comity and out of deference to the integrity and proficiency of foreign courts. Were we to judge the soundness of the forum-selection clause by what we believe to be the merits of the underlying contract, we would subvert the aforementioned comity concerns by making a merits inquiry that the Supreme Court has determined is best left to the forum selected by the parties.Id. at 301-02 (internal quotation omitted). Additionally, forum selection clauses serve valuable efficiency considerations. As Judge Wisdom observed, "Ocean-going vessels travel through many jurisdictions, and could become subject to the laws of a particular jurisdiction solely upon the fortuitous event of an accident." Marinechance Shipping, Ltd. v. Sebastian, 143 F.3d 216, 220 (5th Cir. 1998). Agreeing in advance on forum and choice of law eliminates this uncertainty. Id.
Forum selection clauses are enforceable even in cases where the plaintiff did not and could not bargain for the clause due to a lack of bargaining power. See Carnival Cruise Lines, 499 U.S. at 587-88, 593 (holding a forum selection enforceable despite fact that passenger entered into a contract by paying for the cruise before seeing the ticket containing the forum selection clause). The forum selection clause need only be reasonable to be enforceable. Id. at 593, 595.
In this case, Orozco received the benefits of employment under the contract holding him to the forum selection. The clause at issue reduces exposure to lawsuits around the world, while eliminating any confusion as to where and under which law actions may proceed, and thus the clause is reasonable. See Marinechance Shipping, 143 F.3d at 221. Furthermore, the Court has no reason to doubt the competence of a Greek forum. See Anastasiadis v. S.S. LITTLE JOHN, 346 F.2d 281, 283 (5th Cir. 1965).
Next, Orozco asserts that the choice of a Greek forum applying Greek law has no logical relationship with the parties in this case because defendants Trinity and Harbor are actually controlled and operated by corporations and individuals located in Louisiana. Orozco further contends that defendants have chosen Greece as an inconvenient forum to discourage and deter litigation by injured plaintiffs and that, therefore, the forum selection clause is unreasonable.
In support of this argument, Orozco offers testimony given by Lucas Ktistakis, an American citizen, as evidence that the defendants are actually controlled by corporations with their principal places of business in New Orleans. Orozco, however, fails to show that Harbor's principal place of business is not in Greece. Further, these claims directly contradict the allegations made in his complaint. Even if Harbor is controlled by a Louisiana citizen, the court finds that the defendants have a sufficient connection with Greece, as it is Harbor's principal place of business. In short, the forum selection clause is not unreasonable for lack of defendants' connections with Greece.
Finally, Orozco contends that the effect of the forum selection clause is a "release" of his legal rights, and, therefore, the clause deprives him of his day in court. Orozco merely agreed to litigate his claim in a particular forum and has not relinquished any substantive rights. See Sanchez v. Commodore Cruise Lines, Ltd., 713 So.2d 572, 576 (La.Ct.App. 1998); see also Williams v. Cigna Fin. Advisors, 56 F.3d 656, 660 (5th Cir. 1995) (distinguishing waiver of right or claim from waiver of a judicial forum) (citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth. Inc., 473 U.S. 614, 628 (1985)); cf. Afram Carriers, 145 F.3d at 304-05 (noting that disagreements over release's validity had to be brought before foreign court in light of forum selection clause).
In this case, defendants' affidavits confirm the competence of the Greek courts in providing an adequate remedy. Because Orozco has failed to show that he cannot secure his rights in a Greek forum, the court recognizes no unfairness in declining jurisdiction in favor of a valid and enforceable forum selection clause. See Anastasiadis, 346 F.2d at 283. Accordingly,
IT IS ORDERED that defendants' Motion to Dismiss the plaintiffs claims is hereby GRANTED on the condition that plaintiff provides satisfactory proof that he has filed his claim in the courts of Piraeus, Greece or that he has made a bona fide effort to do so, within six months of entry of this order.
IT IS FURTHER ORDERED that the clerk shall mark this case CLOSED for statistical purposes, subject to the provisions herein.
New Orleans, Louisiana, this 31st day of March, 2000.