Opinion
No: 01 CV 9441 (RCC)
August 28, 2002
OPINION and ORDER
Plaintiff Joceyln D. Angeles ("Plaintiff') brings this maritime action against her former employer Norwegian Cruise Lines, Inc. ("Defendant"), alleging sexual harassment and gender discrimination. The parties are presently before the Court on Defendant's summary judgment motion, which is based on the existence of a forum selection clause. For the reasons stated, the motion is denied without prejudice.
I. BACKGROUND
Plaintiff worked as a bar waitress on one of Defendant's ships, the Norwegian Wind ("the Ship"), beginning on or about May 22, 2000 through September 29, 2000. Plaintiffs Affidavit in Opposition [Pltf's Aff.] ¶ 7; Compl. ¶ 1. Her employment was subject to a contract of employment ("Contract") that Plaintiff signed in Mataki, Philippines on May 18, 2000. Contract, Exh. A of Pltf's Aff. On the same day, the Contract was also signed by Singa Ship Management, for and on behalf of Defendant, and verified and approved by the Philippine Overseas Employment Administration ("POEA"), a division of the Philippine Department of Labor and Employment. Id. The Contract states that Plaintiff's address at the time, as well as her point of hire, was in Manila, Philippines. Id.
Plaintiff alleges that her supervisor on the Ship ("Supervisor"), Raul Manahan, sexually harassed her by touching and rubbing parts of her body, kissing her hair and the nape of her neck, and making sexually explicit remarks to her. Pltf's Aff. ¶ 8. Plaintiff further alleges that although she reported her Supervisor's behavior in an anonymous letter, she was subjected to further harassment by him and was also intimidated and forced into signing a statement that purported to be a summary of her allegations, Id. ¶¶ 9-10. In the statement, Plaintiff recanted much of what she had complained of in her anonymous letter. Statement of Witness, Exh. D of Pltf's Aff. As a result, when Plaintiff's contract came to an end on September 29, 2000, her employment was terminated due to "her recent actions concerning allegations she made against one of her supervisors, which proved to be unfounded, and her continued malicious gossip. . Evaluation Report, Exh. E of Pltf's Aff.
Plaintiff commenced this action on October 26, 2001, raising claims under the Jones Act, 46 U.S.C. § 668 et seq. and pursuant to this Court's admiralty jurisdiction, 28 U.S.C. § 1333. Compl. ¶ 3. Plaintiff alleged that she sustained physical and emotional injuries, as well economic harm, when she was sexually harassed and discriminated against, and that these injuries were a result of Defendant's negligence and failure to act. Id. ¶¶ 8-9, 20. Thereafter, Defendant filed the instant motion, arguing that a forum selection clause in Plaintiff's Contract gave the POEA or the National Labor Relations Commission (" NLRC"), in the Philippines, original and exclusive jurisdiction. Defendant's Memorandum of Law at 4; Declaration of Jane E. Kilgour [Kilgour Decl.] ¶ 13.
As other courts have explained, the POEA, which has been replaced by the NLRC, is a government organization created to:
a. promote and develop overseas employment opportunities in cooperation with relevant government institutions and the private sector; b. establish the environment conducive to the continued operations of legitimate and responsible private agents; and c. afford protection to Filipino workers and their families, promote their interests and safeguard their welfare. To effectuate these policy goals, the POEA regulates principals and projects, recruitment, advertisement and placement; contract processing and travel documentation; employment standards; the filing of grievances; and provides worker assistance and welfare services. Marinechance Shipping. Ltd. v. Sebastian, 143 F.3d 216 (5th Cir. 1998) (quoting Cruz v. Chesapeake Shipping. Inc., 738 F. Supp. 809, 815 (D.Del. 1990), aff'd 932 F.2d 218, 221 (3d Cir. 1991) (citations omitted).
II. DISCUSSION
Defendant's arguments are based on a line of cases beginning with M/S Bremen v. Zapata Off-Shore, 407 U.S. 1 (1972), in which the Supreme Court held that forum selection clauses are presumptively valid. In opposition, Plaintiff relies primarily on an opinion by then District Judge Sotomayor, Cuizon v. Kedma. Ltd., 1997 WL 37938, 1997 A.M.C. 2890 (S.D.N.Y. Jan. 30, 1997), which was later vacated. Nonetheless, Defendant's motion is denied because it does not provide sufficient evidence to rebut Plaintiff's claim that she received no notice of the forum selection clause.
The docket sheet reflects that the order vacating the Cuizon opinion was entered on January 6, 1999. However, Westlaw states that the order and opinion were vacated on December 17, 1998.
The Court's role in a motion for summary judgment is not to resolve disputed issues of fact but to determine whether there are any genuine issues of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Rule 56(c) provides that summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. Civ. P. 56(c). When viewing the evidence, the Court must "assess the record in the light most favorable to the nonmovant" and resolve all ambiguities and "draw all reasonable inferences in its favor." Delaware Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990).
The movant bears the initial burden of informing the court of the basis for its motion and demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets this burden, the party opposing the motion must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact. FED. R. Civ. P. 56(e); Anderson, 477 U.S. at 249; Celotex, 477 U.S. at 323-24. Where the nonmovant "propounds a reasonable conflicting interpretation of a material disputed fact, " summary judgment is inappropriate. Schering Corp. v. Home Ins. Co., 712 F.2d 4, 9-10 (2d Cir. 1983). Only when it is apparent that no rational trier of fact "could find in favor of the nonmoving party because the evidence to support its case is so slight" should a court grant summary judgment. Gallo v. Prudential Residential Services. Ltd. Partnership, 22 F.3d 1219, 1223-24 (2d Cir. 1994).
In M/S Bremen v. Zapata Off-Shore, 407 U.S. 1 (1972), the Supreme Court held that forum selection clauses, although not historically favored, are prima facie valid and enforceable. Id. at 9-10. The Bremen Court addressed a situation in which two business corporations had entered into a contract specifying the forum where disputes were to be adjudicated. In this context, the Court held that "a freely negotiated private international agreement, unaffected by fraud, undue influence, or overweening bargaining power, such as that involved here, should be given full effect." Id. at 12-13. In reaching its holding, the Court reasoned in part that:
[M]uch uncertainty and possibly great inconvenience to both parties could arise if a suit could be maintained in any jurisdiction in which an accident might occur or if jurisdiction were left to any place where the [ship] might happen to be found. The elimination of all such uncertainties by agreeing in advance on a forum acceptable to both parties is an indispensable element in international trade, commerce, and contracting. There is strong evidence that the forum clause was a vital part of the agreement, and it would be unrealistic to think that the parties did not conduct their negotiations, including fixing the monetary terms, with the consequences of the forum clause figuring prominently in their calculations.
Id. at 13.
In Carnival Cruise Lines. Inc. v. Shute, 499 U.S. 585 (1991), the Court faced slightly different factual circumstances because the case involved passengers who sued for injuries sustained while aboard a ship. The Court noted that the forum clause was included as part of a routine commercial passage contract, which, presumably, was not subject to negotiation, and that there was no parity between the two parties to the contract. Id. at 593. Nonetheless, it held that the clause was reasonable and enforceable, explaining that "forum-selection clauses contained in form passage contracts are subject to judicial scrutiny for fundamental fairness." Id. at 595.
The Court's reasoning was based, in part, on the fact that there was no evidence either that the forum was selected as a means of discouraging cruise passengers from pursuing legitimate claims or that the passengers' consent to the forum clause was obtained as a result of fraud or over-reaching. Id. Even more central to the Court's analysis, however, was the issue of notice. The passengers conceded that they had been given notice of the forum clause. Id. at 590. The Court, therefore, expressly stated that it was not addressing the question of whether the passengers had sufficient notice of the forum clause before entering into the contract for passage. Id. It stated further that because the passengers "do not claim lack of notice of the forum clause, we conclude that they have not satisfied the heavy burden of proof required to set aside the clause . . ." Id. at 595.
For purposes of the instant motion, Defendant relies heavily on Marinechance Shipping. Ltd. v. Sebastian, 143 F.3d 216 (5th Cir. 1998), in which the Fifth Circuit reviewed a forum selection clause identical to the one included by reference in Plaintiff's Contract. Defendant argues that because another court has upheld the reasonableness and validity of the same forum clause, the Court should do so here. The Court disagrees.
The Contract, which is a one-page document on a POEA form, states in pertinent part that "[t]he terms and conditions of the revised Employment Contract governing the employment of all seafarers . . . shall be strictly and faithfully observed." Exh. A of Pltf's Aff. ¶ 2. It further states that "[a]ny alterations or changes, in any part of this Contract shall be evaluated, verified, processed and approved by the Philippine Overseas Employment Administration (POEA). Upon approval, the same shall be deemed an integral part of the Standard Employment Contract (SEC) for seafarers." Id. ¶ 3.
Both the Standard Employment Contract ("SEC") and the Revised Standard Terms and Conditions ("RSTEC") are multi-page documents that provide the terms and conditions of employment, stating in pertinent part: "[t]he Philippine Overseas Employment Administration (POEA) or the National Labor Relations Commission (NLRC) shall have original and exclusive jurisdiction over any and all disputes or controversies arising out of or by virtue of this Contract." SEC Section I, Exh. B of Pltf's Aff., at 1; RSTEC Section 28, Exh. C of Pltf's Aff., at 11.
Because Plaintiff's Contract incorporates by reference the SEC and the RSTEC, the forum selection clause is a term of the Contract. However, Plaintiff swears in her affidavit that she was never given copies of either document or advised of the existence of any forum selection clause. Pltf's Aff. ¶¶ 3-4, 6. Neither the SEC nor the RSTEC are documents that require signatures and both are separate from the Contract, which is a one-page document Plaintiff signed on May 18, 2000 in Mataki, Philippines. Moreover, Defendant does not provide any evidence to rebut Plaintiff's sworn statement or to prove that in fact she did receive copies of the SEC and RSTEC. Indeed, in its own papers, Defendant attaches the Contract, the SEC and the RSTEC as three separate exhibits. See Exh A, B D of Kilgour Decl.
As Defendant correctly point out, in Marinechance Shipping. Ltd. v. Sebastian, 143 F.3d 216 (5th Cir. 1998), the Fifth Circuit reviewed a forum selection clause identical to the one before this Court. Moreover, the Fifth Circuit addressed similar arguments to the ones raised by Plaintiff in this case, namely, whether it is appropriate to rely on the analysis in Cuizon v. Kedma. Ltd., 1997 WL 37938, 1997 A.M.C. 2890 (S.D.N.Y. Jan. 30, 1997), in which the court held that the forum selection clause did not apply to tort actions and the form contract was a contract of adhesion. In Marinechance Shipping however, the plaintiffs did not raise the issue of notice as Plaintiff has done in the instant case.
In Marinechance Shipping, the Fifth Circuit disagreed with the Cuizon court's reasoning, specifically noting that the Cuizon court had not conducted a "fundamental fairness" inquiry as it was required to do under Carnival Cruise. Not long after the Marinechance Shipping opinion was issued, the Cuizon opinion was vacated in an order issued by Judge Sotomayor stating: "the Court vacates the Opinion and Order dated 1/29/97 . . . and the aforementioned [opinion] and [order] shall not be cited as authority in this circuit." Cuizon v. Kedma. Ltd., 96cv229, Docket Entry No. 42, entered 1/6/99.
In Effron v. Sun Cruise Lines. Inc., 6 F.3d 7 (2d Cir. 1995), the Second Circuit specifically held that "[t]he legal effect of a forum-selection clause depends in the first instance upon whether its existence was reasonably communicated to the plaintiff." Id. at 9 (quoting Spataro v. Kloster Cruise Ltd., 894 F.2d 44, 45-46 (2d Cir. 1990) (per curiam)). The Effron court concluded that a passenger on a cruise ship had received reasonable notice of the forum selection clause where the ticket had a warning, in bold, capitalized and medium-sized lettering, directing the passenger to the forum selection clause. Effron, 6 F.3d at 9; but see Ward v. Crosee Sound Ferry, 273 F.3d 520, 524-25 (2d Cir. 2001) (holding that carrier had not given reasonable notice of contractual limitations, where ticket had terms of limitations and passenger was given ticket for only a few minutes before it was collected again); O'Brien v. Okemo Mountain, Inc., 17 F. Supp.2d 98, 103 (D.Conn. 1998) (finding that existence of forum selection clause on ski ticket was not reasonably communicated to plaintiff where forum clause was placed "near the bottom of the backside of the ticket, in very small typeface..
Here, the Plaintiff does not argue that she was given a copy of the terms and conditions, including the forum clause, for too short a period of time or in too small a font. Rather, she represents in a sworn affidavit, that she was never given a copy of the SEC or RSTEC containing the forum selection clause. In rebuttal, Defendant argues that Plaintiff does not state that she requested copies of the SEC or RSTEC but was denied access to them. See Defendant's Reply Memorandum at 1.
The issue of reasonable notice is a question of law. Effron, 6 F.3d at 9. Based on the little evidence provided by the parties, the Court has no basis on which to conclude that the contents of the forum selection clause were reasonably communicated to Plaintiff and therefore, that it can be enforced as to her.
The Court notes, however, that the parties have not engaged in any discovery as of yet. If upon investigation, the parties find sufficient evidence, regarding the issue of notice, to meet their burdens for purposes of summary judgment, the Court will consider it at that time.
III. CONCLUSION
For the above-stated reasons, Defendant's motion for summary judgment is DENIED WITHOUT PREJUDICE.