CELEBRITY CRUISES, INC., GALAXY CRUISE SERVICES, A DIVISION OF CELEBRITY CATERING SERVICES PARTNERSHIP, AND APOLLO SHIP CHANDLERS, INC., APPELLANTS,
v.
NOEL HITOSIS, APPELLEE

Fla. 3d DCA | 2000-09-06
Nos. 3D00-769 and 3D99-3051
Before COPE, GODERICH and SHEVIN, JJ.
785 So. 2d 521 Florida District Court of Appeal, Third District (2000) Caution
Cited by 9 cases

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Holding

The court held that the forum selection clause was permissive and did not mandate exclusive jurisdiction in the Philippines, and that the trial court did not abuse its discretion in denying the forum non conveniens motion.


Headnotes

[1] A forum selection clause is permissive, rather than mandatory, when it states that a procedure shall be without prejudice to any action that the parties may take before t…

[2] A permissive forum selection clause merely provides that there may be jurisdiction over litigation in a particular forum and does not exclude jurisdiction or venue in any…

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Facts & Procedural History

A Filipino seaman sued Celebrity Cruises in Miami for injuries suffered aboard a Celebrity vessel. Celebrity sought dismissal based on a forum selecti…

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Opinion of the Court
SHEVIN, Judge.

SHEVIN, Judge.

Celebrity Cruises, Inc., Galaxy Cruise Services, and Apollo Ship Chandlers, Inc. [collectively “Celebrity”], appeal non-final orders denying their motions to dismiss based on a forum selection clause and on forum non conveniens grounds in an action Noel Hitosis, a Filipino seaman, filed in Miami-Dade County to recover damages for injuries suffered aboard a Celebrity vessel.1 We affirm. As to the forum selection clause issue, Celebrity misplaces its reliance on the employment form signed by Hitosis. The form purports to vest the Philippines’ “grievance machinery,”2 as set forth in the revised seafarers employment contract, with exclusive jurisdiction of employment contract disputes.3 However, it also states that “[t]his procedure shall be without prejudice to any action that the parties may take before the appropriate authority.” In contrast to mandatory forum selection clauses that must be applied when not unreasonable or unjust, Garcia Granados Quinones v. Swiss Bank Corp., S.A, 509 So. 2d 273 (Fla.1987), a permissive jurisdiction clause, such as the one here, merely “provide[s] that there may be jurisdiction over such litigation in a particular forum.” Granados, 509 So. 2d at 274. (emphasis added).4 In this case, the above-quoted clause permits the pursuit of other remedies in other jurisdictions.

Thus, it, fails to mandate that the designated forum is the only forum in which Hitosis may seek relief.

Accordingly, the clause is merely permissive: it constitutes “a consent to jurisdiction and venue in the named forum and do[es] not exclude jurisdiction or venue in any other forum.” Granados, 509 So. 2d at 274-75. Because the clause does not limit the available fora, the trial court properly declined to dismiss the action based on the forum selection clause.

Therefore, we affirm the order. Celebrity’s citation to Marinechance Shipping, Ltd. v. Sebastian, 143 F. 3d 216 (5th Cir.), cert. denied, 525 U.S. 1055, 119 S.Ct. 620, 142 L.Ed.2d 559 (1998), which held that Philippine authorities have exclusive jurisdiction over the seaman’s claim pursuant to the POEA-drafted forum selection clause, does not mandate a different result: that clause differs substantively from the clause in this case. The Marinechance clause provides for resolving disputes exclusively “through the grievance machinery ..., the adjudication procedures of the POEA and the Philippine Courts of Justice, in that order,” Marinechance, 143 F. 3d at 219, (emphasis added), and it does not contain the “without prejudice” provision found in Hitosis’ contract.

Thus, Marinechance and other cases construing this provision are inapplicable. See Sabocuhan v. Geco-Prakla, 78 F. Supp. 2d 603 (S.D.Tex.1999); Lejano v. Bandak, 705 So. 2d 158 (La.1997), cert. denied, 525 U.S. 815, 119 S.Ct. 52, 142 L.Ed.2d 40 (1998); Barcelona v. Sea Victory Maritime, Inc., 619 So. 2d 741 (La.Ct. App. 4th Cir.1993); Prado v. Sloman Neptun Schiffahrts A.G., 611 So. 2d 691 (La.Ct.App. 4th 1992).

Cf. Abuan v. Smedvig Tankships, Ltd,. 717 So. 2d 1194 (La.Ct.App. 4th Cir.1998)(refusing to enforce standard POEA-drafted forum selection clause). The trial court also properly denied Celebrity’s forum non conveniens dismissal motion. In denying the motion, the trial court found that Celebrity did not carry its burden of showing that the Philippines was an adequate alternative forum for Hitosis’ claims. The court also concluded that the private interests factor favored Miami-Dade County noting that defendants are American companies with headquarters in Miami-Dade County; that the ship’s home port is Puerto Rico; that Celebrity provided Hitosis with maintenance and cure for approximately two years, including extensive medical treatment, in Miami; and that the medical witnesses are located here. Based on this record, we are unable to find that the trial court abused its discretion in applying the Kinney test. See Kinney Sys., Inc. v. Continental Ins. Co., 674 So. 2d 86 (Fla.1996); Chiquita Int’l, Ltd. v. Fresh Del Monte Produce, N.V., 690 So. 2d 698, 699-700 (Fla. 3d DCAXprivate interest factors favor Dade County), review denied, 700 So. 2d 685 (Fla.1997).

We, therefore, affirm that order.

Affirmed.

. The complaint contained counts for Jones Act negligence, unseaworthiness, mainte nance and cure, and failure to treat.

. The National Labor Relations Commission [NLRC] or the Philippines Overseas Employment Administration [POEA].

. In both cases, the employment contract contains a section giving exclusive jurisdiction of disputes arising out of the contract to the NLRC or POEA. . Because we conclude that the forum selection clause is merely permissive, it is unnecessary to determine whether a mandatory clause would be valid and enforceable or to decide whether the clause would be applicable to tort actions. See generally Alexandra E. Mora, Navigating the Waters of Forum-Selection Clauses in Maritime Employment Contracts, 12 U.S.F. Mar. L.J. 115 (2000)(discuss-ing cases involving standard employment contracts drafted by the Philippine government); Michael J. Mahoney, Practical Guide to Analyzing Forum Selection Clauses in Personal Injury and Wrongful Death Claims under Maritime Contmcts, 24 Tul. Mar. L.J. 706 (Spring 2000)(discussing litigation of forum selection and choice of law clauses in maritime employment contracts).


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Citator

Cited By

  • Cardoso v. FPB Bank, 879 So. 2d 1247 (Fla. 3d DCA 2004)
    …consent to a lawsuit in the location(s) mentioned therein, but does not preclude litigation in other locations. See Garcia Granados Quinones v. Swiss Bank Corp. (Overseas), S.A., 509 So. 2d 273, 274-75 (Fla.1987); Celebrity Cruises, Inc. v. Hitosis, 785 So. 2d 521, 522 (Fla. 3d DCA 2000). Having determined that Cardoso cannot avail himself of the forum selection clause in the loan documents to obtain a dismissal of FPB’s suit on the basis of forum non conveniens, we analyze the Kinney factors as they relate…
  • …rican countries would likewise have to be flown in to comment on their respective recoveries. The situation with these claimants is wholly different from cases where we have held Miami is an appropriate forum. See Celebrity Cruises, Inc. v. Hitosis, 785 So. 2d 521 (Fla. 3d DCA 2000) (allowing Miami-Dade to be the forum because the Defendant companies were actually headquartered in Miami and the injured plaintiff actually received medical treatment in Miami). In sum, the fulcrum on private interests is not in…
  • …So. 2d 627, 630 (Fla. 1st DCA 1999). Mandatory forum selection clauses should be enforced absent a showing that enforcement would be unreasonable or unjust. See Manrique v. Fabbri, 493 So. 2d 437, 440 (Fla.1986); Celebrity Cruises, Inc. v. Hitosis, 785 So. 2d 521, 522 (Fla. 3d DCA 2000). As discussed above, Mount Sinai failed to make that showing. Thus, the trial court should have enforced the forum selection clause. Accordingly, we reverse the order compelling arbitration in Florida and remand for arbitrat…

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