ORDER ON PENDING MOTIONS
THIS CAUSE came before the Court upon Defendants, RainbowHoldings, M.T.M. Ship Management Pte. Ltd., and M.T. MaritimeManagement (USA) LLC's (collectively "Defendants") Motion toDismiss Seaman's Complaint for Damages ("Motion to Dismiss")(D.E. 15); and Defendants' Motion to Stay Discovery PendingRuling on Motions to Dismiss ("Motion to Stay Discovery") (D.E.41). The Court has reviewed the Motions, the response and replymemoranda, applicable law, and heard oral argument on the Motionto Dismiss.
I. Factual and Procedural Background
Plaintiff, Aung Lin Wai's ("Wai") action arises out of anaccident aboard the vessel, M/T Chembulk Westport, while it wasdocked at Port Everglades, Florida, on or about May 9, 2003. TheM/T Chembulk Westport is a tanker ship registered in Liberia.Defendant, Rainbow Holdings, a Liberian company, is the disponentowner of the M/T Chembulk Westport. Defendant, M.T. MaritimeManagement (USA) LLC ("Maritime Management"), is a United Statescorporation that acts, and on May 9, 2003 acted, as the cargo operator for the M/TChembulk Westport. Wai was employed by Defendant, M.T.M. ShipManagement Pte., Ltd. ("Ship Management"), a Singapore company,as an assistant chief officer on the vessel. Wai was a citizenand resident of the Union of Myanmar, which is the former Burma.He joined the M/T Chembulk Westport in China on February 20,2003.
It is alleged that on May 9, 2003, Wai suffered severe andpermanent injuries when a high tension mooring line slipped offits bit and/or snapped under great tension, striking Wai in theface and head. (Complaint, ¶ 10). It is further alleged thatDefendants owned, operated, engaged, maintained and/or controlledthe M/T Chembulk Westport (Complaint, ¶ 4), and that Defendantswere "Wai's employer and/or acted as an agent for an undisclosedprincipal who was the owner and/or operator of said ship."(Complaint, ¶ 5).
In support of the Motion to Dismiss, Defendants have filed theDeclaration of Maung Win Kyaw (D.E. 21). The Kyaw Declarationstates that Ship Management is a Singapore limited liabilitycompany with its principal offices in Singapore, where its dailybusiness is conducted. (Declaration of Maung Win Kyaw ("KyawDecl."), ¶ 1). Ship Management has no offices in Florida or inthe United States. (Id. ¶ 2). Ship Management is primarilyinvolved in the business of providing a full range of shipmanagement services to various companies, specializing inchemical and parcel tankers and especially tankers engaged inocean trades in the inter-Far East, Southeast Asia (westbound),and the Arabian Gulf (east and west). (Id. ¶ 3). The officersand directors of Ship Management are located in and reside inSingapore, as do the majority shareholders. (Id. ¶ 4). Themajority of revenue earned by Ship Management is derived fromsources outside of the United States. (Id. ¶ 5). Ship Management, through its Singapore office, acts as managingowner of the M/T Chembulk Wesport, and has responsibilities forhiring the crew. (Id. ¶ 6). The majority of the crew, includingWai, are hired pursuant to a collective bargaining agreement.(Id. ¶ 6).
According to the Kyaw Declaration, Rainbow Holding has nooffices in Florida or in the United States. (Id. ¶ 8).Additionally, all officers and directors of Rainbow Holding, withonly one exception,1 are located in Singapore. (Id. ¶9). The shares of Rainbow Holding are owned by StrategicShipping, Inc., a Liberian company, and all officers anddirectors of this company, save for one,2 are located inSingapore. (Id. ¶ 9). The majority of shareholders of StrategicShipping, Inc. are also located in Singapore. (Id. ¶ 9). Themajority of the revenue earned by Rainbow Holdings is derivedfrom outside the United States. (Id. ¶ 10).
With regard to Maritime Management, the Kyaw Declaration statesthat this company "acts as agents for various ship owning andoperating companies, including as a cargo operator for the M/TChembulk Westport in the United States," but "does not charterthe vessel and does not hire the crew, and acts as an agent onlyon behalf of its clients." (Id. ¶ 11) (emphasis in original).
In response to the Motion to Dismiss, Wai has filed a printoutfrom "MT Maritime Management Group's" website in the UnitedStates (D.E. 30). The website printout reads, in relevant part,as follows: MTM U.S.A.
The chartering team at MTM U.S.A. acts as agents for various ship owning and operating companies. The main companies represented are Chembulk Trading, Inc. and Strategic Bulk Carriers Inc. The staff at MTM Carriers makes commercial and operational decisions for parcel tankers while in the Western Hemisphere as well as overall tonnage allocation, and handy size bulk carriers operated worldwide. M.T. Maritime Management (USA) LLC 500 Post Road East Westport, CT 06880 U.S.A. * * * MTM Singapore This consists of two Group companies, MT Maritime Pte. Ltd. and MTM Ship Management Pte. Ltd. The former represents the commercial interests of the MTM Group throughout Asia, in particular commercial and operational decisions for parcel tankers engaged in trades inter-Far East, Southeast Asia westbound, and Arabian Gulf east and west. M.T. MARITIME PTE. LTD. SINGAPORE 78 Shenton Way, #13-02 SINGAPORE 079120 * * * MTM Ship Management provides the full range of ship management services to Group and third-party companies, specializing in chemical and parcel tankers. M.T.M. SHIP MANAGEMENT PTE LTD. 78 Shenton Way, # 13-01 SINGAPORE 079120(MT Maritime Management Group's Website Listing, D.E. 30, p. 1-2)(emphasis in original).
Wai is a member of a union known as the Seaman EmploymentControl Division, Department of the Marine Administration,Ministry of Transport, Union of Myanmar ("SECD"). The SECD has a collective bargaining agreement with employers. As is commonwith collective bargaining agreements, the SECD collectivebargaining agreements are not signed by individual employees, butrather are executed by the employers and the SECD. The SECD has acollective bargaining agreement with Ship Management.
The collective bargaining agreement executed between the SECDand Ship Management on January 9, 1999, titled the "CollectiveBargaining Agreement Made Between Seamen Employment ControlDivision, Yangon and M.T.M. Ship Management Pte. Ltd, Singaporefor Employment of Myanmar Seamen," (hereinafter referred to as"CBA"), provides in pertinent part: It is mutually agreed between the Seaman Employment Control Division, Department of Marine Administration, Ministry of Transport, Union of Myanmar (hereinafter called S.E.C.D. and the M.T.M. SHIP MANAGEMENT PTE. LTD (hereinafter called the Company) that the S.E.C.D. agrees to supply and the Company agrees to employ Myanmar Seamen who are registered with S.E.C.D. consisting of Masters, Officers and ratings for serving on board the vessels owned/managed or operated by the Company, in accordance with terms and conditions contained in this agreement.(Motion to Dismiss, Exh. A) (emphasis in original). The CBA alsocontains the following forum selection clause: The law for the time being in force in the REPUBLIC OF SINGAPORE shall apply to this agreement and the same shall be interpreted and applied in accordance with such laws and parties hereby agree to submit [to] the jurisdiction of the Courts of SINGAPORE.3 (Motion to Dismiss, Exh. A, p. 1) (bold emphasis added; other emphasis in original). The CBA addresses the terms and working conditions of Myanmar Seamen's employment with Ship Management (members of the crew, duration of service, extension of service, re-employment, termination, compensation, working hours, overtime, public holidays, leave pay, discipline, rules of conduct, grievance procedures, repatriation, medical examinations and treatment, medical leave and sick pay, allowances, working apparel, safety equipment, and fees and charges). (Motion to Dismiss, Exh. A, p. 2-11). One Addendum to the CBA, "Annexture (B)," "covers compensation for permanent injury or death to Myanmar Seamen occurring during the course of contract." (Motion to Dismiss Exh. A., p. 12) (emphasis in original).
There exists a letter of employment or letter of engagement,dated February 11, 2003, between Ship Management and Wai(hereinafter referred to as the "Letter"). (See Motion toDismiss, Exh. B). In the Letter, Wai was offered the position ofassistant chief officer on the M/T Chembulk Wesport, subject tothe condition that he read and agree to abide by all of the termsof the CBA. By signing the Letter, Wai affirmed that he had readthe CBA and agreed to its terms and conditions. (Id.). TheLetter was signed by Wai before he joined the vessel, and latersigned by the Captain on behalf of Ship Management when Waijoined the vessel approximately a week later.
Prior to joining the M/T Chembulk Westport, Wai also signed a"Guarantee." In the "Guarantee," Wai stated that he was fully aware and understoodthe contents of the CBA. (Motion to Dismiss, Exh. C). The"Guarantee" was also executed by the Captain of the vessel.
Wai sues Defendants under 46 U.S.C. § 688 (the "Jones Act"),46 U.S.C. § 10313 (the "Seaman's Wage Act"), and under the generalmaritime law of the United States. In Count I, for negligenceunder the Jones Act, Wai alleges that Defendants breached theirduty to provide him with a reasonably safe place to work.(Complaint, ¶ 9). It is alleged that Defendants were aware of thedangerous conditions that caused Wai's accident and injuries, anddid not correct them, despite a reasonable opportunity to do so;or, that the conditions existed for such a sufficient length oftime that, in the exercise of reasonable care, Defendants shouldhave learned of them and corrected them. (Complaint, ¶ 11). As aresult of Defendants' negligence, Wai allegedly suffered severeand permanent or continuing physical injuries and mental anguish,lost wages, medical expenses, lost earning capacity, and lostpast and future income. (Complaint, ¶ 12).
Counts II, III and IV are brought under the general maritimelaw of the United States. Count II is based on unseaworthiness.Here, Wai alleges that Defendants breached their duty to providehim, as a crew member on their vessel on May 9, 2003, a seaworthyvessel, and that he suffered injuries as a result. (Complaint, ¶¶13-15). In Count III, for failure to provide maintenance andcure, Wai seeks recovery for maintenance and cure in the form ofprompt, proper and adequate medical treatment, transportation toand from health care providers, room and board, and unearnedand/or sick wages, which encompass regular wages, overtime,vacation pay, leave pay and tips to the end of the contract orvoyage. Wai alleges that he made demand on the Defendants forsuch maintenance and cure, and Defendants refused to make paymentto him, which caused him additional damages. (Complaint, ¶¶ 16-20). Count IV, for failure to treat, is alsobased on Defendants' alleged failure to provide Wai with prompt,proper and adequate medical care for the injuries caused by theaccident on May 9, 2003. It is alleged here that Defendants'medical personnel negligently failed to provide Wai prompt,proper, adequate and complete medical care: (a) by not giving Waimedical care in a timely manner after his initial injury, (b) bysending Wai back to work on medication after his injury, therebyaggravating and making his condition worse; (c) by not providingcompetent, trained and unbiased ship board medical personnel,and/or (d) by negligently selecting incompetent, untrained andbiased shore-side doctors to treat Wai. (Complaint, ¶¶ 21-23).
Count V is brought under the Seaman's Wage Act. Wai allegesthat he was discharged from service for the Defendants on May 17,2003 as a result of his injuries. Wai further alleges that he hasmade demand from Defendants for unpaid earned wages, and suchrequest has been denied. Thus, it is alleged that Defendants havefailed to pay Wai all of his earned wages, includingreimbursement of any improper deductions previously taken fromWai's wages. Wai seeks payment of his earned wages and improperdeductions, and two days' worth of wages for each day thepayments were delayed.
Wai seeks compensatory damages, including but not limited to,medical care, food and lodging, as well as attorney's fees,prejudgment interest, costs and punitive damages. Wai also seeksseizure, arrest, condemnation and sale of the M/T ChembulkWestport to satisfy any judgment entered in his favor.
Since his accident, Wai has resided in Coral Gables, Florida.He is receiving medical treatment in the United States, and hasapplied for political asylum based on his affiliation withantigovernment political groups in Burma (See D.E. 33). His asylum applicationindicates that Wai believes that, upon his return to Burma, thegovernment of Burma will certainly incarcerate him and he will besubjected to physical and mental torture as a result of hislong-standing opposition to the government of Burma and thefiling of this lawsuit against a company that has a contract withthe government of Burma. Wai's application for asylum, datedSeptember 12, 2003, is still pending with the United StatesDepartment of Homeland Security, Bureau of Citizenship andImmigration Services.
Defendants filed the Motion to Dismiss on August 11, 2003. OnFebruary 18, 2004, Defendants filed the Motion to Stay Discovery,indicating that on February 4, 2003, Wai propoundedInterrogatories and a Request for Production on each of theDefendants, "which discovery is directed squarely at the meritsof this case." (Motion to Stay Discovery, p. 1, ¶ 3). Defendantsseek to delay compliance with their discovery obligations untilthe Motion to Dismiss has been ruled on.
II. Legal Discussion
A. Legal Standards on the Motion to Dismiss, and Conversionof Maritime Management's 12(b)(6) Motion to Dismiss into a Motionfor Summary Judgment
Defendants have brought the Motion to Dismiss under FederalRules of Civil Procedure 12(b)(3) and 12(b)(6).4 Thesection of the Motion that seeks dismissal based on the forumselection clause (improper venue) and choice of law principles(forum non conveniens) is properly brought pursuant to Fed.R.Civ.P. 12(b)(3) as a motion to dismiss forimproper venue. See Webster v. Royal Caribbean Cruises, Ltd.,124 F. Supp.2d 1317, 1320 (S.D. Fla. 2000) (citing Lipcon v.Underwriters at Lloyd's London, 148 F.3d 1285, 1290 (11th Cir.1998)). On such a Rule 12(b)(3) motion, the court may considermatters outside the pleadings such as affidavit testimony,"particularly when the motion is predicated upon key issues offact." Id. (citation omitted). This Court has explained thecourt's inquiry on Rule 12 motions to dismiss as follows: [W]hen a party moves for dismissal for failure to state a claim under Rule 12(b)(6), the rule specifically provides that if the court considers matters outside the pleadings, the court is required to convert the motion to one for summary judgment under Rule 56 and serve notice upon the parties so that they may present all materials made pertinent to such a motion. For defenses raised under subsections (1) through (5), however, the court may consider matters outside the pleadings, and often must do so, since without aid of such outside materials the court would be unable to discern the actual basis, in fact, of a party's challenge to the bare allegation in the complaint that venue is proper in this court.Id. (citation omitted). When the court converts a Rule 12(b)(6)motion to dismiss into a motion for summary judgment, "[t]hedistrict court is required to notify the parties that the motionhas been converted, and give the parties 10 days in which tosupplement the record." Trustmark Ins. Co. v. Eslu, Inc.,299 F.3d 1265, 1267 (11th Cir. 2002) (citing Herron v. Beck,693 F.2d 125, 126 (11th Cir. 1982)); see Fed.R.Civ.P. 12(b)("If, on a motion asserting the defense numbered (6) to dismissfor failure of the pleading to state a claim upon which reliedcan be granted, matters outside the pleading are presented to andnot excluded by the court, the motion shall be treated as one forsummary judgment and disposed of as provided in Rule 56, and allparties shall be given reasonable opportunity to present allmaterial made pertinent to such a motion by Rule 56.").
On a motion to dismiss based on improper venue, the plaintiffhas the burden of showing that venue in the forum is proper. See, e.g., Interlease AviationInvestors II (Aloha) L.L.C. v. Vanguard Airlines, Inc.,262 F. Supp.2d 898, 913 (N.D. Ill. 2003); Indymac Mortgage Holdings,Inc. v. Reyad, 167 F. Supp.2d 222, 237 (D. Conn. 2001) (citingU.S. Envtl. Prot. Agency v. Port Auth. of New York & NewJersey, 162 F. Supp.2d 173, 183 (S.D.N.Y. 2001)); McCracken v.Automobile Club of Southern California, Inc., 891 F. Supp. 559,560 (D. Kan. 1995). The court must accept all allegations of thecomplaint as true, unless contradicted by the defendants'affidavits, and when an allegation is so challenged the court mayexamine facts outside of the complaint to determine whether venueis proper. See, e.g., Indymac, 167 F. Supp.2d at 237 (citationsomitted); Vanguard, 262 F. Supp.2d at 913; McCracken,891 F. Supp. at 561; see also Hodgdon Powder Co., Inc. v. Clean ShotTechnologies, Inc., 92 F. Supp.2d 1170, 1171-72 (D. Kan. 2000)(noting that the standard for deciding a motion to dismiss forimproper venue is generally the same as that for deciding amotion to dismiss for lack of personal jurisdiction). The courtmust draw all reasonable inferences and resolve all factualconflicts in favor of the plaintiff. See id.; see also Murphy v.Schneider National, Inc., 349 F.3d 1224, 1229-30 (9th Cir.2003). Applying these standards to the 12(b)(3) Motion to Dismissin the present case, the Court has considered the testimonial anddocumentary evidence submitted by the parties in connection withthe Motion to Dismiss, all of which is relevant to thefact-intensive venue issues to be determined.
The section of the Motion to Dismiss that requests dismissal ofthe claims against Maritime Management for failure to state acause of action, arguing that this Defendant's connections withWai and with the vessel are insufficient to establish liabilityunder maritime law, is considered a Rule 12(b)(6) motion todismiss. The U.S. corporate Defendant contends that Wai hasfailed to state a cause of action against it under the Jones Act, general maritimelaw, or under the doctrine of seaworthiness, because it is not,and was not, the owner, operator, or charterer of the M/TChembulk Westport, nor has it ever employed Wai. In support ofthis argument, Defendants have submitted a declaration from aperson, Maung Win Kyaw, attesting to have knowledge of MaritimeManagement's business and its relationship to the otherDefendants and to the M/T Chembulk Westport (D.E. 21). Wai hassubmitted relevant documentary evidence on these issues, i.e.,a copy of Maritime Management's website listing in the UnitedStates (D.E. 30). It is necessary for the Court to consider thesematters outside of the pleadings to resolve the Rule 12(b)(6)Motion to Dismiss. Therefore, this portion of the Motion toDismiss, and only this portion, is converted into a motion forsummary judgment.5
B. The Forum Selection Clause is Merely Permissive, Does NotRequire the Parties to Litigate in Singapore, and Does not MakeFlorida an Improper Venue
It is well settled that forum selection clauses "`arepresumptively valid where the underlying transaction isfundamentally international in character.'" Lipcon v.Underwriters at Lloyd's, London, 148 F.3d 1285, 1295 (11th Cir.1998) (quoting Roby v. Corporation of Lloyd's, 996 F.2d 1353,1362 (2d Cir. 1993) (citing M/S Bremen v. Zapata Off-Shore Co.,407 U.S. 1, 15 (1972)) (internal quotation omitted). "`This presumption of validity may beovercome, however, by a clear showing that the clauses are`unreasonable under the circumstances,''" Lipcon, 148 F.3d at1295 (quoting Roby, 996 F.2d at 1363) (quoting Bremen, 407U.S. at 10) (internal quotation omitted)). Forum selectionclauses will be found "unreasonable under the circumstances,"Bremen, 407 U.S. at 10, and thus unenforceable only when: (1)their formation was induced by fraud or overreaching; (2) theplaintiff effectively would be deprived of its day in courtbecause of the inconvenience or unfairness of the chosen forum;(3) the fundamental unfairness of the chosen law would deprivethe plaintiff of a remedy; or (4) enforcement of such provisionswould contravene a strong public policy (hereinafter "Bremenfactors"). Lipcon, 148 F.3d at 1295-96 (citing Carnival CruiseLines, Inc. v. Shute, 499 U.S. 585, 594-95 (1991); Bremen, 407U.S. at 15-18; Roby, 996 F.2d at 1363).
The parties do not invoke any of the Bremen factors in theirarguments on enforceability of the forum selection clause. Thegeneral validity of the forum selection clause contained in theCBA is therefore not in dispute. Wai does not argue that theclause is the result of fraud, overreaching or undue influence,that Singapore's law is fundamentally unfair or that Singapore isan inconvenient forum, or that the clause contravenes a strongpublic policy of Florida, or of the United States. Rather, thedispute concerns (1) whether the forum selection clause containedin the CBA covers Wai's personal injury claims in this lawsuit;and (2) whether the language of the forum selection clauseactually "excludes" jurisdiction in a forum other than Singaporesuch that dismissal would be appropriate. With respect to thelatter,6 Wai relies on the important distinction betweena permissive, or "consent-to-jurisdiction" clause, and a mandatory clause. SeeFlorida Polk County v. Prison Health Servs., Inc.,170 F.3d 1081, 1084 n. 8 (11th Cir. 1999) (noting that since Bremen, theEleventh Circuit Court of Appeals has "analyzed these clauses[forum selection clauses] under a `mandatory/permissive' test,enforcing only those clauses that unambiguously designate theforum in which the parties must enforce their rights under thecontract"). Wai argues that, in this case, the forum selectionclause in the CBA is permissive rather than mandatory.
An action is only subject to dismissal based on a forumselection clause if the import of the language of the clause as awhole is to provide a particular court or courts with "exclusivejurisdiction," although the clause need not include the word"exclusive." In Citro Florida, Inc. v. Citrovale, S.A.,760 F.2d 1231 (11th Cir. 1985), the Eleventh Circuit considered aforum selection clause providing that "[p]lace of jurisdiction isSao Paulo/Brazil." The district court had determined that thisclause was mandatory, and dismissed the action based on the forumselection clause. The Eleventh Circuit reversed, stating that"[a]lthough the forum selection clause was properly determined bythe district court to be an enforceable agreement, the clausedoes not clearly specify that Sao Paulo is the only place ofjurisdiction." Id. at 1231-32 (emphasis in original).
Like the Defendants here, the party seeking dismissal in theCitro Florida case relied primarily on Bremen in arguing thatthe clause should be enforced and the case dismissed in favor ofBrazil. The court addressed this argument by stating that theclause in Bremen was much more specific, in that it provided that any dispute "must be treated before theLondon Court of Justice," and was accordingly not subject to morethan one interpretation. Id. at 1232 (citing Bremen, 407 U.S.at 1-2). Moreover, "[t]he Bremen court did not reach thedistinctions between mere `consent to jurisdiction' clauses and`mandatory' clauses." Id; see also Creative Tile Marketing, Inc.v. Sicis International, 922 F. Supp. 1534, 1538 (S.D. Fla. 1996)(retaining jurisdiction, and noting that, unlike the mandatoryforum selection clause in the Bremen case, the following clausein question was permissive: "all disputes arising from orconnected with this Agreement . . . shall fall within thejurisdiction of the competent judge of 47023 Ronta Cesena,Italy") (emphasis in original) (citing Caldas & Sons, Inc. v.Willingham, 17 F.3d 123, 127-28 (5th Cir. 1994); Hunt-WessonFoods, Inc. v. Supreme Oil Co., 817 F.2d 75, 77-78 (9th Cir.1987)). The court then applied the mandatory/permissive test tothe clause before it and determined that "[t]he forum selectionclause in this case is ambiguous concerning the exclusive natureof the provision." Id. The court further stated: Under the rule established by the Fifth Circuit in Keaty v. Freeport Indonesia, Inc., 503 F.2d 955 (5th Cir. 1974) and Zapata Maritime Service v. O/Y Finnlines, Ltd., 571 F.2d 208 (5th Cir. 1978), `when a contract provision is subject to opposing, yet reasonable interpretations, an interpretation is preferred which operates more strongly against the party from whom the words proceeded.' 571 F.2d at 209.Id. (emphasis in original).
In Snapper, Inc. v. Redan, 171 F.3d 1249 (11th Cir. 1999),the Eleventh Circuit once again considered the distinctionbetween mandatory and permissive forum selection clauses. Theclause at issue in that case provided: The Undersigned agrees that any legal action or proceeding with respect to this instrument may be brought in the courts of the State of Georgia or the United States District Court, Northern District of Georgia, Atlanta Division, all as Creditor may elect. By execution of this instrument, the Undersigned hereby submits to each such jurisdiction, hereby expressly waiving whatever rights may correspond to it by reason of its present or future domicile. Nothing herein shall affect the right of Creditor to commence legal proceedings or otherwise proceed against the Undersigned in any other jurisdiction or to serve process in any manner permitted or required by law.Id. at 1260 (emphasis added). The Court found that the clausewas permissive in that it granted the Creditor the absolute rightto choose the forum for litigation among the stated Georgia stateor federal courts or any other courts of competent jurisdiction,but the clause was mandatory as to the Guarantors because itrequired an absolute submission by them to the jurisdiction ofwhichever fora the Creditor chose. Id. at 1260; 1262, n. 64.Thus, the Guarantors had waived their right to remove.
The central issue in the Snapper case was the Guarantors'waiver of removal, but the Court addressed the Guarantors'arguments regarding mandatory and permissive clauses as follows: The Guarantors also argue that the federal courts distinguish between `mandatory' and `permissive' forum selection clauses. See, e.g., Citro Florida, Inc. v. Citrovale, S.A., 760 F.2d 1231, 1232 (11th Cir. 1985) (distinguishing `between mere `consent to jurisdiction' clauses and `mandatory clauses"); Caldas & Sons, Inc. v. Willingham, 17 F.3d 974, 979 (2d Cir. 1993). They correctly note that these cases require quite specific language before concluding that a forum selection clause is mandatory, such that it dictates an exclusive forum for litigation under the contract. They also correctly note that these decisions refuse to dismiss a suit or transfer an action to the stated forum when the clause is deemed permissive. They err, however, in concluding that these decisions hold that permissive clauses are unenforceable in the sense that the clauses are effectively read out of the contract. In seizing on the mandatory/permissive distinction, the Guarantors ignore the context in which this distinction was relevant. In all of the cases cited by the Guarantors, the party seeking enforcement of the clause was seeking dismissal of the suit when the plaintiff had chosen to bring suit in a forum not stated in the clause. . . . We specifically concluded [in Citro Florida] that the clause was enforceable, but that it did not compel jurisdiction in Brazil. The clause merely permitted either party to bring suit in Brazil without allowing the opposing party to object; it did not go further and preclude suit in any other forum. . . . Likewise, in Caldas & Sons, the provision at issue provided that `[t]he laws and courts of Zurich are applicable.' Caldas & Sons, 17 F.3d at 127 (internal quotation marks omitted). The defendants sought to have the suit dismissed, claiming that this provision required the parties to conduct all litigation in Zurich. The Fifth Circuit rejected this argument, holding that the provision permitted, but did not require, litigation in Zurich. See id. at 127-28.Id. at 1262 n. 24 (italics in original; bold emphasis added).
The law requires that the parties do more than just consent tojurisdiction in a particular forum without waiving jurisdictionin other forums. In this case, the forum selection clause is justsuch a "consent to jurisdiction" clause. The SECD and ShipManagement agreed to "submit [to] the jurisdiction of the Courtsof Singapore." There is no exclusive language in the clauseprecluding the parties from bringing covered claims in othercourts. The clause is ambiguous in this regard, and thus issubject to the reasonable interpretation that the parties merelyagreed that any objections to jurisdiction in Singapore by eitherof them would be barred if a covered claim were brought in theSingapore courts. Jurisdiction elsewhere was not waived.
Furthermore, the forum selection clause is interpreted morestrongly against Ship Management as one of the parties to theclause. Wai agreed to the clause's terms after the fact, but itwas the SECD and Ship Management that were responsible forputting the clause in final form. See, e.g., Amermed Corp. v.Disetronic Holding AG, 6 F. Supp.2d 1371, 1375 (N.D. Ga. 1998)(finding forum selection clause permissive where it did notcontain exclusive language and it "was put in final form by"party moving for dismissal). Based on the foregoing EleventhCircuit precedent, and in reliance upon the extensive line ofcases holding that forum selection clauses containing the same orvery similar language ("submitting to" jurisdiction) arepermissive, and not exclusive or mandatory,7 the undersigned finds the clause here to bepermissive. Accordingly, the relief requested by Defendants,dismissal for improper venue based on the forum selection clausein the CBA, is not appropriate.
C. The Insufficient Record Does Not Permit Dismissal Basedon a Choice of Law Analysis
Defendants urge that the Court dismiss this action based onforum non conveniens, arguing that choice of law provisions weigh against United Statesjurisdiction in this case. In a recent decision, the choice oflaw analysis that the Eleventh Circuit applies in determiningwhether to dismiss a Jones Act claim based on forum nonconveniens was explained: Under Eleventh Circuit case law, the application of the Jones Act involves a question of choice of law, the determination of which requires a two-pronged inquiry. Smumlicz v. Norwegian America Line, Inc., 698 F.2d 1192, 1195 (11th Cir. 1983). First, the district court must decide, under choice of law principles, whether the law of the United States should be applied. If United States law applies, the case should not be dismissed for forum non conveniens. Id. If the court determines that United States law does not apply, it shall then examine the traditional considerations of forum non conveniens to determine whether the court should exercise its discretion and decline to assert jurisdiction over the case. Id.. . . . Before conducting the forum non conveniens analysis as suggested by Defendants, this Court is obligated to determine whether the Jones Act is applicable under the facts of the case. Szumlicz v. Norwegian America Line, Inc., 698 F.2d 1192, 1995 (11th Cir. 1983). The Jones Act provides the following: Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury . . . Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located. 46 U.S.C. app. § 688(a).Williams v. Cruise Ships Catering, 2003 WL 23181972, *3 (S.D.Fla. Dec. 3, 2003) (emphasis in original). The Williams courtthen discussed and applied the test established by the SupremeCourt in Lauritzen v. Larsen, 345 U.S. 571, 583-91 (1953).According to Lauritzen, courts must consider the followingseven factors in determining whether the Jones Act is applicableto a claim: (1) the place of the wrongful act; (2) the law of theship's flag; (3) the allegiance or domicile of the injuredseaman; (4) the allegiance of the shipowner; (5) the place wherethe shipping articles were signed (or, the place of thecontract); (6) the accessibility of the foreign forum; and (7)the law of the forum. Id. The Lauritzen factors are neither exhaustive nor meant to beapplied mechanically to the facts of each case. See HellenicLines Ltd. v. Rhoditis, 398 U.S. 306, 308-09 (1970). InRhoditis, the Supreme Court added an eighth factor to the list,the "shipowner's base of operations." Id. at 309. The Courtnoted that the operational contacts of both the ship and itsowner are to be considered in the choice of law analysis. Id.at 310.
Defendants argue that Wai has not offered a "shred of evidence"as proof of Wai's mere allegations that the Defendants areactually American companies, or have American ownershipinterests, and are attempting to escape American law by nominalforeign registration. According to Defendants, "Plaintiff hasmade no attempt to rebut, or even respond to the affidavits filedin this case, nor to present to this Court any facts whatsoeverother than their [sic] bare unsupported allegations," and "[t]hisis simply insufficient to overcome the evidence and law submittedby Defendants in support of their Motion to Dismiss." (Reply inSupport of Motion to Dismiss, p. 8). Wai argues that an analysisunder Lauritzen and Rhoditis would be "premature prior to theopportunity to conduct more extensive discovery in the case atbar," especially with respect to the eighth factor. (Response, p.13). Specifically, Wai maintains that additional discovery mustbe had to ensure that the Defendants are not American shipownerstrying to escape the obligations American law places on them.See Sigalas v. Lido Maritime, Inc., 776 F.2d 1512, 1517 (11thCir. 1985). Wai's position is that at this point he cannot offerany evidence on several of the factors, and that any analysisunder Lauritzen and Rhoditis must be deferred until such timeas he has had the opportunity to engage in further discovery.
Only three of the Lauritzen/Rhoditis factors are not indispute, i.e., the place of the wrongful act (Port Everglades, Florida); the place of the contract(Singapore); and the law of the forum (United States). Everyother factor is disputed. With respect to the second factor, thelaw of the ship's flag, Wai argues that the Liberian flag is amere "flag of convenience." As to the third factor, "allegianceor domicile of the injured seaman," Wai contends that this is"unknown" because he is presently seeking political asylum in theUnited States and receiving medical treatment here. The partiesalso dispute the fourth and eight factors, the "allegiance of theshipowner" and the "base of operations." Defendants argue thatthese factors point to Singapore, but Wai alleges (although thereis nothing yet in the record to prove it) that Defendants areactually an American company attempting to escape American law bynominal foreign registration. Finally, the parties disputewhether or not Singapore is truly accessible as an alternativeforum, the sixth factor.
That several of the Lauritzen/Rhoditis factors are disputedwould not alone be reason enough for this Court to decline toengage in the choice of law analysis if the record weredeveloped. However, the analysis required by Lauritzen andRhoditis would certainly be premature here. The Complaint inthis action was filed on June 19, 2003, and the case has onlyrecently been set for trial. The February 2, 2004 SchedulingOrder (D.E. 40) sets a September 16, 2004 deadline forcompletion of all discovery. Therefore, Wai's argument that thediscovery he has obtained thus far is insufficient is persuasive.Although the evidence proffered by the Defendants tends to showthat Defendants have minimal contacts with the United States, theevidence also shows that Defendants do have some contacts withthis forum. The issues of fact with respect to the relationshipbetween the Defendants and the ship, and with respect to their(the Defendants' and the ship's) contact with the United States,prevent the Court from properly coming to a conclusion as towhich law applies to Wai's claims.
At least one of the Defendants, Maritime Management, and theship has contacts with the United States. Wai has alsorepresented to the Court at oral argument that MaritimeManagement may also be affiliated with another unknown entitythat has the same ownership interest, and that Wai should be ableto conduct further discovery to identify this other company anddetermine its relationship to this dispute.8 Under thecircumstances, Wai will be permitted to conduct further discoveryto permit him to rebut the evidence put forward by theDefendants. At this early stage in the proceedings, Wai will notbe prevented from having American law apply to his claims. Othercourts have reached the same result for similar reasons. See,e.g., Equal Employment Opportunity Commission ("EEOC") v. KlosterCruise Limited, 939 F.2d 920, 923-24 (11th Cir. 1991) (reversingthe district court's denial of the EEOC's application forenforcement of an administrative subpoena, finding that districthad prematurely resolved jurisdictional issue, and ordering thatemployer operating foreign flagged vessel owned by foreigncorporation had to comply with subpoena in order to allow theEEOC to investigate facts relating to the Lauritzen/Rhoditisanalysis); Blanco v. Carigulf Lines, 632 F.2d 656, 658 (5thCir. 1980) (finding that "dismissal by the district court waspremature in that it did not review all of the necessary factorsupon which a resolution of the presence or absence of properjurisdiction must be based); Gazis v. John S. Latsis (USA),Inc., 729 F. Supp. 979, 985 (S.D.N.Y. 1990) (denying motions todismiss, stating that "[s]ince plaintiff has not yet had the opportunity to take any discovery, the resolution of this issue[application of the Jones Act under Lauritzen/Rhoditis] mustwait development of a sufficient record."); Cerda v. EletsonMaritime Corp., 515 F. Supp. 883, 887 (E.D. Pa. 1981) (denyingdefendant's motion to dismiss, finding that injured seamanplaintiff was entitled to additional discovery to determine whichcountry's law would apply to his action; and noting "a recordthat fails to disclose facts that might constitute substantialcontacts between the transaction and the United States cannot bedispositive of the choice of law question even if it manifests adefinite tendency in either direction."). Accordingly, the Motionto Dismiss based on forum non conveniens is denied.
D. Defendants' Claims of Improper Process and Service ofProcess Have Been Rendered Moot
Defendants have waived improper process and improper service ofprocess by accepting service. Nevertheless, Defendants' Motionstates: While service of process and process were defective, Defendants recognize that each summons and Complaint have made it to the proper parties. Defendants are willing to waive re-service and to accept service of process de facto in this case, since their attorney has received the papers, but in case of future matters ask the Court to specifically hold that service was technically improper, that neither Mr. Fichtel nor Lamorte, [sic] Burns is an agent for service of process, and that service was made with[out] explicit and express waiver of the Defendants.(Motion to Dismiss, p. 16) (emphasis added). In their Replybrief, Defendants reiterate that what they seek is "a ruling fromthe Court that the method of service on the in personamDefendants was invalid," but "do not seek outright dismissal onthis basis as they are willing to accept service of process defacto." (Reply, p. 9-10).
The issues of improper process and service of process have beenrendered moot by Defendants' waiver and acceptance. Therefore, the Court declinesDefendants' invitation to provide them with what in essence wouldbe an advisory opinion on issues that are no longer in this case.
For the foregoing reasons, it is
ORDERED AND ADJUDGED as follows: 1. Defendants' Motion to Dismiss Seaman's Complaint for Damages (D.E. 15) is DENIED, and the case will not be dismissed based on improper venue or forum non conveniens; however, the parties are advised that Defendant, M.T. Maritime Management (USA) LLC's Motion to Dismiss under Fed.R.Civ.P. 12(b)(6) has been converted into a motion for summary judgment under Rule 56, Fed.R.Civ.P. Accordingly, Wai shall have ten (10) days from the date of this Order to file a memorandum in response to the Motion for Summary Judgment, a statement of material facts and any other accompanying affidavits, exhibits, or other filings required by Fed.R.Civ.P. 56 and S.D. Fla. L.R. 7.5; and Defendants shall have ten (10) days from service of Wai's filing to respond. The Court will enter a ruling on the Motion for Summary Judgment after the parties have had an opportunity to supplement the record. 2. Defendants' Motion to Stay Discovery Pending Ruling on Motions to Dismiss (D.E. 41) is DENIED. Defendants shall respond to the outstanding discovery requests within the time required by the Rules. DONE AND ORDERED.
1. The Kyaw Declaration does not indicate where this person islocated.
2. The Kyaw Declaration also does not indicate where thisperson is located.
3. Defendants have submitted an Affidavit from Oon Thian Seng(D.E. 13), in which Seng, a practicing member of the Singaporebar, provides the following opinions, based on Singapore law: (1)the forum selection clause in favor of Singapore would provideSingapore courts with jurisdiction over any disputes relating tothe CBA because Singapore law provides that Singapore courts willhave jurisdiction "where the Defendants have submitted to oragreed to submit to the jurisdiction of the Singapore Courts;"(2) Wai's claims are cognizable under Singapore law, and Waiwould prevail under that country's law if he proved that theDefendants were negligent and that the Defendants' negligencecaused his injuries; (3) Wai would be entitled to appoint counselof his choice to represent him in the legal proceedings inSingapore; (4) Wai's claim would be heard by a judge of the HighCourt, since a trial by jury is not available; (5) Wai would beentitled to appeal an adverse decision to the Court of Appeal,but unless there are exceptional circumstances, such as whenrelevant new evidence has become available only after trial,previously available evidence will not be admitted on appeal andthere will be no re-examination of witnesses by the Court ofAppeal; (6) Wai would be entitled to conduct discovery ofdocuments, and although direct witness evidence is to bepresented by affidavit, Wai would be able to conductcross-examination of witnesses at his trial; and (7) Wai would bepermitted to present evidence by deposition.
4. Defendants also seek dismissal under Fed.R.Civ.P.12(b)(1) for lack of subject matter jurisdiction. Wai's claimsarise under the Jones Act, the Seaman's Wage Act, and the generalmaritime law of the United States. Because federal admiralty andmaritime jurisdiction exists under 28 U.S.C. § 1331, 1333,Defendants' 12(b)(1) argument is unavailing.
5. Because this case is still in its infancy, and because Waihas argued that it requires additional discovery to develop theissues in this case, the Court directs Wai to Fed.R.Civ.P.56(f), which provides: Should it appear from the affidavits of a party opposing the motion [for summary judgment] that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
6. Whether or not the forum selection clause in the CBAgoverns Wai's personal injury claims is not considered because,even if the clause governed such disputes, it is not broad enoughto exclude litigation in the United States. See supra. However,the Court notes, without rendering a ruling on this issue, thatit appears that resolution of Wai's personal injury claims wouldrequire interpretation of the Addendum ("Annexture B") to the CBAthat specifically addresses "personal injuries" suffered byMyanmar scamen during the course of their employment under theCBA, and therefore, the forum selection clause applies to theclaims.
7. See, e.g., Redondo Constr. Corp. v. Banco Exterior DeEspana, S.A., 11 F.3d 3, 5-6 (1st Cir. 1993) (clause providingthat "borrower and guarantors each hereby expressly submits tothe jurisdiction of all federal and state courts located in thestate of Florida," held permissive) (emphasis added); Keaty v.Freeport Indonesia, Inc., 503 F.2d 955, 957 (5th Cir. 1974)(finding that provision reading "[t]his agreement shall beconstrued and enforceable according to the law of the State ofNew York and the parties submit to the jurisdiction of thecourts of New York" was permissive since one reasonableconstruction of the provision was that plaintiff merely intendedto submit to the jurisdiction of the New York courts if suedthere but did not intend to waive his right to sue or be suedelsewhere, and since the contract agreement, having been put intowritten form by defendant, had to be construed more stronglyagainst it) (emphasis added); Reliance Ins. Co. v. Six Star,Inc., 155 F. Supp.2d 49, 58 (S.D.N.Y. 2001) (forum selectionclause providing that the parties "will submit to thejurisdiction of the State of New York and will comply with allthe requirements necessary to give such court [sic] jurisdiction"was permissive) (emphasis added); Raspino v. JRL Enterprises,Inc., 2001 WL 845455, * 2 (E.D. La. 2001) (finding thatprovision that stated "the parties hereby agree to submit tothe jurisdiction of the courts of the State of New York," waspermissive forum selection clause) (emphasis added); S & DCoffee, Inc. v. GEI Autowrappers, 995 F. Supp. 607, 609-10(M.D.N.C. 1997) (finding the following forum selection clause tobe permissive: "[t]he contract between the company [defendant]and the customer [plaintiff] shall be governed by and construedin accordance with English law, and both parties shall submitto the jurisdiction of the English courts" because "it directsonly that English courts have jurisdiction, not that Englishcourts shall `have exclusive jurisdiction' or that `venue shalllie in England;'" also noting that permissive forum selectionclauses are more appropriately referred to as "consent tojurisdiction" clauses, as they "merely specif[y] a courtempowered to hear the litigation, in effect waiving any objectionto personal jurisdiction in a venue," whereas a mandatory forumselection clause identifies "a particular state or court ashaving exclusive jurisdiction over disputes arising out of theparties' contract and their contractual relationship.") (emphasisadded); The Pep Boys — Manny, Moe & Jack v. American Waste OilServices Corp., 1997 WL 367048, *7 (E.D. Pa. 1997) (finding thefollowing clause permissive: "AWR hereby submits to personaljurisdiction in said state for enforcement of this Agreement andwaives any and all personal rights under the laws of said stateto object to jurisdiction within said state for the purposes oflitigation to enforce this Agreement.") (emphasis added);Cummings v. Caribe Marketing & Sales Co., 959 F. Supp. 560,563-65 (D.P.R. 1997) (finding the following clause permissive:"[t]he undersigned each agrees to submit to personaljurisdiction in the state of New York in any action or proceedingarising out of or relating to this guaranty") (emphasis added);Guy F. Atkinson Constr., A Div. of Guy F. Atkinson Co. v. OhioMun. Elec. Generation Agency Joint Venture 5, 943 F. Supp. 626,628-29 (S.D. W. Va. 1996) (clause providing "the owner and thecontractor jointly and severally submit to the personaljurisdiction of the state and federal courts of Franklin County,Ohio," held permissive) (emphasis added); S.K. & Co., Inc. v.The Legacy Group of America, Inc., 1996 WL 5072, *1 (S.D.N.Y.1996) (finding the following forum selection clause permissive:"[Plaintiffs] hereby agree to submit to the jurisdiction ofthe Courts of the State of New York for purposes of enforcingthis agreement.") (emphasis added).
8. This is consistent with Wai's allegation in the Complaintthat the Defendants were "Wai's employer and/or acted as an agentfor an undisclosed principal who was the owner and/or operator ofsaid ship." (Complaint, ¶ 5).