*Of the District of Massachusetts, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 04-1183

LINDA REYNOLDS-NAUGHTON,

Plaintiff, Appellant,

v.

NORWEGIAN CRUISE LINE LIMITED,

d/b/a NORWEGIAN CRUISE LINE,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

 Boudin, Chief Judge,

Torruella, Circuit Judge,

and Saris,* District Judge.

Vincent Galvin with whom Malcolm P. Galvin, III was on brief

for appellant.

Peter A. Junge with whom Lambos & Junge was on brief for

appellee.

September 14, 2004
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BOUDIN, Chief Judge. While on a cruise from Boston to

Bermuda aboard the Norwegian Majesty in May 2002, Linda ReynoldsNaughton was injured (according to her later complaint) by a

passenger door that closed unexpectedly on her hand. The injury

resulted in the loss of the top third of her right middle finger.

In May 2003 Reynolds-Naughton filed a negligence claim in admiralty

in Massachusetts federal district court against the owner of the

vessel, Norwegian Cruise Line Limited, a Bermuda corporation

headquartered in Miami, Florida. 

Reynolds-Naughton's passenger-ticket contract contained

various limits on the cruise line's liability, including a forum

selection clause. This clause stated that "any and all claims,

disputes or controversies whatsoever arising from or in connection

with this Contract and the transportation furnished hereunder shall

be commenced, filed and litigated, if at all, before a court of

proper jurisdiction located in Dade County, Florida, U.S.A."

Anticipating a defense based on this clause, Reynolds-Naughton

filed suit concurrently in the Southern District of Florida.

In September 2003, Norwegian Cruise Lines filed a motion

to dismiss the Massachusetts case pursuant to the forum selection

clause. Reynolds-Naughton opposed the motion but not on the ground

that the clause failed as an unfair contract of adhesion or that

she lacked proper notice. Rather, she claimed that the forum

selection clause was invalid under the Limitation of Vessel Owner's
1See, e.g., Smith v. Doe, 991 F. Supp. 781, 782 (E.D. La.

1998); Kalman v. Cunard Line, Ltd., 904 F. Supp. 1150, 1151 & n.1

(D. Haw. 1995); Roberson v. Norwegian Cruise Line, 897 F. Supp.

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Liability Act, 46 U.S.C. app. § 183c (2000). In December 2003, the

district court granted the motion to dismiss and this appeal

followed.

The Act, as it stood both at the time of ReynoldsNaughton's trip and at the time the district court ruled, provided

in pertinent part that the owner of a vessel transporting persons

from or to United States ports could neither limit by contract its

liability for personal injury due to negligence, nor offer any

contract terms purporting to

lessen, weaken, or avoid the right of any

claimant to a trial by court of competent

jurisdiction on the question of liability for

such loss or injury, or the measure of damages

therefor.

46 U.S.C. app. § 183c(a) (emphasis added). Any such limitations

were explicitly declared null and void. Id.

If the issue were open, one might read the above-quoted

language in several different ways. But in Carnival Cruise Lines,

Inc. v. Shute, 499 U.S. 585, 596 (1991), the Supreme Court read it

as allowing forum selection clauses that limited the passenger's

choice of venue, so long as a "court of competent jurisdiction"

remained available to the passenger. In this case, the district

court thought Shute controlling, as have other courts that have

addressed the same problem since Shute.

1
1285, 1287-88 (C.D. Cal. 1995); Melnik v. Cunard Line Ltd., 875 F.

Supp. 103, 106 (N.D.N.Y. 1994). Of these cases only the first two

mention the post-Shute amendments to the Limitation Act, on which

Reynolds-Naughton bases her appeal.

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Reynolds-Naughton's argument to the contrary is inventive

but ultimately unpersuasive. It rests upon the fact that in

October 1992, Congress altered the above-quoted language by

inserting the word "any" before the phrase "court of competent

jurisdiction," and that in November 1993, Congress again amended

the Act by deleting "any" and restoring the original text. How

this happened and what was said by legislative spokesmen bear

recounting.

The October 1992 amendment adding the word "any"

originated in the House version of the Oceans Act of 1992, Pub. L.

No. 102-587, § 3006, 106 Stat. 5039, 5068, sponsored by Gerry E.

Studds of Massachusetts. Until the day of its adoption, this

amendment had not been mentioned in debates or in a congressional

report; it was apparently offered after both houses had completed

their reports on the bill, and was first mentioned early on the

morning of October 6, 1992, immediately before the House passed the

statute and one day before the Senate did so (and three days before

Congress recessed for three months).

Nevertheless, Congressman Studds said on the House floor

prior to enactment that the purpose of the amendment was to

"overturn the result in Carnival" and allow injured passengers to
2See Coast Guard Authorization Act of 1993, § 309, Pub. L. No.

103-206, 107 Stat. 2419, 2425; 139 Cong. Rec. S16,957-67 (daily ed.

Nov. 22, 1993). Section 309, like section 3006 of the Oceans Act

the year before, was labeled a "Technical Clarification."

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"choose the forum" and sue "in any court of competent

jurisdiction." 138 Cong. Rec. H11,785 (daily ed. Oct. 5, 1992)

(statement of Rep. Studds). Taking the change of language together

with this legislative history, we agree that Reynolds-Naughton's

suit could be maintained in Massachusetts if the 1992 amendment

governed this case. But well before the district court acted, the

law had changed again.

This time the amendment came from the Senate. As another

piece of maritime legislation was making its way through Congress,

Senators Ted Stevens and Ernest F. Hollings offered an amendment to

the House bill, replacing everything after the enacting clause with

new text. The new text included a provision deleting the word

"any" from the Limitation Act paragraph in dispute in this case.2

The Senate passed this substitute on the day the amendment was

offered, and the House passed the same version less than 10 hours

later. Three days later Congress recessed.

If this were all that had happened, the outcome in this

case would be obvious. The natural inference would be that by

striking "any" Congress was expressing an intention to go back to

the precise language construed in Shute and, indeed, to enact the

Supreme Court's gloss. See Lorillard v. Pons, 434 U.S. 575, 580-81
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(1978). Even without this latter inference, Shute's interpretation

would certainly bind lower courts once Congress had re-adopted the

glossed language. At least, this would all be so in the absence of

powerful legislative history giving a different spin to the 1993

amendment.

Reynolds-Naughton purports to offer just such legislative

history. When in November 1993 the Senate sent the newly amended

version of the Coast Guard Authorization Act to the House, a member

asked that Representative Studds explain its provisions. 139 Cong.

Rec. H10,938 (daily ed. Nov. 22, 1993) (statement of Rep. Young).

Representative Studds replied that the 1992 revision to the

Limitation Act (which was now to be undone) had been intended to

overrule Shute and that the newly proposed deletion of "any" did

not undo Congress' overruling of Shute. Rather, the new bill's

reversion to the pre-1992 text sought only

to clarify that the tort action cannot be

brought in just any district court of the

United States, but must be filed in [a] court

located in a district in which the vessel

owner is doing business, the vessel is

operating, or where the passenger board[s] the

vessel. For this reason, the word "any" has

been deleted. We do not intend by this

amendment to restore the standard set by the

Supreme Court in its 1991 decision, Carnival

Cruise Lines versus Shute.

Id. at H10,939 (statement of Rep. Studds).

Representative Studds also read into the Congressional

Record a "section-by-section analysis" of the bill, which similarly
3Nat'l Assoc. of Greeting Card Publishers v. United States

Postal Serv., 462 U.S. 810, 832 n.28 (1983), relied upon by

Reynolds-Naughton, is not helpful to her case. Greeting Card

Publishers drew a clear distinction between a published conference

report and a statement of the House Managers that was unilaterally

appended to a conference report after that report had already been

considered by the Senate.

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stated that the bill did not intend to reinstate the Shute

standard, but merely sought to clarify that the ordinary principle

of forum non conveniens applied to the plaintiff's choice of forum.

139 Cong. Rec. H10,941 (daily ed. Nov. 22, 1993) (statement of Rep.

Studds). Although another member of the Merchant Marine and

Fisheries Committee referred to this section-by-section analysis as

a "conference report," id. at H10,945 (statement of Rep. Bentley),

this analysis never appeared in a printed report of Congress.3

A month after the Senate reconvened from its winter 1993

recess, Senators Stevens and Hollings responded. Describing the

Studds statement to the House as a misinterpretation, Senator

Stevens told the Senate that "[o]ur intent was that section 309

should be interpreted to allow vessels to enforce [forum selection]

clauses, as upheld by the Supreme Court in the Shute case." 140

Cong. Rec. S1848 (daily ed. Feb. 24, 1994) (statement of Rep.

Stevens). Senator Hollings agreed: "[T]he intent of the Senate

amendment made in section 309 . . . was to reverse the action taken

by Congress in section 3006 of the Oceans Act of 1992. By passing

section 309, Congress has reinstated the decision in the Shute case

. . . ." Id. (statement of Sen. Hollings). 
4See Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447

U.S. 102, 108 (1980); United States v. Phila. Nat'l Bank, 374 U.S.

321, 348-49 (1963). But see Andrus v. Shell Oil Co., 446 U.S. 657,

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Supporting the Senate sponsors of the 1993 change,

Senator John B. Breaux added a further explanation for the Senate's

decision to change the language back to its pre-1992 version:

While it is perfectly legitimate for the

Congress to overturn a Supreme Court decision

within the bounds of the Constitution, we do

not believe such changes should be made

without notification to, and careful

consideration by, the Members of Congress

responsible for the enactment of the

legislation. . . . At no time prior to the

passage of the Oceans Act of 1992 was

legislation introduced or did the House or

Senate hold hearings on the cruise ship venue

concern addressed by section 3006 of the

Oceans Act. It is for this reason that the

Senate supported a provision in the Coast

Guard Authorization Act of 1993 to restore [46

U.S.C. app. § 183c(a)] to the wording as it

read prior to the passage of the Oceans Act of

1992. Section 309 reinstates the Supreme

Court decision in the Shute case as the

applicable law for interpreting forum

selection clauses.

140 Cong. Rec. S1847 (daily ed. Feb. 24, 1994) (statement of Rep.

Breaux).

In urging that Representative Studds' view be credited,

Reynolds-Naughton has the benefit of two circumstances: that

Studds' interpretation is the only contemporaneous explanation of

the 1993 change and that courts are generally quite suspicious of

legislative history--such as the later Senate floor colloquy--

created after enactment.4 Among the reasons for discounting such
666 n.8 (1980); Seatrain Shipbuilding Corp. v. Shell Oil Co., 444

U.S. 572, 596 (1980).

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later history are that it is easily manufactured and that it comes

at a time when it cannot influence anyone's vote.

Yet in this instance the linguistic evidence weighs

heavily against the Studds gloss. The deletion of "any" in 1993

was not coupled with any new language that accomplished the basic

purpose that he gave for the change; the bill did not state, for

example, that forum selection clauses were unlawful but that

plaintiffs could only sue in specified jurisdictions (such as where

the plaintiff had boarded). Nor did the new version conform to

Studds' section-by-section analysis by outlawing such clauses but

adding that this did not limit forum non conveniens dismissals or

transfers.

Forum non conveniens is a background doctrine, and there

is little reason to think that the term "any" before "competent

court" had ever been read to negate such a doctrine or that the

term's subsequent deletion was intended merely to reawaken that

doctrine. And, had the purpose of the 1993 revision been to

preserve the 1992 version's main aim, it would have been child's

play to say that "forum selection clauses are void" but attach

other forum restrictions. The deletion of "any" is not a plausible

way of achieving such an end.
5The case law to this effect is familiar, and the decisions

also advise caution in accepting the gloss offered by opponents--

which in practical terms includes Representative Studds in this

case. See Bankamerica Corp. v. United States, 462 U.S. 122, 139

(1983); see also NLRB v. Fruit & Vegetable Packers & Warehousemen,

Local 760, 377 U.S. 58, 66 (1964).

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We cannot give weight to a single congressman's gloss,

however ingenious, that is in such tension with the language, the

sequence of events and the probable intent of the drafters.

Despite Representative Studds' comments on the House floor, the

change back to pre-1992 language is decisive in defeating ReynoldsNaughton's right to sue in Massachusetts. As already noted, the

Senate amendment restored the text to the language to which Shute

had given a controlling meaning and, in addition, the sequence

warrants the inference that the purpose of the Senate's change was

to restore the status quo ante.

The Senate statements are not similarly compromised by a

tension between their gloss and the statutory language. Indeed, as

the sponsors of the language, the views of Senators Stevens and

Hollings would ordinarily get special weight.5 Whether such postenactment statements should be considered at all need not be

resolved; the result in this case--that deleting "any" restores

Shute--would be the same even if the senators had said nothing.

Affirmed.