* Of the District of Massachusetts, sitting by designation.



# United Stat es Court of Appeals

For the First C ircuit 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, 2004-2- BOUDIN, Chief Judge . While on a cruise from Boston to Bermuda aboard the Norwegian Majestyin May 2002, Linda ReynoldsNaughton was injured (according to her lat er 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 f ederal district court against the owner of the vessel, Norwegian Cruise Line Li mited, a Bermuda corporation headquartered in Miami, Florida.

Reynolds-Naughton's passenger-ticket contract contained various limits on the cruise line's liabil ity, i ncluding 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, fi led and litigated, if at all, before a court of prop er jur isdiction located in Dade County, Florida, U.S.A." Antici patin g a defense based on this clause, Reynolds-Naughton filed suit concurrently in the Southern District of Florida.

In September 2003, Norwegian Cruise Lines fileda 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 unfa ir 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's1 Se e, 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. -3- LiabilityAct, 46 U.S.C. app. § 183c (2000). In December 2003, the district court granted the motion to dismiss and this app eal 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 fromor to United States ports couldneither limit by contract its liabilityfor personal injury due to negligence, nor offer any contract terms purporting to

lessen, we aken, or avoid the right of any claimant to a tria l 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 p asse nger's choice of venue, so long as a "court of competent jurisdiction" remainedavailable to the passenger. In this case, the district court thought Sh ute controlling, as have other courts that have addressed the same problem since Shute . 11285, 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. -4- Reynolds-Naughton's argument to the contrary is inventive but ultimately unpersuasive. It rests upon the fact that in O ctober 1992, Congress altered the above-quoted language b y inserting the word "any" before the phrase "court of competent jurisdiction," and that in N ovember 1993, Congress again amended the Act by deleting "any" andrestoring the original text. How th is hap pened and what was said by legislative spokesmen bear recounting.

The October 1992 amendment adding the word "any" originatedin 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 the ir reports on the bill, and was first mentioned earl y on th e 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 to2 See 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." -5- "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 wi th t his legislative history, we agree that Reynolds-Naughton's suit could be maintained in Massachusetts if the 1992 ame ndm ent governedthis 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 deletin g th e word "any" from the Limitation A ct p aragraph 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 natura l in ference 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 Lorillardv. Pons , 434 U.S. 575, 580-81-6-

(1978). Even without this latter inference, Shute 's interpretation wouldcertainly bind lower courts once Congress had re-adopted the glossedlanguage. At least, this would all be so in the absence of po werful 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 askedthat 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 i ntend ed 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 can no t be brou gh t in just any district court of the United States, but must be filed in [a] court locatedin a di strict 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 Recorda "section-by-section analysis" of the bill, which similarly3 Nat'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 h elpful 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 appendedto a conference report after that report had already been considered by the Senate. -7- statedthat 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 th e 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

Amonth after the Senate reconvened from its winter 1993

recess , Se nators 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 shouldbe interpreted to allow vessels to enforce [forumselection] clauses, as upheld by the Supreme Court in the Shute case." 140 Cong. Rec. S1848 (daily ed. Feb. 24, 1994) (statement of Rep. Stevens). Senato r H ollings agreed: "[T]he intent of the Senate amendment made in section 309 . . . was to reverse the action taken byCongress in section 3006 of the Oceans Act of 1992. Bypassing section 309, Congress has reinstated the decision in the Shute case . . . ." Id. (statement of Sen. Hollings).4 See Consumer Prod. Safety Comm' n v. G TE 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, -8- Supporting the Senate sponsors of th e 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 t he b ounds 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 th is reason that the Senate supported a provision in the Coast GuardAuthorization Act of 1993 to restore [46 U.S.C. app. § 183c(a)] to the wording as it readprior to the passage of the Oceans Act of 1992. Section 309 reinstates the Supreme Co urt 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, Reyno lds-Naughton has the benefit of two circumstances: th a t 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 Sen ate f loor colloquy-- created after enactment. 4 Among the reasons for disco unting such666 n.8 (1980); Seatrain Shipbuilding Corp. v. Shell Oil Co. , 444

U.S. 572, 596 (1980). -9- 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 evi de nce weighs heavilyagainst the S tudds 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

exa mple, that forum selection clauses were unlawful but th a t plaintiffs could onlysue in specifiedjurisdictions (such as where the plaintiff had boarded). Nor did the new version co nform to Studds' section-by-section analysis by outlawing such clauses but adding that this did not limit forum non conveniens dismissals or transfers. Forumnon 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 19 93 revision been to preserve the 1992 version's main aim, it would have been child's playto 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.5 The case law to this effect is familiar, and the dec isions

also advise caution in accepting the gloss offered by opponents-- which in practical terms includes Representative Studds in this case. S ee Ba nkamerica 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). -10- We cannot give weight to a single cong ress man'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 hadgiven 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 statem ent s 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 .