Forum-Selection Clauses in Maritime Contracts
Are forum-selection clauses in maritime contracts enforceable?
Often, but not always. Since the Supreme Court's Bremen decision, a forum-selection clause in a maritime contract is presumptively enforceable. That presumption can be overcome by showing the clause is unreasonable, was the product of fraud or overreaching, or would effectively deprive a party of a meaningful day in court. Clauses affecting injured seamen receive particular scrutiny because of the protections maritime law gives them.
Key takeaways
- Maritime forum-selection clauses are presumptively enforceable after the Bremen decision.
- The presumption can be overcome in defined circumstances.
- Unreasonableness, fraud, or overreaching can defeat a clause.
- A clause that would deny a meaningful day in court may not be enforced.
- Clauses affecting seamen draw heightened scrutiny.
A forum-selection clause is a contract term that picks, in advance, where any dispute must be litigated — sometimes a distant U.S. court, sometimes a foreign country. Maritime employers and vessel owners use them to pull an injured worker away from a favorable court and into a forum of the company's choosing. Whether such a clause is enforced against an injured seaman is far from automatic.
The general rule — and its limits
The Supreme Court made maritime forum-selection clauses presumptively enforceable in M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972), and reinforced consumer-contract enforcement in Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991). The mechanism for enforcing a clause that points to another federal court is transfer under Atlantic Marine Construction Co. v. U.S. District Court, 571 U.S. 49 (2013). But the Bremen presumption is not absolute: a clause can be set aside where enforcement would be unreasonable or unjust, where it was the product of fraud or overreaching, where the chosen forum is so gravely inconvenient that the worker would be effectively deprived of his day in court, or where enforcement would contravene a strong public policy of the forum.
The collision with the Jones Act and saving to suitors
For an American seaman, a forum-selection clause runs into the protections built into maritime law. A Jones Act plaintiff has historically been afforded broad venue choice, and the saving-to-suitors clause preserves the right to a common-law remedy — including, in many courts, a jury. Courts have been skeptical of clauses that operate to strip a seaman of these statutory protections, and that skepticism is a key argument against enforcement. A clause that channels a U.S. worker into a foreign forum also overlaps with forum non conveniens and, where it points to arbitration, with the arbitration analysis.
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Text (713) 489-2297Why it matters to an injured worker
A forum-selection clause can be the difference between a case heard by a local jury and one shipped to a court — or a country — where the law, the procedure, and the damages are dramatically less favorable. For foreign crews, these clauses frequently work hand in hand with choice-of-law and foreign-seaman arguments to try to defeat U.S. jurisdiction altogether.
In practice
Fighting an adverse forum clause means attacking it on the Bremen factors — overreaching in how it was presented, the practical impossibility or gross inconvenience of the chosen forum, and the public policy in favor of a seaman's remedies — while pressing the Jones Act and saving-to-suitors protections that resist channeling a worker out of his chosen court. As with arbitration clauses, the outcome turns on the specific language, how it was obtained, and the worker's status and nationality.
Related
Frequently asked questions about maritime forum-selection clauses
Are forum-selection clauses always enforced?
No. They are presumptively valid, but that presumption can be rebutted in specific circumstances.
How can a forum-selection clause be challenged?
By showing it is unreasonable under the circumstances, was the product of fraud or overreaching, or would effectively deprive the injured party of a meaningful day in court.
Do these clauses get special scrutiny for seamen?
Yes. Because maritime law protects seamen, clauses that would push their claims into an inconvenient or inadequate forum receive particular attention.
Where do these clauses appear?
In offshore and maritime employment contracts and service agreements, often pointing to a foreign country or a distant court.
Can a foreign forum-selection clause be defeated?
Sometimes, depending on the facts, which is frequently a central fight in cases involving foreign offshore work.
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This page is general information, not legal advice, and does not create an attorney-client relationship. The law that applies to an offshore injury — the Jones Act, the LHWCA and § 905(b), OCSLA, the general maritime law, DOHSA, or another body of law — the available damages, and the parties responsible depend on the specific facts. Prior results do not guarantee or predict a similar outcome. This is attorney advertising. Responsible attorney: Michael Patrick Doyle. Doyle Dennis Avery LLP · 3401 Allen Parkway, Suite 100, Houston, TX 77019.
