OPINION
Relator OSG Ship Management, Inc. filed a petition for writ of mandamus in this Court, seeking enforcement of a fo
We conclude that the agreement at issue contains a clause selecting a Florida forum, that it is supported by consideration and not invalid under the Federal Employers Liability Act or on public policy grounds, and that its execution without the involvement of a union representative did not violate the parties’ collective bargaining agreement. We conditionally grant the petition.
Background
Rasheed Lawal sustained an injury on July 19, 2015, in the course and scope of his employment as a steward with OSG on the M/T Overseas Anacortes, a products tanker operating in the Bahamas. Lawal notified the vessel’s master of his injury the next day, and he was immediately sent ashore for medical attention. Lawal was evaluated and then returned to the vessel. After a follow-up medical appointment three days later, Lawal was declared unfit for duty.
Lawal was employed under a collective bargaining agreement (“CBA”) between the Seafarers International Union, of which he was a member, and the American Maritime Association, of which OSG was a member. Pursuant to the CBA, OSG commenced maintenance and cure payments of $16 per day to Lawal the day after he signed off the vessel.
Lawal signed the Post Incident Payment Plan Agreement (“PPA”) on August 3, 2015, which provided, in its entirety:
I, Rasheed Lawal, request that OSG Ship Management, Inc. allow me to participate in the Plan. I agree to the terms and conditions of participating in the Plan as described in the above correspondence, including the material term that any claim, dispute or controversy whatsoever that arises from my alleged July 19, 2015 injury aboard the M/TOVERSEAS ANACORTES shall be litigated, if at all, in a federal court located in Hillsborough County, Florida to the exclusion of the courts of any other country, state, county, or city. In the event that a federal court lacks jurisdiction, then I agree to litigate any claim, dispute or controversy whatsoever that arises from my alleged July 19, 2015 injury in a state court of competent jurisdiction located in Hillsborough County, Florida to the exclusion of the courts of any other country, state, county, or city.
For the period beginning on August 1, 2015, and ending November 20, 2015, La-wal received a total of $10,000. Of this amount, $1,952 represented daily maintenance payments of $16 for 122 days.
Lawal filed suit against OSG in the 215th District Court in Harris County, in November 2015, seeking personal injury damages under the Jones Act
The trial court held a hearing on OSG’s motion to dismiss and denied the motion. OSG filed this petition shortly thereafter,
Analysis
In its petition, OSG contends that the trial court abused its discretion by denying its motion to dismiss because the PPA is a forum-selection rather than a venue-selection agreement, it is supported by consideration, attorney representation was not necessary under the Texas Arbitration Act because that Act does not apply to forum-selection clauses, and union representation was not necessary because the PPA is not part of an employment agreement. Lawal responds with two additional arguments. First, Lawal asserts that the PPA is void because the Federal Employers Liability Act,
I. Standard of review
To be entitled to mandamus relief, a relator must demonstrate that (1) the trial court clearly abused its discretion; and (2) the relator has no adequate remedy by appeal. In re Reece,
An appellate remedy is inadequate when a trial court improperly refuses to enforce a forum-selection clause because allowing the trial to go forward will vitiate and render illusory the subject matter of an appeal, i.e., trial in the proper forum. Id.; see also In re Nationwide Ins. Co. of Am.,
II. The PPA includes a forum-selection clause.
The parties initially dispute whether the PPA includes a forum-selection clause. “The distinction between a forum selection clause and a venue selection clause is critical.” Lui v. Cici Enters. L.P., No. 14-05-00827-CV,
Forum refers to the jurisdiction, generally a nation or state, where suit may be brought. Id.; see also Ramsay v. Tex. Trading Co.,
Lawal contends that the PPA includes a venue-selection clause because it designates “a federal court located in Hillsborough County, Florida” or, alternatively, “a state court of competent jurisdiction located in Hillsborough County, Florida.” This contention does not end our inquiry, however, because not all agreements can be neatly labeled as .selecting either a forum or a venue. Some agreements select both. Here, the choice by Lawal and OSG to select a county in the State of Florida as the proper venue necessarily implies that they chose the State of Florida as the forum for a suit arising from Lawal’s injury. See In re Morice, No. 01-11-00541-CV,
Lawal points out that the Texas Legislature has given injured seamen the right to bring Jones Act claims in certain statutorily defined counties. See Tex. Civ. Prac. & Rem. Code Ann. § 15.0181 (West Supp. 2015). But this statute simply defines the counties that are mandatory venues for Jones Act claims properly brought in Texas state courts. Because the parties to the PPA selected a Florida forum, section 15.0181 does not apply to this case.
III. Consideration supports the PPA.
Lawal also asserts that no consideration supports the PPA because the CBA already required OSG to provide him maintenance and cure. To be enforceable, a contract must be supported by consideration. McLernon v. Dynegy, Inc.,
“There is an ancient duty of a vessel to provide maintenance and cure to a seaman who is injured or falls ill while in the service of the ship.” Springborn v. Am. Commercial Barge Lines, Inc.,
In this ease, the CBA set the rate of maintenance at $16 per day. OSG began making maintenance and cure payments to Lawal effective in late July 2015 and has continued (through at least January 2016) to pay maintenance during the pendency of the litigation.
In early August 2015, Lawal signed the PPA, which obligated OSG to pay Lawal $2,500 each month for four months (August through November 2015) until the total payments reached $10,000 or Lawal reached maximum medical cure, whichever
There are many reported cases addressing an employer’s agreement to pay an injured seaman an advance against a future settlement or judgment in exchange for the seaman’s agreement to resolve any disputes in a particular forum, and courts often enforce such agreements.
Lawal points out that the amounts he received for maintenance and cure after November 2015 could easily have exceeded this amount, but nothing in the PPA modifies OSG’s continuing obligation to provide Lawal with maintenance and cure after November 2015. Lawal also relies on the provision allowing OSG to offset the plan payments against any recovery in litigation. It was not known whether there would be any litigation when the parties signed the PPA, however, and in any event Lawal received consideration by getting the money early. See In re Gerald Harris Builder, Inc.,
IV. The Federal Employers Liability Act does not invalidate the PPA’s forum-selection clause.
Lawal next contends that the forum-selection clause is not enforceable because the Jones Act
In Boyd, the Supreme Court of the United States addressed the validity of a contract restricting the choice of venue for a suit under FELA. Id. at 263,
With respect to available venues, FELA included the following provision, which remains substantially unchanged in the current statute:
Under this Act an action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this Act shall be concurrent with that of the courts of the several States
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Id. at 265 (quoting 45 U.S.C. § 56). All parties agreed that this provision allowed
Without addressing whether the plaintiffs choice of forum or venue under section 56 was a “liability created by [FELA],”
OSG relies on the Supreme Court’s subsequent opinion in Pure Oil Company v. Suarez,
The Jones Act venue provision provided that “ ‘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.’ ” Id. at 203,
Section 1391(c) made the range of proper venues broader in actions against corporations by providing a venue in any judicial district in which the corporate defendant “is doing business.” Id. This change to the venue statute brought venue law in line with “modern concepts of corporate operations.” Id. Thus, “the liberalizing purpose underlying [section 1391(c)’s] enactment and the generality of its language support the view that it applies to all venue statutes using residence as a criterion, at least in the absence of contrary restrictive indications in any such statute.” Id. at 205,
Some jurisdictions have applied Boyd in Jones Act cases, holding that forum-selection clauses are void under FELA because the Jones Act incorporates federal laws “regulating recovery for personal injury to, or death of, a railway employee.” 46 U.S.C. § 30140; see, e.g., Boutte v. Cenac Towing, Inc.,
After Terrebonne, the U.S. District Court for the Southern District of Texas addressed whether forum-selection clauses were enforceable under the Jones Act. See Larrisquitu,
Under Terrebonne and Larrisquitu, Lawal would lose his argument that the forum-selection clause in the PPA is unenforceable. But in 2008, Congress intervened, repealing the venue provision of the Jones Act construed in Pure Oil and relied on by Terrebonne and Larrisquitu. See Utoafili v. Trident Seafoods Corp., No. 09-2575 SC,
In Utoafili, the court concluded that the repeal of the Jones Act venue provision “pulled the rug out from under the rationale for refusing to incorporate FELA’s venue provision into the Jones Act.”
We conclude that neither Boyd nor Pure Oil answers the question presented here. Boyd did not address the Jones Act, and Pure Oil interpreted a Jones Act venue provision that has since been repealed. In addition, unlike Utoafili and Riley, we do not resort to extrinsic materials such as legislative history. Instead, we focus our analysis on the plain language of the Jones Act and assume that the ordinary meaning of that language accurately expresses congressional purpose. Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist.,
The second sentence of the Act provides: “Laws of the United States regulating recovery for personal injury to, or death of, a railway employee apply to an action under this section.” 46 U.S.C. § 30104 (emphasis added). The legal concept of venue does not “regulate recovery.” Rather, as the Supreme Court has recognized, “venue is a matter that goes to process rather than substantive rights— determining which among various competent courts will decide the case”; more specifically, venue “does not bear on the substantive right to recover” but is a “matter of judicial housekeeping” under the Jones Act. Am. Dredging Co. v. Miller,
Y. Lawal has not shown that the forum-selection clause is unenforceable under federal maritime law.
Lawal also challenges the PPA’s forum-selection clause as contrary to a strong public policy of protecting seamen. Specifically, Lawal contends that enforcing the PPA is unreasonable because it is a release, which he signed without the guidance of legal counsel.
Forum-selection clauses are prima facie valid and should be enforced unless doing so would be unreasonable. M/S Bremen v. Zapata Off-Shore Co.,
In this case, Lawal contends that protecting seamen against overreaching post-injury releases is such a public policy. “Seamen ... are wards of admiralty whose rights federal courts are duty-bound to jealously protect.” Karim v. Finch Shipping Co.,
OSG responds that a plain reading of the PPA shows it is not a release. A release is a writing providing that a duty or obligation owed to one party is discharged immediately or on the occurrence of a condition. Nat’l City Bank of Ind. v. Ortiz,
Examining the plain language of the PPA, we conclude that it is not a release of Lawal’s claims against OSG related to his July 19, 2015 injury. Rather, the PPA contemplates the possibility that Lawal would bring suit against OSG for his injury, al
Moreover, Lawal has not shown that the PPA’s forum-selection clause is otherwise unenforceable. Lawal presented no evidence in the tidal court that the clause was procured as a result or fraud or overreaching, or that litigating his claims in Florida would be so gravely difficult and inconvenient that he would be deprived of his day in court.
VI. The Collective Bargaining Agreement did not require that the union represent Lawal in negotiating the PPA.
Finally, Lawal asserts that the CBA expressly covers the legal rights and remedies of the injured employee against the employer for work-related injuries. According to Lawal, OSG violated the CBA by negotiating the PPA with him directly, upsetting the relationship defined by the CBA and causing him to lose an advantage provided to him under the CBA—union representation to protect his rights and interests.
Section 1 of the CBA provides:
The American Maritime Association (Association) on behalf of itself and each member Company of the Association [including OSG] recognizes the [specified district of the Seafarers International] Union as the sole and exclusive bargaining representative of all Unlicensed Personnel employed on board American flag vessels owned or operated by such Companies or its subsidiaries.
The key question in resolving Lawal’s challenge is whether the PPA changes the terms and conditions of La-wal’s employment with OSG. Under the National Labor Relations Act (“NLRA”),
In this case, the PPA (1) addresses the forum for resolution of any claims arising out of the July 19, 2015 incident; (2) provides for additional payments to Lawal while expressly leaving his wages requiring a union contribution unchanged; (3) provides that Lawal will not suffer any adverse employment actions if he decides not to participate; and (4) does not change any duties or obligations of the parties under the CBA. For these reasons, the PPA is not an agreement addressing terms and conditions of Lawal’s employment, and therefore the CBA did not require union representation of Lawal in negotiating the PPA.
Conclusion
The trial court abused its discretion by denying OSG’s motion to dismiss based on an enforceable forum-selection clause, and OSG does not have an adequate remedy by appeal. Accordingly, we conditionally grant OSG’s petition for writ of mandamus and direct the trial court to (1) vacate its March 7, 2016 order denying OSG’s motion to dismiss and (2) dismiss the case. We are confident that the trial court will comply, and our writ will issue only if it does not.
Notes
. Section 14 of the CBA provides for maintenance and cure as follows:
When a member of the Unlicensed Personnel is entitled to maintenance and cure under Maritime Law, he shall be paid maintenance at the rate of sixteen dollars ($16.00) per day for each day or part thereof of entitlement. The payment due hereunder shall be paid to the man weekly. This payment shall be made regardless of whether he has or has not retained an attorney, filed a claim for damages, or taken any other steps to that end and irrespective of any insurance arrangements in effect between the Company and any insurer.
. The cover letter acknowledged that "Seam[e]n that sustain an injury or illness while in the service of the vessel are entitled to maintenance, cure, and unearned wages.”
. See 46 U.S.C. § 30140 (providing seamen with remedy for personal injury claims against employers).
. 45 U.S.C. §§ 51-60.
. In order to resolve this mandamus petition, we need not decide whether the portion of the PPA selecting Hillsborough County as the exclusive venue within Florida is enforceable.
. See Great Lakes Dredge & Dock Co. v. Larrisquitu, Civ. A. Nos. H-06-3489,
. See Harrington v. Atl. Sounding Co.,
. The parties dispute whether OSG was also entitled to reduce its monthly PPA payment by any cure amounts it had already paid, but we need not resolve that dispute in order to conclude that the PPA is supported by consideration. There is no indication in the record that either party expected in August 2015 that cure payments would exceed $8,000 by November. Moreover, even if cure payments could be offset, Lawal was exchanging the possibility of receiving more than $1,952 in payments during those four months for a guarantee that he would receive a minimum of $10,000 (assuming, in both cases, that he did not reach maximum improvement earli
. The Jones Act provides:
A seaman injured in the course of employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, against the employer. Laws of the United States regulating recovery for personal injury to, or death of, a railway employee apply to an action under this section.
46 U.S.C. § 30140.
. See Krenger v. Pa. R.R.,
. The Jones Act was formerly codified at 46 U.S.C. § 688. Congress renumbered the provisions of the federal maritime code under Title 46, effective October 6, 2006. See Pub. L. No. 109-304, § 6(c), 120 Stat. 1510 (2006). The Jones Act is currently codified at 46 U.S.C. § 30104.
The Supreme Court noted that, although the Jones Act venue provision was framed in jurisdictional terms, it referred only to venue. Pure Oil Co.,
. As discussed above, the Supreme Court, which affirmed the Fifth Circuit’s judgment in Pure Oil, applied the federal general venue statute to the Jones Act to expand the definition of corporate residence to include the district in which the company is " 'licensed to do business or is doing business.’ ”
. In Terrebonne, the court also distinguished Boyd because that case did not involve the Federal Arbitration Act ("FAA”) or an arbitration agreement. 477 F,3d at 283. However, the analysis involving the FAA in Terrebonne is not relevant to the issues presented in this case.
.In the trial court, Lawal relied on the Texas Arbitration Act ("TAA") to support his position that the forum-selection agreement is not enforceable because he was not represented by counsel at the time he signed the PPA. The TAA does not apply to a claim for personal injury unless each party to the claim, on the advice of counsel, agrees in writing to arbitrate, and the agreement is signed by each party and each party’s attorney. See Tex. Civ. Prac. & Rem. Code Ann. § 171.002(c) (West 2011). Because the PPA does not contain an agreement to arbitrate, this TAA provision does not apply. Furthermore, this provision is inconsistent with the Federal Arbitration Act and therefore is preempted by that Act. In re Nexion Health at Humble, Inc.,
. Cf. Harrington,
. 29 U.S.C. §§ 151-169.
. See Nunez v. Weeks Marine, Inc., Civ. A. No. 06-3777,