Respondents -- passengers and representatives of the estates of
passengers on a cruise ship hijacked by terrorists -- filed suit in
the District Court against petitioner, the ship's owner, to recover
damages for personal injuries and for the wrongful death of one
passenger. Before trial, petitioner moved to dismiss the actions,
citing the forum-selection clause printed on each passenger ticket,
which purported to obligate passengers to institute any suit in
connection with the contract in Italy and to renounce the right to
sue elsewhere. The District Court denied the motions, holding that
the ticket did not give passengers reasonable notice that they were
waiving the opportunity to sue in a domestic forum. The Court of
Appeals dismissed petitioner's appeal on the ground that the
District Court's dismissal orders were interlocutory, and not
appealable under 28 U.S.C. § 1291, holding that the orders did not
fall within the exception to the rule of nonappealability carved
out by the collateral order doctrine.
Held: An interlocutory order denying a defendant's
motion to dismiss a damages action on the basis of a contractual
forum-selection clause is not immediately appealable under § 1291.
Such an order is not final in the usual sense, for it does not end
the litigation on the merits but, on the contrary, ensures that the
litigation will continue. Nor does the order fall within the narrow
exception to the normal application of the final judgment rule
known as the collateral order doctrine, for the order is not
effectively unreviewable on appeal from final judgment. The right
to be sued only in a particular forum, as compared to the right to
avoid suit altogether, although not perfectly secured by an appeal
after final judgment, is sufficiently vindicable at that stage and
is not essentially destroyed if vindication is postponed until
trial is completed. Moreover, the costs associated with unnecessary
litigation, should it eventually be decided that the District Court
erred in trying the case, do not warrant allowing an immediate
appeal of a pretrial order. That there may be a policy favoring
enforcement of foreign forum-selection clauses goes to the merits
of petitioner's claim that its ticket agreement requires that suit
be filed in Italy and that the agreement should be enforced by the
federal courts, but does not affect the appealability of a
prejudgment
Page 490 U. S. 496
order, which turns on the contours of the right asserted, not on
the likelihood of eventual success on the merits.
844 F.2d 50, affirmed.
BRENNAN, J., delivered the opinion for a unanimous Court.
SCALIA, J., filed a concurring opinion.
JUSTICE BRENNAN delivered the opinion of the Court.
We granted certiorari to consider whether an interlocutory order
of a United States District Court denying a defendant's motion to
dismiss a damages action on the basis of a contractual
forum-selection clause is immediately appealable under 28 U.S.C. §
1291 as a collateral final order. We hold that it is not.
I
The individual respondents were, or represent the estates of
persons who were, passengers aboard the cruise ship Achille Lauro
when it was hijacked by terrorists in the Mediterranean in October,
1985. Petitioner Lauro Lines s.r.1., an Italian company, owns the
Achille Lauro. Respondents filed suits against Lauro Lines in the
District Court for the Southern District of New York to recover
damages for injuries sustained as a result of the hijacking and for
the wrongful death of passenger Leon Klinghoffer. Lauro Lines moved
before trial to dismiss the actions, citing the forum-selection
clause printed on each passenger ticket. This clause purported to
obligate the passenger to institute any suit arising in connection
with the contract in Naples, Italy, and to renounce the right to
sue elsewhere.
Page 490 U. S. 497
The District Court denied petitioner's motions to dismiss,
holding that the ticket as a whole did not give reasonable notice
to passengers that they were waiving the opportunity to sue in a
domestic forum. Without moving for certification for immediate
appeal pursuant to 28 U.S.C. § 1292(b), Lauro Lines sought to
appeal the District Court's orders. The Court of Appeals for the
Second Circuit dismissed petitioner's appeal on the ground that the
District Court's orders denying petitioner's motions to dismiss
were interlocutory, and not appealable under § 1291. The court held
that the orders did not fall within the exception to the rule of
nonappealability carved out for collateral final orders in
Cohen v. Beneficial Industrial Loan Corp., 337 U.
S. 541 (1949). 844 F.2d 50 (1988). We granted certiorari
to resolve a disagreement among the Courts of Appeals. 488 U.S. 887
(1988).
Compare, e.g., 844 F.2d 50 (1988);
Rohrer,
Hibler & Replogle, Inc. v. Perkins, 728 F.2d 860, 862-863
(CA7),
cert. denied, 469 U. S. 890
(1984) (holding prejudgment denial of motion to dismiss on basis of
forum-selection clause not to be immediately appealable under §
1291),
with Hodes v. S. N. C. Achille Lauro ed
Altri-Gestione, 858 F.2d 905, 908 (CA3 1988),
cert.
dism'd, 490 U.S. 1001 (1989);
Sterling Forest Associates,
Ltd. v. Barnett-Range Corp., 840 F.2d 249, 253 (CA4 1988);
Farmland Industries, Inc. v. Frazier-Parrott Commodities,
Inc., 806 F.2d 848, 851 (CA8 1986) (holding such denial to be
an immediately appealable collateral final order). We now
affirm.
II
Title 28 U.S.C. § 1291 provides for appeal to the courts of
appeals only from "final decisions of the district courts of the
United States." For purposes of § 1291, a final judgment is
generally regarded as "a decision by the district court that
ends the litigation on the merits and leaves nothing for the
court to do but execute the judgment.'" Van Cauwenberghe v.
Biard, 486 U. S. 517,
486 U. S. 521
(1988), quoting Catlin v.
United
Page 490 U. S. 498
States, 324 U. S. 229,
324 U. S. 233
(1945). An order denying a motion to dismiss a civil action on the
ground that a contractual forum-selection clause requires that such
suit be brought in another jurisdiction is not a decision on the
merits that ends the litigation. On the contrary, such an order
"ensures that litigation will continue in the District Court."
Gulfstream Aerospace Corp. v. Mayacamas Corp.,
485 U. S. 271,
485 U. S. 275
(1988). Section 1291 thus permits an appeal only if an order
denying a motion to dismiss based upon a forum-selection clause
falls within the "narrow exception to the normal application of the
final judgment rule [that] has come to be known as the collateral
order doctrine."
Midland Asphalt Corp. v. United States,
489 U. S. 794,
489 U. S. 798
(1989). That exception is for a "small class" of prejudgment orders
that
"finally determine claims of right separable from, and
collateral to, rights asserted in the action, [and that are] too
important to be denied review and too independent of the cause
itself to require that appellate consideration be deferred until
the whole case is adjudicated."
Cohen, supra, at
337 U. S. 546.
We have held that to fall within the
Cohen exception, an
order must satisfy at least three conditions:
"It must 'conclusively determine the disputed question,'
'resolve an important issue completely separate from the merits of
the action,' and 'be effectively unreviewable on appeal from a
final judgment.'"
Richardson-Merrell Inc. v. Koller, 472 U.
S. 424,
472 U. S. 431
(1985), quoting
Coopers & Lybrand v. Livesay,
437 U. S. 463,
437 U. S. 468
(1978). For present purposes, we need not decide whether an order
denying a dismissal motion based upon a contractual forum-selection
clause conclusively determines a disputed issue, or whether it
resolves an important issue that is independent of the merits of
the action, for the District Court's orders fail to satisfy the
third requirement of the collateral order test.
We recently reiterated the "general rule" that an order is
"effectively unreviewable" only
"where the order at issue
Page 490 U. S. 499
involves 'an asserted right the legal and practical value of
which would be destroyed if it were not vindicated before
trial.'"
Midland Asphalt Corp., supra, at
489 U. S. 798,
quoting
United States v. MacDonald, 435 U.
S. 850,
435 U. S. 860
(1978). If it is eventually decided that the District Court erred
in allowing trial in this case to take place in New York,
petitioner will have been put to unnecessary trouble and expense,
and the value of its contractual right to an Italian forum will
have been diminished. It is always true, however, that "there is
value . . . in triumphing before trial, rather than after it,"
MacDonald, supra, at
435 U. S. 860,
n. 7, and this Court has declined to find the costs associated with
unnecessary litigation to be enough to warrant allowing the
immediate appeal of a pretrial order,
see Richardson-Merrell
Inc., supra, at
472 U. S. 436
("[T]he possibility that a ruling may be erroneous and may impose
additional litigation expense is not sufficient to set aside the
finality requirement imposed by Congress" in § 1291). Instead, we
have insisted that the right asserted be one that is essentially
destroyed if its vindication must be postponed until trial is
completed.
We have thus held in cases involving criminal prosecutions that
the deprivation of a right
not to be tried is effectively
unreviewable after final judgment, and is immediately appealable.
Helstoski v. Meanor, 442 U. S. 500
(1979) (denial of motion to dismiss under the Speech or Debate
Clause);
Abney v. United States, 431 U.
S. 651 (1977) (denial of motion to dismiss on double
jeopardy grounds).
See Midland Asphalt Corp., supra, at
489 U. S. 801
("A right not to be tried in the sense relevant to the
Cohen exception rests upon an explicit statutory or
constitutional guarantee
that trial will not occur")
(emphasis added). Similarly, in civil cases, we have held that the
denial of a motion to dismiss based upon a claim of absolute
immunity from suit is immediately appealable prior to final
judgment,
Nixon v. Fitzgerald, 457 U.
S. 731,
457 U. S.
742-743 (1982),
"for the essence of absolute immunity is its
Page 490 U. S. 500
possessor's entitlement not to have to answer for his conduct in
a civil damages action,"
Mitchell v. Forsyth, 472 U. S. 511,
472 U. S. 525
(1985). And claims of qualified immunity may be pursued by
immediate appeal, because qualified immunity too "is an
immunity from suit."
Id. at
472 U. S. 526
(emphasis in original).
On the other hand, we have declined to hold the collateral order
doctrine applicable where a district court has denied a claim, not
that the defendant has a right not to be sued at all, but that the
suit against the defendant is not properly before the particular
court because it lacks jurisdiction. In
Van Cauwenberghe v.
Biard, 486 U. S. 517
(1988), a civil defendant moved for dismissal on the ground that he
had been immune from service of process because his presence in the
United States had been compelled by extradition to face criminal
charges. We noted that, after
Mitchell, "[t]he critical
question . . . is whether
the essence' of the claimed right is
a right not to stand trial," 486 U.S. at 486 U. S. 524,
and held that the immunity from service of process defendant
asserted did not amount to an immunity from suit -- even though
service was essential to the trial court's jurisdiction over the
defendant. See also Catlin v. United States, 324 U.S. at
324 U. S. 236
(order denying motion to dismiss petition for condemnation of land
not immediately appealable, "even when the motion is based upon
jurisdictional grounds").
Lauro Lines argues here that its contractual forum-selection
clause provided it with a right to trial before a tribunal in
Italy, and with a concomitant right not to be sued anywhere else.
This "right not to be haled for trial before tribunals outside the
agreed forum," petitioner claims, cannot effectively be vindicated
by appeal after trial in an improper forum. Brief for Petitioner
38-39. There is no obviously correct way to characterize the right
embodied in petitioner's forum-selection provision: "all litigants
who have a meritorious pretrial claim for dismissal can reasonably
claim a right not to stand trial."
Van Cauwenberghe,
supra,
Page 490 U. S. 501
at
486 U. S. 524.
The right appears most like the right to be free from trial if it
is characterized -- as by petitioner -- as a right not to be sued
at all except in a Neapolitan forum. It appears less like a right
not to be subjected to suit if characterized -- as by the Court of
Appeals -- as "a right to have the binding adjudication of claims
occur in a certain forum." 844 F.2d at 55.
Cf. Van
Cauwenberghe, supra, at
486 U. S.
526-527. Even assuming that the former characterization
is proper, however, petitioner is obviously not entitled under the
forum-selection clause of its contract to avoid suit altogether,
and an entitlement to avoid suit is different in kind from an
entitlement to be sued only in a particular forum. Petitioner's
claim that it may be sued only in Naples, while not perfectly
secured by appeal after final judgment, is adequately vindicable at
that stage -- surely as effectively vindicable as a claim that the
trial court lacked personal jurisdiction over the defendant -- and
hence does not fall within the third prong of the collateral order
doctrine.
Petitioner argues that there is a strong federal policy favoring
the enforcement of foreign forum-selection clauses, citing
The
Bremen v. Zapata Off-Shore Co., 407 U. S.
1 (1972), and that
"the essential concomitant of this strong federal policy . . .
is the right of immediate appellate review of district court orders
denying their enforcement."
Brief for Petitioner 40-41. A policy favoring enforcement of
forum-selection clauses, however, would go to the merits of
petitioner's claim that its ticket agreement requires that any suit
be filed in Italy and that the agreement should be enforced by the
federal courts. Immediate appealability of a prejudgment order
denying enforcement, insofar as it depends upon satisfaction of the
third prong of the collateral order test, turns on the precise
contours of the right asserted, and not upon the likelihood of
eventual success on the merits. The Court of Appeals properly
dismissed petitioner's appeal, and its judgment is
Affirmed.
Page 490 U. S. 502
JUSTICE SCALIA, concurring.
I join the opinion of the Court, and write separately only to
make express what seems to me implicit in its analysis.
The reason we say that the right not to be sued elsewhere than
in Naples is "adequately vindicable,"
ante at 501, by
merely reversing any judgment obtained in violation of it is, quite
simply, that the law does not deem the right important enough to be
vindicated by, as it were, an injunction against its violation
obtained through interlocutory appeal. The importance of the right
asserted has always been a significant part of our collateral order
doctrine. When first formulating that doctrine in
Cohen v.
Beneficial Industrial Loan Corp., 337 U.
S. 541 (1949), we said that it permits interlocutory
appeal of final determinations of claims that are not only
"separable from, and collateral to, rights asserted in the action,"
but also, we immediately added, "
too important to be
denied review."
Id. at
337 U. S. 546
(emphasis added). Our later cases have retained that significant
requirement. For example, in
Abney v. United States,
431 U. S. 651
(1977), we said that, in order to qualify for immediate appeal, the
order must involve "an
important right which would be
lost, probably irreparably,' if review had to await final
judgment." Id. at
431 U. S. 658 (emphasis added), quoting Cohen,
supra, at 431 U. S. 546.
And in Coopers & Lybrand v. Livesay, 437 U.
S. 463 (1978), we said that the order must "resolve an
important issue completely separate from the merits of the
action." Id. at 437 U. S. 468
(emphasis added). See also Van Cauwenberghe v. Biard,
486 U. S. 517,
486 U. S.
522-527 (1988); Gulfstream Aerospace Corp. v.
Mayacamas Corp., 485 U. S. 271,
485 U. S.
276-277 (1988); Richardson-Merrell Inc. v.
Koller, 472 U. S. 424,
472 U. S. 431
(1985); Moses H. Cone Memorial Hospital v. Mercury Construction
Corp., 460 U. S. 1,
460 U. S. 12
(1983); Nixon v. Fitzgerald, 457 U.
S. 731, 457 U. S. 742
(1982).
While it is true, therefore, that the "right not to be sued
elsewhere than in Naples" is not fully vindicated -- indeed, to be
utterly frank, is positively destroyed -- by permitting
Page 490 U. S. 503
the trial to occur and reversing its outcome, that is
vindication enough because the right is not sufficiently important
to overcome the policies militating against interlocutory appeals.
We have made that judgment when the right not to be tried in a
particular court has been created through jurisdictional
limitations established by Congress or by international treaty,
see Van Cauwenberghe, supra. The same judgment applies --
if anything,
a fortiori -- when the right has been created
by private agreement.
