Cerro De Pasco Copper Corp. v. Knut Knutsen, O. A. S.
187 F.2d 990 · 1951 U.S. App. LEXIS 3695
March 9, 1951 · Docket 175, Docket 21904
Headnotes
Generated summaries- Headnote 1
Clause 12 was undisputedly valid under Norwegian and Peruvian law, the court found no public‑policy objection, and the plaintiff did not show that the Norwegian courts would be ineffective, so the clause satisfied all three prongs of the Swift test.
- Headnote 2
The vessel was never loaded in the United States, the cargo was destined for European ports, and no crew members were present in the United States; the Norwegian courts were deemed capable of providing an effective remedy.
- Headnote 3
The appellate court held that the district court’s conclusion that the forum was inappropriate did not constitute an abuse of discretion, given the absence of U.S. loading, crew, or vessel presence and the availability of an effective Norwegian remedy.
- Headnote 4
The plaintiff argued that the clause stripped the federal courts of exclusive admiralty jurisdiction, but the court held that such a clause only bars the court’s jurisdiction when it meets the Swift three‑prong test.
- Headnote 5
Clause 12 was held valid because Norwegian and Peruvian law both recognize it, the court found no public‑policy objection, and the plaintiff did not contest the availability of an effective remedy in Norway.
- Headnote 6
No loading, crew, or vessel presence occurred in the United States; the cargo was destined for European ports; and Norwegian courts could provide effective relief, so the court properly refused jurisdiction.
- Headnote 7
A district court’s decision to decline admiralty jurisdiction is reviewed for abuse of discretion; it is not an abuse unless the foreign forum is unavailable or enforcing the clause would contravene public policy.
The appellate court found the district court’s finding that the United States was not the appropriate forum was supported by facts showing no U.S. loading and the existence of an effective Norwegian remedy.
- Headnote 8
Clause 12 of the bill of lading was undisputedly valid under both Norwegian and Peruvian law, satisfying the first prong of the Swift test for enforceability.
- Headnote 9
A forum‑selection clause will not be enforced if it violates a material public‑policy of the United States.
The court held that the clause was fair and not contrary to U.S. public policy, therefore it did not fall within the public‑policy exception to enforcement.
- Headnote 10
The plaintiff did not contend that it would be without an effective remedy in the Norwegian courts, satisfying the adequacy‑of‑remedy prong of the Swift test.
- Headnote 11
No loading occurred in the United States, all cargo was destined for European ports, and no crew members were present in the United States, indicating no significant U.S. connection.
- Headnote 12
The district court’s refusal to try the suit was upheld because the Norwegian forum was adequate, the clause was valid, and no U.S. public‑policy concerns existed.
Opinion
Clause 12 of the bill of lading provides: “Any claim under this Bill of Lading including claims for alleged unseaworthiness * * * to be settled with the Company in Norway, according to Norwegian law to the exclusion of proceedings in the Courts of any other Country. Any dispute regarding the interpretation of the rules of this Bill of Lading is to be decided in Norway according to Norwegian Law which is in every respect governing * * * The bill was issued in Peru and (this we regard as important) was there signed on behalf of libellant. It is undisputed that such a provision is valid under the laws of both Norway and Peru. We think it sufficient to justify the trial court’s exercise of discretion in refusing to try the suit, although we are not to be taken as saying that there might not be circumstances (not present here) which would render such a refusal unjust.
Libellant argues that such a decision amounts to saying that parties to a contract by their agreement can oust the federal courts of their exclusive admiralty jurisdiction which the Constitution prescribes, and that in no circumstances can an American citizen be deprived of his right tO' invoke this jurisdiction. It may be doubted whether the jurisdiction of admiralty litigation in the United States courts is “exclusive” except in the sense of excluding the jurisdiction of the state courts in certain cases. At any rate, the district court here did exercise jurisdiction to decide, in its discretion, whether it was the appropriate forum to hear the case on the merits.
Affirmed.
. It might be said that the court took jurisdiction and granted specific performance of Clause 12 of the bill on the ground that that provision was fair and not against public policy, all the facts considered.
. But see cases where the parties agreed that their agreement was not to be legally enforceable or the subject of litigation. Rose and Frank Co. v. Crompton [1925] A.C. 445; [1923] 2 K.B. 261; Appleson v. H. Littlewood, Ltd., [1939] 1 All Eng. 464; Kind v. Clark, 2 Cir., 161 F.2d 36, 46; 1 Corbin, Contracts (1950) 100.