Opinion

Indussa Corporation v. S.S. Ranborg, Her Engines, Boilers, Etc. (Erling Hansens Rederi A/s and Skibs A/s Linea, Claimants)

  • 377 F.2d 200
  • 2 A.L.R. Fed. 953
  • 1967 U.S. App. LEXIS 6617
Court
Court of Appeals for the Second Circuit
Filed
Apr 25, 1967
Status
Published
Author
Moore
On the bench
Lumbard, Waterman, Moore, Friendly, Smith, Kaufman, Hays, Anderson, Feinberg
Cited by
86 cases
Authority
More cited than 24.8%

Abrogated by Vimar Seguros Y Reaseguros, S. A. v. M/V Sky Reefer, 515 U.S. 528 (1995)

excluding federal court jurisdiction would “[lean] too heavily on general principles of contract law and [give] insufficient affect to the enactments of Congress governing bills of lading”

How later courts described this case

  • excluding federal court jurisdiction would “[lean] too heavily on general principles of contract law and [give] insufficient affect to the enactments of Congress governing bills of lading”
  • such a clause puts a high hurdle in the way of enforcing liability and thus is an effective means for carriers to secure settlements lower than if cargo could sue in a convenient forum
  • choice of forum clause held invalid in the specific context of Sec. 3(8) of COGSA, 46 U.S.C. Sec. 1303(8)
  • choice of forum clause held invalid in the specific context of § 3(8) of COGSA, 46 U.S.C. § 1303(8)

Written by the judges who cited it.

Later courts went against this

  • Abrogated by Vimar Seguros Y Reaseguros, S. A. v. M/V Sky Reefer, 515 U.S. 528 (1995)

    515 U.S. at 534, 115 S.Ct. 2322 (abrogating Indussa Corp. v. S.S. Ranborg, 377 F.2d 200 (2d Cir.1967) (en banc)).
    Supreme Court of the United StatesJun 19, 1995Read it

The opinion

MOORE, Circuit Judge

(concurring in the result):

If this Court with its present complement of nine Judges is to review en banc decisions of various panels in -cases de *205 cided over the last fifteen years to determine, according to our present views, whether they have been rightly or wrongly decided, we have indeed set for ourselves a monumental task. My concept of the judicial function is that the particular panel is charged with the duty of deciding a specific controversy between two specific litigants based upon the specific facts therein presented and upon the law applicable thereto. Using this approach, I find no necessity to proclaim the superiority of American courts, American law and the ample adequacy of American awards. Ñor would I speculate on Congressional intent — -always a rather uncertain, at best, venture.

The controversy here involves the damage of goods — only $2,600 to be sure, but amount should scarcely be a determining factor. The bill o'f lading provided for the application of the Carriage of Goods by Sea Act, the shipment having been in “U. S. Trade.” The bill itself contained no clear contractual agreement providing for exclusive jurisdiction in Norwegian courts. Furthermore, the action here was solely against the ship in rem. Even if discretion as to jurisdiction were involved, there are more than adequate reasons for retention here.

In my opinion, to use this present case as a vehicle for overruling and characterizing as “wrongly decided” a case— William H. Muller & Co. v. Swedish American Line, Ltd., 224 F.2d 806 , (2 Cir., 1955), cert. denied, 850 U.S. 903 , 76 S.Ct. 182 , 100 L.Ed. 793 (1955) — based on a radically different factual situation, is quite unfair to the Muller court and unnecessary to our decision. If there is to be speculation, I would speculate that the Muller panel might well have reached the same result as we reach here.

Moreover, if Congress had really intended to outlaw every agreement in a bill of lading as to choice of forum for litigation, understandingly and voluntarily entered into, it could, and undoubtedly would, have easily drafted such a clause. The forbidding of a clause “lessening” liability in COGSA is scarcely the equivalent of a rejection of the rights of the parties to agree upon a forum. I find it singularly inappropriate for our courts to say, in effect, that the courts of all other nations are so unable to dispense justice that, as a matter of public policy, we must protect our citizens by outlawing any other tribunal than our own.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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