131 F.3d 1336 (9th Cir. 1997), 96-15734, Fireman's Fund Ins. Co. v. M.V. DSR Atlantic

Docket Nº:96-15734.
Citation:131 F.3d 1336
Party Name:97 Daily Journal D.A.R. 15,649, 98 Daily Journal D.A.R. 2383 FIREMAN'S FUND INSURANCE COMPANY, Plaintiff-Appellee, v. M.V. DSR ATLANTIC, her engines, tackle, machinery, etc., in rem; Cho Yang Shipping Company, Ltd., a corporation, Defendants-Appellants.
Case Date:December 30, 1997
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1336

131 F.3d 1336 (9th Cir. 1997)

97 Daily Journal D.A.R. 15,649,

98 Daily Journal D.A.R. 2383

FIREMAN'S FUND INSURANCE COMPANY, Plaintiff-Appellee,

v.

M.V. DSR ATLANTIC, her engines, tackle, machinery, etc., in

rem; Cho Yang Shipping Company, Ltd., a

corporation, Defendants-Appellants.

No. 96-15734.

United States Court of Appeals, Ninth Circuit

December 30, 1997

Argued and Submitted May 8, 1997.

As Amended March 10, 1998.

Page 1337

William M. Duncan, Morrison, Mahoney & Miller, San Francisco, California, for defendant-appellant Cho Yang Shipping Company, Ltd., and James J. Tamulski, Kay, Rose & Partners, San Francisco, California, for defendant-appellant DSR-Senator Lines.

Stanley L. Gibson, Derby, Cook, Quinby & Tweedt, San Francisco, California, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California; Susan Yvonne Illston, District Judge, Presiding. D.C. No. CV-95-01023-SI.

Before: HUG, Jr., Chief Judge, GOODWIN and HAWKINS, Circuit Judges.

MICHAEL DALY HAWKINS, Circuit Judge:

We consider the enforceability of a foreign forum selection clause in a contract for a wine shipment from France to California by a Korean shipper. We disagree with the district court that the unavailability of in rem proceedings in Korea renders the clause unenforceable. We hold that the foreign forum selection clause at issue in this litigation neither lessens liability under the Carriage of Goods at Sea Act nor violates public policy, and we reverse.

FACTUAL AND PROCEDURAL HISTORY

On November 24, 1992, appellant Cho Yang, a Korean corporation, issued a bill of lading to shipper J.F. Hildebrand France for the carriage of wine, cognac, and armagnac aboard the DSR Atlantic from France to the port of Oakland, California, for delivery to consignee Chalone, Inc. DSR-Senator Lines owns the DSR Atlantic, but Cho Yang had authorization to issue bills of lading for carriage of cargo aboard DSR-Senator Lines' vessels. The bill of lading contained the following language:

The contract evidenced by or contained in this Bill of Lading is governed by the law of Korea and any claim or dispute arising hereunder or in connection herewith shall be determined by the courts in Seoul and no other courts.

Plaintiff-appellee Fireman's Fund Insurance Co. ("FFIC") insured the cargo aboard the DSR Atlantic, which suffered freeze damage en route from France to California. FFIC paid Chalone for the damage to the cargo, then filed the instant action against in personam defendant Cho Yang and in rem defendant the DSR Atlantic. FFIC asserted in its complaint that defendants were liable for the damage to the insured cargo. Defendants asserted as a defense that the forum selection clause was enforceable and operated to deprive the district court of subject matter jurisdiction. The parties agree that in rem proceedings are unavailable under Korean law.

The district court refused to enforce the forum selection clause and denied appellants'

Page 1338

motion to dismiss for lack of jurisdiction. The court certified this issue of first impression for interlocutory appeal and stayed the action pending outcome of this appeal.

STANDARD OF REVIEW

We review for abuse of discretion the district court's refusal...

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