221 F.3d 1348 (9th Cir. 2000), 98-56794, Odin Shipping Ltd. v. Drive Ocean V MV

Docket Nº:98-56794.
Citation:221 F.3d 1348
Party Name:ODIN SHIPPING LTD., Plaintiff-Appellant, NORLANDSBANKEN ASA, Intervenor-Appellee, v. DRIVE OCEAN V MV, Official No. 24542-Pext, her engines, tackle, furniture, machinery, equipment and appurtenances, etc., in rem.; Drive Panama Sa, in personam; Drive Mexicana Sa De C.V., in personam; Drive Ocean Group A/S, in personam, Defendants.
Case Date:May 11, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1348

221 F.3d 1348 (9th Cir. 2000)

ODIN SHIPPING LTD., Plaintiff-Appellant,

NORLANDSBANKEN ASA, Intervenor-Appellee,

v.

DRIVE OCEAN V MV, Official No. 24542-Pext, her engines, tackle, furniture, machinery, equipment and appurtenances, etc., in rem.; Drive Panama Sa, in personam; Drive Mexicana Sa De C.V., in personam; Drive Ocean Group A/S, in personam, Defendants.

No. 98-56794.

United States Court of Appeals, Ninth Circuit

May 11, 2000

D.C. No. CV-97-00808-JTM

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Argued and Submitted April 12, 2000.

Appeal from the United States District Court for the Southern District of California, Jeffrey T. Miller, District Judge, Presiding.

Before FERNANDEZ and WARDLAW, Circuit Judges, and WEINER, 2 District Judge.

MEMORANDUM 1

Odin Shipping Ltd. ("Odin") appeals the district court's order of September 29, 1998. The court found that Odin's in rem tort claims against Drive Ocean V MV did not give rise to a preferred maritime lien superior to the mortgages of Norlandsbanken ASA ("Bank"), intervenor and appellee in the instant action, because the claims were governed by the law of British Columbia under the choice of law provision in the Charter Party agreement between Odin and Drive Mexicana SA, 3 and British Columbia would not recognize a maritime lien under the facts alleged. We have jurisdiction under 28 U.S.C.§ 1292(a)(3), and we affirm. Because the parties are familiar with the factual and procedural history of the case, we discuss it only as necessary to explicate our decision.

The district court ruled that Odin's tort claims were governed by the Charter Party's choice-of-law provision, noting, "Odin and Drive Group agreed that any dispute 'arising out of or in connection with' the charter party would be resolved by arbitration ... through the application of laws of the Province of British Columbia." Correctly applying United States law, the district court "determined that the contractual choice of law and forum selection provisions are valid and that Canadian law would not recognize a maritime lien" arising from the alleged torts. We agree.

United States law determines the enforceability of a choice-of-law provision. See Batchelder v. Kawamoto, 147 F.3d 915, 918 (9 th Cir.1998) (applying U.S. Supreme Court law to find Japanese choice-of-law provision enforceable); Richards v. Lloyd's of London, 135 F.3d 1289, 1293 (9th Cir.1998) (en banc) (applying U.S. Supreme Court law to find English choice-of-law-clause enforceable). 4 The scope of that provision is a matter of contract construction and interpretation, however, which would in turn be governed by the law selected in the choice-of-law provision. Cf. Milanovich v. Costa Crociere, S.P.A., 954 F.2d 763, 767 (D.C.Cir.1992) (finding if "choice-of-law provision is enforceable, we will use the law that it selects to evaluate the enforceability of the remainder of the contract terms"); Siegelman v. Cunard White Star, 221 F.2d 189, 193 (2d Cir.1955) (finding choice-of-law provision selecting English law enforceable, and then using English law to interpret a provision limiting the time for suit); Jansson v. Swedish American Line, 185 F.2d 212, 218 (1st Cir.1950) (noting that "when the parties contract with the law of some particular jurisdiction in view, the law of that jurisdiction will be applicable in determining the interpretation and validity of the contract"). Thus, British Columbian law applies to the determination of whether Odin's tort claims fall within the scope of the provision.

According to William Tetley, Bank's 5 Canadian maritime expert, maritime law...

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