377 F.2d 200 (2nd Cir. 1967), 332, Indussa Corp. v. S. S. Ranborg

Docket Nº:332, 30986.
Citation:377 F.2d 200
Party Name:INDUSSA CORPORATION, Appellant, v. S.S. RANBORG, her engines, boilers, etc. (Erling Hansens Rederi A/S and Skibs A/S Linea, Claimants), Appellee.
Case Date:April 25, 1967
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 200

377 F.2d 200 (2nd Cir. 1967)

INDUSSA CORPORATION, Appellant,

v.

S.S. RANBORG, her engines, boilers, etc. (Erling Hansens Rederi A/S and Skibs A/S Linea, Claimants), Appellee.

No. 332, 30986.

United States Court of Appeals, Second Circuit.

April 25, 1967

Argued Feb. 21, 1967.

William R. Vincent, New York City (Charles D. Herak, New York City, of counsel), for appellant.

John J. Nolan, New York City, William A. Wilson, New York City, for appellee.

Before LUMBARD, Chief Judge, and WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS, ANDERSON and FEINBERG, Circuit Judges.

FRIENDLY, Circuit Judge:

This appeal from orders of the District Court for the Southern District of New York declining jurisdiction in favor of the courts of Norway in a United States consignee's in rem libel against a Norwegian ship raises questions of the applicability and the soundness of this court's decision in William H. Muller & Co. v. Swedish American Line, Ltd., 224 F.2d 806 (2 Cir.), cert. denied, 350 U.S 903, 76 S.Ct. 182, 100 L.Ed. 793 (1955). The panel that initially heard the appeal, consisting of Circuit Judges Anderson Feinberg and the writer, concluded that Muller, on which the District Court based its rulings, was wrongly decided and should be overruled. We, therefore, asked our colleagues to consider the appeal in banc on the briefs of the parties, they so voted, and this opinion represents the views of the full court.

Indussa Corporation, a New York corporation, was the consignee of nails and barbed wire shipped by a Belgian agency from Antwerp, Belgium, to San Francisco, California, in May 1963. The bills of lading for shipment 'on board the good vessel called the 'Ranborg" were signed by the master and were captioned:

LINEAS NAVIERAS DE CENTRO AMERICA, S.A.

GLOBAL STEAMSHIP AGENCY, INC.

SUITE 416

408 SOUTH SPRING STREET LOS ANGELES 13, CALIFORNIA

A 'Paramount Clause' declared the applicability of 'the Hague Rules contained

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in the International Convention for the Unification of certain rules relating to Bills of Lading, dated Brussels the 25th August 1924, as enacted in the country of shipment,' but a 'U.S. Trade' clause stated:

'C.U.S. Trade. Period of Responsibility.

In case the Contract evidenced by this Bill of Lading is subject to the U.S. Carriage of Goods by Sea Act then the provisions stated in said Act shall govern before loading and after discharge and throughout the entire time the goods are in the Carrier's custody.'

A still further clause entitled 'Jurisdiction' recited:

'Any dispute arising under this Bill of Lading shall be decided in the country where the Carrier has his principal place of business, and the law of such country shall apply except as provided elsewhere herein.'

Finally it was provided that 'the contract evidenced by this Bill of Lading is between the Merchant and the owner of the vessel named herein (or substitute).'

Indussa, having located The Ranborg in American waters, brought a libel in rem in the District Court for the Southern District of New York in March 1965, alleging that the shipment had arrived in San francisco damaged, primarily by rust, to the extent of $2600. The usual letter of undertaking and agreement to appear were accepted in lieu of arresting the vessel.

In April 1966 the owners of The Ranborg moved for an order declining jurisdiction because of the Jurisdiction clause in the bills of lading. One of the moving affidavits alleged that the owners' principal place of business was Kristiansand, Norway, explained that the vessel had been time-chartered to Lineas Maritimas De centro America, S.A., a Costa Rican concern, and set forth the Norwegian identity of the crew and of the three members still in the owners' employ; another, by a Norwegian attorney, stated that Norway had ratified the Brussels Convention and that the provisions of Norwegian law governing Indussa's claims were in all substantial respects identical with the Carriage of Goods by Sea Act, 46 U.S.C. § 1300 et seq., with one exception apparently not material in this case. 1 An opposing affidavit stressed the presence in the United States of a number of Witnesses 'who can give testimony as to the importation of the shipments and the nature of the damage'; it also argued, on the basis of The Monrosa v. Carbon Black Export, Inc., 359 U.S. 180, 79 S.Ct. 710, 3 L.Ed.2d 723 (1959), that the Jurisdiction clause of the bills of lading did not apply to an action in rem. Overruling the latter contention because of the broader language of the instant jurisdiction clause and applying our ruling in William H. Muller & Co. v. Swedish American Line, supra, 224 F.2d at 808, that the forum may respect such a clause if 'the agreement is not unreasonable in the setting of the particular case,' Judge Tenney granted the motion on condition that if Indussa brought suit in Norway within 120 days, the owners should waive the statute of limitations and posit the same security as in the New York libel. Indussa sought reconsideration on the basis of an...

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