407 U.S. 1 (1972), 71-322, The Bremen v. Zapata Off-Shore Co.

Docket Nº:No. 71-322
Citation:407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513
Party Name:The Bremen v. Zapata Off-Shore Co.
Case Date:June 12, 1972
Court:United States Supreme Court

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407 U.S. 1 (1972)

92 S.Ct. 1907, 32 L.Ed.2d 513

The Bremen


Zapata Off-Shore Co.

No. 71-322

United States Supreme Court

June 12, 1972

Argued March 21, 1972




Petitioner Unterweser made an agreement to tow respondent's drilling rig from Louisiana to Italy. The contract contained a forum-selection clause providing for the litigation of any dispute in the High Court of Justice in London. When the rig under tow was damaged in a storm, respondent instructed Unterweser to tow the rig to Tampa, the nearest port of refuge. There, respondent brought suit in admiralty against petitioners. Unterweser invoked the forum clause in moving for dismissal for want of jurisdiction and brought suit in the English court, which ruled that it had jurisdiction under the contractual forum provision. The District Court, relying on Carbon Black Export, Inc. v. The Monrosa, 254 F.2d 297, held the forum-selection clause unenforceable, and refused to decline jurisdiction on the basis of forum non conveniens. The Court of Appeals affirmed.

Held: The forum-selection clause, which was a vital part of the towing contract, is binding on the parties unless respondent can meet the heavy burden of showing that its enforcement would be unreasonable, unfair, or unjust. Pp. 8-20

428 F.2d 888 and 446 F.2d 907, vacated and remanded.

BURGER, C. J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. WHITE, J., filed a concurring statement, post, p. 20. DOUGLAS, J., filed a dissenting opinion, post, p. 20.

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BURGER, J., lead opinion

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

We granted certiorari to review a judgment of the United States Court of Appeals for the Fifth Circuit declining to enforce a forum selection clause governing disputes arising under an international towage contract between petitioners and respondent. The circuits have differed in their approach to such clauses.1 For the reasons stated hereafter, we vacate the judgment of the Court of Appeals.

In November, 1967, respondent Zapata, a Houston-based American corporation, contracted with petitioner Unterweser, a German corporation, to tow Zapata's ocean-going, self-elevating drilling rig Chaparral from Louisiana to a point off Ravenna, Italy, in the Adriatic Sea, where Zapata had agreed to drill certain wells.

Zapata had solicited bids for the towage, and several companies, including Unterweser, had responded. Unterweser was the low bidder and Zapata requested it to submit a contract, which it did. The contract submitted by Unterweser contained the following provision, which is at issue in this case:

Any dispute arising must be treated before the London Court of Justice.

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In addition, the contract contained two clauses purporting to exculpate Unterweser from liability for damages to the towed barge.2

[92 S.Ct. 1910] After reviewing the contract and making several changes, but without any alteration in the forum selection or exculpatory clauses, a Zapata vice-president executed the contract and forwarded it to Unterweser in Germany, where Unterweser accepted the changes, and the contract became effective.

On January 5, 1968, Unterweser's deep sea tug Bremen departed Venice, Louisiana, with the Chaparral in tow bound for Italy. On January 9, while the flotilla was in international waters in the middle of the Gulf of Mexico, a severe storm arose. The sharp roll of the Chaparral in Gulf waters caused its elevator legs, which had been raised for the voyage, to break off and fall into the sea, seriously damaging the Chaparral. In this emergency situation, Zapata instructed the Bremen to tow its damaged rig to Tampa, Florida, the nearest port of refuge.

On January 12, Zapata, ignoring its contract promise to litigate "any dispute arising" in the English courts, commenced a suit in admiralty in the United States

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District Court at Tampa, seeking $3,500,000 damages against Unterweser in personam and the Bremen in rem, alleging negligent towage and breach of contract.3 Unterweser responded by invoking the forum clause of the towage contract, and moved to dismiss for lack of jurisdiction or on forum non conveniens grounds, or, in the alternative, to stay the action pending submission of the dispute to the "London Court of Justice." Shortly thereafter, in February, before the District Court had ruled on its motion to stay or dismiss the United States action, Unterweser commenced an action against Zapata seeking damages for breach of the towage contract in the High Court of Justice in London, as the contract provided; Zapata appeared in that court to contest jurisdiction, but its challenge was rejected, the English courts holding that the contractual forum provision conferred jurisdiction.4

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[92 S.Ct. 1911] In the meantime, Unterweser was faced with a dilemma in the pending action in the United States court at Tampa. The six-month period for filing action to limit its liability to Zapata and other potential claimants was about to expire,5 but the United States District Court in Tampa had not yet ruled on Unterweser's motion to dismiss or stay Zapata's action. On July 2, 1968, confronted with difficult alternatives, Unterweser filed an action to limit its liability in the District Court in Tampa. That court entered the customary injunction against proceedings outside the limitation court, and Zapata refiled its initial claim in the limitation action.6

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It was only at this juncture, on July 29, after the six-month period for filing the limitation action had run, that the District Court denied Unterweser's January motion to dismiss or stay Zapata's initial action. In denying the motion, that court relied on the prior decision of the Court of Appeals in Carbon Black Export, Inc. v. The Monrosa, 254 F.2d 297 (CA5 1958), cert. dismissed, 359 U.S. 180 (1959). In that case, the Court of Appeals had held a forum selection clause unenforceable, reiterating the traditional view of many American courts that

agreements in advance of controversy whose object is to oust the jurisdiction of the courts are contrary to public policy, and will not be enforced.

254 F.2d at 300-301.7 Apparently concluding that it was bound by the Carbon Black case, the District Court gave the forum selection clause little, if any, weight. Instead, the court treated the motion to dismiss under normal forum non conveniens doctrine applicable in the absence of such a clause, citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947). Under that doctrine "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Id. at 508. The District Court concluded: "The balance of conveniences here is not strongly in favor of [Unterweser] and [Zapata's] choice of forum should not be disturbed."

Thereafter, on January 21, 1969, the District Court denied another motion by Unterweser to stay the limitation action pending determination of the controversy in the High Court of Justice in London, and granted Zapata's motion to restrain Unterweser from litigating

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further in the London court. The District Judge ruled that, having taken jurisdiction in the limitation proceeding, he had jurisdiction to determine all matters relating to the controversy. He ruled that Unterweser should be required to "do equity" by refraining from also litigating the controversy in the London court, not only for the reasons he had previously stated for denying Unterweser's first motion to stay Zapata's action, but also because Unterweser had invoked the United States court's jurisdiction to obtain the benefit of the Limitation Act.

[92 S.Ct. 1912] On appeal, a divided panel of the Court of Appeals affirmed, and, on rehearing en banc, the panel opinion was adopted, with six of the 14 en banc judges dissenting. As had the District Court, the majority rested on the Carbon Black decision, concluding that, "`at the very least,'" that case stood for the proposition that a forum selection clause "`will not be enforced unless the selected state would provide a more convenient forum than the state in which suit is brought.'" From that premise, the Court of Appeals proceeded to conclude that, apart from the forum selection clause, the District Court did not abuse its discretion in refusing to decline jurisdiction on the basis of forum non conveniens. It noted that (1) the flotilla never "escaped the Fifth Circuit's mare nostrum, and the casualty occurred in close proximity to the district court"; (2) a considerable number of potential witnesses, including Zapata crewmen, resided in the Gulf Coast area; (3) preparation for the voyage and inspection and repair work had been performed in the Gulf area; (4) the testimony of the Bremen crew was available by way of deposition; (5) England had no interest in or contact with the controversy other than the forum selection clause. The Court of Appeals majority further noted that Zapata was a United States citizen and "[t]he discretion

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of the district court to remand the case to a foreign forum was consequently limited" -- especially since it appeared likely that the English courts would enforce the exculpatory clauses.8 In the Court of Appeals' view, enforcement of such clauses would be contrary to public policy in American courts under Bisso v. Inland Waterways Corp., 349 U.S. 85 (1955), and Dixilyn Drilling Corp. v. Crescent Towing & Salvage Co., 372 U.S. 697 (1963). Therefore,

[t]he district court was entitled to consider that remanding Zapata to a foreign forum, with no practical contact with the controversy, could raise a bar to recovery by a United States citizen which its own convenient courts would not countenance.9

We hold, with the six dissenting members of the Court of...

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