446 F.2d 907 (5th Cir. 1971), 27497, In re Complaint of Reederei, GmbH

Docket Nº:27497.
Citation:446 F.2d 907
Party Name:In the Matter of the Complaint of UNTERWESER REEDEREI, GmB.H. v. M/S BREMEN and Unterweser Reederei, GmB.H, Defendants-Appellants. ZAPATA OFF-SHORE COMPANY, Plaintiff-Appellee,
Case Date:June 28, 1971
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 907

446 F.2d 907 (5th Cir. 1971)

In the Matter of the Complaint of UNTERWESER REEDEREI, GmB.H.

ZAPATA OFF-SHORE COMPANY, Plaintiff-Appellee,

v.

M/S BREMEN and Unterweser Reederei, GmB.H, Defendants-Appellants.

No. 27497.

United States Court of Appeals, Fifth Circuit.

June 28, 1971

Appeal from the United States District Court for the Middle District of Florida at Tampa; Ben Krentzman, Judge. 296 F.Supp. 733.

David C. G. Kerr, of MacFarlane, Ferguson, Allison & Kelly, Jack C. Rinard, Tampa, Fla., Warren M. Faris, of Faris, Ellis, Cutrone, Gilmore & Lautenschlaeger, J. Y. Gilmore, Jr., New Orleans, La., for appellants.

Dewey R. Villareal, Jr., of Fowler, White, Collins, Gillen, Humkey & Trenam, Tampa, Fla., James K. Nance, of

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Baker, Botts, Shepherd & Coates, Houston, Tex., for appellee.

ON PETITION FOR REHEARING EN BANC

Before JOHN R. BROWN, Chief Judge, WISDOM, GEWIN, BELL, [a1] THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.

PER CURIAM:

Upon consideration of this cause en banc the Court adopts the majority opinion and judgment of the panel, 428 F.2d 888 (5th Cir. 1970).

WISDOM, Circuit Judge, dissenting, joined by Judges Thornberry, Goldberg, Godbold, Simpson and Clark:

Again I feel impelled to dissent in this case. It is incredible that a court should fail to honor an agreement between a foreign corporation and a domestic corporation to settle their contractual disputes in a neutral forum according to the law of a neutral country long used to its courts' settling admiralty disputes.

The issue as stated in the majority opinion is as follows:

The question we must decide is whether the district court was obliged to decline to exercise admitted jurisdiction under the facts of the admitted case. 428 F.2d 893.

In support of its position, the Court quoted the following statement from Carbon Black Export, Inc. v. The S.S. Monrosa, 5 Cir. 1958, 254 F.2d 297, 300, cert. dismissed, 1959, 359 U.S. 180, 79 S.Ct. 710, 3 L.Ed.2d 723, rehearing denied 359 U.S. 999, 79 S.Ct. 1115, 3 L.Ed.2d 986:

In essence, the motion (to decline jurisdiction) was based upon Clause 27 as buttressed by the doctrine of forum non conveniens. Any consideration of such a question starts with the universally accepted rule 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.

The issue here is not whether the Court is 'obliged' to decline to exercise jurisdiction. It is not whether parties can 'oust the jurisdiction of the courts'. In this case and similar cases the parties assume that the local court has jurisdiction but agree that in the absence of unreasonable circumstances the court should exercise its jurisdiction only to the extent of giving effect to the choice of forum clause just as courts give effect to any clause expressing the intention of the contracting parties. The issue is whether in the circumstances of this case it is unreasonable for the court to enforce the bargain struck on an international transaction by two companies of diverse nationalities well able to take care of themselves in negotiating a contract.

The contract was not between some indigent American seaman and Greek shipowner to try disputes in Piraeus, Greece. 1 It was not a towing contract

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in inland American waterways with the towage company having superior bargaining leverage. 2 The contract in this case required the towage company to tow a six million dollar drilling rig from Venice, Louisiana, near the mouth of the Mississippi, through the Gulf of Mexico, across the Mediterranean, and up the Adriatic to Ravenna, Italy. Zapata, owner of the rig, solicited bids from several towing companies. The low...

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