Wm. H. Muller & Co. v. Swedish American Line Ltd.
| Decision Date | 15 July 1955 |
| Docket Number | No. 306,Docket 23552.,306 |
| Citation | 224 F.2d 806 |
| Parties | WM. H. MULLER & CO., Inc., Appellant, v. SWEDISH AMERICAN LINE LTD. and Transatlantic Steamship Company, Ltd., Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Hill, Rivkins, Middleton, Louis & Warburton, New York City (George B. Warburton, David L. Maloof, John G. Poles, New York City, of counsel), for appellant.
Haight, Gardner, Poor & Havens, New York City (Charles S. Haight, Richard G. Ashworth, New York City, of counsel), for appellees.
Before FRANK, MEDINA and HINCKS, Circuit Judges.
Appellant, Wm. H. Muller & Co., a New York corporation, was the consignee of a shipment of 1,000 bags of cocoa beans which were being transported by appellees, of Gothenburg, Sweden, from Gothenburg to Philadelphia, aboard appellees' vessel, the "Oklahoma." The "Oklahoma" was lost at sea.
Appellant filed a libel in the United States District Court for the Southern District of New York to recover for the loss of its cargo. The District Court granted appellees' motion to decline jurisdiction and dismissed the libel on the ground that on the showing made he should give effect to a clause in the bill of lading providing for exclusive jurisdiction of the controversy in the Swedish courts. From the order dismissing the libel, this appeal is prosecuted.
Clause 2 of the bill of lading provides as follows:
It will be noted at the outset that this section does not expressly invalidate the jurisdictional agreement contained in the bill of lading here involved. Nor, we hold, may the Act properly be interpreted to invalidate such agreements. It is perhaps worth noting that the present Australian Carriage of Goods by Sea Act does declare provisions of the sort here involved to be null and void. Formerly the Canadian Act did likewise. Knauth on Bills of Lading, p. 238. We think that if Congress had intended to invalidate such agreements, it would have done so in a forthright manner, as was done in the Canadian Act of 1910. The Carriage of Goods by Sea Act contains no express grant of jurisdiction to any particular courts nor any broad provisions of venue: in this respect it differs from the Federal Employers' Liability Act which was involved in Krenger v. Pennsylvania R. Co., 2 Cir., 174 F.2d 556. On that account, as indeed in other respects, this case must be distinguished from that. Certainly the clause here involved is not one necessarily "relieving the carrier or the ship from liability."
The appellant, in an effort to bring this case within the phrase italicized in the above quoted extract from the Carriage of Goods by Sea Act, 46 U.S.C.A. § 1303(8), argues that if trial is to be had in Sweden it will have to undergo a substantial expense in transporting expert witnesses there to testify as to the market value of the lost cargo. It is urged that such an expense is a "lessening" of liability within the meaning of the above quoted section of the Act. We note that appellant might reduce this expense by taking depositions of these witnesses, as he appears to have done already. But that aside, we do not think that such possible expense, which is only incidental to the process of litigation, is enough to bring this jurisdictional agreement within the ban of § 1303(8).
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...Indeed, when a panel of the Second Circuit in 1955 interpreted COGSA to permit a foreign choice-of-law clause, Muller v. Swedish American Line Ltd., 224 F.2d 806 (CA2 1955), scholars noted that "the case seems impossible to reconcile with the holding in Knott." 5 Eventually agreeing, the en......
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...Cir. 1951, 187 F.2d 990.13 And in 1955 it went one step farther in destroying the hostility, holding in Wm. H. Muller & Company v. Swedish American Lines Ltd., 2 Cir. 1955, 224 F.2d 806, cert. denied, 1955, 350 U.S. 903, 76 S.Ct. 182, 100 L.Ed. 793, that courts should enforce a forum clause......
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...federal courts' movement away from the earlier parochial view that such clauses should not be honored. E.g., Wm. H. Muller & Co. v. Swedish American Line Ltd., 224 F.2d 806 (2 Cir.), cert. denied, 350 U.S. 903 (1955). But cf. Indussa Corp. v. S.S. Ranborg, 377 F.2d 200 (2 Cir.1967) (en banc......
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