Export Ins. Co. v. Mitsui S. S. Co.
| Decision Date | 22 November 1966 |
| Citation | 274 N.Y.S.2d 977,26 A.D.2d 436 |
| Parties | EXPORT INSURANCE COMPANY, Plaintiff-Respondent, v. MITSUI STEAMSHIP CO., Ltd., doing business as Mitsui Line, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
William R. Vincent and Charles D. Herak, New York City, of counsel (William R. Vincent, New York City, attorney), for plaintiff-respondent.
Gerard Harrington, Jr., New York City, of counsel (Burlingham, Underwood, Barron, Wright & White, New York City, attorneys), for defendant-appellant.
Before RABIN, J.P., and McNALLY, STEVENS, STEUER and WITMER, JJ.
The Civil Court dismissed this action on the ground that it constituted an unreasonable burden on commerce within the meaning of the Commerce Clause of the United States Constitution (art. I, § 8, cl. 3) rendering moot plaintiff's motion for a pre-trial examination of defendant. The Appellate Term reversed the judgment of dismissal and remanded plaintiff's motion for examination to the Civil Court. The Appellate Term held that the Commerce Clause is inapplicable.
As to the defense based on the Commerce Clause, we unanimously agree. As regards Forum non conveniens, we agree that in the technical sense this defense is not available against a resident and hence is not applicable. However, as a description of the kind of defense application the perhaps could be made, as pointed out below, the use of the phrase Forum non conveniens may be apt.
A single question remains--whether the record establishes a substantial factual basis for the exercise of discretionary power to refuse jurisdiction of this action and thus to preclude plaintiff, a New York corporation, from access to the courts of New York.
The action was brought by a cargo underwriter incorporated in New York but based in Houston, Texas, as subrogee of a Japanese buyer of goods, for alleged damages to the goods caused by defendant carrier, a Japanese steamship company. The goods were purchased from a Mexican company and were shipped from Mexico to Japan.
Defendant now makes the additional argument that it is unreasonable to litigate this dispute in New York since the two Japanese corporations agreed to litigate any dispute in Japan. The contract of carriage contains the following provision:
The motion below was not made on said ground and no argument was made thereon and no such defense is pleaded except as may be implicit in the general defense that plaintiff's rights are limited by the contract of carriage. This contention does not go to the jurisdiction of the court nor does it raise a constitutional question. At best it invokes the power of the court to decline jurisdiction as a matter of discretion. If discretion is to be exercised, it should not rest on a disputed complex of facts which have not been resolved.
It may be, as argued by the appellant, that this dispute derves from a transaction initiated in Japan. Affidavits of the plaintiff support the premise that the bill of lading was issued in Los Angeles, California; that the insurance for the cotton involved was placed by a New York corporation; that the cotton was ordered by that corporation from its Mexican subsidiary and was shipped from Mexico; and that the damage was sustained prior to the arrival of the goods in Japan.
Although we may not be required to give effect to a contractual provision which ousts our courts from jurisdiction (Kyler v. United States Trotting Assn., 12 A.D.2d 874, 210 N.Y.S.2d 25; Sliosberg v. New York Life Ins. Co., 217 App.Div. 685, 217 N.Y.S. 226), we are not precluded from enforcing it where it would be right and proper so to do. 'There may conceivably be exceptional circumstances where resort to the courts of another...
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