Hernandez v. Koninklijke Nederlandsche Stoomboot Maat., 64 Ad. 511.

• Decision Date: 23 August 1965
• Docket Number: No. 64 Ad. 511.,64 Ad. 511.
• Citation: 252 F. Supp. 652
• Parties: Oscar HERNANDEZ, Libellant, v. KONINKLIJKE NEDERLANDSCHE STOOMBOOT MAATSCHAPPIJ N.V., and S.S. HECUBA, her engines, boilers, etc., Respondents.
• Court: U.S. District Court — Southern District of New York

252 F. Supp. 652

Oscar HERNANDEZ, Libellant, v. KONINKLIJKE NEDERLANDSCHE STOOMBOOT MAATSCHAPPIJ N.V., and S.S. HECUBA, her engines, boilers, etc., Respondents.

No. 64 Ad. 511.

United States District Court S. D. New York.

August 23, 1965.

Poles, Tublin & Patestides, New York City, for libellant.

Burlingham, Underwood, Barron, Wright & White, New York City, for respondents.

CANNELLA, District Judge.

Motion by the respondent, Koninklijke Nederlandsche Stoomboot Maatschappij N.V., to dismiss the libel is granted upon the conditions hereinafter set forth.

The underlying dispute in this case involves an action for cargo damage. The libellant, a Costa Rican resident, seeks to recover for alleged damage to seven packages said to contain his personal effects, which were shipped from San Juan, Puerto Rico to Puerto Limon, Costa Rica. The cargo was transported on board the S.S. Hecuba, a ship owned and operated by the respondent. The respondent is, and was at the time in question, a corporation of the Netherlands, with its principal office located in Amsterdam. The corporation also maintains an office in New York City, headed by James F. Spahn who supervises the activities of various claims agents of the respondent who are stationed at its ports of call in Canada and the United States. The bill of lading under which the cargo was shipped provided in pertinent part: "Jurisdiction. All actions under the present contract shall be brought before the Court at Amsterdam."

The respondent maintains that the court should decline to exercise its jurisdiction in view of the provision in the contract of carriage requiring the libellant to institute his suit in Amsterdam. The contention is also made that this court lacks jurisdiction over the subject matter of the action since any adjudication here would constitute an unreasonable burden of foreign commerce in violation of the "commerce clause" of the Constitution (U.S.Const., Art. 1, § 8, cl. 3).

It is the libellant's position that the contract provision is invalid and that the "commerce clause" is not relevant to the case at bar. As a second line of defense, the libellant maintains that the relief requested by the respondent cannot be granted prior to a determination of the exact nature of the activities conducted by the company in New York.

As to the first issue, namely the validity of the contract provision, recent case law clearly indicates that an agreement dictating the forum in which any future adjudication of the parties' respective rights and obligations shall occur, is enforceable if reasonable. William H. Muller & Co. v. Swedish American Line, Ltd., 224 F.2d 806 (2d Cir. 1955); Pakhuismeesteren, S.A. v. S.S. Goettinger, 225 F.Supp. 888 (S.D.N.Y. 1963); Takemura & Co. v. S.S. Tsuneshima Maru, 197 F.Supp. 909 (S.D.N.Y. 1961). The libellant in the case at bar, who challenges the provision to which he previously assented, has the burden of proving its unreasonableness. Takemura & Co. v. S.S. Tsuneshima Maru, supra at 912. The relevant factors as to this issue are similar to those involved in deciding a question of forum non conveniens (Takemura & Co. v. Tsuneshima Maru, supra; Murillo Ltda. v. The Bio Bio, The Paraguay, The Argentina, 127 F.Supp. 13 (S.D.N.Y.), aff'd 227 F.2d 519 (2d Cir. 1955)), and include the availability of witnesses (Takemura & Co. v. S.S. Tsuneshima Maru, supra; Nieto v. S.S. Tinnum, 170 F.Supp. 295 (S.D.N.Y.1958)), and the ability of the foreign forum to adjudicate the matter fairly. Takemura & Co. v. S.S. Tsuneshima Maru, supra. See generally Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947).

The personnel of the S.S. Hecuba, who are potential witnesses concerning the care and custody afforded the libellant's shipment during the voyage in question, are residents of the Netherlands, speak the language of the Netherlands and can be made readily available in that forum for the purpose of...