Slocum v. Western Assur. Co.

• Decision Date: 05 April 1890
• Parties: SLOCUM et al. v. WESTERN ASSUR. CO. [1]
• Court: U.S. District Court — Southern District of New York

42 F. 235

SLOCUM et al. v. WESTERN ASSUR. CO. ^[1]

United States District Court, S.D. New York.

April 5, 1890

Carpenter & Mosher, for respondent.

Wing Shoudy & Putnam, for libelants.

BROWN J.

The respondents are a corporation organized and doing fire and marine insurance business at Toronto, Canada, and having a branch office in New York for fire insurance only. In November, 1887, the company executed at Toronto a marine policy on freight, per bark Aquidneck, belonging to the libelant Slocum, a citizen of Massachusetts, upon the application of Gallaher, Currey & Whitney, insurance brokers of New York, in the sum of $1,000 insuring Simpson & Shaw on account of whom it might concern, in case of loss, to be paid to their order. The company had conformed to the requirements of the statutes of the state of New York as respects the transaction of fire insurance business within this state, but not as respects marine insurance, and it had filed a certificate providing for the service of papers upon its agents within this state as required by statute. The present policy was issued at Toronto. A total loss having arisen, the above libel was filed by Simpson & Shaw, residents of this state, and by Slocum, a resident of Boston. The policy contains the following clause:

'And if the assured proceed at law or equity, by suit or action to recover the whole or any part of the sum assured by this policy, such suit or action shall be brought and prosecuted in her majesty's court in the city of Toronto, and not elsewhere, within twelve months from the date of such loss or damage, under the penalty of forfeiture of all benefit of this insurance, and of the same becoming thereby wholly void.'

Process was served upon the agent specified in the certificate. The respondents move to dismiss the libel upon the ground that this court, if not without jurisdiction of the cause, should as a matter of discretion, decline to entertain it in the face of the above-quoted stipulation in the policy. The authorities, I think, sustain the general doctrine, that a stipulation inserted in a contract limiting the remedy for a breach of the contract to a particular forum is not a valid stipulation. Several cases have held that such a stipulation distinguishing between the different courts of the same country or state, will not be recognized or regarded as valid there. I do not see why any greater effect should be given to it abroad, or as between the courts of the country of the contract, and any appropriate foreign tribunal. Steam-Shipping Co. v. Lehman, 39 F. 704; Scott v. Avery, 5 H.L.Cas. 811; Nute v. Insurance Co., 6 Gray, 174; Amesbury v. Insurance Co., Id. 596; Nevins v. Insurance Co., 25 N.H. 22; Bartlett v. Insurance Co., 46 Me. 500; Insurance Co. v. Routledge, 7 Ind. 25; Reichard v. Insurance Co., 31 Mo. 518. The clause in question furnishes, therefore, no legal defense to the action. A court of admiralty may, doubtless, in its discretion, decline to entertain jurisdiction in maritime causes arising abroad, where none of the parties are resident here. Suits for the wages of foreign seamen, involving detention of the ship, and brought here without justifiable reason, are declined. But, where the controversies are communis juris, special reasons should appear for...