THE TRICOLOR

• Court: U.S. District Court — Southern District of New York
• Writing for the Court: Haight, Smith, Griffin & Deming, of New York City, for respondent
• Citation: THE TRICOLOR, 1 F.Supp. 934 (S.D. N.Y. 1932)
• Decision Date: 25 August 1932
• Parties: THE TRICOLOR. UNITED STATES MERCHANTS' & SHIPPERS' INS. CO. v. A/S DEN NORSKE AFRIKA OG AUSTRALIE LINIE.

1 F. Supp. 934

THE TRICOLOR UNITED STATES MERCHANTS' & SHIPPERS' INS. CO. v. A/S DEN NORSKE AFRIKA OG AUSTRALIE LINIE.

District Court, S. D. New York.

August 25, 1932.

Bigham, Englar, Jones & Houston and F. Herbert Prem, all of New York City, for libelant.

Haight, Smith, Griffin & Deming, of New York City, for respondent.

GODDARD, District Judge.

Libel in the admiralty by an insurer of cargo against respondent, owner of the steamship Tricolor, on which the insured cargo was shipped and lost. On motion to decline jurisdiction and dismiss the libel, or alternatively to stay proceedings herein until determination of the controversy by a Norwegian court as stipulated in the bill of lading. Motion to dismiss granted.

Libelant is a New York corporation which has paid an insurance loss of $10,000 and claims by subrogation the rights of its insured cargo owner, apparently a Dutch corporation. The insurance policy was issued in the United States. Respondent is a Norwegian corporation, owner of the vessel on which the cargo in question was shipped at Hamburg, Germany, for carriage to Shanghai, China, under a bill of lading issued at Hamburg in December, 1930, and containing the following provision:

"19. It is mutually agreed that all questions arising under this bill of lading are to be governed by the law of Norway and to be decided in Oslo."

Due to a fire on board, followed by explosions, the Tricolor and her entire cargo became a total loss near Colombo, Ceylon. Service upon the respondent was obtained by attachment of another vessel at the port of New York. This was released by stipulation which reserved to respondent the privilege, without prejudice, of making the present motion.

The supporting affidavits of the respondent indicate that the ship carried some 8,000 tons of general cargo, consisting of all sorts of goods, and loaded at eight European ports; that the defense will be that no negligence occurred in stowage of the cargo or otherwise, and this will involve investigation of facts and examination of witnesses, all of whom are remote from this jurisdiction. It also appears that the bill of lading provision above quoted is valid by the law of Germany, and its courts would decline jurisdiction and remit the parties to the courts of Oslo. The law of Norway also recognizes the validity of such an agreement, and would take jurisdiction of a suit in Oslo. The unavailability of the witnesses and the hardship to the respondent of being compelled to litigate here and in disregard of the bill of lading agreement are urged as reasons for declining jurisdiction.

It is conceded that, if the suit had been brought by the cargo owner itself, this court would have discretion to decline jurisdiction, since the controversy would be between aliens and relate wholly to a foreign transaction. Canadian Malting Co. v. Paterson S. S. Co., 285 U. S. 413, 52 S. Ct. 413, 76 L. Ed. 837, affirming 51 F.(2d) 1007 (C. C. A., 2d Circuit), is the latest authority. The respondent urges that an insurer claiming by subrogation can stand no better than its insured, while the libelant contends that, because it is an American "National" (a New York corporation), it has an absolute right to resort to this court,...