July 18, 1994 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________
No. 93-2179
VIMAR SEGUROS Y REASEGUROS, S.A.,
Plaintiffs, Appellants,
v.
M/V SKY REEFER, HER ENGINES, ETC.,
AND M.H. MARITIMA, S.A.,
Defendants, Appellees.
____________
ERRATA SHEET
The opinion of this court issued on July 7, 1994, is amended
as follows:
On page 8, first full paragraph, line 1: Replace "Moveover"
with "Moreover."
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 93-2179
VIMAR SEGUROS Y REASEGUROS, S.A.,
Plaintiffs, Appellants,
v.
M/V SKY REEFER, HER ENGINES, ETC.,
AND M.H. MARITIMA, S.A.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
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Before
Breyer*, Chief Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Stanley McDermott, III with whom Sharyn Bernstein, Varet & Fink,
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P.C., Alexander Peltz, and Peltz Walker & Dubinsky were on brief for
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appellants.
John J. Finn with whom Thomas H. Walsh, Jr., Jeffrey S. King, and
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Bingham, Dana & Gould were on brief for appellees.
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July 7, 1994
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*Chief Judge Stephen Breyer heard oral argument in this matter but did
not participate in the drafting or the issuance of the panel's
opinion. The remaining two panelists therefore issue this opinion
pursuant to 28 U.S.C. 46(d).
BOWNES, Senior Circuit Judge. This appeal asks us
BOWNES, Senior Circuit Judge.
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to decide whether a foreign arbitration clause in a maritime
bill of lading governed by the Carriage of Goods at Sea Act,
46 U.S.C. 1300 et seq. (COGSA), is invalid under that
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statute, or whether such a clause is enforceable under the
Federal Arbitration Act, 9 U.S.C. 1 et seq. (FAA). We
__ ___
conclude that the FAA controls, and that the arbitration
clause is valid. Accordingly, the order of the district
court staying this action pending arbitration in Tokyo is
affirmed.
I.
I.
BACKGROUND
BACKGROUND
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Plaintiff-appellant Bacchus Associates is a
wholesale fruit distributor in the Northeast United States.
Bacchus was the owner of a shipment of oranges travelling
from Agadir, Morocco to New Bedford, Massachusetts, in
February 1991 aboard the SKY REEFER,1 a vessel owned by M.H.
Maritima, S.A. Maritima had time-chartered the vessel to
Honma Senpaku Co., Ltd., who in turn time-chartered it to
Nichiro Corp. Bacchus entered into a voyage charter with
Nichiro for the February 1991 voyage.
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1. The subrogated underwriter of the oranges, Vimar Seguros
Y Reaseguros, is also a plaintiff-appellant in this action.
Hereafter, references to Bacchus include Vimar where
applicable.
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2
The oranges were shipped under a bill of lading
issued in Morocco by Nichiro. The bill of lading constitutes
the contract of carriage between Bacchus and Maritima. En
route to New Bedford, numerous boxes of oranges were crushed.
Bacchus filed an action in the United States District Court
for the District of Massachusetts, in rem against the SKY
__ ___
REEFER, and in personam against Maritima, seeking to recover
__ ________
approximately $1 million in damages.
Maritima moved to stay the action and compel
arbitration in Tokyo pursuant to a clause in the bill of
lading:
Governing Law and Arbitration
Governing Law and Arbitration
(1) The contract evidenced by or
contained in this Bill of Lading shall be
governed by Japanese Law.
(2) Any dispute arising from this Bill of
Lading shall be referred to arbitration
in Tokyo by the Tokyo Maritime
Arbitration Commission (TOMAC) at the
Japan Shipping Exchange, Inc., in
accordance with the Rules of TOMAC and
any agreement thereto, and the award
given by the arbitrators shall be final
and binding on both parties.
The district court held that the arbitration clause contained
in subsection (2) was enforceable, granted Maritima's motion
for a stay pending arbitration, and certified the following
question for interlocutory appeal pursuant to 28 U.S.C.
1292(b): "[W]hether 46 U.S.C. 1303(8) [ 3(8) of COGSA]
nullifies an arbitration clause contained in a bill of lading
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3
governed by COGSA." With this question in mind, we begin our
journey through unsettled statutory waters.
II.
II.
DISCUSSION
DISCUSSION
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COGSA was passed in 1936 as the American enactment
of the Hague Rules, and was part of an international effort
to achieve uniformity and simplicity in bills of lading used
in foreign trade. Union Ins. Soc'y of Canton, Ltd. v. S.S.
_________________________________ ____
Elikon, 642 F.2d 721, 723 (4th Cir. 1981). COGSA was also
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intended to reduce uncertainty concerning the
responsibilities and liabilities of carriers,
responsibilities and rights of shippers, and liabilities of
insurers. State Establishment for Agric. Prod. Trading v.
______________________________________________
M/V Wesermunde, 838 F.2d 1576, 1580 (11th Cir.), cert.
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denied, 488 U.S. 916 (1988) ("Wesermunde"); S.S. Elikon, 642
______ __________ ___________
F.2d at 723; see generally Grant Gilmore & Charles L. Black,
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The Law of Admiralty 3-25 at 145 (2d ed. 1975).
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COGSA applies to "[e]very bill of lading . . .
which is evidence of a contract for the carriage of goods by
sea to or from parts of the United States, in foreign trade .
. . . " 46 U.S.C. 1300. The parties agree that the bill
of lading at issue here is covered by COGSA ex proprio
__ _______
vigore, in other words, as a matter of law. The bill of
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lading also contains the following provision:
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Local Law
Local Law
In case this Bill of Lading covers the
Goods moving to or from the U.S.A. and it
shall be adjudged that the Japanese Law
does not govern this Bill of Lading, then
the provisions of the U.S. Carriage of
Goods at Sea Act 1936 shall govern before
the Goods are loaded on and after they
are discharged from the vessel and
throughout the entire time during which
the Goods are in the actual custody of
the carrier.
Bacchus argues that the Tokyo arbitration clause is invalid
under 3(8) of COGSA which prohibits the "lessening" of the
carrier's obligation as imposed by COGSA's other sections.2
In Indussa Corp. v. S.S. Ranborg, 377 F.2d 200 (2d
_____________ ____________
Cir. 1967) (en banc), the Second Circuit held that all
foreign forum selection clauses in bills of lading governed
by COGSA are necessarily invalid under 3(8) because they
tend to lessen the carrier's liability. Id. at 204. The
___
court reasoned as follows:
From a practical standpoint, to require
an American plaintiff to assert his claim
only in a distant court lessens the
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2. This provision provides as follows:
Any clause, covenant or agreement in a
contract of carriage relieving the
carrier or the ship from liability for
loss or damage to or in connection with
the goods, arising from negligence,
fault, or failure in the duties or
obligations provided in this section, or
lessening such liability otherwise than
as provided in this Act, shall be null
and void and of no effect.
46 U.S.C. 1303(8).
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5
liability of the carrier quite
substantially, particularly when the
claim is small. Such a clause puts "a
high hurdle" in the way of enforcing
liability, and thus is an effective means
for carriers to secure settlements lower
than if cargo [sic] could sue in a
convenient forum.
Id. at 203.3 Moreover, "[a] clause making a claim triable
___
only in a foreign court would almost certainly lessen
liability if the law which the court would apply was not
[COGSA]." Id. Furthermore,
___
[e]ven when the foreign court would apply
[COGSA], requiring trial abroad might
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lessen the carrier's liability since
there could be no assurance that it would
apply [COGSA] in the same way as would an
American tribunal subject to the uniform
control of the Supreme Court . . . . We
think that Congress meant to invalidate
any contractual provision in a bill of
lading for a shipment to or from the
United States that would prevent cargo
[sic] able to obtain jurisdiction over a
carrier in an American court from having
that court entertain the suit and apply
the substantive rules Congress had
prescribed.
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3. The court also concluded that COGSA, wherever it governs
a bill of lading, requires application of American law.
Indussa, 377 F.2d at 203; see generally Thomas J. Schoenbaum,
_______ ___ _________
Admiralty & Maritime Law 9-18 at 326-27 (Pra. ed. 1987).
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Bacchus contends that the Japanese choice-of-law clause in
its bill of lading, in addition to the arbitration clause, is
null and void under 3(8) of COGSA, and, alternatively, that
the "Local Law" clause in the bill of lading requires that
COGSA, and not Japanese law, governs, because COGSA applies
ex proprio vigore. Although both of these arguments appear
__ _______ ______
to be substantial, only the validity of the arbitration
clause is at issue on this interlocutory appeal. In light of
our holding, the choice-of-law question must be decided, in
the first instance, by an arbitrator.
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6
Id. at 203-04 (emphasis in original) (citations omitted)
___
(footnote omitted).
Since Indussa, 3(8) has been consistently used by
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federal courts to invalidate forum selection clauses in bills
of lading governed by COGSA. See, e.g., Conklin & Garrett,
___ ____ ___________________
Ltd. v. M/V Finnrose, 826 F.2d 1441, 1442-44 (5th Cir. 1987)
____ ____________
(forum selection clause designating Finland invalid even
where bill of lading provided for application of COGSA in
Finland); Union Soc'y of Canton, Ltd., 642 F.2d at 723-25
_____________________________
(choice of forum clause requiring litigation in Germany
invalid under 3(8)); cf. Fireman's Fund Amer. Ins. Cos. v.
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Puerto Rican Forwarding Co., 492 F.2d 1294 (1st Cir. 1974)
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(distinguishing Indussa and upholding New York City forum
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selection clause). Indussa has also been approved by
_______
commentators. See Gilmore & Black, supra 3-25 at 145-46
___ _____
n.23; Schoenbaum, supra 9-18 at 327; Charles L. Black, The
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Bremen, COGSA and the Problem of Conflicting Interpretation,
____________________________________________________________
6 Vand. J. Trans. L. 365, 368-69 (1973). But see Note,
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Kenneth M. Klemm, Forum Selection in Maritime Bills of Lading
___________________________________________
Under COGSA, 12 Fordham Int'l L.J. 459 (1989); Stephen M.
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Denning, Choice of Forum Clauses in Bills of Lading, 2 J.
_____________________________________________
Mar. L. & Com. 17 (Oct. 1970).
While we need not fully explore the issue, we note
that the Supreme Court's recent decision in Carnival Cruise
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Lines, Inc. v. Shute, 499 U.S. 585 (1991), in which the Court
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7
held that the Limitation of Vessel Owners' Liability Act did
not invalidate forum selection agreements, casts some doubt
upon Indussa's continuing viability. See Fabrica De Tejidos
_________ ___ __________________
La Bellota S.A. v. M/V Mar, 799 F. Supp. 546, 560-61 (D.
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Virgin Islands 1992); see also Patrick J. Borchers, Forum
___ ____ _____
Selection Agreements in the Federal Courts After Carnival
_____________________________________________________________
Cruise: A Proposal for Congressional Reform, 67 Wash. L.
_______________________________________________
Rev. 55, 77 (1992) (Carnival Cruise implicitly overruled
________________
Indussa and its progeny). But see Underwriters at Lloyd's of
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London v. M/V Steir, 773 F. Supp. 523, 526-27 (D.P.R. 1991)
______ _________
(invalidating forum selection clause under 3(8) of COGSA,
holding that Indussa survives Carnival Cruise).
_______ _______________
Moreover, in Fireman's Fund we questioned whether
_______________
Indussa even survived the Supreme Court's decision in The
_______ ___
Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972). In The
______ _____________________ ___
Bremen, the Supreme Court enforced a foreign forum selection
______
clause in a maritime contract not covered by COGSA. In doing
so, the Court focused on whether the clause was
"unreasonable" under the circumstances. The Bremen, 407 U.S.
__________
at 10. We remarked as follows:
Although the Supreme Court has
acknowledged the Indussa decision and has
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not formally rejected it, see The Bremen
___ __________
v. Zapata Off-Shore Co., 407 U.S. 1, 10
____________________
n.11, 92 S.Ct. 1907, 32 L.Ed.2d 513
(1972), several passages in the Bremen
opinion cast some doubt on the underlying
rationale of Indussa. See, e.g., 407
_______ ___ ____
U.S. at 9, 92 S.Ct. at 1912 ("The
expansion of American business and
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8
industry will hardly be encouraged if,
notwithstanding solemn contracts, we
insist on a parochial concept that all
disputes must be resolved under our laws
and in our courts.") . . . .
Fireman's Fund, 492 F.2d at 1296 n.2. Because The Bremen is
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not a COGSA case, however, it is easily distinguishable from
Indussa and its progeny. See S.S. Elikon, 642 F.2d at 724-25
_______ ___ ___________
(holding that The Bremen did not involve COGSA and therefore
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did not disturb Indussa).
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Notwithstanding the arguably tremulous ground on
which Indussa and its progeny currently sit, we will assume,
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arguendo, that, for the reasons set forth in Indussa, foreign
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forum selection clauses are invalid under 3(8) of COGSA.
The other statute implicated in this case is the
FAA. Section 2 of that act provides:
A written provision in any maritime
transaction . . . to settle by
arbitration a controversy thereafter
arising out of such contract . . . shall
be valid, irrevocable, and enforceable,
save upon such grounds as exist at law or
in equity for the revocation of any
contract.
9 U.S.C. 2. "[B]ills of lading of water carriers" are
explicitly included as "maritime transactions" under the
statute. 9 U.S.C. 1. Furthermore, the FAA requires a
federal district court, on the application of one of the
parties, to stay litigation and grant an order compelling
arbitration of any issue referable to arbitration under the
agreement. Id. 3, 4.
___
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Where there is an agreement to arbitrate, the FAA
reflects a strong, well-established, and widely recognized
federal policy in favor of arbitration. Shearson/American
_________________
Express, Inc. v. McMahon, 482 U.S. 220, 226 (1987);
______________ _______
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473
_______________________ _____________________________
U.S. 614, 625 (1985); Securities Indus. Ass'n v. Connolly,
_______________________ ________
883 F.2d 1114, 1118-19 (1st Cir. 1989), cert. denied, 495
_____ ______
U.S. 956 (1990). Arbitration agreements are unenforceable
under 2 of the FAA only where the agreement would be
revocable under state contract law. Southland Corp. v.
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Keating, 465 U.S. 1, 11 (1984) (party may assert general
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contract defenses, such as fraud and duress, to avoid
enforcement of arbitration agreement); McAllister Bros., Inc.
______________________
v. A & S Transp. Corp., 621 F.2d 519, 524 (2d Cir. 1980)
_____________________
(same).4
Although this court has never decided whether a
foreign arbitration clause in a bill of lading governed by
COGSA is invalid under 3(8) of that statute, courts that
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4. Bacchus argued below that the bill of lading was a
contract of adhesion, and that the arbitration clause was
therefore unenforceable. This defense was rejected by the
district court, and that ruling is not before us on the
present appeal. We recognize, however, that maritime bills
of lading have been viewed as contracts of adhesion. See,
___
e.g., Organes Enters., Inc. v. M/V Khalij Frost, 1989 A.M.C.
____ ______________________ ________________
1460, 1465-66 (S.D.N.Y. 1989); Pacific Lumber & Shipping Co.
_____________________________
v. Star Shipping A/S, 464 F. Supp. 1314, 1315 (W.D. Wash.
__________________
1979). Accordingly, if the adhesion issue had been a subject
of this interlocutory appeal, it would warrant close
scrutiny.
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10
have reached the question are divided. A handful of courts,
including the Eleventh Circuit, have employed the reasoning
articulated in Indussa to invalidate foreign arbitration
_______
clauses. See, e.g., Wesermunde, 838 F.2d at 1580-82; M/V
___ ____ __________ ___
Khalij Frost, 1989 A.M.C. at 1462-66; Siderius v. M.V. Ida
____________ ________ ________
Prima, 613 F. Supp. 916, 920-21 (S.D.N.Y. 1985); Star
_____ ____
Shipping A/S, 464 F. Supp. at 1314-15; see also Gilmore &
____________ ___ ____
Black, supra, 3-25 at 146 n.23; Schoenbaum, supra 9-19 at
_____ _____
329.
In Wesermunde, the Eleventh Circuit declined to
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enforce a foreign arbitration agreement contained in a bill
of lading governed by COGSA. Relying on Indussa, the court
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explained as follows:
While we do not believe that arbitration
in and of itself is per se violative of
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COGSA's provisions, especially in light
of Congress' encouragement of arbitration
by its enactment of the Arbitration Act,
9 U.S.C. 1-14 (1970) the court does
believe that a provision requiring
arbitration in a foreign country that has
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no connection with either the performance
of the bill of lading contract or the
making of the bill of lading contract is
a provision that would conflict with
COGSA's general purpose of not allowing
carriers to lessen their risk of
liability.
Wesermunde, 838 F.2d at 1581 (footnote omitted). Some courts
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have gone one step further, holding that foreign arbitration
clauses in bills of lading are per se invalid under COGSA
___ __
because "[t]he considerations [stated in Indussa] are
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substantially similar where the bill of lading requires the
consignee to arbitrate in a foreign country." Siderius, 613
________
F. Supp. at 920; accord Khalij Frost, 1989 A.M.C. at 1462
______ ____________
(Indussa rationale "appl[ies] with equal force in the case of
_______
a foreign arbitration clause in a bill of lading").
On the other side of the coin, numerous federal
courts have upheld foreign arbitration clauses in bills of
lading subject to COGSA. See, e.g., Nissho Iwai Amer. Corp.
___ ____ _______________________
v. M/V Sea Bridge, 1991 A.M.C. 2070 (D. Md. 1991); Citrus
_______________ ______
Mktg. Bd. v. M/V Ecuadorian Reefer, 754 F. Supp. 229 (D.
__________ ______________________
Mass. 1990); Travelers Indem., Co. v. M/V Mediterranean Star,
_____________________ ______________________
1988 A.M.C. 2483 (S.D.N.Y. 1988); Mid South Feeds, Inc. v.
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M/V Aqua Marine, 1988 A.M.C. 437 (S.D. Ga. 1986); Midland Tar
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Distillers, Inc. v. M/T Lotos, 362 F. Supp. 1311, 1315
_________________ __________
(S.D.N.Y. 1973); Mitsubishi Shoji Kaisha Ltd. v. MS Galini,
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323 F. Supp. 79, 83-84 (S.D. Tex. 1971); Kurt Orban Co. v.
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S/S Clymenia, 318 F. Supp. 1387, 1390 (S.D.N.Y. 1970).
____________
We join those courts upholding the validity of
foreign arbitration clauses in bills of lading subject to
COGSA. In reaching this result, we are guided by our belief
that the FAA alone governs the validity of arbitration
clauses, both foreign and domestic, and consequently removes
them from the grasp of COGSA.5
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5. We recognize, however, that absent the FAA, COGSA might
operate to nullify foreign arbitration clauses in bills of
lading.
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We begin with two canons of statutory
interpretation. First, a later enacted statute generally
limits the scope of an earlier statute if the two laws
conflict. Davis v. United States, 716 F.2d 418, 428 (7th
_____ ______________
Cir. 1983); Tennessee Gas Pipeline Co. v. Federal Energy
____________________________ _______________
Regulatory Comm'n, 626 F.2d 1020, 1022 (D.C. Cir. 1980);
__________________
Indussa, 377 F.2d at 204 n.4;6 see generally 2B Norman J.
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6. Footnote four of Indussa states:
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Our ruling does not touch the question of
arbitration clauses in bills of lading
which require this to be held abroad.
The validity of such a clause in a
charter party, or in a bill of lading
effectively incorporating such a clause
in a charter party, have been frequently
sustained. Although the Federal
Arbitration Act adopted in 1925 validated
a written arbitration provision "in any
maritime transaction," 2, and defined
that phrase to include "bills of lading
of water carriers," 1. COGSA, enacted
in 1936, made no reference to that form
of procedure. If there be any
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inconsistency between the two acts,
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presumably the Arbitration Act would
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prevail by virtue of its reenactment as
_________________________________________
positive law in 1947.
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Indussa, 377 F.2d at 204 n.4 (citations omitted) (emphasis
_______
added). Although a later Second Circuit opinion sought to
narrow the scope of this dictum, see Aaacon Auto Transp. Co.
___ _______________________
v. State Farm Mut. Auto Ins. Co., 537 F.2d 648, 655 (2d Cir.
_____________________________
1976) (explaining that footnote four of Indussa was concerned
_______
"primarily . . . upon those commercial situations in which
the economic strength and bargaining power of the parties is
roughly equal"), courts have continued to rely on footnote
four in enforcing foreign arbitration clauses in bills of
lading governed by COGSA. See Fakieh Poultry Farms v. M/V
___ _____________________ ___
Mulheim, No. 85 Civ. 26577, slip op. at 2 (S.D.N.Y. Oct. 24,
_______
1986); M/V Mediterranean Star, 1988 A.M.C. at 2484-85; see
_______________________ ___
also Kaystone Chem., Inc. v. Bow-Sun, 1989 A.M.C. 2976, 2981-
____ ____________________ _______
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13
Singer, Sutherland Statutory Construction 51.03 at 141 (5th
_________________________________
ed. 1992). Second, where two statutes conflict, regardless
of the priority of enactment, the specific statute ordinarily
controls the general. See Watson v. Fraternal Order of
___ ______ ___________________
Eagles, 915 F.2d 235, 240 (6th Cir. 1990); see generally 2B
______ ___ _________
Sutherland Statutory Construction, 51.05 at 174.
_________________________________
With respect to the former canon, the FAA must be
given priority over COGSA in light of the FAA's reenactment
in 1947, eleven years after COGSA was passed. Similarly, the
latter canon suggests that the FAA be given effect. Section
3(8) of COGSA, which voids any clause in a bill of lading
that "lessens" the carrier's liability, makes no reference to
arbitration, or for that matter, forum selection clauses.7
Conversely, the FAA specifically validates arbitration
clauses contained in maritime bills of lading. See 9 U.S.C.
___
1, 2.
____________________
82 (S.D.N.Y. 1989) (stating that Indussa footnote "probably"
_______
requires enforcement of foreign arbitration clause in COGSA
bill of lading). But see Siderius, 613 F. Supp. at 920-21
___ ___ ________
(holding Aaacon substantially undercuts scope of the Indussa
______ _______
footnote); Khalij Frost, 1989 A.M.C. at 1463-64 (same).
_____________
While we agree with the rule of statutory construction
expressed in the footnote, we take no position on the effect
of Aaacon on that note.
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7. In fact, up until Indussa, the Second Circuit regularly
_______
enforced foreign forum selection clauses in bills of lading
governed by COGSA. See, e.g., William H. Muller & Co. v.
___ ____ _________________________
Swedish Amer. Line Ltd., 224 F.2d 806 (2d Cir.), cert.
_________________________ _____
denied, 350 U.S. 903 (1955); Cerro de Pasco Copper Corp. v.
______ ____________________________
Knut Knutsen, O.A.S., 187 F.2d 990 (2d Cir. 1951).
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Next, and perhaps of paramount importance, we
believe that the strong federal policy favoring arbitration
supports the primacy of the FAA over COGSA where arbitration
agreements are concerned. See Ecuadorian Reefer, 754 F.
___ __________________
Supp. at 233-34. The existence of this policy distinguishes
the present case from foreign choice-of-forum cases because
in those cases "there was no compelling congressional mandate
in favor of giving effect to agreements to litigate before
foreign tribunals." MS Galini, 323 F. Supp. at 83.
_________
Furthermore, American courts' mistrust of foreign
courts, a driving force in the Indussa court's decision to
_______
invalidate foreign choice-of-forum clauses, is an
inappropriate consideration in the context of arbitration.
See Mitsubishi Motors, 473 U.S. at 626-27 (We are "well past
___ _________________
the time when judicial suspicion of . . . arbitration and of
the competence of arbitral tribunals inhibited the
development of arbitration as an alternative means of dispute
resolution."); Connolly, 883 F.2d at 1119 ("[C]ourts must be
________
on guard for artifices in which the ancient suspicion of
arbitration might reappear."). Finally, unlike a foreign
forum selection clause, an agreement to arbitrate does not
deprive a federal court of its jurisdiction over the
underlying dispute. S/S Clymenia, 318 F. Supp. at 1390; MS
_____________ __
Galini, 323 F. Supp. at 83.
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For the foregoing reasons, the order of the
district court is Affirmed.
Affirmed.
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