Fordham International Law Journal Volume 12, Issue 3 1988 Article 4 Forum Selection in Maritime Bills of Lading Under COGSA Kenneth M. Klemm∗ ∗ Copyright c 1988 by the authors. Fordham International Law Journal is produced by The Berke- ley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj Forum Selection in Maritime Bills of Lading Under COGSA Kenneth M. Klemm Abstract This Note argues that forum selection should not be invalid per se in bills of lading governed by COGSA. Part I reviews the history of COGSA including previous legislation that regulated bills of lading. Part II examines the decisions by the courts on forum selection in maritime bills of lading. Part III argues that a forum non conveniens analysis in the context of a valid forum selection clause provides courts with the necessary discretion to decide whether or not to accept jurisdiction of a case. The Note concludes that forum selection clauses in COGSA bills of lading should be valid unless the enforcement of such a clause is unreasonable in the context of a forum non conveniens analysis. NOTES FORUM SELECTION IN MARITIME BILLS OF LADING UNDER COGSA INTRODUCTION Bills of lading regulate the transactions between the carri- ers and shippers who transport goods by sea.' The Carriage of Goods by Sea Act ("COGSA") 2 governs bills of lading for cargo shipped to or from the United States.' Under COGSA, a court will not enforce a clause in a bill of lading that lessens or relieves a carrier's liability. 4 Some federal courts hold that fo- rum selection clauses that choose a foreign country in which to litigate or arbitrate a dispute lessen a carrier's liability. 5 Sev- eral other federal courts, however, do not accept this absolute view toward forum selection clauses.6 Moreover, most federal 1. See G. GILMORE & C. BLACK, THE LAW OF ADMIRALTY § 3-1 (2d ed. 1975); T. SCHOENBAUM, ADMIRALTY AND MARITIME LAW § 9-8 (Prac. ed. 1987). The maritime world separates the transport of goods by sea into two categories: common carriage and private carriage. Id. A common carrier, usually a shipowner or someone who operates a ship, accepts different shipments of goods from independent shippers. Id. The common carrier issues a bill of lading to the shipper as a receipt and a contract for the transport of goods. G. GILMORE & C. BLACK, supra, § 3-1. A carrier, however, may enter a charterparty, a special contract of hire for the transport of specific goods, to perform private carriage. W. TETLEY, MARINE CARGO CLAIMS 9-10 (3d ed. 1988). Under this type of shipping arrangement, the charterparty governs the transport of the cargo. T. SCHOENBAUM, supra, § 9-6. If this charterer accepts independent ship- ment of goods from other cargo owners, then he becomes a common carrier of cargo and usually issues a bill of lading to govern these shipments. T. SCHOENBAUM, supra, § 9-11. Thus, both a bill of lading and a charterparty may govern the maritime ship- ment of goods. Id. § 9-2. 2. 46 U.S.C. §§ 1300-1315 (1982 & Supp. IV 1986). 3. Id. § 1312; see infra note 59 (providing text of this section). 4. 46 U.S.C. § 1303(8); see iifra notes 63-68 and accompanying text. 5. See, e.g., Conklin & Garrett, Ltd. v. M/V Finlrose, 826 F.2d 1441 (5th Cir. 1987) (COGSA sec. 3(8) did not allow enforcement of forum selection clause calling for settlement of disputes in Finland under Finnish law); Union Ins. Soc'y of Canton, Ltd. v. S.S. Elikon, 642 F.2d 721 (4th Cir. 1981) (choice of forum clause selecting a German court not enforceable in light of COGSA's specific policy); Indussa Corp. v. S.S. Ranborg, 377 F.2d 200 (2d Cir. 1967) (forum selection clause requiring the settle- ment of any disputes to be decided in Norway held invalid under COGSA). 6. See, e.g.,The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972) (forum selec- tion clause providing for litigation of any dispute in London under non-COGSA bill of lading held valid unless unreasonable); North River Ins. Co. v. Fed Sea/Fed Pac Line, 647 F.2d 985 (9th Cir. 1981), cert.denied, 455 U.S. 948 (1982) (provision calling for settlement of disputes in Canadian court held valid where COGSA incorporated 459 460 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 12:459 courts agree that the doctrine offorum non conveniens applies to determine the reasonableness of an alternate forum for the set- tlement of shipper's claims.7 Nevertheless, the alternate forum chosen by the parties to a bill of lading receives little, if any, consideration in the courts that hold forum selection to be in- valid per se under COGSA.8 This Note argues that forum selection should not be inva- lid per se in bills of lading governed by COGSA. Part I reviews the history of COGSA including previous legislation that regu- lated bills of lading. Part II examines the decisions by the courts on forum selection in maritime bills of lading. Part III argues that a forum non conveniens analysis in the context of a valid forum selection clause provides courts with the necessary discretion to decide whether or not to accept jurisdiction of a case. This Note concludes that forum selection clauses in COGSA bills of lading should be valid unless the enforcement of such a clause is unreasonable in the context of a forum non conveniens analysis. I. CARRIAGE OF GOODS BY SEA: AN INTERNATIONAL EFFORTAT REGULATING BILLS OF LADLVG An ocean-going carrier issues a bill of lading to a shipper as a receipt for the goods to be shipped and as a contract for the transport and delivery of the goods by a common carrier.!' The United States did not begin to regulate bills of lading until 0 the late 1800s when it enacted the Harter Act (the "Act"),' into bill of lading); Fireman's Fund Am. Ins. Cos. v. Puerto Rican Forwarding Co., 492 F.2d 1294 (1st Cir. 1974) (clause in bill of lading providing for any action to be brought in New York City court held valid). 7. See, e.g., Conklin & Garrett, 826 F.2d at 1444 (remanded for consideration of forum non conveniens); S.S. Elikon, 642 F.2d at 725-26 (COGSA would not preclude district court from dismissing case underforum non coveiens); hIdussa, 377 F.2d at 204 (not foreclosing possibility of applying doctrine of forum non convenlens to action under bill of lading subject to COGSA). 8. See S.S. Elikon, 642 F.2d at 725-26 (COGSA suggests a preference for a U.S. forum); T. SCHOENBAUM, supra note 1, § 9-18 (application of forum not cotnveniens ex- ceedingly rare where COGSA applies). 9. See supra note 1 and accompanying tcxt. 10. See ch. 105, 27 Stat. 445 (1893) (codified as amended at 46 U.S.C. §§ 190- 196 (1982 & Supp. IV 1986)); R. WILLIAMSON & C. WITHERS PAYNE, CARRIAGE OF GOODS BY SEA ACT, 1924, at 1-2 (1934) (passing of Harter Act one of early results of involved conditions and exemptions from liability contained within bills of lading during 1800s). 1989] COGSA FORUM SELECTION which prohibits exculpatory clauses that relieve the carrier from liability." In exchange for this prohibition, carriers re- ceived a limitation on their liability for certain types of negli- gence resulting in damage to cargo. t2 The Harter Act spurred the development of the International Convention for Unifica- tion of Certain Rules Relating to Bills of Lading (the "Hague Rules") 3 and, eventually, COGSA in the United States.' 4 A. The Harter Act The passage of the Harter Act in 1893 marked an early attempt by Congress to regulate the private carriage of cargo.' 5- Previously, the courts applied common law to this type of ocean transport.' 6 Under common law, carriers often included unreasonable exceptions for negligence in bills of lading.' 7 In passing the Harter Act, Congress sought to limit the negligence exceptions used by private carriers to escape 11. 46 U.S.C. § 190; see H.R. REP. No. 1988, 52d Cong., 1st Sess. 3 (1892) (prohibiting carriers from inserting certain provisions into bills of lading); see also G. GILMORE & C. BLACK, supra note 1, § 3-24. 12. See 46 U.S.C. § 192; H.R. REP. No. 1988, supra note 11, at 3 (permitting carriers to insert reasonable exemptions from liability into bills of lading); G. GIL- MORE & C. BLACK, supra note 1, § 3-24. 13. Aug. 25, 1924, 51 Stat. 233, T.S. No. 931, 120 L.N.T.S. 155 [hereinafter Hague Rules]. 14. See G. GILMORE & C. BLACK, supra note 1, § 3-24. 15. See id.; R. WILLIAMSON & C. WITHERS PAYNE, supra note 10, at 1-2. 16. See Knott v. Botany Mills, 179 U.S. 69, 71-72 (1900) (prior to enactment of the Harter Act, courts determined exemptions permitted in contracts of carriage); G. GILMORE & C. BLACK, supra note 1, § 3-23. 17. See, e.g., Liverpool and Great W. Steam Co. v. Phenix Ins. Co., 129 U.S. 397 (1889) (bill of lading clause exempted carrier from liability for negligence caused by its servants); Rubens v. Ludgate Hill S.S. Co., 20 N.Y.S. 481, 487 (N.Y. Sup. Ct. 1892), affid, 143 N.Y. 629, 37 N.E. 825 (1894) (provision in bill of lading relieved carrier of liability for damage to cargo caused by negligence of employees or im- proper stowage); see also C.A. Seguros Orinoco v. Naviera Transpapel, C.A., 677 F. Supp. 675, 681 (D.P.R.