CERRO DE PASCO COPPER CORP. v. KNUT KNUTSEN, O. A. S.
No. 175, Docket 21904
United States Court of Appeals Second Circuit
March 9, 1951
187 F.2d 990
As the language of § 13(a) evidences, Congress was not unaware that there would be many cases like B‘s and it deliberately provided that the right to compensation in such cases would become barred unless claim therеfor is filed within one year after the injury. If it is thought desirable in the interest of justice or prаctical administration that a different limitation be prescribed, the power to effect the change resides in Congress, not in the courts.
The decrees of thе district court in the several cases are affirmed.
Argued Feb. 14, 1951.
The district court dismissed the libel on grounds of forum non conveniens. The opinion, 94 F.Supp. 60, 61, states all the pertinent facts еxcept that the libellant‘s agent signed the bill of lading and that it is undisputed that, under Peruvian аnd Norwegian law, the provision of the bill as to the place of suit is valid.
Bigham, Englar, Jones & Houston, Nеw York City (F. Herbert Prem, New York City, of counsel), for libellant-appellant.
Haight, Deming, Gardner, Poor & Havens, New York City (Wharton Poor and James McKown, Jr., New York City, of counsel), for respondent-aрpellee.
Before CHASE, CLARK and FRANK, Circuit Judges.
FRANK, Circuit Judge.
Clause 12 of the bill of lading provides:
“Any claim under this Bill of Lading including claims for alleged unseaworthiness * * * to bе settled with the Company in Norway, according to Norwegian law to the exclusiоn of proceedings in the Courts of any other Country. Any dispute regarding the interpretation of the rules of this Bill of Lading is to be decided in Norway according to Norwegiаn Law which is in every respect governing * * *“.
The bill was issued in Peru and (this we regard as important) was there signed on behalf of libellant. It is undisputed that such a provision is valid under the laws of both Norway and Peru. We think it sufficient to justify the trial court‘s exercise of discretion in refusing to try the suit, although we
Libellant argues that such a decision amounts to saying that parties to a contract by their agreement can oust the federal courts of their exclusive admiralty jurisdiction which the Constitution prescribes, and that in no circumstances can an American citizen be deprived of his right to invoke this jurisdiction. It may be doubted whether the jurisdiction of admirаlty litigation in the United States courts is “exclusive” except in the sense of excluding the jurisdiction of the state courts in certain cases. At any rate, the district court here did exercise jurisdiction to decide, in its discretion, whether it was the apprоpriate forum to hear the case on the merits.1 The court‘s conclusion thаt it was not the appropriate forum clearly did not constitute an abuse оf discretion, considering these facts stated by the district judge: “No loading of this vessel took place in any United States port. All of the cargo was to be deliverеd in European ports * * * None of the crew of the Geisha are in the United Statеs and none are planning to visit the United States.” Further, we do not understand libellant to contend that it will be without an effective remedy in the Norwegian courts. Becausе of Clause 12 of the bill, we think Swift & Co. Packers v. Compania Colombiana Del Caribe, 339 U.S. 684, 698, 70 S.Ct. 861 (1950), inapposite. See Mittеnthal v. Mascagni, 183 Mass. 19, 66 N.E. 425, 60 L.R.A. 812 (1903). The instant case is not one where the parties agreеd that no court was to hear the grievances of either.2
Affirmed.
CLARK, Circuit Judge (concurring).
I prefer to plаce my concurrence upon the validity, under the circumstances here disclosed, of the contract requiring all claims to be settled in Norway. The apрarently wider discretion granted in the opinion to the district judge to pass upon the appropriateness of the forum may, perhaps, raise more extensive questions which we need not now face. See discussion in P. Beiersdorf & Co. v. McGohey, 2 Cir., 187 F.2d 14.