| S.D.N.Y. | Apr 5, 1890
The respondents are a corporation organized and doing fire and marino 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. Galla her, Ourroy & 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 Simjison ¿fe 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
The libelants are all citizens of this country; two of them reside in this state, and one in this district. No special circumstances are shown, as respects the particular matter in litigation or the convenience of witnesses, why the determination of the libelants’ rights should be had in Toronto, rather than in New York. Though the policy was formally and technically issued at Toronto, ’the whole business was with citizens of the United States, through brokers belonging here, upon freight on a vessel of the United States, and in respect to a voyage between South American ports. These circumstances do not present, so far as I perceive, any equitable grounds for refusing, as a matter of discretion, to entertain a suit brought lawfully here.to enforce an apparently lawful demand. On the contrary, this country, where the libelants reside, and where the business was in effect procured, and its profits realized, seems • to me to be the more appropriate forum. No case is cited in which, under such circumstances, jurisdiction has been declined. In the recent case of Ex parte Louisville Underwriters, 134 U. S. -, 10 Sup. Ct. Rep. 587, Mr. Justice Gray observed:
“In nil nations, as observed by an early Avriter, such courts [admiralty] ‘ have been directed to proceed at such times, and in such manner, as might best consist with the opportunities of trade, and least hinder or detain men from their employments.’ Zoueli, Adm. 141. * * * To compel suitors in •admiralty * * * to resort to the home of the defendant, and to prevent them from suing him in any district in which he might be served with a summons or his goods or credits attached, would not only often put them to great •delay, inconvenience, and expense, but¡would in many cases amount to a denial of justice.”
I would not intimate that to remit the libelants to a suit in Toronto would in this case be a denial of justice; but an invalid stipulation is not sufficient reason for refusing jurisdiction of a cause which seems most appropriately to be brought here. Motion, denied.