home *** CD-ROM | disk | FTP | other *** search
- SUPREME COURT OF THE UNITED STATES
- --------
- No. 94-623
- --------
- VIMAR SEGUROS Y REASEGUROS, S. A., PETI-
- TIONER v. M/V SKY REEFER, HER
- ENGINES, etc., et al.
- on writ of certiorari to the united states court
- of appeals for the first circuit
- [June 19, 1995]
-
- Justice O'Connor, concurring in the judgment.
- I agree with what I understand to be the two basic
- points made in the Court's opinion. First, I agree that
- the language of the Carriage of Goods by Sea Act
- (COGSA), 46 U. S. C. App. 1300 et seq., and our
- decision in Carnival Cruise Lines, Inc. v. Shute, 499
- U. S. 585 (1991), preclude a holding that the increased
- cost of litigating in a distant forum, without more, can
- lessen liability within the meaning of COGSA 3(8).
- Ante, at 6-8. Second, I agree that, because the District
- Court has retained jurisdiction over this case while the
- arbitration proceeds, any claim of lessening of liability
- that might arise out of the arbitrators' interpretation of
- the bill of lading's choice of law clause, or out of their
- application of COGSA, is premature. Ante, at 11-13.
- Those two points suffice to affirm the decision below.
- Because the Court's opinion appears to do more,
- however, I concur only in the judgment. Foreign
- arbitration clauses of the kind presented here do not
- divest domestic courts of jurisdiction, unlike true foreign
- forum selection clauses such as that considered in
- Indussa Corp. v. S. S. Ranborg, 377 F. 2d 200 (CA2
- 1967) (en banc). That difference is an important one-it
- is, after all, what leads the Court to dismiss much of
- petitioner's argument as premature-and we need not
- decide today whether Indussa, insofar as it relied on
- considerations other than the increased cost of litigating
- in a distant forum, retains any vitality in the context of
- true foreign forum selection clauses. Accordingly, I
- would not, without qualification, reject -the reasoning
- [and] the conclusion of the Indussa rule itself,- ante, at
- 5, nor would I wholeheartedly approve an English
- decision that -long ago rejected the reasoning later
- adopted by the Indussa court,- ante, at 8. As the Court
- notes, -[f]ollowing Indussa, the Courts of Appeals
- without exception have invalidated foreign forum
- selection clauses under 3(8),- ante, at 5. I would prefer
- to disturb that unbroken line of authority only to the
- extent necessary to decide this case.
-