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U.S. Supreme Court Proceedings in Unterweser Reederei v. Zapata Offshore Company

Published online by Cambridge University Press:  20 March 2017

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Judicial and Similar Proceedings
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International Legal Materials , Volume 11 , Issue 3 , May 1972 , pp. 599 - 642
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Copyright © American Society of International Law 1972

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References

* [The introductory Note was prepared for International Legal Materials by Jay A. Burgess, Henry Luce Fellow of the American Society of International Law, Washington, D.C.I

* [Ellipses indicate the omissions.]

5 It is interesting to note that the Daywork Drilling Contract (App. 299) between Zapata North Sea, Inc., and AGIP-S.p.A. Direzione Mincraria, covering the drilling to be performed in the Adriatic Sea provides for arbitration at London, England, and interpretation and construction of the agreement “. . . in accordance with the common law of England.” (App. 310–311). The Daywork Drilling Contract is a portion of the supplemental documents filed in the Court of Appeal pursuant to their request on Rehearing En Banc.

6 See App. 248, Opinion, Wisdom J. dissenting.

7 Denning’s article prompted a reply by Allen I. Mendelsohn: Liberalism, Choice of Forum Clauses and the Hague Rules, Journal of Maritime Law and Commerce (Vol. 2, No. 3, April 1971). Mendelsohn’s defense of the COGSA forum clause restriction further emphasized the distinction by pointing out bills of lading are contracts of adhesion which require consideration of commercial and practical realities of a nature different from contracts arrived at through arms-length negotiations.

8 See: Central Contracting Co. v. C. E. Youngdahl & Co., 209 A.2d 810 (Pa. 1965); Krenger v. Pennsylvania R. Co., 174 F.2d 556 (2d Cir. 1949) (concurring opinion) ; Mittenthal v. Mascagni, 66 N.E. 425 (Mass. 1903).

9 Ehrenzweig, Conflict of Laws, §§41,153 (1962); Restatement (Second) of Conflict of Laws, §80 (Proposed Off. Draft 1967); Krenger v. Pennsylvania R.R. Co., 174 F.2d 556, 561 (2d Cir. 1949) (L.Hand, J., Concurring); Application of the Forum Clause to Commercial Contracts, 8 Houston L.Rev. 738 (1971); Collins, Forum Selection and an Anglo-American Conflict — The Sad Case of the CHAPARRAL, International and Comparative Law Quarterly (Vol. 20, p. 550, July 1971).

10 See: The ELEFTHERIA, P. 94 (‘970), 1 Lloyd’s Rep. 237 (1969), 2 All. E.R. 641 (1969). The forum clause of the Towage Contract has been tested and found acceptable and enforceable under English guidelines. (App. 206 Opinion, High Court of Justice; App. 216, Opinion, English Court of Appeal).

11 Unterweser $1900 a day; Wijsmuller $3100 a day; Moran $3400 a day. (App. 295–298).

12 Dixilyn was determined on “authority” of Bisso. (App. 272, n.29, Opinion, Wisdom, J., dissenting).

13 The public policy against limitation of liability clauses would not appear to be so entrenched as the Court of Appeals indicates since such clauses have been enforced in diversity cases where economic and practical realities justify them. Seaboard Coastline R.R. v. Tennessee Corp., 421 F.2d 970 (5th Cir. 1970). See also: Zammit, The Validity of the “Pilotage Clause” in Docking Assistance Contracts, Journal of Maritime Law and Commerce (Vol. 3, No. 1, p. 71, Oct. 1971).

14 See: Note, 39 Cinn. L.Rev. 819 (1970), which correctly characterizes the Court of Appeals’ decision in this regard as a perversion of the purpose of a limitation proceeding.

15 Collins, Forum Selection and An Anglo-American Conflict — The Sad Case of the CHAPARRAL, International and Comparative Law Quarterly (Vol. 20, p. 550, July 1971), at pages 550, 556, 557.

8a Dixilyn Drilling Corp. v. Crescent Towing & Salvage Co., 372 U.S. 697 (1963).

8b The Titanic, 233 U.S. 718 (1914).

8c “Depositions arc frequently taken and used, for witnesses are likely to be long gone before a suit can be reached on the docket.” Gilmore & Black, The Law of Admiralty, § 1–12, p. 31.

9 Article III,Section-2 of the United States Constitution provides:

“Jurisdiction of Courts.

Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; . . . to all Cases of admiralty and maritime Jurisdiction; . . .”

10 28 U.S.C. § 1333 provides:

“Admiralty, maritime and prize cases.

The district courts shall have original jurisdiction, exclusive of the courts of the States, of:

(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled. . . .”

11 Gilmore and Black, The Law of Admiralty, § 10–7 p. 668, comments on Section 183(a) of Title 46 U.S.C. as follows:

“Section 183(a) thus states, in terms of the utmost generality, the types of claims against which the privilege of limitation is conferred, conditions the privilege on the absence of ‘privity and knowledge’ on the part of the owner, and sets, as the maximum liability of an owner entitled to limit, his interest in the vessel and her pending freight. . . .” (emphasis added)

46 U.S.C. § 183(a), U.S. §4263; Aug. 29, 1935, c. 804. § 1, 49 Stat. 960; June 5, 1936, c. 521, § 1, 49 Stat. 1479, provides:

“The liability of the owner of any vessel, whether American or foreign . . . for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of such owner or owners, shall not, except in the cases provided for in subsection (b) of this section, exceed the amount or value of the interest of such owner in such vessel, and her freight then pending.” (emphasis added)

12 Zapata’s total claim is $3,500,000. ($3,000,000 for repairs; $500,000 for loss of use). Unterweser seeks to limit its liability to its interest in the BREMEN, alleged to be $1,390,000. Accordingly, the privilege sought by Unterweser to limit its liability is worth $2,110,000, if there are no other claims.

13 Following the loss, the eight Americans and three Germans on the CHAPARRAL had to leave the rig and were rescued by the BREMEN’S crew. Several of Zapata’s crew members received injuries while leaving the wrecked CHAPARRAL. Also, the voyage was terminated because of the casualty. These American crew members could have filed claims against Unterweser for damages and/or lost wages. Potential claims existed at the time Unterweser filed its limitation action.

This court has held repeatedly that one of the objectives of a limitation proceeding is to provide the shipowner, seeking to limit its liability, a concourse to try all claims that may be asserted against it. Providence & N.T. S.S. Co. v. Hill Mfg. Co., 109 U.S. 578 (1883), 594–595; Hartford Accident & Indemnity Co. v. Southern Pac. Co., 273 U.S. 207 (1927), at 215; Spencer Kellogg Co. v. Hicks, 285 U.S. 502 (1932), at 512; British Transport Commission v. United States, 354 U.S. 129 (1957), at 136.

14 The first filed suit was being litigated hammer and tongs by Zapata and Unterweser until Unterweser obtained the limitation injunction. 35 depositions (2170 pages of testimony) had been taken. Unterweser had made very good use of the district court’s judicial processes in Zapata’s suit. Unterweser noticed and took in Tampa, Florida, the oral depositions of the Zapata employees on the CHAPARRAL for the purpose of discovery and for use at trial. (A. 34–35; 150–151). Unterweser noticed and took in New Orleans oral depositions of two marine surveyors, Noel Thompson and John Hellendoorn, for purpose of discovery. (A. 43; 151). Unterweser filed on February 27, 1968 a Motion for Production of Documents. (A. 37–41). This motion was settled, and Zapata produced for Unterweser’s inspection some 700 pages of documents. (R. 155). Zapata submits this conduct on the part of Unterweser constituted a waiver of its various motions addressed to the court’s jurisdiction and amounted to a consent to the court’s continuing exercise of jurisdiction in the first filed suit.

15 The district judge had dissolved the limitation injunction with the proviso that it would be reinstated if the shipowner obtained a stay of its other suit within four days.

16 “The vessel owner . . . may petition a district court . . . for limitation of liability. . . .” 46 U.S.C. § 185. (emphasis added)

(1) “any vessel owner may file a complaint in the appropriate district court . . . for limitation of liability pursuant to statute. . . .” Supplemental Rule F, Federal Rules of Civil Procedure, (emphasis added)

The language is obviously permissive.

17 In effect, Unterweser’s option to seek limitation affirmatively, under § 185, was going to expire on July 12, 1968, six months after receipt of Zapata’s first written notice of intention to claim.

18 Unterweser could have obtained the protection of the limitation statutes as against Zapata by raising limitation as a defense to Zapata’s suit. Coryell v. Phipps, 317 U.S. -106, 407–8 (1943). Defense of limitation set up in answer under § 183. This Court held: “. . . courts below were correct in allowing the limitation of liability under § 4283.” [now § 183, 46 U.S.C], affirming 128 F.2d 702 (5th Cir. 1942), which affirmed 39 F. Supp. 142 (S.D. Fla. 1941), where style was Coryell v. Pilkington, and in which the distinction was considered on p. 145; Murray v. New York Central Railroad Co., 287 F.2d 152, 153 (2d Cir. 1961) ; Deep Sea Tankers v. The Long Branch, 258 F.2d 757 (2d Cir. 1958), at pp. 772–773; The Chickie, 141 F.2d 80 (3d Cir. 1944), at pp. 84–85.

19 In its Order of January 21, 1969, the District Court correctly observed: “Limitation proceedings are considered to be equitable in nature. . . . The Court having once taken jurisdiction in the limitation proceedings may proceed to determine all matters relating to the controversy. . . . In seeking the benefits of the Limitation Act, Unterweser should recognize that this Court has jurisdiction to determine the entire controversy. In aid of this jurisdiction, it may be and it is, in this case, necessary to require that duplicity of litigation be terminated. . . . In the case at bar there are only two parties litigating the dispute occasioned by the events of January 9, 1968. Suit was initially filed in this Court, this Court has ruled that it does have jurisdiction over the controversy, and this Court also has taken jurisdiction in the limitation action. The proposition that the case should at the same time be prosecuted in another forum is not well received.

“Although Unterweser again argues in its Motion to Stay that the venue provisions of the towage contract are controlling, this Court has already passed on that contention. “While at that time the Court did not rule that Unterweser could not proceed with an action in the London Court, the same considerations recited as a basis for retaining jurisdiction in the Order of July 29, 1968, are determinative of this issue. In addition. Unterweser has voluntarily invoked this Court’s jurisdiction in filing this limitation proceeding in which Zapata has filed claim and answer and joined issue, and also Unterweser has invoked this Court’s jurisdiction in filing its counterclaim against Zapata upon which issue has also been joined.

“This Court having first acquired jurisdiction over the parties and the subject matter of this controversy both through the complaint in 68–21 Civ. T. and the limitation action filed by Unterweser in this cause, does have the power to restrain the parties before it from litigating the same matters elsewhere. . . .

“The balance of convenience is strongly in favor of litigation in this forum initially and to allow the same action to be prosecuted simultaneously elsewhere would cause inequitable hardship. Such an action could only tend to frustrate and delay the speedy and efficient determination of the cause in this Court, The Court feels that the parties being properly before it should be restrained from proceeding further in the foreign court.” (A. 225, 227–8). (emphasis added).

20 General Towage Conditions, Par. 8. (A.27).

21 A typical example of exclusionary language is:

“This agreement shall be subject to the Law of the Netherlands. The settlement of all disputes arising from this agreement shall, to the exclusion of any other judge, be submitted to the District Court at Rotterdam. . . .” Chemical Carriers, Inc., v. L. Smit & Co.’s Internationale Sleepdienst, 154 F.Supp. 886 (S.D.N.Y. 1957), at 888. (emphasis added)

22 Another typical example is:

“Governing Law: Unless otherwise herein expressly provided this Bill of Lading shall be construed by Japanese Law, and the rights of the parties thereunder determined accordingly. Any claim for loss, damage . . . arising out of this Bill of Lading shall be dealt with, at the option of the carrier, in the courts of Japan to the exclusion of proceedings in the courts of any other country.” Takemura &* Co. v. The S.S. Tsuneshima Maru, 197 F.Supp. 909 (S.D.N.Y. 1961), at 910. (emphasis added)

23 A provision that:

“Any dispute arising under this Bill of Lading shall be decided in the country where the Carrier has his principal place of business, and the law of such country shall apply except as provided elsewhere herein.”

elicited this comment from Judge Friendly speaking for the Second Circuit en banc:

“Other possible bases [of distinction from Midler] would be the failure of the instant bill of lading to identify within its four corners the forum to which litigation was confined “ Inditssa Corp. v. 5.S. Banborg, 377 F.2d 200 (2d Cir. 1967) at 202. (Emphasis added)

Judge Moore, concurring with the result at p. 205, said: “The bill [of lading] itself contained no clear contractual agreement providing for exclusive jurisdiction in Norwegian courts. Furthermore, the action here was solely against the ship in rem.” (emphasis added)

24 The Monrosa v. Carbon Black Export, Inc. 359 U.S. 180, 182–3 (1959): “. . . we will not stretch the language when the party drafting such a form contract has not included a provision it easily might have.”

Engel v. Shubert Theatrical Co., 151 N.Y.S. 593 (Sup. Ct. App. Div. 1915). The forum clause read: “In case of dispute, both contracting parties agree to submit to the jurisdiction of the Vienna courts.” Court overruled defendant’s contention it was immune from suit in the New York court, held the parties did not agree to submit their disputes to Vienna courts only, and that “it is entirely plain that such agreements should, be strictly construed, and shoidd not be extended by implication.” (emphasis added)

25 Affidavit of Hoyt Taylor, Zapata’s Vice President, (A. 62, 63).

26 17A C.J.S., § 324, Construction Against Party Using Words, p. 217, et seq., states:

“It is a general rule of construction that where a contract is ambiguous it will be construed most strongly against the party preparing it or employing the words concerning which doubt arises; . . . and any ambiguity in a contract, doubt or uncertainty as to its meaning should be resolved against the party who prepared the contract or is responsible for the verbiage.” (emphasis added)

27 Benedict on Admiralty, 6th Ed., vol. 1. §§ 11 and 12, pp. 17–24; Gilmore Black, The Law of Admiralty (1947), §1–12, p. 30 et seq.

28 Motor Distributors Ltd. v. Olaf Pedersen’s Rederei, A/S, 239 P.2d 463 (5th Cir. 19.37), at 467.

29 It has long been settled that suit by the owner of a tow against her tug to recover for an injury to the tow caused by negligence on the part of the tug is ex delicto and not ex contractu. Stevens v. The White City, 285 U.S. 195 (1932) ; South, Inc. v. Moran Towing and Trans. Co., Inc., 360 F.2d 1002 (2d Cir. 1966); Bisso v. Waterways Trans. Co., 235 F.2d 741 (5th Cir. 1956). This Court, in Stevens v. The White City, supra, held (285 U.S., at 202):

“. . . And the rule that the lien for damages occasioned by negligent towage takes precedence of liens for supplies previously furnished the offending yessel rests upon the ground that the claim, like those in collision, is one in tort arising out of the duty imposed by law and independently of any contract or consideration for the towage.” (emphasis added)

30 Annot., 56 A.L.R.2d 300 (1957); 17 C.J.S., Contracts, § 229(1), p. 1069 (1963 Ed.).

31 “. . . The modern and correct rule is that . . . a court . . . should decline to proceed with the cause when the parties have freely agreed that litigation shall be conducted in another forum and where such agreement is not unreasonable at the time of litigation.” Central Contracting Co. v. C.E. Youngdahl & Co., 209 A. 2d 810 (Sup.Ct. Pa. 1965) at 816 (emphasis added);

“There will always be open to either party the opportunity to present whatever evidence will move a court in the particular circumstances not to decline to exercise its undoubted jurisdiction.’“‘ Central Contracting Co. v. Maryland Casualty Co., 367 F. 2d 341 (3rd Cir. 1966), at 345 (emphasis added);

“But if in the proper exercise of its jurisdiction, by a preliminary ruling the court finds that the agreement is not unreasonable in the setting of the particular case it may properly decline jurisdiction and relegate a litigant to the forum to which he assented.” Wm. H. Mutter & Co., Inc. v. Swedish American Line Ltd., 224 F. 2d 806 (2d Cir. 1955), at 808. (emphasis added)

32 Chemical Carriers, Inc. v. L. Smit & Co.’s Internationale, 154 F.Supp. 886 (S.D.N.Y. 1957); towage contract; plaintiff deprived of remedy in foreign forum, case retained; Wm. II. Mutter & Co., Inc. v. Swedish American Line Ltd., 224 F.2d 806 (2d Cir. 1955) plaintiff’s rights not significantly affected, case declined; General Motors Overseas Operations v. 5.5. Goettingen, et ah, 225 F.Supp. 902 (S.D.N.Y. 1964) plaintiff’s rights affected, case retained; Takemura & Co. v. The S.8. Tsuneshima Maru, 197 F.Supp. 909 (S.D.N.Y. 1961) plaintiff’s rights not significally affected, case declined.

33 Hawaii Credit Card Corp. v. Continental Credit Card Corp., et al., 290 F.Supp. 848 (D.C. Hawaii 1968) case retained because most evidence in non-contract forum; Murillo Ltda. v. The Bio Bio, 127 F.Supp. 13 (S.D.N.Y. 1955), aff’d per curiam, 227 F.2d 519 (2d Cir. 1958); Wm. E. Muller & Co., Inc. v. Swedish American Line Ltd., supra; Takemura & Co. v. The S.S. Tsuneshima Maru, supra.

34 Swift & Co. Packers v. Compania Colombiana Del Caribe S.A., 339 U.S. 684 (1950) suit by U.S. citizen against foreigner evokes different considerations from suit between foreigners; Volkswagen of America, Inc. v. S.8. Silver Isle, 257 F.Supp. 562 (X.D. Ohio 1966) libelants American nationals, Court’s discretion further limited; States Marine Lines, Inc. v. The M/V Kokei Maru, 180 F.Supp. 255 (N.D. Cal. 1960) American nationality of libelant sufficiently important to justify retention.

35 Cerro Be Pasco Copper Corp. v. K-nut Knntsen, O.A.S., 187 F.2d 990 (2d Cir. 1951); Wm. II. 31 idler & Co., Inc. v. Swedish American Line Ltd., supra; 3Iurillo Ltda. v. The Bio Bio, supra.

36 See cases, footnote 35.

37 Zapata does not contend Unterweser procured contract through fraud or overreaching.

38 Zapata concedes the London court would take the case and try it.

39 “ 1 . . . . URAG [Unterweser], their masters and crews are not responsible for defaults and/or errors in the navigation of the tow.

“2(b) Damages suffered by the towed object are in any case for the account of its Owners. [Zapata]”. (A. 26).

40 Opinion of English maritime law expert Bateson (A. 65–71). Affidavit filed in district court on April 22, 1968. Unterweser has not filed a controverting affidavit.

Unterweser suggests at p. 25 of its brief that it is premature and speculative to assume that an English court would apply English law to the contract. But Mr. Justice Karminski said the inference when parties have agreed on a forum is that the forum law is intended to be applicable. (A. 211, 212). And Lord Justice Willmer says that Unterweser argued that English law would govern the contract as a ground upon which the London Court should grant leave to serve Zapata outside England. (A. 216, 217).

English court recently concluded English law governed a contract (which did not provide applicable or controlling law) when comity might have prompted a conclusion that the law of the Netherlands applied. Coast Lines Ltd. v. Hudig & Veder N.V., 2 Lloyd’s Rep. 390 (1971).

41 Bisso v. Inland Waterways Corp., 349 U.S. 85 (1963). Dixilyn Drilling Corp. v. Crescent Towing & Salvage Co., 372 U.S. 697 (1963) [following Bisso], reversing Fifth Circuit Court of Appeals, 303 F.2d 237 (1967). Dixilyn firmly settles law. Exculpatory provisions void and unenforceable, even when towage contract proven to have been freely negotiated and proof shown towage rate reduced in consideration of exculpatory clause. See also, Offshore Company v. G. & 3. Offshore Towing Co., 262 F.Supp. 282, 288 (S.D. Tex. 1966).

42 The Scotland, 105 U.S. 24 (1881); The Belgenland, 114 U.S. 355 (1885) ; The Gylfe v. The Trujillo, 209 F.2d 386 (2d Cir. 1954).

43 The Kensington, 183 U.S. 263 (1902); Oceanic Steam Nov. Co. v. Corcoran, 9 F.2d 724 (2d Cir. 1925)

44 The Titanic, 233 U.S. 718 (1914); The Western Farmer, 210 F.2d 754 (2d Cir. 1954).

45 Unterweser (A. 91) and English maritime law expert Bateson (A. 324–329) agree the English limitation fund would not exceed 33.600 pounds sterling, the equivalent of $80,136.

46 Wm. H. Midler & Co., Inc., v. Swedish American Line Ltd., 224 F.2d 806 (2d Cir. 1955). Where there were (1) a Swedish shipowner (who had not started a limitation suit in the U. S.), (2) Swedish crew-members all residing in Sweden, (3) most of the evidence available in the Swedish court, (4) an exclusive Swedish forum clause, (5) no American fact witnesses, (6) undisputed showings that the Sivedish court would apply the same measure of damages as American maritime courts, and (7) that limitation proceedings under Swedish law were no more restrictive than under American law, the Second Circuit Circuit held the forum.clause was not unreasonable and would be enforced.

47 Chemical Carriers, Inc. v. L. Smit & Co:’s Internationale Sleepdienst, 154 F.Supp. 886 (S.D.N.Y. 1957). Dutch tug (Smit), on voyage tow (Chemical Carriers vessel), salvaged German ship. Under American law Chemical Carriers was entitled to participate in salvage award, but not so under Netherlands law. Court refused to enforce exclusive forum clause (Rotterdam) because to do so would be unreasonable, holding (888) : “. . . in view of . . . Netherlands law, the practical result of compelling libelant to litigate in Rotterdam courts might well be to deprive it of all remedy”. The court, recognizing the reasonableness test of Mutter was applicable, distinguished same, pointing out “. . . there was no showing [in Midler] . . . that the libelant would be without effective remedy in the foreign forum.”

48 General Motors Overseas Operations v. S. S. Goettingen, 225 F.Supp. 902 (S.D.N.Y. 1964). The court, applying Midler test of reasonableness, declined to enforce forum clause on ground that to remit plaintiffs to German courts would substantially affect their rights. The interpretation of “peril of the sea” under German law was such that a storm, not severe enough to free a carrier from liability under American law, might be sufficient under German law to free the carrier from liability. The court distinguished Midler saying (906): “. . . the Court [Mutter] clearly pointed out that the foreign law would be ‘no more restrictive’ than United States law on the shipper’s rights.”

49 “Section 3 [Action in Another Place by Agreement.] If the parties have agreed in writing that an action shall on a controversy be brought only in another state and it is brought in a court of this state, the court will dismiss or stay the action, as appropriate, unless . . . .

(2) the plaintiff cannot secure effective relief in the other state, for reasons other than delay in bringing the action, . . .” (emphasis added)

50 “. . . effect should be denied the [forum] clause if there is reason to believe that the courts of the selected state would . . . deny [plaintiff] relief to which he was entitled. . . .” (emphasis added) Keese, The Contractual Forum-. Situation in the United States, 13 Am. J. Comp. L. 187, 189 (1964)

51 On the facts, Unterweser offered the district court one affidavit of von Aswegen stating: that the BREMEN was built in Germany, her home port was in Germany, the BREMEN’S crew were German; and von Aswegen’s opinion that the forum clause constituted the “balance of convenience”. (A. 21–23).

51a Reese, supra.

52 See pp. 8–9 of this Brief for details of performance under the contract by Zapata’s and Unterweser’s employees.

53 In its Memorandum and Order entered in Zapata’s first filed suit, the court denied Unterweser’s-motion (1) to dismiss for lack of jurisdiction, (2) requesting the court to decline to exercise its jurisdiction on the ground of forum non conveniens, and (3) to stay pending submission to the English court. The court held:

“The citizenship of the parties has been given. Plaintiff chose and obtained the jurisdiction of this Court. The prelude, including a partial performance, alleged casualty and aftermath here all occurred along or near the Gulf Coast of the United States of America and within or adjacent to the jurisdiction of the judicial circuit of which this Court is a part.

“A great majority, if not all. of the witnesses are or were in the United States, including an alleged forty potential witnesses residing permanently here. Members of the Bar of this Court have spent considerable time in the investigation and preparation of the trial of this case, 33 oral depositions have been taken, including all of the officers and members of the crew of Defendant’s tug and the Defendant’s riding crew on Plaintiff’s drill barge. Defendant itself has taken oral depositions and with the aid of this Court obtained production of documents, plans and other data.

“Plaintiff has made an undisputed showing that English courts apply different tests and rules of liability in cases of this type than do many of the courts of this country.” (emphasis added)

54 375 U.S. at 313.

55 ibid. 314

56 In accord: Oceanic Steam Nav. Co. v. Corcoran, 9 P.2d 724 (2nd Cir. 1925), relying on The Kensington, supra.

1 Zapata even concludes its brief on this false note: “Surely ‘comity’ does not require the district court to stay Unterweser’s limitation action so as to send Zapata to a forum where it cannot recover for Unterweser’s negligence.” (Zapata Brief, 47) (emphasis added).

2 The proceedings before the District Court on January 29 and 30, 1968 were transcribed and filed in the initial action on February 15, 1968, (A. 2) which record was destroyed by a fire in the Clerk’s office. (See Preliminary Statement to Appendix).

3 Subsequently, in oral argument on its motion to dismiss or decline jurisdiction, Unterweser unilateraly stipulated that the depositions and discovery which had been accomplished in the early stages of the initial action could be used in London.

4 Upon the entry of the adverse Order (A. 80) Unterweser timely (August 8, 1968) moved the District Court to certify the question. (A. 84). This motion was denied on January 16, 1969, (A. 84) on the ground that it had been mooted by commencement of the limitation action. While it is not certain that the District Court would have certified its order, in view of subsequent developments it is reasonable to suppose the court would have so acted. In any event, if the court had acted earlier Unterweser would have known whether an interlocutory appeal was available before it was necessary to make the decision to file a complaint in limitation.

5 Judge Wisdom and Mr. Justice Karminsky were of the opinion that Unterweser had not precluded itself from seeking enforcement of the forum clause by filing the limitation action: “Unterweser filed a limitation action one week before the time for filing lapsed because the district court had not yet ruled on its motion to dismiss. I do not believe it is thereby estopped from pressing its motion to dismiss.” (Wisdom J., dissenting, A. 281).

* * *

“It is alleged that the Plaintiffs here have to some extent taken part in the Florida proceedings. That is true: they have indeed filed a Petition For Limitation, because if they did not do that within a certain time, namely six months, they would be out of time for limitation before that tribunal. But I have no doubt at all that they have taken no steps in the Florida Court at Tampa, except to protect their position for the future.” (Opinion, High Court of Justice, A. 209).

* * *

“The contention that Unterweser should be treated as having assented to the jurisdiction of the local court by filing the limitation action is a red herring.” (Wisdom J., dissenting, A. 287).

6 Certainly, “Any disputes” encompasses all actions.

7 Zapata, by emphasis, creates an auroa of inviolability as to in rem rights. However, maritime liens may be waived by “agreement or otherwise.” Benedict on Admiralty (6th ed.) §89. As Zapata recognizes, the unique function of in rem suits is to obtain security for the claim; but once security is obtained the suit is no different from any other.

8 Courts have attempted to distinguish insurance clauses in towage contracts from exculpatory clauses, a distinction, which in truth, is without a difference: “The result may be the same as a release of liability, but in the absence of a showing of ‘monopolistic compulsion’ to induce the charterer to accept this term in the contract [citing Bisso], it would appear there is no overriding public policy consideration to prevent its enforcement.” Slade, Inc. v. Samson Towing Company, 327 F.Supp. 555 (E.D. Tex. 1970).

9 Zapata, with regularity, emphasizes the fact that the depositions of the crew members of BREMEN, including the three German nationals riding aboard CHAPARRAL, have already been taken. It is true that the de bene esse depositions of these crew members have been taken by Zapata. It is not true that the depositions of these crew members have been taken by Unterweser, and most of these individuals will necessarily need to be deposed by Unterweser prior to trial. In addition, undeposed prospective witnesses reside in Germany, Italy and England.