29 F.

3d 727
1994 A.M.C. 2513, 63 USLW 2060

VIMAR SEGUROS Y REASEGUROS, S.A., Plaintiffs,

Appellants,
v.
M/V SKY REEFER, Her Engines, etc., and M.H. Maritima,
S.A.,
Defendants, Appellees.
No. 93-2179.

United States Court of Appeals,

First Circuit.
Heard April 8, 1994.
Decided July 7, 1994.

Stanley McDermott, III with whom Sharyn Bernstein, Varet & Fink, P.C.,
Alexander Peltz, and Peltz Walker & Dubinsky, New York City, were on
brief, for appellants.
John J. Finn with whom Thomas H. Walsh, Jr., Jeffrey S. King, and
Bingham, Dana & Gould, Boston, MA, were on brief, for appellees.
Before BREYER* , Chief Judge, BOWNES, Senior Circuit Judge, and
STAHL, Circuit Judge.
BOWNES, Senior Circuit Judge.

I.

This appeal asks us to decide whether a foreign arbitration clause in a maritime

bill of lading governed by the Carriage of Goods by Sea Act, 46 U.S.C. Sec.
1300 et seq. (COGSA), is invalid under that statute, or whether such a clause is
enforceable under the Federal Arbitration Act, 9 U.S.C. Sec. 1 et seq. (FAA).
We conclude that the FAA controls, and that the arbitration clause is valid.
Accordingly, the order of the district court staying this action pending
arbitration in Tokyo is affirmed.

BACKGROUND
2

Plaintiff-appellant Bacchus Associates is a wholesale fruit distributor in the

Northeast United States. Bacchus was the owner of a shipment of oranges
travelling from Agadir, Morocco to New Bedford, Massachusetts, in February
1991 aboard the SKY REEFER,1 a vessel owned by M.H. Maritima, S.A.
Maritima had time-chartered the vessel to Honma Senpaku Co., Ltd., who in
turn time-chartered it to Nichiro Corp. Bacchus entered into a voyage charter
with Nichiro for the February 1991 voyage.

The oranges were shipped under a bill of lading issued in Morocco by Nichiro.
The bill of lading constitutes the contract of carriage between Bacchus and
Maritima. En route to New Bedford, numerous boxes of oranges were crushed.
Bacchus filed an action in the United States District Court for the District of
Massachusetts, in rem against the SKY REEFER, and in personam against
Maritima, seeking to recover approximately $1 million in damages.

Maritima moved to stay the action and compel arbitration in Tokyo pursuant to
a clause in the bill of lading:

Governing Law and Arbitration

5 The contract evidenced by or contained in this Bill of Lading shall be governed
(1)
by Japanese Law.
6 Any dispute arising from this Bill of Lading shall be referred to arbitration in
(2)
Tokyo by the Tokyo Maritime Arbitration Commission (TOMAC) at the Japan
Shipping Exchange, Inc., in accordance with the Rules of TOMAC and any
agreement thereto, and the award given by the arbitrators shall be final and binding
on both parties.
7

The district court held that the arbitration clause contained in subsection (2)
was enforceable, granted Maritima's motion for a stay pending arbitration, and
certified the following question for interlocutory appeal pursuant to 28 U.S.C.
Sec. 1292(b): "[W]hether 46 U.S.C. Sec. 1303(8) [Sec. 3(8) of COGSA]
nullifies an arbitration clause contained in a bill of lading governed by
COGSA." With this question in mind, we begin our journey through unsettled
statutory waters.

II.
DISCUSSION

COGSA was passed in 1936 as the American enactment of the Hague Rules,
and was part of an international effort to achieve uniformity and simplicity in
bills of lading used in foreign trade. Union Ins. Soc'y of Canton, Ltd. v. S.S.
Elikon, 642 F.2d 721, 723 (4th Cir.1981). COGSA was also intended to reduce
uncertainty concerning the responsibilities and liabilities of carriers,
responsibilities and rights of shippers, and liabilities of insurers. State
Establishment for Agric. Prod. Trading v. M/V Wesermunde, 838 F.2d 1576,
1580 (11th Cir.), cert. denied, 488 U.S. 916, 109 S.Ct. 273, 102 L.Ed.2d 262
(1988) ("Wesermunde"); S.S. Elikon, 642 F.2d at 723; see generally Grant
Gilmore & Charles L. Black, The Law of Admiralty Sec. 3-25 at 145 (2d ed.
1975).

COGSA applies to "[e]very bill of lading ... which is evidence of a contract for
the carriage of goods by sea to or from parts of the United States, in foreign
trade...." 46 U.S.C. Sec. 1300. The parties agree that the bill of lading at issue
here is covered by COGSA ex proprio vigore, in other words, as a matter of
law. The bill of lading also contains the following provision:

Local Law
10 case this Bill of Lading covers the Goods moving to or from the U.S.A. and it
In
shall be adjudged that the Japanese Law does not govern this Bill of Lading, then the
provisions of the U.S. Carriage of Goods at Sea Act 1936 shall govern before the
Goods are loaded on and after they are discharged from the vessel and throughout
the entire time during which the Goods are in the actual custody of the carrier.
11

Bacchus argues that the Tokyo arbitration clause is invalid under Sec. 3(8) of
COGSA which prohibits the "lessening" of the carrier's obligation as imposed
by COGSA's other sections.2

12

In Indussa Corp. v. S.S. Ranborg, 377 F.2d 200 (2d Cir.1967) (en banc), the
Second Circuit held that all foreign forum selection clauses in bills of lading
governed by COGSA are necessarily invalid under Sec. 3(8) because they tend
to lessen the carrier's liability. Id. at 204. The court reasoned as follows:

13 a practical standpoint, to require an American plaintiff to assert his claim only

From
in a distant court lessens the liability of the carrier quite substantially, particularly
when the claim is small. Such a clause puts "a high hurdle" in the way of enforcing
liability, and thus is an effective means for carriers to secure settlements lower than
if cargo [sic] could sue in a convenient forum.
14

Id. at 203.3 Moreover, "[a] clause making a claim triable only in a foreign court

would almost certainly lessen liability if the law which the court would apply
was not [COGSA]." Id. Furthermore,
15
[e]ven
when the foreign court would apply [COGSA], requiring trial abroad might
lessen the carrier's liability since there could be no assurance that it would apply
[COGSA] in the same way as would an American tribunal subject to the uniform
control of the Supreme Court.... We think that Congress meant to invalidate any
contractual provision in a bill of lading for a shipment to or from the United States
that would prevent cargo [sic] able to obtain jurisdiction over a carrier in an
American court from having that court entertain the suit and apply the substantive
rules Congress had prescribed.
16

Id. at 203-04 (emphasis in original) (citations omitted) (footnote omitted).

17

Since Indussa, Sec. 3(8) has been consistently used by federal courts to
invalidate forum selection clauses in bills of lading governed by COGSA. See,
e.g., Conklin & Garrett, Ltd. v. M/V Finnrose, 826 F.2d 1441, 1442-44 (5th
Cir.1987) (forum selection clause designating Finland invalid even where bill
of lading provided for application of COGSA in Finland); Union Soc'y of
Canton, Ltd., 642 F.2d at 723-25 (choice of forum clause requiring litigation in
Germany invalid under Sec. 3(8)); cf. Fireman's Fund Amer. Ins. Cos. v. Puerto
Rican Forwarding Co., 492 F.2d 1294 (1st Cir.1974) (distinguishing Indussa
and upholding New York City forum selection clause). Indussa has also been
approved by commentators. See Gilmore & Black, supra Sec. 3-25 at 145-46 n.
23; Schoenbaum, supra Sec. 9-18 at 327; Charles L. Black, The Bremen,
COGSA and the Problem of Conflicting Interpretation, 6 Vand.J.Trans.L. 365,
368-69 (1973). But see Note, Kenneth M. Klemm, Forum Selection in Maritime
Bills of Lading Under COGSA, 12 Fordham Int'l L.J. 459 (1989); Stephen M.
Denning, Choice of Forum Clauses in Bills of Lading, 2 J.Mar.L. & Com. 17
(Oct.1970).

18

While we need not fully explore the issue, we note that the Supreme Court's
recent decision in Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct.
1522, 113 L.Ed.2d 622 (1991), in which the Court held that the Limitation of
Vessel Owners' Liability Act did not invalidate forum selection agreements,
casts some doubt upon Indussa's continuing viability. See Fabrica De Tejidos
La Bellota S.A. v. M/V MAR, 799 F.Supp. 546, 560-61 (D.Virgin Islands
1992); see also Patrick J. Borchers, Forum Selection Agreements in the Federal
Courts After Carnival Cruise: A Proposal for Congressional Reform, 67
Wash.L.Rev. 55, 77 (1992) (Carnival Cruise, implicitly overruled Indussa and
its progeny). But see Underwriters at Lloyd's of London v. M/V Steir, 773
F.Supp. 523, 526-27 (D.P.R.1991) (invalidating forum selection clause under

Sec. 3(8) of COGSA, holding that Indussa survives Carnival Cruise ).

19

Moreover, in Fireman's Fund we questioned whether Indussa even survived the

Supreme Court's decision in The Bremen v. Zapata Off-Shore Co., 407 U.S. 1,
92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). In The Bremen, the Supreme Court
enforced a foreign forum selection clause in a maritime contract not covered by
COGSA. In doing so, the Court focused on whether the clause was
"unreasonable" under the circumstances. The Bremen, 407 U.S. at 10, 92 S.Ct.
at 1913. We remarked as follows:

20
Although
the Supreme Court has acknowledged the Indussa decision and has not
formally rejected it, see The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 n. 11,
92 S.Ct. 1907 [1913 n. 11], 32 L.Ed.2d 513 (1972), several passages in the Bremen
opinion cast some doubt on the underlying rationale of Indussa. See, e.g., 407 U.S.
at 9, 92 S.Ct. at 1912 ("The expansion of American business and industry will
hardly be encouraged if, notwithstanding solemn contracts, we insist on a parochial
concept that all disputes must be resolved under our laws and in our courts.")....
21

Fireman's Fund, 492 F.2d at 1296 n. 2. Because The Bremen is not a COGSA
case, however, it is easily distinguishable from Indussa and its progeny. See
S.S. Elikon, 642 F.2d at 724-25 (holding that The Bremen did not involve
COGSA and therefore did not disturb Indussa ).

22

Notwithstanding the arguably tremulous ground on which Indussa and its

progeny currently sit, we will assume, arguendo, that, for the reasons set forth
in Indussa, foreign forum selection clauses are invalid under Sec. 3(8) of
COGSA.

23

The other statute implicated in this case is the FAA. Section 2 of that act
provides:

24written provision in any maritime transaction ... to settle by arbitration a

A
controversy thereafter arising out of such contract ... shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity for the revocation of
any contract.
25

9 U.S.C. Sec. 2. "[B]ills of lading of water carriers" are explicitly included as

"maritime transactions" under the statute. 9 U.S.C. Sec. 1. Furthermore, the
FAA requires a federal district court, on the application of one of the parties, to
stay litigation and grant an order compelling arbitration of any issue referable
to arbitration under the agreement. Id. Secs. 3, 4.

26

Where there is an agreement to arbitrate, the FAA reflects a strong, wellestablished, and widely recognized federal policy in favor of arbitration.
Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 226, 107 S.Ct.
2332, 2337, 96 L.Ed.2d 185 (1987); Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., 473 U.S. 614, 625, 105 S.Ct. 3346, 3353, 87 L.Ed.2d 444
(1985); Securities Indus. Ass'n v. Connolly, 883 F.2d 1114, 1118-19 (1st
Cir.1989), cert. denied, 495 U.S. 956, 110 S.Ct. 2559, 109 L.Ed.2d 742 (1990).
Arbitration agreements are unenforceable under Sec. 2 of the FAA only where
the agreement would be revocable under state contract law. Southland Corp. v.
Keating, 465 U.S. 1, 11, 104 S.Ct. 852, 858, 79 L.Ed.2d 1 (1984) (party may
assert general contract defenses, such as fraud and duress, to avoid enforcement
of arbitration agreement); McAllister Bros., Inc. v. A & S Transp. Co., 621 F.2d
519, 524 (2d Cir.1980) (same).4

27

Although this court has never decided whether a foreign arbitration clause in a
bill of lading governed by COGSA is invalid under Sec. 3(8) of that statute,
courts that have reached the question are divided. A handful of courts,
including the Eleventh Circuit, have employed the reasoning articulated in
Indussa to invalidate foreign arbitration clauses. See, e.g., Wesermunde, 838
F.2d at 1580-82; M/J Khalij Frost, 1989 A.M.C. at 1462-66; Siderius v. M.V.
Ida Prima, 613 F.Supp. 916, 920-21 (S.D.N.Y.1985); Star Shipping A/S, 464
F.Supp. at 1314-15; see also Gilmore & Black, supra, Sec. 3-25 at 146 n. 23;
Schoenbaum, supra Sec. 9-19 at 329.

28

In Wesermunde, the Eleventh Circuit declined to enforce a foreign arbitration

agreement contained in a bill of lading governed by COGSA. Relying on
Indussa, the court explained as follows:

29
While
we do not believe that arbitration in and of itself is per se violative of
COGSA's provisions, especially in light of Congress' encouragement of arbitration
by its enactment of the Arbitration Act, 9 U.S.C. Secs. 1-14 (1970) the court does
believe that a provision requiring arbitration in a foreign country that has no
connection with either the performance of the bill of lading contract or the making of
the bill of lading contract is a provision that would conflict with COGSA's general
purpose of not allowing carriers to lessen their risk of liability.
30

Wesermunde, 838 F.2d at 1581 (footnote omitted). Some courts have gone one
step further, holding that foreign arbitration clauses in bills of lading are per se
invalid under COGSA because "[t]he considerations [stated in Indussa ] are
substantially similar where the bill of lading requires the consignee to arbitrate
in a foreign country." Siderius, 613 F.Supp. at 920; accord Khalij Frost, 1989
A.M.C. at 1462 (Indussa rationale "appl[ies] with equal force in the case of a

foreign arbitration clause in a bill of lading").

31

On the other side of the coin, numerous federal courts have upheld foreign
arbitration clauses in bills of lading subject to COGSA. See, e.g., Nissho Iwai
Amer. Corp. v. M/V Sea Bridge, 1991 A.M.C. 2070, 1991 WL 182117
(D.Md.1991); Citrus Mktg. Bd. v. M/V Ecuadorian Reefer, 754 F.Supp. 229
(D.Mass.1990); Travelers Indem., Co. v. M/V Mediterranean Star, 1988
A.M.C. 2483, 1988 WL 78363 (S.D.N.Y.1988); Mid South Feeds, Inc. v. M/V
Aqua Marine, 1988 A.M.C. 437 (S.D.Ga.1986); Midland Tar Distillers, Inc. v.
M/T Lotos, 362 F.Supp. 1311, 1315 (S.D.N.Y.1973); Mitsubishi Shoji Kaisha
Ltd. v. MS Galini, 323 F.Supp. 79, 83-84 (S.D.Tex.1971); Kurt Orban Co. v.
S/S Clymenia, 318 F.Supp. 1387, 1390 (S.D.N.Y.1970).

32

We join those courts upholding the validity of foreign arbitration clauses in

bills of lading subject to COGSA. In reaching this result, we are guided by our
belief that the FAA alone governs the validity of arbitration clauses, both
foreign and domestic, and consequently removes them from the grasp of
COGSA.5

33

We begin with two canons of statutory interpretation. First, a later enacted

statute generally limits the scope of an earlier statute if the two laws conflict.
Davis v. United States, 716 F.2d 418, 428 (7th Cir.1983); Tennessee Gas
Pipeline Co. v. Federal Energy Regulatory Comm'n, 626 F.2d 1020, 1022
(D.C.Cir.1980); Indussa, 377 F.2d at 204 n. 4;6 see generally 2B Norman J.
Singer, Sutherland Statutory Construction Sec. 51.03 at 141 (5th ed. 1992).
Second, where two statutes conflict, regardless of the priority of enactment, the
specific statute ordinarily controls the general. See Watson v. Fraternal Order
of Eagles, 915 F.2d 235, 240 (6th Cir.1990); see generally 2B Sutherland
Statutory Construction, Sec. 51.05 at 174.

34

With respect to the former canon, the FAA must be given priority over COGSA
in light of the FAA's reenactment in 1947, eleven years after COGSA was
passed. Similarly, the latter canon suggests that the FAA be given effect.
Section 3(8) of COGSA, which voids any clause in a bill of lading that
"lessens" the carrier's liability, makes no reference to arbitration, or for that
matter, forum selection clauses.7 Conversely, the FAA specifically validates
arbitration clauses contained in maritime bills of lading. See 9 U.S.C. Secs. 1,
2.

35

Next, and perhaps of paramount importance, we believe that the strong federal
policy favoring arbitration supports the primacy of the FAA over COGSA

where arbitration agreements are concerned. See Ecuadorian Reefer, 754

F.Supp. at 233-34. The existence of this policy distinguishes the present case
from foreign choice-of-forum cases because in those cases "there was no
compelling congressional mandate in favor of giving effect to agreements to
litigate before foreign tribunals." MS Galini, 323 F.Supp. at 83.
36

Furthermore, American courts' mistrust of foreign courts, a driving force in the

Indussa court's decision to invalidate foreign choice-of-forum clauses, is an
inappropriate consideration in the context of arbitration. See Mitsubishi Motors,
473 U.S. at 626-27, 105 S.Ct. at 3354 (We are "well past the time when judicial
suspicion of ... arbitration and of the competence of arbitral tribunals inhibited
the development of arbitration as an alternative means of dispute resolution.");
Connolly, 883 F.2d at 1119 ("[C]ourts must be on guard for artifices in which
the ancient suspicion of arbitration might reappear."). Finally, unlike a foreign
forum selection clause, an agreement to arbitrate does not deprive a federal
court of its jurisdiction over the underlying dispute. S/S Clymenia, 318 F.Supp.
at 1390; MS Galini, 323 F.Supp. at 83.

37

For the foregoing reasons, the order of the district court is Affirmed.

Chief Judge Stephen Breyer heard oral argument in this matter but did not
participate in the drafting or the issuance of the panel's opinion. The remaining
two panelists therefore issue this opinion pursuant to 28 U.S.C. Sec. 46(d)

The subrogated underwriter of the oranges, Vimar Seguros Y Reaseguros, is

also a plaintiff-appellant in this action. Hereafter, references to Bacchus include
Vimar where applicable

This provision provides as follows:

Any clause, covenant or agreement in a contract of carriage relieving the carrier
or the ship from liability for loss or damage to or in connection with the goods,
arising from negligence, fault, or failure in the duties or obligations provided in
this section, or lessening such liability otherwise than as provided in this Act,
shall be null and void and of no effect.
46 U.S.C. Sec. 1303(8).

The court also concluded that COGSA, wherever it governs a bill of lading,
requires application of American law. Indussa, 377 F.2d at 203; see generally
Thomas J. Schoenbaum, Admiralty & Maritime Law Sec. 9-18 at 326-27 (Pra.

ed. 1987). Bacchus contends that the Japanese choice-of-law clause in its bill of
lading, in addition to the arbitration clause, is null and void under Sec. 3(8) of
COGSA, and, alternatively, that the "Local Law" clause in the bill of lading
requires that COGSA, and not Japanese law, governs, because COGSA applies
ex proprio vigore. Although both of these arguments appear to be substantial,
only the validity of the arbitration clause is at issue on this interlocutory appeal.
In light of our holding, the choice-of-law question must be decided, in the first
instance, by an arbitrator
4

Bacchus argued below that the bill of lading was a contract of adhesion, and
that the arbitration clause was therefore unenforceable. This defense was
rejected by the district court, and that ruling is not before us on the present
appeal. We recognize, however, that maritime bills of lading have been viewed
as contracts of adhesion. See, e.g., Organes Enters., Inc. v. M/J Khalij Frost,
1989 A.M.C. 1460, 1465-66, 1989 WL 37660 (S.D.N.Y.1989); Pacific Lumber
& Shipping Co. v. Star Shipping A/S, 464 F.Supp. 1314, 1315
(W.D.Wash.1979). Accordingly, if the adhesion issue had been a subject of this
interlocutory appeal, it would warrant close scrutiny

We recognize, however, that absent the FAA, COGSA might operate to nullify
foreign arbitration clauses in bills of lading

Footnote four of Indussa states:

Our ruling does not touch the question of arbitration clauses in bills of lading
which require this to be held abroad. The validity of such a clause in a charter
party, or in a bill of lading effectively incorporating such a clause in a charter
party, have been frequently sustained. Although the Federal Arbitration Act
adopted in 1925 validated a written arbitration provision "in any maritime
transaction," Sec. 2, and defined that phrase to include "bills of lading of water
carriers," Sec. 1. COGSA, enacted in 1936, made no reference to that form of
procedure. If there be any inconsistency between the two acts, presumably the
Arbitration Act would prevail by virtue of its reenactment as positive law in
1947.
Indussa, 377 F.2d at 204 n. 4 (citations omitted) (emphasis added). Although a
later Second Circuit opinion sought to narrow the scope of this dictum, see
Aaacon Auto Transp., Inc. v. State Farm Mut. Auto Ins. Co., 537 F.2d 648, 655
(2d Cir.1976) (explaining that footnote four of Indussa was concerned
"primarily ... upon those commercial situations in which the economic strength
and bargaining power of the parties is roughly equal"), courts have continued to
rely on footnote four in enforcing foreign arbitration clauses in bills of lading
governed by COGSA. See Fakieh Poultry Farms v. M/V Mulheim, No. 85 Civ.

26577, slip op. at 2, 1986 WL 12534 (S.D.N.Y. Oct. 24, 1986); M/V
Mediterranean Star, 1988 A.M.C. at 2484-85; see also Kaystone Chem., Inc. v.
Bow-Sun, 1989 A.M.C. 2976, 2981-82, 1989 WL 39498 (S.D.N.Y.1989)
(stating that Indussa footnote "probably" requires enforcement of foreign
arbitration clause in COGSA bill of lading). But see Siderius, 613 F.Supp. at
920-21 (holding Aaacon substantially undercuts scope of the Indussa footnote);
Khalij Frost, 1989 A.M.C. at 1463-64 (same). While we agree with the rule of
statutory construction expressed in the footnote, we take no position on the
effect of Aaacon on that note.
7

In fact, up until Indussa, the Second Circuit regularly enforced foreign forum
selection clauses in bills of lading governed by COGSA. See, e.g., William H.
Muller & Co. v. Swedish Amer. Line Ltd., 224 F.2d 806 (2d Cir.), cert. denied,
350 U.S. 903, 76 S.Ct. 182, 100 L.Ed. 793 (1955); Cerro De Pasco Copper
Corp. v. Knut Knutsen, O.A.S., 187 F.2d 990 (2d Cir.1951)