The opinion of the court was delivered by: TENNEY
Claimants, as alleged owners of S.S. "RANBORG", (hereinafter referred to as "RANBORG") move herein for an order declining jurisdiction of this suit for cargo damage. The facts out of which this litigation arises are as follows:
Libelant, a New York corporation, was the consignee of a shipment of nails and barbed wire which was delivered to RANBORG in Antwerp, Belgium, for delivery to San Francisco, California. Each bill of lading states that the goods were in "apparent good order and condition." Libelant alleges that upon receipt in San Francisco, the cargo was rusted and depreciated in value. A libel in rem was filed against the vessel and claimants intervened as her sole owners.
In seeking an order of this Court declining jurisdiction, claimants rely on clause 3 of each bill of lading which provides:
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.
Libelant does not dispute that the carriers were the owners of the vessel and that said owners have their principal place of business in Norway. Accordingly, claimants seek to have libelants pursue their remedy in the Courts of Norway and allege that the same security posted in this suit in lieu of arrest of the vessel will be posted in Norway. Claimants further state that if libelants are relegated to suit in Norway they will not raise the one-year statute of limitations of The Carriage of Goods by Sea Act, 49 Stat. 1208-1212 (1936), 46 U.S.C. §§ 1303-1306 (1964), or the corresponding provision of the Hague Rules in force in Norway provided libelant commences suit in Norway within 60 days after the filing of an order of this Court declining jurisdiction.
Libelant claims that the jurisdiction clause should not be enforced because, inter alia, libelant is a New York corporation, proof of damages is available only in the United States, and New York is the most convenient forum since the ship is frequently within the waters of this state.
It is well settled in this Circuit that this Court in its discretion can enforce a jurisdiction clause such as is present here and relegate the suit to the jurisdiction agreed upon if libelant does not show that the clause is unreasonable. Wm. H. Muller & Co. v. Swedish Am. Line, Ltd., 224 F.2d 806, 56 A.L.R.2d 295 (2d Cir.), cert. denied, 350 U.S. 903, 76 S. Ct. 182, 100 L. Ed. 793 (1955); Hernandez v. Koninklijke Nederlandsche Stoomboot Maatschappij N.V., 252 F. Supp. 652 (S.D.N.Y.1965); Takemura & Co. v. The S.S. Tsuneshima Maru, 197 F. Supp. 909 (S.D.N.Y.1961); Murillo Ltda. v. The Bio Bio, 127 F. Supp. 13 (S.D.N.Y.), aff'd per curiam, 227 F.2d 519 (2d Cir. 1955). The effect of such a clause is not to oust this Court of jurisdiction. Indeed, the Court is exercising its jurisdiction by declining to entertain the suit. Wm. H. Muller & Co. v. Swedish Am. Line, Ltd., supra, 224 F.2d at 808; Cerro de Pasco Copper Corp. v. Knut Knutsen, O.A.S., 187 F.2d 990 (2d Cir. 1951).
In Muller, supra, libelant, a New York corporation was the consignee of a shipment of cocoa beans being transported from Sweden to Pittsburgh, Pa. The carrier was a Swedish corporation and the bill of lading provided that claims against the carrier arising under the bill shall be decided in Sweden according to Swedish law. The vessel was lost at sea and a libel was filed in this Court. This Circuit held that the Trial Judge did not abuse his discretion in declining jurisdiction. The factors relied upon by the Court were: (1) the vessel was Swedish built and owned; (2) all crew members resided in Sweden; (3) Swedish Courts applied the same measure of damages as United States Maritime Courts; and (4) libelant failed to allege that the Swedish Courts could not adjudicate the dispute fairly.
Comparing these factors to those of the case at bar, I observe:
(1) The vessel was Norwegian owned. Although RANBORG was built in Texas in 1943, this would have little bearing on the issue of seaworthiness in 1963.
(2) By claimants' uncontested affidavit, 26 of the 33 members of the crew at the time of the alleged damage resided in Norway, 5 resided in nearby Denmark, and the remaining two were residents of England and Belgium. It is true that, in this case, testimony of the crew as to seaworthiness is not as important as in Muller where the vessel sank. However, this factor cannot be discounted entirely, as libelant attempts to do, since evidence of cargo handling and operations aboard the vessel will still have to be introduced. See Aetna Ins. Co. v. The Satrustegui, 171 F. Supp. 33, 35 (D.P.R.), rev'd on rehearing on other grounds, 174 F. Supp. 934 (1959). Additionally, the effect of the bill of lading that the goods were received in "apparent good order and condition" is only to establish prima facie the external condition of the goods shipped, and testimony will be required from Antwerp to show that the goods were actually in good order and condition when received by RANBORG. The Niel Maersk, 91 F.2d 932 (2d Cir.), cert. denied, 302 U.S. 753, 58 S. Ct. 281, 82 L. Ed. 582 (1937); see Karabagui v. The Shickshinny, 123 F. Supp. 99 (S.D.N.Y.1954), aff'd sub nom. Kupfermann v. United States, 227 F.2d 348 (2d Cir. 1955) (per curiam). I therefore cannot accept libelant's contention that the majority of the witnesses are available in the United States. It is true that the witnesses testifying to the damage issue are for the most part to be found in California. But there is no showing that the witnesses testifying to liability are in the United States. In fact, it is not contested by libelant that few of RANBORG'S crew at the time of the shipment are presently sailing on that vessel. Accordingly, libelant's contention that the ship frequently visits New York has no bearing on this case.
(3) By the uncontested affidavit of a Norwegian attorney, it appears that the Norwegian Courts will apply the same measure ...