The opinion of the court was delivered by: GEORGE DANIELS, District Judge
Plaintiff Stemcor USA, Inc. ("Stemcor") sues defendants Hyundai
Merchant Marine Co., Ltd. ("Hyundai"), Stevedores, Inc.
("Stevedores"), and Reserve Marine Terminals, Inc. ("Reserve")
for damages arising from alleged mishandling of cargo shipped
aboard the vessel M/V Dimitra ("Dimitra").*fn1 Hyundai moves
to dismiss the complaint based on the forum selection clause
contained in the carriage contract between Stemcor and Hyundai.
Stevedores and Reserve move to dismiss the complaint for lack of
personal jurisdiction. For the reasons set forth below,
defendants' motions are granted.
On June 20, 1998, Stemcor, a Delaware corporation, shipped
aboard the Dimitra approximately 13,094 metric tons of hot rolled
steel plates from Kemaman, Malaysia to New Orleans. (Am. Compl. ¶
9) The Dimitra was owned, chartered, and operated by Hyundai.
(Id. ¶ 7) Stemcor was the consignee or owner of this shipment
of steel plates (Id. ¶ 11), which were in good order and
condition before shipment from Malaysia. (Id. ¶ 10) They were
shipped pursuant to Hyundai's bills of lading. (Ex. 1 to
Affidavit of Elizabeth Smith ("Smith Aff.")) Once the cargo reached New Orleans on September 7, 1998, it was discharged by
Stevedores, a Louisiana provider of cargo loading services for
vessels in the Port of New Orleans. (Am. Compl. ¶¶ 10, 14) A
portion of the cargo was then loaded by Stevedores on barges for
shipment to the Chicago warehouse of Reserve, an Ohio provider of
cargo loading and storage services. (Id. ¶¶ 15, 22) The cargo
arrived "seriously contaminated, damaged, impaired in value, and
short in quantity." (Id. ¶ 10) Stemcor commenced this action
for $30,000 in damages against Hyundai and the Dimitra in rem on
August 25, 1999. On January 5, 2000, Stemcor amended the
complaint to include Stevedores and Reserve as defendants.
This court has subject matter jurisdiction pursuant to
28 U.S.C. § 1333 (maritime and admiralty jurisdiction). On a motion
to dismiss for lack of personal jurisdiction, see Fed.R. Civ.
P. 12(b) (2), "the plaintiff bears the burden of showing that the
court has jurisdiction over the defendants." Metro. Life Ins.
Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996).
At the motion to dismiss stage, "all allegations are construed in
the light most favorable to the plaintiff and doubts are resolved
in the plaintiff's favor. . . ." A.I. Trade Fin. Inc. v. Petra
Bank, 989 F.2d 76, 79-80 (2d Cir. 1993). III.
Each of Hyundai's bills of lading contain the following clause:
25. Governing Law and Jurisdiction The claims arising
from or in connection with or relating to this Bill
of Lading shall be exclusively governed by the law of
Korea except otherwise provided in this Bill of
Lading. Any and all action concerning custody or
carriage under this Bill of Lading whether based on
breach of contract, tort or otherwise shall be
brought before the Seoul Civil District Court in
(Ex. 2 to Smith Aff.) Stemcor does not dispute that these bills
are the contracts of carriage for the shipments at issue. Hyundai
moves to dismiss, contending that this clause requires Stemcor to
bring the instant action in Korea.
Stemcor argues first that the clause is "unreasonable" in "that
trial in the contractual forum will be so gravely difficult and
inconvenient that he will for all practical purposes be deprived
of his day in court." New Moon Shipping Co., Ltd. v. Man B&W
Diesel AG, 121 F.3d 24, 33 (2d Cir. 1997) (quoting M/S Bremen
v. Zapata Off-Shore Co., 407 U.S. 1, 18 (1972)). Foreign forum
selection clauses are presumptively valid and "should be enforced
unless enforcement is shown by the resisting party to be
`unreasonable' under the circumstances." Bremen,
407 U.S. at 10. In order to overcome this presumption of enforceability, a
party which seeks to bring a suit in a forum other than the one designated by the forum selection clause must
prove that: (1) the forum selection clause is invalid for fraud
or overreaching; (2) the forum selection clause will deprive
plaintiff of its day in court due to grave inconvenience or
unfairness of the selected forum; (3) the fundamental unfairness
of the chosen law will deprive plaintiff of a remedy; or (4)
enforcement would contravene a strong public policy of the forum
in which the action was brought. See Bremen,
407 U.S. at 15-17.
At this stage, Stemcor must allege facts to support a prima
facie showing that the clause is unreasonable under the "heav"
standard of Bremen. New Moon, 121 F.3d at 28-29. However,
Stemcor has made no allegation beyond reciting the grounds for
"unreasonableness" set forth by the Supreme Court in Bremen.
Nor does Stemcor present any disputed factual issues regarding
the difficulty of litigating in a Korean court or any of the
other factors in Bremen. New Moon, 121 F.3d at 29 ("A
disputed fact may be resolved in a manner adverse to the
plaintiff only after an evidentiary hearing."). Hence, Stemcor
fails to make a prima facie showing that the forum selection
clause in Hyundai's bills of lading is "unreasonable" or
In what appears to be a separate argument, Stemcor contends
also that under the clause, it loses the protection of Section
3(8) of the Carriage of Goods by Sea Act ("COGSA"), which governs the liability of shippers and carriers:
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 and obligations provided in this
section, or lessening such liability shall be null
and void and of no effect.
46 U.S.C. App. § 1303(8).
In Vimar Seguros v. Reaseguros, S.A. v. M/V Sky Reefer,
515 U.S. 528 (1995), the Supreme Court held that a foreign
arbitration clause in a bill of lading was enforceable and was
not prohibited by Section 3(8) of COGSA. Noting that COGSA
protects the fact and extent of liability, not the means and
costs of enforcing that liability, the Court concluded that
"nothing suggests that [Section 3(8) of COGSA] prevents the
parties from agreeing to enforce these obligations in a
particular forum. . . . By its terms, [Section 3(8)] establishes
certain duties and obligations, separate and apart from the
mechanisms for their enforcement."). Id. at 535. Put another
way, "procedural impediments that make a plaintiff's recovery in
a foreign forum more difficult to achieve do not constitute the
`lessening [of] liability' sufficient under Section 3(8) to
invalidate a choice of law or choice of forum clause." Int'l
Marine Underwriters v. M/V Kasif Kalkavan, 989 F. Supp. 498,
499 (S.D.N.Y. 1998) (quoting Sky Reefer, 515 U.S. at 534).
Courts have applied Sky Reefer to foreign forum selection clauses as well. See, e.g., Kalkavan,
989 F. Supp. at 499 (Sky Reefer "also applies to the enforceability of
foreign forum selection clauses because the Supreme Court stated
`[w]e cannot endorse the reasoning or the conclusion of the [rule
in Indussa Corp. v. S.S. Ranborg, 377 F.2d 200 (2d Cir.
1967),' which holds] that [a] foreign forum selection clause in
[a] bill of lading violates § 1303(8) of COGSA"); Hyundai Corp.
U.S.A. v. M/V An Long Jiang, No. 97-3855, 1998 WL 13835, at *1
(S.D.N.Y. Jan. 13, 1998); TradeArbed, Inc. v. M/V Agia Sofia,
No. 96-4930, 1997 WL 769525 Pasztory v. Croatia Line,
918 F. Supp. 961, 966 (E.D. Va. 1996).
Notwithstanding this precedent, Stemcor contends that the
extension of Sky Reefer to foreign forum selection clauses
would cause Stemcor to "lose its COGSA section 3(8) protection
against Hyundai" by "lessening [Hyundai's] liability." (Id. at
7) Stemcor claims that it "would have no ...