Respondent, a Delaware corporation, brought a libel in admiralty
in a Federal District Court in Texas for damage to a shipment of
goods during an ocean voyage from Houston and New Orleans to
various Italian ports. The libel was in rem
ship, then in the port of Houston on another voyage, and in
against its owner, an Italian corporation. After
requiring a bond to secure whatever judgment might finally be
rendered, the District Court declined jurisdiction on the ground
that the parties had agreed by a provision in the bill of lading
that controversies regarding cargo damage should be settled only in
the courts of Genoa, Italy. The Court of Appeals reversed, finding
the provision in the bill of lading inapplicable to libels in
and declining to enforce its terms as to the libel in
1. The bill of lading provision cannot be construed to include
libels in rem,
and, accordingly, the libel in rem
was properly maintainable. Pp. 359 U. S.
2. This case does not afford an appropriate instance to pass
upon the extent to which effect can be given to such stipulations
in ocean bills of lading not to resort to the courts of this
country, and the writ of certiorari is dismissed as improvidently
granted. Pp. 359 U.S.
254 F.2d 297, writ of certiorari dismissed.
Page 359 U. S. 181
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The respondent, Carbon Black Export, Inc., a Delaware
corporation, brought a libel in admiralty in the District Court for
the Southern District of Texas for damage sustained to a shipment
of carbon black during an ocean voyage from Houston and New Orleans
to various Italian ports. The libel was one in rem
the vessel in question, the S.S. Monrosa,
then in the port
of Houston on another voyage, and in personam
Monrosa's owner, Navigazione Alta Italia, an Italian corporation.
The latter filed an appearance in response to the libel in
and, as owner of the vessel, filed a claim to it,
and prayed to defend the libel in rem.
In respect to the
libel in rem,
a stipulation to abide the decree, in the
penal sum of $100,000, was filed by the claimant and the National
Surety Company, its surety, and approved by the present respondent.
Navigazione Alta Italia then moved that the District Court decline
jurisdiction over the cause on the grounds that the parties had
agreed, by a provision in the bills of lading covering the
shipment, that controversies in regard to cargo damage should be
settled only in the courts of Genoa, Italy. The District Court
granted the motion, subject to the filing of a bond by Navigazione
Alta Italia in the sum of $100,000 to respond to whatever judgment
might finally be rendered on the cause of action in question. The
Court of Appeals for the Fifth Circuit reversed. It found the
provision in the bill of lading in terms inapplicable to suits
and it declined to enforce its terms to require a
dismissal of the libel in personam.
254 F.2d 297. We
granted certiorari, 358 U.S. 809, because of an indicated conflict
in principle between the Fifth Circuit's views as to enforceability
of such provisions and those taken by the Second Circuit, primarily
in William H. Muller & Co. v. Swedish American Line Ltd., 224
Page 359 U. S. 182
We do not believe that this case affords us an appropriate
instance to pass upon the extent to which effect can be given to
such stipulations in ocean bills of lading not to resort to the
courts of this country. The provision in this case was one of many
printed provisions in a form bill of lading prepared by the carrier
and presented by it for use in shipments on its vessel. It
"27. -- ALSO, that no legal proceedings may be brought against
the Captain or Shipowners or their Agents in respect to any loss of
or damage to any goods herein specified except in Genoa, it being
understood and agreed that every other Tribunal in the place or
places where the goods were shipped or landed is incompetent, not
withstanding that the ship may be legally represented there."
We find ourselves in agreement with the views of the Court of
Appeals below that this clause should not be read as limiting the
maintenance of an action in rem, cf. 76 U.
9 Wall. 435, 76 U. S.
-450, against the vessel to enforce a maritime lien
for proper carriage. The initial words are particularly appropriate
to a restriction of the clause to in personam
the rest of the language is intelligible on this premise.
Page 359 U. S. 183
with the familiar rule in such circumstances, we will not
stretch the language when the party drafting such a form contract
has not included a provision it easily might have. The
Caledonia, 157 U. S. 124
157 U. S. 137
The Majestic, 166 U. S. 375
166 U. S. 386
Compania de Navigacion La Flecha v. Brauer, 168 U.
, 168 U. S. 118
Considerations involved in construing exemptions from carriers'
liability provided by Acts of Congress are, we think, quite
different. See Consumers Import Co. v. Kabushiki Kaisha
Kawasaki Zosenjo, 320 U. S. 249
is a form contract, not a statute, that we construe here.
Accordingly, after oral argument, we have concluded that the
Court of Appeals was correct in holding that the libel in
was properly maintainable. Both parties approved a secured
stipulation to release the vessel from seizure under the libel, in
an amount substantially the same as the recovery demanded by the
libellant. This same amount the District Court denominated as
proper security against a recovery elsewhere. We need not conjure
up doubts in this regard that the parties never expressed. While
the parties were entitled to have the judgments of the courts below
as to whether the libel in personam
was also maintainable,
we do not believe it a proper exercise of our discretionary
jurisdiction to pass on that aspect of the case, which alone
presents the question which led us to grant certiorari. It appears
that, in any event, the respondent will be able to try its claim in
the District Court.
In the light of these circumstances, which "were not . . . fully
apprehended at the time certiorari was granted," Ferguson v.
Moore-McCormack Lines, Inc., 352 U. S. 521
352 U. S. 559
(separate opinion), the writ of certiorari will be dismissed as
improvidently granted. Rice v. Sioux City Memorial Park
Cemetery, Inc., 349 U. S. 70
349 U. S. 75
Goins v. United States,
306 U.S. 622; Moore v. Texas
& New Orleans R. Co., 297 U. S. 101
Southern Power Co.
Page 359 U. S. 184
v. North Carolina Public Service Co., 263 U.
. Cf. Hammerstein v. Superior Court of
California, 341 U. S. 491
492; McCarthy v. Bruner,
323 U.S. 673; Layne &
Bowler Corp. v. Western Well Works, Inc., 261 U.
, 261 U. S.
-393; Tyrrell v. District of Columbia,
243 U. S. 1
Examination of a case on the merits, on oral argument, may bring
into "proper focus" a consideration which, though present in the
record at the time of granting the writ, only later indicates that
the grant was improvident. See Rice v. Sioux City Memorial Park
Cemetery, Inc., supra,
349 U.S. at 349 U. S. 73
While this Court decides questions of public importance, it decides
them in the context of meaningful litigation. Its function in
resolving conflicts among the Courts of Appeals is judicial, not
simply administrative or managerial. Resolution here of the extent
to which these bill of lading provisions may be given effect by our
courts can await a day when the issue is posed less abstractly.
Writ of certiorari dismissed.
* We note that, in another place, the bill of lading makes
specific recognition of suits both in rem
Clause 35 provides:
"35. -- In any event, the Carrier and the ship shall be
discharged from all liability in respect of loss or damage unless
suit is brought within one year after the delivery of the goods or
the date when the goods should have been delivered. Suit shall not
be deemed brought until jurisdiction shall have been obtained over
the Carrier and/or the ship by service of process or by an
agreement to appear."
While the first sentence is verbatim from § 3(6) of the Carriage
of Goods by Sea Act, 49 Stat. 1209, 46 U.S.C. § 1303(6), the
language nevertheless reinforces the fact that, if both categories
of suit were to be included under Clause 27, apt words to
accomplish this were readily available, and were in fact used in
another clause of the bill.
MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER, MR. JUSTICE
WHITTAKER, and MR. JUSTICE STEWART join, dissenting.
I cannot agree with the Court's view that Clause 27 of the bill
of lading, fixing Genoa, Italy, as the forum for legal proceedings
in respect of loss or damage to the goods shipped, applies only to
actions in personam,
and not to actions in rem.
The Court's reading of the clause imputes to the parties the
drawing of a distinction the purpose of which is impossible to
grasp. As this Court said in Consumers Import Co. v. Kabushiki
Kaisha Kawasaki Zosenjo, 320 U. S. 249
320 U. S. 253
in referring to an earlier case,
"The Court said that 'To say that an owner is not liable, but
that his vessel is liable, seems to us like talking in riddles.'
The riddle, after more than half a century,
Page 359 U. S. 185
repeated to us in different context, does not appear to us to
have improved with age."
Apart from this, however, I see no justification for our not
reaching the question of the validity of Clause 27 with respect to
actions, an issue which still remains in the
case even on the Court's view that the clause does not embrace
proceedings. That question, of course, presents no
constitutional issue which we should strive to avoid, but is only
one of ordinary commercial admiralty law. It is the only question
which led us to take this case for review. And the issue has been
fully briefed and argued by the parties. To be sure, it is possible
that this question is not of great importance to the litigants if
the in rem
action can, in any case, go forward in Texas.
But the very fact that respondent chose to institute and continue
actions both in personam
and in rem
shows that it
was not content to rely solely on the vessel's surety, and cautions
against our now gratuitously treating the in personam
action as purely academic. Moreover, review by certiorari, as Chief
Justice Hughes once put it, is "in the interest of the law, its
appropriate exposition and enforcement, not in the mere interest of
Furthermore, I do not think this can be called a case where the
circumstances presently confronting us "were not manifest or fully
apprehended at the time certiorari was granted." See Ferguson
v. Moore-McCormack Lines, Inc., 352 U.
, 352 U. S. 559
(separate opinion). The question of the construction of the clause,
and that of its validity, were both fully discussed by the parties
in their certiorari papers. Indeed, it was apparent on the surface
of things that we might find ourselves in the very position we now
are, since the Court of Appeals had itself found Clause 27
inapplicable to in rem
proceedings and had then gone
Page 359 U. S. 186
to consider the validity of the clause as related to in
Avoidance of decision now on a question which is obviously bound
to recur seems to me to be both unsatisfactory and unsound judicial
administration. The course which the Court has taken serves only to
leave the lower federal courts in confusion and uncertainty, and to
make it necessary for us to mortgage our future and constantly
mounting calendars with a question which we could and should decide
today. As the Court has not spoken on that question, it would be
inappropriate for me to express my own view upon it.
* S.Rep. No. 711, 75th Cong., 1st Sess., p. 39.