cargo newsletter no65( n y175787. d o c;2)（货物通讯no65(n y175787。d o c;2)）.docVIP

MARITIME LAW ASSOCIATION OF THE UNITED STATES Committee on Carriage of Goods CARGO NEWSLETTER NO. 65 (SPRING 2015) Editor: Michael J. Ryan Associate Editors: Edward C. Radzik David L. Mazaroli FORUM CLAUSE SWEEPS SANDY CARGO TO TOKYO… A subrogated underwriter sued with respect to two shipments carried from China to New Jersey. The shipments were discharged two days before Hurricane Sandy struck New Jersey. (The two cases were two of fifteen consolidated for all purposes). The subrogated underwriter claimed the shipments were damaged by “wetness” and that the ocean carrier discharged the cargo two days before the hurricane. The subrogated underwriter claimed the ocean carrier knew of or should have known of the “well predicted and highly publicized impact” of the hurricane, including expected storm surges, rising water level, heavy wind, and rain. The subrogated underwriter also alleged breach of contract and obligations as a carrier for hire and/or bailee. The ocean carrier had issued waybills for the shipments, both of which incorporated the terms and conditions of its standard Combined Transport Bill of Lading. This contained a governing law and jurisdiction clause calling for jurisdiction in the Tokyo District Court in Japan and Japanese law “except as may be otherwise provided for herein.” The ocean carrier moved to dismiss both complaints arguing that the forum selection clause mandated that any claims against it be brought in Tokyo. The Court referred to the Supreme Court decision in Atlantic Marine Construction Co. v. United States District Court for the Western District of Texas, (134 S.Ct. 580), as setting forth the manner to enforce a forum selection clause should be way of motion to dismiss for forum non conveniens. It noted the Supreme Court left open the question of whether such a motion may alternatively be brought under Rule 12(b)(6), however, the Court went on to construe the motion under forum non conveniens principles se