(District Court, S. D. New York. April 5, 1890.)
MARINE INSURAN<JE-POLICy-STIPULATION FOR JURISDI<JTION.
A stipulation, in a marine insurance policy issued in a foreign country, providing that suit on the policy shall only be prosecuted in a specified foreign court, is in·· valid. Where a policy of marine insurance was issued in a foreign country, but to American citizens, through brokers belonging here, on freight of a vessel of the United States, and in respect to a voyage between South American ports, held, that no equitable reasons existed for a court of admiralty of this country to decline jurisdiction of a suit on the policy, though the policy provided that sucb suit should be brought only in a certain court in the country where the policy was issued. .
In Admiralty. On motion to dismiss the libel. Carpenter &:Mosher, for respondent. Wing, Shoudy &: Putnam, for libelants.
BROWN, J. The respondents are a corporation organized and doing fire and marine insurance business' at Toronto, Canada, and having a branch officein New York for tire insurance only. In November, 1887, the company executed at Toronto a marine policy on. freight, per bark Aquidneck, belonging to the libelant Slocum, a citizen of Massachusetts, upon the application of Gallaher, Currey & Whitney, insurance brokers of New York, in the sum of $1,000, insuring Simpson & Shaw on aC}-count of whom it might concern, in case of loss, to be paid to their The company had conformed to the requirements of the statutes of the state of New York as respects the transaction of fire insurance business. within this state, but not as respects marine instlrance, and it had filed acertificljlte providing for the service of papers upon its agents this state as required by stll,tute. The present policy was issued at Taronto. A total loss having arisen,. the above libel was filed by Simpson & Shaw, residents of this state, andhy Slocum, a resident of Boston. , The policy contains the following clause: .. And if the 'assured proceed at law or equity, by suit or action, to recover the whule or any part of the sum assured oy this policy, such suit or action shall brought and prosecuted in her majesty's court in the city of Toronto, and nut elsewhere, within twelve months -from the date of such loss or damage, under the pt'nalty of forfeiture of all benefit of this insurance. and of the same becoming thereby wholly void." Process was served upon the agent specifiedin the certificate. The respondents move to dismiss the libel upon the ground that this court, if not without jurisdiction of the cause, should, as a matter of discretion, decline to entertain it in the face ofthe above-quoted stipulation in the policy. The authorities, I think, sustain the general doctrine, that a stipulation inserted in a contract limiting. the remedy for a breach of the contract to a particular forum is not a valid stipulation. Several cases have held that slich a stipulation, distinguishing between the different courts of the
lReported by Edward G. Benedict, Esq., of the New York bar.
FEDERAL REPORTER,. yo1.
same country or state, will not be recognized or regarded as valid there. I do not see why any greater effect should be given to it abroad, or as between the courts of the country of the contract, and any appropriate foreign tribunal. Steam-Shipping Co. v. Lehman, 39 Fed. Rep. 704; Scott v. Avery, 5 H. L. Cas. 811; Nute v. Insurance Co., 6 Gray, 174; Amesburyv. Insurance Co., Id. 596; Nevins v. Insurance Co., 25 N. H. 22; Bartlett v. Insurance Co., 46 Me. 500; Insurance Co. v. Rou¥edge, 7 Ind. 25; Reichard v. Insurance Co., 31 Mo. 518. The clause in question furnishes, therefore, no legal defense to the action. A court of admiralty may, doubtless, in its discretion, decline to entertain jurisdiction in maritimp. causes arising abroad, where none of the parties are resident here. Suits for the wages of foreign seamen, involving detention of the ship, and brought here without justifiable reason, are declined. But, where the controversies are communiB juris, special reasons should appp.ar for declining jurisdiction. The Belgenland, 114 U. S. 355, 365, 5 Sup. Ct. Rep. 860; Davis v. Leslie, Abb. Adm. 123; The Infanta, Id. 263; Thomassen v. Whitwell, 9 Ben. 113; The Carolina, 14 Fed. Rep. 424; The Noddleburn, 30 Fed. Rep. 142. The libelants are all citizens of this country; two of them reside in this state/and one in this district. No special circumstances are shown, as respects the particular matter in litigation or the convenience of witnesses, why the determination of the libelants' rights should be had in Toronto, rather than in New York. Though the policy was formally and technically issued at Toronto, the whole business was with citizens oithe United States, through brokers belonging here, upon freight on a vessel of the United States, and in respect to a voyage between South American ports. These circumstances do not present, so far as I perceive, any equitable grounds for refusing, as a matter of discretion, to entertain a suit brought lawfully here to enforce an apparently lawful de.' mand.. On the contrary, this country. where the libelants reside, and where the business was in effect procured, and its profits realized, seems to me to be the more appropriate forum. No case is cited in which, under such circumstances, jurisdiction has been declined. In the recent case of Ex parte Underwriters, 134 U. S. - , 10 Sup. Ct. Rep. 587, Mr. Justice GRAY observed: ." In /Ill nations,. as observed by an early writer, such courts [admiralty] '.ha\'e t9 proceed at such times, and in Buch manner, as might best consist with the opportunities of trade, and least hinder or dt!tain mer; from thp,ir employments.' Zouch, Adm. 141. ... ... ... 'ro compel suitors in admiralty'" .... ... to resort to the home of the defendant, and to prevent them frolnSuing him in any district in which he might be served with a summons othis goods or credits attach-ed, would not only often put them to great delay, incqn venience. and expense, butl would in many cases amount to a denial of I would not intimate that to remit the libelants to a suit in Toronto would'in:· this case be a denial of justice; but an invalid stipulation is 1'eason for refusing jurisdiction of a cause which seems most appropriately to be brought here. Motion denied.
(Circuit Goort, S. D. Florida. March 26, 1800.) 1.
The master of a steam-boat, who was also manager of the company owning it, brought suit for the engineer's wages, in his absence, kno.wingl Y claiming less than was due, and wrote the engineer that he could afterwards sue for the remainder. The latter never admitted that the claim was for the full amount, except by ratifying the suit. Held no waiver of his claim for the balance.
. The fact that, as a libelant, he stood by at a sheriff's sale of the boat without giving notice of his additional claim, does not discharge his lien therefor, when it appears that some stockholdeN of the original company were interested as purchasers, and the master as their agent bought in the vessel. 3. Sum. The engineer, having removed to a different port, libeled the vessel on her first appearv.nce there. Held that, although a year had elapsed, he had not lost his lien where the delv.y caused no change for the worse to claimants.
In Admiralty. On appeal from district court. W. D.McKinstry, for libelant. W. E. Richard8on, for claimant.
40 Fed. Rep.
PARDEE,. J. In March, 1887, the steam-boat Lillie, owned by the Montgomery & Prattville Daily Line, was navigating the waters of the Alabama and Coosa rivers. March 5th the libelant was employed on said steam-boat as engineer, and continued in such employment until December, 1887, when the buat was seized under an execution issued in favor of A. A. Janney & Co., on a judgment said firm had obtained against the Montgomery & Prattville Daily Line in the circuit court of Montgomery county, Ala. During his employment he was paid various sums on account, but at the time of said seizure there was a conceded balance due him as wages. On the 23d of November, 1887, a suit was instituted in favor of libelant against the Montgomery & Prattville Daily I..ine.before a justice of the peace in the city of Montgomery, claiming balance of wages due to October 20th, $95.85. Process issued in said suit, and on November.30th, on trial, a judgment was rendered for the plaintiff against the defendant for said sum and costs. December 8th a writ of jim facia8 was issued therein, which was returned December 19, 1887, with the following indorsement: "Levied on steam-boat Lillie, her furniture and· tackle. and same was sold 1887, for six hundred and ve dollars, ($625.00,) on 21st and the money applied to prior executions, and no pJ;Operty to satisfy this ft.
Early in January following a iibel was prepared claiming wages due to libelant, and was filed in the district court for the middle district of Alabama; but, for some reason or other not apparent, no process issued thereon. The boat lay at Montgomery some time after the sale of derexecution, and continued in the waters oftha middle district until January, 1889, when, on its arrivaJ. in Mobile, the libel in this case was