Vimar Seguros y Reaseguros, S. A. v. M/V Sky Reefer, 515 U.S. 528, 17 (1995)

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544

VIMAR SEGUROS y REASEGUROS, S. A. v. M/V SKY REEFER

Stevens, J., dissenting

were in no position to bargain around these no-liability clauses. Although the English courts enforced the stipulations, see Compania de Navigacion la Flecha v. Brauer, 168 U. S. 104, 117-118 (1897), citing Peck v. North Staffordshire Railway, 10 H. L. Cas. 473, 493, 494 (1863), this Court concluded, even prior to the 1893 enactment of the Harter Act, that they were "contrary to public policy, and consequently void," Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 442 (1889).3 As we noted in Brauer, several District Courts had held that such a stipulation was invalid even when the bill of lading also contained a choice-oflaw clause providing that "the contract should be governed by the law of England." 168 U. S., at 118. The question whether such a choice-of-law clause was itself valid remained open in this Court until the Harter Act was passed in 1893.

Section 1 of the Harter Act makes it unlawful for the master or owner of any vessel transporting cargo between ports of the United States and foreign ports to insert in any bill of lading any clause whereby the carrier "shall be relieved from liability for loss or damage arising from negligence." 4 In

3 In support of its holding in Liverpool Steam, the Court observed: "The carrier and his customer do not stand upon a footing of equality. The individual customer has no real freedom of choice. He cannot afford to higgle or stand out, and seek redress in the courts. He prefers rather to accept any bill of lading, or to sign any paper, that the carrier presents; and in most cases he has no alternative but to do this, or to abandon his business." 129 U. S., at 441.

4 The first section of the Harter Act provides: "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That it shall not be lawful for the manager, agent, master, or owner of any vessel transporting merchandise or property from or between ports of the United States and foreign ports to insert in any bill of lading or shipping document any clause, covenant, or agreement whereby it, he, or they shall be relieved from liability for loss or damage arising from negligence, fault, or failure in proper loading, stowage, custody, care, or proper delivery of any and all lawful merchandise or property committed to its or their charge. Any and all words or clauses of such import inserted in bills of lading or ship-

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