546
Stevens, J., dissenting
of-law holding in Muller, but also its enforcement of a foreign choice-of-forum clause. They wrote:
"The stipulation for suit abroad seems also to offend Cogsa, most obviously because it destroys the shipper's certainty that Cogsa will be applied. Further, it is entirely unrealistic to look on an obligation to sue overseas as not 'lessening' the liability of the carrier. It puts a high hurdle in the way of enforcing that liability." G. Gilmore & C. Black, Law of Admiralty 125, n. 23.
Judge Friendly's opinion for the en banc court in Indussa endorsed this reasoning. In Indussa, the bill of lading contained a provision requiring disputes to be resolved in Norway under Norwegian law.6 Judge Friendly first remarked on the harsh consequence of "requiring an American consignee claiming damages in the modest sum of $2,600 to journey some 4200 miles to a court having a different legal system and employing another language." 377 F. 2d, at 201. The decision, however, rested not only on the impact of the provision on a relatively small claim, but also on a fair reading of the broad language in COGSA. Judge Friendly explained:
"[Section] 3(8) of COGSA says that 'any clause, covenant, or agreement in a contract of carriage * * * lessening [the carrier's liability for negligence, fault, or dereliction of statutory duties] otherwise than as provided in this Act, shall be null and void and of no effect.' From a practical standpoint, to require an American plaintiff to assert his claim only in a distant court lessens the liability of the carrier quite substantially, particularly when the claim is small. Such a clause puts 'a high hur-6 The bill of lading contained the following provision: " 'Any dispute arising under this Bill of Lading shall be decided in the country where the Carrier has his principal place of business, and the law of such country shall apply except as provided elsewhere herein.' " Indussa Corp. v. S. S. Ranborg, 377 F. 2d 200, 201 (CA2 1967).
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