Monrosa v. Carbon Black Export, Inc.

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 against the vessel in question, the S. S. Monrosa, then in the port of Houston on another voyage, and in personam against the Monrosa’s-owner, Navigazione Alta Italia, an Italian corporation. The latter filed an appearance in response to the libel in personam, 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 respondeat. . 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 shoúld 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 in rem,- 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 F. 2d 806.

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 reads:

“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. The Maggie Hammond, 9 Wall. 435, 449-450, 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 actions, and the rest of the language is intelligible on this premise. In accord-anee 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, 137; The Majestic, 166 U. S. 375, 386; Compania de Navigacion La Flecha v. Brauer, 168 U. S. 104, 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. It 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 rem was properly maintainable. Both parties approved a secured stipulation to release thé 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, 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, 75; Goins v. United States, 306 U. S. 622; Moor v. Texas & New Orleans R. Co., 297 U. S. 101; Southern Power Co. v. North Carolina Public Service Co., 263 U. S. 508. 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. S. 387, 392-393; 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, at 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 and in 'personam. Clause 35 provides:

“35. — In any event the Carrier and the ship shall be discharged from all liability in respect of dess 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.