An Early 2009 Round-Up: Significant Federal Cases Over the Past Two Months
In this round-up of significant U.S. decisions during the first two months of 2009, we’ll focus on two areas of law that generate a lot of jurisprudence at the appellate level.
A. Jurisdiction for Acts Occurring Abroad
Two federal statutory schemes—the first a response to the events of September 11, the second a 200 year old response to piracy on the high seas—are generating a lot of jurisdictional quandaries of late. The Intelligence Reform and Terrorism Prevention Act of 2004 criminalizes the provision of material support to foreign terrorist organizations, and provides for “extraterritorial Federal jurisdiction” to punish those acts. It also provides a civil remedy for those injured in his “person, property or business” by such criminal acts. In Federal Ins. Co. v. Kingdom of Saudi Arabia, 538 F.3d 71 (2d Cir. 2008), pet’n for cert. filed, No. 08-640 (Nov. 12, 2008), the Second Circuit held that the Constitution permits the assertion of personal jurisdiction under these statutes only over foreign actors who “directed” or “commanded” terrorist attacks on U.S. soil, but bars such jurisdiction over persons who merely “fores[aw] that recipients of their donations would attack targets in the United States.” According to the court, even those foreign entities who knowingly funded al Quada and Osama bin Laden were “far too attenuated” to fall within the jurisdiction of U.S. courts. This decision fostered a split with decisions in the D.C., Ninth and Seventh Circuits, and (along with other facets of the opinion on scope of the FSIA) is now pending on a Writ of Certiorari before the United States Supreme Court. This week, the Court requested the views of the Solicitor General on whether to grant the Petition. This case could become a very significant decision on the constitutional scope of personal jurisdiction over foreign parties if it is granted.
The Second Circuit returned a few months later in Abdullahi v. Pfizer, Inc., No. 05-4863, 2009 U.S. App. LEXIS 1768 (2d Cir., January 30, 2009), to assert subject matter jurisdiction over a cause of action under the Alien Tort Statute of 1789 for defendant’s alleged drug tests on unwitting Nigerian children. The court—in a 2-1 decision—held that the prohibition on non-consensual medical experimentation is a specific and universal norm of “the law of nations,” which satisfies the jurisdictional predicate of the ATS. Because defendant acted in concert with the Nigerian government, the court held that the claim could proceed past the pleading stage. The Court also reversed the district court’s decision on choice of law—which held that Nigerian law would have applied to these claims—and remanded the case with instructions to the court to more carefully and thoroughly weigh the factors of the ”most significant relationship test” which could—the Court suggested—eventually lead to the application of Connecticut law.
B. Forum Selection Clauses
In a topic that is of practical import for both litigators and transaction attorneys alike, the federal courts of appeals have been active in the past two months concerning the scope, validity and enforceability of forum selection clauses. Most recently, in Answers in Genesis of Kentucky, Inc. v. Creation Ministries Int’l, Ltd., Nos. 08-6014/6032, 2009 U.S. App. LEXIS 2743 (6th Cir., February 13, 2009), the parties disputed the meaning of a contract that contained a “non-exclusive” choice of court clause vesting jurisdiction in the courts of Australia, alongside a provision that allowed either party to request arbitration of their disputes. One party compelled arbitration in the United States, and the other sought to enjoin such arbitration in favor of litigation it previously filed in Australia. The Sixth Circuit held that the choice of court clause did not preclude arbitration, because reading the contract “as a whole . . . unambiguously provides that the courts of [Australia] are only one possible forum” for the claims in this dispute. The court then moved onto thornier issues of international comity abstention and anti-suit injunctions, both of which were “issues of first impression for [the Sixth] Circuit.” Surveying the case law on the “complex interaction of federal jurisdictional and comity concerns,” as well as the dictates of “international law” expressed in treaties expressing the judicial preference for allowing arbitration, the court held that “abstention is inappropriate in this case.” Interestingly, the court seemed to suggest that in any case falling within Article II(3) of the New York Convention, a court in a signatory country has no authority to abstain from compelling arbitration on comity grounds. With the Australian proceedings voluntarily stayed by the parties pending this appeal, the court declined to review the district court’s denial of an anti-suit injunction, but left open the possibility that such an injunction could issue if that litigation were to be reopened and thereby threaten the “important public policy” of the Convention and the United States.
Finally, an interesting recent decision by the Ninth Circuit illustrates the differential treatment a forum selection clause will get in U.S. courts, depending upon what substantive federal statute governs the cause of action. Regal-Beloit Corp. v. Kawasaki Kisen Kaisha Ltd., No. 06-56831, 2009 U.S. Dist. LEXIS 2111 (9th Cir., February 4, 2009) was, as the Ninth Circuit put it, a “maritime case about a train wreck.” There, the parties contracted for the carriage of goods from China to the United States by sea, and then inland by rail to various points in the American Midwest through a single bill of lading. The train derailed in Oklahoma, the American buyer sued in California, but the contract contained a choice of forum clause in favor of Tokyo. The Japanese Defendants moved to dismiss the action on the basis of that clause. If the federal Carriage of Goods by Sea Act (COGSA) were to apply to the entire journey, the choice of forum clause would be liberally respected, and the defendants’ motion to dismiss likely granted. If the federal Carmack Amendment—which generally covers inland rail transportation—were to apply to the inland portion of the trip, the deference to choice of courts is much more narrow. In the end, the Ninth Circuit held that the Carmack Amendment applied to the claims, and remanded the case to determine whether that statute’s narrow allowance of a foreign forum selection clauses were satisfied. How it got to that conclusion, however, is much more interesting.
For starters, the Defendants argued that the Carmack Amendment was categorically inapplicable to them. They are ocean carriers, who only contracted for follow-on rail line transportation at the end of their journey, and the Carmack Amendment literally applies only to persons or companies “providing common carrier railroad transportation for compensation.” The Second Circuit, the Florida Supreme Court, and at least one other federal district court, have held that the Carmack Amendment did not apply to ocean carriers who did not perform rail transportation services. The Ninth Circuit disagreed with these decisions, and held that ocean carriers could fall within the Amendment’s provisions.
The Defendants next argued that, even though an ocean carrier may fall within the Carmack Amendment, when that carrier provides only one bill of lading covering the entire trip (over-sea and over-land), and thereby elects to contractually extend COGSA to the inland portion of the trip, the Carmack Amendment does not apply. No less than four circuits (the Seventh, Sixth, Fourth and Eleventh) support this view. “Despite this weight of authority,” the Ninth Circuit held, “our own precedent expressly forecloses” this argument. The Ninth Circuit, like the Second Circuit, has long held the view that “the language of Carmack encompasses the inland leg of an overseas shipment conducted under a single ‘through’ bill of lading.”
The discord in this area is especially troubling in light of recent Supreme Court jurisprudence. The Court has held—and the Ninth Circuit even acknowledged—that contractual autonomy, efficiency and uniformity of maritime liability rules weigh in favor of extending COGSA inland when a single bill of lading takes goods from overseas to inland destinations. Indeed, “confusion and inefficiency will inevitably result if more than one body of law governs a given contract’s meaning,” and the Supreme Court has suggested that where this is the case, “the apparent purpose of COGSA” is defeated. Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 29 (2004). Still, in the Ninth Circuit, “the policy of uniformity in maritime shipping, however compelling, must give way to controlling statutes and precedent.”