Ninth Circuit Enforces Forum Selection Clause in Ocean Bill of Lading in Favor of Subcontracting Vessel

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Last week in Mazda Motors of America, Inc. and Indemnity Insurance Co. of North America v. M/V COUGAR ACE, ___ F.3d ___ (9th Cir. 2009), a panel of the Ninth Circuit Court of Appeals enforced the Japanese forum selection clause contained within an ocean carrier’s bill of lading in an in rem action filed by the cargo owner seeking damages for cargo damage against the contracting vessel. Specifically, the Court held that the M/V COUGAR ACE, which was operated but not owned by the ocean carrier Mitsui, was entitled to assert the defenses and protection of the Carriage of Goods by Sea Act (“COGSA”), 46 U.S.C. Section 30701, Notes, contained within Mitsui’s ocean bills of lading that were extended to the M/V COUGAR ACE through the Himalaya Clause.

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