CIVIL PROCEDURE CLASS 36
Professor Fischer
Columbus School of Law
The Catholic University of America
November 18, 2002
WRAP-UP OF LAST CLASS
We discussed two more important Supreme
Court cases:Shaffer v. Heitner, a case
concerning the extent to which personal
jurisdiction can be validly based on the
presence of D’s property within the forum
state; and Burnham, which considered the
extent to which personal jurisdiction can be
validly based solely on personal service within
the forum state (tag jurisdiction or transient
jurisdiction)
WHAT WILL WE DO TODAY
Continue with personal jurisdiction unit.
We will consider general jurisdiction by
discussing the Helicopteros case.
We will learn more about jurisdiction by
consent by discussing Carnival Cruise Lines v.
Shute.
Time permitting, I will spend a few minutes
talking about jurisdiction on the Internet.
GENERAL JURISDICTION
What is the difference between general
and specific jurisdiction?
Helicopteros Nacionales de
Colombia v. Hall
Wrongful death action resulting from
helicopter crash in Peru that killed US citizens.
Respondents brought suit in TX against,
among others, Helicol, Columbian operator of
helicopter, on the basis of pilot error
Helicol moves to dismiss for lack of personal
jurisdiction.
Trial court denies motion: and respondents
win jury award of over $1,000,000
Texas Supreme Court finds there was
jurisdiction over Helicol.
U.S. Supreme Court
Must determine whether the Texas
court had personal jurisdiction over
Helicol
Helicol’s Contacts With Texas
Describe Helicol’s contacts with Texas
Were these enough for specific
jurisdiction, according to the Supreme
Court?
Helicol’s Contacts With Texas
Sent representative to contract with TX
company for transportation contract in Peru.
Purchased most of its helicopters from TX
company
Sent pilots, management, and maintenance
personnel to TX for training
Received payments from TX bank accounts
for transportation contract
Supreme Court Only Rules on
General Jurisdiction
Specific jurisdiction was not argued by P
How does it rule?
Supreme Court Only Rules on
General Jurisdiction
Helicol lacked “the kind of continuous
and systematic general business
contacts with TX necessary to satisfy
due process”
This seems to indicate a very high
standard for general jurisdiction to be
found.
Leaves a lot unsettled on general
jurisdiction
Brennan’s Dissent
What is the basis for the dissent?
Mrs. Shute Goes to Court
Why did Mrs. Eulala
Shute (and her
husband sue
Carnival Cruise
Lines?
Where did she and
her husband bring
suit?
Procedural History
Describe the procedural history of this action
before the Supreme Court’s opinion.
CCL moves for summary judgment on basis
of forum selection clause/no p.j. (no
minimum contacts)
District Court grants this motion, Court of
Appeals for the Ninth Circuit reverses
(minimum contacts with Washington due to
solicitation of business in Washington)
U.S. Supreme Court grants certiorari.
Supreme Court Must Consider
1. Argument that forum selection clause
bars jurisdiction over Carnival in
Washington state.
2. Constitutional argument that CCL’s
contacts with Washington are not
enough to support jurisdiction.
What law applies?
Admiralty case – so federal law applies.
Arguments that the Forum
Selection Clause Unenforceable
What are the Shutes’ arguments in
support of their contention that the
forum selection clause is
unenforceable?
Did any of them convince Justice
Blackmun, who wrote the Supreme
Court’s majority opinion? If so, which
arguments?
Arguments that the Forum
Selection Clause Unenforceable
Based on The Bremen, clause not the product
of business negotiation. In the Bremen, the
Supreme Court held that a freely negotiated
forum selection clause between international
parties should be enforced as long as it is not
the product of fraud, undue influence, and
overweening bargaining power. Also, it is an
inconvenient forum and
Clause violates The Limitation of Vessel
Owner’s Liabilitty Act, 46 U.S.C. App. 183c.
Justice Blackmun’s Reasoning
Blackkmun: some nonnegotiated forumselection clauses can be enforceable
Cruise ships have special interest in limiting
for a where they can be sued
Such a clause spares expense of pretrial
motions to determine correct forum and
conserving judicial resources
Passengers benefit in light of reduced fares
that reflect savings cruise line enjoys by
limiting forum where it can be sued.
Do you buy any of these?
More of Blackmun’s Reasoning
Shutes have not satisfied the heavy burden of
proof required to set aside the clause on
grounds of inconvenience (they had notice
and Florida is not a remote alien forum
especially given where accident took place)
NO evidence of bad faith or overreaching
Since Shutes had notice of contract, they
could have rejected it.
Clause violates The Limitation of
Vessel Owner’s Liability Act, 46
U.S.C. App. 183c.
"It shall be unlawful for the . . . owner of any
vessel transporting passengers between ports
of the United States or between any such
port and a foreign port to insert in any rule,
regulation, contract, or agreement any
provision or limitation (1) purporting, in the
event of loss of life or bodily injury arising
from the negligence or fault of such owner or
his servants, to relieve such owner . . . from
liability, or from liability beyond any stipulated
amount, for such loss or injury,
Clause violates The Limitation of
Vessel Owner’s Liabilitty Act, 46
U.S.C. App. 183c.
or (2) purporting in such event to lessen,
weaken, or avoid the right of any claimant to
a trial by court of competent [499 U.S. 585,
596] jurisdiction on the question of liability
for such loss or injury, or the measure of
damages therefor. All such provisions or
limitations contained in any such rule,
regulation, contract, or agreement are
declared to be against public policy and shall
be null and void and of no effect."
Dissent
Who wrote the dissent?
Who joined in it?
Describe the reasoning in the dissent.
Do you agree with it? Why or why not?
Dissent
Inadequate notice
Unenforceable under under traditional
principles of federal admiralty law, and is "null
and void" under the terms of Limited Liability
Act, 49 Stat. 1480, as amended, 46 U.S.C.
App. 183c, which was enacted in 1936 to
invalidate expressly stipulations limiting
shipowners' liability for negligence.
Carnival Cruise Lines: Narrow
Sense
Congress overturned this case in a
narrow sense by amending the federal
statute interpreted in the case (See
Section 3006 of the Oceans Act of
1992, P.L. 102-587).
Forum Selection Clauses:
Jurisdiction By Express Consent
Remember that it is possible to consent
to jurisdiction
Consequently, lack of personal
jurisdiction is one of the waivable
defenses under Rules 12(g) and
12(h)(1)
Contrast this with lack of subject matter
jurisdiction, which can never be waived.
Forum Selection Clauses After
Carnival
Prior to Carnival, some courts refused to
enforce forum selection clauses that barred
jurisdiction in other courts. Now, forumselection clauses generally have a strong
presumption of enforceability, especially
where there is equal bargaining power
between the parties and they are represented
by counsel.
The burden is on the person challenging the
enforcement of the clause to show it was
unreasonable or unfair in the circumstances.
This is a difficult burden, even where the
clause is in a standard-form contract.