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SHUTE ET VIR CERTIORARI TO THE UNITED required to set aside the clause on grounds of inconvenience. Pp. 594-595.
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 89-1647 Argued
January 15, 1991 Decided April 17, 1991
After the respondents Shute, a Washington State couple, purchased passage on a (c) Although forum selection clauses contained in form passage contracts are
ship owned by petitioner, a Florida-based cruise line, petitioner sent them tickets subject to judicial scrutiny for fundamental fairness, there is no indication that
containing a clause designating courts in Florida as the agreed-upon fora for the petitioner selected Florida to discourage cruise passengers from pursuing legitimate
resolution of disputes. The Shutes boarded the ship in Los Angeles, and, while in claims or obtained the Shutes' accession to the forum clause by fraud or
international waters off the Mexican coast, Mrs. Shute suffered injuries when she overreaching. P. 595.
slipped on a deck mat. The Shutes filed suit in a Washington Federal District Court,
which granted summary judgment for petitioner. The Court of Appeals reversed,
holding, inter alia, that the forum-selection clause should not be enforced under The (d) By its plain language, the forum selection clause at issue does not violate 46
Bremen v. Zapata Off-Shore Co., 407 U.S. 1 , because it was not "freely bargained U.S.C. App. 183c, which, inter alia, prohibits a vessel owner from inserting in any
for," and because its enforcement would operate to deprive the Shutes of their day in contract a provision depriving a claimant of a trial "by court of competent
court in light of evidence indicating that they were physically and financially incapable jurisdiction" for loss of life or personal injury resulting from negligence. Pp. 595-597.
of pursuing the litigation in Florida.
Held: 897 F.2d 377 (CA9 1990), reversed.
The Court of Appeals erred in refusing to enforce the forum-selection clause. Pp. 590- BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and
597. WHITE, O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined. STEVENS, J.,
(a) The Bremen Court's statement that a freely negotiated forum-selection clause, filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 597.
such as the one there at issue, should be given full effect, 407 U.S. at 12-13, does not Richard K. Willard argued the cause for petitioner. With him on the briefs were
support the Court of Appeals' determination that a nonnegotiated forum clause in a David L. Roll and Lawrence D. Winson.
passage contract is never enforceable simply because it is not the subject of
bargaining. Whereas it was entirely reasonable for The Bremen Court to have Gregory J. Wall argued the cause and filed a brief for respondents. *
expected the parties to have negotiated with care in selecting a forum for the
resolution of disputes arising from their complicated international agreement, it would
be entirely unreasonable to assume that a cruise passenger would or could negotiate JUSTICE BLACKMUN delivered the opinion of the Court.
the terms of a forum clause in a routine commercial cruise ticket form. Nevertheless,
including a reasonable forum clause in such a form contract well may be permissible In this admiralty case we primarily consider whether the United States Court of
for several reasons. Because it is not unlikely that a mishap in a cruise could subject Appeals for the Ninth Circuit correctly refused to enforce a forum selection clause
a cruise line to litigation in several different fora, the line has a special interest in contained in tickets issued by petitioner Carnival Cruise Lines, Inc., to respondents
limiting such fora. Moreover, a clause establishing ex ante the dispute resolution Eulala and Russel Shute.
forum has the salutary effect of dispelling confusion as to where suits may be brought
and defended, thereby sparing litigants time and expense and conserving judicial
resources. Furthermore, it is likely that passengers purchasing tickets [499 U.S. 585, I
586] containing a forum clause like the one here at issue benefit in the form of The Shutes, through an Arlington, Wash., travel agent, purchased passage for a 7-
reduced fares reflecting the savings that the cruise line enjoys by limiting the fora in day cruise on petitioner's ship, the Tropicale. Respondents paid the fare to the
which it may be sued. Pp. 590-594. agent, who forwarded the payment to petitioner's headquarters in Miami, Fla.
(b) The Court of Appeals' conclusion that the clause here at issue should not be Petitioner then prepared the tickets and sent them to respondents in the State of
enforced because the Shutes are incapable of pursuing this litigation in Florida is not Washington. The face of each ticket, at its left-hand lower corner, contained this
justified by The Bremen Court's statement that "the serious inconvenience of the admonition:
contractual forum to one or both of the parties might carry greater weight in
determining the reasonableness of the forum clause." Id., at 17. That statement was
made in the context of a hypothetical "agreement between two Americans to resolve SUBJECT TO CONDITIONS OF CONTRACT ON LAST PAGES IMPORTANT!
their essentially local disputes in a remote alien forum." Ibid. Here, in contrast, Florida PLEASE READ CONTRACT - ON LAST PAGES 1, 2, 3" App. 15.
is not such a forum, nor - given the location of Mrs. Shute's accident - is this dispute
an essentially local one inherently more suited to resolution in Washington than in
Florida. In light of these distinctions, and because the Shutes do not claim lack of The following appeared on "contract page 1" of each ticket:
notice of the forum clause, they have not satisfied the "heavy burden of proof," ibid.
CONFLICT OF LAWS 3D 1/08-09 Page 1 of 97 Atty. Jose A. Bernas
Id., at 9-10. See 897 F.2d, at 388. The appellate court concluded that the forum
clause should not be enforced because it "was not freely bargained for." Id., at 389.
"TERMS AND CONDITIONS OF PASSAGE CONTRACT TICKET" As an "independent justification" for refusing to enforce the clause, the Court of
Appeals noted that there was evidence in the record to indicate that "the Shutes are
physically and financially incapable of pursuing this litigation in Florida," and that the
..... enforcement of the clause would operate to deprive them of their day in court, and
thereby contravene this Court's holding in The Bremen. 897 F.2d, at 389.
3. (a) The acceptance of this ticket by the person or persons named hereon as We granted certiorari to address the question whether the Court of Appeals was
passengers shall be deemed to be an acceptance and agreement by each of them of correct in holding that the District Court should hear respondents' tort claim against
all of the terms and conditions of this Passage Contract Ticket. petitioner. 498 U.S. 807 -808 (1990). Because we find the forum selection clause to
be dispositive of this question, we need not consider petitioner's constitutional
argument as to personal jurisdiction. See Ashwander v. TVA, 297 U.S. 288, 347
(1936) (Brandeis, J., concurring) ("`It is not the habit of the Court to decide
.....
questions of a constitutional nature unless [499 U.S. 585, 590] absolutely
necessary to a decision of the case,'" quoting Burton v. United States, 196 U.S. 283,
295 (1905)).
8. It is agreed by and between the passenger and the Carrier that all disputes and
matters whatsoever arising under, in connection with or incident to this Contract [499
U.S. 585, 588] shall be litigated, if at all, in and before a Court located in the State of
III
Florida, U.S.A. to the exclusion of the Courts of any other state or country. Id., at 16.
We begin by noting the boundaries of our inquiry. First, this is a case in admiralty,
The last quoted paragraph is the forum selection clause at issue.
and federal law governs the enforceability of the forum selection clause we
scrutinize. See Archawski v. Hanioti, 350 U.S. 532, 533 (1956); The Moses Taylor,
4 Wall. 411, 427 (1867); Tr. of Oral Arg. 36-37, 12, 47-48. Cf. Stewart Organization,
II Inc. v. Ricoh Corp., 487 U.S. 22, 28 -29 (1988). Second, we do not address the
Respondents boarded the Tropicale in Los Angeles, Cal. The ship sailed to Puerto question whether respondents had sufficient notice of the forum clause before
Vallarta, Mexico, and then returned to Los Angeles. While the ship was in entering the contract for passage. Respondents essentially have conceded that they
international waters off the Mexican coast, respondent Eulala Shute was injured when had notice of the forum selection provision. Brief for Respondent 26 ("The
she slipped on a deck mat during a guided tour of the ship's galley. Respondents filed respondents do not contest the incorporation of the provisions nor [sic] that the
suit against petitioner in the United States District Court for the Western District of forum selection clause was reasonably communicated to the respondents, as much
Washington, claiming that Mrs. Shute's injuries had been caused by the negligence of as three pages of fine print can be communicated."). Additionally, the Court of
Carnival Cruise Lines and its employees. Id., at 4. Appeals evaluated the enforceability of the forum clause under the assumption,
although "doubtful," that respondents could be deemed to have had knowledge of
Petitioner moved for summary judgment, contending that the forum clause in the clause. See 897 F.2d, at 389 and n. 11.
respondents' tickets required the Shutes to bring their suit against petitioner in a court
in the State of Florida. Petitioner contended, alternatively, that the District Court Within this context, respondents urge that the forum clause should not be enforced
lacked personal jurisdiction over petitioner because petitioner's contacts with the because, contrary to this Court's teachings in The Bremen, the clause was not the
State of Washington were insubstantial. The District Court granted the motion, product of negotiation, and enforcement effectively would deprive respondents of
holding that petitioner's contacts with Washington were constitutionally insufficient to their day in court. Additionally, respondents contend that the clause violates the
support the exercise of personal jurisdiction. See App. to Pet. for Cert. 60a. Limitation of Vessel Owner's Liability Act, 46 U.S.C. App. 183c. We consider these
arguments in turn.
The Court of Appeals reversed. Reasoning that, "but for" petitioner's solicitation of
business in Washington, respondents would not have taken the cruise and Mrs.
Shute would not have been injured, the court concluded that petitioner had sufficient IV
contacts with Washington to justify the District Court's exercise of personal
jurisdiction. 897 F.2d 377, 385-386 (CA9 1990). * [499 U.S. 585, 589]
Turning to the forum selection clause, the Court of Appeals acknowledged that a A
court concerned with the enforceability of such a clause must begin its analysis with
Both petitioner and respondents argue vigorously that the Court's opinion in The
The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972), where this Court held that
Bremen governs this case, and each side purports to find ample support for its
forum selection clauses, although not "historically . . . favored," are "prima facie valid."
position in that [499 U.S. 585, 591] opinion's broad-ranging language. This
CONFLICT OF LAWS 3D 1/08-09 Page 2 of 97 Atty. Jose A. Bernas
seeming paradox derives in large part from key factual differences between this case suggest that, even apart from the evidence of negotiation regarding the forum
and The Bremen, differences that preclude an automatic and simple application of clause, it was entirely reasonable for the Court in The [499 U.S. 585, 593] Bremen
The Bremen's general principles to the facts here. to have expected Unterweser and Zapata to have negotiated with care in selecting a
forum for the resolution of disputes arising from their special towing contract.
In The Bremen, this Court addressed the enforceability of a forum selection clause in
a contract between two business corporations. An American corporation, Zapata, In contrast, respondents' passage contract was purely routine, and doubtless nearly
made a contract with Unterweser, a German corporation, for the towage of Zapata's identical to every commercial passage contract issued by petitioner and most other
ocean-going drilling rig from Louisiana to a point in the Adriatic Sea off the coast of cruise lines. See, e. g., Hodes v. S.N.C. Achille Lauro ed Altri-Gestione, 858 F.2d
Italy. The agreement provided that any dispute arising under the contract was to be 905, 910 (CA3 1988), cert. dism'd, 490 U.S. 1001 (1989). In this context, it would be
resolved in the London Court of Justice. After a storm in the Gulf of Mexico seriously entirely unreasonable for us to assume that respondents - or any other cruise
damaged the rig, Zapata ordered Unterweser's ship to tow the rig to Tampa, Fla., the passenger - would negotiate with petitioner the terms of a forum-selection clause in
nearest point of refuge. Thereafter, Zapata sued Unterweser in admiralty in federal an ordinary commercial cruise ticket. Common sense dictates that a ticket of this
court at Tampa. Citing the forum clause, Unterweser moved to dismiss. The District kind will be a form contract the terms of which are not subject to negotiation, and
Court denied Unterweser's motion, and the Court of Appeals for the Fifth Circuit, that an individual purchasing the ticket will not have bargaining parity with the cruise
sitting en banc on rehearing, and by a sharply divided vote, affirmed. In re Complaint line. But by ignoring the crucial differences in the business contexts in which the
of Unterweser Reederei, GmBH, 446 F.2d 907 (1971). respective contracts were executed, the Court of Appeals' analysis seems to us to
have distorted somewhat this Court's holding in The Bremen.
This Court vacated and remanded, stating that, in general, a freely negotiated private
international agreement, unaffected by fraud, undue influence, or overweening In evaluating the reasonableness of the forum clause at issue in this case, we must
bargaining power, such as that involved here, should be given full effect. 407 U.S., at refine the analysis of The Bremen to account for the realities of form passage
12 -13 (footnote omitted). The Court further generalized that "in the light of present- contracts. As an initial matter, we do not adopt the Court of Appeals' determination
day commercial realities and expanding international trade we conclude that the that a nonnegotiated forum-selection clause in a form ticket contract is never
forum clause should control absent a strong showing that it should be set aside." Id., enforceable simply because it is not the subject of bargaining. Including a
at 15. The Court did not define precisely the circumstances that would make it reasonable forum clause in a form contract of this kind well may be permissible for
unreasonable for a court to enforce a forum clause. Instead, the Court discussed a several reasons: first, a cruise line has a special interest in limiting the fora in which
number of factors that made it reasonable to enforce the clause at issue in The it potentially could be subject to suit. Because a cruise ship typically carries
Bremen and [499 U.S. 585, 592] that, presumably, would be pertinent in any passengers from many locales, it is not unlikely that a mishap on a cruise could
determination whether to enforce a similar clause. subject the cruise line to litigation in several different fora. See The Bremen, 407
U.S., at 13 and n. 15; Hodes, 858 F.2d, at 913. Additionally, a clause establishing
In this respect, the Court noted that there was "strong evidence that the forum clause ex ante the forum for dispute resolution has the salutary [499 U.S. 585, 594] effect
was a vital part of the agreement, and [that] it would be unrealistic to think that the of dispelling any confusion about where suits arising from the contract must be
parties did not conduct their negotiations, including fixing the monetary terms, with the brought and defended, sparing litigants the time and expense of pretrial motions to
consequences of the forum clause figuring prominently in their calculations." Id., at 14 determine the correct forum, and conserving judicial resources that otherwise would
(footnote omitted). Further, the Court observed that it was not "dealing with an be devoted to deciding those motions. See Stewart Organization, 487 U.S., at 33
agreement between two Americans to resolve their essentially local disputes in a (concurring opinion). Finally, it stands to reason that passengers who purchase
remote alien forum," and that, in such a case, "the serious inconvenience of the tickets containing a forum clause like that at issue in this case benefit in the form of
contractual forum to one or both of the parties might carry greater weight in reduced fares reflecting the savings that the cruise line enjoys by limiting the fora in
determining the reasonableness of the forum clause." Id., at 17. The Court stated which it may be sued. Cf. Northwestern Nat. Ins. Co. v. Donovan, 916 F.2d 372, 378
that, even where the forum clause establishes a remote forum for resolution of (CA7 1990).
conflicts, "the party claiming [unfairness] should bear a heavy burden of proof." Ibid.
We also do not accept the Court of Appeals' "independent justification" for its
In applying The Bremen, the Court of Appeals in the present litigation took note of the conclusion that The Bremen dictates that the clause should not be enforced
foregoing "reasonableness" factors and rather automatically decided that the forum because "[t]here is evidence in the record to indicate that the Shutes are physically
selection clause was unenforceable because, unlike the parties in The Bremen, and financially incapable of pursuing this litigation in Florida." 897 F.2d, at 389. We
respondents are not business persons, and did not negotiate the terms of the clause do not defer to the Court of Appeals' findings of fact. In dismissing the case for lack
with petitioner. Alternatively, the Court of Appeals ruled that the clause should not be of personal jurisdiction over petitioner, the District Court made no finding regarding
enforced because enforcement effectively would deprive respondents of an the physical and financial impediments to the Shutes' pursuing their case in Florida.
opportunity to litigate their claim against petitioner. The Court of Appeals' conclusory reference to the record provides no basis for this
The Bremen concerned a "far from routine transaction between companies of two Court to validate the finding of inconvenience. Furthermore, the Court of Appeals
different nations contemplating the tow of an extremely costly piece of equipment did not place in proper context this Court's statement in The Bremen that "the
from Louisiana across the Gulf of Mexico and the Atlantic Ocean, through the serious inconvenience of the contractual forum to one or both of the parties might
Mediterranean Sea to its final destination in the Adriatic Sea." Id., at 13. These facts carry greater weight in determining the reasonableness of the forum clause." 407
CONFLICT OF LAWS 3D 1/08-09 Page 3 of 97 Atty. Jose A. Bernas
U.S., at 17 . The Court made this statement in evaluating a hypothetical "agreement clause does not directly prevent the determination of claims against the cruise line,
between two Americans to resolve their essentially local disputes in a remote alien it causes plaintiffs unreasonable hardship in asserting their rights, and therefore
forum." Ibid. In the present case, Florida is not a "remote alien forum," nor - given the violates Congress' intended goal in enacting 183c. Significantly, however,
fact that Mrs. Shute's accident occurred off the coast of Mexico - is this dispute an respondents cite no authority for their contention that Congress' intent in enacting
essentially local one inherently more suited to resolution in the State of Washington 183c was to avoid having a plaintiff travel to a distant forum in order to litigate. The
than in Florida. In [499 U.S. 585, 595] light of these distinctions, and because legislative history of 183c suggests, instead, that this provision was enacted in
respondents do not claim lack of notice of the forum clause, we conclude that they response to passenger ticket conditions purporting to limit the shipowner's liability
have not satisfied the "heavy burden of proof," ibid. required to set aside the clause for negligence or to remove the issue of liability from the scrutiny of any court by
on grounds of inconvenience. means of a clause providing that "the question of liability and the measure of
damages shall be determined by arbitration." See S.Rep. No. 2061, 74th Cong., 2d
It bears emphasis that forum selection clauses contained in form passage contracts Sess. 6 (1936); H.R.Rep. No. 2517, 74th Cong., 2d Sess., 6 (1936). See also Safety
are subject to judicial scrutiny for fundamental fairness. In this case, there is no of Life and Property at Sea: Hearings Before the Committee on Merchant Marine
indication that petitioner set Florida as the forum in which disputes were to be and Fisheries, 74th Cong., 2d Sess., pt. 4, pp. 20, 36-37, 57, 109-110, 119 (1936).
resolved as a means of discouraging cruise passengers from pursuing legitimate There was no prohibition of a forum selection clause. Because the clause before us
claims. Any suggestion of such a bad faith motive is belied by two facts: petitioner has allows for judicial resolution of claims against petitioner and does [499 U.S. 585,
its principal place of business in Florida, and many of its cruises depart from and 597] not purport to limit petitioner's liability for negligence, it does not violate 183c.
return to Florida ports. Similarly, there is no evidence that petitioner obtained
respondents' accession to the forum clause by fraud or overreaching. Finally,
respondents have conceded that they were given notice of the forum provision and,
therefore, presumably retained the option of rejecting the contract with impunity. In V
the case before us, therefore, we conclude that the Court of Appeals erred in refusing The judgment of the Court of Appeals is reversed.
to enforce the forum selection clause.
It is so ordered
B
[ Footnote * ] The Court of Appeals had filed an earlier opinion also reversing the
Respondents also contend that the forum selection clause at issue violates 46 U.S.C. District Court and ruling that the District Court had personal [499 U.S. 585, 589]
App. 183c. That statute, enacted in 1936, see 49 Stat. 1480, provides: jurisdiction over the cruise line, and that the forum selection clause in the tickets
was unreasonable, and was not to be enforced. 863 F.2d 1437 (CA9 1988). That
opinion, however, was withdrawn when the court certified to the Supreme Court of
"It shall be unlawful for the . . . owner of any vessel transporting passengers between Washington the question whether the Washington long-arm statute,
ports of the United States or between any such port and a foreign port to insert in any Wash.Rev.Code 4.28.185 (1988), conferred personal jurisdiction over Carnival
rule, regulation, contract, or agreement any provision or limitation (1) purporting, in Cruise Lines for the claim asserted by the Shutes. See 872 F.2d 930 (CA9 1989).
the event of loss of life or bodily injury arising from the negligence or fault of such The Washington Supreme Court answered the certified question in the affirmative
owner or his servants, to relieve such owner . . . from liability, or from liability beyond on the ground that the Shutes' claim "arose from" petitioner's advertisement in
any stipulated amount, for such loss or injury, or (2) purporting in such event to Washington and the promotion of its cruises there. 113 Wash.2d 763, 783 P.2d 78
lessen, weaken, or avoid the right of any claimant to a trial by court of competent [499 (1989). The Court of Appeals then "refiled" its opinion "as modified herein." See 897
U.S. 585, 596] jurisdiction on the question of liability for such loss or injury, or the F.2d at 380, n. 1.
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 JUSTICE STEVENS, with whom JUSTICE MARSHALL joins, dissenting.
shall be null and void and of no effect." The Court prefaces its legal analysis with a factual statement that implies that a
purchaser of a Carnival Cruise Lines passenger ticket is fully and fairly notified
about the existence of the choice of forum clause in the fine print on the back of the
By its plain language, the forum selection clause before us does not take away ticket. See ante at 587-588. Even if this implication were accurate, I would disagree
respondents' right to "a trial by [a] court of competent jurisdiction," and thereby with the Court's analysis. But, given the Court's preface, I begin my dissent by
contravene the explicit proscription of 183c. Instead, the clause states specifically that noting that only the most meticulous passenger is likely to become aware of the
actions arising out of the passage contract shall be brought "if at all," in a court forum selection provision. I have therefore appended to this opinion a facsimile
"located in the State of Florida," which, plainly, is a "court of competent jurisdiction" [omitted] of the relevant text, using the type size that actually appears in the ticket
within the meaning of the statute. itself. A careful reader will find the forum selection clause in the eighth of the twenty-
five numbered paragraphs.
Respondents appear to acknowledge this by asserting that, although the forum
"It is settled in the courts of the United States that exemptions limiting carriers from
responsibility for the negligence of themselves or their servants are both unjust and See also Steven, 58 Cal.2d at 879-883, 377 P.2d at 295-297; Henningsen v.
unreasonable, and will be deemed as wanting in the element of voluntary assent; Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960).
and, besides, that such conditions are in conflict with public policy. This doctrine was The second doctrinal principle implicated by forum selection clauses is the
announced so long ago, and has been so frequently reiterated, that it is elementary. traditional rule that "contractual provisions, which seek to limit the place or court in
We content ourselves with referring to the cases of the Baltimore & Ohio &c. Railway which an action may . . . be brought, are invalid as contrary to public policy." See
v. Voigt, 176 U.S. 498, 505 , 507, and Knott v. Botany Mills, 179 U.S. 69, 71 [(1900)], Dougherty, Validity of Contractual Provision Limiting Place or Court in Which Action
where the previously adjudged cases are referred to and the principles [499 U.S. 585, May Be Brought, 31 A.L.R.4th 404, 409, 3 (1984). See also Home Insurance Co. v.
599] by them expounded are restated." The Kensington, 183 U.S. 263, 268 (1902). Morse, 20 Wall. 445, 451 (1874). Although adherence to this general rule has
declined in recent years, particularly following our decision in The Bremen v. Zapata
Off-Shore Co., 407 U.S. 1 (1972), the prevailing rule is still that forum selection
Clauses limiting a carrier's liability or weakening the passenger's right to recover for clauses are not enforceable if they were not freely bargained for, create additional
the negligence of the carrier's employees come in a variety of forms. Complete expense for one party, or deny one party a remedy. See 31 A.L.R. 4th, at 409-438
exemptions from liability for negligence or limitations on the amount of the potential (citing cases). A forum selection clause in a standardized passenger ticket would
damage recovery, 1 requirements that notice of claims be filed within an clearly have been unenforceable under the common law before our decision in The
unreasonably short period of time, 2 provisions mandating a choice of law that is Bremen, see 407 U.S. at 9, and n. 10, and, in my opinion, remains unenforceable
favorable to the defendant in negligence cases, 3 and forum-selection clauses are all under the prevailing rule today.
similarly designed to put a thumb on the carrier's side of the scale of justice. 4 [499
U.S. 585, 600] The Bremen, which the Court effectively treats as controlling this case, had nothing
to say about stipulations printed on the back of passenger tickets. That case
Forum selection clauses in passenger tickets involve the intersection of two strands of involved the enforceability of a forum selection clause in a freely negotiated
CONFLICT OF LAWS 3D 1/08-09 Page 5 of 97 Atty. Jose A. Bernas
international agreement between two large corporations providing for the towage of a west coast forum than in a Florida court several thousand miles from the scene of
vessel from the Gulf of Mexico to the Adriatic Sea. The Court recognized that such the accident.
towage agreements had generally been held unenforceable in American [499 U.S.
585, 602] courts, 5 but held that the doctrine of those cases did not extend to A liberal reading of the 1936 statute is supported by both its remedial purpose and
commercial arrangements between parties with equal bargaining power. by the legislative history's general condemnation of "all such practices." Although
the statute does not specifically mention forum selection clauses, its language is
The federal statute that should control the disposition of the case before us today was broad enough to encompass them. The absence of a [499 U.S. 585, 604] specific
enacted in 1936, when the general rule denying enforcement of forum selection reference is adequately explained by the fact that such clauses were already
clauses was indisputably widely accepted. The principal subject of the statute unenforceable under common law, and would not often have been used by carriers,
concerned the limitation of shipowner liability, but, as the following excerpt from the which were relying on stipulations that purported to exonerate them from liability
House Report explains, the section that is relevant to this case was added as a direct entirely. Cf. Moskal v. United States, 498 U.S. 103, 110 -113 (1990).
response to shipowners' ticketing practices.
The Courts of Appeals, construing an analogous provision of the Carriage of Goods
by Sea Act, 46 U.S.C. App. 1300 et seq., have unanimously held invalid as
limitations on liability forum selection clauses requiring suit in foreign jurisdictions.
"During the course of the hearings on the bill (H.R. 9969) there was also brought to See, e. g., Hughes Drilling Fluids v. M/V Luo Fu Shan, 852 F.2d 840 (CA5 1988),
the attention of the committee a practice of providing on the reverse side of steamship cert. denied, 489 U.S. 1033 (1989); Union Ins. Soc. of Canton, Ltd. v. S.S. Elikon,
tickets that, in the event of damage or injury caused by the negligence or fault of the 642 F.2d 721, 724-25 (CA4 1981); Indussa Corp. v. S.S. Ranborg, 377 F.2d 200,
owner or his servants, the liability of the owner shall be limited to a stipulated amount, 203-204 (CA2 1967). Commentators have also endorsed this view. See, e. g., G.
in some cases $5,000, and in others substantially lower amounts, or that in such Gilmore & C. Black, The Law of Admiralty 145, and n. 23 (2nd ed. 1975);
event the question of liability and the measure of damages shall be determined by Mendelsohn, Liberalism, Choice of Forum Clauses and the Hague Rules, 2 J. of
arbitration. The amendment to chapter 6 of title 48 of the Revised Statutes proposed Maritime Law & Comm. 661, 663-666 (1971). The forum selection clause here does
to be made by section 2 of the committee amendment is intended to, and in the not mandate suit in a foreign jurisdiction, and therefore arguably might have less of
opinion of the committee will, put a stop to all such practices and practices of a like an impact on a plaintiff's ability to recover. See Fireman's Fund American Ins. Cos.
character." H.R.Rep. No. 2517, 74th Cong., 2d Sess., 6-7 (1936) (emphasis added); v. Puerto Rican Forwarding Co., 492 F.2d 1294 (CA1 1974). However, the plaintiffs
see also S.Rep. No. 2061, 74th Cong., 2d Sess., 6-7 (1936). [499 U.S. 585, 603] in this case are not large corporations, but individuals, and the added burden on
them of conducting a trial at the opposite end of the country is likely proportional to
the additional cost to a large corporation of conducting a trial overseas. 6
The intent to "put a stop to all such practices and practices of a like character" was
effectuated in the second clause of the statute. It reads: Under these circumstances, the general prohibition against stipulations purporting
"to lessen, weaken, or avoid" the passenger's right to a trial certainly should be
construed to apply to the manifestly unreasonable stipulation in these passengers'
"It shall be unlawful for the manager, agent, master, or owner of any vessel [499 U.S. 585, 605] tickets. Even without the benefit of the statute, I would
transporting passengers between ports of the United States or between any such port continue to apply the general rule that prevailed prior to our decision in The Bremen
and a foreign port to insert in any rule, regulation, contract, or agreement any to forum selection clauses in passenger tickets.
provision or limitation (1) purporting, in the event of loss of life or bodily injury arising I respectfully dissent.
from the negligence or fault of such owner or his servants, to relieve such owner,
master, or agent from liability, or from liability beyond any stipulated amount, for such
loss or injury, or (2) purporting in such event to lessen, weaken, or avoid the right of
any claimant to a trial by court of competent 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." 46 U.S.C. App.
183c (emphasis added).
The stipulation in the ticket that Carnival Cruise sold to respondents certainly lessens
or weakens their ability to recover for the slip and fall incident that occurred off the
west coast of Mexico during the cruise that originated and terminated in Los Angeles,
California. It is safe to assume that the witnesses - whether other passengers or
members of the crew - can be assembled with less expense and inconvenience at a
Page 407 U. S. 18 The judgment of the Court of Appeals is vacated, and the case is remanded for
further proceedings consistent with this opinion.
foreseeable at the time of contracting. In such circumstances, it should be incumbent
on the party seeking to escape his contract to show that trial in the contractual forum Vacated and remanded.
will be so gravely difficult and inconvenient that he will, for all practical purposes, be MR. JUSTICE WHITE, concurring.
deprived of his day in court. Absent that, there is no basis for concluding that it would
be unfair, unjust, or unreasonable to hold that party to his bargain. I concur in the opinion and judgment of the Court except insofar as the opinion
comments on the issues which are remanded to the District Court. In my view, these
In the course of its ruling on Unterweser's second motion to stay the proceedings in issues are best left for consideration by the District Court in the first instance.
Tampa, the District Court did make a conclusory finding that the balance of
convenience was "strongly" in favor of litigation in Tampa. However, as previously MR. JUSTICE DOUGLAS, dissenting.
noted, in making that finding, the court erroneously placed the burden of proof on Petitioner Unterweser contracted with respondent to tow respondent's drilling barge
Unterweser to show that the balance of convenience was strongly in its favor. from Louisiana to Italy. The towage contract contained a "forum selection clause"
[Footnote 19] Moreover, the finding falls far short of a conclusion that Zapata would
CONFLICT OF LAWS 3D 1/08-09 Page 10 of 97 Atty. Jose A. Bernas
Page 407 U. S. 21 bill in the nature of an interpleader, and a creditor's bill. It looks to a complete and
just disposition of a many-cornered controversy, and is applicable to proceedings in
providing that any dispute must be litigated before the High Court of Justice in rem against the ship, as well as to proceedings in personam against the owner, the
London, England. While the barge was being towed in the Gulf of Mexico, a casualty limitation extending to the owner's property as well as to his person."
was suffered. The tow made for Tampa Bay, he nearest port, where respondent
brought suit for damages in the District Court. Id. at 273 U. S. 215-216.
Petitioners sued respondent in the High Court of Justice in London, which denied The Limitation Court is a court of equity, and, traditionally, an equity court may
respondent's motion to dismiss. enjoin litigation in another court where equitable considerations indicate that the
other litigation might prejudice the proceedings in the Limitation Court. Petitioners'
Petitioners, having previously moved the District Court to dismiss, filed a complaint in petition for limitation
that court seeking exoneration or limitation of liability as provided in 46 U.S.C. § 185.
Respondent filed its claim in the limitation proceedings, asserting the same cause of Page 407 U. S. 23
action as in its original action. Petitioners then filed objections to respondent's claim
and counterclaimed against respondent, alleging the same claims embodied in its subjects them to the full equitable powers of the Limitation Court.
English action, plus an additional salvage claim. Respondent is a citizen of this country. Moreover, if it were remitted to the English
Respondent moved for an injunction against petitioners' litigating further in the court, its substantive rights would be adversely affected. Exculpatory provisions in
English case, and the District Court granted the injunction pending determination of the towage control provide (1) that petitioners, the masters and the crews "are not
the limitation action. Petitioners moved to stay their own limitation proceeding pending responsible for defaults and/or errors in the navigation of the tow" and (2) that
a resolution of the suit in the English court. That motion was denied. 296 F.Supp. 733. "[d]amages suffered by the towed object are in any case for account of its Owners."
That was the posture of the case as it reached the Court of Appeals, petitioners Under our decision in Dixilyn Drilling Corp v. Crescent Towing & Salvage Co., 372
appealing from the last two orders. The Court of Appeals affirmed. 428 F.2d 888, 446 U. S. 697, 372 U. S. 698, "a contract which exempts the tower from liability for its
F.2d 907. own negligence" is not enforceable, though there is evidence in the present record
that it is enforceable in England. That policy was first announced in Bisso v. Inland
Chief Justice Taft, in Hartford Accident Co. v. Southern Pacific, 273 U. S. 207, 273 U. Waterways Corp., 349 U. S. 85, and followed in Boston Metals Co. v. The Winding
S. 214, in discussing the Limitation of Liability Act, said that Gulf, 349 U. S. 122; Dixilyn, supra; Gray v. Johanesson, 287 F.2d 852 (CA5);
California Co. v. Jumonville, 327 F.2d 988 (CA5); American S.S. Co. v. Great Lakes
"the great object of the statute was to encourage shipbuilding, and to induce the Towing Co., 333 F.2d 426 (CA7); D. R. Kincaid, Ltd. v. Trans-Pacific Towing, Inc.,
investment of money in this branch of industry, by limiting the venture of those who 367 F.2d 857 (CA9); A. L. Mechling Barge Lines, Inc. v. Derby Co., 399 F.2d 304
build the ship to the loss of the ship itself or her freight then pending, in cases of (CA5). Cf. United States v. Seckinger, 397 U. S. 203. Although the casualty
damage or wrong, happening without the privity or occurred on the high seas, the Bisso doctrine is nonetheless applicable. The
Page 407 U. S. 22 Scotland, 105 U. S. 24; The Belgenland, 114 U. S. 355; The Gylfe v. The Trujillo,
209 F.2d 386 (CA2).
knowledge of the ship owner, and by the fault or neglect of the master or other
persons on board; that the origin of this proceeding for limitation of liability is to be Moreover, the casualty occurred close to the District Court, a number of potential
found in the general maritime law, differing from the English maritime law; and that witnesses, including respondent's crewmen, reside in that area, and the inspection
such a proceeding is entirely within the constitutional grant of power to Congress to and repair work were done there. The testimony of the tower's crewmen, residing in
establish courts of admiralty and maritime jurisdiction." Germany, is already available by way of depositions taken in the proceedings.
Chief Justice Taft went on to describe how the owner of a vessel who, in case the Page 407 U. S. 24
vessel is found at fault, may limit his liability to the value of the vessel and may bring
all claimants "into concourse in the proceeding, by monition," and they may be
enjoined from suing the owner and the vessel on such claims in any other court. Id. at All in all, the District Court judge exercised his discretion wisely in enjoining
273 U. S. 215. petitioners from pursuing the litigation in England. *
Chief Justice Taft concluded: I would affirm the judgment below.
"[T]his Court has, by its rules and decisions, given the statute a very broad and It is said that, because these parties specifically agreed to litigate their disputes
equitable construction for the purpose of carrying out its purpose and for facilitating a before the London Court of Justice, the District Court, absent "unreasonable"
settlement of the whole controversy over such losses as are comprehended within it, circumstances, should have honored that choice by declining to exercise its
and that all the ease with which rights can be adjusted in equity is intended to be jurisdiction. The forum selection clause, however, is part and parcel of the
given to the proceeding. It is the administration of equity in an admiralty court. . . . The exculpatory provision in the towing agreement which, as mentioned in the text, is
proceeding partakes in a way of the features of a bill to enjoin a multiplicity of suits, a not enforceable in American courts. For only by avoiding litigation in the United
CONFLICT OF LAWS 3D 1/08-09 Page 11 of 97 Atty. Jose A. Bernas
States could petitioners hope to evade the Bisso doctrine.
Judges in this country have traditionally been hostile to attempts to circumvent the
public policy against exculpatory agreements. For example, clauses specifying that
the law of a foreign place (which favors such releases) should control have regularly
been ignored. Thus, in The Kensington, 183 U. S. 263, 183 U. S. 276, the Court held
void an exemption from liability despite the fact that the contract provided that it
should be construed under Belgian law, which was more tolerant. And see E. Gerli &
Co. v. Cunard S.S. Co., 48 F.2d 115, 117 (CA2);Oceanic Steam Nav. Co. v.
Corcoran, 9 F.2d 724, 731 (CA2); In re Lea Fabrics, Inc., 226 F.Supp. 232, 237 (NJ);
F. A. Straus & Co. v. Canadian P. R. Co., 254 N.Y. 407, 173 N.E. 564; Siegelman v.
Cunard White Star, 221 F.2d 189, 199 (CA2) (Frank, J., dissenting). 6A A. Corbin on
Contracts § 1446 (1962).
The instant stratagem of specifying a foreign forum is essentially the same as
invoking a foreign law of construction, except that the present circumvention also
requires the American party to travel across an ocean to seek relief. Unless we are
prepared to overrule Bisso, we should not countenance devices designed solely for
the purpose of evading its prohibition.
It is argued, however, that one of the rationales of the Bisso doctrine, "to protect those
in need of goods or services from being overreached by others who have power to
drive hard bargains" (349 U.S. at 349 U. S. 91), does not apply here, because these
parties may have been of equal bargaining stature. Yet we have often adopted
prophylactic rules rather than attempt to sort the core cases from the marginal ones.
In any event, the other objective of the Bisso doctrine, to "discourage negligence by
making wrongdoers pay damages" (ibid.) applies here and in every case, regardless
of the relative bargaining strengths of the parties.
(a) A forum may assert specific jurisdiction over a nonresident defendant where an I
alleged injury arises out of or relates to actions by the defendant himself that are
purposefully directed toward forum residents, and where jurisdiction would not
otherwise offend "fair play and substantial justice." Jurisdiction in these circumstances A
may not be avoided merely because the defendant did not physically enter the forum.
Pp. 471-478. Burger King Corporation is a Florida corporation whose principal offices are in
Miami. It is one of the world's largest restaurant organizations, with over 3,000
outlets in the 50 States, the Commonwealth of Puerto Rico, and 8 foreign nations.
Burger King conducts approximately 80% of its business through a franchise
(b) An individual's contract with an out-of-state party cannot alone automatically
operation that the company styles the "Burger King System" - "a comprehensive
establish sufficient minimum contacts in the other party's home forum. Instead, the
restaurant format and operating system for the sale of uniform and quality food
prior negotiations and contemplated future consequences, along with the terms of the
products." App. 46. 1 Burger King licenses its franchisees to use its trademarks and
contract and the parties' actual course of dealing, must be evaluated to determine
service marks for a period of 20 years and leases standardized restaurant facilities
CONFLICT OF LAWS 3D 1/08-09 Page 13 of 97 Atty. Jose A. Bernas
to them for the same term. In addition, franchisees acquire a variety of proprietary With some misgivings, Rudzewicz and MacShara finally obtained limited
information concerning the "standards, specifications, procedures and methods for concessions from the Miami headquarters, 8 signed the final agreements, and
operating [471 U.S. 462, 465] a Burger King Restaurant." Id., at 52. They also commenced operations in June 1979. By signing the final agreements, Rudzewicz
receive market research and advertising assistance; ongoing training in restaurant obligated himself personally to payments exceeding $1 million over the 20-year
management; 2 and accounting, cost-control, and inventory-control guidance. By franchise relationship. [471 U.S. 462, 468]
permitting franchisees to tap into Burger King's established national reputation and to
benefit from proven procedures for dispensing standardized fare, this system enables The Drayton Plains facility apparently enjoyed steady business during the summer
them to go into the restaurant business with significantly lowered barriers to entry. 3 of 1979, but patronage declined after a recession began later that year. Rudzewicz
and MacShara soon fell far behind in their monthly payments to Miami.
In exchange for these benefits, franchisees pay Burger King an initial $40,000 Headquarters sent notices of default, and an extended period of negotiations began
franchise fee and commit themselves to payment of monthly royalties, advertising and among the franchisees, the Birmingham district office, and the Miami headquarters.
sales promotion fees, and rent computed in part from monthly gross sales. After several Burger King officials in Miami had engaged in prolonged but ultimately
Franchisees also agree to submit to the national organization's exacting regulation of unsuccessful negotiations with the franchisees by mail and by telephone, 9
virtually every conceivable aspect of their operations. 4 Burger King imposes these headquarters terminated the franchise and ordered Rudzewicz and MacShara to
standards and undertakes its rigid regulation out of conviction that "[u]niformity of vacate the premises. They refused and continued to occupy and operate the facility
service, appearance, and quality of product is essential to the preservation of the as a Burger King restaurant.
Burger King image and the benefits accruing therefrom to both Franchisee and
Franchisor." Id., at 31.
Burger King oversees its franchise system through a two-tiered administrative B
structure. The governing contracts [471 U.S. 462, 466] provide that the franchise Burger King commenced the instant action in the United States District Court for the
relationship is established in Miami and governed by Florida law, and call for payment Southern District of Florida in May 1981, invoking that court's diversity jurisdiction
of all required fees and forwarding of all relevant notices to the Miami headquarters. 5 pursuant to 28 U.S.C. 1332(a) and its original jurisdiction over federal trademark
The Miami headquarters sets policy and works directly with its franchisees in disputes pursuant to 1338(a). 10 Burger King alleged that Rudzewicz and
attempting to resolve major problems. See nn. 7, 9, infra. Day-to-day monitoring of MacShara had breached their franchise obligations "within [the jurisdiction of] this
franchisees, however, is conducted through a network of 10 district offices which in district court" by failing to make the required payments "at plaintiff's place of
turn report to the Miami headquarters. business in Miami, Dade County, Florida," _ 6, App. 121, and also charged that they
The instant litigation grows out of Burger King's termination of one of its franchisees, were tortiously infringing [471 U.S. 462, 469] its trademarks and service marks
and is aptly described by the franchisee as "a divorce proceeding among commercial through their continued, unauthorized operation as a Burger King restaurant, __ 35-
partners." 5 Record 4. The appellee John Rudzewicz, a Michigan citizen and resident, 53, App. 130-135. Burger King sought damages, injunctive relief, and costs and
is the senior partner in a Detroit accounting firm. In 1978, he was approached by attorney's fees. Rudzewicz and MacShara entered special appearances and
Brian MacShara, the son of a business acquaintance, who suggested that they jointly argued, inter alia, that because they were Michigan residents and because Burger
apply to Burger King for a franchise in the Detroit area. MacShara proposed to serve King's claim did not "arise" within the Southern District of Florida, the District Court
as the manager of the restaurant if Rudzewicz would put up the investment capital; in lacked personal jurisdiction over them. The District Court denied their motions after
exchange, the two would evenly share the profits. Believing that MacShara's idea a hearing, holding that, pursuant to Florida's long-arm statute, "a non-resident
offered attractive investment and tax-deferral opportunities, Rudzewicz agreed to the Burger King franchisee is subject to the personal jurisdiction of this Court in actions
venture. 6 id., at 438-439, 444, 460. arising out of its franchise agreements." Id., at 138. Rudzewicz and MacShara then
filed an answer and a counterclaim seeking damages for alleged violations by
Rudzewicz and MacShara jointly applied for a franchise to Burger King's Birmingham, Burger King of Michigan's Franchise Investment Law, Mich. Comp. Laws 445.1501
Michigan, district office in the autumn of 1978. Their application was forwarded to et seq. (1979).
Burger King's Miami headquarters, which entered into a preliminary agreement with
them in February 1979. During the ensuing four months it was agreed that Rudzewicz After a 3-day bench trial, the court again concluded that it had "jurisdiction over the
and MacShara would assume operation of an existing facility in Drayton Plains, subject matter and the parties to this cause." App. 159. Finding that Rudzewicz and
Michigan. MacShara attended the prescribed management courses in Miami during MacShara had breached their franchise agreements with Burger King and had
this period, see n. 2, supra, and the franchisees purchased $165,000 worth of infringed Burger King's trademarks and service marks, the court entered judgment
restaurant equipment from Burger King's Davmor Industries division in [471 U.S. 462, against them, jointly and severally, for $228,875 in contract damages. The court
467] Miami. Even before the final agreements were signed, however, the parties also ordered them "to immediately close Burger King Restaurant Number 775 from
began to disagree over site-development fees, building design, computation of continued operation or to immediately give the keys and possession of said
monthly rent, and whether the franchisees would be able to assign their liabilities to a restaurant to Burger King Corporation," id., at 163, found that they had failed to
corporation they had formed. 6 During these disputes Rudzewicz and MacShara prove any of the required elements of their counterclaim, and awarded costs and
negotiated both with the Birmingham district office and with the Miami headquarters. 7 attorney's fees to Burger King.
"Given that the office in Rudzewicz' home state conducted all of the negotiations and
wholly supervised the contract, we believe that he had reason to assume that the
state of the supervisory office would be the same state in which Burger King would
file suit. Rudzewicz lacked fair notice that the distant corporate headquarters which
insulated itself from direct dealings with him would later seek to assert jurisdiction
over him in the courts of its own home state. . . .
"Just as Rudzewicz lacked notice of the possibility of suit in Florida, he was financially
unprepared to meet its added costs. The franchise relationship in particular is fraught
with potential for financial surprise. The device of the franchise gives local retailers
the access to national trademark recognition which enables them to compete with
better-financed, more efficient chain stores. This national affiliation, however, does
not alter the fact that the typical franchise store is a local concern serving at best a
neighborhood or community. Neither the revenues of a local business nor the
geographical range of its market prepares the average franchise owner for the cost of
distant litigation. . . .
"We discern a characteristic disparity of bargaining power in the facts of this case.
There is no indication that Rudzewicz had any latitude to negotiate a reduced rent or
franchise fee in exchange for the added risk of suit in Florida. He signed a standard
form contract whose terms were non-negotiable and which appeared [471 U.S. 462,
490] in some respects to vary from the more favorable terms agreed to in earlier
discussions. In fact, the final contract required a minimum monthly rent computed on
a base far in excess of that discussed in oral negotiations. Burger King resisted price
concessions, only to sue Rudzewicz far from home. In doing so, it severely impaired
his ability to call Michigan witnesses who might be essential to his defense and
counterclaim.
"In sum, we hold that the circumstances of the Drayton Plains franchise and the
negotiations which led to it left Rudzewicz bereft of reasonable notice and financially
unprepared for the prospect of franchise litigation in Florida. Jurisdiction under these
CONFLICT OF LAWS 3D 1/08-09 Page 19 of 97 Atty. Jose A. Bernas
arising out of the conditions and provisions of this ticket,
SECOND DIVISION irrespective of where it is issued, shall be filed in the competent
courts in the City of Cebu. 3
G.R. No. L-37750 May 19, 1978
The motion was denied by the trial court. 4 Petitioner moved to reconnsider the
order of denial, but no avail. 5 Hence, this instant petition for prohibition for
SWEET LINES, INC., petitioner, preliminary injunction, 'alleging that the respondent judge has departed from the
vs. accepted and usual course of judicial preoceeding" and "had acted without or in
HON. BERNARDO TEVES, Presiding Judge, CFI of Misamis Oriental Branch VII, excess or in error of his jurisdicton or in gross abuse of discretion. 6
LEOVIGILDO TANDOG, JR., and ROGELIO TIRO, respondents.
In Our resolution of November 20, 1973, We restrained respondent Judge from
Filiberto Leonardo, Abelardo C. Almario & Samuel B. Abadiano for petitioner. proceeding further with the case and required respondent to comment. 7 On January
18, 1974, We gave due course to the petition and required respondent to answer. 8
Leovigildo Vallar for private respondents. Thereafter, the parties submitted their respesctive memoranda in support of their
respective contentions. 9
Briefly, the facts of record follow. Private respondents Atty. Leovigildo Tandog and Petitioner contends thaty Condition No. 14 is valid and enforceable, since private
Rogelio Tiro, a contractor by professions, bought tickets Nos. 0011736 and 011737 respndents acceded to tit when they purchased passage tickets at its Cagayan de
for Voyage 90 on December 31, 1971 at the branch office of petitioner, a shipping Oro branch office and took its vessel M/S "Sweet Town" for passage to Tagbilaran,
company transporting inter-island passengers and cargoes, at Cagayan de Oro City. Bohol � that the condition of the venue of actions in the City of Cebu is proper
Respondents were to board petitioner's vessel, M/S "Sweet Hope" bound for since venue may be validly waived, citing cases; 10 that is an effective waiver of
Tagbilaran City via the port of Cebu. Upon learning that the vessel was not venue, valid and binding as such, since it is printed in bold and capital letters and
proceeding to Bohol, since many passengers were bound for Surigao, private not in fine print and merely assigns the place where the action sing from the
respondents per advice, went to the branch office for proper relocation to M/S "Sweet contract is institution likewise citing cases; 11 and that condition No. 14 is
Town". Because the said vessel was already filled to capacity, they were forced to unequivocal and mandatory, the words and phrases "any and all", "irrespective of
agree "to hide at the cargo section to avoid inspection of the officers of the Philippine where it is issued," and "shag" leave no doubt that the intention of Condition No. 14
Coastguard." Private respondents alleged that they were, during the trip," "exposed to is to fix the venue in the City of Cebu, to the exclusion of other places; that the
the scorching heat of the sun and the dust coming from the ship's cargo of corn grits," orders of the respondent Judge are an unwarranted departure from established
and that the tickets they bought at Cagayan de Oro City for Tagbilaran were not jurisprudence governing the case; and that he acted without or in excess of his
honored and they were constrained to pay for other tickets. In view thereof, private jurisdiction in is the orders complained of. 12
respondents sued petitioner for damages and for breach of contract of carriage in the
alleged sum of P10,000.00 before respondents Court of First Instance of Misamis
Oriental. 2 On the other hand, private respondents claim that Condition No. 14 is not valid, that
the same is not an essential element of the contract of carriage, being in itself a
different agreement which requires the mutual consent of the parties to it; that they
Petitioner moved to dismiss the complaint on the ground of improper venue. This had no say in its preparation, the existence of which they could not refuse, hence,
motion was premised on the condition printed at the back of the tickets, i.e., Condition they had no choice but to pay for the tickets and to avail of petitioner's shipping
No. 14, which reads: facilities out of necessity; that the carrier "has been exacting too much from the
public by inserting impositions in the passage tickets too burdensome to bear," that
14. It is hereby agreed and understood that any and all actions the condition which was printed in fine letters is an imposition on the riding public
CONFLICT OF LAWS 3D 1/08-09 Page 20 of 97 Atty. Jose A. Bernas
and does not bind respondents, citing cases; 13 that while venue 6f actions may be participation in the 'agreement' being reduced to the alternative 'to
transferred from one province to another, such arrangement requires the "written take it or leave it,' labelled since Raymond Saleilles 'contracts by
agreement of the parties", not to be imposed unilaterally; and that assuming that the adherence' (contracts d' adhesion) in contrast to those entered
condition is valid, it is not exclusive and does not, therefore, exclude the filing of the into by parties bargaining on an equal footing. Such contracts (of
action in Misamis Oriental, 14 which policies of insurance and international bill of lading are
prime examples) obviously cap for greater strictness and vigilance
There is no question that there was a valid contract of carriage entered into by on the part of the courts of justice with a view to protecting the
petitioner and private respondents and that the passage tickets, upon which the latter weaker party from abuses and imposition, and prevent their
based their complaint, are the best evidence thereof. All the essential elements of a becoming traps for the unwary.
valid contract, i.e., consent, cause or consideration and object, are present. As held in
Peralta de Guerrero, et al. v. Madrigal Shipping Co., Inc., 15 To the same effect and import, and, in recognition of the character of contracts of
this kind, the protection of the disadvantaged is expressly enjoined by the New Civil
It is a matter of common knowledge that whenever a passenger Code �
boards a ship for transportation from one place to another he is
issued a ticket by the shipper which has all the elements of a In all contractual property or other relations, when one of the
written contract, Namely: (1) the consent of the contracting parties parties is at a disadvantage on account of his moral dependence,
manifested by the fact that the passenger boards the ship and the ignorance indigence, mental weakness, tender age and other
shipper consents or accepts him in the ship for transportation; (2) handicap, the courts must be vigilant for his
cause or consideration which is the fare paid by the passenger as protection. 19
stated in the ticket; (3) object, which is the transportation of the
passenger from the place of departure to the place of destination Considered in the light Of the foregoing norms and in the context Of circumstances
which are stated in the ticket. Prevailing in the inter-island ship. ping industry in the country today, We find and
hold that Condition No. 14 printed at the back of the passage tickets should be held
It should be borne in mind, however, that with respect to the fourteen (14) conditions as void and unenforceable for the following reasons first, under circumstances
� one of which is "Condition No. 14" which is in issue in this case � printed at the obligation in the inter-island ship. ping industry, it is not just and fair to bind
back of the passage tickets, these are commonly known as "contracts of adhesion," passengers to the terms of the conditions printed at the back of the passage tickets,
the validity and/or enforceability of which will have to be determined by the peculiar on which Condition No. 14 is Printed in fine letters, and second, Condition No. 14
circumstances obtaining in each case and the nature of the conditions or terms subverts the public policy on transfer of venue of proceedings of this nature, since
sought to be enforced. For, "(W)hile generally, stipulations in a contract come about the same will prejudice rights and interests of innumerable passengers in different s
after deliberate drafting by the parties thereto, ... there are certain contracts almost all of the country who, under Condition No. 14, will have to file suits against petitioner
the provisions of which have been drafted only by one party, usually a corporation. only in the City of Cebu.
Such contracts are called contracts of adhesion, because the only participation of the
party is the signing of his signature or his 'adhesion' thereto. Insurance contracts, bills 1. It is a matter of public knowledge, of which We can take judicial notice, that there
of lading, contracts of make of lots on the installment plan fall into this category" 16 is a dearth of and acute shortage in inter- island vessels plying between the
country's several islands, and the facilities they offer leave much to be desired.
By the peculiar circumstances under which contracts of adhesion are entered into � Thus, even under ordinary circumstances, the piers are congested with passengers
namely, that it is drafted only by one party, usually the corporation, and is sought to and their cargo waiting to be transported. The conditions are even worse at peak
be accepted or adhered to by the other party, in this instance the passengers, private and/or the rainy seasons, when Passengers literally scramble to whatever
respondents, who cannot change the same and who are thus made to adhere thereto accommodations may be availed of, even through circuitous routes, and/or at the
on the "take it or leave it" basis � certain guidelines in the determination of their risk of their safety � their immediate concern, for the moment, being to be able to
validity and/or enforceability have been formulated in order to that justice and fan play board vessels with the hope of reaching their destinations. The schedules are � as
characterize the relationship of the contracting parties. Thus, this Court speaking often as not if not more so � delayed or altered. This was precisely the experience
through Justice J.B.L. Reyes in Qua Chee Gan v. Law Union and Rock Insurance of private respondents when they were relocated to M/S "Sweet Town" from M/S
Co., 17 and later through Justice Fernando in Fieldman Insurance v. Vargas, 18 held � "Sweet Hope" and then any to the scorching heat of the sun and the dust coming
from the ship's cargo of corn grits, " because even the latter was filed to capacity.
The courts cannot ignore that nowadays, monopolies, cartels and
concentration of capital endowed with overwhelm economic power, Under these circumstances, it is hardly just and proper to expect the passengers to
manage to impose upon parties d with them y prepared examine their tickets received from crowded/congested counters, more often than
'agreements' that the weaker party may not change one whit his not during rush hours, for conditions that may be printed much charge them with
CONFLICT OF LAWS 3D 1/08-09 Page 21 of 97 Atty. Jose A. Bernas
having consented to the conditions, so printed, especially if there are a number of WHEREFORE, the petition for prohibition is DISMISS. ED. The restraining order
such conditions m fine print, as in this case. 20 issued on November 20, 1973, is hereby LIFTED and SET ASIDE. Costs against
petitioner.
Again, it should be noted that Condition No. 14 was prepared solely at the ms of the
petitioner, respondents had no say in its preparation. Neither did the latter have the Fernando (Chairman), Aquino, Concepcion, Jr., JJ., concur.
opportunity to take the into account prior to the purpose chase of their tickets. For,
unlike the small print provisions of contracts � the common example of contracts of Antonio, J., reserves his vote.
adherence � which are entered into by the insured in his awareness of said
conditions, since the insured is afforded the op to and co the same, passengers of
inter-island v do not have the same chance, since their alleged adhesion is presumed
only from the fact that they purpose chased the tickets.
Separate Opinions
It should also be stressed that slapping companies are franchise holders of
certificates of public convenience and therefore, posses a virtual monopoly over the BARREDO, J., concurring:
business of transporting passengers between the ports covered by their franchise.
This being so, shipping companies, like petitioner, engaged in inter-island shipping, I concur in the dismissal of the instant petition.
have a virtual monopoly of the business of transporting passengers and may thus
dictate their terms of passage, leaving passengers with no choice but to buy their
tickets and avail of their vessels and facilities. Finally, judicial notice may be taken of Only a few days ago, in Hoechst Philippines, Inc. vs. Francisco Torres, et al., G. R.
the fact that the bulk of those who board these inter-island vested come from the low- No. L-44351, promulgated May 18, 1978, We made it clear that although generally,
income groups and are less literate, and who have little or no choice but to avail of agreements regarding change of venue are enforceable, there may be instances
petitioner's vessels. where for equitable considerations and in the better interest of justice, a court may
justify the laying of, the venue in the place fixed by the rules instead of following
written stipulation of the parties.
2. Condition No. 14 is subversive of public policy on transfers of venue of actions.
For, although venue may be changed or transferred from one province to another by
agreement of the parties in writing t to Rule 4, Section 3, of the Rules of Court, such In the particular case at bar, there is actually no written agreement as to venue
an agreement will not be held valid where it practically negates the action of the between the parties in the sense contemplated in Section 3 of Rule 4, which
claimants, such as the private respondents herein. The philosophy underlying the governs the matter. I take it that the importance that a stipulation regarding change
provisions on transfer of venue of actions is the convenience of the plaintiffs as well of the venue fixed by law entails is such that nothing less than mutually conscious
as his witnesses and to promote 21 the ends of justice. Considering the expense and agreement as to it must be what the rule means. In the instant case, as well pointed
trouble a passenger residing outside of Cebu City would incur to prosecute a claim in out in the main opinion, the ticket issued to private respondents by petitioner
the City of Cebu, he would most probably decide not to file the action at all. The constitutes at best a "contract of adhesion". In other words, it is not that kind of a
condition will thus defeat, instead of enhance, the ends of justice. Upon the other contract where the parties sit down to deliberate, discuss and agree specifically on
hand, petitioner has branches or offices in the respective ports of call of its vessels all its terms, but rather, one which respondents took no part at all in preparing, since
and can afford to litigate in any of these places. Hence, the filing of the suit in the CFI it was just imposed upon them when they paid for the fare for the freight they
of Misamis Oriental, as was done in the instant case, will not cause inconvenience to, wanted to ship. It is common knowledge that individuals who avail of common
much less prejudice, petitioner. carriers hardly read the fine prints on such tickets to note anything more than the
price thereof and the destination designated therein.
Public policy is ". . . that principle of the law which holds that no subject or citizen can
lawfully do that which has a tendency to be injurious to the public or against the public Under these circumstances, it would seem that, since this case is already in
good ... 22 Under this principle" ... freedom of contract or private dealing is restricted respondent court and there is no showing that, with its more or less known
by law for the good of the public. 23 Clearly, Condition No. 14, if enforced, will be resources as owner of several inter-island vessels plying between the different ports
subversive of the public good or interest, since it will frustrate in meritorious cases, of the Philippines for sometime already, petitioner would be greatly inconvenienced
actions of passenger cants outside of Cebu City, thus placing petitioner company at a by submitting to the jurisdiction of said respondent court, it is best to allow the
decided advantage over said persons, who may have perfectly legitimate claims proceedings therein to continue. I cannot conceive of any juridical injury such a step
against it. The said condition should, therefore, be declared void and unenforceable, can cause to anyone concerned. I vote to dismiss the petition.
as contrary to public policy � to make the courts accessible to all who may have
need of their services. Footnotes
7 Id., p. 30.
8 Id., p. 47.
13 Shewaram v PAL Inc., G.R. No. L-20099, July 7, 1966, 17 SCRA 606-612;
Mirasol vs. Robert Dollar and Company, 53 Phil 124, See Rollo, p. 79.
17 98 Phil 95 (1955).
20 Condition No. 14 is the last condition printed at the back of the 4 x 6 inches pa
tickets.
The laws of the state in which the domicile of a decedent is at the time of his death The sole question presented for our determination is whether the said *597 Michael
control and govern the distribution of his personal estate, although he may die in White, at the time of his death, in May, 1885, had his legal domicile in this state or in
another state. the state of Pennsylvania. It is admitted to be the settled law that the law of the state
in which the decedent had his domicile at the time of his death will control the
Appeal from circuit court, Monongalia county. succession and distribution of his personal estate. Before referring to the facts
proved in this cause, we shall endeavor to determine what in law is meant by
Action by William L. White and others against Emrod Tennant, administrator, and “domicile.” Dr. Wharton says: “‘Domicile’ is a residence acquired as a final abode.
another, to set aside a certain settlement and distribution. From a decree dismissing To constitute it there must be (1) residence, actual or inchoate; (2) the non-
the bill, plaintiffs appeal. existence of any intention to make a domicile elsewhere.”Whart. Confl. Law, §
21.“‘Domicile’ is that place or country, either (1) in which a person in fact resides
West Headnotes with an intention of residence,-animus manendi; or (2) in which, having so resided,
he continues actually to reside, though no longer retaining the intention of
Descent and Distribution 124 5 residence,-animus manendi; or (3) with regard to which, having so resided there, he
retains the intention of residence,-animus manendi,-though he in fact no longer
124 Descent and Distribution resides there.”Dicey, Dom. 44. Two things must concur to establish domicile,-the
124I Nature and Course in General fact of residence, and the intention of remaining. These two must exist, or must
124k2 What Law Governs have existed, in combination. There must have been an actual residence. The
124k5 k. Personal Property. Most Cited Cases character of the residence is of no importance; and, if domicile has once existed,
The laws of the state in which the domicile of a decedent is at the time of his death mere temporary absence will not destroy it, however long continued.Munro v.
control and govern the distribution of his personal estate, although he may die in Munro, 7 Clark & F. 842. The original domicile continues until it is fairly changed for
another state. another. It is a legal maxim that every person must have a domicile somewhere;
and he can have but one at a time for the same purpose. From this it follows that
Domicile 135 4(2) one domicile cannot be lost or extinguished until another is acquired.Baird v. Byrne,
3 Wall. Jr. 1. When one domicile is definitely abandoned, and a new one selected
135 Domicile and entered upon, length of time is not important; one day will be sufficient,
135k4 Domicile of Choice and Change of Domicile provided the animus exists. Even when the point of destination is not reached,
135k4(2) k. Intent. Most Cited Cases domicile may shift in itinere, if the abandonment of the old domicile, and the setting
Where a person abandons his residence in one state, with no intention of resuming it, out for the new, are plainly shown.Munroe v. Douglas, 5 Madd. 405. Thus a
and goes with his family to a residence which he has rented in another state, with the constructive residence seems to be sufficient to give domicile, though an actual
intention of making the latter his residence for an indefinite time, the latter state is his residence may not have begun. Whart. Confl. Law, § 58. A change of domicile does
domicile, notwithstanding that after he and his family arrive at the new residence, not depend so much upon the intention to remain in the new place for a definite or
which is only about a half a mile from the state line, they go on the same day on a an indefinite period, as upon its being without an intention to return. An intention to
visit to spend the night with a neighbor in the former state, intending to return in the return, however, at a remote or indefinite period, to the former place of actual
residence, will not control, if the other facts which constitute domicile all give the
CONFLICT OF LAWS 3D 1/08-09 Page 24 of 97 Atty. Jose A. Bernas
new residence the character of a permanent home or place of abode. The intention said house had been vacated for several days. It was a damp, cool day, and the
and actual fact of residence must concur, where such residence is not in its nature house was found to be damp and uncomfortable. The wife was complaining of
temporary. Hallet v. Bassett, 100 Mass. 170, 171; Long v. Ryan, 30 Grat. 718. In feeling unwell, and in consequence of that fact and the uncomfortable condition of
Bradley v. Lowry, 1 Speer, Eq. 1, it is held that “change of domicile is consummated the house, on the invitation of her brother-in-law and others of the family who then
when one leaves the state where he has hitherto resided, avowing his intention not to resided at the mansion-house, but a short distance therefrom, the said Michael and
return, and enters another state intending to permanently settle there.”A domicile his wife went to the mansion-house in West Virginia to stay all night and return in
once acquired remains until a new one is acquired elsewhere, facto et animo. Story, the morning. Before leaving the Pennsylvania house the wife had gotten out of the
Confl. Law, § 47; Hart v. Lindsey, 17 N. H. 235. Where a person removes from one buggy at the house, and the said Michael, after putting into it his household goods,
state to another and establishes a fixed residence in the latter, it will become his locked the door, and took the key with him. On the following morning, the wife still
domicile, although there may be a floating intention to return to his former place of feeling unwell, and the brother, who was to return the team which they had used in
abode at some future period. Ringgold v. Barley, 5 Md. 186.“If a man intending to moving their goods, having taken sick, the wife, after going to the Pennsylvania
remove with his family visits the place of removal beforehand, to make arrangements, house to milk, returned to the mansion-house, and Michael took the team back to
or even sleeps there occasionally for convenience, and then transfers his family, the Day's Run. On the return of Michael from this trip he found his wife so sick with
change of domicile takes effect from the time of removing with the family; but if he has typhoid fever that it was impossible to move her, in consequence of which both he
definitely changed his residence, and taken up his abode permanently in a new place, and she remained at the mansion-house,-she because she was unable to get away,
the fact that his family remains behind until he can remove them conveniently, and and he to wait on her,-but he went daily over to the Pennsylvania house to look after
that he visits them occasionally, will not prevent the new place being his it, and to feed his stock there, calling it his “home.” In 10 or 15 days, and before the
domicile.”Guier v. O'Daniel, 1 Amer. Lead. Cas. (753,) 902; Cambridge v. wife had sufficiently recovered to leave her bed, Michael was attacked with typhoid
Charlestown, 13 Mass. 501. fever, and about 10 days thereafter died intestate in the same house. The wife
recovered, and the defendant Emrod Tennant, her father, administered on the
*598 The material facts in the case at bar are as follows: Joseph S. White, the father estate of Michael, taking out letters of administration in Monongalia county *599 W.
of the plaintiffs and Michael White, died intestate in Monongalia county, seised of a Va. The administrator settled his accounts before a commissioner of said county,
tract of about 240 acres of land, of which about 40 acres lay in Greene county, Pa., and distributed the estate according to the laws of West Virginia; that is, by paying
but the whole constituted but one tract or farm. The mansion-house in which the over to the widow the whole personal estate remaining after the payment of the
father resided was located on the West Virginia side of the farm, and there was also a debts of the decedent. It is admitted that if the distribution had been according to the
dwelling-house generally occupied by tenants on the Pennsylvania part of the laws of the state of Pennsylvania the wife would have been entitled to the one-half
farm. After the death of the father, his widow and the plaintiffs remained together and only of said estate, and the plaintiffs would have been entitled to the other half. As
occupied the home farm, residing in the mansion-house in West Virginia. Michael the law of the state in which the decedent had his domicile at the time of his death
White, several years before his death, married the defendant Lucinda White, a must govern the distribution of his estate, the important question is, where,
daughter of the defendant Emrod Tennant, and about that time purchased a farm on according to the foregoing facts, was the domicile of Michael at the time of his
Day's Run, in Monongalia county, some 15 miles distant from the home place, to death? It is unquestionable that prior to the 2d day of April, 1885, his domicile was
which he moved, and at which he and his wife resided. It is conceded that Michael and had always been in the state of West Virginia. Did he on that day, or at any
was born and had his domicile in West Virginia all his life, until about April 1, 1885. In subsequent day, change his domicile to the state of Pennsylvania? According to the
the winter of 1884-85, Michael sold his Day's Run farm, and then rented or made an authorities hereinbefore cited, if it is shown that a person has entirely abandoned his
arrangement with his mother and brothers and sisters, the plaintiffs, to occupy the 40 former domicile in one state with the intention of making his home at a fixed place in
acres of the home farm, in which he still had an undivided interest, and to live in the another state, with no intention of returning to his former domicile, and then
house on said 40 acres in Greene county, Pa. He was to give to the purchaser the establishes a residence in the new place for any period of time, however brief, that
possession of his Day's Run farm on April 1, 1885, and to have possession of the will be in law a change of domicile, and the latter will remain his domicile until
Pennsylvania house and 40 acres at the same time. In March, 1885, he moved part changed in like manner. The facts in this case conclusively prove that Michael
of his household goods into the Pennsylvania house, and put them into one of the White, the decedent, abandoned his residence in West Virginia with the intention
rooms by permission of the tenant who then occupied it, and who did not vacate it and purpose not only of not returning to it, but for the expressed purpose of making
until between the middle and last of March, 1885. About the same time he moved an a fixed place in the state of Pennsylvania his home for an indefinite time. This fact is
organ and some grain to the old homestead, until he could get possession of the shown by all the circumstances, as well as by his declarations and acts. He had
Pennsylvania house. On the morning of April 2, 1885, he finally left the Day's Run sold his residence in West Virginia, and surrendered its possession to the
house with the remainder of his goods and his wife, he having no children, with the purchaser, and thereby made it impossible for him to return to it and make it his
declared intent and purpose of making the Pennsylvania house his home that home. He rented a dwelling in Pennsylvania, for which he had no use except to live
evening. He, with his team, wife, and goods, and live-stock, passed into the state of in, and make it his home. In addition to all this, he had moved a part of his
Pennsylvania several miles before he reached said house, and continued in said household goods into this house, and then, on the 2d of April, 1885, he, with his
state thence to said Pennnsylvania house, where they arrived that evening about family and the remainder of his goods and stock, finally left his former home, and
sundown, and then and there unloaded their goods, and put them in the house, the state of West Virginia, and moved into the state of Pennsylvania, to his house in
setting up one bed, and turning the fowls and other live-stock loose at the house. The that state, and there put his goods in the house, and turned his stock loose on the
CONFLICT OF LAWS 3D 1/08-09 Page 25 of 97 Atty. Jose A. Bernas
premises. At the time he left his former home on that morning, and while he was on
the way to his new home, his declared purpose and intention were to make that his
home from that very day, and to occupy it that night. He arrived in Pennsylvania and
at his new home with that intention; and it was only after he arrived there, and for
reasons not before known, and which had no effect to change his purpose of making
that his future home, that he failed to remain there from that time. There was no
change in his purpose except that after he arrived at his new home, and unloaded
and left his property there, he concluded, on account of the condition of the house
and the illness of his wife, that it would be better to go with his wife to remain one
night with his relatives, and return the next morning. When he left his former home,
without any intention of returning, and in pursuance of that intention did in fact move
with his family and effects to his new home with the intention of making it his
residence for an indefinite time, it is my opinion that when he and his wife arrived at
his new home it became eo instanti his domicile, and that his leaving there, under the
circumstances he did, with the intention of returning the next day, did not change the
fact. By the concurrence of his intention to make the Pennsylvania house his
permanent residence with the fact that he had actually abandoned his former
residence, and moved to and put his goods in the new one, made the latter his
domicile. He, according to the authorities hereinbefore referred to must of necessity
have a domicile somewhere. If he did not have one in Pennsylvania, where did he
have one? His leaving the Pennsylvania house after he had moved to it with his
family and goods, to spend the night, did not revive his domicile at his former
residence on Day's Run, because he had *600 sold that, and left it without any
purpose of returning there. By going from his new home to the house of his relatives
to spend the night he certainly did not make the house thus visited his domicile;
therefore, unless the Pennsylvania house was, on the evening of April 2, 1885, his
domicile, he was in the anomalous position of being without a domicile anywhere,
which, as we have seen, is a legal impossibility; and that house having become his
domicile, there is nothing in this case to show that he ever did in fact change or intend
to change it, or to establish a domicile elsewhere.
It follows, therefore, that that house remained his domicile up to and at the time of his
death; and, that house being in the state of Pennsylvania, the laws of that state must
control the distribution of his personal estate, notwithstanding the fact that he died in
the state of West Virginia. For these reasons the decree of the circuit court must be
reversed, and the cause must be remanded to that court to be there further
proceeded in according to the principles announced in this opinion, and the rules of
courts of equity.
END OF DOCUMENT
[7] Federal Courts 170B 45 The prevailing winds on the early morning of December 3, 1984 were from
Northwest to Southeast. They blew the deadly gas into the overpopulated hutments
170B Federal Courts adjacent to the plant and into the most densely occupied parts of the city. The
170BI Jurisdiction and Powers in General results were horrendous. Estimates of deaths directly attributable to the leak range
170BI(B) Right to Decline Jurisdiction; Abstention Doctrine as high as 2,100. No one is sure exactly how many perished. Over 200,000 people
170Bk45 k. Forum Non Conveniens. Most Cited Cases suffered injuries-some serious and permanent-some mild and temporary. Livestock
Better ability of Indian legal system to determine cause of gas leak at chemical plant were killed and crops damaged. Businesses were interrupted.
in Bhopal and to thereby fix liability, Indian court's greater access to information
needed to arrive at appropriate compensation, presence in India of overwhelming On December 7, 1984 the first lawsuit was filed by American lawyers in the United
majority of witnesses and evidence as well as claimants, and significant interest of States on behalf of thousands of Indians. Dawani et al. v. Union Carbide Corp.,
India in accident and its aftermath, required that multidistrict litigation for injuries and S.D.W.Va. (84-2479). Since then 144 additional actions have been commenced in
damages resulting from leak be dismissed on grounds of forum non conveniens federal courts in the United States. The actions have all been joined and assigned
subject to conditions that plant owner consented to submit to jurisdiction of courts of by the Judicial Panel on Multidistrict Litigation to the Southern District of New York
India and continued to waive defenses based upon statute of limitations, that it by order of February 6, 1985, 601 F.Supp. 1035.
agreed to satisfy any judgment rendered in Indian court, and that it be subject to
discovery under model of United States Federal Rules of Civil Procedure after The individual federal court complaints have been superseded by a consolidated
appropriate demand. complaint filed on June 28, 1985.
*843 Robins, Zelle, Larson & Kaplan, Minneapolis, Michael V. Ciresi, Bruce A. The Indian Government on March 29, 1985 enacted legislation, the Bhopal Gas
Finzen, Roberta B. Walburn, D.S. Sastri of counsel. Barrett, Smith, Schapiro, Simon Leak Disaster (Processing of Claims) Act (21 of 1985) (“Bhopal Act”), providing that
& Armstrong, New York City, Gerald A. Novack, of counsel, for the Union of India. the Government of India has the exclusive right to represent Indian plaintiffs in India
Waite, Schneider, Bayless & Chesley Co., L.P.A., Cincinnati, Ohio, Stanley M. and elsewhere in connection with the tragedy. Pursuant to the Bhopal Act, the
Chesley, Phillip B. Allen, Jan Levien, of counsel, Bailey & Broder, New York City, F. Union of India, on April 8, 1985, filed a complaint with this Court setting forth claims
Lee Bailey, Michael C. Zwal, of counsel, for individual plaintiffs. for relief similar to those in the consolidated complaint of June 28, 1985.
Hoffinger, Friedland, Dobrish, Bernfeld & Hasen, New York City, Jack S. Hoffinger, of
counsel, Liaison Counsel. By order of April 25, 1985 this Court established a Plaintiffs' Executive Committee,
Kelley Drye & Warren, New York City, Bud G. Holman, William A. Krohley, Lisa E. comprised of F. Lee Bailey and Stanley M. Chesley, Esqs., who represented
Cleary, of counsel, for defendant. individual plaintiffs and Michael V. Ciresi, Esq., whose firm represents the Union of
Christic Institute, Washington, D.C., Rob Hager, Shelley D. Hayes, of counsel, for India. Jack S. Hoffinger, Esq., who represents individual plaintiffs, was appointed
Amicus Curiae. liaison counsel for the Plaintiffs' Executive Committee.FN1
*844 OPINION AND ORDER FN1. All counsel on the Plaintiffs' Executive Committee were most
professional and helpful to the Court in this case. Mr. Hoffinger agreed to
KEENAN, District Judge: proceed pro bono in this case, and waived any possible fee. The Court has
been informed that neither Mr. Hoffinger, nor anyone else on the Plaintiffs'
FACTUAL BACKGROUND Executive Committee, nor anyone in their law firms went to India on the
days immediately following the tragedy to “sign up” Indian plaintiffs. The
On the night of December 2-3, 1984 the most tragic industrial disaster in history behavior of many American lawyers who went to Bhopal, India during
occurred in the city of Bhopal, state of Madhya Pradesh, Union of India. Located there December 1984 and January 1985 is not before this Court on this motion.
was a chemical plant owned and operated by Union Carbide India Limited (“UCIL”). Suffice it to say that those members of the American bar who travelled the
The plant, situated in the northern sector of the city, had numerous hutments adjacent 8,200 miles to Bhopal in those months did little to better the American
to it on its southern side which were occupied by impoverished squatters. UCIL image in the Third World-or anywhere else. None of them were on the
manufactured the pesticides Sevin and Temik at the Bhopal plant at the request of, Plaintiffs' Executive Committee.
Before this Court is a motion by the defendant Union Carbide Corporation (“Union “At the outset of any forum non conveniens inquiry, the court must determine
Carbide”) to dismiss the consolidated action on the grounds of forum non conveniens. whether there exists an alternative forum.” Piper at 254, n. 22, 102 S.Ct. at 265, n.
22. The elements of that inquiry are set forth in Piper. First, the Court said,
DISCUSSION “[o]rdinarily, this requirement will be satisfied when the defendant is ‘amenable to
process' in the other jurisdiction.” Piper at 254, n. 22,*846 102 S.Ct. at 265, n. 22,
[1] The doctrine of forum non conveniens allows a court to decline jurisdiction, even quoting Gilbert 330 U.S. at 506-507, 67 S.Ct. at 842. Gilbert states that the
when jurisdiction is authorized by a general venue statute. In support of its position doctrine of forum non conveniens“presupposes at least two forums in which the
that the consolidated action before the Court should be transferred to a more defendant is amenable to process.”
convenient forum within the Union of India pursuant to this doctrine, Union Carbide
relies on the United States Supreme Court's decisions in Gulf Oil Corp. v. Gilbert, 330 [3] Extending the limited inquiry of Gilbert, the Piper Court delved into the relevance
U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) and Piper Aircraft Co. v. Reyno, 454 of the substantive and procedural differences in law which would be applied in the
U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). The plaintiffs cite numerous other event a case was transferred on the grounds of forum non conveniens. The Piper
lower United States federal court cases in their briefs and seek to distinguish the Court determined that it was theoretically inconsistent with the underlying doctrine of
Supreme Court's decisions from this case. Of course, Gilbert and Piper are the forum non conveniens, as well as grossly impractical, to consider the impact of the
touchstones in sorting out and examining the contentions of both sides to this motion putative transferee forum's law on the plaintiff in its decision on a forum non
on the various factors bearing on convenience. conveniens motion: “[I]f conclusive or substantial weight were given to the possibility
of a change in law, the forum non conveniens doctrine would become virtually
Piper teaches a straightforward formulation of the doctrine of forum non conveniens. useless.” Piper 454 U.S. at 250, 102 S.Ct. at 263.FN2
A district court is advised to determine first whether the proposed alternative forum is
“adequate.” This inquiry should proceed in the order followed below. Then, as a FN2. The Court found a theoretical flaw in the opposite rule, as set forth by
matter within its “sound discretion,” Piper at 257, 102 S.Ct. at 266, the district court the Third Circuit. Noting that a plaintiff would choose the forum with the
should consider relevant public and private interest factors, and reasonably balance most favorable choice of law rules in the first instance, “if the possibility of
those factors, in order to determine whether dismissal is favored. This Court will an unfavorable change in substantive law is given weight in the forum non
approach the various concerns in the same direct manner in which Piper and Gilbert conveniens inquiry, dismissal would rarely be proper.” Piper at 250, 102
set them out. S.Ct. at 263.
At this juncture, it would be appropriate to discuss the presumptions on a forum non The Court listed numerous practical considerations which led to its conclusion that
conveniens motion. In Piper, the Court discussed its earlier finding in Koster v. an unfavorable change in law for plaintiff was not a relevant factor in the forum
Lumbermens Mutual Casualty Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947) , analysis. First, the Court observed that if the chance of a change in law were given
which suggested that a plaintiff's choice of forum was entitled to great deference substantial weight, choice of law questions would “become extremely important.”
when the forum chosen was the home of the plaintiff. This presumption was based on Piper at 251, 102 S.Ct. at 263. U.S. courts would “have to compare the rights,
the fact that the choice of the home forum indicated a reasonable assumption that the remedies, and procedures available” within the two proposed alternative forums, to
choice was convenient. Koster at 524, 67 S.Ct. at 831. Conversely, the Piper Court determine whether a disadvantageous change in law would occur upon transfer. Id.
found: Since “[t]he doctrine of forum non conveniens, however, is designed in part to help
courts avoid conducting complex exercises in comparative law,” the change in law
When the plaintiff is foreign, however, this assumption is much less reasonable. analysis would subvert the doctrine itself. Id. Thus, a court engaged in the inquiry
Because the central purpose of any forum non conveniens inquiry is to ensure that regarding the existence and adequacy of an alternative forum should not hinge its
the trial is convenient, a foreign plaintiff's choice deserves less deference. decision on an unfavorable change in law.FN3
Piper 454 U.S. at 256, 102 S.Ct. at 266 (footnote omitted). FN3. Similarly, the Court determined that “the possibility of a change in law
favorable to defendant should not be considered.” Piper at 252, n. 19,
[2] In the case now before the Court, in which the plaintiffs, including the Union of 102 S.Ct. at 264, n. 19.
CONFLICT OF LAWS 3D 1/08-09 Page 33 of 97 Atty. Jose A. Bernas
and J.B. Dadachanji, each of whom has been admitted to practice in India for over
Another practical concern relating to the “change in law” inquiry was discussed by the 40 years. Both are Senior Advocates before the Supreme Court of India. Mr.
Piper court. Based on the liberality of United States federal law as compared to much Palkhivala served as Indian Ambassador to the United States from 1977 to 1979,
foreign law with respect to availability of strict liability for tort, malleable and diverse and has represented the Indian government on three occasions before international
choice of law rules among the 50 states, availability of jury trials, contingent fee tribunals.
arrangements and extensive discovery provisions, the Court observed that a change
of forum might frequently involve an unfavorable change of law for foreign plaintiffs FN4. Rob Hager, Esq. for Citizens Commission on Bhopal, National
suing American defendants. Piper at 252, n. 18, 102 S.Ct. at 264, n. 18. Council of Churches, United Church of Christ Commission for Racial
Consequently, if the unfavorable change in law were a major factor in the analysis: Justice, et al.
[T]he American courts, which are already extremely attractive to foreign plaintiffs, Although the outcome of this analysis, given the rule of Piper regarding change in
would become even more attractive. The flow of litigation into the United States would law, seems self-evident, the Court will review plaintiffs' argument on the inadequacy
increase and further congest already crowded courts. of the Indian forum out of deference to the plaintiffs.
Piper at 252, 102 S.Ct. at 264 (footnotes omitted). A. Innovation in the Indian Judicial System.
At the point, however, where the possible change in law would provide “no remedy at Professor Galanter describes the Indian common law legal system, inherited from
all” to plaintiff, a court may conclude that no adequate alternative exists. As the Piper the British, in terms of its similarity to that of other common law systems. He
Court observed, it did not hold that: compares the system favorably to that of the United States or Great Britain in terms
of the appellate structure, the rule of stare decisis, the role of the judiciary as
[T]he possibility of an unfavorable change in law should never be a relevant “guardian of [India's] democratic structure and protector of citizens' rights.”
consideration in a forum non conveniens inquiry. Of course, if the remedy provided by (Galanter Aff., at 6-12) before pointing to its ostensible deficiencies. According to
the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at Professor Galanter, India's legal system “was imposed on it” during the period of
all, the unfavorable change in law may be given substantial weight; the district court colonial rule. (Galanter Aff. at 11). Galanter argues that “Indian legal institutions still
may conclude that dismissal would not be in the interests of justice. reflect their colonial origins,” (Galanter Aff. at 12), in terms of the lack of broad-
based legislative activity, inaccessibility of legal information and legal services,
Piper at 254, 102 S.Ct. at 265 (emphasis in original) (footnote omitted). Thus, while it burdensome court filing fees and limited innovativeness with reference to legal
*847 is not a “major factor” in the analysis, a court must at least consider the effect on practice and education. (Galanter Aff. at 12).
plaintiffs of a change in law upon transfer.
On the question of innovativeness, Mr. Palkhivala responds with numerous
[4] To a great extent, the plaintiffs in this case argue that Indian courts do not offer an examples of novel treatment of complex legal issues by the Indian Judiciary.FN5 In
adequate forum for this litigation by virtue of the relative “procedural and discovery the words of the former ambassador of India to the United States, “a legal system is
deficiencies [which] would thwart the victims' quest for” justice. (Memorandum in not *848 a structure of fossils but is a living organism which grows through the
Opposition by Plaintiffs' Executive Committee (“Memo in Opp.”) at 2). The defendant judicial process and statutory enactments.” (Palkhavala Aff. at 3). The examples
disputes this contention. cited by defendant's experts suggest a developed and independent judiciary.
Plaintiffs present no evidence to bolster their contention that the Indian legal system
Plaintiffs' preliminary concern, regarding defendant's amenability to process in the has not sufficiently emerged from its colonial heritage to display the innovativeness
alternative forum, is more than sufficiently met in the instant case. Union Carbide has which the Bhopal litigation would demand. Their claim in this regard is not
unequivocally acknowledged that it is subject to the jurisdiction of the courts of India compelling.
(Defendant's Memorandum in Reply filed December 20, 1985 (“Reply Memo”) at 8);
(oral argument January 3, 1986, transcript at 29, comment of Bud Holman, counsel FN5. For example, Mr. Palkhivala describes four cases in which the Indian
for Union Carbide). Union Carbide is definitely amenable to process in India. Supreme Court crafted new and “courageous” remedies in situations
relating to abridgements of fundamental rights. (Palkhivala Aff. at 6-7). Mr.
Beyond this initial test, plaintiffs and amicus curiae FN4 argue that the Indian legal Dadachanji describes similar decisions in which he participated as an
system is inadequate to handle the Bhopal litigation. In support of this position, advocate, in his affidavit. (Dadachanji Aff. at 2-3). The Court recognizes
plaintiffs have submitted the affidavit of Professor Marc S. Galanter of the University the innovativeness of the Indian Courts, while refraining from an
of Wisconsin Law School. Professor Galanter's credentials are impressive; he was a exhaustive survey of Indian case law.
Fulbright Scholar at the Faculty of Law of Delhi University and specializes in South
Asian Studies at the University of Wisconsin Law School. He is not, however, B. Endemic Delays in the Indian Legal System.
admitted to practice in India and the Court views his opinions concerning the Indian
legal system, its judiciary and bar as far less persuasive than those of N.A. Palkhivala Galanter discusses the problems of delay and backlog in Indian courts. Indeed, it
CONFLICT OF LAWS 3D 1/08-09 Page 34 of 97 Atty. Jose A. Bernas
appears that India has approximately one-tenth the number of judges, per citizen, as into partnerships. These factors, *849 it is argued, limit the Indian bar's ability to
the United States,FN6 and that postponements and high caseloads are widespread. handle the Bhopal litigation. As Mr. Dadachanji indicates, Indian lawyers have
Galanter urges that the backlog is a result of Indian procedural law, which allows for competently dealt with complex technology transfers, suggesting capability within
adjournments in mid-hearing, and for multiple interlocutory and final appeals. the technological and scientific areas of legal practice, if not “specialization.”
Numerous appeals and “[c]onsiderable delay [are] caused by the tendency of courts (Dadachanji Aff. at 8). Moreover, Indian attorneys use experts, when necessary. As
to avoid the decision of all the matters in issue in a suit, on the ground that the suit to investigative ability, Mr. Dadachanji persuasively points out that the Central
could be disposed of on a preliminary point.” (Galanter Aff. at 17; 18-20, 21, quoting Bureau of Investigation (“CBI”) of the Union of India is well equipped to handle
Indian Law Commission, 54th Report (1973) pp. 12-13). factual inquiry, as is the Commission of Enquiry constituted by the state of Madhya
Pradesh. (Dadachanji Aff. at 8). While Indian attorneys may not customarily join into
FN6. India allegedly has 10.5 judges per million population, as compared to large law firms, and as Mr. Palkhivala states, are limited by present Indian law to
107 judges per million in the United States (Galanter Aff. at 15). partnerships of no more than twenty, this alone or even in concert with other factors
does not establish the inadequacy of the Indian legal system. (Palkhivala Aff. at 8).
This Court acknowledges that delays and backlog exist in Indian courts, but United There is no reason the Indian legislature could not provide for the expansion of law-
States courts are subject to delays and backlog, too. See Remarks of Honorable firms, if such a choice is required. In any event, this Court is not convinced that the
Warren E. Burger, Chief Justice, Supreme Court of the United States, 100 F.R.D. size of a law firm has that much to do with the quality of legal service provided.
499, 534 (1983). Many small firms in this country perform work at least on a par with the largest firms.
Bigger is not necessarily better.
However, as Mr. Palkhivala states, while delays in the Indian legal system are a fact
of judicial life in the proposed alternative forum, there is no reason to assume that the Moreover, since the Union of India purports to represent all the claimants, it is likely
Bhopal litigation will be treated in ordinary fashion. that if the case were transferred to India, the Attorney General or Solicitor General
of India and the Advocate General of Madhya Pradesh, with attendant staffs, would
The Bhopal tragedy has already been approached with imagination in India. represent the claimants. The Indian bar appears more than capable of shouldering
Demonstrating the creativity and flexibility of the Indian system, the Parliament of the litigation if it should be transferred to India. (Palkhivala Aff. at 9).
India has passed the Bhopal Act in order to deal with the cases arising from the sad
events of December 3, 1984. The Bhopal Act permits the cases to be treated Next, plaintiffs and Professor Galanter argue that the substantive tort law of India is
“speedily, effectively, equitably and to the best advantage of the claimants.” not sufficiently developed to accommodate the Bhopal claims. Plaintiffs trace the
(Palkhivala Aff. at 11). lack of sophistication in Indian tort law to the presence of court fees for litigants as
inhibiting the filing of civil suits. Though the filing fees may have had historical
Mr. Dadachanji refers to another Indian case which arose from a gas leak in New significance, they are irrelevant here. Professor Galanter acknowledges that court
Delhi. The Chief Justice and another Justice of the Supreme Court of India ordered fees may be waived for “poor parties or for specific classes of litigants.” (Galanter
the presiding court to expedite adjudication of claims. MC Mehta v. Union of India. Aff. at 28). In fact, filing fees have been waived for claimants in India in the Bhopal
(Dadachanji Aff. at 11 and Annexure A thereto). In another instance, the Indian litigation already begun there.
Supreme Court directed the High Court to hear a given matter on a daily basis, and
set a deadline for delivering judgment (Dadachanji Aff. at 11 and Annexure B thereto). Professor Galanter asserts that India lacks codified tort law, has little reported case
Other means of coping with delay are appointment of special tribunals by the law in the tort field to serve as precedent, and has no tort law relating to disputes
Government of India (Dadachanji Aff. at 12 and Annexure C thereto), and assignment arising out of complex product or design liability. (Galanter Aff. at 30-36). As an
of daily hearing duties to a single special judge, otherwise unburdened, to hear a illustration of the paucity of Indian tort law, Professor Galanter states that a search
special matter. (Dadachanji Aff. at 11). This Court is persuaded, by the example of through the All-India Reports for the span from 1914 to 1965 revealed only 613 tort
the Bhopal Act itself and other cases where special measures to expedite were taken cases reported. (Galanter Aff. at 32). Mr. Dadachanji responds that tort law is
by the Indian judiciary, that the most significant, urgent and extensive litigation ever to sparsely reported in India due to frequent settlement of such cases, lack of appeal
arise from a single event could be handled through special judicial accommodation in to higher courts, and the publication of tort cases in specialized journals other than
India, if required. the All-India Reports. (Dadachanji Aff. at 16-17; Palkhivala Aff. at 10). In addition,
tort law has been codified in numerous Indian statutes. (Dadachanji Aff. at 16-17).
C. Procedural and Practical Capacity of Indian Courts.
As Professor Galanter himself states, “the major categories of tort, their elements,
Plaintiffs contend that the Indian legal system lacks the wherewithal to allow it “to deal the [theories] of liability, defenses, respondeat superior, the theories of damages-
effectively and expeditiously” with the issues raised in this lawsuit. (Memo in Opp. p. are all familiar.” (Galanter Aff. at 37). What is different, Galanter asserts, is the
53). complete absence of tort law relating to high technology or complex manufacturing
processes. This is of no moment with respect to the adequacy of the Indian courts.
Plaintiffs urge that Indian practitioners emphasize oral skills rather than written briefs. With the groundwork of tort doctrine adopted from the common law and the
They allegedly lack specialization, practical investigative techniques and coordination precedential weight awarded British cases, as well as Indian ones, it is obvious that
CONFLICT OF LAWS 3D 1/08-09 Page 35 of 97 Atty. Jose A. Bernas
a well-developed base of tort doctrine exists to provide a guide to Indian courts impleading of third-parties from whom contribution is sought, other provisions in the
presiding over the Bhopal litigation. In any event, much tort law applied in American Code do provide for impleader. As both parties to this motion state, Order 1, Rule
cases involving complex technology has its source in legal principles first enunciated 10(2) of the Indian Code of Civil Procedure “allows the court to add additional
in Victorian England. See, e.g., Rylands v. Fletcher, 1868, L.R. 3 H.L. 330. As Mr. parties if the presence of those parties is ‘necessary in order to enable the Court
Palkhivala stated in his affidavit: effectively and completely to adjudicate upon and settle all questions involved in the
suit.’ ” (Galanter Aff. at 60; Dadachanji Aff. at 18). Professor Galanter posits that a
*850 The plant itself was the product of highly complex technology, but complexity of joint tortfeasor would not be considered a necessary party, and would not be joined.
the technology cannot be equated with complexity of legal issues. The principles of Defendant's expert, conversely, asserts that a party can be added to prevent
liability and damages involved in the Bhopal cases are all well established in India. multiplicity of suits and conflicts of decisions. Thus, Mr. Dadachanji argues,
The complexity is not in the nature or determination of legal issues but in the defendants would be able to seek contribution from third-parties if joinder would
application of the law to the events which took place in Bhopal. Well settled law is to prevent repetitive litigation or inconsistency. Moreover, the broad provision of
be applied to an unusual occurrence. inherent powers to aid the ends of justice, as codified at Section 151 of the Indian
Code of Civil Procedure would prevent an ultimate miscarriage of *851 justice in the
(Palkhivala Aff. at 7). area of impleader. (Dadachanji Aff. at 19).FN8
Plaintiffs next assert that India lacks certain procedural devices which are essential to FN8. The Court observes that the alleged problem would appear to act to
the adjudication of complex cases, the absence of which prevent India from providing the detriment of defendant, not plaintiffs. It is Union Carbide which urges
an adequate alternative forum. They urge that Indian pre-trial discovery is inadequate that third-party defendants are necessary. (Memo in Support at 27-28).
and that therefore India is an inadequate alternative forum. Professor Galanter states Defendant discounts the supposed unavailability of third-party impleader,
that the only forms of discovery available in India are written interrogatories, while the plaintiffs find its lack objectionable. These postures lead the
inspection of documents, and requests for admissions. Parties alone are subject to Court to the conclusion that this argument is not compelling in either
discovery. Third-party witnesses need not submit to discovery. Discovery may be direction. The lack of specific third-party practice will not concern the Court
directed to admissible evidence only, not material likely to lead to relevant or if it does not concern Union Carbide.
admissible material, as in the courts of the United States. Parties are not compelled to
provide what will be actual proof at trial as part of discovery. The absence of procedures or mechanisms within the Indian judiciary to handle
complex litigation is presented as support for plaintiffs' position regarding the non-
These limits on discovery are adopted from the British system. Similar discovery tools existence of an adequate alternative forum. Professor Galanter asserts, for
are used in Great Britain today. This Court finds that their application would perhaps, example, that Indian judges do not promote settlements. The point is wholly
however, limit the victims' access to sources of proof. Therefore, pursuant to its irrelevant to the question of whether an adequate alternative forum exists. In any
equitable powers, the Court directs that the defendant consent to submit to the broad event, this Court has labored hard and long to promote settlement between the
discovery afforded by the United States Federal Rules of Civil Procedure if or when parties for over a year, to no avail. It would appear that settlement, although
an Indian court sits in judgment or presides over pretrial proceedings in the Bhopal desirable for many reasons, including conservation of attorneys' fees and costs of
litigation.FN7 Any dismissal of the action now before this Court is thus conditioned on litigation, preservation of judicial resources, and speed of resolution, is unlikely
defendant's consent to submit to discovery on the American model, even after regardless of the level of activism of the presiding judge.
transfer to another jurisdiction.
Plaintiffs' next contention is that since no class action procedure exists in India
FN7. A federal court has the power to condition transfer under the doctrine expeditious litigation of the Bhopal suits would be impossible. As with all of plaintiffs'
of forum non conveniens upon “the condition that defendant corporations other arguments, this purported deficiency does not constitute “no remedy” at all.
agree to provide the records relevant to the plaintiff's claims.” Piper at 257, Professor Galanter himself acknowledges that Order 1, Rule 8 of the Indian Code of
n. 25, 102 S.Ct. 267, n. 25. While the Court feels that it would be fair to bind Civil Procedure provides a mechanism for “representative” suits, “where there are
the plaintiffs to American discovery rules, too, it has no authority to do so. numerous persons having the same interest in one suit.” (Galanter Aff. at 54). Even
if the current state of Indian law regarding “representative” suits involves application
The ostensible lack of devices for third-party impleader or for organizing complex of the mechanism to pre-existing groups such as religious sects or associations,
cases under the law of the state of Madhya Pradesh are two other procedural there is no reason to conclude that the Indian legislature, capable of enacting the
deficiencies which plaintiffs assert preclude a finding that India offers an adequate Bhopal Act, would not see its way to enacting a specific law for class actions. In
alternative forum. Assuming for the moment that, upon appropriate transfer, the addition, it does not appear on the face of Order 1, Rule 8 that the “representative”
Bhopal litigation would be adjudicated by the local district court in Bhopal, and that suit is expressly limited to pre-existing groups. The Indian district court could adopt
the law of Madhya Pradesh would be applied, this Court is still not moved by plaintiffs' the rule for use in a newly created class of injured, whose members all have “the
argument regarding impleader or complex litigation. same interest” in establishing the liability of the defendant. An Indian court has law
available to create a representative class, or perhaps a few different representative
Although no specific provision in the Indian Code of Civil Procedure permits the classes. The “scheme” for registration and processing of claims, see supra, at 4,
CONFLICT OF LAWS 3D 1/08-09 Page 36 of 97 Atty. Jose A. Bernas
could perform the task of evaluating the specific amounts of claims. Moreover, Mr. system provides an adequate alternative forum for the Bhopal litigation. Far from
Dadachanji gives at least three examples where Indian courts have consolidated suits exhibiting a tendency to be so “inadequate or unsatisfactory” as to provide “no
pursuant to their inherent power under Section 151 of the Indian Code of Civil remedy at all,” the courts of India appear to be well up to the task of handling this
Procedure. In at least one case, such consolidation allegedly occurred without case. Any unfavorable change in law for plaintiffs which might be suffered upon
consent of the parties. (Dadachanji Aff. at 9). The absence of a rule for class actions transfer to the Indian courts, will, by the rule of Piper, not be given “substantial
which is identical to the American rule does not lead to the conclusion that India is not weight.” Differences between the two legal systems, even if they inure to plaintiffs'
an adequate alternative forum. detriment, do not suggest that India is not an adequate alternative forum. As Mr.
Palkhivala asserts with some dignity, “[w]hile it is true to say that the Indian system
Final points regarding the asserted inadequacies of Indian procedure involve today is different in some respects from the American system, it is wholly untrue to
unavailability of juries or contingent fee arrangements in India. Plaintiffs do not press say that it is deficient or inadequate. Difference is not to be equated with
these arguments, but Mr. Palkhivala touches upon them. They are easily disposed of. deficiency.” (Palkhivala Aff. at 4). Piper at 254, 102 S.Ct. at 265. The inquiry now
The absence of juries in civil cases is a feature of many civil law jurisdictions, and of turns to a weighing of the public and private interest factors.
the United Kingdom. Piper at 252, n. 18, 102 S.Ct. at 264, n. 18 and citations
therein. Furthermore, contingency fees are not found in most foreign jurisdictions. 2. Private Interest Concerns.
Piper at 252, n. 18, 102 S.Ct. at 264, n. 18. In any event, the lack of contingency fees
is not an insurmountable barrier to filing claims in India, as demonstrated by the fact [5] The Gilbert Court set forth a list of considerations which affect the interests of the
that more than 4,000 suits have been filed by victims of the Bhopal gas leak in India, specific litigants to an action, and which should be weighed in making a forum non
already. According to Mr. Palkhivala, moreover, well-known lawyers have been conveniens determination. The so-called private interest factors, along with public
known to serve clients without charging any fees. (Palkhivala Aff. at 8). interest factors discussed below, were not intended to be rigidly applied. As the
Court stated in Piper,
Plaintiffs' final contention as to the inadequacy of the Indian forum is that a judgment
rendered by an Indian court cannot be enforced in the United States without *852 “[E]ach case turns on its facts.” If central emphasis were placed on any one factor,
resort to further extensive litigation. Conversely, plaintiffs assert, Indian law provides the forum non conveniens doctrine would lose much of the flexibility that makes it so
res judicata effect to foreign judgments, and precludes plaintiffs from bringing a suit valuable.
on the same cause of action in India. (Galanter Aff. at 63-65). Mr. Dadachanji
disputes this description of the Indian law of res judicata. He asserts that the Piper at 249-50, 102 S.Ct. at 263. Recognizing that “[p]articularly with respect to
pendency, or even final disposition, of an action in a foreign court does not prevent the question of relative ease of access to sources of proof,”“the private interests
plaintiffs from suing in India upon the original cause of action. Plaintiffs would not be point in both directions,” the Supreme Court nevertheless upheld a district court's
limited, Mr. Dadanchanji argues, to an Indian action to enforce the foreign judgment. decision to dismiss a case in favor of the relative convenience of a forum in
(Dadachanji Aff. at 19-20). In addition, he states that an Indian court, before ordering Scotland. Piper at 257, 102 S.Ct. at 267. By contrast, this Court finds that the
that a foreign judgment be given effect, would seek to establish whether the foreign private interests*853 point strongly one way. As in Piper, it appears that the
court had failed to apply Indian law, or misapplied Indian law. (Dadachanji Aff. at 20). burdensome effect of a trial in this forum supports a finding that the private interest
factors in this case weigh strongly in favor of dismissal.
The possibility of non-enforcement of a foreign judgment by courts of either country
leads this Court to conclude that the issue must be addressed at this time. Since it is A. Sources of Proof.
defendant Union Carbide which, perhaps ironically, argues for the sophistication of
the Indian legal system in seeking a dismissal on grounds of forum non conveniens, The first example of a private interest consideration discussed in Gilbert is “relative
and plaintiffs, including the Indian Government, which state a strong preference for ease of access to sources of proof.” As stated, the analysis of this issue must hinge
the American legal system, it would appear that both parties have indicated a on the facts. Limited discovery on the issue of forum non conveniens has taken
willingness to abide by a judgment of the foreign nation whose forum each seeks to place, pursuant to the Court's order of August 14, 1985.FN9 The Court can therefore
visit. Thus, this Court conditions the grant of a dismissal on forum non conveniens proceed to discuss this question.
grounds on Union Carbide's agreement to be bound by the judgment of its preferred
tribunal, located in India, and to satisfy any judgment rendered by the Indian court, FN9. Discovery was ably managed by Magistrate Michael H. Dolinger, of
and affirmed on appeal in India. Absent such consent to abide by and to “make good” the Southern District of New York.
on a foreign judgment, without challenge except for concerns relating to minimal due
process, the motion to dismiss now under consideration will not be granted. The Union Carbide argues that virtually all of the evidence which will be relevant at a trial
preference of both parties to play ball on a distant field will be taken to its limit, with in this case is located in India. Union Carbide's position is that almost all records
each party being ordered to be bound by the decision of the respective foreign relating to liability, and without exception, all records relevant to damages, are to be
referees. found in and around Bhopal. On the liability question Union Carbide asserts that the
Bhopal plant was managed and operated entirely by Indian nationals, who were
To sum up the discussion to this point, the Court determines that the Indian legal employed by UCIL. (Affidavit of Warren J. Woomer, formerly Works Manager of the
CONFLICT OF LAWS 3D 1/08-09 Page 37 of 97 Atty. Jose A. Bernas
Bhopal plant (“Woomer Aff.”) at 2). Defendant asserts that the Bhopal plant is part of
UCIL's Agricultural Products Division, which has been a separate division of UCIL for Moreover, according to Mr. Woomer, these UCIL departments also kept daily,
at least 15 years, and that the plant had “limited contact” with UCIL's Bombay weekly and monthly records of plant operations, many of which were purportedly
headquarters, and almost no contact with the United States. (Woomer Aff. at 4, 32). seized by the CBI and selected for copying by CBI immediately after the
Woomer claims to have been the last American employed by UCIL. He departed from accident.FN13 The records and reports of the various maintenance units would likely
Bhopal in 1982. (Woomer Aff. at 2). be relevant to the question of liability at trial.
Woomer describes the structure and organization of the Bhopal facility at the time of FN13. Mr. Bud Holman, counsel for Union Carbide, states in his second
the accident. The plant had seven operating units, each headed by a manager or affidavit that over 36,000 of the 78,000 pages of documents seized by the
department head, each an Indian national.FN10 The managers or department heads CBI represent plant operation records. (Holman Aff. # 2 at 5). He asserts
each reported either directly to the plant's General Works Manager, or to one of three that 1,700 pages deal with maintenance work performed in 1983 and 1984.
Assistant Works Managers. (Woomer Aff. at 6). Each of these is also an Indian (Holman Aff. # 2 at 8).
national. Three of the operating units which at this very early stage of inquiry into
liability appear to have been potentially involved in the MIC leak are the Carbon Of the additional functional units, it is possible that Quality Control, with 54
Monoxide, MIC/Phosgene and Carbamoylation units. (Woomer Aff. at 7-10). The employees, Purchasing, with 53, or Stores may have been directly involved in the
Carbon Monoxide and MIC/Phosgene units together employed 63 employees, all disaster by virtue of their participation in analyzing plant output, procuring raw
Indian nationals. (Woomer Aff. at 9). The Carbamoylation unit employed 99 Indian materials for the chemical processes of the plant, and maintaining spare parts and
nationals. (Woomer Aff. at 10). Mr. Woomer states that an inquiry into the cause of certain chemicals. (Woomer Aff. at 14-19). Thus, the records and reports of these
the accident would require interviews with at least those employees who were on duty three departments may be necessary to an investigation of liability. While
at the Bhopal facility “immediately prior or after the accident;” Mr. Woomer asserts examination of members of the Works Office department and Industrial Relations
that there are 193 employees, all Indians, who must be interviewed. (Woomer Aff. at department would likely be less directly useful, information regarding plant budgets
58).FN11 and employee histories might be of relevance. Of great importance are the records
and reports of the Safety/Medical department, which was responsible for daily
FN10. The seven operating units included Carbon Monoxide, auditing of safety performance in all departments, training and testing on safety
MIC/Phosgene, Carbamoylation, Alpha Naphthol, Aldicarb, Utilities and rules, maintaining safety statistics and planning and implementing safety drills.
Formulations. (Woomer Aff. at 22-23). The 31 Indian employees of this department worked with
the Central Safety Committee of the plant, whose members were drawn from plant
FN11. Mr. Woomer states that a post-accident technical team sought to management, and the Departmental Safety Committees. Operating units were
interview these 193 employees. According to Mr. Woomer, the Indian CBI, required to monitor plant safety mechanisms weekly, and to keep monthly
which had stepped into the plant following the tragedy, advised the technical checklists. (Holman Aff. # 2 at 9). The Central Safety Committee met monthly, as
team that interviews could be conducted only of the General Works Manager did the Departmental Safety Committees. (Woomer Aff. at 39). The MIC Unit held
and MIC Production Manager, neither of whom was present at the time of monthly safety committee meetings, for example, and issued monthly reports.
the leak. (Woomer Aff. at 57-58). (Woomer Aff. at 41). Quarterly “Measures of Performance” reviews also covered
safety issues, and were required of each operating unit. (Woomer Aff. at 40).
In addition to the seven operating units, the Bhopal plant contained seven functional Certainly, interviews of the plant personnel involved in safety reports and audits
departments which serviced operations.FN12 The seven heads of the units reported would be particularly relevant to the investigation of the disaster.
within the plant much as the department heads did.
Plaintiffs refer to three occasions upon which Union Carbide, not UCIL, employees
FN12. The seven functional units were Maintenance, Quality Control, Stores, conducted safety audits at the Bhopal plant. As defendant correctly argues, these
Purchasing, Safety/Medical, Industrial Relations and Works Office. (Woomer three events constitute a very small fraction of the thousands of safety audits
Aff. at 6). conducted at the Bhopal facility. The three audits, moreover, were conducted in
1979, the fall of 1980 and in May of 1982, many years prior to the accident which is
The maintenance unit was apparently subdivided into departments including the subject of this lawsuit. (Plaintiffs' Memo in Opp. at 25).FN14
Instrumentation, Mechanical Maintenance, both part of the Agricultural Chemical
Maintenance unit, which employed 171 people in total, and Plant Engineering and FN14. The 1982 “Operational Safety Survey” was apparently fairly
Formulation Maintenance, which employed 46 people. (Woomer Aff. at 11-12). In extensive. It was conducted by three United States employees of Union
*854 addition, the Utilities and Electrical department employed 195 people. (Woomer Carbide, and led to a report which discussed “major” concerns and
Aff. at 13). According to Mr. Woomer, the various maintenance organizations possibility of “serious personnel exposure.” (Memo in Opp. at 25). Mr.
performed repairs on equipment, provided engineering support, fabricated certain Woomer asserts, and plaintiffs do not refute, that this Survey was not
equipment, salvaged other portions, and controlled utilities, temperatures and intended to “serve a policing function,” but was performed at the specific
pressures throughout the plant. (Woomer Aff. at 11-14). request of UCIL. In addition, follow-up responsibility “rested exclusively
CONFLICT OF LAWS 3D 1/08-09 Page 38 of 97 Atty. Jose A. Bernas
with UCIL plant management.” (Woomer Aff. at 37-38). engineer,” John Couvaras, to serve as UCIL Bhopal project manager. Mr. Couvaras
allegedly “assumed responsibility for virtually every aspect of the detailing of the
Moreover, Union Carbide states that the Union of India, itself, conducted process design,” and approved detail reports of “not only UCIL but also independent
similar safety audits and made recommendations. (Affidavit of Ranjit K. contractors, including Humphreys & Glasgow Consultants Private Ltd. and Power
Dutta, Business Manager of Union Carbide Agricultural Products Gas Limited” of Bombay, India. (Memo in Opp. at 17-20).FN15
Company (“Dutta Aff.”) at 58-64).
FN15. Plaintiffs assert that Mr. Couvaras exemplifies Union Carbide's
Two accidents which occurred previously at the Bhopal plant might also be of “international employee” whose mobility throughout the Union Carbide
relevance to the liability inquiry in this litigation. On December 24, 1981, a phosgene affiliates causes “[a]ny notion of discrete corporate identities [to] blur [ ].”
gas leak killed a UCIL maintenance worker.*855 Reports of the fatality were sent to (Memo in Opp. at 18-19).
Union Carbide management in the United States. (Woomer Deposition, Exs. 30 and
31). Plaintiffs assert that the accident report called for increased training in Bhopal by Plaintiffs also claim that “[n]o change of any substance was made from Union
United States employees of Union Carbide's Institute, West Virginia, plant. Defendant Carbide's design during the detailing phase.” Plaintiffs note that only “one portion”
states that the responsibility for remedying problems in the Bhopal plant rested with of the process design work provided to UCIL by Union Carbide was not used.
the plant itself, and that Union Carbide did not make any recommendations, and was (Memo in Opp. at 20). In effect, plaintiffs seek to establish that Union Carbide was
involved only to the extent of receiving a copy of the report which called for its the creator of the design used in the Bhopal plant, and directed UCIL's relatively
involvement in further training. (Woomer Aff. at 41). minor detailing program. They urge that for the most *856 part relevant proof on this
point is located in the United States.
The second accident at Bhopal prior to the disaster of December, 1984 took place on
February 9, 1982, when a pump seal, perhaps improperly used, failed. (Memo in Opp. Defendant seeks to refute this contention, with notable success. Turning first to the
at 24; Woomer Aff. at 41). Many employees were injured, and at least 25 were affidavit of Robert C. Brown, who describes himself as “chief negotiator for Union
hospitalized. Plaintiffs discuss the fact that Robert Oldford, president of Union Carbide Corporation in connection with the two agreements it entered into with ...
Carbide Agricultural Products Company (“UCAPC”) a wholly-owned subsidiary of UCIL in November, 1973,” the Court is struck by the assertion that the two
Union Carbide headquartered in the United States, was in Bhopal at the time of the agreements were negotiated at “arms-length” pursuant to Union Carbide corporate
February 1982 leak. (Memo in Opp. at 24). Union Carbide asserts that Mr. Oldford policy, and that the Union of India mandated that the Government retain “specific
was visiting UCIL's Research and Development Centre, located several miles from control over the terms of any agreements UCIL made with foreign companies such
the Bhopal plant for an unrelated purpose, and was only coincidentally in Bhopal as Union Carbide Corporation.” (Brown Aff. at 3-4).FN16
when the leak occurred. To the extent that this presence in India in 1982 has any
significance, Mr. Oldford, and any other United States employees of Union Carbide FN16. As support, Mr. Brown points to the Union Carbide Corporate Policy
who conducted safety audits in Bhopal or were present when accidents occurred Manual, Section 1.10 which states:
there, may be flown to Bhopal for testimony or discovery.
The “arms-length principle” is a central consideration in transfer and
In addition to safety data, two other types of proof may be relevant to a trial of this pricing of all technology transactions with affiliates.
case on the merits. Information regarding plant design, commissioning and start-up
may bear upon the liability question. Information pertinent to employee training should “Arms length” is defined as:
also have significance.
The principle whereby inter-company transactions between Union
Leaving aside the question of whether the Government of India or UCIL chose the Carbide and its affiliates, or between affiliates, will reflect the cost to
site and product of the Bhopal plant, the Court will evaluate the facts which bear on unrelated parties of the same or similar technology under similar
the issue of relevant records. The findings below concern the location of proof only, circumstances.
and bear solely upon the forum non conveniens motion. The Court expressly declines
to make findings as to actual liability at this stage of the litigation. (Plaintiffs' Exhibit 3). Thus, Mr. Brown argues that Union Carbide related
with UCIL much as it would have with an unaffiliated, or even competing
Plaintiffs and defendant agree that in 1973 Union Carbide entered into two company.
agreements with UCIL which were entitled “Design Transfer Agreement” and
“Technical Service Agreement.” According to plaintiffs, Union Carbide, pursuant to Mr. Brown alleges that the Letter of Intent issued by the Union of India in March
the Design Transfer Agreement, provided a process design to UCIL, the “detailing [of 1972, pursuant to which construction and design of the plant were allowed to ensue
which] was undertaken in India.” (Memo in Opp. at 17). The process design package provided, inter alia, that:
consisted of the basic plan of the factory, which was to be fleshed out in the detailing
phase. Plaintiffs state that at least nine Union Carbide technicians travelled to India to (2) [F]oreign collaboration and import of equipment be settled to the satisfaction of
monitor the progress of the project. Union Carbide also allegedly assigned a “key the Government.
CONFLICT OF LAWS 3D 1/08-09 Page 39 of 97 Atty. Jose A. Bernas
plans, including equipment layout drawings, detailed piping arrangement
Mr. Brown claims, on personal information, that UCIL told him that Union Carbide drawings, layout of electrical equipment; the steel structure, including
would not be allowed to be involved in the Bhopal project beyond the provision of detail design and working drawings for the buildings and foundation;
process design packages. (Brown Aff. at 5). The Design Transfer Agreement mechanical equipment design including specification of all proprietary
indicates that Union Carbide's duty under the Agreement was to provide process and fabricated equipment; review and certification of vendor's drawings
design packages, and that UCIL, not Union Carbide, would be responsible to “detail and documents, preparation of orthographic piping drawings for all
design, erect and commission the plant.” (Defendant's Ex. 4, § 4.1). Union Carbide, portions of the plant, preparation of isometric piping drawings,
accordingly, issued limiting warranties with respect to the design packages, detailing preparation of preliminary and final bills of materials for pipes, valves,
of which it would not be involved with. (Brown Aff. at 7, Ex. 4, §§ 4.1, 12.3). gaskets, instrument associated hardware, electrical conduit; electrical
engineering work, instrument engineering, including drawings on
The nature of UCIL's detail design work is discussed in the affidavit of Ranjit K. Dutta, instrument hook ups, lists of instruments, review of instrument
who has held various positions at UCIL and UCAPC. From 1973 through 1976, Mr. specification and data sheets; definition of material and make calculation
Dutta was employed as General Manager of the Agricultural Products Division of to size insulation, preparation of insulation lists, preparation of material
UCIL. (Dutta Aff. at 2). take off and inquiry specification packages, procurement assistance
including assisting in evaluation of bids and selection of vendors,
Mr. Dutta asserts that the Bhopal facility was built by UCIL over the eight years from inspection of certain equipment and materials to ensure proper
1972 to 1980. (Dutta Aff. at 8). He asserts that Union Carbide's role in the project was workmanship and compliance with specifications and codes, and
“narrow”, and limited to providing “certain process design packages for certain parts coordinating where Indian law required inspection or certification by
of the plant.” (Dutta Aff. at 9). He continues, stating: governmental inspections; preparation of a project schedule, project
reports and costs control reports at least once per month, construction
Once it did that, it had no further design or engineering role, supervision including supervision of mechanical testing of installed
equipment, assistance in commissioning.
and that:
[T]he process design packages which Union Carbide Corporation provided are (Dutta Aff. at 19-20).
nothing more than summary design starting points.... They set forth only the general
parameters.... A plant cannot be constructed from a process design package. The Mr. Dutta expressly states that the MIC storage tank and monitoring instrumentation
detail design comprises approximately 80 percent of the sum of the man hours were fabricated or supplied by two named Indian sub-contractors. The vent gas
involved in the design of any project and transposes the general process design scrubber is alleged to have been fabricated in the Bhopal plant shop. (Dutta Aff. at
parameters into an actual design which can be used for purchasing equipment and 25).
actual construction.
Of the 12,000 pages of documents purportedly seized by the CBI regarding design
(Dutta Aff. at 9-12). (emphasis omitted). and construction of the Bhopal plant, an asserted 2,000 are design reports of
Humphreys and Glasgow, UCIL or other contractors. Defendant claims that
According to Mr. Dutta, during the five years between the date upon which Union blueprints and calculations comprise another 1,700 pages of documents held by the
Carbide submitted process designs, and the date upon which the plant started-up, CBI. Five thousand pages of contractors' files, including specifications and contracts
there were only four visits to Bhopal by Union Carbide process design engineers. are asserted to be in India. In addition, Union Carbide claims that blueprints and
(Dutta Aff. at 14). In contrast, he asserts that ten to fifteen UCIL engineers, working diagrams may not reflect final design changes as incorporated into the actual plant,
primarily out of Bombay, were involved in design detailing. (Dutta Aff. at 16). These and that the detail design engineers' testimony will be needed to determine the
UCIL engineers oversaw the 55 to 60 Indian engineers*857 employed by the Bombay configuration of the actual plant.FN18 (Holman Aff. # 2 at 15-16).
engineering firm which performed the detail design work. This firm, Humphreys and
Glasgow, submitted designs and drawings to the UCIL engineers for approval. FN18. Mr. Couvaras, whom plaintiffs assert was a “key engineer” for the
Corrected drawings were returned by UCIL to Humphreys and Glasgow for changes, project, and enjoyed mobility between Union Carbide and UCIL, is
and sent back to UCIL for final approval. (Dutta Aff. at 19-24).FN17 Mr. Dutta alleges described by Mr. Dutta as primarily a UCIL employee. The “international
that “at no time were Union Carbide Corporation engineering personnel from the employee” status he carried is explained as a pension accounting
United States involved in approving the detail design or drawings prepared upon mechanism. (Dutta Aff. at 27).
which construction was based. Nor did they receive notices of changes made.”
(Dutta Aff. at 24). One final point bearing on the information regarding liability is contained in the
affidavit of Edward Munoz, at a relevant time the General Manager of UCIL's
FN17. Humphreys and Glasgow was allegedly responsible for the following: Agricultural Products Division. He later acted as Managing Director of UCIL. Mr.
Munoz has submitted an affidavit in which he states that Union Carbide decided to
Among other things, developing final equipment and unit layouts and plot store MIC in large quantities at the Bhopal plant, despite Mr. Munoz' warnings that
CONFLICT OF LAWS 3D 1/08-09 Page 40 of 97 Atty. Jose A. Bernas
MIC should be stored only in small amounts because of safety. (Memo in Opp. at 15- concerning the design, manufacture and operation of the Bhopal plant are relatively
16; Munoz Aff.). Mr. Dutta, for defendant, asserts that there was never any issue of more accessible in India than in the United States, and that fewer translation
token storage of MIC at Bhopal, as Mr. Munoz states, and that there is no truth to Mr. problems would face an Indian court than an American court. Since Union Carbide
Munoz' assertion that he was involved in the storage issue. (Dutta Aff. at 30).FN19 has been directed to submit to discovery in India pursuant to the liberal grant of the
*858 The Court cannot make any determination as to the conflicting affidavits before American Federal Rules of Civil Procedure, and this opinion is conditioned upon
it. This question, which involves credibility concerns, is left for later in the litigation. To such submission, any records sought by plaintiffs must be made available to them in
the extent that this particular matter bears upon the relative ease of access to sources India. The private interest factor of relative ease of access to sources of proof
of proof, Mr. Munoz and Mr. Dutta both may be called to testify at trial or discovery. bearing on liability favors dismissal of the consolidated case.FN20 The Indian *859
Mr. Dutta's home is in Bhopal. (Dutta Aff. at 1). The Court is not aware of the Government is asserted to have been involved in safety, licensing and other matters
whereabouts of Mr. Munoz at this time. Either of the two could travel to either relating to liability. Records relating thereto are located in India, as are the records
alternative forum. seized by the CBI. Although plaintiffs state that all such records could and would be
made available to this Court, it would be easier to review them in India. Transmittal
FN19. Mr. Dutta asserts that Mr. Munoz was a paid consultant to a member and translation problems would thereby be avoided.
of Plaintiffs' Executive Committee at the time the affidavit was made. No
documentary proof of this assertion has been submitted. (Dutta Aff. at 31; FN20. Union Carbide asserts throughout its briefs and affidavits that
Holman Aff. # 2 at 18). Moreover, two affidavits submitted on behalf of evidence relevant to the question of damages is located in India, as well.
defendant state that Mr. Munoz was removed from his position as Union Certainly the victims themselves, and, for the most part, their medical
Carbide Corporation Division President in 1978, and is “extremely bitter as a records, are found in or near Bhopal. However, as plaintiffs argue, a “head
result of the removal.” (Dutta Aff. at 31; Holman Aff. # 2 at 18). count” of witnesses is not dispositive of a forum non conveniens motion.
(Memo in Opp. at 74-79). Not all of the victims would need to be
In addition to design and safety records, material regarding training of Bhopal transported to the United States to describe their injuries. The Bhopal
personnel is likely to be relevant to the question of liability. Plaintiffs state that Warren “scheme” provides a mechanism for evaluating each individual's claim.
Woomer supervised the training of UCIL personnel at Union Carbide's Institute, West Only representative plaintiffs need testify as to damages. This Court would
Virginia plant. According to plaintiffs, 40 UCIL employees were transported to not countenance the impractical and time-consuming process of calling
Institute's MIC facility for lengthy training. (Memo in Opp. at 22). Mr. Woomer states in each of the approximately 200,000 victims at a trial in this country.
reply that the 40 employees thus trained represented a fraction of the over 1,000 Evidence on damages, as well as liability, is found in India, but not to the
employees who were trained exclusively in Bhopal. (Woomer Aff. at 43). In addition, overwhelming extent contended by defendant. Moreover, the Court is
Mr. Woomer asserts that the training at Institute was pursuant to an arms-length concerned with the policy effect of allowing the number of foreign victims to
agreement, that UCIL selected the parties to be trained, and that UCIL paid Union affect directly the forum non conveniens determination. If carried to the
Carbide for the training. (Woomer Aff. at 43). Moreover, Mr. Woomer's description of extreme, this “head count” doctrine would mean that the more people hurt,
the training provided at Bhopal suggests that each of the plant's employees had the less likely a suit in this country would be.
lengthy cumulative training, of which the Institute training was but a very small
portion. (Woomer Aff. at 46). Personnel records, in any event, are located in Bhopal. B. Access to Witnesses.
(Holman Aff. # 2 at 4).
Gilbert teaches a second important consideration under the heading of private
The briefs and affidavits contain considerable discussion on the matter of interests, the “availability of compulsory process for attendance of willing, and the
commissioning and start-up of the Bhopal plant. The Court need not resolve the cost of obtaining attendance of unwilling, witnesses.” Gilbert, 330 U.S. at 508, 67
question of who was responsible for these aspects of plant operation. However, the S.Ct. at 843. As discussed in detail above, most witnesses whose testimony would
Court determines that the manual regarding start-up was prepared by Indian nationals relate to questions of causation and liability are in India. Engineers from UCIL and
employed by UCIL. (Woomer Aff. at 48). Humphreys and Glasgow and other subcontractors, of whom there are hundreds,
are located in India. Shift employees from the possibly malfunctioning units, safety
In the aggregate, it appears to the Court that most of the documentary evidence monitoring personnel, those responsible for training, safety auditing, procurement,
concerning design, training, safety and start-up, in other words, matters bearing on compliance with regulations and other operations might be required to testify. More
liability, is to be found in India. Much of the material may be held by the Indian CBI. than likely, many of these potential witnesses do not speak English, and would
Material located in this country, such as process design packages and training require translators. Many of the witnesses are not parties to this litigation. Therefore,
records of the 40 UCIL employees trained at Institute, constitutes a smaller portion of as the Court of Appeals for the Second Circuit has stated in the context of a forum
the bulk of the pertinent data than that found in India. Moreover, while records in this non conveniens motion:
country are in English, a language understood in the courts of India, certain of the
records in India are in Hindi or other Indian languages, as well as in English. (Holman In fact, the plaintiffs' cases on liability will depend in large measure upon the
Aff. # 2 at 12). The Indian language documents would have to be translated to be of knowledge and activities of such witnesses as the employees of [companies] who
use in the United States. The reverse is not true. It is evident to the Court that records are not parties to this litigation, but who directly participated in the events which
CONFLICT OF LAWS 3D 1/08-09 Page 41 of 97 Atty. Jose A. Bernas
gave rise to it. The United States District Court in New York, however, has no power 71). A viewing of the plant and hutments would probably not be of utmost
to subpoena any of these witnesses. It is unlikely that many would be willing to travel importance in determining liability, and this consideration is not afforded great
to New York to testify; and the cost, in any event, would be prohibitively great. weight on this motion.
Fitzgerald v. Texaco, 521 F.2d 448, 451-52 (2d Cir.1975), cert. denied, 423 U.S. However, the instant case is not identical to the product design defect case cited by
1052, 96 S.Ct. 781, 46 L.Ed.2d 641 (1976) (footnote omitted). In contrast, the plaintiffs, in which a district court judge determined that “the present appearance of
relatively few witnesses who reside in the United States are primarily employed by the defendants' facilities may or may not be relevant to production which occurred”
Union Carbide. As employees of a party they would probably be subject to the in the period in which the allegedly violative manufacture occurred. Hodson v. A.H.
subpoena power of Indian courts. Transportation costs would also be lower, since Robins Co., Inc., 528 F.Supp. 809, 822 (E.D.Va.1981), aff'd, 715 F.2d 142 (4th
fewer people would have to make the journey to testify. Cir.1983). In the instant case, the site of the accident was sealed after the leak, and
the present condition of the plant might be relevant to a finding of liability. A viewing
The presence of the Indian Government in this action is also of critical importance on may not be necessary, but conceivably could be called for later in the litigation. An
this motion. Plaintiffs assert that “all necessary officials and employees of the Central Indian court is in a far better position than this Court to direct and supervise such a
Government will voluntarily comply with requests to attend trial.” (Memo in Opp. at viewing should one ever be required. This consideration, though minor, also weighs
70; Answer to No. 124 of Defendant's First Requests for Admission, Exhibit 55). This in favor of dismissal.
statement does not provide for attendance by officials of Madhya Pradesh or the
Bhopal municipality, whom Union Carbide indicates might be impleaded as third-party In summary, then, the private interest factors weigh greatly in favor of dismissal on
defendants. As witnesses only, these officials would not be subject to this Court's grounds of forum non conveniens. Since the “balance is strongly in favor of the
subpoena power. As third-party defendants, they might be immune from suit in the defendant” and foreign plaintiffs' choice of a foreign forum is given less than
United States by the terms of the Foreign Sovereign Immunities Act, 28 U.S.C. § maximum deference, the Court determines that dismissal is favored at this point in
1602et seq. State and city officials might also lack sufficient contacts with this district the inquiry. Gilbert 330 U.S. at 508, 67 S.Ct. at 843.
to allow this Court to exercise personal jurisdiction over them.
3. Public Interest Concerns.
While Union Carbide might be deprived of testimony of witnesses or even potential
third-parties if this action were to proceed in this forum, no such problem would exist if [6] The Gilbert Court articulated certain factors which affected the interests of non-
litigation went forward in India. parties to a litigation to be considered in the context of the doctrine of forum non
conveniens. These public interest concerns were held to be relevant to a court's
The unavailability of compulsory process for Indian non-party witnesses, of whom determination of whether to dismiss on these grounds. The Supreme Court
*860 there are many, such as would ensure their presence at a trial in this country, expressly identified a few factors:
the high cost of transporting the large number of Indian nationals to the United States,
as well as the need to translate their testimony should they appear, all support the Administrative difficulties follow for courts when litigation is piled up in congested
argument favoring dismissal of this action on forum non conveniens grounds. The centers instead of being handled at its origin. Jury duty is a burden that ought not to
private interest concerns regarding witnesses emphasize the logic of defendant's be imposed upon the people of a community which has no relation to the litigation.
position. Relatively fewer witnesses reside in the United States than in India. Almost In cases which touch the affairs of many persons, there is reason for holding the
all of the witnesses located in this country are employees of defendant, and would be trial in their view and reach rather than in remote parts of the country where they
subject to compulsory process in India as a result. Transportation costs for the can learn of it by report only. There is a local interest in having localized
relative few would not compare to the alternate costs of transporting hundreds of controversies decided at home. There is an appropriateness, too, in having the trial
Indian witnesses. Since English is widely spoken in India, less translation would be of a diversity case in a forum that is at home with the state law that must govern the
required for foreign witnesses in India than in the converse situation. Should this case case, rather than *861 having a court in some other forum untangle problems in
be tried in India, fewer obstacles to calling state and local officials as witnesses or conflict of laws, and in law foreign to itself.
parties would face the defendant. The Court determines that this private interest
factor weighs in favor of dismissal. Gilbert at 508-09, 67 S.Ct. at 843. The Court will consider these various factors in
turn, as well as others discussed by the parties and amicus curiae.
C. Possibility of View.
A. Administrative Difficulties.
The third private interest factor articulated in Gilbert is the ease of arranging for a
view of the premises around which the litigation centers. Plaintiffs assert that the As is evident from the discussion thus far, the mere size of the Bhopal case, with its
notion that a jury view of the plant and environs is necessary is “simply multitude of witnesses and documents to be transported and translated, obviously
preposterous.” (Memo in Opp. at 71). Plaintiffs note that a viewing of the premises is creates administrative problems.
rarely conducted in products liability cases, since videotapes, pictures, diagrams,
schematics and models are more instructive than an actual view. (Memo in Opp. at There can be no doubt that the Bhopal litigation will take its toll on any court which
CONFLICT OF LAWS 3D 1/08-09 Page 42 of 97 Atty. Jose A. Bernas
sits in judgment on it. This Court sits in one of the busiest districts in the country, and rather than New York, should bear the load.
finds, as a matter within its experience, that this is a “congested center” of litigation as
described in Gilbert at 508. The burden which would be imposed should litigation *862 In addition to the burden on the court system, continuation of this litigation in
continue here was aptly described by the Court of Appeals for the Second Circuit in this forum would tax the time and resources of citizens directly. Trial in this case will
Schertenlieb v. Traum, 589 F.2d 1156 (2d Cir.1978). Reviewing a district judge's no doubt be lengthy. An assigned jury would be compelled to sit for many months of
ruling for dismissal on the grounds of forum non conveniens, the Second Circuit proof. Because of the large number of Indian language-speaking witnesses, the
observed that “were it not for the somewhat unusual fact that it is the forum resident jurors would be required to endure continual translations which would double the
who seeks dismissal, we would have to say very little regarding the exercise of Judge length of trial. The burden on the jurors themselves, and on their families, employers
Metzner's discretion in dismissing this case.” Schertenlieb at 1164. In affirming the and communities would be considerable. The need for translation would be avoided
ruling for dismissal, the Court of Appeals asked the rhetorical question: if trial were to be held in Bhopal.
If litigation is in a clearly inconvenient forum, why should defendant and the court be Clearly, the administrative costs of this litigation are astounding and significant.
burdened with its continuing there, if an alternative forum now exists so that plaintiff Despite its deep concern for the victims of the tragedy, this Court is persuaded by a
will not be without a remedy? recent relevant decision of the New York State Court of Appeals. In the opinion in
Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 478 N.Y.S.2d 597, 467 N.E.2d
Schertenlieb at 1163. 245 (1984), cert. denied,-- U.S. --, 105 S.Ct. 783, 83 L.Ed.2d 778 (1985), with
reference to a decision discussing actions brought in New York by the Iranian
This Court has already determined that because of the location of the preponderance Government against the Shah and his wife, the Court of Appeals stated that:
of the evidence in India, and the difficulty of transporting documents and witnesses to
this forum, this district is clearly an inconvenient forum for the litigation. An alternative [T]he taxpayers of this State should not be compelled to assume the heavy financial
forum is seen to exist in India. This Court feels that the answer to the Schertenlieb burden attributable to the cost of administering the litigation contemplated when
question is clear. their interest in the suit and the connection of its subject matter ... is so ephemeral.
A district judge in this district, in Domingo v. States Marine Lines, 340 F.Supp. 811 Islamic Republic at 483, 478 N.Y.S.2d 597, 467 N.E.2d 245 (citations omitted).
(S.D.N.Y.1972) evaluated the administrative concerns of the Southern District of New Administrative concerns weigh against retention of this case.
York, relevant to this Court today, a full fourteen years later. The Domingo court
stated: B. The Interests of India and the United States.
It is scarcely necessary to dwell on the fact that this Court is the most heavily Plaintiffs, and especially amicus curiae emphasize this point of argument in
burdened Federal District Court in the country. The Civil Calendar grows more opposition to the motion to dismiss. Concerned with the asserted possibility of
congested all the time. The priority now properly given to the disposition of criminal developing a “double-standard” of liability for multinational corporations, plaintiffs
cases tends to increase this congestion. urge that American courts should administer justice to the victims of the Bhopal
disaster as they would to potential American victims of industrial accidents. The
I see no reason why this Court, with its heavy burdens and responsibilities, should be public interest is served, plaintiffs and amicus argue, when United States
burdened with cases like these which, from every point of view, should be tried in the corporations assume responsibility for accidents occurring on foreign soil. “To
courts of the nation where all the relevant events occurred and whose citizens are abandon that responsibility,” amicus asserts, “would both injure our standing in the
primarily involved. Certainly, this district and the Metropolitan area in which it is world community and betray the spirit of fairness inherent in the American
situated have no conceivable relation to this litigation except for the fact that the character.” (Amicus Brief at 4). The specific American interests allegedly to be
defendant happens to be doing business here. served by this Court's retention of the case include the opportunity of creating
precedent which will “bind all American multinationals henceforward,” (Amicus Brief
Domingo at 816. at 20); promotion of “international cooperation,” (Amicus Brief at 22-23); avoidance
of an asserted “double standard” of liability, and the prevention of “economic
The defendant in this case, involved as it appears to have been in the process design blackmail of hazardous industries which would extract concessions on health and
phase of the plant's construction, may have a slightly less tenuous connection to this environmental standards as the price of continuing operations in the United States.”
forum than a corporation which is merely doing business here. Certain business (Amicus Brief at 20). An additional American public interest ostensibly to be served
conducted in New York, or in corporate headquarters in Danbury, Connecticut, may by retention of the litigation in this forum is advanced by plaintiffs themselves. They
have been directly related to development or operation of the UCIL facility in Bhopal. assert that the deterrent effect of this case can be distinguished from the situation in
However, almost “all the relevant events” leading to and following from the accident Piper, where the Court rejected the argument that “American citizens have an
occurred in India. Indian citizens are primarily involved in the case, both as witnesses interest in ensuring that American manufacturers are deterred from producing
and claimants. The substantial administrative weight of this case should be centered defective products, and that additional deterrence might be obtained if Piper and [its
on a court with the most significant contacts with the event. Thus, a court in Bhopal, co-defendant] were tried in the United States, where they could be sued on the
CONFLICT OF LAWS 3D 1/08-09 Page 43 of 97 Atty. Jose A. Bernas
basis of both negligence and strict liability.” Piper 454 U.S. at 260, 102 S.Ct. at 268.
The Court stated that: The Indian Government regulated the Bhopal plant indirectly under a series of
environmental laws, enforced by numerous agencies, much as the Occupational
[T]he incremental deterrence that would be gained if this trial were held in an Safety and Health Administration, the Environmental Protection Agency and state
American court is likely to be insignificant. The American interest in this accident is and local agencies regulate the chemical industry in the United States. (Dutta Aff. at
simply not sufficient to justify the enormous commitment of judicial time and 53-56). Emissions from the facility were monitored by a state water pollution board,
resources that would inevitably be required if the case were to be tried here. for example. (Dutta Aff. at 64). In addition, state officials periodically inspected the
fully-constructed plant.FN22 (Dutta Aff. at 56). A detailed inquiry into the plant's
Piper at 260-61, 102 S.Ct. at 268. According to plaintiffs, the potential for greater operations was conducted by the Indian Government in the aftermath of the
deterrence in this case is “self-evident.” December, 1981 fatality at the MIC unit and the February, 1982 incident involving a
pump seal. (Dutta Aff. at 58-62). Numerous federal, state and local commissions,
*863 The opposing interest of India is argued to be ill-served by sending this litigation obviously, investigated the most tragic incident of all, the MIC leak of December,
to India. Pointing to the fact that the Union of India chose this forum, plaintiffs state 1984.
that there can be “no question as to the public interest of India.” (Memo in Opp. at
91). Union Carbide's statements regarding the interests of India in this litigation are FN22. One such regular inspection appears to have taken place
summarily dismissed by the plaintiffs, who state that “Union Carbide, whose actions approximately two weeks before the MIC disaster. (Dutta Aff. at 56; Ex.
caused the suffering of an entire city, has no standing to assert this belated concern 116).
for the welfare of the Indian populace.” (Memo in Opp. at 91).
The recital above demonstrates the immense interest of various Indian
Union Carbide, not surprisingly, argues that the public interest of the United States in governmental agencies in the creation, operation, *864 licensing and regulation, and
this litigation is very slight, and that India's interest is great. In the main, the Court investigation of the plant. Thus, regardless of the extent of Union Carbide's own
agrees with the defendant. involvement in the UCIL plant in Bhopal, or even of its asserted “control” over the
plant, the facility was within the sphere of regulation of Indian laws and agencies, at
As noted, Robert C. Brown states in his affidavit on behalf of Union Carbide that the all levels. The comments of the Court of Appeals for the Sixth Circuit with respect to
Indian Government preserved the right to approve foreign collaboration and import of its decision to dismiss a products liability action on forum non conveniens grounds
equipment to be used in connection with the plant. See supra at 856. In addition, Mr. seem particularly apposite. In In re Richardson-Merrell, Inc., 545 F.Supp. 1130
Brown quoted excerpts from the 1972 Letter of Intent entered into by the Union of (S.D.Ohio 1982), modified sub. nom. Dowling v. Richardson-Merrell Inc., 727 F.2d
India and UCIL, one term of which required that “the purchase of only such design 608 (6th Cir.1984), the court reviewed a dismissal involving an action brought by a
and consultancy services from abroad as are not available within the country” would number of plaintiffs, all of whom were citizens of Great Britain.FN23 Defendant in the
be allowed. (Brown Aff. at 6). Ranjit K. Dutta states that the Indian Government, in a action was a drug company which had developed and tested a drug in the United
process of “Indianization,” restricted the amount of foreign materials and foreign States which was manufactured and marketed in England. The suit was brought
consultants' time which could be contributed to the project, and mandated the use of against the American parent, not the British subsidiary, for injuries allegedly
Indian materials and experts whenever possible. (Dutta Aff. at 35). In an alleged resulting from ingestion of the offending drug in England and Scotland. The district
ongoing attempt to minimize foreign exchange losses through imports, the Union of court, in dismissing the case, stated that:
India insisted on approving equipment to be purchased abroad, through the
mechanism of a “capital goods license.” (Dutta Aff. at 48-50). FN23. Only a small number of plaintiffs in the Bhopal litigation are United
States citizens. Of the 200,000 plaintiffs, approximately nine are American.
The Indian Government, through its Ministry of Petroleum and Chemicals, allegedly They have filed the complaints numbered 85 Civ. 0447, 85 Civ. 1096 and
required information from UCIL regarding all aspects of the Bhopal facility during 85 Civ. 2098. This is of relative insignificance on this motion to dismiss.
construction in 1972 and 1973, including “information on toxicity” of chemicals. (Dutta “The federal courts have not felt constrained to retain jurisdiction over
Aff. at 44). The Ministry required progress reports throughout the course of the predominantly foreign cases involving American plaintiffs where an
construction project. These reports were required by the Secretariat for Industrial examination of the Gilbert factors demonstrated that the action is more
Approvals, the Director General of Technical Development and the Director of appropriately brought in a foreign forum.... [T]he presence of a handful of
Industries of Madhya Pradesh. (Dutta Aff. at 45). Moreover, UCIL was ultimately American plaintiffs does not preclude such dismissal.” Nai-Chao v.
required to obtain numerous licenses during development, construction and operation Boeing Co., 555 F.Supp. 9, 21 (N.D.Cal.1982), aff'd sub. nom., Cheng v.
of the facility. (Dutta Aff. at 46). The list of licenses obtained fills five pages.FN21 Boeing Co., 708 F.2d 1406 (9th Cir.1983).
FN21. Indian federal and municipal officials also allegedly conducted on-site This action involves the safety of drugs manufactured in the United Kingdom and
inspections resulting in approvals for portions of the construction, including sold to its citizens pursuant to licenses issued by that government. The interest of
approvals for the flare tower, MIC layout and storage, unit refrigeration and the United Kingdom is overwhelmingly apparent. New York, and Ohio [the United
MIC/Phosgene structure. (Dutta Aff. at 46-47; Exs. 102-104). States forums] for that matter, have a minimal interest in the safety of products
CONFLICT OF LAWS 3D 1/08-09 Page 44 of 97 Atty. Jose A. Bernas
which are manufactured, regulated and sold abroad by foreign entities, even though The impropriety of [applying American standards of product safety and care] would
development or testing occurred in this country. be even more clearly seen if the foreign country involved was, for example, India, a
In re Richardson-Merrell, Inc., 545 F.Supp. at 1135 (footnote omitted). The Sixth country with a vastly different standard of living, wealth, resources, level of health
Circuit confirmed this view of the public interests, stating: care and services, values, morals and beliefs than our own. Most significantly, our
two societies must deal with entirely different and highly complex problems of
The interest of the United Kingdom in this litigation is great. The drug was population growth and control. Faced with different needs, problems and resources
manufactured under a British license by British companies and was marketed and in our example India may, in balancing the pros and cons ... give different weight to
prescribed in the United Kingdom. The alleged injuries took place in England and various factors than would our society.... Should we impose our standards upon
Scotland and the plaintiffs are citizens and residents of those countries. When a them in spite of such differences? We think not.
regulated industry, such as pharmaceuticals in this case and passenger aircraft
operations in Piper Aircraft, is involved, the country where the injury occurs has a Harrison at 4-5. This Court, too, thinks that it should avoid imposing
particularly strong interest in product liability litigation.... Though no single factor characteristically American values on Indian concerns.
should be determinative in ruling on a forum non conveniens motion, the nature of the
product and its status as regulated or not must be considered. The Indian interest in creating standards of care, enforcing them or even extending
them, and of protecting its citizens from ill-use is significantly stronger than the local
Dowling, 727 F.2d at 616. interest in deterring multinationals from exporting allegedly dangerous technology.
The supposed “blackmail” effect of dismissal by which plaintiffs are troubled is not a
The Indian government, which regulated the Bhopal facility, has an extensive and significant interest of the American population, either. Surely, there will be no
deep interest in ensuring that its standards for safety are complied with. As relaxing of regulatory standards by the responsible legislators of the United States
regulators, the Indian government and individual citizens even have an interest in as a response to lower standards abroad.FN24 Other concerns than bald fear of
knowing whether extant regulations are adequate. This Court, sitting in a foreign potential liability, such as convenience or tax benefits, bear on decisions regarding
country, has considered the extent of regulation by Indian agencies of the Bhopal where to locate a plant. Moreover, the purported public interest of seizing this
plant. It finds that this is not the appropriate tribunal to determine whether the Indian chance to create new law is no real interest at all. This Court would exceed its
regulations were breached, or whether the laws themselves were sufficient to protect authority were it to rule otherwise when restraint was in order.
Indian citizens from harm. It would be sadly paternalistic, if not misguided, of this
Court to attempt to evaluate the regulations and standards imposed in a foreign FN24. In any event, plaintiffs' “deterrence” and “blackmail” arguments
country. As another district court stated in the context of a drug product liability action presuppose that Union Carbide would be held more accountable by an
brought by foreign plaintiffs in this country, American than by an Indian tribunal. Certainly, there is a real possibility of
a substantial Indian judgment against defendant, which would serve an
*865 Each government must weigh the merits of permitting the drug's use.... Each identical deterrent function, and prevent a rush of multinationals to foreign
makes its own determination as to the standards of degree of safety and duty of locations.
care.... This balancing of the overall benefits to be derived from a product's use with
the risk of harm associated with that use is peculiarly suited to a forum of the country The Court concludes that the public interest of India in this litigation far outweighs
in which the product is to be used.... The United States should not impose its own the public interest of the United States. This litigation offers a developing nation the
view of the safety, warning, and duty of care required of drugs sold in the United opportunity to vindicate the suffering of its own people within the framework of *866
States upon a foreign country when those same drugs are sold in that country. a legitimate legal system. This interest is of paramount importance.FN25
Harrison v. Wyeth Laboratories, 510 F.Supp. 1, 4 (E.D.Pa.1980), aff'd mem., 676 FN25. While the accident is more than a “local controversy,” given the
F.2d 685 (3d Cir.1982). India no doubt evaluated its need for a pesticide plant against interests of the Indian populace, it is certainly a national controversy which
the risks inherent in such development. Its conclusions regarding “[q]uestions as to should be “decided at home.” Gilbert at 508-09. No doubt Indian citizens,
the safety of [products] marketed” or manufactured in India were “properly the many of whom barely are acquainted with their American lawyers, will find
concern of that country.” Harrison at 4 (emphasis omitted). This is particularly true the case more accessible if it is tried “in their view” in India.
where, as here, the interests of the regulators were possibly drastically different from
concerns of American regulators. The Court is well aware of the moral danger of C. The Applicable Law.
creating the “double-standard” feared by plaintiffs and amicus curiae. However,
when an industry is as regulated as the chemical industry is in India, the failure to Gilbert and Piper explicitly acknowledge that the need of an American court to apply
acknowledge inherent differences in the aims and concerns of Indian, as compared to foreign law is an appropriate concern on a forum non conveniens motion, and can in
American citizens would be naive, and unfair to defendant. The district court in fact point toward dismissal. Gilbert, 330 U.S. at 509, 67 S.Ct. at 843; Piper, 454
Harrison considered the hypothetical instance in which a products liability action U.S. at 260, 102 S.Ct. at 268. Especially when, as here, all other factors favor
arising out of an Indian accident would be brought in the United States. The court dismissal, the need to apply foreign law is a significant consideration on this type of
speculated as follows: motion. Piper at 260, n. 29, 102 S.Ct. at 268, n. 29 . A federal court is bound to
CONFLICT OF LAWS 3D 1/08-09 Page 45 of 97 Atty. Jose A. Bernas
apply the choice of law rules of the state in which an action was originally brought; limits of its capacity. No American interest in the outcome of this litigation outweighs
even upon transfer to a different district, “the transferee district court must be the interest of India in applying Indian law and Indian values to the task of resolving
obligated to apply the state law that would have been applied if there had been no this case.
change of venue.” Van Dusen v. Barrack, 376 U.S. 612, 639, 84 S.Ct. 805, 821, 11
L.Ed.2d 945 (1964). Thus, this Court, sitting over a multidistrict litigation, must apply The Bhopal plant was regulated by Indian agencies. The Union of India has a very
the various choice of law rules of the states in which the actions now consolidated strong interest in the aftermath of the accident which affected its citizens on its own
before it were brought.FN26 Rather than undertake the task of evaluating the choice of soil. Perhaps Indian regulations were ignored or contravened. India may wish to
law rules of each state separately, the Court will treat the choice of law doctrine in determine whether the regulations imposed on the chemical industry within its
toto. The “governmental interest” analysis, employed by many jurisdictions, requires boundaries were sufficiently stringent. The Indian interests far outweigh the interests
a court to look to the question of which state has the most compelling interest in the of citizens of the United States in the litigation.
outcome of the case. India's interest in the outcome of the litigation exceeds
America's, see supra at 44-58. The lex loci delicti analysis used in other jurisdictions Plaintiffs, including the Union of India, have argued that the courts of India are not
indicates that the law of the state where the tort occurred should be applied. The up to the task of conducting the Bhopal litigation. They assert that the Indian
place in which the tort occurred was, to a very great extent, India. Other states apply judiciary has yet to reach full maturity due to the restraints placed upon it by British
the “most significant relationship” test, or “weight of contacts” test, which evaluate in colonial rulers who shaped the Indian legal system to meet their own ends. Plaintiffs
which state most of the events constituting the tort occurred. The contacts with India allege that the Indian justice system has not yet cast off the burden of colonialism to
with respect to all phases of plant construction, operation, malfunction and meet the emerging needs of a democratic people.
subsequent injuries are greater in number than those with the United States. Thus,
under any one of these three doctrines, it is likely that Indian law will emerge as the The Court thus finds itself faced with a paradox. In the Court's view, to retain the
operative law. An Indian court, therefore, would be better able to apply the controlling litigation in this forum, as plaintiffs request, would be yet another example of
law than would this United States Court, or a jury working with it. This public interest imperialism, another situation in which an established sovereign inflicted its rules, its
factor also weighs in favor of dismissal on the grounds of forum non conveniens. standards and values on a developing nation. This Court declines to play such a
role. The Union of India is a world power in 1986, and its courts have the proven
FN26. Upon a cursory review of the individual complaints comprising this capacity to mete out fair and equal justice. To deprive the Indian judiciary of this
action, the Court notes that suits were brought in California, Connecticut, the opportunity to stand tall before the world and to pass judgment on behalf of its own
District of Columbia, Florida, Illinois, Louisiana, Maryland, New Jersey, New people would be to revive a history of subservience and subjugation from which
York, Pennsylvania, Tennessee, Texas and West Virginia, at a minimum. India has emerged. India and its people can and must vindicate their claims before
the independent and legitimate judiciary created there since the Independence of
CONCLUSION 1947.
[7] It is difficult to imagine how a greater tragedy could occur to a peacetime This Court defers to the adequacy and ability of the courts of India. Their interest in
population than the deadly gas leak in Bhopal on the night of December 2-3, 1984. the sad events of December 2-3, 1984 at the UCIL plant in the City of Bhopal, State
The survivors of the dead victims, the injured and others who suffered, or may in the of Madhya Pradesh, Union of India, is not subject to question or challenge. The
future suffer due to the disaster, are entitled to compensation. This Court is firmly availability of the probative, relevant, material and necessary evidence to Indian
convinced that the Indian legal system is in a far better position than the American courts is obvious and has been demonstrated in this opinion.
courts to determine the cause of the tragic event and thereby fix liability. Further, the
Indian courts have greater access to all the information needed to arrive at the Therefore, the consolidated case is dismissed on the grounds of forum non
amount of the compensation to be awarded the victims. conveniens under the following conditions:
The presence in India of the overwhelming majority of the witnesses and evidence, 1. Union Carbide shall consent to submit to the jurisdiction of the courts of India,
both documentary and real, would by itself suggest that India is the most convenient and shall continue to waive defenses based upon the statute of limitations;
forum for this consolidated case. The additional presence in India of all but the less
than handful of claimants underscores the convenience of holding trial in India. All of 2. Union Carbide shall agree to satisfy any judgment rendered against it by an
the private interest factors described in Piper and Gilbert weigh heavily toward *867 Indian court, and if applicable, upheld by an appellate court in that country, where
dismissal of this case on the grounds of forum non conveniens. such judgment and affirmance comport with the minimal requirements of due
process;
The public interest factors set forth in Piper and Gilbert also favor dismissal. The
administrative burden of this immense litigation would unfairly tax this or any 3. Union Carbide shall be subject to discovery under the model of the United States
American tribunal. The cost to American taxpayers of supporting the litigation in the Federal Rules of Civil Procedure after appropriate demand by plaintiffs.
United States would be excessive. When another, adequate and more convenient
forum so clearly exists, there is no reason to press the United States judiciary to the SO ORDERED.
CONFLICT OF LAWS 3D 1/08-09 Page 46 of 97 Atty. Jose A. Bernas
is properly held ineffective to subject defendants to suit in New York.
National Equipment Rental, Ltd., Plaintiff-Appellant, v. Steve Szukhent and Robert Szukhent,
Defendants-Appellees., 311 F.2d 79 (2nd Cir. 1962) Affirmed.
LEONARD P. MOORE, Circuit Judge (dissenting).
Wilbur G. Silverman, Jamaica, N.Y., for plaintiff-appellant. The question here presented goes so much beyond the facts of this particular case
that I believe my contrary view should be stated. After all, it may be said, who
Harry R. Schwartz, Brooklyn, N.Y., for defendants-appellees. (except this plaintiff, of course) cares whether a Michigan farmer pays for machinery
he has leased in New York? However, the federal jurisdiction problem presented
Before CLARK, MOORE and SMITH, Circuit Judges. here is of the greatest commercial importance to merchants and consumers who
J. JOSEPH SMITH, Circuit Judge. engage in interstate business transactions. Furthermore, the opinion of the majority
would appear to be in conflict with Kenny Construction Co. v. Allen, 101 U.S.
Defendants, residents of Michigan, obtained farm equipment in Michigan on a lease App.D.C. 334, 248 F.2d 656 (1957) and Green Mountain College v. Levine, 120 Vt.
from plaintiff, a Delaware Corporation with its principal place of business in New York. 332, 139 A.2d 882 (1958).
Claiming default, plaintiff sued for payments under the lease in the Eastern District of
New York, the marshal delivering two copies of the summons and complaint to one Plaintiff, a Delaware corporation with its principal place of business in New York, is
Florence Weinberg as agent designated in the lease for the purpose of accepting in the business of purchasing equipment on its customers' orders for leasing to the
process for defendants in the State of New York. The copies were promptly forwarded customers on terms and conditions set forth in an instrument denominated a lease.
by Weinberg to defendants by mail with a covering letter under an agreement Defendants, residents of Michigan, obtained farm equipment from plaintiff pursuant
between Weinberg and plaintiff to perform this service without compensation. Nothing to such a lease, the last operative clause of which read:
in the lease required notice to defendants. Plaintiff also notified defendants by mail '* * * and the Lessee hereby designates Florence Weinberg, 47-21 Forty-First
promptly on the purported service of the process. The United States District Court for Street, Long Island City, New York, as agent for the purpose of accepting service of
the Eastern District of New York, John F. Dooling, Jr., D. J., held the service invalid any process within the State of New York.'
and quashed the service. Plaintiff appeals. We agree with the District Court that no
valid agency of Weinberg for defendants was created by the instrument in suit and Plaintiff, alleging default under the lease, commenced this action in the Eastern
affirm the order. District of New York. The Marshal delivered two copies of the summons and
complaint to defendants' designated agent, Florence Weinberg, who promptly
The lease contract here was on a printed form provided by plaintiff. There is no mailed them to defendants with a covering letter, explaining that they had been
requirement in the purported appointment of the agent for any notice to defendants. A served upon her as the defendants' agent in accordance with the provisions of the
provision for notice would be essential to the validity of a state statute providing for lease. On the same day, plaintiff itself notified defendants by certified mail of service
substituted service on a statutory 'agent'. Wuchter v. Pizzutti, 276 U.S. 13, 48 S.Ct. of process on Florence Weinberg. Twenty-two days after this service, counsel for
259, 72 L.Ed. 446 (1928). There is no such requirement when individuals freely defendants notified plaintiff's attorney that he was appearing specially to set aside
contract for a method of substituted service. Lack of such a provision in a contract of the service of the summons and complaint. The District Court held the service
adhesion, here involved, may, however, be considered in determining the meaning invalid and quashed it.
and effect of the provisions of the contract. There is no provision in the lease for any
undertaking by the purported agent to act for, or give notice to her purported principal. The clause appointing the agent was no fine print clause buried in an oppressively
Normally, an agency exists only if there has been a manifestation by the principal to long and complex instrument. The entire contract is only 1 1/4 pages long and the
the agent that the agent may act on his account, and consent by the agent so to act, agency provision is in the last paragraph appearing directly above defendants'
Restatement Agency 15, and the agent is subject to control by the principal, signatures. The clause was included in the contract for the purpose of subjecting
Restatement Agency 1. Plaintiff's affidavits demonstrate that Weinberg was acting defendants to suit in the courts1 in New York and for no other purpose. Without
under an agreement with and supervision of the plaintiff, having undertaken no such a clause plaintiff might well have refused to make the contract. To carry a New
obligations to defendants, to whom she was unknown. Defendants never dealt with York obtained judgment to the other forty-nine States for enforcement is quite a
her and had no indication of any undertaking on her part to act as their agent until different matter than trying lawsuits and engaging counsel for this purpose in these
receipt of the process many months later. The court properly held such a purported other States.
appointment unreal and ineffective to create a genuine agency of Weinberg for
defendants. The trial court found that it was plaintiff's established practice to assure that prompt
notice was sent to defendants of any action it brought against them. That citizens of
Plaintiff might have provided, with defendants' agreement, that service or notice be different states may agree in advance that any disputes arising out of a commercial
waived or that notice be given by plaintiff. See Bowles v. J. J. Schmitt & Co., 170 F.2d transaction between them shall be subject to the jurisdiction of the courts of a
617, 622 (2 Cir. 1948), Gilbert v. Burnstine, 255 N.Y. 348, 174 N.E. 706, 73 A.L.R. designated state is well established. United States v. Balanovski, 236 F.2d 298 (2d
1453 (1931). This would, however, have required defendants' consent, which might or Cir. 1956); Kenny Construction Co. v. Allen, 101 U.S.App.D.C. 334, 248 F.2d 656
might not have been forthcoming. The illusory purported agency provision, however, (1957); Erlanger Mills, Inc. v. Cohoes Fibre Mills, Inc., 239 F.2d 502 (4th Cir. 1956);
CONFLICT OF LAWS 3D 1/08-09 Page 47 of 97 Atty. Jose A. Bernas
Bowles v. J. J. Schmitt & Co., Inc., 170 F.2d 617 (2d Cir. 1948); Gilbert v. Burnstine, 'Notice was in fact given. And it was admitted at the bar that the defendant had, at
255 N.Y. 348, 174 N.E. 706, 73 A.L.R. 1453 (1931); Restatement, Conflicts 81; all times, actual knowledge and the opportunity to defend. The cases cited by the
Restatement, Judgments 18; cf. Adams v. Saenger, 303 U.S. 59, 58 S.Ct. 454, 82 Court as holding that he could deliberately disregard that notice and opportunity and
L.Ed. 649 (1938). yet insist upon a defect in the statute as drawn, although he was in no way
prejudiced thereby, seem hardly reconcilable with a long line of authorities.' 276
The only question presented by this appeal2 therefore is whether the service made U.S. at page 28, 48 S.Ct. at page 264.
on Florence Weinberg is service on 'an agent authorized by appointment * * * to
receive service of process' within the meaning of Rule 4(d)(1) of the Federal Rules of To allow a defendant to insist upon what the majority here holds to be a defect in
Civil Procedure.3 The majority's strained search for the contract's 'meaning' and this privately drafted and voluntarily agreed to agency appointment, even though he
'effect', and their invocation of Wuchter v. Pizzutti, 276 U.S. 13, 48 S.Ct. 259, 72 L.Ed. has in no way been prejudiced thereby, is the essence of formalism. The purpose of
446 (1928) to provide the unexpressed intendment of the parties do not obliterate the service of process is to apprise the defendant that suit has been brought against
federal nature4 of the question being here decided. Although my colleagues do not him and to give him an opportunity to defend. International Shoe Co. v. Washington,
expressly evince a desire to remove Rule 4(d)(1) from the books entirely, they not 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Wuchter v. Pizzutti, supra; Grooms
only substantially rewrite the Rule but also write for the parties a contract into which v. Greyhound Corp., 287 F.2d 95 (6th Cir. 1961); Tarbox v. Walters, 192 F.Supp.
they probably never would have entered. 816 (E.D.Pa.1961); American Football League v. National Football League, 27
F.R.D. 264 (D.Md.1961). Once it is found that that purpose has been served, the
The majority initially concede that the constitutionally dictated requirements of inquiry should come to an end.
Wuchter v. Pizzutti, supra, do not apply to contracts entered into by individuals. Then,
in the guise of construing the contract in question, they read those same I do not reach the question whether actual receipt of notice by the defendant is
requirements into Rule 4(d)(1). That this is the effect of their decision is made clear by always required because here notice was received. If the agent is the nominee of
their concern that 'there is no provision in the lease for any undertaking by the the defendant, plausible argument has been made that service of process is valid
purported agent to * * * give notice to her purported principal.' In Wuchter, the even though notice is not forwarded to the defendant. Kenny Construction Co. v.
Supreme Court held invalid the non-resident motorist statute in question because 'the Allen, 101 U.S.App. D.C. 334, 248 F.2d 656 (1957); Green Mountain College v.
statute of New Jersey * * * does not make provision for communication to the Levine, 120 Vt. 332, 139 A.2d 822 (1958).
proposed defendant.' Rule 4(d)(1) is now construed to mean that any agency
arrangement that does not impose upon the designated agent a contractually In considering this question, the Vermont court said:
unassailable duty to send notice is not sufficient to subject the appointing party to the 'The capacity of the Secretary of State to accept the appointment and the danger
personal jurisdiction of the courts of the designated state. The fact that notice was that he might not forward notice to the defendants were risks which they took in
actually given is held to be of no consequence. appointing him. Restatement, Agency, 21.' 120 Vt. at page 336, 139 A.2d at page
The Supreme Court, in Wuchter, declared that in those situations in which a State 825.
may subject a non-resident individual to the jurisdiction of its courts other than Also appropos here are the words of the Supreme Court in the landmark case of
through personal service within the State, due process requires that the statutory Pennoyer v. Neff, 95 U.S. 714 , 735, 24 L.Ed. 565 (1877):
scheme provide a means of service reasonably calculated to apprise the defendant of
the proceedings against him. Compare Wuchter, supra, with Hess v. Pawlowski, 274 'It is not contrary to natural justice that a man who has agreed to receive a particular
U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927). See McGee v. International Life mode of notification of legal proceedings should be bound by a judgment in which
Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); Mullane v. Central that particular mode of notification has been followed, even though he may not have
Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). In that actual notice of them.'
case the Court was dealing with the limitations on the coercive powers of the States The rationale of the majority opinion would, however, extend even to the case
imposed by the due process clause of the Fourteenth Amendment, and not with posited. They require that the authorization to receive service of process intrinsically
arrangements for service of process voluntarily agreed to by individuals. As Cardozo, provide that the agent be bound to forward notice to the defendant. If, for example,
J., said in related context, 'The distinction is between a true consent and an imputed defendants in the present action had selected Florence Weinberg themselves but
or implied consent, between a fact and a fiction.' Bagdon v. Philadelphia & Reading no consideration ran to her or some other contractual infirmity existed, they would
Coal & Iron Co., 217 N.Y. 432, 437, 111 N.E. 1075, 1076, L.R.A.1916F, 407 (1916). hold that service on her was invalid because she was under no obligation, no
See L. Hand, D.J., in Smolik v. Philadelphia & Reading Coal & Iron Co., 222 F. 148 binding undertaking, to forward notice. And yet they actually go so far as to concede
(S.D.N.Y.1915). The demise of the implied consent theory serves only to accentuate that a contract providing for no notice at all would have been permissible. Also
that distinction, namely, between a voluntary and a forced subjection to the implicit in the majority opinion is the thought that an appointed agent must be
jurisdiction of the courts of a state. presumed to be faithless to his obligation and that some compensation must be paid
Actual notice by an agent authorized by appointment to receive service of process by the principal for the services. If these are to be the legal consequences, then
should be dispositive. The reasoning of Justices Brandeis' and Holmes' dissent in precautionary steps should be taken to require that the contract provide for a
Wuchter is, in the context of Rule 4(d)(1), compelling: certificate from the agent in substance as follows: 'I, Florence Weinberg, hereby
agree for good and valuable consideration by me received from the Lessee,
CONFLICT OF LAWS 3D 1/08-09 Page 48 of 97 Atty. Jose A. Bernas
faithfully to perform my agency duties and to forward forthwith by registered mail any
papers served on me.'
At the heart of the majority opinion there seems to lie a mistrust of the agency
provision in question because it might be construed to permit the entry of a default
judgment with no notice being provided the defendants.5 Hard cases may make bad
law but easy cases, misconceived to be hard ones, make even worse law because in
the latter there is not even the seeming justification attendant the former.
Defendants here received all they were entitled to. They agreed to submit to the
jurisdiction of the courts in New York and that is all plaintiff required them to do. No
default judgment is contemplated; they received adequate notice of the suit pending
against them and were afforded ample opportunity to defend. In order to relieve them
of this obligation which they voluntarily incurred, the majority throws in doubt the
validity of countless provisions of a similar nature and throws the law into a state of
confusion and uncertainty. If, as the majority seem to fear, this agency provision can
be used as a vehicle of oppression and overreaching, I suggest that we wait until
such a case is presented to us. The same Federal Rules that provide for service of
process upon an agent authorized to receive such service also contain provision for
the setting aside of default judgments, Rule 55(c), and for relieving a party from a final
judgment, Rule 60 (b). I cannot bring myself to believe that the federal courts would
not, in such a case, use the above rules to good advantage.
I would require the parties to abide by their contract and would reverse the district
court.
Since the corporate personality is a fiction, although a fiction intended to be acted Finally, although the commission of some single or occasional acts of the corporate
3. As a matter of federal due process, the business done by the corporation in Ohio We start with the holding of the Supreme Court of Ohio, not contested here, that,
was sufficiently substantial and of such a nature as to permit Ohio to entertain the under Ohio law, the mining company is to be treated as a foreign corporation.
cause of action against it, though the cause of action arose from activities entirely [Footnote 2] Actual notice of the proceeding was given to the corporation
distinct from its activities in Ohio. Pp. 342 U. S. 447-449. Page 342 U. S. 440
4. It not clearly appearing, under the Ohio practice as to the effect of the syllabus, in the instant case through regular service of summons upon its president while he
whether the Supreme Court of Ohio rested its decision on Ohio law or on the was in Ohio acting in that capacity. Accordingly, there can be no jurisdictional
Fourteenth Amendment, the cause is remanded to that court for further proceedings objection based upon a lack of notice to a responsible representative of the
in the light of the opinion of this Court. Pp. 342 U. S. 441-449. corporation.
155 Ohio St. 116, 98 N.E.2d 33, vacated and remanded. The answer to the question of whether the state courts of Ohio are open to a
Page 342 U. S. 438 proceeding in personam, against an amply notified foreign corporation, to enforce a
cause of action not arising in Ohio and not related to the business or activities of the
corporation in that State rests entirely upon the law of Ohio, unless the Due Process
In two actions in an Ohio state court, the trial court sustained a motion to quash the Clause of the Fourteenth Amendment compels a decision either way.
service on the respondent foreign corporation. The Court of Appeals of Ohio affirmed, The suggestion that federal due process compels the State to open its courts to
88 Ohio App. 118, 95 N.E.2d 5, as did the State Supreme Court, 155 Ohio St. 116, 98 such a case has no substance.
N.E.2d 33. This Court granted certiorari. 342 U.S. 808. Judgment vacated and cause
remanded, p. 342 U. S. 449. "Provisions for making foreign corporations subject to service in the state is a matter
of legislative discretion, and a failure to provide for such service is not a denial of
MR. JUSTICE BURTON delivered the opinion of the Court. due process. Still less is it incumbent upon a state in furnishing such process to
This case calls for an answer to the question whether the Due Process Clause of the make the jurisdiction over the foreign corporation wide enough to include the
Fourteenth Amendment to the Constitution of the United States precludes Ohio from adjudication of transitory actions not arising in the state."
subjecting a foreign corporation to the jurisdiction of its courts in this action in
CONFLICT OF LAWS 3D 1/08-09 Page 55 of 97 Atty. Jose A. Bernas
Missouri P. R. Co. v. Clarendon Co., 257 U. S. 533, 257 U. S. 535. Page 342 U. S. 444
Page 342 U. S. 441 responsible representative of the foreign corporation. In each case, the public
official who was served with process in an attempt to bind the foreign corporation
Also without merit is the argument that, merely because Ohio permits a complainant was held to lack the necessary authority to accept service so as to bind it in a
to maintain a proceeding in personam in its courts against a properly served proceeding to enforce a cause of action arising outside of the state of the forum.
nonresident natural person to enforce a cause of action which does not arise out of See 204 U.S. at 204 U. S. 22-23, and 236 U.S. at 236 U. S. 130. The necessary
anything done in Ohio, therefore the Constitution of the United States compels Ohio result was a finding of inadequate service in each case and a conclusion that the
to provide like relief against a foreign corporation. foreign corporation was not bound by it. The same would be true today in a like
A more serious question is presented by the claim that the Due Process Clause of the proceeding where the only service had and the only notice given was that directed
Fourteenth Amendment prohibits Ohio from granting such relief against a foreign to a public official who had no authority, by statute or otherwise, to accept it in that
corporation. The syllabus in the report of the case below, while denying the relief kind of a proceeding. At the time of rendering the above decisions, this Court was
sought, does not indicate whether the Supreme Court of Ohio rested its decision on aided, in reaching its conclusion as to the limited scope of the statutory authority of
Ohio law or on the Fourteenth Amendment. The first paragraph of that syllabus is as the public officials, by this Court's conception that the Due Process Clause of the
follows: Fourteenth Amendment precluded a state from giving its public officials authority to
accept service in terms broad enough to bind a foreign corporation in proceedings
"1. The doing of business in this state by a foreign corporation, which has not against it to enforce an obligation arising outside of the state of the forum. That
appointed a statutory agent upon whom service of process against the corporation conception now has been modified by the rationale adopted in later decisions, and
can be made in this state or otherwise consented to service of summons upon it in particularly in International Shoe Co. v. Washington, 326 U. S. 310.
actions brought in this state, will not make the corporation subject to service of
summons in an action in personam brought in the courts of this state to enforce a Today, if an authorized representative of a foreign corporation be physically present
cause of action not arising in this state, and in no way related to the business or in the state of the forum and be there engaged in activities appropriate to accepting
activities of the corporation in this state." service or receiving notice on its behalf, we recognize that there is no unfairness in
subjecting that corporation to the jurisdiction of the courts of that state through such
155 Ohio St. 116, 117, 98 N.E.2d 33, 34. service of process upon that representative. This has been squarely held to be so in
If the above statement stood alone, it might mean that the decision rested solely upon a proceeding in personam against such a corporation, at least in relation to a cause
the law of Ohio. In support of that possibility, we are told that, under the rules and of action
practice of the Supreme Court of Ohio, only the syllabus necessarily carries the Page 342 U. S. 445
approval of that court. [Footnote 3] As
arising out of the corporation's activities within the state of the forum. [Footnote 5]
Page 342 U. S. 442
The essence of the issue here, at the constitutional level, is a like one of general
we understand the Ohio practice, the syllabus of its Supreme Court constitutes the fairness to the corporation. Appropriate tests for that are discussed in International
official opinion of that court, but it must be read in the light of the facts and issues of Shoe Co. v. Washington, supra, at 326 U. S. 317-320. The amount and kind of
the case. activities which must be carried on by the foreign corporation in the state of the
Page 342 U. S. 443 forum so as to make it reasonable and just to subject the corporation to the
jurisdiction of that state are to be determined in each case. The corporate activities
of a foreign corporation which, under state statute, make it necessary for it to secure
a license and to designate a statutory agent upon whom process may be served
The only opinion accompanying the syllabus of the court below places the
provide a helpful, but not a conclusive, test. For example, the state of the forum may
concurrence of its author unequivocally upon the ground that the Due Process Clause
by statute require a foreign mining corporation to secure a license in order lawfully
of the Fourteenth Amendment prohibits the Ohio courts from exercising jurisdiction
to carry on there such functional intrastate operations as those of mining or refining
over the respondent corporation in this proceeding. [Footnote 4] That opinion is an
ore. On the other hand, if the same corporation carries on, in that state, other
official part of the report of the case. The report, however, does not disclose to what
continuous and systematic corporate activities as it did here -- consisting of
extent, if any, the other members of the court may have shared the view expressed in
directors' meetings, business correspondence, banking, stock transfers, payment of
that opinion. Accordingly, for us to allow the judgment to stand as it is would risk an
salaries, purchasing of machinery, etc. -- those activities are enough to make it fair
affirmance of a decision which might have been decided differently if the court below
and reasonable to subject that corporation to proceedings in personam in that state,
had felt free under our decisions to do so.
at least insofar as the proceedings in personam seek to enforce
The cases primarily relied on by the author of the opinion accompanying the syllabus
Page 342 U. S. 446
below are Old Wayne Life Assn. v. McDonough, 204 U. S. 8, and Simon v. Southern
R. Co., 236 U. S. 115. Unlike the case at bar, no actual notice of the proceedings was causes of action relating to those very activities or to other activities of the
received in those cases by a corporation within the state.
CONFLICT OF LAWS 3D 1/08-09 Page 56 of 97 Atty. Jose A. Bernas
The instant case takes us one step further to a proceeding in personam to enforce a carrying substantial balances of company funds. A bank in Hamilton County, Ohio,
cause of action not arising out of the corporation's activities in the state of the forum. acted as transfer agent for the stock of the company. Several directors' meetings
Using the tests mentioned above, we find no requirement of federal due process that were held at his office or home in Clermont County. From that office, he supervised
either prohibits Ohio from opening its courts to the cause of action here presented or policies dealing with the rehabilitation of the corporation's properties in the
compels Ohio to do so. This conforms to the realistic reasoning in International Shoe Philippines, and he dispatched funds to cover purchases of machinery for such
Co. v. Washington, supra, at 326 U. S. 318-319: rehabilitation. Thus, he carried on in Ohio a continuous and systematic supervision
of the necessarily limited wartime activities of the company. He there discharged his
". . . there have been instances in which the continuous corporate operations within a duties as president and general manager, both during the occupation of the
state were thought so substantial and of such a nature as to justify suit against it on company's properties by the Japanese and immediately thereafter. While no mining
causes of action arising from dealings entirely distinct from those activities. See properties in Ohio were owned or operated by the company, many of its wartime
Missouri, K. & T. R. Co. v. Reynolds, 255 U.S. 565; [Footnote 6] Tauza v. activities were directed from Ohio and were being given the personal attention of its
Susquehanna Coal Co., 220 N.Y. 259, 115 N.E. 915; cf. 227 U. S. Louis S.W. R. Co. president in that State at the time he was served with summons. Consideration of
v. Alexander, supra, [227 U.S. 218]." the circumstances which, under the law of Ohio, ultimately will determine whether
". . . some of the decisions holding the corporation amenable to suit have been the courts of that State will choose to take jurisdiction over the corporation is
supported by resort to the legal fiction that it has given its consent to service and suit, reserved for the courts of that State. Without reaching that issue of state policy, we
consent being implied from its presence in the state through the acts of its authorized conclude that, under the circumstances above recited, it would not violate federal
agents. 59 U. S. 407; 106 U. S. 356; 213 U. S. 254; Washington v. Superior Court, due process for Ohio either to take or decline jurisdiction of the corporation in this
289 U. S. 361, 289 U. S. 364-365. But, more realistically, it may be said that those proceeding. This relieves the Ohio courts of the restriction relied upon in the opinion
authorized acts were of such a nature as to justify the fiction. Smolik v. Philadelphia & Page 342 U. S. 449
Reading Co.,@ 222 F.1d 8, 151. Henderson, The Position of Foreign Corporations in
American Constitutional Law 94, 95." accompanying the syllabus below, and which may have influenced the judgment of
the court below.
". . . Whether due process is satisfied must depend, rather, upon the quality and
nature of the activity in relation to the fair and orderly administration of the laws which Accordingly, the judgment of the Supreme Court of Ohio is vacated, and the cause
it was the purpose of the due process clause to insure. That clause does not is remanded to that court for further proceedings in the light of this opinion.
contemplate that a state may make binding a judgment in personam against an [Footnote 7]
individual or corporate defendant with which the state has no contacts, ties, or
relations. Cf. 95 U. S. Neff, supra, [95 U.S. 714]; Minnesota Commercial Assn. v. It is so ordered.
Benn, 261 U. S. 140." MR. JUSTICE BLACK concurs in the result.
It remains only to consider in more detail the issue of whether, as a matter of federal
due process, the business done in Ohio by the respondent mining company was
sufficiently substantial and of such a nature as to permit Ohio to entertain a cause of
action against a foreign corporation where the cause of action arose from activities
entirely distinct from its activities in Ohio. See International Shoe Co. v. Washington,
supra, at 326 U. S. 318.
The Ohio Court of Appeals summarized the evidence on the subject. 88 Ohio App. at
119-125, 95 N.E.2d at 6-9. From that summary, the following facts are substantially
beyond controversy: the company's mining properties were in the Philippine Islands.
Its operations there were completely halted during the occupation of the Islands by
the Japanese. During that interim, the president, who was also the general manager
and principal stockholder of the company, returned to his home in Clermont County,
Ohio. There, he maintained an office in
Page 342 U. S. 448
which he conducted his personal affairs and did many things on behalf of the
company. He kept there office files of the company. He carried on there
correspondence relating to the business of the company and to its employees. He
drew and distributed there salary checks on behalf of the company, both in his own
favor as president and in favor of two company secretaries who worked there with
him. He used and maintained in Clermont County, Ohio, two active bank accounts
CONFLICT OF LAWS 3D 1/08-09 Page 57 of 97 Atty. Jose A. Bernas
MCGEE V. INTERNATIONAL LIFE INS. CO., 355 U.S. 220 (1957) credit. 28 U.S.C. 1738.
Petitioner's son, a resident of California, bought a life insurance policy from an The material facts are relatively simple. In 1944, Lowell Franklin, a resident of
Arizona corporation, naming petitioner as beneficiary. Later, respondent, a Texas California, purchased a life insurance policy from the Empire Mutual Insurance
corporation, agreed to assume the insurance obligations of the Arizona corporation Company, an Arizona corporation. In 1948 the respondent agreed with Empire
and mailed a reinsurance certificate to petitioner's son in California, offering to insure Mutual to assume its insurance obligations. Respondent then mailed a reinsurance
him in accordance with his policy. He accepted this offer and paid premiums by mail certificate to Franklin in California offering to insure him in accordance with the
from his California home to respondent's office in Texas. Neither corporation has ever terms of the policy he held with Empire Mutual. He accepted this offer and from that
had any office or agent in California or done any other business in that State. [355 U.S. 220, 222] time until his death in 1950 paid premiums by mail from his
Petitioner sent proofs of her son's death to respondent, but it refused to pay the claim. California home to respondent's Texas office. Petitioner, Franklin's mother, was the
Under a California statute subjecting foreign corporations to suit in California on beneficiary under the policy. She sent proofs of his death to the respondent but it
insurance contracts with residents of California, even though such corporations refused to pay claiming that he had committed suicide. It appears that neither
cannot be served with process within the State, petitioner sued respondent and Empire Mutual nor respondent has ever had any office or agent in California. And so
obtained judgment in a California court, process being served only by registered mail far as the record before us shows, respondent has never solicited or done any
to respondent's principal place of business in Texas. Held: insurance business in California apart from the policy involved here.
Since Pennoyer v. Neff, 95 U.S. 714 , this Court has held that the Due Process
Clause of the Fourteenth Amendment places some limit on the power of state courts
1. The Due Process Clause of the Fourteenth Amendment did not preclude the to enter binding judgments against persons not served with process within their
California court from entering a judgment binding on respondent, since the suit was boundaries. But just where this line of limitation falls has been the subject of prolific
based on a contract which had a substantial connection with California. Pp. 223-224. controversy, particularly with respect to foreign corporations. In a continuing process
of evolution this Court accepted and then abandoned "consent," "doing business,"
and "presence" as the standard for measuring the extent of state judicial power over
2. Respondent's insurance contract was not unconstitutionally impaired by the fact such corporations. See Henderson, The Position of Foreign Corporations in
that the California statute here involved did not become effective until after American Constitutional Law, c. V. More recently in International Shoe Co. v.
respondent had assumed the obligation of the insurance policy. P. 224. Washington, 326 U.S. 310 , the Court decided that "due process requires only that
in order to subject a defendant to a judgment in personam, if he be not present
within the territory of the forum, he have certain minimum contacts with it such that
288 S. W. 2d 579, reversed and remanded. the maintenance of the suit does not offend `traditional notions of fair play and
substantial justice.'" Id., at 316.
Arthur J. Mandell argued the cause and filed a brief for petitioner.
Looking back over this long history of litigation a trend is clearly discernible toward
Stanley Hornsby argued the cause and filed a brief for respondent. [355 U.S. 220,
expanding the permissible scope of state jurisdiction over foreign corporations and
221]
other nonresidents. In part this is attributable to the fundamental transformation of
Opinion of the Court by MR. JUSTICE BLACK, announced by MR. JUSTICE our national economy over the years. Today many commercial transactions [355
DOUGLAS. U.S. 220, 223] touch two or more States and may involve parties separated by the
full continent. With this increasing nationalization of commerce has come a great
Petitioner, Lulu B. McGee, recovered a judgment in a California state court against increase in the amount of business conducted by mail across state lines. At the
respondent, International Life Insurance Company, on a contract of insurance. same time modern transportation and communication have made it much less
Respondent was not served with process in California but by registered mail at its burdensome for a party sued to defend himself in a State where he engages in
principal place of business in Texas. The California court based its jurisdiction on a economic activity.
state statute which subjects foreign corporations to suit in California on insurance
contracts with residents of that State even though such corporations cannot be Turning to this case we think it apparent that the Due Process Clause did not
served with process within its borders. 1 preclude the California court from entering a judgment binding on respondent. It is
sufficient for purposes of due process that the suit was based on a contract which
Unable to collect the judgment in California petitioner went to Texas where she filed had substantial connection with that State. Cf. Hess v. Pawloski, 274 U.S. 352 ;
suit on the judgment in a Texas court. But the Texas courts refused to enforce her Henry L. Doherty & Co. v. Goodman, 294 U.S. 623 ; Pennoyer v. Neff, 95 U.S. 714,
judgment holding it was void under the Fourteenth Amendment because service of 735 . 2 The contract was delivered in California, the premiums were mailed from
process outside California could not give the courts of that State jurisdiction over there and the insured was a resident of that State when he died. It cannot be denied
respondent. 288 S. W. 2d 579. Since the case raised important questions, not only to that California has a manifest interest in providing effective means of redress for its
California but to other States which have similar laws, we granted certiorari. 352 U.S. residents when their insurers refuse to pay claims. These residents would be at a
924 . It is not controverted that if the California court properly exercised jurisdiction severe disadvantage if they were forced to follow the insurance company to a
over respondent the Texas courts erred in refusing to give its judgment full faith and
CONFLICT OF LAWS 3D 1/08-09 Page 58 of 97 Atty. Jose A. Bernas
distant State in order to hold it legally accountable. When claims were small or
moderate individual claimants frequently could not afford the cost of bringing an
action in a foreign forum - thus in effect making the company judgment proof. Often
the crucial witnesses - as here on the company's defense of suicide - will be found in
the insured's locality. [355 U.S. 220, 224] Of course there may be inconvenience to
the insurer if it is held amenable to suit in California where it had this contract but
certainly nothing which amounts to a denial of due process. Cf. Travelers Health
Assn. v. Virginia ex rel. State Corporation Comm'n, 339 U.S. 643 . There is no
contention that respondent did not have adequate notice of the suit or sufficient time
to prepare its defenses and appear.
The California statute became law in 1949, after respondent had entered into the
agreement with Franklin to assume Empire Mutual's obligation to him. Respondent
contends that application of the statute to this existing contract improperly impairs the
obligation of the contract. We believe that contention is devoid of merit. The statute
was remedial, in the purest sense of that term, and neither enlarged nor impaired
respondent's substantive rights or obligations under the contract. It did nothing more
than to provide petitioner with a California forum to enforce whatever substantive
rights she might have against respondent. At the same time respondent was given a
reasonable time to appear and defend on the merits after being notified of the suit.
Under such circumstances it had no vested right not to be sued in California. Cf.
Bernheimer v. Converse, 206 U.S. 516 ; National Surety Co. v. Architectural
Decorating Co., 226 U.S. 276 ; Funkhouser v. J. B. Preston Co., 290 U.S. 163 .
The judgment is reversed and the cause is remanded to the Court of Civil Appeals of
the State of Texas, First Supreme Judicial District, for further proceedings not
inconsistent with this opinion.
It is so ordered.
THE CHIEF JUSTICE took no part in the consideration or decision of this case.
(a) A state court may exercise personal jurisdiction over a nonresident defendant only
so long as there exist "minimum contacts" between the defendant and the forum
State. International Shoe Co. v. Washington, 326 U. S. 310. The defendant's contacts
with the forum State must be such that maintenance of the suit does not offend I
traditional notions of fair play and substantial justice, id. at 326 U. S. 316, and the
relationship between the defendant and the forum must be such that it is
"reasonable . . . to require the corporation to defend the particular suit which is Respondents Harry and Kay Robinson purchased a new Audi automobile from
brought there," id. at 326 U. S. 317. The Due Process Clause petitioner Seaway Volkswagen, Inc. (Seaway), in Massena, N.Y. in 1976. The
following year, the Robinson family, who resided in New York, left that State for a
"does not contemplate that a state may make binding a judgment in personam new home in Arizona. As they passed through the State of Oklahoma, another car
against an individual or corporate defendant with which the state has no contacts, struck their Audi in the rear, causing a fire which severely burned Kay Robinson and
ties, or relations." her two children. [Footnote 1]
Id. at 326 U. S. 319. Pp. 444 U. S. 291-294. The Robinsons [Footnote 2] subsequently brought a products liability action in the
(b) Here, there is a total absence in the record of those affiliating circumstances that District Court for Creek County, Okla., claiming that their injuries resulted from
are a necessary predicate to any exercise of state court jurisdiction. Petitioners carry defective design and placement of the Audi's gas tank and fuel system. They joined
on no activity whatsoever in Oklahoma; they close no sales and perform no services as defendants the automobile's manufacturer, Audi NSU Auto Union
there, avail Aktiengesellschaft (Audi); its importer, Volkswagen of America, Inc. (Volkswagen);
its regional distributor, petitioner World-Wide Volkswagen Corp. (World-Wide); and
Page 444 U. S. 287 its retail dealer, petitioner Seaway. Seaway and World-Wide entered special
themselves of none of the benefits of Oklahoma law, and solicit no business there appearances, [Footnote 3] claiming that Oklahoma's exercise of jurisdiction over
either through salespersons or through advertising reasonably calculated to reach them would offend the limitations on the State's jurisdiction imposed by the Due
that State. Nor does the record show that they regularly sell cars to Oklahoma Process Clause of the Fourteenth Amendment. [Footnote 4]
residents, or that they indirectly, through others, serve or seek to serve the Oklahoma The facts presented to the District Court showed that World-Wide is incorporated
market. Although it is foreseeable that automobiles sold by petitioners would travel to and has its business office in New
Oklahoma and that the automobile here might cause injury in Oklahoma,
"foreseeability" alone is not a sufficient benchmark for personal jurisdiction under the Page 444 U. S. 289
Due Process Clause. The foreseeability that is critical to due process analysis is not York. It distributes vehicles, parts, and accessories, under contract with
the mere likelihood that a product will find its way into the forum State, but rather is Volkswagen, to retail dealers in New York, New Jersey, and Connecticut. Seaway,
that the defendant's conduct and connection with the forum are such that he should one of these retail dealers, is incorporated and has its place of business in New
reasonably anticipate being haled into court there. Nor can jurisdiction be supported York. Insofar as the record reveals, Seaway and World-Wide are fully independent
CONFLICT OF LAWS 3D 1/08-09 Page 60 of 97 Atty. Jose A. Bernas
corporations whose relations with each other and with Volkswagen and Audi are
contractual only. Respondents adduced no evidence that either World-Wide or
Seaway does any business in Oklahoma, ships or sells any products to or in that The Due Process Clause of the Fourteenth Amendment limits the power of a state
State, has an agent to receive process there, or purchases advertisements in any court to render a valid personal judgment against a nonresident defendant. Kulko v.
media calculated to reach Oklahoma. In fact, as respondents' counsel conceded at California Superior Court, 436 U. S. 84, 436 U. S. 91 (1978). A judgment rendered
oral argument, Tr. of Oral Arg 32, there was no showing that any automobile sold by in violation of due process is void in the rendering State and is not entitled to full
World-Wide or Seaway has ever entered Oklahoma, with the single exception of the faith and credit elsewhere. Pennoyer v. Neff, 95 U. S. 714, 95 U. S. 732-733 (1878).
vehicle involved in the present case. Due process requires that the defendant be given adequate notice of the suit,
Mullane v. Central Hanover Trust Co., 339 U. S. 306, 339 U. S. 313-314 (1950), and
Despite the apparent paucity of contacts between petitioners and Oklahoma, the be subject to the personal jurisdiction of the court, International Shoe Co. v.
District Court rejected their constitutional claim and reaffirmed that ruling in denying Washington, 326 U. S. 310 (1945). In the present case, it is not contended that
petitioners' motion for reconsideration. [Footnote 5] Petitioners then sought a writ of notice was inadequate; the only question is whether these particular petitioners
prohibition in the Supreme Court of Oklahoma to restrain the District Judge, were subject to the jurisdiction of the Oklahoma courts.
respondent Charles S. Woodson, from exercising in personam jurisdiction over them.
They renewed their contention that, because they had no "minimal contacts," App. 32, As has long been settled, and as we reaffirm today, a state court may exercise
with the State of Oklahoma, the actions of the District Judge were in violation of their personal jurisdiction over a nonresident defendant only so long as there exist
rights under the Due Process Clause. "minimum contacts" between the defendant and the forum State. International Shoe
Co. v. Washington, supra at 326 U. S. 316. The concept of minimum contacts, in
The Supreme Court of Oklahoma denied the writ, 585 P.2d 351 (1978), [Footnote 6] turn, can be seen to perform two related, but
holding that personal jurisdiction over petitioners was authorized by Oklahoma's
"long-arm" statute, Page 444 U. S. 292
Page 444 U. S. 290 distinguishable, functions. It protects the defendant against the burdens of litigating
in a distant or inconvenient forum. And it acts to ensure that the States, through
Okla.Stat., Tit. 12, § 1701.03(a)(4) (1971). [Footnote 7] Although the court noted that their courts, do not reach out beyond the limits imposed on them by their status as
the proper approach was to test jurisdiction against both statutory and constitutional coequal sovereigns in a federal system.
standards, its analysis did not distinguish these questions, probably because §
1701.03(a)(4) has been interpreted as conferring jurisdiction to the limits permitted by The protection against inconvenient litigation is typically described in terms of
the United States Constitution. [Footnote 8] The court's rationale was contained in the "reasonableness" or "fairness." We have said that the defendant's contacts with the
following paragraph, 585 P.2d at 354: forum State must be such that maintenance of the suit "does not offend traditional
notions of fair play and substantial justice.'" International Shoe Co. v. Washington,
"In the case before us, the product being sold and distributed by the petitioners is, by supra at 326 U. S. 316, quoting Milliken v. Meyer, 311 U. S. 457, 311 U. S. 463
its very design and purpose, so mobile that petitioners can foresee its possible use in (1940). The relationship between the defendant and the forum must be such that it
Oklahoma. This is especially true of the distributor, who has the exclusive right to is "reasonable . . . to require the corporation to defend the particular suit which is
distribute such automobile in New York, New Jersey and Connecticut. The evidence brought there." 326 U.S. at 326 U. S. 317. Implicit in this emphasis on
presented below demonstrated that goods sold and distributed by the petitioners were reasonableness is the understanding that the burden on the defendant, while
used in the State of Oklahoma, and, under the facts, we believe it reasonable to infer, always a primary concern, will in an appropriate case be considered in light of other
given the retail value of the automobile, that the petitioners derive substantial income relevant factors, including the forum State's interest in adjudicating the dispute, see
from automobiles which from time to time are used in the State of Oklahoma. This McGee v. International Life Ins. Co., 355 U. S. 220, 355 U. S. 223 (1957); the
being the case, we hold that, under the facts presented, the trial court was justified in plaintiff's interest in obtaining convenient and effective relief, see Kulko v. California
concluding Superior Court, supra at 436 U. S. 92, at least when that interest is not adequately
protected by the plaintiff's power to choose the forum, cf. Shaffer v. Heitner, 433 U.
Page 444 U. S. 291 S. 186, 433 U. S. 211, n. 37 (1977); the interstate judicial system's interest in
that the petitioners derive substantial revenue from goods used or consumed in this obtaining the most efficient resolution of controversies; and the shared interest of
State." the several States in furthering fundamental substantive social policies, see Kulko v.
California Superior Court, supra at 436 U. S. 93, 436 U. S. 98.
We granted certiorari, 440 U.S. 907 (1979), to consider an important constitutional
question with respect to state court jurisdiction and to resolve a conflict between the The limits imposed on state jurisdiction by the Due Process Clause, in its role as a
Supreme Court of Oklahoma and the highest courts of at least four other States. guarantor against inconvenient litigation, have been substantially relaxed over the
[Footnote 9] We reverse. years. As we noted in McGee v. International Life Ins. Co., supra at 355 U. S. 222-
223,
Page 444 U. S. 293
II
CONFLICT OF LAWS 3D 1/08-09 Page 61 of 97 Atty. Jose A. Bernas
this trend is largely attributable to a fundamental transformation in the American against an individual or corporate defendant with which the state has no contacts,
economy: ties, or relations."
"Today many commercial transactions touch two or more States, and may involve International Shoe Co. v. Washington, supra at 326 U. S. 319. Even if the defendant
parties separated by the full continent. With this increasing nationalization of would suffer minimal or no inconvenience from being forced to litigate before the
commerce has come a great increase in the amount of business conducted by mail tribunals of another State; even if the forum State has a strong interest in applying
across state lines. At the same time, modern transportation and communication have its law to the controversy; even if the forum State is the most convenient location for
made it much less burdensome for a party sued to defend himself in a State where he litigation, the Due Process Clause, acting as an instrument of interstate federalism,
engages in economic activity." may sometimes act to divest the State of its power to render a valid judgment.
Hanson v. Denckla, supra at 357 U. S. 251, 357 U. S. 254.
The historical developments noted in McGee, of course, have only accelerated in the
generation since that case was decided. Page 444 U. S. 295
Nevertheless, we have never accepted the proposition that state lines are irrelevant
for jurisdictional purposes, nor could we and remain faithful to the principles of
interstate federalism embodied in the Constitution. The economic interdependence of III
the States was foreseen and desired by the Framers. In the Commerce Clause, they
provided that the Nation was to be a common market, a "free trade unit" in which the
States are debarred from acting as separable economic entities. H. P. Hood Sons, Applying these principles to the case at hand, [Footnote 10] we find in the record
Inc. v. Du Mond, 336 U. S. 525, 336 U. S. 538 (1949). But the Framers also intended before us a total absence of those affiliating circumstances that are a necessary
that the States retain many essential attributes of sovereignty, including, in particular, predicate to any exercise of state court jurisdiction. Petitioners carry on no activity
the sovereign power to try causes in their courts. The sovereignty of each State, in whatsoever in Oklahoma. They close no sales and perform no services there. They
turn, implied a limitation on the sovereignty of all of its sister States -- a limitation avail themselves of none of the privileges and benefits of Oklahoma law. They
express or implicit in both the original scheme of the Constitution and the Fourteenth solicit no business there either through salespersons or through advertising
Amendment. reasonably calculated to reach the State. Nor does the record show that they
regularly sell cars at wholesale or retail to Oklahoma customers or residents, or that
Hence, even while abandoning the shibboleth that "[t]he authority of every tribunal is they indirectly, through others, serve or seek to serve the Oklahoma market. In
necessarily restricted by the territorial limits of the State in which it is established," short, respondents seek to base jurisdiction on one, isolated occurrence and
Pennoyer v. Neff, supra, at 95 U. S. 720, we emphasized that the reasonableness of whatever inferences can be drawn therefrom: the fortuitous circumstance that a
asserting jurisdiction over the defendant must be assessed "in the context of our single Audi automobile, sold in New York to New York residents, happened to suffer
federal system of government," an accident while passing through Oklahoma.
Page 444 U. S. 294 It is argued, however, that, because an automobile is mobile by its very design and
International Shoe Co. v. Washington, 326 U.S. at 326 U. S. 317, and stressed that purpose, it was "foreseeable" that the Robinsons' Audi would cause injury in
the Due Process Clause ensures not only fairness, but also the "orderly Oklahoma. Yet "foreseeability" alone has never been a sufficient benchmark for
administration of the laws," id. at 326 U. S. 319. As we noted in Hanson v. Denckla, personal jurisdiction under the Due Process Clause. In Hanson v. Denckla, supra, it
357 U. S. 235, 357 U. S. 250-251 (1958): was no doubt foreseeable that the settlor of a Delaware trust would subsequently
move to Florida and seek to exercise a power of appointment there; yet we held that
"As technological progress has increased the flow of commerce between the States, Florida courts could not constitutionally
the need for jurisdiction over nonresidents has undergone a similar increase. At the
same time, progress in communications and transportation has made the defense of Page 444 U. S. 296
a suit in a foreign tribunal less burdensome. In response to these changes, the exercise jurisdiction over a Delaware trustee that had no other contacts with the
requirements for personal jurisdiction over nonresidents have evolved from the rigid forum State. In Kulko v. California Superior Court, 436 U. S. 84 (1978), it was surely
rule of Pennoyer v. Neff, 95 U. S. 714, to the flexible standard of International Shoe "foreseeable" that a divorced wife would move to California from New York, the
Co. v. Washington, 326 U. S. 310. But it is a mistake to assume that this trend domicile of the marriage, and that a minor daughter would live with the mother. Yet
heralds the eventual demise of all restrictions on the personal jurisdiction of state we held that California could not exercise jurisdiction in a child support action over
courts. [Citation omitted.] Those restrictions are more than a guarantee of immunity the former husband, who had remained in New York.
from inconvenient or distant litigation. They are a consequence of territorial limitations
on the power of the respective States." If foreseeability were the criterion, a local California tire retailer could be forced to
defend in Pennsylvania when a blowout occurs there, see Erlanger Mills, Inc. v.
Thus, the Due Process Clause Cohoes Fibre Mills, Inc., 239 F.2d 502, 507 (CA4 1956); a Wisconsin seller of a
"does not contemplate that a state may make binding a judgment in personam defective automobile jack could be haled before a distant court for damage caused
in New Jersey, Reilly v. Phil Tolkan Pontiac, Inc., 372 F.Supp. 1205 (NJ 1974); or a
CONFLICT OF LAWS 3D 1/08-09 Page 62 of 97 Atty. Jose A. Bernas
Florida soft-drink concessionaire could be summoned to Alaska to account for injuries State." Hanson v. Denckla, supra, at 357 U. S. 253.
happening there, see Uppgren v. Executive Aviation Services, Inc., 304 F.Supp. 165,
170-171 (Minn.1969). Every seller of chattels would, in effect, appoint the chattel his In a variant on the previous argument, it is contended that jurisdiction can be
agent for service of process. His amenability to suit would travel with the chattel. We supported by the fact that petitioners earn substantial revenue from goods used in
recently abandoned the outworn rule of Harris v. Balk, 198 U. S. 215 (1905), that the Oklahoma. The Oklahoma Supreme Court so found, 585 P.2d at 354-355, drawing
interest of a creditor in a debt could be extinguished or otherwise affected by any the inference that, because one automobile sold by petitioners had been used in
State having transitory jurisdiction over the debtor. Shaffer v. Heitner, 433 U. S. 186 Oklahoma, others might have been used there also. While this inference seems less
(1977). Having interred the mechanical rule that a creditor's amenability to a quasi in than compelling on the facts of the instant case, we need not question the court's
rem action travels with his debtor, we are unwilling to endorse an analogous principle factual findings in order to reject its reasoning.
in the present case. [Footnote 11] This argument seems to make the point that the purchase of automobiles in New
Page 444 U. S. 297 York, from which the petitioners earn substantial revenue, would not occur but for
the fact that the automobiles are capable of use in distant States like Oklahoma.
Respondents observe that the very purpose of an automobile is to travel, and that
travel of automobiles sold by petitioners is facilitated by an extensive chain of
This is not to say, of course, that foreseeability is wholly irrelevant. But the Volkswagen service centers throughout the country, including some in Oklahoma.
foreseeability that is critical to due process analysis is not the mere likelihood that a [Footnote 12]
product will find its way into the forum State. Rather, it is that the defendant's conduct
and connection with the forum State are such that he should reasonably anticipate Page 444 U. S. 299
being haled into court there. See Kulko v. California Superior Court, supra at 436 U.
S. 97-98; Shaffer v. Heitner, 433 U.S. at 433 U. S. 216; and see id. at 433 U. S. 217- However, financial benefits accruing to the defendant from a collateral relation to the
219 (STEVENS, J., concurring in judgment). The Due Process Clause, by ensuring forum State will not support jurisdiction if they do not stem from a constitutionally
the "orderly administration of the laws," International Shoe Co. v. Washington, 326 cognizable contact with that State. See Kulko v. California Superior Court, 436 U.S.
U.S. at 326 U. S. 319, gives a degree of predictability to the legal system that allows at 436 U. S. 94-95. In our view, whatever marginal revenues petitioners may receive
potential defendants to structure their primary conduct with some minimum assurance by virtue of the fact that their products are capable of use in Oklahoma is far too
as to where that conduct will and will not render them liable to suit. attenuated a contact to justify that State's exercise of in personam jurisdiction over
them.
When a corporation "purposefully avails itself of the privilege of conducting activities
within the forum State," Hanson v. Denckla, 357 U.S. at 357 U. S. 253, it has clear Because we find that petitioners have no "contacts, ties, or relations" with the State
notice that it is subject to suit there, and can act to alleviate the risk of burdensome of Oklahoma, International Shoe Co. v. Washington, supra, at 326 U. S. 319, the
litigation by procuring insurance, passing the expected costs on to customers, or, if judgment of the Supreme Court of Oklahoma is
the risks are too great, severing its connection with the State. Hence if the sale of a Reversed.
product of a manufacturer or distributor such as Audi or Volkswagen is not simply an
isolated occurrence, but arises from the efforts of the manufacturer or distributor to MR. JUSTICE BRENNAN, dissenting. *
serve, directly or indirectly, the market for its product in other States, it is not The Court holds that the Due Process Clause of the Fourteenth Amendment bars
unreasonable to subject it to suit in one of those States if its allegedly defective the States from asserting jurisdiction over the defendants in these two cases. In
merchandise has there been the source of injury to its owner or to others. The forum each case, the Court so decides because it fails to find the "minimum contacts" that
State does not have been required since International Shoe Co. v. Washington, 326 U. S. 310, 326
Page 444 U. S. 298 U. S. 316 (1945). Because I believe that the Court reads International Shoe and its
progeny too narrowly, and because I believe that the standards enunciated by those
exceed its powers under the Due Process Clause if it asserts personal jurisdiction cases may already be obsolete as constitutional boundaries, I dissent.
over a corporation that delivers its products into the stream of commerce with the
expectation that they will be purchased by consumers in the forum State. Cf. Gray v.
American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961). I
But there is no such or similar basis for Oklahoma jurisdiction over World-Wide or
Seaway in this case. Seaway's sales are made in Massena, N. Y. World-Wide's
market, although substantially larger, is limited to dealers in New York, New Jersey, The Court's opinions focus tightly on the existence of contacts between the forum
and Connecticut. There is no evidence of record that any automobiles distributed by and the defendant. In so doing, they accord too little weight to the strength of the
World-Wide are sold to retail customers outside this tristate area. It is foreseeable that forum State's interest in the case, and fail to explore whether there
the purchasers of automobiles sold by World-Wide and Seaway may take them to
Page 444 U. S. 300
Oklahoma. But the mere "unilateral activity of those who claim some relationship with
a nonresident defendant cannot satisfy the requirement of contact with the forum would be any actual inconvenience to the defendant. The essential inquiry in
CONFLICT OF LAWS 3D 1/08-09 Page 63 of 97 Atty. Jose A. Bernas
locating the constitutional limits on state court jurisdiction over absent defendants is jurisdiction over a particular cause of action. We need only determine whether the
whether the particular exercise of jurisdiction offends "traditional notions of fair play forum States in these cases satisfy the constitutional minimum. [Footnote 2/2]
and substantial justice.'" International Shoe, supra at 326 U. S. 316, quoting Milliken
v. Meyer, 311 U. S. 457, 311 U. S. 463 (1940). The clear focus in International Shoe Page 444 U. S. 302
was on fairness and reasonableness. Kulko v. California Superior Court, 436 U. S.
84, 436 U. S. 92 (1978). The Court specifically declined to establish a mechanical
test based on the quantum of contacts between a State and the defendant:
"Whether due process is satisfied must depend, rather, upon the quality and nature of II
the activity in relation to the fair and orderly administration of the laws which it was
the purpose of the due process clause to insure. That clause does not contemplate
that a state may make binding a judgment in personam against an individual or In each of these cases, I would find that the forum State has an interest in permitting
corporate defendant with which the state has no contacts, ties, or relations." the litigation to go forward, the litigation is connected to the forum, the defendant is
linked to the forum, and the burden of defending is not unreasonable. Accordingly, I
326 U.S. at 326 U. S. 319 (emphasis added). The existence of contacts, so long as would hold that it is neither unfair nor unreasonable to require these defendants to
there were some, was merely one way of giving content to the determination of defend in the forum State.
fairness and reasonableness.
A
Surely International Shoe contemplated that the significance of the contacts
necessary to support jurisdiction would diminish if some other consideration helped In No. 78-952, a number of considerations suggest that Minnesota is an interested
establish that jurisdiction would be fair and reasonable. The interests of the State and and convenient forum. The action was filed by a bona fide resident of the forum.
other parties in proceeding with the case in a particular forum are such [Footnote 2/3] Consequently, Minnesota's interests are similar to, even if lesser
considerations. McGee v. International Life Ins. Co., 355 U. S. 220, 355 U. S. 223 than, the interests of California in McGee, supra, "in providing a forum for its
(1957), for instance, accorded great importance to a State's "manifest interest in residents and in regulating the activities of insurance companies" doing business in
providing effective means of redress" for its citizens. See also Kulko v. California the State. [Footnote 2/4] Post at 444 U. S. 332. Moreover, Minnesota has
Superior Court, supra at 436 U. S. 92; Shaffer v. Heitner, 433 U. S. 186, 433 U. S. "attempted to assert [its] particularized interest in trying such cases in its courts
208 (1977); Mullane v. Central Hanover Trust Co., 339 U. S. 306, 339 U. S. 313 by . . . enacting a special jurisdictional statute." Kulko, supra at 436 U. S. 98;
(1950). McGee, supra at 355 U. S. 221, 355 U. S. 224. As in McGee, a resident forced to
travel to a distant State to prosecute an action
Another consideration is the actual burden a defendant
Page 444 U. S. 303
Page 444 U. S. 301
against someone who has injured him could, for lack of funds, be entirely unable to
must bear in defending the suit in the forum. McGee, supra. Because lesser burdens bring the cause of action. The plaintiff's residence in the State makes the State one
reduce the unfairness to the defendant, jurisdiction may be justified despite less of a very few convenient fora for a personal injury case (the others usually being the
significant contacts. The burden, of course, must be of constitutional dimension. Due defendant's home State and the State where the accident occurred). [Footnote 2/5]
process limits on jurisdiction do not protect a defendant from all inconvenience of
travel, McGee, supra at 355 U. S. 224, and it would not be sensible to make the In addition, the burden on the defendant is slight. As Judge Friendly has recognized,
constitutional rule turn solely on the number of miles the defendant must travel to the Shaffer emphasizes the importance of identifying the real impact of the lawsuit.
courtroom. [Footnote 2/1] Instead, the constitutionally significant "burden" to be O'Connor v. Lee-Hy Paving Corp., 579 F.2d 194, 00 (CA2 1978) (upholding the
analyzed relates to the mobility of the defendant's defense. For instance, if having to constitutionality of jurisdiction in a very similar case under New York's law after
travel to a foreign forum would hamper the defense because witnesses or evidence or Shaffer). Here the real impact is on the defendant's insurer, which is concededly
the defendant himself were immobile, or if there were a disproportionately large amenable to suit in the forum State. The defendant is carefully protected from
number of witnesses or amount of evidence that would have to be transported at the financial liability because the action limits the prayer for damages to the insurance
defendant's expense, or if being away from home for the duration of the trial would policy's liability limit. [Footnote 2/6] The insurer will handle the case for the
work some special hardship on the defendant, then the Constitution would require defendant. The defendant is only a nominal party who need be no more active in the
special consideration for the defendant's interests. case than the cooperation clause of his policy requires. Because of the ease of
airline transportation, he need not lose significantly more time than if the case were
That considerations other than contacts between the forum and the defendant are at home. Consequently, if the suit went forward
relevant necessarily means that the Constitution does not require that trial be held in
the State which has the "best contacts" with the defendant. See Shaffer v. Heitner, Page 444 U. S. 304
supra at 433 U. S. 228 (BRENNAN, J., dissenting). The defendant has no
in Minnesota, the defendant would bear almost no burden or expense beyond what
constitutional entitlement to the best forum or, for that matter, to any particular forum.
he would face if the suit were in his home State. The real impact on the named
Under even the most restrictive view of International Shoe, several States could have
CONFLICT OF LAWS 3D 1/08-09 Page 64 of 97 Atty. Jose A. Bernas
defendant is the same as it is in a direct action against the insurer, which would be in automobiles foresees that they will move. Ante at 444 U. S. 295. The dealer
constitutionally permissible. Watson v. Employers Liability Assurance Corp., 348 U. S. actually intends that the purchasers will use the automobiles to travel to distant
66 (1954); Minichiello v. Rosenberg, 410 F.2d 106, 109-110 (CA2 1968). The only States where the dealer does not directly "do business." The sale of an automobile
distinction is the formal, "analytica[l] prerequisite," post at 444 U. S. 331, of making does purposefully inject the vehicle into the stream of interstate commerce so that it
the insured a named party. Surely the mere addition of appellant's name to the can travel to distant States. See Kulko, 436 U.S. at 436 U. S. 94; Hanson v.
complaint does not suffice to create a due process violation. [Footnote 2/7] Denckla, 357 U. S. 235, 357 U. S. 253 (1958).
Finally, even were the relevant inquiry whether there are sufficient contacts between This case is similar to Ohio v. Wyandotte Chemicals Corp., 401 U. S. 493 (1971).
the forum and the named defendant, I would find that such contacts exist. The There we indicated, in the course of denying leave to file an original jurisdiction
insurer's presence in Minnesota is an advantage to the defendant that may well have case, that corporations having no direct contact with Ohio could constitutionally be
been a consideration in his selecting the policy he did. An insurer with offices in many brought to trial in Ohio because they dumped pollutants into streams outside Ohio's
States makes it easier for the insured to make claims or conduct other business that limits which ultimately, through the action of the water, reached Lake Erie and
may become necessary while traveling. It is simply not true that "State Farm's affected Ohio. No corporate acts, only their consequences, occurred in Ohio. The
decision to do business in Minnesota was completely adventitious as far as Rush was stream of commerce is just as natural a force as a stream of water, and it was
concerned." Post at 444 U. S. 328-329. By buying a State Farm policy, the defendant equally predictable that the cars petitioners released would reach distant states.
availed himself of the benefits he might derive from having an insurance agent in [Footnote 2/10]
Minnesota who could, among other things, facilitate a suit for appellant against a
Minnesota resident. It seems unreasonable to read the Constitution as permitting one The Court accepts that a State may exercise jurisdiction over a distributor which
to take advantage of his nationwide insurance network but not to be burdened by it. "serves" that State "indirectly" by "deliver[ing] its products into the stream of
commerce with the expectation that they will be purchased by consumers in the
In sum, I would hold that appellant is not deprived of due process by being required to forum State." Ante at 444 U. S. 297-298. It is difficult to see why the Constitution
submit to trial in Minnesota, first because Minnesota has a sufficient interest in and should distinguish between a case involving
connection
Page 444 U. S. 307
Page 444 U. S. 305
goods which reach a distant State through a chain of distribution and a case
to this litigation and to the real and nominal defendants, and second because the involving goods which reach the same State because a consumer, using them as
burden on the nominal defendant is sufficiently slight. the dealer knew the customer would, took them there. [Footnote 2/11] In each case,
the seller purposefully injects the goods into the stream of commerce, and those
B goods predictably are used in the forum State. [Footnote 2/12]
In No. 78-1078, the interest of the forum State and its connection to the litigation is Furthermore, an automobile seller derives substantial benefits from States other
strong. The automobile accident underlying the litigation occurred in Oklahoma. The than its own. A large part of the value of automobiles is the extensive, nationwide
plaintiffs were hospitalized in Oklahoma when they brought suit. Essential witnesses network of highways. Significant portions of that network have been constructed by,
and evidence were in Oklahoma. See Shaffer v. Heitner, 433 U.S. at 433 U. S. 208. and are maintained by, the individual States, including Oklahoma. The States,
The State has a legitimate interest in enforcing its laws designed to keep its highway through their highway programs, contribute in a very direct and important way to the
system safe, and the trial can proceed at least as efficiently in Oklahoma as value of petitioners' businesses. Additionally, a network of other related dealerships
anywhere else. with their service departments operates throughout the country under the protection
The petitioners are not unconnected with the forum. Although both sell automobiles of the laws of the various States, including Oklahoma, and enhances the value of
within limited sales territories, each sold the automobile which, in fact, was driven to petitioners' businesses by facilitating their customers' traveling.
Oklahoma, where it was involved in an accident. [Footnote 2/8] It may be true, as the Thus, the Court errs in its conclusion, ante at 444 U. S. 299 (emphasis added), that
Court suggests, that each sincerely intended to limit its commercial impact to the "petitioners have no contacts, ties, or relations'" with Oklahoma. There obviously
limited territory, and that each intended to accept the benefits and protection of the are contacts, and, given Oklahoma's connection to the litigation, the contacts are
laws only of those States within the territory. But obviously these were unrealistic sufficiently significant to make it fair and reasonable for the petitioners to submit to
hopes that cannot be treated as an automatic constitutional shield. [Footnote 2/9] Oklahoma's jurisdiction.
Page 444 U. S. 306
III
An automobile simply is not a stationary item or one designed to be used in one
place. An automobile is intended to be moved around. Someone in the business of
selling large numbers of automobiles can hardly plead ignorance of their mobility, or It may be that affirmance of the judgments in these cases would approach the outer
pretend that the automobiles stay put after they are sold. It is not merely that a dealer limits of International Shoe's jurisdictional
CONFLICT OF LAWS 3D 1/08-09 Page 65 of 97 Atty. Jose A. Bernas
Page 444 U. S. 308 contacts must exist "among the parties, the contested transaction, and the forum
State." [Footnote 2/15] The contacts between any two of these should not be
principle. But that principle, with its almost exclusive focus on the rights of determinative.
defendants, may be outdated. As MR. JUSTICE MARSHALL wrote in Shaffer v.
Heitner, 433 U.S. at 433 U. S. 212: "[W]hen a suitor seeks to lodge a suit in a State with a substantial interest in seeing
its own law applied to the transaction in question, we could wisely act to minimize
"'[T]raditional notions of fair play and substantial justice' can be as readily offended by conflicts, confusion, and uncertainty by adopting a liberal view of jurisdiction, unless
the perpetuation of ancient forms that are no longer justified as by the adoption of considerations of fairness or efficiency strongly point in the opposite direction.
new procedures. . . ." [Footnote 2/16]"
International Shoe inherited its defendant focus from Pennoyer v. Neff, 95 U. S. 714 433 U.S. at 433 U. S. 225-226. Mr. Justice Black, dissenting in Hanson v. Denckla,
(1878), and represented the last major step this Court has taken in the long process 357 U.S. at 357 U. S. 258-250, expressed similar concerns by suggesting that a
of liberalizing the doctrine of personal jurisdiction. Though its flexible approach State should have jurisdiction over a case growing out of a transaction significantly
represented a major advance, the structure of our society has changed in many related to that State
significant ways since International Shoe was decided in 1945. Mr. Justice Black,
writing for the Court in McGee v. International Life Ins. Co., 355 U. S. 220, 355 U. S. "unless litigation there would impose such a heavy and disproportionate burden on
222 (1957), recognized that "a trend is clearly discernible toward expanding the a nonresident defendant that it would offend what this Court has referred to as
permissible scope of state jurisdiction over foreign corporations and other 'traditional notions of fair play and substantial justice.' [Footnote 2/17]"
nonresidents." He explained the trend as follows:
Assuming
"In part, this is attributable to the fundamental transformation of our national economy
over the years. Today, many commercial transactions touch two or more States, and Page 444 U. S. 311
may involve parties separated by the full continent. With this increasing that a State gives a nonresident defendant adequate notice and opportunity to
nationalization of commerce has come a great increase in the amount of business defend, I do not think the Due Process Clause is offended merely because the
conducted by mail across state lines. At the same time, modern transportation and defendant has to board a plane to get to the site of the trial.
communication have made it much less burdensome for a party sued to defend
himself in a State where he engages in economic activity." The Court's opinion in No. 78-1078 suggests that the defendant ought to be subject
to a State's jurisdiction only if he has contacts with the State "such that he should
Id. at 355 U. S. 222-223. As the Court acknowledges, ante at 444 U. S. 292-293, both reasonably anticipate being haled into court there." [Footnote 2/18] Ante at 444 U.
the nationalization of commerce and the ease of transportation and communication S. 297. There is nothing unreasonable or unfair, however, about recognizing
have accelerated in the generation since 1957. [Footnote 2/13] commercial reality. Given the tremendous mobility of goods and people, and the
Page 444 U. S. 309 inability of businessmen to control where goods are taken by customers (or
retailers), I do not think that the defendant should be in complete control of the
The model of society on which the International Shoe Court based its opinion is no geographical stretch of his amenability to suit. Jurisdiction is no longer premised on
longer accurate. Business people, no matter how local their businesses, cannot the notion that nonresident defendants have somehow impliedly consented to suit.
assume that goods remain in the business' locality. Customers and goods can be People should understand that they are held responsible for the consequences of
anywhere else in the country, usually in a matter of hours and always in a matter of a their actions, and that, in our society, most actions have consequences affecting
very few days. many States. When an action in fact causes injury in another State, the actor should
be prepared to answer for it there unless defending in that State would be unfair for
In answering the question whether or not it is fair and reasonable to allow a particular some reason other than that a state boundary must be crossed. [Footnote 2/19]
forum to hold a trial binding on a particular defendant, the interests of the forum State
and other parties loom large in today's world, and surely are entitled to as much In effect, the Court is allowing defendants to assert the sovereign
weight as are the interests of the defendant. The "orderly administration of the laws"
provides a firm basis for according some protection to the interests of plaintiffs and Page 444 U. S. 312
States as well as of defendants. [Footnote 2/14] Certainly, I cannot see how a rights of their home States. The expressed fear is that, otherwise, all limits on
defendant's right to due process is violated if the defendant suffers no inconvenience. personal jurisdiction would disappear. But the argument's premise is wrong. I would
See ante at 444 U. S. 294. not abolish limits on jurisdiction or strip state boundaries of all significance, see
The conclusion I draw is that constitutional concepts of fairness no longer require the Hanson, supra at 357 U. S. 260 (Black, J., dissenting); I would still require the
extreme concern for defendants that was once necessary. Rather, as I wrote in plaintiff to demonstrate sufficient contacts among the parties, the forum, and the
dissent from Shaffer v. Heitner, supra, at 433 U. S. 220 (emphasis added), minimum litigation to make the forum a reasonable State in which to hold the trial. [Footnote
2/20]
Page 444 U. S. 310
I would also, however, strip the defendant of an unjustified veto power over certain
International Shoe Co. v. Washington, 326 U. S. 310, 326 U. S. 316 (1945), quoting one of only seven regional Audi distributors in the entire country, see Brief for
Milliken v. Meyer, 311 U. S. 457, 311 U. S. 463 (1940). Respondents 2, would scarcely have been surprised to learn that a car sold by then
had been driven in Oklahoma on Interstate 44, a heavily traveled transcontinental
The corollary, that the Due Process Clause forbids the assertion of jurisdiction over a highway. In the case of the distributor, in particular, the probability that some of the
defendant "with which the state has no contacts, ties, or relations," 326 U.S. at 326 U. cars it sells will be driven in every one of the contiguous States must amount to a
S. 319, is equally clear. The concepts of fairness and substantial justice as applied to virtual certainty. This knowledge should alert a reasonable businessman to the
an evaluation of "the quality and nature of the [defendant's] activity," ibid., are not likelihood that a defect in the product might manifest itself in the forum State -- not
readily susceptible of further definition, however, and it is not surprising that the because of some unpredictable, aberrant, unilateral action by a single buyer, but in
constitutional standard is easier to state than to apply. the normal course of the operation of the vehicles for their intended purpose.
This is a difficult case, and reasonable minds may differ as to whether respondents It is misleading for the majority to characterize the argument in favor of jurisdiction
have alleged a sufficient "relationship among the defendant[s], the forum, and the as one of "foreseeability' alone." Ante at 444 U. S. 295. As economic entities,
litigation," Shaffer v. Heitner, 433 U. S. 186, 433 U. S. 204 (1977), to satisfy the petitioners reach out from New York, knowingly causing effects in other States and
requirements of International Shoe. I am concerned, however, that the majority has receiving economic advantage both from the ability to cause such effects
reached its result by taking an unnecessarily narrow view of petitioners' forum-related themselves and from the activities of dealers and distributors in other States. While
conduct. The majority asserts that they did not receive revenue from making direct sales in Oklahoma, they
intentionally became part of an interstate economic network, which included
"respondents seek to base jurisdiction on one, isolated occurrence and whatever
dealerships in Oklahoma, for pecuniary gain. In light of this purposeful conduct, I do
inferences can be drawn therefrom: the fortuitous circumstance that a single Audi
not believe it can be said that petitioners "had no reason to expect to be haled
automobile, sold in New York to New York
before a[n Oklahoma] court." Shaffer v. Heitner, supra at 433 U. S. 216; see ante at
Page 444 U. S. 314 444 U. S. 297, and Kulko v. California Superior Court, 436 U. S. 84, 436 U. S. 97-98
(1978).
residents, happened to suffer an accident while passing through Oklahoma."
CONFLICT OF LAWS 3D 1/08-09 Page 67 of 97 Atty. Jose A. Bernas
The majority apparently acknowledges that, if a product is purchased in the forum such contacts are present, the jurisdictional inquiry requires a balancing of various
State by a consumer, that State may assert jurisdiction over everyone in the chain of interests and policies. See ante at 444 U. S. 292; Rush v. Savchuk, post at 444 U.
distribution. See ante at 444 U. S. 297-298. With this I agree. But I cannot agree that S. 332. I believe such contacts are to be found here, and that, considering all of the
jurisdiction is necessarily lacking if the product enters the State not through the interests and policies at stake, requiring petitioners to defend this action in
channels of distribution but in the course of its intended use by the consumer. We Oklahoma is not beyond the bounds of the Constitution. Accordingly, I dissent.
have recognized
* Similarly, I believe the Court in Hanson v. Denckla, 357 U. S. 235 (1958), was
Page 444 U. S. 316 influenced by the fact that trust administration has traditionally been considered a
peculiarly local activity.
the role played by the automobile in the expansion of our notions of personal
jurisdiction. See Shaffer v. Heitner, supra at 433 U. S. 204; Hess v. Pawloski, 274 U. MR JUSTICE BLACKMUN, dissenting.
S. 352 (1927). Unlike most other chattels, which may find their way into States far
from where they were purchased because their owner takes them there, the intended I confess that I am somewhat puzzled why the plaintiffs in this litigation are so
use of the automobile is precisely as a means of traveling from one place to another. insistent that the regional distributor and the retail dealer, the petitioners here, who
In such a case, it is highly artificial to restrict the concept of the "stream of commerce" handled the ill-fated Audi automobile involved in this litigation, be named
to the chain of distribution from the manufacturer to the ultimate consumer. defendants. It would appear that the manufacturer and the
I sympathize with the majority's concern that persons ought to be able to structure Page 444 U. S. 318
their conduct so as not to be subject to suit in distant forums. But that may not always importer, whose subjectability to Oklahoma jurisdiction is not challenged before this
be possible. Some activities, by their very nature, may foreclose the option of Court, ought not to be judgment-proof. It may, of course, ultimately amount to a
conducting them in such a way as to avoid subjecting oneself to jurisdiction in multiple contest between insurance companies that, once begun, is not easily brought to a
forums. This is by no means to say that all sellers of automobiles should be subject to termination. Having made this much of an observation, I pursue it no further.
suit everywhere; but a distributor of automobiles to a multistate market and a local
automobile dealer who makes himself part of a nationwide network of dealerships can For me, a critical factor in the disposition of the litigation is the nature of the
fairly expect that the cars they sell may cause injury in distant States and that they instrumentality under consideration. It has been said that we are a nation on wheels.
may be called on to defend a resulting lawsuit there. What we are concerned with here is the automobile and its peripatetic character.
One need only examine our national network of interstate highways, or make an
In light of the quality and nature of petitioners' activity, the majority's reliance on Kulko appearance on one of them, or observe the variety of license plates present not only
v. California Superior Court, supra, is misplaced. Kulko involved the assertion of state on those highways but in any metropolitan area, to realize that any automobile is
court jurisdiction over a nonresident individual in connection with an action to modify likely to wander far from its place of licensure or from its place of distribution and
his child custody rights and support obligations. His only contact with the forum State retail sale. Miles per gallon on the highway (as well as in the city) and mileage per
was that he gave his minor child permission to live there with her mother. In holding tankful are familiar allegations in manufacturers' advertisements today. To expect
that the exercise of jurisdiction violated the Due Process Clause, we emphasized that that any new automobile will remain in the vicinity of its retail sale -- like the 1914
the cause of action, as well as the defendant's actions in relation to the forum State, electric car driven by the proverbial "little old lady" -- is to blink at reality. The
arose "not from the defendant's commercial transactions in interstate commerce, but automobile is intended for distance, as well as for transportation within a limited
rather from his personal, area.
Page 444 U. S. 317 It therefore seems to me not unreasonable -- and certainly not unconstitutional and
domestic relations," 436 U.S. at 436 U. S. 97 (emphasis supplied), contrasting Kulko's beyond the reach of the principles laid down in International Shoe Co. v.
actions with those of the insurance company in McGee v. International Life Ins. Co., Washington, 326 U. S. 310 (1945), and its progeny -- to uphold Oklahoma
355 U. S. 220 (1957), which were undertaken for commercial benefit.* jurisdiction over this New York distributor and this New York dealer when the
accident happened in Oklahoma. I see nothing more unfair for them than for the
Manifestly, the "quality and nature" of commercial activity is different, for purposes of manufacturer and the importer. All are in the business of providing vehicles that
the International Shoe test, from actions from which a defendant obtains no economic spread out over the highways of our several States. It is not too much to anticipate,
advantage. Commercial activity is more likely to cause effects in a larger sphere, and at the time of distribution and at the time of retail sale, that this Audi would be in
the actor derives an economic benefit from the activity that makes it fair to require him Oklahoma. Moreover, in assessing "minimum contacts," foreseeable use in another
to answer for his conduct where its effects are felt. The profits may be used to pay the State seems to me to be little different from foreseeable resale
costs of suit, and, knowing that the activity is likely to have effects in other States, the
defendant can readily insure against the costs of those effects, thereby sparing Page 444 U. S. 319
himself much of the inconvenience of defending in a distant forum. in another State: yet the Court declares this distinction determinative. Ante at 444 U.
Of course, the Constitution forbids the exercise of jurisdiction if the defendant had no S. 297-299.
judicially cognizable contacts with the forum. But as the majority acknowledges, if MR. JUSTICE BRENNAN points out in his dissent, ante at 444 U. S. 307, that an
CONFLICT OF LAWS 3D 1/08-09 Page 68 of 97 Atty. Jose A. Bernas
automobile dealer derives substantial benefits from States other than its own. The
same is true of the regional distributor. Oklahoma does its best to provide safe roads.
Its police investigate accidents. It regulates driving within the State. It provides aid to
the victim, and thereby, it is hoped, lessens damages. Accident reports are prepared
and made available. All this contributes to and enhances the business of those
engaged professionally in the distribution and sale of automobiles. All this also may
benefit defendants in the very lawsuits over which the State asserts jurisdiction.
My position need not now take me beyond the automobile and the professional who
does business by way of distributing and retailing automobiles. Cases concerning
other instrumentalities will be dealt with as they arise, and in their own contexts.
I would affirm the judgment of the Supreme Court of Oklahoma. Because the Court
reverses that judgment, it will now be about parsing every variant in the myriad of
motor vehicle fact situations that present themselves. Some will justify jurisdiction and
others will not. All will depend on the "contact" that the Court sees fit to perceive in
the individual case.
Affirmed.
"[t]he general course of conduct in circulating magazines throughout the state was The Court of Appeals acknowledged that petitioner was suing, at least in part, for
purposefully directed at New Hampshire, and inevitably affected persons in the state." damages suffered in New Hampshire. 682 F.2d 34. And it is beyond dispute that
New Hampshire has a significant interest in redressing injuries that actually occur
App. to Pet. for Cert. 5a. Such regular monthly sales of thousands of magazines within the State.
cannot by any stretch of the imagination be characterized as random, isolated, or
fortuitous. It is, therefore, unquestionable that New Hampshire jurisdiction over a "'A state has an especial interest in exercising judicial jurisdiction over those who
complaint based on those contacts would ordinarily satisfy the requirement of the Due commit torts within its territory. This is because torts involve wrongful conduct which
Process Clause that a State's assertion of personal jurisdiction over a nonresident a state seeks to deter, and against which it attempts to afford protection, by
defendant be predicated on "minimum contacts" between the defendant and the providing that a tortfeasor shall be liable for damages which are the proximate result
State. See World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 444 U. S. 297- of his tort.'"
298 (1980); International Shoe Co. v. Washington, 326 U. S. 310, 326 U. S. 317 Leeper v. Leeper, 114 N.H. 294, 298, 319 A.2d 626, 629 (1974) (quoting
(1945). And, as the Court of Appeals acknowledged, New Hampshire has adopted a Restatement (Second) of Conflict of Laws § 36, Comment c (1971)). This interest
"long-arm" statute authorizing service of process on nonresident corporations extends to libel actions brought by nonresidents. False statements of fact harm both
whenever permitted by the Due Process Clause. 682 F.2d 33. [Footnote 4] Thus, all the subject of the falsehood and the readers of the statement. New Hampshire may
the requisites for personal jurisdiction rightly employ its libel laws to discourage the deception of its citizens. There is "no
Page 465 U. S. 775 constitutional value in false statements of fact." Gertz v. Robert Welch, Inc., 418 U.
S. 323, 418 U. S. 340 (1974).
over Hustler Magazine, Inc., in New Hampshire are present.
New Hampshire may also extend its concern to the injury that in-state libel causes
CONFLICT OF LAWS 3D 1/08-09 Page 74 of 97 Atty. Jose A. Bernas
within New Hampshire to a nonresident. sympathetic local populations. Certainly Hustler Magazine, Inc., which chose to
enter the New Hampshire market, can be charged with knowledge of its laws, and
Page 465 U. S. 777 no doubt would have claimed the benefit of them if it had a complaint against a
The tort of libel is generally held to occur wherever the offending material is subscriber, distributor, or other commercial partner.
circulated. Restatement (Second) of Torts § 577A, Comment a (1977). The reputation Finally, implicit in the Court of Appeals' analysis of New Hampshire's interest is an
of the libel victim may suffer harm even in a State in which he has hitherto been emphasis on the extremely limited contacts of the plaintiff with New Hampshire. But
anonymous. [Footnote 5] The communication of the libel may create a negative we have not to date required a plaintiff to have "minimum contacts" with the forum
reputation among the residents of a jurisdiction where the plaintiff's previous State before permitting that State to assert personal jurisdiction over a nonresident
reputation was, however small, at least unblemished. defendant. On the contrary, we have upheld the assertion of jurisdiction where such
New Hampshire has clearly expressed its interest in protecting such persons from contacts were entirely lacking. In Perkins v. Benguet Mining Co., 342 U. S. 437
libel, as well as in safeguarding its populace from falsehoods. Its criminal defamation (1952), none of the parties was a resident of the forum State; indeed, neither the
statute bears no restriction to libels of which residents are the victim. [Footnote 6] plaintiff nor the subject matter of his action had any relation to that State.
Moreover, in 1971, New Hampshire specifically deleted from its long-arm statute the Jurisdiction was based solely on the fact that the defendant corporation had been
requirement that a tort be committed "against a resident of New Hampshire." carrying on in the forum "a continuous and systematic, but limited, part of its general
[Footnote 7] business." Id. at 342 U. S. 438. In the instant case, respondent's activities in the
forum may not be so substantial as to support jurisdiction over a cause of action
New Hampshire also has a substantial interest in cooperating with other States, unrelated to those activities. [Footnote 11] But
through the "single publication rule," to provide a forum for efficiently litigating all
issues and damages claims arising out of a libel in a unitary proceeding. [Footnote 8] Page 465 U. S. 780
This rule reduces the potential serious drain of libel cases on judicial resources. It respondent is carrying on a "part of its general business" in New Hampshire, and
also serves to protect defendants from harassment resulting from multiple suits. that is sufficient to support jurisdiction when the cause of action arises out of the
Restatement (Second) of Torts § 577A, Comment f (1977). In sum, the combination very activity being conducted, in part, in New Hampshire.
of New Hampshire's interest in redressing injuries that occur within the State and its
interest in cooperating The plaintiff's residence is not, of course, completely irrelevant to the jurisdictional
inquiry. As noted, that inquiry focuses on the relations among the defendant, the
Page 465 U. S. 778 forum, and the litigation. Plaintiff's residence may well play an important role in
with other States in the application of the "single publication rule" demonstrates the determining the propriety of entertaining a suit against the defendant in the forum.
propriety of requiring respondent to answer to a multistate libel action in New That is, plaintiff's residence in the forum may, because of defendant's relationship
Hampshire. [Footnote 9] with the plaintiff, enhance defendant's contacts with the forum. Plaintiff's residence
may be the focus of the activities of the defendant out of which the suit arises. See
The Court of Appeals also thought that there was an element of due process Calder v. Jones, post at 465 U. S. 788-789; McGee v. International Life Ins. Co.,
"unfairness" arising from the fact that the statutes of limitations in every jurisdiction 355 U. S. 220 (1957). But plaintiff's residence in the forum State is not a separate
except New Hampshire had run on the plaintiff's claim in this case. [Footnote 10] requirement, and lack of residence will not defeat jurisdiction established on the
Strictly speaking, however, any potential unfairness in applying New Hampshire's basis of defendant's contacts.
statute of limitations to all aspects of this nationwide suit has nothing to do with the
jurisdiction of the court to adjudicate the claims. "The issue is personal jurisdiction, It is undoubtedly true that the bulk of the harm done to petitioner occurred outside
not choice of law." Hanson v. Denckla, 357 U. S. 235, 357 U. S. 254 (1958). The New Hampshire. But that will be true in almost every libel action brought
question of the applicability of New Hampshire's statute of limitations to claims for out- somewhere other than the plaintiff's domicile. There is no justification for restricting
of-state damages presents itself in the course of litigation only after jurisdiction over libel actions to the plaintiff's home forum. [Footnote 12] The victim of a libel, like the
respondent is established, and we do not think that such choice of law concerns victim of any other tort, may choose to bring suit in any forum with which the
should complicate or distort the jurisdictional inquiry. defendant has
Page 465 U. S. 779 "certain minimum contacts . . . such that the maintenance of the suit does not offend
'traditional notions of fair play and substantial
Page 465 U. S. 781
The chance duration of statutes of limitations in nonforum jurisdictions has nothing to
do with the contacts among respondent, New Hampshire, and this multistate libel justice.' Milliken v. Meyer, 311 U. S. 457, 311 U. S. 463 [(1940)]."
action. Whether Ohio's limitations period is six months or six years does not alter the International Shoe Co. v. Washington, 326 U.S. at 326 U. S. 316.
jurisdictional calculus in New Hampshire. Petitioner's successful search for a State
with a lengthy statute of limitations is no different from the litigation strategy of Where, as in this case, respondent Hustler Magazine, Inc., has continuously and
countless plaintiffs who seek a forum with favorable substantive or procedural rules or deliberately exploited the New Hampshire market, it must reasonably anticipate
CONFLICT OF LAWS 3D 1/08-09 Page 75 of 97 Atty. Jose A. Bernas
being haled into court there in a libel action based on the contents of its magazine.
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 444 U. S. 297-298. And,
since respondent can be charged with knowledge of the "single publication rule," it
must anticipate that such a suit will seek nationwide damages. Respondent produces
a national publication aimed at a nationwide audience. There is no unfairness in
calling it to answer for the contents of that publication wherever a substantial number
of copies are regularly sold and distributed.
The judgment of the Court of Appeals is reversed, [Footnote 13] and the cause is
remanded for proceedings consistent with this opinion.
It is so ordered.
Page 465 U. S. 782
Order Denying Motion to Quash Summons, Zurcher v. Dunlop Tire & Rubber Co., No. "some act by which the defendant purposefully avails itself of the privilege of
76180 (Super. Ct., Solano County, Cal., Apr. 20, 1983). conducting activities within the forum State, thus invoking the benefits and
protections of its laws."
The Court of Appeal of the State of California issued a peremptory writ of mandate
commanding the Superior Court to quash service of summons. The court concluded Burger King, 471 U.S. at 471 U. S. 475.
that "Jurisdiction is proper . . . where the contacts proximately result from actions by the
"it defendant himself that create a 'substantial connection' with the forum State."
Page 480 U. S. 108 Ibid., quoting McGee v. International Life Insurance Co., 355 U. S. 220, 355 U. S.
223 (1957) (emphasis in original).
would be unreasonable to require Asahi to respond in California solely on the basis of
ultimately realized foreseeability that the product into which its component was Applying the principle that minimum contacts must be based on an act of the
embodied would be sold all over the world, including California." defendant, the Court in World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286
(1980), rejected the assertion that a consumer's unilateral act of bringing the
App. to Pet. for Cert. B5-B6. defendant's product into the forum State was a sufficient constitutional basis for
personal jurisdiction over the defendant. It had been argued in World-Wide
The Supreme Court of the State of California reversed and discharged the writ issued Volkswagen that, because an automobile retailer and its wholesale distributor sold a
by the Court of Appeal. 39 Cal.3d 35, 702 P.2d 543 (1985). The court observed: product mobile by design and purpose, they could foresee being haled into court in
"Asahi has no offices, property or agents in California. It solicits no business in the distant States into which their customers might drive. The Court rejected this
California, and has made no direct sales [in California]." concept of foreseeability as an insufficient basis for jurisdiction under the Due
Process Clause. Id. at 444 U. S. 295-296. The Court disclaimed, however, the idea
Id. at 48, 702 P.2d at 549. Moreover, "Asahi did not design or control the system of that "foreseeability is wholly irrelevant" to personal jurisdiction, concluding that
distribution that carried its valve assemblies into California." Id. at 49, 702 P.2d at
549. Nevertheless, the court found the exercise of jurisdiction over Asahi to be "[t]he forum State does not exceed its powers under the Due Process Clause if it
consistent with the Due Process Clause. It concluded that Asahi knew that some of asserts personal jurisdiction over a corporation that delivers its products into the
the valve assemblies sold to Cheng Shin would be incorporated into tire tubes sold in stream of commerce with the expectation that they will be purchased by consumers
California, and that Asahi benefited indirectly from the sale in California of products in the forum State."
incorporating its components. The court considered Asahi's intentional act of placing Id. at 444 U. S. 297-298 (citation omitted). The Court reasoned:
its components into the stream of commerce -- that is, by delivering the components
to Cheng Shin in Taiwan -- coupled with Asahi's awareness that some of the Page 480 U. S. 110
components would eventually find their way into California, sufficient to form the basis
for state court jurisdiction under the Due Process Clause.
We granted certiorari, 475 U.S. 1044 (1986), and now reverse. "When a corporation 'purposefully avails itself of the privilege of conducting activities
within the forum State,' @ 357 U. S. 253 [(1958)], it has clear notice that it is subject
to suit there, and can act to alleviate the risk of burdensome litigation by procuring
insurance, passing the expected costs on to customers, or, if the risks are too great,
II severing its connection with the State. Hence, if the sale of a product of a
CONFLICT OF LAWS 3D 1/08-09 Page 79 of 97 Atty. Jose A. Bernas
manufacturer or distributor . . . is not simply an isolated occurrence, but arises from that Arakawa could have foreseen that its product would find its way into the United
the efforts of the manufacturer or distributor to serve, directly or indirectly, the market States," it would be "manifestly unjust" to require Arakawa to defend itself in the
for its product in other States, it is not unreasonable to subject it to suit in one of those United States. Id. at 710-711, quoting 578 F.Supp. 530, 533 (ND Iowa 1982). See
States if its allegedly defective merchandise has there been the source of injury to its also Hutson v. Fehr Bros.,
owners or to others."
Page 480 U. S. 112
Id. at 444 U. S. 297.
Inc., 584 F.2d 833 (CA8 1978); see generally Max Daetwyler Corp. v. R. Meyer, 762
In World-Wide Volkswagen itself, the state court sought to base jurisdiction not on F.2d 290, 299 (CA3 1985) (collecting "stream of commerce" cases in which the
any act of the defendant, but on the foreseeable unilateral actions of the consumer. "manufacturers involved had made deliberate decisions to market their products in
Since World-Wide Volkswagen, lower courts have been confronted with cases in the forum state").
which the defendant acted by placing a product in the stream of commerce, and the
stream eventually swept defendant's product into the forum State, but the defendant We now find this latter position to be consonant with the requirements of due
did nothing else to purposefully avail itself of the market in the forum State. Some process. The "substantial connection," Burger King, 471 U.S. at 471 U. S. 475;
courts have understood the Due Process Clause, as interpreted in World-Wide McGee, 355 U.S. at 355 U. S. 223, between the defendant and the forum State
Volkswagen, to allow an exercise of personal jurisdiction to be based on no more necessary for a finding of minimum contacts must come about by an action of the
than the defendant's act of placing the product in the stream of commerce. Other defendant purposefully directed toward the forum State. Burger King, supra, at 471
courts have understood the Due Process Clause and the above-quoted language in U. S. 476; Keeton v. Hustler Magazine, Inc., 465 U. S. 770, 465 U. S. 774 (1984).
World-Wide Volkswagen to require the action of the defendant to be more The placement of a product into the stream of commerce, without more, is not an
purposefully directed at the forum State than the mere act of placing a product in the act of the defendant purposefully directed toward the forum State. Additional
stream of commerce. conduct of the defendant may indicate an intent or purpose to serve the market in
the forum State, for example, designing the product for the market in the forum
The reasoning of the Supreme Court of California in the present case illustrates the State, advertising in the forum State, establishing channels for providing regular
former interpretation of World-Wide Volkswagen. The Supreme Court of California advice to customers in the forum State, or marketing the product through a
held that, because the stream of commerce eventually brought distributor who has agreed to serve as the sales agent in the forum State. But a
defendant's awareness that the stream of commerce may or will sweep the product
Page 480 U. S. 111 into the forum State does not convert the mere act of placing the product into the
some valves Asahi sold Cheng Shin into California, Asahi's awareness that its valves stream into an act purposefully directed toward the forum State.
would be sold in California was sufficient to permit California to exercise jurisdiction Assuming, arguendo, that respondents have established Asahi's awareness that
over Asahi consistent with the requirements of the Due Process Clause. The some of the valves sold to Cheng Shin would be incorporated into tire tubes sold in
Supreme Court of California's position was consistent with those courts that have California, respondents have not demonstrated any action by Asahi to purposefully
held that mere foreseeability or awareness was a constitutionally sufficient basis for avail itself of the California market. Asahi does not do business in California. It has
personal jurisdiction if the defendant's product made its way into the forum State no office, agents, employees, or property in California. It does not advertise or
while still in the stream of commerce. See Bean Dredging Corp. v. Dredge otherwise solicit business in California. It did not create, control, or employ the
Technology Corp., 744 F.2d 1081 (CA5 1984); Hedrick v. Daiko Shoji Co., 715 F.2d distribution system that brought its valves to California. Cf. Hicks v. Kawasaki
1355 (CA9 1983). Heavy Industries,
Other courts, however, have understood the Due Process Clause to require Page 480 U. S. 113
something more than that the defendant was aware of its product's entry into the
forum State through the stream of commerce in order for the State to exert jurisdiction 452 F.Supp. 130 (MD Pa. 1978). There is no evidence that Asahi designed its
over the defendant. In the present case, for example, the State Court of Appeal did product in anticipation of sales in California. Cf. Rockwell International Corp. v.
not read the Due Process Clause, as interpreted by World-Wide Volkswagen, to allow Costruzioni Aeronautiche Giovanni Agusta, 553 F.Supp. 328 (ED Pa. 1982). On the
basis of these facts, the exertion of personal jurisdiction over Asahi by the Superior
"mere foreseeability that the product will enter the forum state [to] be enough by itself Court of California 480 U. S.
to establish jurisdiction over the distributor and retailer."
B
App. to Pet. for Cert. B5. In Humble v. Toyota Motor Co., 727 F.2d 709 (CA8 1984),
an injured car passenger brought suit against Arakawa Auto Body Company, a The strictures of the Due Process Clause forbid a state court to exercise personal
Japanese corporation that manufactured car seats for Toyota. Arakawa did no jurisdiction over Asahi under circumstances that would offend "traditional notions of
business in the United States; it had no office, affiliate, subsidiary, or agent in the fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. at
United States; it manufactured its component parts outside the United States and 326 U. S. 316, quoting Milliken v. Meyer, 311 U.S. at 311 U. S. 463.
delivered them to Toyota Motor Company in Japan. The Court of Appeals, adopting
the reasoning of the District Court in that case, noted that, although it "does not doubt We have previously explained that the determination of the reasonableness of the
Part II-A states that Id. at 444 U. S. 297. The Court reasoned that, when a corporation may reasonably
anticipate litigation in a particular forum, it cannot claim that such litigation is unjust
"a defendant's awareness that the stream of commerce may or will sweep the product or unfair, because it
into the forum State does not convert the mere act of placing the product into the
stream into an act purposefully directed toward "can act to alleviate the risk of burdensome litigation by procuring insurance,
passing the expected costs on to consumers, or, if the risks are too great, severing
Page 480 U. S. 117 its connection with the State."
the forum State." Ibid.
Ante at 480 U. S. 112. Under this view, a plaintiff would be required to show To illustrate the point, the Court contrasted the foreseeability of litigation in a State
"[a]dditional conduct" directed toward the forum before finding the exercise of to which a consumer fortuitously transports a defendant's product (insufficient
jurisdiction over the defendant to be consistent with the Due Process Clause. Ibid. I contacts) with the foreseeability of litigation in a State where the defendant's product
see no need for such a showing, however. The stream of commerce refers not to was regularly sold (sufficient contacts). The Court stated:
unpredictable currents or eddies, but to the regular and anticipated flow of products
from manufacture to distribution to retail sale. As long as a participant in this process "Hence, if the sale of a product of a manufacturer or distributor such as Audi or
is aware that the final product is being marketed in the forum State, the possibility of a Volkswagen is not simply an isolated occurrence, but arises from the efforts of the
lawsuit there cannot come as a surprise. Nor will the litigation present a burden for manufacturer or distributor to serve, directly or indirectly, the market for its product
which there is no corresponding benefit. A defendant who has placed goods in the in other States, it is not unreasonable to subject it to suit in one of those States if its
stream of commerce benefits economically from the retail sale of the final product in allegedly defective merchandise has there been the source of injury to its owner or
the forum State, and indirectly benefits from the State's laws that regulate and to others. The forum State does not exceed its powers under the Due Process
facilitate commercial activity. These benefits accrue regardless of whether that Clause if it asserts personal jurisdiction over a corporation that delivers its products
participant directly conducts business in the forum State, or engages in additional into the stream of commerce with the expectation that they will be purchased
conduct directed toward that State. Accordingly, most courts and commentators have Page 480 U. S. 120
found that jurisdiction premised on the placement of a product into the stream of
commerce is consistent with the Due Process Clause, and have not required a by consumers in the forum State."
showing of additional conduct. [Footnote 1] Id. at 444 U. S. 297-298 (emphasis added). The Court concluded its illustration by
Page 480 U. S. 118 referring to Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176
N.E.2d 761 (1961), a well known stream-of-commerce case in which the Illinois
Supreme Court applied the theory to assert jurisdiction over a component parts
The endorsement in Part II-A of what appears to be the minority view among Federal manufacturer that sold no components directly in Illinois, but did sell them to a
Courts of Appeals [Footnote 2] represents a marked retreat from the analysis in manufacturer who incorporated them into a final product that was sold in Illinois. 444
World-Wide Volkswagen v. Woodson, 444 U. S. 286 (1980). In that case, U.S. at 444 U. S. 297-298.
"respondents [sought] to base jurisdiction on one isolated occurrence and whatever The Court in World-Wide Volkswagen thus took great care to distinguish
inferences can be drawn therefrom: the fortuitous circumstance that a single Audi "between a case involving goods which reach a distant State through a chain of
automobile, sold in New York to New York residents, happened to suffer an accident distribution and a case involving goods which reach the same State because a
CONFLICT OF LAWS 3D 1/08-09 Page 82 of 97 Atty. Jose A. Bernas
consumer . . . took them there."
Id. at 444 U. S. 306-307 (BRENNAN, J., dissenting). [Footnote 3] The California
Supreme Court took note of this distinction, and correctly concluded that our holding
in World-Wide Volkswagen preserved the stream-of-commerce theory. See App. to
Pet. for Cert. C-9, and n. 3, C-13-C-15; cf. Comment, Federalism, Due Process, and
Minimum Contacts: World-Wide Volkswagen Corp v. Woodson, 80 Colum.L.Rev.
1341, 1359-1361, and nn. 140-146 (1980).
Page 480 U. S. 121
In this case, the facts found by the California Supreme Court support its finding of
minimum contacts. The court found that,
"[a]lthough Asahi did not design or control the system of distribution that carried its
valve assemblies into California, Asahi was aware of the distribution system's
operation, and it knew that it would benefit economically from the sale in California of
products incorporating its components."
App. to Pet. for Cert. C-11. [Footnote 4] Accordingly, I cannot join the determination in
Part II-A that Asahi's regular and extensive sales of component parts to a
manufacturer it knew was making regular sales of the final product in California is
insufficient to establish minimum contacts with California.
[2] I. BACKGROUND [8] Patterson's software product was, apparently, a program designed to help
people navigate their way around the larger Internet network. CompuServe began to
[3] CompuServe is a computer information service headquartered in Columbus, Ohio. market a similar product, however, with markings and names that Patterson took to
It contracts with individual subscribers, such as the defendant, to provide, inter alia, be too similar to his own. Thus, in December of 1993, Patterson notified
access to computing and information services via the Internet, and it is the second CompuServe (appropriately via an electronic mail or "E-mail" message[n5]) that the
largest such provider currently operating on the so-called "information terms "WinNAV," "Windows Navigator," and "FlashPoint Windows Navigator" were
superhighway."[n2] A CompuServe subscriber may use the service to gain electronic common law trademarks which he and his company owned. Patterson stated that
access to more than 1700 information services.[n3] CompuServe's marketing of its product infringed these trademarks, and otherwise
constituted deceptive trade practices. CompuServe changed the name of its
[4] CompuServe also operates as an electronic conduit to provide its subscribers
program, but Patterson continued to complain. CompuServe asserts that, if
computer software products, which may originate either from CompuServe itself or
Patterson's allegations of trademark infringement are correct, they threaten
from other parties. Computer software generated and distributed in this manner is,
CompuServe's software sales revenue with a loss of approximately $10.8 million.
according to CompuServe, often referred to as "shareware." Shareware makes
money only through the voluntary compliance of an "end user," that is, another [9] After Patterson demanded at least $100,000 to settle his potential claims,
CompuServe subscriber who may or may not pay the creator's suggested licensing CompuServe filed this declaratory judgment action in the federal district court for the
fee if she uses the software beyond a specified trial period. The "end user" pays that Southern District of Ohio, relying on the court's diversity subject matter jurisdiction.
fee directly to CompuServe in Ohio, and CompuServe takes a 15% fee for its trouble CompuServe sought, among other things, a declaration that it had not infringed any
before remitting the balance to the shareware's creator.[n4] common law trademarks of Patterson or FlashPoint Development, and that it was
not otherwise guilty of unfair or deceptive trade practices. Patterson responded pro
[5] Defendant, Richard Patterson, is an attorney and a resident of Houston, Texas
se with a consolidated motion to dismiss on several grounds, including lack of
who claims never to have visited Ohio. Patterson also does business as FlashPoint
personal jurisdiction. Patterson also submitted a supporting affidavit, in which he
Development. He subscribed to CompuServe, and he also placed items of
denied many jurisdictional facts, including his having ever visited Ohio.
"shareware" on the CompuServe system for others to use and purchase. When he
CompuServe then filed a memorandum in opposition to Patterson's consolidated
became a shareware "provider," Patterson entered into a "Shareware Registration
motion, along with several supporting exhibits.
Agreement" ("SRA") with CompuServe. Under the SRA, CompuServe provides its
subscribers with access to the software, or shareware, that Patterson creates. The [10] The district court, considering only these pleadings and papers, granted
SRA purports to create an independent contractor relationship between Patterson Patterson's motion to dismiss for lack of personal jurisdiction in a thorough and
and CompuServe, whereby Patterson may place software of his creation on thoughtful opinion.[n6] At various points in its consideration of the case, however, the
CompuServe's system. The SRA does not mention Patterson's software by name; in district court expressly relied on Patterson's affidavit. Joint Appendix at 97, 98, 99.
fact, it leaves the content and identification of that software to Patterson. The court below then denied CompuServe's motion for a rehearing, which it
construed as a motion for reconsideration under Federal Rule of Civil Procedure
[6] The SRA incorporates by reference two other documents: the CompuServe
CONFLICT OF LAWS 3D 1/08-09 Page 87 of 97 Atty. Jose A. Bernas
59(e). CompuServe timely appealed. Patterson, however, filed no appellate brief, and [18] To determine whether personal jurisdiction exists over a defendant, federal
he did not appear at oral argument. courts apply the law of the forum state, subject to the limits of the Due Process
Clause of the Fourteenth Amendment. Reynolds, 23 F.3d at 1115. "[T]he defendant
[11] II. ANALYSIS must be amenable to suit under the forum state's long-arm statute and the due
[12] A. Standards of Review. process requirements of the Constitution must be met." Id. (citing In-Flight Devices
Corp. v. Van Dusen Air, Inc., 466 F.2d 220, 224 (6th Cir. 1972)).
[13] We conduct a plenary review of personal jurisdiction issues. E.g., Reynolds v.
International Amateur Athletic Fed'n, 23 F.3d 1110, 1117 (6th Cir.) (citing Conti v. [19] The Ohio long-arm statute allows an Ohio court to exercise personal jurisdiction
Pneumatic Prods., 977 F.2d 978, 985 (6th Cir. 1992)), cert. denied, 115 S.Ct. 423 over nonresidents of Ohio on claims arising from, inter alia, the nonresident's
(1994). CompuServe, as the party seeking assertion of in personam jurisdiction, transacting any business in Ohio. Ohio Rev. Code Ann. Section(s) 2307.382(A)
bears the burden of showing that such jurisdiction exists. E.g., Theunissen v. (Anderson 1995). It is settled Ohio law, moreover, that the "transacting business"
Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991). When, however, a district court rules clause of that statute was meant to extend to the federal constitutional limits of due
on a jurisdictional motion to dismiss made pursuant to Federal Rule of Civil Procedure process, and that as a result Ohio personal jurisdiction cases require an
12(b)(2) without conducting an evidentiary hearing, the court must consider the examination of those limits. Reynolds, 23 F.3d at 1116 (quoting Creech v. Roberts,
pleadings and affidavits in a light most favorable to the plaintiff - here, CompuServe. 908 F.2d 75, 79 (6th Cir. 1990), cert. denied, 499 U.S. 975 (1991)); R.L. Lipton
Id. at 1458-59. To defeat such a motion, a party in CompuServe's position need only Distrib. Co. v. Dribeck Importers, Inc., 811 F.2d 967, 969 (6th Cir. 1987).
make a prima facie showing of jurisdiction. Id. [20] Further, personal jurisdiction may be either general or specific in nature,
[14] Furthermore, a "court disposing of a 12(b)(2) motion does not weigh the depending on the nature of the contacts in a given case. E.g., Reynolds, 23 F.3d at
controverting assertions of the party seeking dismissal," Patterson in this case, 1116 (citing Third Nat'l Bank v. WEDGE Group Inc., 882 F.2d 1087, 1089 (6th Cir.
because we want "to prevent non-resident defendants from regularly avoiding 1989), cert. denied, 493 U.S. 1058 (1990)). In the instant case, because
personal jurisdiction simply by filing an affidavit denying all jurisdictional facts." Id. at CompuServe bases its action on Patterson's act of sending his computer software
1459 (emphasis added). Dismissal in this procedural posture is proper only if all the to Ohio for sale on its service, CompuServe seeks to establish such specific
specific facts which the plaintiff (CompuServe) alleges collectively fail to state a prima personal jurisdiction over Patterson. Id.
facie case for jurisdiction. Id. [21] As always in this context, the crucial federal constitutional inquiry is whether,
[15] B. Personal Jurisdiction. given the facts of the case, the nonresident defendant has sufficient contacts with
the forum state that the district court's exercise of jurisdiction would comport with
[16] This case presents a novel question of first impression: Did CompuServe make a "traditional notions of fair play and substantial justice." International Shoe Co. v.
prima facie showing that Patterson's contacts with Ohio, which have been almost Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457,
entirely electronic in nature, are sufficient, under the Due Process Clause, to support 463 (1940)); Reynolds, 23 F.3d at 1116; Theunissen, 935 F.2d at 1459. This court
the district court's exercise of personal jurisdiction over him? The Supreme Court has has repeatedly employed three criteria to make this determination:
noted, on more than one occasion, the confluence of the "increasing nationalization of
commerce" and "modern transportation and communication," and the resulting [22] First, the defendant must purposefully avail himself of the privilege of acting in
relaxation of the limits that the Due Process Clause imposes on courts' jurisdiction. the forum state or causing a consequence in the forum state. Second, the cause of
E.g., World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 293 (1980) (quoting action must arise from the defendant's activities there. Finally, the acts of the
McGee v. International Life Ins. Co., 355 U.S. 220, 223 (1957)). Simply stated, there defendant or consequences caused by the defendant must have a substantial
is less perceived need today for the federal constitution to protect defendants from enough connection with the forum to make the exercise of jurisdiction over the
"inconvenient litigation," because all but the most remote forums are easily accessible defendant reasonable.
for the pursuit of both business and litigation. Id. The Court has also, however, [23] Reynolds, 23 F.3d at 1116 (quoting In-Flight Devices, 466 F.2d at 226); see
reminded us that the due process rights of a defendant should be the courts' primary also Southern Mach. Co. v. Mohasco Indus., 401 F.2d 374, 381 (6th Cir. 1968)
concern where personal jurisdiction is at issue. Insurance Corp. v. Compagnie des (adopting the above test for "determining the present outerlimits of in personam
Bauxites de Guinee, 456 U.S. 694, 702 n. 10 (1982). jurisdiction based on a single act").
[17] The Internet represents perhaps the latest and greatest manifestation of these [24] We conclude that Patterson has knowingly made an effort - and, in fact,
historical, globe-shrinking trends. It enables anyone with the right equipment and purposefully contracted - to market a product in other states, with Ohio-based
knowledge - that is, people like Patterson - to operate an international business CompuServe operating, in effect, as his distribution center. Thus, it is reasonable to
cheaply, and from a desktop. That business operator, however, remains entitled to subject Patterson to suit in Ohio, the state which is home to the computer network
the protection of the Due Process Clause, which mandates that potential defendants service he chose to employ.
be able "to structure their primary conduct with some minimum assurance as to where
the conduct will and will not render them liable to suit." World-Wide Volkswagen, 444 [25] To support this conclusion, we will address each of the above three criteria
U.S. at 297. Thus, this case presents a situation where we must reconsider the scope seriatim, bearing in mind that (1) CompuServe need only make a prima facie case
of our jurisdictional reach. of personal jurisdiction, and (2) we cannot weigh Patterson's affidavit in the
CONFLICT OF LAWS 3D 1/08-09 Page 88 of 97 Atty. Jose A. Bernas
analysis, given that the district court addressed his motion to dismiss without holding Corp., 860 F.2d 460, 463-65 (D.C. Cir. 1988) (finding no jurisdiction over a
an evidentiary hearing.[n7] Theunissen, 935 F.2d at 1459. nonresident purchaser who had bought services from a corporation in the forum
state) with Burger King Corp., 471 U.S. at 479-82 (finding significant the defendant's
[26] 1. The "purposeful availment" requirement. reaching beyond Michigan to negotiate with a Florida corporation for the purchase
[27] This court has stated that the question of whether a defendant has purposefully of a long-term franchise). The district court deemed this case closer to Reynolds
availed itself of the privilege of doing business in the forum state is "the sine qua non and Health Communications than to Burger King Corp., and thus it found no
for in personam jurisdiction." Mohasco Indus., 401 F.2d at 381-82. The "purposeful purposeful availment on the part of Patterson.
availment" requirement is satisfied when the defendant's contacts with the forum state [32] We disagree. The contract cases upon which the district court relied are both
"proximately result from actions by the defendant himself that create a `substantial distinguishable in important ways. Patterson, unlike the nonresident defendant in
connection' with the forum State," and when the defendant's conduct and connection Reynolds, entered into a written contract with CompuServe which provided for the
with the forum are such that he "should reasonably anticipate being haled into court application of Ohio law, and he then purposefully perpetuated the relationship with
there." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75 (1985) (quoting World- CompuServe via repeated communications with its system in Ohio. And, unlike the
Wide Volkswagen, 444 U.S. at 297); Reynolds, 23 F.3d at 1116. Courts require nonresident defendant in Health Communications, Patterson was far more than a
purposeful availment to insure that "random," "fortuitous," or "attenuated" contacts do purchaser of services; he was a third-party provider of software who used
not cause a defendant to be haled into a jurisdiction. Burger King Corp., 471 U.S. at CompuServe, which is located in Columbus, to market his wares in Ohio and
475 (citing Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984)). elsewhere.
[28] This requirement does not, however, mean that a defendant must be physically [33] In fact, it is Patterson's relationship with CompuServe as a software provider
present in the forum state. As the Burger King Corp. Court stated, "So long as a and marketer that is crucial to this case. The district court's analysis misses the
commercial actor's efforts are `purposefully directed' toward residents of another mark because it disregards the most salient facts of that relationship: that Patterson
State, we have consistently rejected the notion that an absence of physical contacts chose to transmit his software from Texas to CompuServe's system in Ohio, that
can defeat personal jurisdiction there." Id. at 476. Further, as this court noted long myriad others gained access to Patterson's software via that system, and that
ago, Patterson advertised and sold his product through that system. Though all this
Physical presence of an agent is not necessary . . . for the transaction of business in happened with a distinct paucity of tangible, physical evidence, there can be no
a state. The soliciting of insurance by mail, the transmission of radio broadcasts into a doubt that Patterson purposefully transacted business in Ohio. See Plus System,
state, and the sending of magazines and newspapers into a state to be sold there by Inc. v. New England Network, Inc., 804 F.Supp. 111, 118-19 (D.Colo. 1992) (finding
independent contractors are all accomplished without the physical presence of an personal jurisdiction over a nonresident computer network defendant because, inter
agent; yet all have been held to constitute the transaction of business in a state. alia, that defendant benefitted from the intangible computer services provided by the
plaintiff's own computer network system); cf. United States v. Thomas, 74 F.3d 701,
[29] Mohasco Indus., 401 F.2d at 382 (footnotes omitted). 706-07 (6th Cir. 1996) (upholding a conviction under federal obscenity laws where
[30] There is no question that Patterson himself took actions that created a the defendants transmitted computer-generated images across state lines, despite
connection with Ohio in the instant case. He subscribed to CompuServe, and then he the defendants' argument that the images were intangible), petition for cert. filed, 64
entered into the Shareware Registration Agreement when he loaded his software U.S.L.W. 3839 (U.S. June 10, 1996) (No. 95-1992).
onto the CompuServe system for others to use and, perhaps, purchase. Once [34] Moreover, this was a relationship intended to be ongoing in nature; it was not a
Patterson had done those two things, he was on notice that he had made contracts, "one-shot affair." Mohasco Indus., 401 F.2d at 385. Patterson sent software to
to be governed by Ohio law, with an Ohio-based company. Then, he repeatedly sent CompuServe repeatedly for some three years, and the record indicates that he
his computer software, via electronic links, to the CompuServe system in Ohio, and intended to continue marketing his software on CompuServe. As this court has often
he advertised that software on the CompuServe system. Moreover, he initiated the stated,
events that led to the filing of this suit by making demands of CompuServe via
electronic and regular mail messages. [B]usiness is transacted in a state when obligations created by the defendant or
business operations set in motion by the defendant have a realistic impact on the
[31] The real question is whether these connections with Ohio are "substantial" commerce of that state; and the defendant has purposefully availed himself of the
enough that Patterson should reasonably have anticipated being haled into an Ohio opportunity of acting there if he should have reasonably foreseen that the
court. The district court did not think so. It looked to "cases involving interstate transaction would have consequences in that state.
business negotiations and relationships" and held that the relationship between
CompuServe and Patterson, because it was marked by a "minimal course of dealing," [35] Mohasco Indus., 401 F.2d at 382-83 (footnote omitted). Patterson deliberately
was insufficient to satisfy the purposeful availment test. Compare Reynolds, 23 F.3d set in motion an ongoing marketing relationship with CompuServe, and he should
at 1118-21 (holding that the contacts between an England-based association and an have reasonably foreseen that doing so would have consequences in Ohio.
Ohio plaintiff in a contract case were "superficial" where, although mail and telephone [36] Admittedly, merely entering into a contract with CompuServe would not, without
communications had taken place, the parties had engaged in no prior negotiations more, establish that Patterson had minimum contacts with Ohio. Burger King Corp.,
and expected no future consequences) and Health Communications, Inc. v. Mariner
CONFLICT OF LAWS 3D 1/08-09 Page 89 of 97 Atty. Jose A. Bernas
471 U.S. at 478. By the same token, Patterson's injection of his software product into would be governed by and construed in light of Ohio law. Ohio has written and
the stream of commerce, without more, would be at best a dubious ground for interpreted its long-arm statute, and particularly its "transacting business"
jurisdiction. Compare Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 112 subsection, with the intent of reaching as far as the Due Process Clause will allow,
(1987) (O'Connor, J.) (plurality op.) ("The placement of a product into the stream of and it certainly has an interest "in providing effective means of redress for its
commerce, without more, is not an act of the defendant purposefully directed toward residents." Id. As the Burger King Corp. Court noted, the purposeful direction of
the forum State.") with id. at 117 (Brennan, J., concurring in part) (rejecting the one's activities toward a state has always been significant in personal jurisdiction
plurality's position on the stream of commerce theory). Because Patterson cases, particularly where individuals purposefully derive benefits from interstate
deliberately did both of those things, however, and because of the other factors that activities. Burger King Corp., 471 U.S. at 472-73. Moreover, the Court continued, it
we discuss herein, we believe that ample contacts exist to support the assertion of could be unfair to allow individuals who purposefully engage in interstate activities
jurisdiction in this case, and certainly an assertion of jurisdiction by the state where for profit to escape having to account in other states for the proximate
the computer network service in question is headquartered. consequences of those activities. Id. (citing Kulko v. Superior Court, 436 U.S. 84, 96
(1978)).
[37] We find support for our conclusion in the Ohio Supreme Court case of U.S.
Sprint Communications Co. Limited Partnership v. Mr. K's Foods, Inc., 624 N.E.2d [42] Finally, we note this court's own finding of purposeful availment based (in part)
1048, 1052-54 (Ohio 1994). In that case, the court held that a foreign corporation on analogous litigation threats in American Greetings Corp. v. Cohn, 839 F.2d 1164,
"transacted business" in Ohio, and thus was subject to personal jurisdiction, where it 1170 (6th Cir. 1988). The American Greetings Corp. case involved an Ohio
frequently made long-distance telephone calls to Ohio to sell its products, had corporation's suit, in Ohio, against a California shareholder who had threatened to
distribution facilities in Ohio for its products, and shipped goods to Ohio for ultimate file a lawsuit to invalidate an amendment to the company's articles of incorporation.
sale. Similarly, Patterson frequently contacted Ohio to sell his computer software over Id. at 1165. The district court dismissed the case, without conducting an evidentiary
CompuServe's Ohio-based system. Patterson repeatedly sent his "goods" to hearing, for lack of personal jurisdiction, finding that the defendant merely owned
CompuServe in Ohio for their ultimate sale. CompuServe, in effect, acted as stock in an Ohio company and expressed strong reservations about a matter of
Patterson's distributor, albeit electronically and not physically. shareholder interest. Id. at 1166. This court reversed, finding purposeful availment
because of the defendant's letters and telephone calls to Ohio, in which he had
[38] Further, we must reject the district court's reliance on the de minimis amount of threatened suit and had sought money to release his claim. Thus, this court stated,
software sales which Patterson claims he enjoyed in Ohio. As this court recently the defendant himself had "originated and maintained the required contacts with
stated, "It is the `quality' of [the] contacts," and not their number or status, that Ohio." Id. at 1170.
determines whether they amount to purposeful availment. Reynolds, 23 F.3d at 1119
(emphasis added) (quoting LAK, Inc. v. Deer Creek Enters., 885 F.2d 1293, 1301 (6th [43] In the instant case, the record demonstrates that Patterson not only
Cir. 1989), cert. denied, 494 U.S. 1056 (1990)). Patterson's contacts with purposefully availed himself of CompuServe's Ohio-based services to market his
CompuServe here were deliberate and repeated, even if they yielded little revenue software, but that he also "originated and maintained" contacts with Ohio when he
from Ohio itself. believed that CompuServe's competing product unlawfully infringed on his own
software. Patterson repeatedly sent both electronic and regular mail messages to
[39] Moreover, we should not focus solely on the sales that Patterson made in Ohio, CompuServe about his claim, and he posted a message on one of CompuServe's
because that ignores the sales Patterson may have made through CompuServe to electronic forums, which outlined his case against CompuServe for anyone who
others elsewhere. Patterson sought to make those sales from Texas by way of wished to read it. Moreover, the record shows that Patterson demanded at least
CompuServe's system in Ohio, and the sales then involved the passage of funds $100,000 to settle the matter.
through Ohio to Patterson in Texas. This case is thus analogous to the Mohasco
Industries case, 401 F.2d at 383-86, where this court held that jurisdiction was proper [44] Thus, we believe that the facts which CompuServe has alleged, viewed in the
where a nonresident defendant both (a) entered a licensing contract for the plaintiff to light most favorable to CompuServe, support a finding that Patterson purposefully
manufacture and sell equipment in the forum state, and (b) contemplated the ongoing availed himself of the privilege of doing business in Ohio. He knowingly reached out
marketing of that equipment in the forum state and elsewhere. to CompuServe's Ohio home, and he benefitted from CompuServe's handling of his
software and the fees that it generated.
[40] We also find instructive the Supreme Court case of McGee v. International Life
Insurance Co., 355 U.S. 220 (1957), which held that due process did not prohibit [45] 2. The requirement that the cause of action arises from Patterson's
California from asserting jurisdiction over a Texas insurance company based upon its activities in Ohio.
issuance of a single insurance contract in California and the receipt of premium
payments mailed from California. The McGee Court reasoned that (1) the company [46] Even though we have found that Patterson purposefully availed himself of Ohio
had consciously sought the contract with the California insured, and (2) "the suit was privileges, we must also find that CompuServe's claims against him arise out of his
based on a contract which had substantial connection with that State." Id. at 223. activities in Ohio if we are to find the exercise of jurisdiction proper. Reynolds, 23
F.3d at 1116-17. If a defendant's contacts with the forum state are related to the
[41] Similarly, in the instant case, Patterson consciously reached out from Texas to operative facts of the controversy, then an action will be deemed to have arisen
Ohio to subscribe to CompuServe, and to use its service to market his computer from those contacts. Id. at 1119 (quoting Creech, 908 F.2d at 80).
software on the Internet. He entered into a contract which expressly stated that it
CONFLICT OF LAWS 3D 1/08-09 Page 90 of 97 Atty. Jose A. Bernas
[47] The district court viewed the presence of Patterson's software on the - purposeful availment and a cause of action arising from the defendant's contacts
CompuServe system in Ohio as "entirely incidental to the alleged dispute between the with the forum state - then an inference arises that this third factor is also present.
parties." In the district court's opinion, Patterson could have claimed trademark or American Greetings Corp., 839 F.2d at 1170 (citing First Nat'l Bank v. J.W. Brewer
trade name protection for his software against CompuServe even if he had placed his Tire Co., 680 F.2d 1123, 1126 (6th Cir. 1982)); Mohasco Indus., 401 F.2d at 384 &
software on another computer network altogether, or in a retail store. Patterson's n. 30.
discovery of the similarity in program names may have come to his attention through
the CompuServe system, the court below noted, but it concluded that "the way in [52] A court must consider several factors in this context, including "the burden on
which the parties discovered they might have a clash of legal interests is not relevant the defendant, the interest of the forum state, the plaintiff's interest in obtaining
to the issue of jurisdiction." Again, we must disagree with the district court's holding. relief, and the interest of other states in securing the most efficient resolution of
The cause of action in the instant case concerns allegations of trademark or trade controversies." American Greetings Corp., 839 F.2d at 1169-70 (citing Asahi Metal
name infringement and unfair competition. Patterson's contacts with Ohio are Indus., 480 U.S. at 113).
certainly related to the operative facts of that controversy. He placed his software on [53] The district court analogized the instant case to a standard consumer suit in
CompuServe's Ohio-based system. He used that system to advertise his software which CompuServe might have brought suit in Ohio "to collect a small amount of
and sell it. The proceeds of those sales flowed to him through Ohio. According to user fees from a Texas resident who, while seated at his computer terminal,
CompuServe's allegations, Patterson has marketed his product exclusively on their became a member of the CompuServe network." That is not, however, the case at
system. bar. Here, we have an entrepreneur who purposefully employed CompuServe to
[48] As the district court points out, Patterson could have placed his software market his computer software product. It may be burdensome for Patterson to
anywhere and had the same result. Nevertheless, it is uncontroverted that Patterson defend a suit in Ohio, but he knew when he entered into the Shareware Registration
placed, marketed, and sold his software only on Ohio-based CompuServe. Thus, any Agreement with CompuServe that he was making a connection with Ohio, and
common law trademark or trade name which Patterson might have in his product presumably he hoped that connection would work to his benefit. Further, Ohio has a
would arguably have been created in Ohio, and any violation of those alleged strong interest in resolving a dispute involving an Ohio company, which will involve
trademarks or trade names by CompuServe would have occurred, at least in part, in the Ohio law on common law trademarks and trade names.[n8] CompuServe alleges
Ohio. See United States v. Steffens, 100 U.S. 82, 94 (1879) (stating that trademark that more than $10 million could be at stake in this case, and it also contends that
rights, under the common law, are appropriated only through actual prior use in this case will have a profound impact on its relationships with other "shareware"
commerce); Dakota Indus. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1388 (8th Cir. providers like Patterson, who also directed their activities toward Ohio-based
1991) (stating that the tort of trademark infringement is considered to have occurred CompuServe. We have no reason to believe otherwise.
where the passing off of the allegedly infringing goods occurred); Tally-Ho, Inc. v. [54] Again, considering the pleadings and affidavits in a light most favorable to
Coast Community College Dist., 889 F.2d 1018, 1022 (11th Cir. 1989) (stating that CompuServe (as we must), we find that, on these facts, there is a substantial
where, as here, neither party has registered a disputed trademark with the federal enough connection between Patterson and Ohio to make it reasonable for an Ohio
government, the parties must look to common law and state statutes to determine court to assert personal jurisdiction over him.[n9] Someone like Patterson who
what protection they have); Younker v. Nationwide Mut. Ins. Co., 191 N.E.2d 145, employs a computer network service like CompuServe to market a product can
148-49 (Ohio 1963) (defining trade name and trademark and stating that only the reasonably expect disputes with that service to yield lawsuits in the service's home
actual use of those devices in connection with a business gives rise to legal rights); state.
Yocono's Restaurant, Inc. v. Yocono, 651 N.E.2d 1347, 1350-51 (Ohio Ct. App. 1994)
(discussing the intersection of Ohio's Deceptive Trade Practices Act, the common [55] Finally, because of the unique nature of this case, we deem it important to note
law, and the federal Lanham Act). what we do not hold. We need not and do not hold that Patterson would be subject
to suit in any state where his software was purchased or used; that is not the case
[49] Moreover, as noted heretofore with regard to the purposeful availment test, before us. See World-Wide Volkswagen, 444 U.S. at 296 (rejecting the idea that a
CompuServe's declaratory judgment action arose in part because Patterson seller of chattels could "appoint the chattel his agent for service of process"). We
threatened, via regular and electronic mail, to seek an injunction against also do not have before us an attempt by another party from a third state to sue
CompuServe's sales of its software product, or to seek damages at law if Patterson in Ohio for, say, a "computer virus" caused by his software, and thus we
CompuServe did not pay to settle his purported claim. Thus, Patterson's threats - need not address whether personal jurisdiction could be found on those facts.
which were contacts with Ohio - gave rise to the case before us, as did the threats in Finally, we need not and do not hold that CompuServe may, as the district court
the American Greetings Corp. case, 893 F.2d at 1170. posited, sue any regular subscriber to its service for nonpayment in Ohio, even if the
[50] 3. The reasonableness requirement. subscriber is a native Alaskan who has never left home. Each of those cases may
well arise someday, but they are not before us now.
[51] Lastly, we consider whether exercising personal jurisdiction over Patterson would
be reasonable, i.e., whether it would "comport with `traditional notions of fair play and [56] III. CONCLUSION
substantial justice.'" Reynolds, 23 F.3d at 1117 (quoting Asahi Metal Indus., 480 U.S. [57] Because we believe that Patterson had sufficient contacts with Ohio to support
at 113). We note that, if we find, as we do, the first two elements of a prima facie case the exercise of personal jurisdiction over him, we REVERSE the district court's
CONFLICT OF LAWS 3D 1/08-09 Page 91 of 97 Atty. Jose A. Bernas
dismissal and REMAND this case for further proceedings consistent with this opinion.
On appeal, the Minnesota Supreme Court affirmed the trial court's decision. 311 "where the plaintiff is a resident of the forum state and the insurer is present in and
Minn. 480, 245 N.W.2d 624 (1976) (Savchuk I). It held, first, that the obligation of an regulated by it, the State has a substantial and continuing relation with the
insurance company to defend and indemnify a nonresident insured under an controversy."
automobile liability insurance policy is a garnishable res in Minnesota for the purpose Simpson v. Loehmann, supra at 311, 234 N.E.2d at 672.
of obtaining quasi in rem jurisdiction when the incident giving rise to the action occurs
outside Minnesota but the plaintiff is a Minnesota resident when the suit is filed. The United States Court of Appeals for the Second Circuit gave its approval to
Second, the court held that the assertion of jurisdiction over Rush was constitutional Seider in Minichiello v. Rosenberg, 410 F.2d 106, adhered to en banc, 410 F.2d 117
because he had notice of the suit and an opportunity to defend, his liability was (1968), cert. denied, 396 U.S. 844 (1969), although on a slightly different rationale.
limited to the amount of the policy, and the garnishment procedure may be used only Judge Friendly construed Seider as,
by Minnesota residents. The court expressly recognized that Rush had engaged in no
voluntary activity that would justify the exercise of in personam jurisdiction. The court "in effect, a judicially created direct action statute. The insurer doing business in
found, however, that considerations of fairness supported the exercise of quasi in New York is considered the real party in interest, and the nonresident insured is
rem jurisdiction because in accident litigation the insurer controls the defense of the viewed simply as a conduit, who has to be named as a defendant in order to provide
case, State Farm does business in and is regulated by the State, and the State has a conceptual basis for getting at the insurer."
an interest in protecting its residents and providing them with a forum in which to 410 F.2d 109; see Donawitz v. Danek, 42 N.Y.2d 138, 142, 366 N.E.2d 253, 255
litigate their claims. (1977). The court held that New York could constitutionally enact a direct action
Rush appealed to this Court. We vacated the judgment and remanded the cause for statute, and that the restriction of liability to the amount of the policy coverage made
further consideration in light of the policyholder's personal stake in the litigation so slight that the exercise of
jurisdiction did not offend due process.
Page 444 U. S. 325
New York has continued to adhere to Seider. [Footnote 10] New Hampshire has
Shaffer v. Heitner, 433 U. S. 186 (1977). 433 U.S. 902 (1977). followed Seider if the defendant resides in a Seider jurisdiction, [Footnote 11] but
not in other cases. [Footnote 12] Minnesota is the only
On remand, the Minnesota Supreme Court held that the assertion of quasi in rem
jurisdiction through garnishment of an insurer's obligation to an insured complied with Page 444 U. S. 327
the due process standards enunciated in Shaffer. 272 N.W.2d 888 (1978) (Savchuk
II). The court found that the garnishment statute differed from the Delaware stock other State that has adopted Seider-type jurisdiction. [Footnote 13] The Second
sequestration procedure held unconstitutional in Shaffer because the garnished Circuit recently reaffirmed its conclusion that Seider does not violate due process
property was intimately related to the litigation and the garnishment procedure after reconsidering the doctrine in light of Shaffer v. Heitner. O'Conner v. Lee-Hy
paralleled the asserted state interest in "facilitating recoveries for resident plaintiffs." Paving Corp., 579 F.2d 194, cert. denied, 439 U. S. 1034 (1978).
272 N.W.2d at 891. [Footnote 8] This appeal followed.
III
II
CONFLICT OF LAWS 3D 1/08-09 Page 94 of 97 Atty. Jose A. Bernas
In Shaffer v. Heitner, we held that "all assertions of state court jurisdiction must be Nor are there significant contacts between the litigation and the forum. The
evaluated according to the standards set forth in International Shoe and its progeny." Minnesota Supreme Court was of the view that the insurance policy was so
433 U.S. at 433 U. S. 212. That is, a State may exercise jurisdiction over an absent important to the litigation that it provided contacts sufficient to satisfy due process.
defendant only if the defendant has [Footnote 15] The insurance policy is not the subject matter of the case, however,
nor is it related to the operative facts of the negligence action. The contractual
"certain minimum contacts with [the forum] such that the maintenance of the suit does arrangements between the defendant and the insurer pertain only to the conduct,
not offend 'traditional notions' of fair play and substantial justice." not the substance, of the litigation, and accordingly do not affect the court's
International Shoe Co. v. Washington, 326 U. S. 310, 326 U. S. 316 (1945). In jurisdiction unless they demonstrate ties between the defendant and the forum.
determining whether a particular exercise of state court jurisdiction is consistent with In fact, the fictitious presence of the insurer's obligation in Minnesota does not,
due process, the inquiry must focus on "the relationship among the defendant, the without more, provide a basis for concluding that there is any contact in the
forum, and the litigation." Shaffer v. Heitner, supra, at 433 U. S. 204. International Shoe sense
It is conceded that Rush has never had any contacts with Minnesota, and that the Page 444 U. S. 330
auto accident that is the subject of
between Minnesota and the insured. To say that "a debt follows the debtor" is
Page 444 U. S. 328 simply to say that intangible property has no actual situs, and a debt may be sued
this action occurred in Indiana and also had no connection to Minnesota. The only on wherever there is jurisdiction over the debtor. State Farm is "found," in the sense
affiliating circumstance offered to show a relationship among Rush, Minnesota, and of doing business, in all 50 States and the District of Columbia. Under appellee's
this lawsuit is that Rush's insurance company does business in the State. Seider theory, the "debt" owed to Rush would be "present" in each of those jurisdictions
constructed an ingenious jurisdictional theory to permit a State to command a simultaneously. It is apparent that such a "contact" can have no jurisdictional
defendant to appear in its courts on the basis of this factor alone. State Farm's significance.
contractual obligation to defend and indemnify Rush in connection with liability claims An alternative approach for finding minimum contacts in Seider-type cases, referred
is treated as a debt owed by State Farm to Rush. The legal fiction that assigns a situs to with approval by the Minnesota Supreme Court, [Footnote 16] is to attribute the
to a debt, for garnishment purposes, wherever the debtor is found is combined with insurer's forum contacts to the defendant by treating the attachment procedure as
the legal fiction that a corporation is "present," for jurisdictional purposes, wherever it the functional equivalent of a direct action against the insurer. This approach views
does business to yield the conclusion that the obligation to defend and indemnify is Seider jurisdiction as fair both to the insurer, whose forum contacts would support in
located in the forum for purposes of the garnishment statute. The fictional presence of personam jurisdiction even for an unrelated cause of action, and to the "nominal
the policy obligation is deemed to give the State the power to determine the defendant." Because liability is limited to the policy amount, the defendant incurs no
policyholder's liability for the out-of-state accident. [Footnote 14] personal liability, [Footnote 17] and the judgment is satisfied from the policy
We held in Shaffer that the mere presence of property in a State does not establish a proceeds which are not available to the insured for any purpose other than paying
sufficient relationship between the owner of the property and the State to support the accident claims, the insured is said to have such a slight stake in the litigation as a
exercise of jurisdiction over an unrelated cause of action. The ownership of property practical matter that it is not unfair to make him a "nominal defendant" in order to
in the State is a contact between the defendant and the forum, and it may suggest the obtain jurisdiction over the insurance company.
presence of other ties. 433 U.S. at 433 U. S. 209. Jurisdiction is lacking, however, Seider actions are not equivalent to direct actions, however. [Footnote 18] The
unless there are sufficient contacts to satisfy the fairness standard of International State's ability to exert its power over the "nominal
Shoe.
Page 444 U. S. 331
Here, the fact that the defendant's insurer does business in the forum State suggests
no further contacts between the defendant and the forum, and the record supplies no defendant" is analytically prerequisite to the insurer's entry into the case as a
evidence of any. State Farm's decision to do business in Minnesota garnishee. If the Constitution forbids the assertion of jurisdiction over the insured
based on the policy, then there is no conceptual basis for bringing the "garnishee"
Page 444 U. S. 329 into the action. Because the party with forum contacts can only be reached through
was completely adventitious as far as Rush was concerned. He had no control over the out-of-state party, the question of jurisdiction over the nonresident cannot be
that decision, and it is unlikely that he would have expected that, by buying insurance ignored. [Footnote 19] Moreover, the assumption that the defendant has no real
in Indiana, he had subjected himself to suit in any State to which a potential future stake in the litigation is far from self-evident. [Footnote 20]
plaintiff might decide to move. In short, it cannot be said that the defendant engaged The Minnesota court also attempted to attribute State Farm's contacts to Rush by
in any purposeful activity related to the forum that would make the exercise of considering the "defending parties" together and aggregating their forum contacts in
jurisdiction fair, just, or reasonable, see Kulko v. California Superior Court, 436 U. S. determining whether it had jurisdiction. [Footnote 21] The result was the
84, 436 U. S. 93-94 (1978); Hanson v. Denckla, 357 U. S. 235, 357 U. S. 253 (1958),
merely because his insurer does business there. Page 444 U. S. 332
Page 444 U. S. 333 • It seems to me that the possible impact of a default judgment on the reputation
of an individual, see ante at 444 U. S. 331, n. 20, who has no contacts whatever
Due Process Clause with the forum State is far too remote to affect the analysis of the constitutional
"does not contemplate that a state may make binding a judgment . . . against an issue in this case.
individual or corporate defendant with which the state has no contacts, ties, or
relations."
International Shoe Co. v. Washington, 326 U.S. at 326 U. S. 319. The judgment of the
Minnesota Supreme Court is, therefore,
Reversed.
[For dissenting opinion of MR. JUSTICE BRENNAN, see ante p. 444 U. S. 299.]
MR. JUSTICE STEVENS, J., dissenting.
As the Court notes, appellant Rush had no contact with Minnesota that would support
personal jurisdiction over him in that State. Ante at 444 U. S. 322. Moreover, Shaffer
v. Heitner, 433 U. S. 186, precludes the assertion of quasi in rem jurisdiction over his
property in that forum if the intangible property attached is unrelated to the action. It
does not follow, however, that the plaintiff may not obtain quasi in rem jurisdiction
over appellant's insurance policy, since his carrier does business in Minnesota and
since it has also specifically contracted in the policy attached to defend the very
litigation that plaintiff has instituted in Minnesota.
In this kind of case, the Minnesota statute authorizing jurisdiction is correctly