LETTER TO THE EDITOR
This letter appeared in Around the Bar (the magazine of the Baton Rouge Bar Association, Baton Rouge, Louisiana), March 2012.
This item may be cited as M. R. Franks, Letter to the Editor, Around the Bar, Baton Rouge Bar Association, March 2012, at 3.
Copyright © 2012, M. R. Franks
I appreciated Dena M. Sonbol and Rebecca H. Blockís article on forum selection clauses in the January  issue. A few points might be expanded upon.
In Carnival Cruise Lines v. Shute, 499 U.S. 585, the Supreme Court held that the courts of the State of Washington are obliged to apply a forum-selection clause in favor of Florida. Granted, that was a case in admiralty, but the logic should remain the same.
Forum selection clauses are reprehensible only where used by a seller of consumer goods or services to require a dissatisfied customer to sue in a distant state or country. The Fourth Circuit got it right in Calzavara v. Biehl & Co., 181 So.2d 809, when they refused to enforce a forum-selection clause in an adhesion contract of passage that required a Louisiana resident to file any suit on the contract in Italy. The court found the provision "palpably unreasonable."
On the other hand, I once was employed by a law firm in London. I was assigned to work on a case where a Norwegian shipowner sent a huge oil tanker to a Singaporean shipyard to be stripped down to the hull and rebuilt as a pipe-laying vessel. The alleged breach involved an amount in excess of one billion dollars. The parties had agreed by armís-length contract that any disputes be resolved in England. This was reasonable: (a) the Norwegian shipowner didnít want to risk being sued in Singapore; (b) the Singaporean shipyard likewise didnít wish to risk suit in Norway; (c) both parties felt the courts of England to be among the fairest in the world; (d) there is a massive body of maritime case law in England going back several centuries; (e) in a city as large as London, there is no shortage of law firms with the expertise to handle such a case.
Had one of the parties been amenable to service in Louisiana, it would have been a travesty to apply CCP article 44 to allow suit in Louisiana. Particularly is this true where the contract was made outside of Louisiana. Article I, Section 10 of our federal constitution provides that "No state shall pass any Law impairing the Obligation of Contracts."
Article 44 needs to be amended to allow forum-selection clauses in non-adhesion contracts negotiated at armís length. In the meantime, parties can always include in their contracts a clause specifying arbitration in a jurisdiction perceived to be fair, convenient and impartial. Thereís not much the Third Circuit can do about that.
Maurice R. Franks
Professor of Law
Southern University Law Center
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