
USCA1 Opinion

	




          July 18, 1994     UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                     ____________          No. 93-2179                          VIMAR SEGUROS Y REASEGUROS, S.A.,                               Plaintiffs, Appellants,                                          v.                          M/V SKY REEFER, HER ENGINES, ETC.,                               AND M.H. MARITIMA, S.A.,                                Defendants, Appellees.                                     ____________                                     ERRATA SHEET               The opinion of this court issued on July 7, 1994, is amended          as follows:               On page 8, first full paragraph, line 1:  Replace "Moveover"          with "Moreover."                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2179                          VIMAR SEGUROS Y REASEGUROS, S.A.,                               Plaintiffs, Appellants,                                          v.                          M/V SKY REEFER, HER ENGINES, ETC.,                               AND M.H. MARITIMA, S.A.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Breyer*, Chief Judge,                                          ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Stanley  McDermott, III with whom Sharyn Bernstein,  Varet & Fink,            _______________________           ________________   _____________        P.C., Alexander Peltz, and  Peltz Walker & Dubinsky were  on brief for        ____  _______________       _______________________        appellants.            John J. Finn with  whom Thomas H. Walsh, Jr., Jeffrey S. King, and            ____________            ____________________  _______________        Bingham, Dana & Gould were on brief for appellees.        _____________________                                 ____________________                                     July 7, 1994                                 ____________________        ____________________        *Chief Judge Stephen Breyer heard oral argument in this matter but did        not  participate  in  the drafting  or  the  issuance  of the  panel's        opinion.   The  remaining two panelists  therefore issue  this opinion        pursuant to 28 U.S.C.   46(d).                      BOWNES, Senior Circuit Judge.   This appeal asks us                      BOWNES, Senior Circuit Judge.                              ____________________            to  decide whether a foreign arbitration clause in a maritime            bill of lading governed by the  Carriage of Goods at Sea Act,            46  U.S.C.    1300  et seq.  (COGSA),  is invalid  under that                                __ ___            statute, or  whether such a  clause is enforceable  under the            Federal Arbitration Act,  9 U.S.C.    1  et seq.  (FAA).   We                                                     __ ___            conclude  that the  FAA  controls, and  that the  arbitration            clause is  valid.   Accordingly,  the order  of the  district            court  staying this  action pending  arbitration in  Tokyo is            affirmed.                                          I.                                          I.                                      BACKGROUND                                      BACKGROUND                                      __________                      Plaintiff-appellant   Bacchus   Associates   is   a            wholesale fruit  distributor in the Northeast  United States.            Bacchus was  the owner of  a shipment  of oranges  travelling            from  Agadir,  Morocco  to  New  Bedford,  Massachusetts,  in            February  1991 aboard the SKY REEFER,1 a vessel owned by M.H.            Maritima,  S.A.   Maritima had  time-chartered the  vessel to            Honma Senpaku Co.,  Ltd., who  in turn  time-chartered it  to            Nichiro Corp.   Bacchus  entered into a  voyage charter  with            Nichiro for the February 1991 voyage.                                            ____________________            1.  The subrogated underwriter of the oranges,  Vimar Seguros            Y Reaseguros,  is also a plaintiff-appellant  in this action.            Hereafter,   references  to   Bacchus  include   Vimar  where            applicable.                                         -2-                                          2                      The  oranges were  shipped under  a bill  of lading            issued in Morocco by Nichiro.  The bill of lading constitutes            the contract  of carriage between  Bacchus and Maritima.   En            route to New Bedford, numerous boxes of oranges were crushed.            Bacchus filed an  action in the United  States District Court            for the  District of Massachusetts,  in rem  against the  SKY                                                 __ ___            REEFER, and in personam  against Maritima, seeking to recover                        __ ________            approximately $1 million in damages.                      Maritima  moved  to  stay  the  action  and  compel            arbitration  in Tokyo  pursuant to  a clause  in the  bill of            lading:                      Governing Law and Arbitration                      Governing Law and Arbitration                      (1)   The   contract   evidenced  by   or                      contained in this Bill of Lading shall be                      governed by Japanese Law.                      (2) Any dispute arising from this Bill of                      Lading shall be  referred to  arbitration                      in   Tokyo   by   the    Tokyo   Maritime                      Arbitration  Commission  (TOMAC)  at  the                      Japan   Shipping   Exchange,   Inc.,   in                      accordance  with the  Rules of  TOMAC and                      any  agreement  thereto,  and  the  award                      given by  the arbitrators shall  be final                      and binding on both parties.             The district court held that the arbitration clause contained            in subsection (2) was enforceable, granted Maritima's  motion            for a  stay pending arbitration, and  certified the following            question  for interlocutory  appeal pursuant  to 28  U.S.C.              1292(b):   "[W]hether 46 U.S.C.    1303(8) [   3(8) of COGSA]            nullifies an arbitration clause contained in a bill of lading                                         -3-                                          3            governed by COGSA."  With this question in mind, we begin our            journey through unsettled statutory waters.                                         II.                                         II.                                      DISCUSSION                                      DISCUSSION                                      __________                      COGSA was passed in  1936 as the American enactment            of the Hague Rules,  and was part of an  international effort            to achieve uniformity  and simplicity in bills of lading used            in  foreign trade.  Union Ins. Soc'y  of Canton, Ltd. v. S.S.                                _________________________________    ____            Elikon,  642 F.2d 721,  723 (4th Cir. 1981).   COGSA was also            ______            intended    to    reduce    uncertainty     concerning    the            responsibilities     and     liabilities     of     carriers,            responsibilities and rights of  shippers, and liabilities  of            insurers.   State Establishment  for Agric. Prod.  Trading v.                        ______________________________________________            M/V  Wesermunde,  838  F.2d  1576, 1580  (11th  Cir.),  cert.            _______________                                         _____            denied, 488 U.S. 916 (1988) ("Wesermunde");  S.S. Elikon, 642            ______                        __________     ___________            F.2d  at 723; see generally Grant Gilmore & Charles L. Black,                          ___ _________            The Law of Admiralty   3-25 at 145 (2d ed. 1975).            ____________________                      COGSA applies  to "[e]very  bill of  lading  . .  .            which is evidence of  a contract for the carriage of goods by            sea to or from parts of the United States, in foreign trade .            . . .  "  46 U.S.C.   1300.   The parties agree that the bill            of  lading at  issue  here is  covered  by COGSA  ex  proprio                                                              __  _______            vigore, in  other words, as  a matter  of law.   The bill  of            ______            lading also contains the following provision:                                         -4-                                          4                      Local Law                      Local Law                      In case  this Bill  of Lading covers  the                      Goods moving to or from the U.S.A. and it                      shall be adjudged  that the Japanese  Law                      does not govern this Bill of Lading, then                      the  provisions of  the U.S.  Carriage of                      Goods at Sea Act 1936 shall govern before                      the Goods are  loaded on  and after  they                      are  discharged  from   the  vessel   and                      throughout the entire  time during  which                      the Goods  are in  the actual  custody of                      the carrier.            Bacchus argues  that the Tokyo arbitration  clause is invalid            under    3(8) of COGSA which prohibits the "lessening" of the            carrier's obligation as imposed by COGSA's other sections.2                       In Indussa Corp. v. S.S. Ranborg, 377 F.2d  200 (2d                         _____________    ____________            Cir. 1967)  (en  banc),  the Second  Circuit  held  that  all            foreign forum  selection clauses in bills  of lading governed            by COGSA  are necessarily invalid  under   3(8)  because they            tend  to lessen the  carrier's liability.   Id. at  204.  The                                                        ___            court reasoned as follows:                      From a practical  standpoint, to  require                      an American plaintiff to assert his claim                      only  in  a  distant  court  lessens  the                                            ____________________            2.  This provision provides as follows:                      Any  clause, covenant  or agreement  in a                      contract   of   carriage  relieving   the                      carrier  or the  ship from  liability for                      loss or  damage to or  in connection with                      the   goods,  arising   from  negligence,                      fault,   or  failure  in  the  duties  or                      obligations provided in this  section, or                      lessening  such liability  otherwise than                      as  provided in this  Act, shall  be null                      and void and of no effect.            46 U.S.C.   1303(8).                                         -5-                                          5                      liability    of    the   carrier    quite                      substantially,   particularly  when   the                      claim is  small.   Such a clause  puts "a                      high  hurdle" in  the  way  of  enforcing                      liability, and thus is an effective means                      for carriers to secure  settlements lower                      than  if  cargo  [sic]  could  sue  in  a                      convenient forum.            Id.  at 203.3  Moreover,  "[a] clause making  a claim triable            ___            only  in  a  foreign  court  would  almost  certainly  lessen            liability  if the  law which  the court  would apply  was not            [COGSA]."  Id.  Furthermore,                       ___                      [e]ven when the foreign court would apply                      [COGSA],  requiring  trial  abroad  might                                                          _____                      lessen  the   carrier's  liability  since                      there could be no assurance that it would                      apply [COGSA] in the same way as would an                      American tribunal subject to  the uniform                      control  of the Supreme Court . . . .  We                      think that Congress  meant to  invalidate                      any  contractual provision  in a  bill of                      lading  for a  shipment  to  or from  the                      United  States  that would  prevent cargo                      [sic] able to  obtain jurisdiction over a                      carrier in an American court  from having                      that court entertain  the suit and  apply                      the   substantive   rules  Congress   had                      prescribed.                                            ____________________            3.  The court also concluded  that COGSA, wherever it governs            a  bill  of lading,  requires  application  of American  law.            Indussa, 377 F.2d at 203; see generally Thomas J. Schoenbaum,            _______                   ___ _________            Admiralty  & Maritime Law    9-18 at 326-27  (Pra. ed. 1987).            _________________________            Bacchus contends  that the  Japanese choice-of-law  clause in            its bill of lading, in addition to the arbitration clause, is            null and void under   3(8) of COGSA, and, alternatively, that            the  "Local Law" clause in  the bill of  lading requires that            COGSA, and  not Japanese law, governs,  because COGSA applies            ex proprio vigore.   Although both of  these arguments appear            __ _______ ______            to  be  substantial, only  the  validity  of the  arbitration            clause is at issue on this interlocutory appeal.  In light of            our holding,  the choice-of-law question must  be decided, in            the first instance, by an arbitrator.                                         -6-                                          6            Id.  at  203-04 (emphasis  in  original)  (citations omitted)            ___            (footnote omitted).                      Since Indussa,   3(8) has been consistently used by                            _______            federal courts to invalidate forum selection clauses in bills            of lading governed by  COGSA.  See, e.g., Conklin  & Garrett,                                           ___  ____  ___________________            Ltd.  v. M/V Finnrose, 826 F.2d 1441, 1442-44 (5th Cir. 1987)            ____     ____________            (forum  selection clause  designating  Finland  invalid  even            where  bill of lading  provided for  application of  COGSA in            Finland);  Union Soc'y  of Canton,  Ltd., 642 F.2d  at 723-25                       _____________________________            (choice  of  forum  clause  requiring  litigation  in Germany            invalid  under   3(8)); cf. Fireman's Fund Amer. Ins. Cos. v.                                    ___ ______________________________            Puerto Rican  Forwarding Co., 492  F.2d 1294 (1st  Cir. 1974)            ____________________________            (distinguishing  Indussa and  upholding New  York City  forum                             _______            selection  clause).    Indussa  has  also  been  approved  by                                   _______            commentators.   See Gilmore &  Black, supra    3-25 at 145-46                            ___                   _____            n.23;  Schoenbaum, supra   9-18 at 327; Charles L. Black, The                               _____                                  ___            Bremen, COGSA and the Problem of Conflicting  Interpretation,            ____________________________________________________________            6  Vand. J.  Trans. L.  365,  368-69 (1973).   But  see Note,                                                           ___  ___            Kenneth M. Klemm, Forum Selection in Maritime Bills of Lading                              ___________________________________________            Under COGSA,  12 Fordham  Int'l L.J. 459  (1989); Stephen  M.            ___________            Denning, Choice of  Forum Clauses  in Bills of  Lading, 2  J.                     _____________________________________________            Mar. L. & Com. 17 (Oct. 1970).                      While we need not fully  explore the issue, we note            that the  Supreme Court's recent decision  in Carnival Cruise                                                          _______________            Lines, Inc. v. Shute, 499 U.S. 585 (1991), in which the Court            ___________    _____                                         -7-                                          7            held that the Limitation of Vessel  Owners' Liability Act did            not  invalidate forum selection  agreements, casts some doubt            upon Indussa's continuing viability.   See Fabrica De Tejidos                 _________                         ___ __________________            La  Bellota S.A.  v. M/V Mar,  799 F.  Supp. 546,  560-61 (D.            ________________     _______            Virgin  Islands 1992);  see also  Patrick J.  Borchers, Forum                                    ___ ____                        _____            Selection  Agreements in  the Federal  Courts After  Carnival            _____________________________________________________________            Cruise:   A Proposal  for Congressional  Reform, 67 Wash.  L.            _______________________________________________            Rev.  55,  77 (1992)  (Carnival  Cruise  implicitly overruled                                   ________________            Indussa and its progeny).  But see Underwriters at Lloyd's of            _______                    ___ ___ __________________________            London v. M/V Steir,  773 F. Supp. 523, 526-27  (D.P.R. 1991)            ______    _________            (invalidating forum  selection clause under    3(8) of COGSA,            holding that Indussa survives Carnival Cruise).                         _______          _______________                      Moreover, in Fireman's  Fund we questioned  whether                                   _______________            Indussa  even survived  the Supreme  Court's decision  in The            _______                                                   ___            Bremen v. Zapata  Off-Shore Co., 407  U.S. 1 (1972).   In The            ______    _____________________                           ___            Bremen, the Supreme Court  enforced a foreign forum selection            ______            clause in a maritime contract not covered by COGSA.  In doing            so,   the   Court  focused   on   whether   the  clause   was            "unreasonable" under the circumstances.  The Bremen, 407 U.S.                                                     __________            at 10.  We remarked as follows:                      Although    the    Supreme   Court    has                      acknowledged the Indussa decision and has                                       _______                      not  formally rejected it, see The Bremen                                                 ___ __________                      v. Zapata Off-Shore Co.,  407 U.S. 1,  10                         ____________________                      n.11,  92  S.Ct.  1907,  32  L.Ed.2d  513                      (1972),  several  passages in  the Bremen                      opinion cast some doubt on the underlying                      rationale of  Indussa.   See,  e.g.,  407                                    _______    ___   ____                      U.S.   at  9,  92  S.Ct.  at  1912  ("The                      expansion   of   American  business   and                                         -8-                                          8                      industry  will  hardly be  encouraged if,                      notwithstanding   solemn  contracts,   we                      insist  on a  parochial concept  that all                      disputes  must be resolved under our laws                      and in our courts.") . . . .            Fireman's Fund, 492 F.2d at 1296 n.2.  Because The  Bremen is            ______________                                 ___________            not a COGSA case, however,  it is easily distinguishable from            Indussa and its progeny.  See S.S. Elikon, 642 F.2d at 724-25            _______                   ___ ___________            (holding that The  Bremen did not involve COGSA and therefore                          ___________            did not disturb Indussa).                            _______                      Notwithstanding  the  arguably tremulous  ground on            which Indussa and its progeny currently  sit, we will assume,                  _______            arguendo, that, for the reasons set forth in Indussa, foreign            ________                                     _______            forum selection clauses are invalid under   3(8) of COGSA.                      The other  statute implicated  in this case  is the            FAA.  Section 2 of that act provides:                      A  written  provision  in   any  maritime                      transaction   .   .   .   to   settle  by                      arbitration   a   controversy  thereafter                      arising out of such  contract . . . shall                      be  valid, irrevocable,  and enforceable,                      save upon such grounds as exist at law or                      in  equity  for  the  revocation  of  any                      contract.            9 U.S.C.    2.   "[B]ills  of lading  of water  carriers" are            explicitly  included as  "maritime  transactions"  under  the            statute.   9  U.S.C.    1.   Furthermore, the FAA  requires a            federal district  court, on  the application  of  one of  the            parties,  to stay  litigation and  grant an  order compelling            arbitration of  any issue referable to  arbitration under the            agreement.  Id.    3, 4.                        ___                                         -9-                                          9                      Where there  is an agreement to  arbitrate, the FAA            reflects  a strong,  well-established, and  widely recognized            federal policy  in favor of  arbitration.   Shearson/American                                                        _________________            Express,  Inc.   v.  McMahon,  482  U.S.   220,  226  (1987);            ______________       _______            Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473            _______________________    _____________________________            U.S. 614,  625 (1985);  Securities Indus. Ass'n  v. Connolly,                                    _______________________     ________            883 F.2d  1114, 1118-19  (1st Cir.  1989), cert. denied,  495                                                       _____ ______            U.S. 956 (1990).   Arbitration  agreements are  unenforceable            under    2  of the  FAA  only where  the agreement  would  be            revocable  under  state contract  law.    Southland Corp.  v.                                                      _______________            Keating,  465 U.S.  1, 11  (1984)  (party may  assert general            _______            contract  defenses,  such  as  fraud  and  duress,  to  avoid            enforcement of arbitration agreement); McAllister Bros., Inc.                                                   ______________________            v. A  & S Transp.  Corp., 621  F.2d 519, 524  (2d Cir.  1980)               _____________________            (same).4                      Although this  court  has never  decided whether  a            foreign  arbitration clause in  a bill of  lading governed by            COGSA  is invalid under    3(8) of that  statute, courts that                                            ____________________            4.  Bacchus argued  below  that  the  bill of  lading  was  a            contract  of adhesion,  and that  the arbitration  clause was            therefore unenforceable.   This  defense was rejected  by the            district  court,  and that  ruling is  not  before us  on the            present appeal.   We recognize, however,  that maritime bills            of  lading have been viewed  as contracts of  adhesion.  See,                                                                     ___            e.g., Organes  Enters., Inc. v. M/V Khalij Frost, 1989 A.M.C.            ____  ______________________    ________________            1460, 1465-66 (S.D.N.Y. 1989);  Pacific Lumber & Shipping Co.                                            _____________________________            v. Star Shipping  A/S, 464  F. Supp. 1314,  1315 (W.D.  Wash.               __________________            1979).  Accordingly, if the adhesion issue had been a subject            of  this   interlocutory  appeal,  it   would  warrant  close            scrutiny.                                         -10-                                          10            have  reached the question are divided.  A handful of courts,            including  the Eleventh Circuit,  have employed the reasoning            articulated  in  Indussa  to invalidate  foreign  arbitration                             _______            clauses.   See,  e.g., Wesermunde, 838  F.2d at  1580-82; M/V                       ___   ____  __________                         ___            Khalij Frost,  1989 A.M.C. at  1462-66; Siderius v.  M.V. Ida            ____________                            ________     ________            Prima,  613  F.  Supp.  916,  920-21  (S.D.N.Y.  1985);  Star            _____                                                    ____            Shipping A/S, 464  F. Supp.  at 1314-15; see  also Gilmore  &            ____________                             ___  ____            Black, supra,   3-25 at 146 n.23; Schoenbaum, supra   9-19 at                   _____                                  _____            329.                      In  Wesermunde,  the Eleventh  Circuit  declined to                          __________            enforce a  foreign arbitration agreement contained  in a bill            of lading governed by  COGSA.  Relying on Indussa,  the court                                                      _______            explained as follows:                      While we do not believe  that arbitration                      in and of itself is per  se  violative of                                          ___  __                      COGSA's  provisions, especially  in light                      of Congress' encouragement of arbitration                      by  its enactment of the Arbitration Act,                      9 U.S.C.     1-14  (1970) the  court does                      believe   that   a  provision   requiring                      arbitration in a foreign country that has                                       _______                      no connection with either the performance                      of  the  bill of  lading contract  or the                      making of  the bill of lading contract is                      a  provision  that  would  conflict  with                      COGSA's general purpose  of not  allowing                      carriers   to   lessen   their  risk   of                      liability.            Wesermunde, 838 F.2d at 1581 (footnote omitted).  Some courts            __________            have gone one step  further, holding that foreign arbitration            clauses in bills  of lading  are per se  invalid under  COGSA                                             ___ __            because  "[t]he  considerations   [stated  in  Indussa]   are                                                           _______                                         -11-                                          11            substantially similar  where the bill of  lading requires the            consignee  to arbitrate in a foreign country."  Siderius, 613                                                            ________            F. Supp. at  920; accord  Khalij Frost, 1989  A.M.C. at  1462                              ______  ____________            (Indussa rationale "appl[ies] with equal force in the case of             _______            a foreign arbitration clause in a bill of lading").                      On  the other  side of  the coin,  numerous federal            courts have  upheld foreign  arbitration clauses in  bills of            lading  subject to COGSA.  See, e.g., Nissho Iwai Amer. Corp.                                       ___  ____  _______________________            v. M/V Sea  Bridge, 1991  A.M.C. 2070 (D.  Md. 1991);  Citrus               _______________                                     ______            Mktg.  Bd. v.  M/V Ecuadorian  Reefer, 754  F. Supp.  229 (D.            __________     ______________________            Mass. 1990); Travelers Indem., Co. v. M/V Mediterranean Star,                         _____________________    ______________________            1988 A.M.C.  2483 (S.D.N.Y. 1988);  Mid South Feeds,  Inc. v.                                                ______________________            M/V Aqua Marine, 1988 A.M.C. 437 (S.D. Ga. 1986); Midland Tar            _______________                                   ___________            Distillers,  Inc.  v. M/T  Lotos,  362  F. Supp.  1311,  1315            _________________     __________            (S.D.N.Y. 1973);  Mitsubishi Shoji Kaisha Ltd.  v. MS Galini,                              ____________________________     _________            323 F. Supp.  79, 83-84 (S.D. Tex.  1971); Kurt Orban  Co. v.                                                       _______________            S/S Clymenia, 318 F. Supp. 1387, 1390 (S.D.N.Y. 1970).            ____________                      We  join  those courts  upholding  the validity  of            foreign  arbitration clauses  in bills  of lading  subject to            COGSA.  In reaching this result, we are  guided by our belief            that  the  FAA  alone  governs the  validity  of  arbitration            clauses, both foreign and domestic,  and consequently removes            them from the grasp of COGSA.5                                            ____________________            5.  We recognize,  however, that absent the  FAA, COGSA might            operate to  nullify foreign  arbitration clauses in  bills of            lading.                                         -12-                                          12                      We   begin   with    two   canons   of    statutory            interpretation.   First,  a later  enacted statute  generally            limits  the scope  of  an earlier  statute  if the  two  laws            conflict.  Davis  v. United  States, 716 F.2d  418, 428  (7th                       _____     ______________            Cir.  1983); Tennessee  Gas  Pipeline Co.  v. Federal  Energy                         ____________________________     _______________            Regulatory  Comm'n, 626  F.2d  1020, 1022  (D.C. Cir.  1980);            __________________            Indussa, 377 F.2d  at 204  n.4;6 see generally  2B Norman  J.            _______                          ___ _________                                            ____________________            6.  Footnote four of Indussa states:                                 _______                      Our ruling does not touch the question of                      arbitration  clauses  in bills  of lading                      which  require  this to  be  held abroad.                      The  validity  of  such  a  clause  in  a                      charter  party, or  in a  bill of  lading                      effectively  incorporating such  a clause                      in a charter  party, have been frequently                      sustained.       Although   the   Federal                      Arbitration Act adopted in 1925 validated                      a written arbitration  provision "in  any                      maritime transaction,"    2, and  defined                      that phrase to  include "bills of  lading                      of  water carriers,"   1.  COGSA, enacted                      in 1936, made  no reference to that  form                      of   procedure.     If   there   be   any                                          _____________________                      inconsistency   between  the   two  acts,                      _________________________________________                      presumably  the   Arbitration  Act  would                      _________________________________________                      prevail by virtue  of its reenactment  as                      _________________________________________                      positive law in 1947.                      ____________________            Indussa, 377  F.2d at  204 n.4 (citations  omitted) (emphasis            _______            added).   Although a later  Second Circuit opinion  sought to            narrow  the scope of this dictum, see Aaacon Auto Transp. Co.                                              ___ _______________________            v. State Farm Mut. Auto Ins. Co., 537 F.2d 648,  655 (2d Cir.               _____________________________            1976) (explaining that footnote four of Indussa was concerned                                                    _______            "primarily  . . .  upon those commercial  situations in which            the economic strength and bargaining power of the parties  is            roughly equal"),  courts have  continued to rely  on footnote            four  in enforcing  foreign arbitration  clauses in  bills of            lading  governed by COGSA.   See Fakieh Poultry  Farms v. M/V                                         ___ _____________________    ___            Mulheim, No. 85 Civ. 26577, slip op. at 2 (S.D.N.Y.  Oct. 24,            _______            1986); M/V  Mediterranean Star,  1988 A.M.C. at  2484-85; see                   _______________________                            ___            also Kaystone Chem., Inc. v. Bow-Sun, 1989 A.M.C. 2976, 2981-            ____ ____________________    _______                                         -13-                                          13            Singer, Sutherland Statutory Construction   51.03 at 141 (5th                    _________________________________            ed. 1992).   Second, where two  statutes conflict, regardless            of the priority of enactment, the specific statute ordinarily            controls  the  general.   See  Watson v.  Fraternal  Order of                                      ___  ______     ___________________            Eagles, 915 F.2d 235,  240 (6th Cir. 1990); see  generally 2B            ______                                      ___  _________            Sutherland Statutory Construction,   51.05 at 174.            _________________________________                      With  respect to the former  canon, the FAA must be            given priority over COGSA in  light of the FAA's  reenactment            in 1947, eleven years after COGSA was passed.  Similarly, the            latter  canon suggests that the FAA be given effect.  Section            3(8) of  COGSA, which voids  any clause  in a bill  of lading            that "lessens" the carrier's liability, makes no reference to            arbitration, or  for that  matter, forum  selection clauses.7            Conversely,  the  FAA   specifically  validates   arbitration            clauses  contained in maritime bills of lading.  See 9 U.S.C.                                                             ___               1, 2.                                            ____________________            82 (S.D.N.Y. 1989) (stating  that Indussa footnote "probably"                                              _______            requires enforcement of  foreign arbitration clause  in COGSA            bill  of lading).  But  see Siderius, 613  F. Supp. at 920-21                               ___  ___ ________            (holding Aaacon  substantially undercuts scope of the Indussa                     ______                                       _______            footnote);  Khalij  Frost,  1989  A.M.C.  at 1463-64  (same).                        _____________            While  we  agree  with  the rule  of  statutory  construction            expressed  in the footnote, we take no position on the effect            of Aaacon on that note.               ______            7.  In fact,  up until Indussa, the  Second Circuit regularly                                   _______            enforced foreign  forum selection clauses in  bills of lading            governed  by COGSA.   See, e.g., William  H. Muller  & Co. v.                                  ___  ____  _________________________            Swedish Amer.  Line  Ltd.,  224  F.2d 806  (2d  Cir.),  cert.            _________________________                               _____            denied, 350 U.S. 903  (1955); Cerro de Pasco Copper  Corp. v.            ______                        ____________________________            Knut Knutsen, O.A.S., 187 F.2d 990 (2d Cir. 1951).            ____________________                                         -14-                                          14                      Next,  and  perhaps  of  paramount  importance,  we            believe  that the strong  federal policy favoring arbitration            supports the primacy of the  FAA over COGSA where arbitration            agreements  are concerned.    See Ecuadorian  Reefer, 754  F.                                          ___ __________________            Supp. at 233-34.  The  existence of this policy distinguishes            the present  case from foreign choice-of-forum  cases because            in those cases "there was no compelling congressional mandate            in  favor of giving  effect to agreements  to litigate before            foreign tribunals."  MS Galini, 323 F. Supp. at 83.                                 _________                      Furthermore, American courts'  mistrust of  foreign            courts,  a driving force  in the Indussa  court's decision to                                             _______            invalidate   foreign   choice-of-forum    clauses,   is    an            inappropriate  consideration in  the context  of arbitration.            See  Mitsubishi Motors, 473 U.S. at 626-27 (We are "well past            ___  _________________            the time when judicial suspicion of . . . arbitration  and of            the   competence  of   arbitral   tribunals   inhibited   the            development of arbitration as an alternative means of dispute            resolution."); Connolly, 883 F.2d  at 1119 ("[C]ourts must be                           ________            on  guard  for artifices  in which  the ancient  suspicion of            arbitration  might reappear.").   Finally,  unlike a  foreign            forum selection  clause, an  agreement to arbitrate  does not            deprive  a  federal  court   of  its  jurisdiction  over  the            underlying dispute.  S/S  Clymenia, 318 F. Supp. at  1390; MS                                 _____________                         __            Galini, 323 F. Supp. at 83.            ______                                         -15-                                          15                      For  the  foregoing  reasons,  the   order  of  the            district court is Affirmed.                              Affirmed.                              ________                                         -16-                                          16
