Originially from: World Arbitration and Mediation Report (WAMR) 2000 Vol. 11, No. 7

Sky Reefer and COGSA 2000
by
CAMILO CARDOZO
Attorney-At-Law, Admitted to the Colombia Bar Association,
Licenciado, University of Los Andes, LL.M. (Admiralty) (With
Distinction), Tulane University School of Law
U.S. court have been far from clear or uniform in their treatment of the
enforceability of foreign forum-selection and foreign arbitration clauses in bills of
lading.1 Prior to Sky Reefer,2 courts generally tended to invalidate these types of
clauses on grounds that they contradicted COGSA’s statutory prohibition of
agreements that could potentially lessen carrier liability. However, with the Sky
Reefer decision, the U.S. Supreme Court took a different position and held that
foreign arbitration clauses contained in maritime bills of lading did not limit the
liability of carriers in a manner prohibited by COGSA. Such clauses, therefore,
could be enforced by U.S. courts.3
The decision in Sky Reefer has been both criticized and applauded by
commentators and members of the maritime industry. One of the most significant
criticisms of Sky Reefer comes from the Maritime Law Association (MLA), as
reflected in its proposal, supported by the shipping industry, to include in
COGSA’s 2000 revision a provision that would make any foreign forum-selection
or arbitration clause unenforceable under the act. Accordingly, this article
provides background information and relevant case history to Sky Reefer; an
analysis of the practical implications of the U.S. Supreme Court’s decision; and
an assessment of the MLA’s proposed reform of COGSA, including an evaluation
of several possible consequences of its enactment by Congress.