Vanderbilt Journal of Transnational Law


Harold G. Maier

First Page



In The Bremen v. Zapata Off-Shore Co., the Supreme Court upheld the selection of a London forum in a towage contract between a German firm and an American firm and dismissed a suit brought in a Florida federal district court whose jurisdiction was otherwise valid. In doing so, the Court stated the rule: "[Forum-selection clauses] are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be 'unreasonable' under the circumstances." The Court qualified the rule by indicating that to be enforceable such clauses must be actually bargained for and agreed to by the parties and that an unjust or arbitrary designation of forum would not be acceptable. This comment deals with three potential applications of the Zapata decision in order to indicate its implications for the enforceability of forum-selection clauses in American courts. The potential scope of Zapata's rule depends on, first, the source and scope of the Supreme Court's power to create and apply its rule for all admiralty and maritime cases; secondly, the extent to which the Court's decision creates supreme federal common law, making forum-selection clauses at least prima facie valid in all cases involving international contracts; and, thirdly, the extent to which the decision has validated forum-selection clauses in all cases, domestic or international, in which such contract provisions are sought to be enforced. In order to clarify the legal considerations involved in dealing with these problems, this comment begins with a brief survey of the authority for, and scope of, the power of the federal courts to fashion rules of federal common law.