dissenting.
I cannot agree with the Court’s view that Clause 27 of the bill of lading, fixing Genoa, Italy, as the forum for legal proceedings in respect of loss or damage to the goods shipped, applies only to actions in personam, and not to actions in rem. The Court’s reading of the clause imputes to the parties the drawing of a distinction the purpose of which is .impossible to grasp. As this. Court said in Consumers Import Co. v. Kabushiki Kaisha Kawasaki Zosenjo, 320 U. S. 249, 253, in referring to an earlier case, “The Court' said that ‘To say that an owner is not liable, but that his vessel is liable, seems to us like talking in riddles.’ The riddle after more than half a century *185repeated to us in different context does not appear to us to have improved with age.”
Apart from this, however, I see.no justification for our not reaching the question of the validity of Clause 27 with respect to in personam actions, an issue which still remains in the case even on the Court’s view that the clause does not embrace in rem proceedings. ‘That question, of course, presents no constitutional issue which we should strive to avoid, but is only one of ordinary commercial admiralty law. It is the only question which led us to take this case for review. And the issue has been fully briefed and argued by the parties. To be sure, it is possible that this question is not of great importance to the litigants if the in rem action can in any case go forward in Texas. But the very fact that respondent chosé to institute and continue actions both in personam and in rem shows , that it was not content to rely solely on the vessel’s surety, and cautions against our now gratuitously treating the in personam,action as purely academic. Moreover, review by certiorari, as Chief Justice Hughes once put it, is “in the interest of the law, its appropriate exposition and enforcement, not in the mere Interest of the litigants.” *
Furthermore, I do- not think this can be called a case where the circumstances presently confronting us “were not manifest or fully apprehended at the time certiorari was granted.” See Ferguson v. Moore-McCormack Lines, Inc., 352 U. S. 521, 559 (separate opinion). The question of the construction of the clause, and that of its validity, were both fully discussed by the parties in their certiorari papers. Indeed, it was apparent on the surface of things that we might find ourselves in the very position we now are, since the Court of Appeals had itself found Clause 27 inapplicable to in rem proceedings and had then gone on *186to consider the validity of the clause as related to in personam actions.
Avoidance of decision now on a question which is obviously bound to recur seems to me to be both unsatisfactory and unsound judicial administration., The course which the Court has taken serves only to leave the lower federal courts in confusion and uncertainty and to make it necessary for us to mortgage our future and constantly mounting calendars with a question which we could and should decide today. As the Court has not spoken on that question it would be inappropriate for me to express my own view upon it.
S. Rep. No. 711, 75th Cong., 1st Sess., p. 39.