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ODITA v. ELDER DEMPSTER LINES

May 7, 1968

Francis ODITA, Plaintiff,
v.
ELDER DEMPSTER LINES, LTD. and the S. S. DALLA, her engines, etc., Defendants


Herlands, District Judge.


The opinion of the court was delivered by: HERLANDS

HERLANDS, District Judge:

Defendants move for an order of this Court declining jurisdiction of the present action and dismissing the complaint on the ground of forum non conveniens.

 Plaintiff commenced this action on September 25, 1967 to recover money damages for personal injuries allegedly sustained sometime in February, 1967 while a member of the crew of the m/v Dalla. Plaintiff alleges that the initial injury occurred in the Port of Hull, England when, while securing the hatch, he slipped on certain cargo which had been spilled on the deck and hatch coaming. According to plaintiff, the injuries were aggravated when defendants required him to continue working for a period of several months following the accident.

 Plaintiff is a Nigerian citizen, who signed shipping articles to serve as a member of the crew of m/v Dalla in January, 1967 in Lagos, Nigeria. At present, he is temporarily in the United States on a medical parole issued by the Immigration and Naturalization Service. Defendant Elder Dempster Lines, Ltd. is a British corporation, which is the owner of the m/v Dalla, a British flag vessel duly registered under the laws of Great Britain.

 Defendants urge the Court to decline jurisdiction on the grounds: (1) that plaintiff is specifically suing under the substantive laws of Great Britain; (2) that the accident occurred in Great Britain; (3) that none of the possible witnesses to the tort - both crew and longshoremen - reside in the United States and are, therefore, not subject to the subpoena power of this Court; (4) that important witnesses - such as the doctor who initially treated the plaintiff, the master and chief officer of the vessel - are British citizens; and (5) that plaintiff's sole connection with the United States is "the fortuitous circumstance that plaintiff left the vessel in the Port of New York in order to be provided with medical attention and hospitalization at Long Island College Hospital in Brooklyn." (Affidavit of David P. H. Watson, sworn to January 26, 1968, p. 7.)

 On the other hand, plaintiff asserts that jurisdiction should be retained on the grounds: (1) that important medical testimony - that of the treating physicians - is available only in New York; (2) that the lack of a contingent fee system in Great Britain renders it impossible for this plaintiff to obtain adequate legal representation in that country; (3) that the current civil war in Nigeria makes it impossible for this case to be tried in that country; and (4) that defendants have not specified what witnesses would be inconvenienced and the relevancy of their testimony if this case were tried in the United States.

 United States District Courts have jurisdiction over admiralty controversies between foreigners, which arise outside the United States. U.S.Const. art. III, § 2; The Belgenland, 114 U.S. 355, 365, 5 S. Ct. 860, 29 L. Ed. 152 (1885); Canada Malting Co. v. Paterson Steamships Ltd., 285 U.S. 413, 420, 52 S. Ct. 413, 76 L. Ed. 837 (1932); Lauritzen v. Larsen, 345 U.S. 571, 575, 589-590, 73 S. Ct. 921, 97 L. Ed. 1254 (1953); see 1 Benedict, Admiralty §§ 82-84 (6th ed. 1940). However, this Court while sitting in admiralty may, in its discretion, decline to retain jurisdiction over an allforeign cause of action. Canada Malting Co. v. Paterson Steamships, Ltd., supra, 285 U.S. at 421, 52 S. Ct. 413; 1 Norris, The Law of Seamen § 26 (2d ed. 1962); 1 Benedict, Admiralty § 84 (6th ed. 1940).

 Upon a careful weighing of all competing desiderata, this Court holds that there are insufficient "relevant contacts" with the United States to justify retaining jurisdiction over this all-foreign case, which can be more conveniently tried in Great Britain. See, e.g., Garis v. Compania Maritima San Basilio, S.A., 261 F. Supp. 917 (S.D.N.Y.1966), aff'd, 386 F.2d 155 (2d Cir. 1967); Anastasiadis v. S.S. Little John, 346 F.2d 281 (5th Cir. 1965); Hatzoglou v. Asturias Shipping Co., S.A., 193 F. Supp. 195 (S.D.N.Y.1961).

 Neither the injury nor its alleged subsequent aggravation occurred in the United States. Plaintiff is suing specifically under British law. All of the witnesses to the accident are British and West Africans - none reside in the United States. Moreover, defendants have specified other British witnesses - e.g., the master and chief officer of the m/v Dalla and the initial treating physicians - who can provide valuable testimony on the issue of damages as well as liability.

 The observation of the Court of Appeals for the Second Circuit in Conte v. Flota Mercante Del Estado, 277 F.2d 664 (2d Cir. 1960), is apposite:

 
"It is prima facie undesirable that an over-burdened District Court should conduct a trial in a personal injury action between foreigners, with all the evidence on the issue of liability and much of the evidence on damages given in a foreign tongue by witnesses equally or more available in the foreign forum, and with reliance having to be placed on expert testimony as to the governing law * * *. Moreover, try as we may to apply the foreign law as it comes to us through the lips of the experts, there is an inevitable hazard that, in those areas, perhaps interstitial but far from inconsequential, where we have no clear guides, our labors, moulded by our own habits of mind as they necessarily must be, may produce a result whose conformity with that of the foreign court may be greater in theory than it is in fact." (277 F.2d at 667.)

 The Court is aware of the circumstance that the testimony of the treating physicians in New York would be relevant on the issue of damages. This is the sole nexus between the instant litigation and the United States. However, defendants' counsel has agreed to depose these physicians "at any time plaintiff's attorney chooses to do so". (Reply Affidavit of David P. H. Watson, sworn to March 8, 1968, pp. 3-4). This aspect of the instant case is thus analogous to the factual situation in Conte v. Flota Mercante Del Estado, supra, where Judge Friendly commented at page 667: "The testimony of the New York surgeon and technician was not controversial and could easily have been taken by deposition."

 There is no persuasive reason for the Court to retain jurisdiction over the instant case. Accordingly, the Court in the exercise of its discretion declines to retain jurisdiction of this action and dismisses the complaint without prejudice on the ground that this district is not the proper forum while Great Britain is.

 Defendants have agreed to appear and defend this claim on the merits in either Great Britain or Nigeria and not to assert as a defense any claim that this action is barred by lapse of time or the statute of limitations. In addition, defendants have offered to bear the expenses of plaintiff's travel to Great Britain or Nigeria, in connection with the plaintiff's institution of an action in a court of competent jurisdiction in either of these countries. As previously ...


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