decided: August 31, 1978.
ALCOA STEAMSHIP COMPANY, INC., PLAINTIFF-APPELLANT,
M/V NORDIC REGENT, HER BOILERS, TACKLE, MACHINERY AND OTHER APPURTENANCES IN REM, AND NORCROSS SHIPPING CO., INC., AS HER OWNER, IN PERSONAM, DEFENDANT-APPELLEE
Appeal from judgment entered in the Southern District of New York, William C. Conner, District Judge, which dismissed action on ground of forum non conveniens. Affirmed.
Before Waterman, Timbers and Van Graafeiland, Circuit Judges. Before Waterman, Timbers and Van Graafeiland, Circuit Judges.
Author: Timbers; Van Graafeiland
In this action commenced by Alcoa Steamship Company in the Southern District of New York to recover damages from Norcross Shipping Co., Inc. sustained as the result of a collision in Trinidad between Alcoa's pier and Norcross' vessel, the sole issue is whether the district court abused its discretion in granting Norcross' motion to dismiss the action on the ground of forum non conveniens.
After carefully weighing the relevant factors set forth in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 91 L. Ed. 1055, 67 S. Ct. 839 (1947), the district court found that Norcross would be unduly inconvenienced in many respects and perhaps denied an opportunity to vindicate its legal claims against the Pilots' Association if the case were tried in New York. The district court found this imbalance to be significant enough to overcome the usual reluctance of courts in this Circuit to apply the doctrine of forum non conveniens when it would force an American to bring an action outside the United States.
We hold that it was within the district court's discretion to dismiss on the ground of forum non conveniens under the circumstances of this case, and that the district court did not abuse its discretion in doing so. We affirm substantially for the reasons set forth in Judge Conner's opinion of January 17, 1978. 453 F. Supp. 10.
WATERMAN, Circuit Judge, concurring:
I concur in affirming the grant by the district judge of the defendant's motion to dismiss the complaint on the ground of forum non conveniens. I do so with great reluctance, for the position taken by may dissenting colleague is an extremely convincing one. Moreover, if I had been the district judge I could well have arrived at an opposite result to the result reached below. Although I am unimpressed with the thought that "the inability to implead the pilot association ... may seriously prejudice the defendant" and is of importance in deciding the motion, the opinion below is well reasoned and the precedents satisfactorily treated. Hence, although I do not fully join in the affirmance substantially on the opinion below, I cannot hold with my dissenting colleague that Judge Conner abused the discretion vested in him to exercise and that we should in this case reverse the order below on the ground of such an abuse.
VAN GRAAFEILAND, Circuit Judge, dissenting:
Appellant, Alcoa, is a New York corporation with its main offices and principal place of business in New York City. It transports ore and other bulk cargoes by sea, and charters the vessels required for this purpose. It also owns and operates a transfer station ore pier at Point Tembladora, Trinidad.
Appellee, Norcross, a Liberian corporation, is the owner of the M/V Nordic Regent, one of the ships under charter to Alcoa. The ship's master, Giorgio Lissiani, and most of the members of its crew are Italian.
Shortly before midnight on January 2, 1977, the MK/V Nordic Regent was approaching the harbor at Point Tembladora, which it was not permitted to enter without a local pilot. Captain Lissiani was informed by radio that a pilot would meet him at a point about one-half mile from the harbor. However, the pilot had not yet arrived when the ship reached the point of rendezvous. Instead of waiting a few minutes for the pilot to come, Captain Lissiani barged, literally and figuratively, into the harbor without him and crashed his vessel into Alcoa's pier, doing damage estimated by Alcoa at $8,000,000.
Alcoa commenced this action in the Southern District of New York to recover for its loss, serving Norcross through its general agent in New York. Norcross moved to dismiss on forum non conveniens grounds, contending that the action should be tried in Trinidad, and its motion was granted. Because I believe that the district court abused its discretion in dismissing, I cannot concur in my brothers' decision to affirm.*fn1
It is the general rule that the doctrine of forum non conveniens should be applied only where "the forum chosen by the plaintiff is so completely inappropriate and inconvenient that it is better to stop the litigation in the place where brought and let it start all over again somewhere else." Norwood v. Kirkpatrick, 349 U.S. 29, 31, 75 S. Ct. 544, 546, 99 L. Ed. 789 (1955) (quoting All States Freight v. Modarelli, 196 F.2d 1010, 1011 (3d Cir.1952)). Where plaintiff resides in the district where the suit is brought, "[under] the usual forum non conveniens approach, this would virtually suffice, in and of itself, to preclude a refusal to retain the case for trial." 349 U.S. at 41, 75 S. Ct. at 551 (Clark, J., dissenting).
The foregoing rule takes on added significance where the party seeking dismissal argues for a trial in a foreign jurisdiction. Although the Supreme Court in Swift & Company Packers v. Compania Colombiana Del Caribe, S.A., 339 U.S. 684, 697, 70 S. Ct. 861, 94 L. Ed. 1206 (1950), left open the question whether United States admiralty courts might decline jurisdiction over libels brought by United States citizens, we have held that an American citizen does not have the absolute right under all circumstances to sue in an American court. Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633, 645 (2d Cir.), cert. denied, 352 U.S. 871, 77 S. Ct. 96, 1 L. Ed. 2d 76 (1956). In so holding, we stated, however, that we would be reluctant to deny a citizen this right. Id. at 646. Indeed, in Leasco Data Processing Equipment Corp. v Maxwell, 468 F.2d 1326, 1344 (2d Cir.1972) (quoting Burt v. Isthmus Development Co., 218 F.2d 353, 357 (5th Cir.), cert. denied, 349 U.S. 922, 75 S. Ct. 661, 99 L. Ed. 1254 (1955)), we said that "courts should require positive evidence of unusually extreme circumstances, and should be thoroughly convinced that material injustice is manifest before exercising any such discretion to deny a citizen access to the courts of this country." See also Olympic Corp. v. Societe Generale, 462 F.2d 376, 378 (2d Cir.1972); Volkswagen of America, Inc. v. S.S. Silver Isle, 257 F. Supp. 562, 563-64 (N.D.Ohio 1966); States Marine Lines, Inc. v. M/V Kokei Maru, 180 F. Supp. 255, 258 (N.D.Cal.1960). I find no "unusually extreme circumstances" or manifest "material injustice" which justified dismissal of the instant action by the district court.
The district court placed great reliance upon the availability and convenience of witnesses in Trinidad. Assuming that witness inconvenience can be considered an "unusually extreme circumstance,"*fn2 Norcross has not sustained its burden of proving that this circumstance exists. A party seeking to transfer a case from one United States court to another for the convenience of witnesses must identify the key witnesses to be called and must make a general statement of what their testimony will cover. Jenkins v. Wilson Freight Forwarding Co., 104 F. Supp. 422, 424 (S.D.N.Y.1952). The burden is upon it to give the names and locations of potential witnesses and the substance of their testimony. National Super Spuds v. New York Mercantile Exchange, 425 F. Supp. 665, 668 (S.D.N.Y.1977). Sufficient information must be included in its affidavits to establish that the named witnesses are key witnesses who need to be called and that their testimony is material. Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 148 (10th Cir.1967); Chicago, R.I. & P. R.R. v. Hugh Breeding, Inc., 232 F.2d 584, 588 (10th Cir.1956); Sinclair Oil Corp. v. Union Oil Co., 305 F. Supp. 903, 904 (S.D.N.Y.1969); Riso Kagaku Corp. v A.B. Dick Co., 300 F. Supp. 1007, 1010 (S.D.N.Y.1969); Baksay v. Rensellear Polytech Institute, 281 F. Supp. 1007, 1010 (S.D.N.Y.1968); Polychrome Corp. v. Minnesota Mining and Manufacturing Co., 259 F. Supp. 330, 335 (S.D.N.Y.1966); Peyser v. General Motors Corp., 158 F. Supp. 526, 529-30 (S.D.N.Y.1958); National Tea Co. v. The Marseille, 142 F. Supp. 415, 416 (S.D.N.Y.1956); Goodman v. Southern Ry., 99 F. Supp. 852, 855 (S.D.N.Y.1951).
Surely, a defendant who seeks to deprive an American plaintiff of access to American courts must make at least as great a showing. As this Court has stated:
In any situation, the balance must be very strongly in favor of the defendant, before the plaintiff's choice of forum should be disturbed, ... and the balance must be even stronger when the plaintiff is an American citizen and the alternative forum is a foreign one...
Olympic Corp. v. Societe Generale, supra, 462 F.2d at 378.
Two short, almost cursory, affidavits of one of defendant's New York attorneys, with an attached affidavit of the ship's master, were the only papers submitted in support of defendant's motion to dismiss. With the possible exception of the master himself, these affidavits do not state the name of a single witness whom defendant intends to call nor what the testimony of any such witness will be. From the undisputed facts appearing in the record, it is difficult to believe that there are any witnesses whose testimony would exonerate Norcross from liability. When a moving vessel collides with a pier, the vessel is presumed to be at fault. Brown & Root Marine Operators, Inc. v. Zapata Off-Shore Co., 377 F.2d 724, 726 (5th Cir.1967). When the collision occurs because the ship's master violated local ordinances and proceeded into a strange harbor at night without waiting a few moments for the assistance of a compulsory pilot, the presumption of fault is, to say the least, strongly supported by the evidence. Conduct of this nature has been described with such terms as "imprudent," American Union Transport Co. v. Aguadilla Terminal, Inc., 1962 A.M.C. 1151 (D.C.P.R.1960), aff'd in part, rev'd in part on other grounds, 302 F.2d 394 (1st Cir.1962); "folly," Cargill Inc. v. Transamerican Steamship Corp. and American Union Transport, Inc., 1963 A.M.C. 264 (S.D.N.Y.1962); "an exceedingly gross error in navigation and a decision of sheer lunacy," Wilbur-Ellis Company v. M/V Captayannis S, 306 F. Supp. 866, 869 (D.Ore.1969), aff'd, 451 F.2d 973 (9th Cir.1971), cert. denied, 405 U.S. 923, 92 S. Ct. 962, 30 L. Ed. 2d 794 (1972); and lacking in "sound judgment and discretion," The Framlington Court, 69 F.2d 300, 307 (5th Cir.) cert. denied, 292 U.S. 651, 54 S. Ct. 860, 78 L. Ed. 1500 (1934). Norcross has furnished the names of no witnesses who would describe Captain Lissiani's conduct differently.
Without setting forth the names or expected testimony of any witnesses who will be called to testify on the issue of damages, the affidavit of defendant's attorney states that testimony as to labor, material, and services "obviously" will be available only in Trinidad. Despite the fact that no factual foundation whatever was laid for this conclusory statement, the district court found that repair witness were "concededly" residents of Trinidad. I find no such concession in appellant's answering affidavits. They show, on the contrary, that repairs to the pier will be performed by a United States general contractor under the supervision of Alcoa officials who reside in the United States.
In any event, the cost of repairs will of necessity be the subject of independent expert testimony, and the residence and convenience of expert witnesses is not a significant or controlling factor in determining the question of forum non conveniens. Magnetic Engineering & Mfg. Co. v. Dings Magnetic Separator Co., 86 F. Supp. 13, 17 (S.D.N.Y.), modified on other grounds and appeal dismissed as to transfer order, 178 F.2d 866 (2d Cir.1950); see Herman v. Doug Frank Development Corp., 385 F. Supp. 767, 769 n. 10 (S.D.N.Y.1974); Johnson v. Smith Meal Co., 160 F. Supp. 208, 209 (E.D.N.Y.1958); Nocona Leather Goods Co. v. A.G. Spalding & Bros., Inc., 159 F. Supp. 269, 271 n. 3 (D.Del.1958); McCarley v. Foster-Milburn Co., 89 F. Supp. 643, 649 (W.D.N.Y.1950).
In short, Norcross has made no showing that the convenience of witnesses justifies depriving Alcoa of its chosen forum in its American domicile. The district court's finding to the contrary is completely without support in the record.
The other factor relief upon by the district court in granting defendant's motion to dismiss was defendant's inability to implead the pilot association in the Southern District of New York. Assuming that Norcross is sincere in its expressed intention of bringing a multi-million dollar action against the pilot because he was not Johnny-on-the-spot at the rendezvous point, there is no compelling reason why his must be done by way of impleader. Norcross has not shown that the "vouching in" of the pilot in the present action would not give the judgment entered herein the same binding effect in Trinidad as it would have in the United States. See, e.g., Robbins v. Chicago City, 71 U.S. (4 Wall.) 657, 674-75, 18 L. Ed. 427 (1866); Standard Oil Co. v. Robbins Dry Dock & Repair co., 25 F.2d 339, 340 (E.D.N.Y.1928), aff'd, 32 F.2d 182 (2d Cir.1929). Once defendant's liability and the amount of plaintiff's damages have been determined, the issues left for resolution as between defendant and the pilot could be disposed of in a very short and inexpensive trial. Under these circumstances, the inability of Norcross to implead the pilot, whose liability, at best, is questionable, should not extinguish plaintiff's right to have its claim passed upon by a United States court. See Olympic Corp. v. Societe Generale, supra, 462 F.2d at 379.
Although the granting of a motion to dismiss on the ground of forum non conveniens is within the district court's sound discretion, this discretion must be exercised "with regard to what is right and equitable under the circumstances and the law." Mobil Tankers Co., S.A. v. Mene Grande Oil Co., supra, 363 F.2d at 613 (citing Langnes v. Green, 282 U.S. 531, 541, 51 S. Ct. 243, 75 L. Ed. 520 (1931)). Before defendant's motion to dismiss may be granted, it must show that it would be unfairly prejudiced by a denial. Klockner Reederei Und Kohlenhandel v. A/S Hakedal, 210 F.2d 754, 756 (2d Cir.), dismissed on appeal, 348 U.S. 801, 75 S. Ct. 17, 99 L. Ed. 633 (1954). Here, ther only prejudice shown in the record is that which will be sustained by the plaintiff.
Plaintiff's pier installation was damaged severely by defendant's ship through no fault of its own. The parties are agreed that, if plaintiff is denied access to a United States court and is required to sue in Trinidad, its recovery will be limited under Trinidad laws to approximately $570,000.*fn3 Looking past the window dressing, it is obvious that this is the basic reason why Norcross is seeking a change of forum. It has accomplished this result simply by filing two completely inadequate affidavits executed by one of its New York attorneys. I cannot believe that the ends of justice are served when the defendant is permitted to take several million dollars out of the pockets of Alcoa and its shareholders on such a flimsy showing.
I would reverse.