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G.B.C. NIGERIA v. M.V. SOPHIA FIRST

July 6, 1984

G.B.C. NIGERIA (LIMITED), Plaintiff, against M.V. SOPHIA FIRST, her engines, boilers, etc., "K" LINE and GREAT AMERICAN INSURANCE COMPANY, INC., Defendants.


The opinion of the court was delivered by: MACMAHON

OPINION and ORDER

MacMAHON, District Judge.

 Defendants "K" Line and Great American Insurance Company, Inc. ("GAIC") move to dismiss the complaint on the ground of forum non conveniens.

 This case arises from the alleged loss and damage to 17 cases of scarves shipped from Kobe, Japan, to Port Harcourt, Nigeria, aboard the M.V. SOPHIA FIRST. Plaintiff G.B.C. Nigeria, Ltd. is the owner of the shipment and assignee of the right to payment under a cargo insurance policy, issued by GAIC, covering loss or damage to the goods.

 Plaintiff's sparse complaint alleges simply that in December 1976 the scarves were delivered "in good order and condition" to the M.V. SOPHIA FIRST, in Kobe, Japan, and that upon arrival in Port Harcourt, Nigeria, the shipment was "discharged . . . not in the same condition as when received but in an otherwise short and damaged condition." Complaint PP9, 10.

 In count one, plaintiff sues "K" Line as the ocean carrier and charterer. In response, "K" Line asserts that the claim is time barred and that the goods were received in accordance with the bill of lading. In count two, plaintiff sues GAIC as the cargo insurer. GAIC asserts that plaintiff failed to give timely notice as required by the policy, that the loss did not occur during the coverage period, and that plaintiff failed to protect GAIC's subrogation rights.

 "K" Line is a foreign corporation and an "affiliate" of Kawasaki Kisen Kaisha, Ltd., a Japanese corporation. Complaint P4; Sanfilippo Affidavit at 3. "K" Line has an office in New York City and apparently operates in New York through an agent, Kerr Steamship Co., Inc. Id.

 GAIC has its offices in New York City and is incorporated within the United States, although the state of incorporation is not apparent from the record. Complaint P5; GAIC Answer P5. When the insurance policy was issued, GAIC was a member of AFIA Worldwide Insurance, an association of United States insurance companies. Acting as GAIC's authorized representative, AFIA Worldwide Insurance issued the policy through its Japanese office. Benintendi Affidavit at 1.

 "K" Line and GAIC ("defendants") do not object to either personal or subject matter jurisdiction. They contend, however, that the action should be dismissed because the claims have no nexus with the Southern District of New York. Defendants further contend that all relevant witnesses, documents and physical evidence are outside the district and well beyond the borders of the United States. Thus, they argue, the cost of locating witnesses and bringing them to New York is vexacious and oppressive. Defendants also anticipate that unspecified witnesses, beyond the reach of compulsory service, will be unwilling to testify. Finally, defendants contend that the case will raise questions of foreign law, require "the complicated application of various rules of conflicts of law," and unnecessarily add to the volume of litigation in this district.

 In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839 (1946), the Supreme Court stated the relevant considerations in a motion to dismiss based on forum non conveniens. Initially, there must be "at least two forums in which the defendant is amenable to process. . . ." Id. at 507. "[U]nless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Id. at 508. The Court then delineated the private and public factors to consider in resolving a motion based on forum non conveniens. Id. at 508-09.

 The private factors include: (1) relative ease of access to sources of proof; (2) availability of compulsory process for attendance of unwilling witnesses and cost of obtaining willing witnesses; (3) if relevant, the need to view the premises; (4) practical problems that make trying the case easy, expeditious and inexpensive; and (5) relative advantages and obstacles to a fair trial.

 The factors of public interest include: (1) administrative difficulties resulting from accumulating litigation in congested centers instead of handling it at its origin, id. at 508; (2) the lesser burden and greater immediacy of submitting local controversies to local juries; and (3) the relative advantage of trying a case in the same forum as the governing law. Id. at 508-09. Accord Alcoa S.S. Co. v. M/V Nordic Regent, 654 F.2d 147, 159 (2d Cir.) (applying Gilbert factors to admiralty suits), cert. denied, 449 U.S. 890, 66 L. Ed. 2d 116, 101 S. Ct. 248 (1980).

 It is clear that defendants have generally patterned their contentions after the factors noted by the Court in Gilbert. However, we find these contentions more formulaic than factual. The burden of persuasion is on defendants to demonstrate, with adequate factual support, why we should decline to exercise our jurisdiction despite the Supreme Court's clear monition that "the plaintiff's choice of forum should rarely be disturbed." Gilbert, supra, at 508. Accord Calavo Growers of California v. Generali Belgium, 632 F.2d 963, 969 (2d Cir. 1980) (Newman, J., concurring). Mere contentions without an adequate factual predicate are insufficient. See Chicago, Rock Island & Pac. R. Co. v. Hugh Breeding, Inc., 232 F.2d 584 (10th Cir. 1956) (affidavit insufficient containing only conclusions as to inconvenience and not specifying witnesses or relevance of their testimony); see also Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145 (10th Cir. 1967) (conclusory affidavits are insufficient).

 Defendants' contention that the suit has no connection with the Southern District of New York is true only to the extent that the voyage and alleged loss or damage occurred outside the United States. Nonetheless, "K" Line, the charterer and ocean carrier, has both an office and agent in New York City "which company attends to all claims against 'K" Line asserted throughout the United States." Sanfilippo Affidavit at 3. And although GAIC has not revealed its state of incorporation, it admits that it is incorporated in the United States and operates from an office in New York City, GAIC Answer P5. In fact, GAIC's own letterhead, as ...


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