The opinion of the court was delivered by: Kimba M. Wood, District Judge.
Defendants move to dismiss this case on the ground of forum
non conveniens. Alternatively, third-party defendant Kien Hung
Shipping moves to dismiss for lack of personal jurisdiction.
On July 31, 1990 the court referred this case to Magistrate
Judge Lee for a report and recommendation on all substantive
motions. Magistrate Judge Lee issued her recommended decision
orally on October 4, 1990, and filed her written Report and
Recommendation on November 7, recommending that (1) the court
grant third-party defendant's motion to dismiss for lack of
jurisdiction without allowing for discovery on the issue, and
(2) the court conditionally grant defendant's motion to
dismiss for forum non conveniens. Plaintiffs timely filed
written objections to the Magistrate Judge's Report; defendant
and third-party plaintiff, Hanjin Container Lines, filed an
objection to two findings of fact made by the Magistrate
Judge. For the reasons set forth below, the court adopts the
recommended decision of Magistrate Judge Lee, and grants
defendants' motion to dismiss.
This case arises out of the loss of cargo resulting from a
collision between two
ships in the China Sea, in international waters off Taiwan.
Plaintiffs are consignees and holders of bills of lading
issued by defendant Hanjin Container Lines ("Hanjin") in
connection with the shipment of cargo from a number of United
States ports to Hong Kong. The cargo was not intended to go
directly from this country to Hong Kong, however. As part of
an apparently common practice in the cargo shipping industry,
see Parnass Int'l. Trade and Oil Corp. v. Sea-Land Service, 595
F. Supp. 153 (S.D.N.Y. 1984), Hanjin transported the cargo in
its own ship from the United States to Keelung, Republic of
China. There, Hanjin transferred the cargoes to a smaller
vessel, the M/V K.H. Enterprise, owned by third-party defendant
Kien Hung Shipping Company ("Kien Hung"), for delivery to Hong
Kong. En route to her final destination, the M/V Enterprise
collided with another ship and sank, with plaintiffs' cargo
aboard. Plaintiffs commenced this action to recover for the
loss of their cargo.
Because defendants' motions are dispositive within the
meaning of F.R.Civ.P. 72(b), the court reviews Magistrate
Judge Lee's recommendations regarding these motions de novo.
28 U.S.C. § 636(b)(1)(B); 12 C. Wright & A. Miller, Federal
Practice and Procedure, § 3076.5 (1991 Supp.).
Plaintiffs object to the following aspects of the Magistrate
Judge's Report and Recommendations: (1) her recommendation
that the court dismiss plaintiffs' claim against Kien Hung on
the ground of lack of personal jurisdiction, or alternatively,
on the ground of forum non conveniens; (2) her recommendation
that the court dismiss plaintiffs' claim based on the Carriage
of Goods by Sea Act ("COGSA"), 46 U.S.C.App. § 1300, et seq.,
on the ground of forum non conveniens; (3) the Magistrate
Judge's refusal to allow plaintiffs' discovery on the issue of
jurisdiction; and (4) her failure to condition the forum non
conveniens dismissal on an agreement by defendants to waive the
statute of limitations in any alternative forum.
I. Motions to Dismiss for Forum Non Conveniens
"The central focus of the forum non conveniens inquiry is
convenience." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249,
102 S.Ct. 252, 262, 70 L.Ed.2d 419 (1981). To guide the court
in exercising its discretion in deciding a forum non conveniens
motion, the court looks to the factors set forth in Justice
Jackson's seminal opinion in Gulf Oil Corp. v. Gilbert, 330
U.S. 501, 508-09, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). The
so-called Gilbert factors call upon a court to consider both
"private interest factors," affecting the convenience of the
litigants, and "public interest factors," affecting the
convenience of the forum and the interests of justice. Id.;
Travelers Indem. Co. v. S/S Alca, 710 F. Supp. 497, 500
(S.D.N.Y. 1989), aff'd without opinion, 895 F.2d 1410 (2d Cir.
1989). The private interest factors include the relative ease
of access to sources of proof, the availability of compulsory
process for attendance of unwilling witnesses, the cost of
obtaining attendance of willing witnesses, as well as "all
other practical problems that make trial of a case easy,
expeditious, and inexpensive." Borden, Inc. v. Meiji Milk
Products Co., 919 F.2d 822, 827 (2d Cir. 1990) (quoting
Gilbert, 330 U.S. at 508, 67 S.Ct. at 843). The public factors
include the administrative difficulties flowing from court
congestion, the "local interest in having localized
controversies decided at home," and the interest of having the
trial of a case in a forum that is at home with the law that
must govern the action. Id. In addition to this weighing of
public and private factors, in a federal forum non conveniens
inquiry a court must determine whether there exists an
alternative forum for the litigation. Piper Aircraft, 454 U.S.
at 254 n. 22, 102 S.Ct. at 265 n. 22; Borden, 919 F.2d at
In applying these factors to the case at bar, Magistrate
Judge Lee found that on the record before her "the private
interests do not clearly tip in either direction, either for
or against this forum." Transcript of
Oral Argument Before Mag. Judge Lee ("Tr."), at 79.
Reviewing these findings de novo, this court finds that the
private factor balance tips in favor of an alternative forum.
The principal issues in this case are likely to involve
exactly how the collision occurred, whether the K.H.
Enterprise was seaworthy, and whether defendant Hanjin and
third-party defendant Kien may take advantage of certain
defenses available under COGSA. There is no evidence that
any sources of proof necessary for deciding these issues are
located in New York, or anywhere else in the United States.
Documents relevant to the collision that survived the sinking
are likely all located in Taiwan. Moreover, they are written in
Chinese. Similarly, the records of the Kaoshuing Harbor Bureau
investigation of the collision may be admissible in evidence;
these records are also presumably in Chinese and, like the
other relevant documents, would have to be translated at
significant cost. Translation costs would result not solely
from the need to translate documents that one party may intend
to offer at a trial in this court. Because English-speaking
lawyers would try the case here, the parties would have to
translate far more documents and deposition testimony in order
for trial attorneys to ascertain what they should or should not
offer at trial. Such translation costs are a relevant factor in
a forum non conveniens inquiry. See Schertenleib v. Traum, 589
F.2d 1156, 1165 (2d Cir. 1978); Travelers Indem., 710 F. Supp.
The situation regarding non-documentary evidence is similar.
Nearly all material witnesses are located in the Far East. The
officers and crew of the K.H. Enterprise are all residents of
Taiwan. Aff. of Wen Kuo Shih at ¶ 6. Most of the officers and
crew of the M/V Oriental Faith are residents of Taiwan and the
Philippines. In addition, several parties have initiated
lawsuits in Korea and Taiwan involving the cargoes lost when
the K.H. Enterprise sank. As a result, counsel in both nations
are likely to be familiar with the intricacies of this
litigation. While none of the three foreign ...