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COMMERCIAL UNION INS. CO. v. FLAGSHIP MARINE SERVS

May 25, 1995

COMMERCIAL UNION INSURANCE COMPANY, Plaintiff,
v.
FLAGSHIP MARINE SERVICES, INC. SEA TOW OF LEE COUNTY, Defendant.



The opinion of the court was delivered by: DEBORAH A. BATTS

 DEBORAH A. BATTS, U.S.D.J.:

 Defendant Flagship Marine ("Defendant") has moved this Court for an Order, pursuant to 28 U.S.C. § 1404, transferring venue to the Middle District of Florida. For the reasons which follow, the motion is denied.

 In September 1994, Plaintiff Commercial Union Insurance Company ("Plaintiff") contracted to provide marine insurance coverage to Defendant, including coverage of the M/V SEA TOW #6. The contract was negotiated in New York by and between underwriters at Commercial Union and Brisotti & Silkworth, Inc., Defendant's marine insurance broker. The contract stated, in pertinent part, that:

 
In consideration of the rates and premiums charged, it is understood and agreed that coverage is hereby provided for the towage of yachts up to 50 feet in length. Towage of yachts in excess of 50 feet is subject to prior approval of underwriters with additional premium to be agreed, if any.

 On November 13, 1994, Gary McLean, captain of the SEA TOW #6, was injured while attempting to tow a dinner cruise boat in the coastal waters of Florida. Plaintiff alleges that the dinner cruise boat was in excess of 50 feet.

 On January 23, 1995, Plaintiff filed the instant Complaint seeking a declaration from this Court regarding its liability with respect to any claims arising out of its agreement to insure the SEA TOW #6. In its Complaint, Plaintiff alleged that its obligations to insure the SEA TOW #6 were rendered void as a result of Defendant's towing a vessel more than 50 feet in length.

 A motion to transfer rests within the sound discretion of the Court. See Elite Parfums v. Rivera, 872 F. Supp. 1269, 1272 (S.D.N.Y. 1995). 28 U.S.C. § 1404(a) provides:

 
For the convenience of parties and witnesses, in the interests of justice, the district court may transfer any civil action to any other district or division where it might have been brought.

 In consideration of a motion to transfer venue, however, the Plaintiff's choice of forum should not be disturbed by the Court unless certain criteria weigh strongly in Defendant's favor. See Schwartz v. R.H. Macy's, Inc., 791 F. Supp. 94, 95 (S.D.N.Y. 1992). Such criteria include: convenience of the parties and witnesses, location of counsel, location of documents, and the interests of justice. See Corinthian Media, Inc. v. Yelsey, 1992 U.S. Dist. LEXIS 2480, 1992 WL 47546, at *1. "In moving to transfer a case, the Defendant-movant has the burden of establishing that the 'interests of justice and the convenience of the parties and witnesses would be better served by transfer.'" Schwartz, at 95, quoting, Sanders v. Claridge Hotel and Casino, 1990 U.S. Dist. LEXIS 13877, 1990 WL 160887, at *1.

 Defendant cannot satisfy this burden. Although the accident took place in Florida and the Defendant is located in Florida, the contract at issue was negotiated and delivered in New York. Schliwka Aff. at P9. Plaintiff's uncontroverted affidavit asserts that "all records concerning the terms and conditions of the policy, and notes reflecting any conversation by and between broker and underwriter, are located in New York." Schliwka Aff. at P9. Contrary to Defendant's assertion, the contract's coverage was not limited to the coastal waters of Florida. Rather, its coverage extended to losses occurring in the coastal waters of the entire east coast. Exh. A to Def.'s Memorandum, at 18. Defendant's argument that transfer is appropriate because the instant action has no connection with New York must therefore fail.

 Defendant's further argues that many of the witnesses reside in Florida, and that this fact warrants transfer. The witnesses Defendant refers to are witnesses to the SEA TOW #6 accident. The parties in this action, however, are litigating the terms of the marine insurance contract. They are not attempting to ascertain the facts surrounding Captain McLean's injuries. Therefore, the location of witnesses to the accident in Florida is irrelevant to the instant suit for declaratory judgment.

 This Court finds that transferring the action to the Middle District of Florida would not be in the interests of justice. Nor would it serve the goal of judicial economy, as the state court action pending in Florida could not be consolidated with a federal action. Moreover, Plaintiff commenced this action prior to the filing of any of Florida cases stemming from the SEA TOW ...


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