these factors could not tip strongly in favor of dismissal. This motion will be granted.
Regarding Hanjin's motion to dismiss the Hanjin Action on grounds of forum non conveniens, it cannot be said that the balance of Gulf factors tips strongly in favor of the Korean forum. Litigation in this forum is neither unjust nor oppressive to the Hanjin Claimants so as to merit dismissal on forum non conveniens grounds. The Hanjin Claimants' motion to dismiss the Hanjin Action will be denied.
IV. APL's Motion for Summary Judgment as to the Hanjin Claimants' Seventh Affirmative Defense Asserting Transfer of Venue is Granted
APL's motion to strike the Hanjin Claimants Seventh affirmative defense, asserting that venue of the APL Action should be transferred to the Western District of Washington, has been converted, as mentioned previously, to one for summary judgment.
It is of interest to note, preliminarily, that in the Hanjin Action, APL moved for a venue transfer to this Court, and the Court in Washington granted that motion, appropriately disposing of this issue.
The convenience of parties and witnesses is considered to be essential to transfer of venue. See First City Federal Savings Bank v. Register, 677 F. Supp. 236, 237 (S.D.N.Y. 1988). As between Seattle and New York, the convenience of the parties weighs in favor of Seattle over New York, but not heavily. It would be a burden upon the Hanjin Claimants to travel to Seattle, and it will only be a moderately greater one to travel to New York. It has already been pointed out that Hanjin maintains a substantial business presence in this District, thus the burden does not appear to be extreme.
American and Korean witnesses will both have to travel a considerable distance in the event of a New York trial. APL would be in the position of having to pay for West Coast witnesses to come to New York. The Hanjin Claimants would bear the additional incremental costs embodied in getting its Korean witnesses to New York rather than Seattle. Although this burden is somewhat significant, it cannot be said that this factor weighs heavily in favor of Seattle, since some additional expense and inconvenience relating to witnesses will fall on APL as well.
It should also be noted that Hanjin and APL are both large, global organizations while some of the cargo claimants, who have already obtained New York counsel and appeared in the APL Action, are not. Proportionately, a transfer from New York to Seattle would fall harder on such claimants than would the opposite arrangement on Hanjin.
The location of operative facts and the relative ease of access to sources of proof are both factors which favor neither district court, inasmuch as the Collision occurred in Korea. The translation issues which were relevant in the comparison between an American or Korean forum drop out of a comparison between two American courts, inasmuch as Korean documents will have to be translated in either case.
The investigative reports of the Korean governmental agencies (in translation) and the U.S. Coast Guard are available to a judge in New York and equally to one in Seattle.
The factors of speed and expense summon a comparison between two judicial Districts of equal resources found in large commercial centers. The Hanjin Claimants have not attempted to join a fact issue as to faster or less expensive litigation in the Western District of Washington as compared to this District.
Finally regarding the interest of justice, as already mentioned, the main contestants in this dispute as to venue are large, global organizations with obvious ties to and resources within, this District. Simply put, requiring either of these litigants to litigate either in New York or in Seattle against its will, could hardly be said to work an injustice. If any potential injustice is implicated in this choice of venue, it is that which would be worked upon the smaller cargo claimants who have prepared to litigate this action in its present venue.
There are no genuine issues of material fact as to enough of the § 1404(a) factors, such that the balance of convenience could not weigh heavily in favor of transfer. Therefore, APL's motion for summary judgment as to the Hanjin Claimants' Seventh affirmative defense seeking venue transfer will be granted.
For the foregoing reasons, with regard to the APL Action:
(i) APL's motion to strike Hanjin's Fifth affirmative defense concerning the application of Korean law is granted and that defense is stricken with leave to replead;
(ii) summary judgment as to Hanjin's Sixth Affirmative defense concerning forum non conveniens is granted and that defense is dismissed with prejudice;
(iii) summary judgment as to Hanjin's Seventh affirmative defense concerning transfer of venue is granted and that defense is dismissed with prejudice.
With regard to the Hanjin Action, the Hanjin Claimants' motion to dismiss the Hanjin Action on the grounds of forum non conveniens is denied.
It is so ordered.
New York, N.Y.
June 27, 1995
ROBERT W. SWEET
© 1992-2004 VersusLaw Inc.