damaged beforehand. Moreover, a "view of the premises" may be important in this case; the ship is an Egyptian ship, the warehouse and quayside facilities are in Egypt, and the damaged cargo itself remains in Egypt. In any event, it is clear that determination of the most relevant questions will necessarily turn on information and evidence to be found in Egypt.
Nippon additionally argues that the presence of its own United States agent, Itochu's packers, and the ship brokers in New York weighs in favor of keeping the case here. (Pl. Mem. at 11). None of these persons, however, is likely to provide information relevant to the central issue, namely where and when the cargo was damaged.
Rather, persons having first hand knowledge of the facts important to the resolution of this dispute (e.g., the surveyor, customs and/or port police officials, and employees of EAS and Allam Industries) are all in Egypt. This Court does not have jurisdiction over any of the persons who handled the cargo or who otherwise might have first hand knowledge of the relevant facts, and hence I could not compel the testimony of the witnesses most able to provide information necessary for resolution of Nippon's claim.
While it is certainly true that the advances of the modern age have significantly reduced both the time and expense of intercontinental travel, when the greater number and more relevant witnesses are located in a foreign forum, common sense suggests that the litigation proceed in that forum. In sum, the ease of access to testimonial and other proof in this case weighs heavily in favor of Egypt.
2. Public Interest in the Forum
Public interest considerations include the alternative forum's interest in deciding the dispute, court administrative concerns, and conflict of laws and foreign forum law application issues. Piper Aircraft Co., 454 U.S. at 241 n.6. Conflict of law and the application of foreign law issues are not implicated here as both parties agree that the case is subject to COGSA. 46 U.S.C. § 1300 et seq. Nor do I believe that the administrative burdens of the Court should be a dispositive consideration. Accordingly, I turn to the interests of the two forums in the resolution of the claim.
New York's connection to this dispute is tangential. While it is true that many of the documents related to the shipments were prepared here, as noted above, the documents most relevant to the dispute were not. And while it is also true that Nippon's New York office handles all of its U.S. claims, it is hard to see what interest New York has in the claim of a foreign-owned subsidiary against an Egyptian shipper for subsequent damage to goods shipped from Louisiana to Egypt. By contrast, Egypt's interest in this litigation is substantial. The suit is brought against an Egyptian shipping company. It is brought for damage that, according to the survey reports, may well have occurred while the goods were in an Egyptian port. And the original party in interest and subrogor of this claim (i.e., the owner of the cargo) is an Egyptian company (Allam).
Moreover, contrary to Nippon's arguments, there is no overriding local interest in having a COGSA claim resolved in a federal forum. Numerous decisions have considered whether the public interest in uniformly interpreting COGSA should prevent courts from applying the forum non conveniens doctrine in COGSA cases. These decisions have consistently rejected such a theory, holding that a court may dismiss a COGSA suit on forum non conveniens grounds. Monsanto Int'l, 770 F. Supp. at 836-37; Travelers Indem. Co., 710 F. Supp. at 499; see also Contact Lumber Co. v. P.T. Moges Shipping Co., 918 F.2d 1446, 1451 (9th Cir. 1990) (dismissing COGSA claim on forum non conveniens grounds); Union Ins. Soc'y of Canton v. S.S. Elikon, 642 F.2d 721, 725 (4th Cir. 1981) (COGSA case may be dismissed on forum non conveniens grounds); Fireman's Fund Ins. Co. v. Pan Ocean Bulk Carriers, Ltd., 559 F. Supp. 527, 528 (N.D. Cal. 1983) (same). The Second Circuit has also recognized the applicability of the forum non conveniens doctrine to admiralty cases, stating that "it is in the field of admiralty that our federal courts have applied the doctrine of forum non conveniens most flexibly and over the longest period of time." Alcoa S.S. Co. v. M/V Nordic Regent, 654 F.2d 147, 153 (2d Cir.) (en banc), cert. denied, 449 U.S. 890, 66 L. Ed. 2d 116, 101 S. Ct. 248 (1980). Nippon raises no public interest factors either requiring a departure from this established line of case law or establishing a local interest in this dispute. Accordingly, public interest factors also favor an Egyptian forum.
D. Defendant's Delay
Finally, Nippon contends that EAS should not be able to seek dismissal on forum non conveniens grounds given the current procedural posture of this case. Although, as discussed below, I agree that Nippon is entitled to sanctions for EAS's failure to respond to discovery requests, I do not find that EAS's motion to dismiss is so untimely as to require its denial.
Counsel for EAS has submitted an affidavit stating that EAS sought permission from Judge Mukasey (to whom this case was previously assigned) on December 20, 1994 to move for dismissal on forum non conveniens grounds. Furthermore, defendant's motion was made on March 9, 1995, seven weeks before the discovery cutoff date and less than six months after the complaint was filed. Finally, the lawsuit is less than a year old. Thus, defendant's motion is not so untimely as to override the aforementioned factors that favor dismissal on forum non conveniens grounds.
Accordingly, after balancing both public and private interests in this litigation and other relevant factors,
I have determined that this dispute would be most efficiently and conveniently resolved in an Egyptian forum.
I therefore grant EAS's motion to dismiss, subject to certain conditions set forth in the conclusion of this opinion. See Piper Aircraft Co., 454 U.S. at 257 n.25; Blanco v. Banco Industrial de Venezuela, 997 F.2d 974, 984 (2d Cir. 1993).
II. Plaintiff's Motion for Sanctions
Nippon has moved for sanctions, including a default judgment, on the grounds that EAS has wilfully failed to respond to discovery demands.
In December 1994, Nippon apparently served three sets of discovery requests: document requests, interrogatories, and a deposition notice. (Maloof Sanctions Aff. P 5). In January 1995, EAS served a response to the document requests, consisting of (i) the production of no more than a few documents,
(ii) objections, (iii) statements to the effect that other responsive documents would be produced "if they exist, when available." (Maloof Sanctions Aff. Exh. F). EAS never submitted formal responses to the interrogatories or the deposition notice. (Maloof Sanctions Aff. P 8(b, c)). After Nippon wrote to Judge Mukasey about EAS's failure to respond to discovery requests, EAS's counsel wrote Judge Mukasey advising:
we have requested documents and information from the defendant who is located in Egypt. The responses, however, have not yet been forthcoming.
(Maloof Sanctions Aff. Exh. I). Apparently, EAS's counsel still has not received the requested documents and information from its client.
In February 1995, Nippon served a set of requests for admissions ("RFA's"). (Maloof Sanctions Aff. P 13). EAS served a response that consisted of answers to some of the RFA's, objections to others, and the statement that certain RFA's could not be admitted or denied. (Maloof Sanctions Aff. Exh. K). It does appear that the RFA's were answered by EAS's counsel without the benefit of assistance from his client.
Judge Mukasey had originally set the discovery cut-off for April 28, 1995. After the case was reassigned to me, I ruled that if EAS did not provide the missing discovery by May 16, 1995, Nippon could file a motion for sanctions. EAS did not provide the necessary discovery, and this motion followed.
In his affidavit in opposition to the motion for sanctions, EAS's attorney represents that he made "timely, diligent and good faith attempts" to obtain from his client the documents and information necessary to comply with its discovery obligations. (Cichanowicz Sanctions Aff. P 3). It is clear, then, that EAS has ignored its own counsel's requests for documents and information, and it is apparent that EAS has indeed wilfully failed to comply with its discovery obligations.
Nonetheless, while I believe that EAS's conduct certainly is sanctionable, a default judgment would be too harsh a sanction at this juncture. Instead, EAS is hereby ordered, within 30 days after entry of this decision, to (1) produce the documents requested in plaintiff's first set of document requests, (2) answer plaintiff's first set of interrogatories, and (3) supplement and verify its responses to plaintiff's RFA's. If EAS fails to comply with this order in a timely fashion, a default judgment will be entered against it. In addition, Nippon is hereby granted, pursuant to Rule 37(a)(4), its reasonable expenses incurred in making this motion, including attorneys' fees. Within 10 days after entry of this decision, Nippon shall submit an affidavit providing sufficient information to permit me to determine an appropriate award of attorneys' fees and costs.
For the reasons set forth above, the case is dismissed on the grounds of forum non conveniens subject to the following conditions:
1. EAS will comply with this Court's rulings concerning outstanding discovery, as set forth above.