The opinion of the court was delivered by: CHIN
This Carriage of Goods by Sea Act ("COGSA") case concerns a shipment of several thousand reels of paper from New Orleans, Louisiana to Alexandria, Egypt. Plaintiff Nippon Fire & Marine Insurance Co., Ltd. ("Nippon"), a Japanese company, was the insurer of the cargo. Nippon has a wholly owned subsidiary located in New York, New York. Defendant Egypt Azov Shipping Company ("EAS") is the owner and operator of the defendant merchant vessel Egasco Star that carried the cargo from the United States to Egypt. Defendant EAS has moved to dismiss on the grounds of forum non conveniens. Subsequently, Nippon moved for sanctions against EAS for failing to comply with discovery requests. EAS's motion to dismiss is granted for the reasons and subject to the conditions described below. Nippon's motion for sanctions is also granted to the extent set forth below.
In December of 1993, Itochu International, Inc. ("Itochu"), a New York corporation, delivered 3,047 reels of printing paper for shipment aboard the Egasco Star at New Orleans. Several days later two more shipments totalling 7,208 additional reels of paper were delivered to the Egasco Star at Lake Charles, Louisiana. The shipments were delivered according to the terms of three separate bills of lading prepared and delivered to Itochu in New York.
The bills of lading indicate that each of the shipments was loaded "clean on board," and destined for the port of Alexandria in Egypt for delivery to the consignee, Allam Industries, in Cairo, Egypt. At some point either during the voyage or after the Egasco Star's arrival in Alexandria, a significant number of the reels were damaged. Agents of Lloyd's of London in Egypt prepared survey reports of the damage.
According to these reports the Egasco Star arrived in Alexandria on February 16, 1994. At various times from February 19, 1994 until March 7, 1994, the paper was unloaded onto trucks at quayside for transport to the warehouses of Allam Industries. The consignee apparently discovered the damage upon delivery. The survey reports note that 818 reels from the first consignment, 648 reels from the second consignment, and 151 reels from the third consignment were damaged variously by water, tears and gouges, and squashed reel cores in the amount of nearly $ 150,000.
I. Defendant's Motion to Dismiss
Nippon raises three main objections to defendant's motion. It argues that (1) Egypt is not an adequate alternative forum; (2) a balancing of private and public factors favors upholding plaintiff's choice of forum; and (3) defendant's delay in making this motion should prevent it from prevailing on the motion.
A. Standards for Determining Forum Non Conveniens Motion
Under the common law doctrine of forum non conveniens, a court with proper jurisdiction and venue over a matter may refrain from hearing the case if another significantly more appropriate forum exists. See Nationsbank of Florida v. Banco Exterior de Espana, 867 F. Supp. 167, 169 (S.D.N.Y. 1994). To determine whether a complaint should be dismissed on forum non conveniens grounds, I must consider two issues: 1) the availability of an alternative forum and 2) the balance of private and public interests weighed against the plaintiff's choice of forum. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-07, 91 L. Ed. 1055, 67 S. Ct. 839 (1947); see also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, 254 n.22, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981). While the moving party bears the burden of showing that an alternative forum is clearly more appropriate, Oil Basins Ltd. v. Broken Hill Proprietary Co., 613 F. Supp. 483, 489 (S.D.N.Y. 1985), the decision to grant or deny the motion to dismiss is entirely within my discretion. Piper Aircraft Co., 454 U.S. at 257.
B. Adequacy of Alternative Forum
The first step in conducting a forum non conveniens inquiry is to determine whether an adequate alternative forum exists. There are three instances when courts have determined that the proposed alternative forum is inadequate: (1) when the defendant is not "amenable to process" there; (2) when the proposed alternative forum does not permit litigation of the subject matter of the dispute; and (3) in "rare circumstances" when the remedy offered by the alternative forum is "clearly unsatisfactory." Monsanto Int'l Sales Co. v. Hanjin Container Lines, Ltd., 770 F. Supp. 832, 838 (S.D.N.Y. 1991), aff'd, 962 F.2d 4 (2d Cir. 1992); Travelers Indem. Co. v. S/S Alca, 710 F. Supp. 497, 502 (S.D.N.Y.), aff'd, 895 F.2d 1410 (2d Cir. 1989); see also Piper Aircraft Co., 454 U.S. at 254 n.22.
None of these factors eliminates Egypt as an alternative forum for Nippon's action. First, EAS is an Egyptian corporation with its principal place of business in Egypt. Thus, it is amenable to process in Egypt. In fact, EAS has volunteered that it is subject to jurisdiction in Egypt. (Def. Mem. at 5). Second, Egypt has acceded to the Brussels Convention for the Unification of Certain Rules Relating to Bills of Lading, 51 Stat. 233 (Hague Rules), on which COGSA is modeled, which governs admiralty disputes between parties of different nationalities. (Atty Decl. Exh. 4). Thus, it appears that an Egyptian court has subject matter jurisdiction over this dispute. Third, there is no evidence that the remedy available to Nippon is "clearly unsatisfactory."
Moreover, Nippon's concerns that an Egyptian court would not hear this case are unpersuasive. Dismissal of this action will be conditioned on the exercise of jurisdiction by an Egyptian court. See Calavo Growers v. Belgium, 632 F.2d 963, 968 (2d Cir. 1980), cert. denied, 449 U.S. 1084, 66 L. Ed. 2d 809, 101 S. Ct. 871 (1981). Should the institution of this suit not be possible in Egypt, Nippon will be permitted to ...