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SERGEY TARASEVICH v. EASTWIND TRANSPORT LTD.

United States District Court, Southern District of New York


July 18, 2003

SERGEY TARASEVICH, PLAINTIFF,
v.
EASTWIND TRANSPORT LTD., ERATIRA NAVIGATION CO. LTD., AND MAYFLOWER SHIPMANAGEMENT CORP., DEFENDANTS.

The opinion of the court was delivered by: John Martin, District Judge

OPINION AND ORDER

This action arises out of an accident aboard the M/V Woodall. Plaintiff Sergey Tarasevich is a citizen and resident of Kaliningrad, Russian Federation and was a third assistant engineer aboard the M/V Woodall in the boiler room on May 9, 2000 when the auxiliary gas boiler exploded as the vessel was departing Montevideo, Uruguay.

The M/V Woodall is a Cypriot flag vessel, owned by Eratira Navigation Co., Ltd., that was crewed exclusively by Russian nationals. Tarasevich was hired by Mayflower Shipmanagement Corp., the manager of the Woodall. Mayflower is a Liberian corporation with principal offices in Piraeus, Greece. E.A. Glyptis Decl. 1 2. Eastwind is a Liberian corporation and maintains offices and a place of business in New York City. James J. Murray Decl. 1 2. Eastwind is the commercial management service to the Woodall's shipowner. Id.

On the day of the accident, the Woodall was departing Uruguay, heading for fishing grounds off of the Falkland Islands. During the departure, Plaintiff was standing watch in the vessel's engine room when the auxiliary gas boiler exploded, causing extensive personal injuries to Plaintiff which resulted in emergency medical treatment in Montevideo and a year's hospitalization, and continual follow-up care in Kaliningrad, Russia.

In March 2002, Plaintiff filed this action. Currently before the Court is Defendants' motion to dismiss on forum non conveniens grounds, arguing that Russia would be a more appropriate forum in which to litigate this matter. For the reasons stated below, Defendants' motion to dismiss the case is granted, subject to reinstatement should Defendants fail to submit to jurisdiction in Russia or fail to waive a statute of limitations defense.

Discussion

Dismissal of a case pursuant to the doctrine of forum non conveniens is addressed to the broad discretion of the district court. Scottish Air Int'l, Inc. v. British Caledonian Group, PLC, 81 F.3d 1224, 1234 (2d Cir. 1996). When assessing a motion for forum non conveniens, the Court begins with the general proposition that plaintiff's choice of forum is entitled to deference, but the "degree of deference given to a plaintiff's forum choice varies with the circumstances." Iragorri v. United Tech. Corp., 274 F.3d 65, 71 (2d Cir. 2001). A court grants a strong presumption in favor of plaintiff's choice of forum, but this presumption is weaker when the plaintiff is foreign. Id.; see also Dattner v. Conagra Foods, Inc., No. 01 cv. 11297, 2003 WL 1740448, at *2-4 (S.D.N.Y. April 2, 2003). As explained by the Second Circuit in Iragorri, the deference accorded plaintiff's choice of forum is based on a sliding scale reflecting the assumed convenience of the forum to the plaintiff:

The Supreme Court explained in Piper that the reason we give deference to a plaintiff's choice of her home forum is because it is presumed to be convenient. . . . In contrast, when a foreign plaintiff chooses a U.S. forum, it "is much less reasonable" to presume that the choice was made for convenience.
Iracorri, 274 F.3d at 71.

Nonetheless, "some weight must still be given to a foreign plaintiff's choice of forum." Murray v. British Broad. Corp., 81 F.3d 287, 290 (2d Cir. 1996).

To determine what level to give plaintiff's choice of forum, the Court must determine what is the "lawsuit's bona fide connection to the United States." Iragorri, 274 F.3d at 72. If there are efficiencies to be gained by trying the case in the plaintiff's choice of forum, like convenience for the plaintiff, availability of witnesses, the defendant's amenability to suit, and the availability of appropriate legal assistance, the plaintiff's choice should receive strong deference. Iragorri, 274 F.3d at 72. In this case, there are few reasons for choosing New York, aside from the possibility of a more favorable outcome. Except for the ability to sue Eastwind in a forum where it does business, any conveniences associated with a New York forum are absent in this case. Plaintiff is seriously injured and lives far from his chosen forum. Most of the crew and the doctors that treated Plaintiff live in Russia. Finally, Plaintiff's lead counsel is a Russian attorney. Considering these factors, deference to Plaintiff's choice of forum falls on the lesser end of the sliding scale.

The next step in the forum non conveniens analysis involves application of the factors set out in Gulf Oil v. Gilbert, 330 U.S. 501, 67 S.Ct. 839 (1947), Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 67 S.Ct. 828 (1947), and Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252 (1981). As an initial matter, the Court must determine whether an adequate alternative forum exists. If so, the Court balances two sets of factors. The first set of factors relates to the private interests or convenience of the litigants and the second set relates to the public interest. Iragorri, 274 F.2d at 74; Alfadda v. Fenn, 159 F.3d 41, 45-46 (2d Cir. 1998).

Is the Alternative Forum Adequate?

Defendants bear the burden of showing an adequate alternative forum exists. Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 100 (2d Cir. 2000). The Second Circuit has held that a forum is generally adequate if the defendant is subject to process in that forum. DiRienzo v. Philip Serv. Corp., 232 F.3d 49, 57(2d Cir. 2000). An agreement by the defendant to submit to the jurisdiction of the foreign forum can generally satisfy this requirement. Murray, 81 F.3d at 292.

Defendants argue that Plaintiff has an adequate alternative forum because Defendants have tendered the amount Plaintiff is entitled to under his Contract if he is severely and permanently disabled from an injury aboard ship. This is not the basis for this Court's finding of an adequate alternative forum. A forum is adequate when a dispute may be litigated in an alternative forum. See DiRienzo, 232 F.3d at 57 (emphasis added).

This Court's determination that an alternative forum exists is based on affidavits of Russian lawyers, Professor Stanislav G. Kargopolov, Plaintiff's expert, and Alexander Balakirev, Defendants' expert. Defendant's expert states that Defendants are subject to suit in Russia. While Professor Kargopolov states that there are difficulties in suing a non-Russian defendant, he concedes that if Defendants accept jurisdiction in Russia, then Plaintiff can litigate the dispute in the Russian courts. Def. Mem. in Supp. at 7. Professor Kargopolov states that "jurisdiction of the Russian Court will be on condition that foreign defendant will voluntarily appear and stay present at the hearing and all stages of the proceedings." Kargopolov Aff. ¶ 5. It is this Court's understanding that Defendants have agreed to do just that and a dismissal on the basis of forum non conveniens is conditional upon Defendants agreement to submit themselves to Russian jurisdiction for the purposes of resolving this action and to waive any statute of limitations defenses.

Plaintiff's counsel has submitted a translation of a decision from a Russian Court which appears to dismiss an admiralty action because the defendants are not Russian nationals. The translated decision makes no mention of any defendants who have consented to jurisdiction in a Russian court and so is inapposite in the instant case.

Plaintiff's counsel also argues that Russia is not adequate because the Russian courts "cannot dispense the due process and remedies that an American court can." Plaintiff's Memo. in Opp'n, at 5. This, however, is not grounds for finding an alternative forum inadequate. Piper Aircraft Co., 454 U.S. at 247, 102 S.Ct. at 261; Alcoa S.S. Co. v. M/V Nordic Regent, 654 F.2d 147, 159 (2d Cir. 1978) (en banc) ("It is abundantly clear . . . that the prospect of a lesser recovery does not justify refusing to dismiss on the ground of forum non conveniens.").

A forum is "adequate so long as it permits litigation of the subject matter of the dispute, provides adequate procedural safeguards and the remedy available in the alternative forum is not so inadequate as to amount to no remedy at all." DiRienzo, 232 F.3d at 57 (citing Piper Aircraft, 454 U.S. at 254-55 & n. 22, 102 S.Ct. 252.). Plaintiffs have indicated that an award in Russian is not likely to be as great as one in the United States, but have not articulated ways in which a Russian remedy would be akin to no remedy at all.

Private Interest Factors

After ascertaining the availability of an adequate, alternative forum, the Court must judge how convenient plaintiff's forum would be to the litigants. These factors are:

the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditions and inexpensive.
Gilbert, 330 U.S. at 508, 67 S.Ct. 839.

None of the private interest factors in this case point to any efficiencies to be gained by trying it in the United States. Plaintiff points out that the burden of trying this case in New York would be borne primarily by him because of the difficulties in coming here, and notes that he is willing to do so. What counsel fails to acknowledge, however, is that the very fact that there are no practical reasons for trying the case here indicates that Plaintiff's choice of this forum is primarily motivated by forum-shopping reasons and not for convenience of the Plaintiff. Although the burden may be greatest for the Plaintiff, there is undoubtedly a burden on Defendants to try a case in the United States when all the medical witnesses and witnesses to the accident are in Russia.

Documents concerning the maintenance of the gas boiler are stored in Mayflower's offices in Piraeus, Greece. Murray Decl. at ¶ 10. Documents in Greek kept in Greece are a neutral factor when determining a New York or Russian forum. Neither party has mentioned the need to view the ship or any difficulty doing that in Russia if need be. Because the bulk of the evidence is in Russia and Defendants have conceded their availability in the Russian courts, the private interest factors clearly point to Russia as the appropriate forum.

Public Interest Factors

The public interest factors relevant to the analysis go to whether litigation will be "piled up in congested centers;" whether "jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation;" whether there is a "local interest in having localized controversies decided at home," and what court will be best equipped to apply the relevant law. Gilbert, 330 U.S. at 843, 67 S.Ct. at 508-09.

Again, the public interest factors indicate that this case involving injury to a Russian seaman be tried in his home country. Russia has the competing interests of protecting her seaman and having her seaman be able to compete in the global merchant marine. Russian courts have the greatest interest in determining the appropriate balance.

The court administration interests are a neutral factor in this case because there has been no evidence offered about which courts are more congested. The action's only connection to this forum is that the ship is allegedly owned by New York residents. Even this connection does not carry much weight because the injury and treatment occurred elsewhere.

Conclusion

Accordingly, Defendants' forum non conveniens motion should be granted and the case dismissed without prejudice for reinstatement should Defendants fail to consent to suit in Russia or fail to waive the statute of limitations defense.

SO ORDERED.

20030718

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