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SERGEY TARASEVICH v. EASTWIND TRANSPORT LTD.

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 ...


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