The opinion of the court was delivered by: John G. Koeltl, District Judge
The plaintiff, Aracruz Trading Ltd. ("Aracruz"), brings this action against the defendant, Japaul Oil and Maritime Services ("Japaul Oil"), for damages arising out of a maritime tort. The defendant moves to dismiss the action on three grounds: lack of subject matter jurisdiction, forum non conveniens, and lack of personal jurisdiction. The defendant also moves to vacate the attachment of its assets obtained by the plaintiff pursuant to Rule B of the Supplemental Rules for Admiralty or Maritime Claims.
The following facts and procedural history, taken from the Complaint and the affidavits and declarations submitted by the parties, are undisputed unless otherwise indicated.
The plaintiff is a business entity organized under the laws of the Marshall Islands, with an office in Greece. (Compl. ¶ 2.) The defendant is a Nigerian corporation (Esemitodje Aff., ¶ 4), located in Port Harcourt, Nigeria (Compl. ¶ 4). On or about February 19, 2008, the defendant's tug boat was towing a wrecked vessel, the M/T STELLAR, through the outer anchorage at Port Harcourt, Nigeria. (Compl. ¶ 5.) While under the defendant's control, the towed vessel struck the plaintiff's vessel, the M/T GAS AMAZON, while the latter was at anchor, causing an allision.*fn1
(Compl. ¶ 6.) The plaintiff alleges that "no police, navy or maritime official contacted the vessel subsequent to the incident regarding any investigation." (Decl. of Capt. Stockley, ¶ 43.) The defendant, however, alleges that the Nigerian Police, Marine Division, was contacted immediately after the incident (Decl. of Capt. Grikpa, ¶ 16), and has submitted a copy of the police report. The plaintiff subsequently filed this Complaint, claiming that the allision was a result of the defendant's negligence (Compl. ¶ 7), and that the plaintiff consequently suffered damages in the sum of $756,000.00 (Compl. ¶ 8). The Complaint alleges that the case falls within this Court's admiralty and maritime jurisdiction pursuant to 28 U.S.C. § 1333. (Compl. ¶ 1.)
The defendant moves to dismiss the Complaint on the grounds of lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), forum non conveniens, and lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). The Court will address each basis for dismissal in turn.
In its motion to dismiss, the defendant contended that this Court lacks subject matter jurisdiction over this action because the maritime allision occurred outside the navigable waters of the United States. In its reply brief, however, the defendant appears to concede that this Court does, in fact, have subject matter jurisdiction over this action. This Court nevertheless has an obligation to assure that it does have subject matter jurisdiction.
In defending a motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of proving the Court's jurisdiction by a preponderance of the evidence. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In considering such a motion, the Court generally must accept the material factual allegations in the Complaint as true. See J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004). The Court does not, however, draw all reasonable inferences in the plaintiff's favor. Id.; Graubart v. Jazz Images, Inc., No. 02 Civ. 4645, 2006 WL 1140724, at *2 (S.D.N.Y. Apr. 27, 2006). Indeed, where jurisdictional facts are disputed, the Court has the power and the obligation to consider matters outside the pleadings, such as affidavits, documents, and testimony, to determine whether jurisdiction exists. See APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003); Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 932 (2d Cir. 1998); Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986). In doing so, the Court is guided by that body of decisional law that has developed under Federal Rule of Civil Procedure 56. Kamen, 791 F.2d at 1011; see also Melnitzky v. HSBC Bank USA, No. 06 Civ. 13526, 2007 WL 1159639, at *5 (S.D.N.Y. April 18, 2007).
To fall within the Court's admiralty jurisdiction, a tort action must meet two requirements: (1) "the alleged tort must have occurred on or over 'navigable waters;'" and (2) "the activity giving rise to the incident must have had a substantial relationship to traditional maritime activity such that the incident had a potentially disruptive influence on maritime commerce." LeBlanc v. Cleveland, 198 F.3d 353, 356 (2d Cir. 1999) (quoting Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995)). "United States District Courts have jurisdiction over admiralty controversies between foreigners, which arise outside the United States." Odita v. Elder Dempster Lines, Ltd., 286 F. Supp. 547, 549 (S.D.N.Y. 1968); see The Belgenland, 114 U.S. 355, 365 (1885) ("[A]lthough the courts will use a discretion about assuming jurisdiction of controversies between foreigners in cases arising beyond the territorial jurisdiction of the country to which the courts belong, yet where such controversies . . . arise under the common law of nations . . . [t]he existence of jurisdiction in all such cases is beyond dispute . . . ."). The district court can decline to retain jurisdiction over an all foreign cause of action, even if there is subject matter jurisdiction to hear the case. "[R]etention of jurisdiction of a suit in admiralty between foreigners is within the discretion of the court of first instance, the exercise of such discretion being final except in case of abuse." The Mandu, 102 F.2d 459, 462 (2d Cir. 1939); see also Kloeckner Reederei und Kohlenhandel G.M.B.H. v. A/S Hakedal, 210 F.2d 754, 755-56 (2d Cir. 1954) (L. Hand, J.). To obtain dismissal, a defendant "must show that he will be unfairly prejudiced, unless [the suit] be removed to some other jurisdiction." Kloeckner, 210 F.2d at 756.
This action, which involves an allision between two vessels on navigable waters, plainly satisfies the requirements of federal admiralty jurisdiction. Moreover, the defendant has not made any showing that it will be unfairly prejudiced if this Court exercises its admiralty jurisdiction. The defendant's 12(b)(1) motion is therefore denied.
The defendant moves to dismiss the Complaint pursuant to the doctrine of forum non conveniens. "[T]he doctrine of forum non conveniens contemplates the dismissal of lawsuits brought by plaintiffs in their favored forum in favor of adjudication in a foreign court." Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 101 (2d Cir.2000). The Court of Appeals for the Second Circuit has established a ...