521 F.2d 448 (2nd Cir. 1975), 195, Fitzgerald v. Texaco, Inc.

Docket Nº:195, 205, Dockets 74-1958, 74-1468.
Citation:521 F.2d 448
Party Name:Thomas I. FITZGERALD, Public Administrator of the County of New York, Administrator of the Estate of Hagen Pastewka, Deceased and Monica Pastewka, Individually, Plaintiffs-Appellants, v. TEXACO, INC., and Texaco Panama, Inc., Defendants-Appellees, and ConsolidatedCases.
Case Date:June 25, 1975
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 448

521 F.2d 448 (2nd Cir. 1975)

Thomas I. FITZGERALD, Public Administrator of the County of

New York, Administrator of the Estate of Hagen

Pastewka, Deceased and Monica Pastewka,

Individually, Plaintiffs-Appellants,


TEXACO, INC., and Texaco Panama, Inc., Defendants-Appellees,

and ConsolidatedCases.

Nos. 195, 205, Dockets 74-1958, 74-1468.

United States Court of Appeals, Second Circuit

June 25, 1975

Argued April 2, 1975.

As Modified on Denial of Rehearing July 25, 1975.

Certiorari Denied Jan. 12, 1976.

See 96 S.Ct. 781.

Page 449

MacDonald Deming, New York City (Haight, Gardner, Poor & Havens, and Emil A. Kratovil, Jr., New York City, on the brief), for appellants Hapag-Lloyd, A. G., and Stork Amsterdam N. V., and others.

Harvey Goldstein, New York City (Fuchsberg & Fuchsberg, New York City, on the brief), for appellant Thomas I. Fitzgerald, as Administrator for Estate, etc.

Alvin L. Stern, New York City (Poles, Tublin, Patestides & Stratakis, Melvin J. Tublin and John J. Devine, Jr., New York City, on the brief), for appellees Texaco Inc. and Texaco Panama Inc.

Before ANDERSON, MANSFIELD and OAKES, Circuit Judges.

ROBERT P. ANDERSON, Circuit Judge:

On January 12, 1971, the M/V Brandenburg, a German vessel, struck the wreckage of the S/T Texaco Caribbean, a Panamanian vessel, owned by Texaco Panama, Inc. (Texpan), a foreign subsidiary of Texaco, Inc. (Texaco), in the Dover Straits 12 miles from the coast of England, where the Texaco Caribbean lay submerged as a result of a collision the previous day with the M/V Paracas, a Peruvian vessel. Suits were brought in the Southern District of New York by Hapag-Lloyd, A.G., and Stork Amsterdam N.V. Industrias Lacteas Dominicanas, S.A., et al., foreign corporations, against Texaco under general maritime law for the loss of the Brandenburg and her cargo, respectively, and by 12 estates of deceased German seamen, through the Public Administrator of the County of New York, against Texaco and Texpan under the general maritime law and the Death on the High Seas Act, 46 U.S.C. § 761 et seq. The claims were based on defendants' alleged failure properly to mark the wreckage of the Texaco Caribbean.

The defendants filed a motion to dismiss these actions which was granted by the district court under the doctrine of forum non conveniens upon the recommendation of the magistrate to whom the motion had been referred. The dismissal was subject, however, to the conditions that the defendants submit to the jurisdiction of the courts in England, where Texpan and several of the present plaintiffs, among others, are parties in pending suits arising from the same series of events, and that the defendants waive any defense of a statute of limitations which they might have there. 1

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The evidentiary material, submitted by the parties, disclosed the following undisputed facts. Texaco Overseas Tankships Limited (TOT), a British subsidiary of Texaco which managed the Texaco Caribbean for Texpan, notified Trinity House, a British corporation with the statutory duty of locating and marking wrecks off the coast of England, of the collision between the Paracas and the Texaco Caribbean, while the stern section of the latter was then still afloat, and requested that action be taken to mark the area. In response thereto, Trinity House dispatched its ship Siren to the scene, but by the time she arrived, the stern section of the Texaco Caribbean had sunk. The Siren mistakenly moored at the edge of an oil slick which she assumed indicated the location of the wreck and warned other vessels to avoid that area. Later, members of the crews of two British fishing vessels saw the Brandenburg run into the wreck of the Texaco Caribbean which was actually located about a mile from the Siren's anchored position. This occurred about 0730 on January 12, 1971. The Brandenburg sank immediately.

Prospective witnesses, such as employees of TOT, surviving crew members of the Texaco Caribbean, who are Italian nationals, employees of Trinity House, and the English crew members of the fishing vessels, all reside in or near England.

The plaintiffs had served numerous interrogatories and requests for the inspection of certain documents upon Texpan's counsel before responding to the motion to dismiss, but the district court issued a protective order limiting discovery to what in its opinion might disclose the location of important sources of proof.

In response to the interrogatories allowed, Texpan stated that TOT had exclusive authority under the Ship Management Agreement to take all necessary action to mark the wreck of the Texaco Caribbean, and that no one residing in the United States had been consulted about the operation.

Plaintiffs, nevertheless, still claimed that Texaco had supervised the search operation from New York, and many of the witnesses and documents, which were essential to the proof at the trial, were there; and that, therefore, trial in New York would best serve the convenience of the parties. The evidentiary material offered in support of their contention was, however, of insubstantial value. It consisted of a copy of an inter-office memorandum written by an employee of Smit-Tak, a Dutch company operating a fleet of wreck-search vessels, which stated that Smit-Tak had offered its services to TOT on the day of the Paracas collision, but that TOT had replied that it could not hire Smit-Tak without authorization from Texaco's New York office. Plaintiffs also served a notice to admit that a Texpan official had signed a letter in 1967 (four years before the occurrences in the present case), written on Texpan stationery bearing a New York address, and further proposed to take depositions of Texpan officials regarding matters which had already been covered in the interrogatories and affidavits but the district court issued a protective order barring both the notice to admit and the additional discovery. This appeal followed.

The sole issue presently before this court is whether or not the district court abused its discretion in granting the motion to dismiss the action on the ground of forum non conveniens.

An action may properly be dismissed under the doctrine of forum non conveniens when the convenience of the parties and the ends of justice weigh heavily against the retention of jurisdiction. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507-8, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); Vanity Fair Mills v. T. Eaton Co., 234 F.2d 633, 645-6 (2 Cir.), cert. denied,352 U.S. 871, 77 S.Ct. 96, 1 L.Ed.2d 76 (1956). Another factor to be considered is the public interest which includes a limitation on the use of a local forum for resolution of controversies which lack significant local contacts, especially

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when trial of the action would create administrative and legal problems for the courts. Gulf Oil Corp. v. Gilbert,supra, 330 U.S. at 508, 67 S.Ct. 839. This is not a case where the plaintiffs or any of them has a "home jurisdiction" in the Southern District of New York. Koster v. Lumbermens Mutual Co., 330 U.S. 518, 524, 67 S.Ct. 828, 91 L.Ed. 1067 (1947). Although plaintiffs should rarely be deprived of the advantages of their chosen forums, "the doctrine leaves much to the discretion of the court," 2 whose decision, absent a clear showing of abuse of discretion, may not be disturbed. Fitzgerald v. Westland Marine Corp., 369 F.2d 499, 502 (2 Cir. 1966).

Among the major factors bearing on the convenience of the parties are ease of access to sources of proof, the availability of compulsory process and the cost of obtaining willing witnesses. Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at 508, 67 S.Ct. 839, Fitzgerald v. Westland Marine Corp., supra, at 501.

Even on the plaintiffs' statement of the facts, the convenience to all parties of trying these cases in the English courts and the vast inconvenience to all of trying the cases in New York, overwhelmingly outweighs the temporary convenience to the plaintiffs of getting access to evidentiary material in Texaco's possession in New York. 3

What the plaintiffs want to prove is that TOT could make no move with regard to buoying the wreck of the Texaco Caribbean or otherwise take steps to warn mariners of the obstruction without orders from Texaco in New York. But TOT is in England and its officers and records are there. Moreover, Texaco does business in England. The plaintiffs should find their best proof right there, not only with regard to Texaco but also as to any liability on the part of Texpan. In fact, the plaintiffs' cases on liability will depend in large measure upon the knowledge and activities of such witnesses as the employees of TOT and Trinity House, who are not parties to this litigation, but who directly participated in the events which gave rise to it. The United States District Court in New York, however, has no power to subpoena any of these witnesses. 4 It is

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unlikely that many would be willing to travel to New York to testify; and the cost, in any event, would be prohibitively great. Those witnesses who reside in England are subject to the compulsory process of her courts; and the others, if willing to testify, could do so there at reasonable expense.

The plaintiffs, moreover, will not be significantly inconvenienced by dismissal. The district court granted the motion on the express condition that Texaco submit to the jurisdiction of the courts in England where, upon court order, personnel will be available to testify and necessary documents may be produced. As the real parties in interest are either German citizens and residents or foreign corporations, it appears that a trial in England, where several are already parties to related suits, would be considerably less burdensome than a trial in New York. The balance of convenience under these circumstances clearly tips in favor of dismissal.

Liability for a collision on the high...

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