Norfolk Ship. & Dry. Corp. v. Motor Yacht La Belle Simone

• Citation: 371 F. Supp. 985
• Decision Date: 30 July 1973
• Docket Number: Civ. No. 340-73.
• Court: U.S. District Court — District of Puerto Rico
• Parties: NORFOLK SHIPBUILDING & DRY-DOCK CORPORATION, Plaintiff, v. The MOTOR YACHT La BELLE SIMONE, her engines, tackle, apparel, furniture and equipment, in rem, and Channel Enterprises, Ltd., in personam, Defendants.

371 F. Supp. 985

NORFOLK SHIPBUILDING & DRY-DOCK CORPORATION, Plaintiff, v. The MOTOR YACHT La BELLE SIMONE, her engines, tackle, apparel, furniture and equipment, in rem, and Channel Enterprises, Ltd., in personam, Defendants.

Civ. No. 340-73.

United States District Court, D. Puerto Rico.

July 30, 1973.

Bird & Bird, San Juan, P. R., for plaintiff.

Hartzell, Ydrach, Mellado, Santiago Pérez & Novas, San Juan, P. R., for defendants.

MEMORANDUM OPINION AND ORDER

TOLEDO, Chief Judge.

This matter came on for hearing upon the motion of defendant Channel Enterprises, Ltd. (hereinafter named Channel) for issuance of an injunction prohibiting plaintiff, Norfolk Shipbuilding & Drydock Corporation (hereinafter Norfolk Ship), from further pursuing Civil Action No. 617-72-N in the Eastern District of Virginia, and upon plaintiff's motion for a transfer of this action pursuant to Title 28, United States Code, Section 1404(a)¹ to the Eastern District of Virginia. To better understand the issues involved, we set forth the following factual background:

1. Certain repairs, modifications and alterations to the Motor Yacht La Belle Simone, owned by defendant Channel, were performed by Norfolk Ship between approximately April 11, 1972 and July 3, 1972, at Norfolk, Virginia and during a voyage of the vessel from Norfolk to New York.

2. The billing for said work was alleged to be $634,774.43, and after several partial payments were made and further payments allegedly refused, Norfolk Ship filed suit on December 13, 1972, against the Motor Yacht La Belle Simone, in rem and against Channel, owner of La Belle Simone, in personam, in the United States District Court for the Eastern District of Virginia, Norfolk Division. The suit was designated Civil Action No. 617-72-N.

3. Since La Belle Simone was not found at the time of filing of suit in the Eastern District of Virginia, no in rem service of process was possible, but Channel answered the complaint in personam pursuant to court order permitting late filing of same on March 16, 1973.

4. Pursuant to local practice in the Eastern District of Virginia, an initial pretrial conference was held on April 10, 1973, and an order was entered that day by the Honorable Walter E. Hoffman, District Judge, setting out a trial date of October 16, 1973, as well as dates for the attorneys' conference, final pretrial conference and various discovery deadlines.

5. On April 10, 1973, an extensive request for production of documents was served by Norfolk Ship upon Channel.

6. On April 17, 1973, La Belle Simone visited Ponce, Puerto Rico, and was attached by the United States Marshal pursuant to suit filed in the United States District Court for the District of Puerto Rico on that day by Norfolk Ship against La Belle Simone in rem. The basis of said suit, designated Civil No. 340-73, was the same allegedly unpaid billing which constituted the basis for the Norfolk suit.

7. On April 19, 1973, while La Belle Simone was still under attachment, the complaint was amended to include Channel as an in personam defendant. That same day, Channel entered a general appearance in San Juan and also made claim to La Belle Simone as owner thereof and posted a bond in the amount of $450,000 to secure the release of the vessel, which thereupon sailed from Puerto Rico.

8. On May 3, 1973, Adin K. Woodward, naval architect from Norfolk, Virginia, and Alyn Fife, marine surveyor from Newport News, Virginia, were subpoenaed to appear for depositions in the Virginia proceeding, and the records of both men with respect to La Belle Simone were also subpoenaed. Mr. Woodward was employed by the owner of La Belle Simone to oversee the work done at Norfolk while Mr. Fife represented Lloyd's Register, the classification society which reviewed and approved portions of the work done at Norfolk Ship.

9. On June 4, 1973, counsel for defendants filed in San Juan a motion to stay the Virginia action, requesting this Court:

"a. That it issue an injunction directed at Norfolk Shipbuilding & Drydock Corporation, to be served through its attorneys in Puerto Rico, Messrs. Bird and Bird, enjoining said plaintiff from proceeding further in the U. S. District Court for the Eastern District of Virginia, Norfolk Division, and warning them that their failure to obey said injunction would result in the cancellation of the security posted for the release of the Yacht La Belle Simone and/or in the dismissal of the present action, and such other relief as the Court may deem fit, including costs, expenses and attorney's fees, and;

b. That pending the granting of said injunction this Honorable Court issue an order to show cause directing Norfolk Shipbuilding & Drydock Corporation to appear before this Court on such date as the Court may set and show cause why it should not be enjoined from proceeding further in the U. S. District Court for the Eastern District of Virginia, Norfolk Division, as set forth above."

10. On June 5, 1973, the records of Adin Woodward were produced in Norfolk and his discovery deposition was taken there.

11. On June 8, 1973, counsel for Norfolk Ship filed in this Court:

a. Motion under Title 28, United States Code, Section 1404(a) for an order directing the transfer of the within action to the United States District Court for the Eastern District of Virginia.

b. Affidavit of counsel in support of motion.

c. Memorandum of law in support of motion.

12. On June 13, 1973, counsel for defendants filed an affidavit alleging that La Belle Simone had visited ports in Florida in January and February of 1973.

With the above factual background, the motion for an injunction and the motion for transfer were consolidated for hearing in this Court on June 15, 1973, at which hearing Norfolk Ship introduced the testimony of John H. Curtis as to the number of shipyard workers and supervisory personnel directly involved in the work performed on La Belle Simone. Mr. Curtis is manager of Norfolk Ship's Southern Yard and was in charge of all work done on La Belle Simone. He testified that if the men who worked on La Belle Simone or even the supervisory personnel — foreman and leadingmen — were needed as witnesses in San Juan that work would be seriously disrupted at Norfolk Ship's Southern and Brambleton yards and some effect would also be felt at the Berley yard. He further testified that most, if not all, workers on La Belle Simone still resided in the Norfolk area as did Mr. Woodward and Mr. Fife.

Based upon the evidence submitted, Counsel for Norfolk Ship argued the following reasons in favor of transfer:

1. All witnesses except for those presently on board La Belle Simone were located in the Norfolk area and amenable to service of process in the Eastern District of Virginia.

2. There are no witnesses in the case residing in Puerto Rico, and the cost of transporting witnesses to San Juan for trial would be excessive.

3. The transportation of Norfolk Ship's witnesses to San Juan for trial would seriously disrupt and hamper Norfolk Ship's ability to conduct business during that period.

4. Since a trial date of October 16, 1973 was already set in Norfolk and certain discovery had been completed and other discovery was pending in the Virginia action, it was argued that a final decision on the case would come sooner in Norfolk that in San Juan.

5. If the action in San Juan were not to be transferred, the various steps already taken in Norfolk, including discovery and a pretrial conference would have to be duplicated in San Juan, and that it was the stated policy of the Federal courts to avoid such duplicitous litigation.

6. Since the work had been performed in Norfolk, any necessity of visiting the premises during the trial or at any other time would be no problem in the Virginia action but would be impossible in the action in Puerto Rico.

7. Since there was voluminous documentary evidence in the form of specifications, blueprints, reports, etc., in Norfolk, it would be a burden to move all of the files to San Juan.

8. Since the cause of action arose in Virginia, presumably Virginia law would apply to various questions arising, and a Virginia court would be in a better position to be aware of and apply Virginia law than would a court sitting in Puerto Rico.

In support of transferring the San Juan action to Norfolk, plaintiff cited the following cases: Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960), and Hercules Company v. SS Aramis, 226 F.Supp. 599 (D.D.La.1964).

Counsel for defendants argued that Norfolk Ship had chosen Puerto Rico as a forum when they attached La Belle Simone in Ponce and required an appearance by Channel and the filing of security to obtain release of La Belle Simone. It was advocated that having made that choice, the plaintiffs could not be heard to complain if defendant chose to defend in Puerto Rico rather than in Norfolk. Further, it was argued that Norfolk Ship as plaintiff has no right to request a transfer under Title 28, United States Code, Section 1404(a).

In a post hearing Supplemental Affidavit of Merits filed June 21, 1973, Channel further argued that there was no need for a great number of Norfolk Ship employees to travel to San Juan, and it was offered to stipulate that any shipyard witnesses could testify via deposition and that the depositions of Woodward and Fife be used in the litigation in Puerto Rico. It was further alleged, "There is practically no likelihood that the Yacht La Belle Simone will ever call at Norfolk, but there is every likelihood that the vessel will call at Puerto Rico next fall. The Captain of the vessel is an essential witness as are several other deck and engine officers." The case Broussard v. The Jersbek, 140 F.Supp. 851 (S.D.N.Y.1956), was cited by Channel in support of the contention that a transfer is not available to plaintiffs...