Alcoa S. S. Co., Inc. v. M/V Nordic Regent

• Decision Date: 04 April 1978
• Docket Number: No. 1558,D,1558
• Citation: 654 F.2d 147
• Parties: ALCOA STEAMSHIP COMPANY, INC., Plaintiff-Appellant, v. M/V NORDIC REGENT, Her boilers, tackle, machinery and other appurtenances in rem, and Norcross Shipping Co., Inc., as her Owner, in personam, Defendants- Appellees. ocket 78-7054. . Originally
• Court: U.S. Court of Appeals — Second Circuit

Page 147

654 F.2d 147

70 A.L.R.Fed. 847

ALCOA STEAMSHIP COMPANY, INC., Plaintiff-Appellant, v. M/V NORDIC REGENT, Her boilers, tackle, machinery and other appurtenances in rem, and Norcross Shipping Co Inc., as her Owner, in personam Defendants- Appellees.

No. 1558, Docket 78-7054.

United States Court of Appeals, Second Circuit.

Originally Argued April 4, 1978;

Decided Aug. 31, 1978.

Petition for Rehearing Submitted to the Panel Sept. 18, 1978;

Decided Jan. 10, 1979.

Petition for Rehearing En Banc Submitted to the En Banc

Court April 2, 1979;

Decided Feb. 25, 1980.

J. Ward O'Neill, Gordon W. Paulson, Emil A. Kratovil, Jr., and Haight, Gardner, Poor & Havens, New York City, for plaintiff-appellant Alcoa Steamship Company, Inc.

Hollis M. Walker, Jr., Richard A. Corwin, Vera E. Weinberg, and Walker & Corsa, New York City, for defendants-appellees N/V Nordic Regent and Norcross Shipping Co., Inc.

Douglas A. Jacobson, Robert S. Burrick, and Bigham, Englar, Jones & Houston, New York City, for American Institute of Marine Underwriters, Amicus Curiae.

Before KAUFMAN, Chief Judge, FEINBERG, MANSFIELD, MULLIGAN, OAKES, TIMBERS, GURFEIN, ^* VAN GRAAFEILAND and MESKILL, Circuit Judges.

TIMBERS, Circuit Judge (with whom KAUFMAN, Chief Judge, FEINBERG, MANSFIELD, MULLIGAN and MESKILL, Circuit Judges, concur):

We have before us for en banc reconsideration an appeal from a judgment entered in the Southern District of New York, William C. Conner, District Judge, 453 F.Supp. 10 (S.D.N.Y.1978), which conditionally dismissed an admiralty action on the ground of forum non conveniens.

The essential question presented is what is the proper standard for determining a motion to dismiss an admiralty action on the ground of forum non conveniens when the action has been brought by an American resident libelant in a United States district court and when there is an alternative forum abroad.

For the reasons below, we hold that the proper standard is that set forth by the Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), and recently adhered to by our Court in Farmanfarmaian v. Gulf Oil Corp., 588 F.2d 880 (2 Cir.1978). The district court properly applied that standard in the instant case. It held in the exercise of its discretion, after carefully balancing the relevant factors, that conditional dismissal on the ground of forum non conveniens was warranted. Since we hold that the district court applied the proper standard and we find no abuse of discretion on its part, we vacate the judgment and opinion of the panel on rehearing, 654 F.2d 169, and affirm the judgment of the district court.

I.

The facts relevant to this appeal are simple and straightforward. ¹

Shortly before midnight on January 2, 1977, the M/V Nordic Regent ("the vessel") collided with a transfer station ore pier owned by Alcoa Steamship Company, Inc. ("Alcoa") located in Port Tembladora, Trinidad, West Indies, causing, according to Alcoa's claim, an estimated $8,000,000 of damage to its pier. At the time of the collision, the vessel was under charter to Alcoa as an ore carrier. The vessel was owned by the Norcross Shipping Co., Inc. ("Norcross"), a Liberian corporation. Alcoa is a New York corporation engaged in business here and abroad.

Alcoa claims that the collision was due chiefly to the failure of the master of the vessel to take on a local pilot before entering the harbor, as required by Trinidad and Tobago statutory law. See Empire Transport, Inc. v. United States, 524 F.2d 1, 5 (2 Cir.1975). Apparently the master was informed by radio that a pilot would meet the vessel at a point about one-half mile from the harbor. The pilot was not there when the vessel arrived. Rather than waiting for the pilot, the master proceeded into the harbor without a pilot and attempted to tie up at the pier on his own. The collision between the vessel and the pier resulted.

Alcoa commenced the instant admiralty action in the Southern District of New York to recover the property damage to its pier in Trinidad claimed to have resulted from the alleged negligence of the vessel and its master. Alcoa named as defendants the M/V Nordic Regent and its owner, Norcross. Process was served on Norcross through its general agent in New York. Norcross moved to dismiss the action on the ground of forum non conveniens.

The district court took the motion to dismiss on submission, based on the pleadings, affidavits and briefs of the parties--a practice long recognized as acceptable and followed from time immemorial in the busy Southern District of New York in determining forum non conveniens motions. E.g., Koster v. Lumbermens Mutual Casualty Co., 330 U.S. 518, 531 (1947); Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633, 645 (2 Cir.), cert. denied, 352 U.S. 871 (1956).

On January 17, 1978, Judge Conner filed a thoughtful, concise opinion, 453 F.Supp. 10, which set forth in detail the contentions of the respective parties and carefully balanced the factors which should be considered in applying the doctrine of forum non conveniens under Gilbert, supra. ² This was the crux of the judge's decision:

"This Court is persuaded that the lack of a substantial nexus between this controversy and the Southern District of New York combined with the inconvenience and possible prejudice to the defendant resulting from retention of jurisdiction here--which substantially outweigh any inconvenience plaintiff may suffer--renders this an inappropriate forum; an evaluation of the contentions of the parties compels the conclusion that the litigation of this case can be conducted most expeditiously and inexpensively in Trinidad." 453 F.Supp. at 12.

Accordingly, defendant's motion to dismiss on the ground of forum non conveniens was granted--but not unconditionally. The judge imposed two important conditions which are best stated in his opinion:

"Finally, dismissal will not leave plaintiff without any remedy. Defendant has agreed to submit to the jurisdiction of the courts of Trinidad as a condition of dismissal of this suit; moreover, defendant has already commenced a suit in Trinidad which establishes its presence there for purposes of suit by plaintiff. Defendant has also offered a letter of guaranty that a Trinidadian judgment will be satisfied and agreed that this may be made a condition of the dismissal of this action. ....

... [D]efendant's motion to dismiss is granted, subject to reinstatement in the event that defendant shall fail to submit to jurisdiction in Trinidad with respect to the subject matter of this action and execute the guaranty of satisfaction of judgment described above." Id. at 13.

From the judgment entered on Judge Conner's opinion, Alcoa appealed, resulting in the two panel decisions referred to above, note 1, supra, and the instant en banc proceeding which is directed to the second panel decision.

With the foregoing brief summary of the facts and prior proceedings in mind, we shall consider in the remainder of this opinion (1) the applicability to admiralty actions of the Supreme Court's Gilbert standard, as reaffirmed by our Court in Farmanfarmaian, for determining motions to dismiss on the ground of forum non conveniens; (2) whether the admiralty nature of the action or the American citizenship of the plaintiff justifies creating a special rule of forum non conveniens; and (3) whether the district court in the instant case, in conditionally dismissing the action on the ground of forum non conveniens, abused its discretion under the Gilbert standard.

II.

We turn first to the applicability to admiralty actions of the Supreme Court's Gilbert standard, as reaffirmed by our Court in Farmanfarmaian, for determining motions to dismiss on the ground of forum non conveniens.

(A) GILBERT

For more than three decades, Justice Jackson's opinion in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), has been recognized as the leading authority on forum non conveniens. That case involved an action commenced in the Southern District of New York by a Virginia plaintiff against a Pennsylvania corporation to recover damages caused by a fire in a warehouse located in Lynchburg, Virginia. Acknowledging that a court "may resist imposition upon its jurisdiction", 330 U.S at 507, ³ the Supreme Court, in reversing our Court, approved the district court's dismissal of the action on the ground of forum non conveniens. In doing so, the Court set forth the factors to be considered by the trial court, in the exercise of its discretion, in determining whether to grant or deny a motion to dismiss on the ground of forum non conveniens. ⁴ These are precisely the factors which the district court below evaluated before conditionally granting the instant motion to dismiss. 453 F.Supp. at 11-13.

Gilbert recognized that "unless the balance [of convenience] is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." 330 U.S. at 508. The decision also made clear that more than the private convenience interests of the litigants--and much more than the plaintiff's subjective intent--should be considered by the federal courts in acting on forum non conveniens motions. The interests of justice and court efficiency also must be weighed.

The standard of Gilbert is thus a twofold one--involving both the court's public interest concerns and the private interests of the parties. As one commentator put it, the Gilbert standard "nicely blends" considerations of harassment by the parties with a balancing of conveniences. Braucher, note 3, supra, at 923.

On the same day that Gilbert was decided, Justice Jackson announced the opinion for the Court in another forum non conveniens case. Koster v. Lumbermens Mutual Casualty Co., 330 U.S. 518 (1947). In that case, a derivative action commenced in the Eastern District of New York by a New York plaintiff against Illinois defendants, the Supreme Court, in affirming our Court, again approved the district court's...