Anglo-American Grain Co. v. The S/T Mina d'Amico

• Decision Date: 21 January 1959
• Docket Number: No. 7881.,7881.
• Citation: 169 F. Supp. 908
• Parties: ANGLO-AMERICAN GRAIN CO., Ltd., Libellant, v. THE S/T MINA D'AMICO, her engines, tackle, boilers, etc., Respondent.
• Court: U.S. District Court — Eastern District of Virginia

169 F. Supp. 908

ANGLO-AMERICAN GRAIN CO., Ltd., Libellant, v. THE S/T MINA D'AMICO, her engines, tackle, boilers, etc., Respondent.

No. 7881.

United States District Court E. D. Virginia, Norfolk Division.

January 21, 1959.

Michael B. Wagenheim, Norfolk, Va., William Garth Symmers, New York City, for libellant.

Jett, Sykes & Coupland, Henry E. Howell, Jr., Norfolk, Va., for respondent.

WALTER E. HOFFMAN, District Judge.

Under bills of lading dated August 24, 1955, libellant, an English corporation, shipped on board the S.S. Dongola, a vessel of British ownership and registry, at Bombay, India, a cargo of groundnut oil cake expeller valued at $50,000 for carriage to Hamburg, Germany, and Antwerp, Belgium. While off the coast of Spain on September 20, 1955, the S.S. Dongola came into collision with the respondent vessel, S/T Mina D'Amico, of Italian ownership and registry. Libellant's goods were damaged along with other cargo on board. Both vessels were damaged but the hull claims are not before any American court.

This action in admiralty was originally instituted in the United States District Court for the Southern District of New York on September 12, 1957. By an appropriate order entered on October 28, 1957, the cause was transferred to this district. On November 4, 1957, service was accepted by proctors for the claimant-master "with the same force and effect as if said vessel was physically attached". Such acceptance of service is merely the equivalent of attaching the vessel and is frequently used to avoid the necessity of the marshal's services. It does not, of course, authorize the vessel's sailing without giving bond. On the same day bond in the sum of $62,000 for the release of the vessel was fixed by the Court and duly posted.

The immediate question for consideration is the motion of the respondent to decline jurisdiction. Admittedly no American interests are involved. The owner of the Italian vessel has agreed, as a condition to declination of jurisdiction, to post security equivalent to the security already posted in this Court in any court of competent jurisdiction in England or France as may be determined by libellant. Respondent has further agreed to accept service of process in England or France, and will waive any defense of the statute of limitations or laches. Thus we have a situation in which the respondent has agreed to submit to the jurisdiction of libellant's home forum.

Libellant opposes this motion for the obvious reason that if the British vessel, Dongola, contributed to the collision with the Italian vessel, Mina D'Amico, libellant would only be entitled to one-half of its damages in an action instituted in a European court. The United States is the sole remaining major country possessing a large merchant fleet which has refused to adhere to that portion of the Collision Convention of 1910 which makes cargo accept the same proportion of fault as its carrier ship in a both-to-blame collision. Under the American doctrine cargo may recover its full loss from the "other" ship (assuming that said other ship contributed to the collision), and the "other" ship is then permitted to add the cargo recovery to its loss to be divided with the carrier vessel. The variance between the law of the United States and the laws of other major shipping nations leads to efforts on the part of shipowners to avoid being sued in the United States, and like efforts on the part of cargo to institute actions in the United States. Cognizant of the benefits to be derived from the application of the American doctrine, the libellant seeks "justice" in this Court.

There is little to be said from the standpoint of inconvenience, expense or delay. Whatever benefits appear from these factors would clearly suggest that a trial in England is preferable under normal circumstances. It is true that a trial date could be secured in this Court at any mutually convenient time following the completion of testimony, but the arrangements for this evidence to be taken in foreign countries is at best cumbersome. It would be especially difficult to secure the testimony of the crew members of the British vessel, Dongola, should either party desire to avail itself of this opportunity. Such difficulties promote delays, inconvenience, and attendant expense. While it is true that the Italian vessel, Mina D'Amico, has had occasion to visit the Port of Hampton Roads and other ports throughout the United States, no benefit will inure to either party on a trial in this country as the collision occurred more than three years past and the crew of the Mina D'Amico has been transferred to other vessels.

The owners of the two vessels have agreed to arbitration in Paris. The cargo interests, other than libellant, have agreed with the owners of the Mina D'Amico to refer the question of damages and compensation to a single arbitrator to be selected by the parties or, in the absence of agreement, to be appointed by the Committee of Lloyd's. The present libellant should not be deprived of its day in court and cannot be required to submit to arbitration in the absence of any express agreement. However, the fact that proceedings will be conducted in France and England pointedly suggest the convenience of the European forum.

It is freely recognized that controversies which are communis juris should be determined in our courts where the offending vessel has been attached here, unless the Court, in its discretion, is of the opinion that respondent has shown special circumstances for declining to exercise jurisdiction because "justice" may be better served elsewhere. The Belgenland, 114 U.S. 355, 365, 5 S. Ct. 860, 29 L.Ed. 152; The Attualita, 4 Cir., 238 F. 909; Motor Distributors, Limited v. Olaf Pedersen's Rederi A/S, 5 Cir., 239 F.2d 463, certiorari denied 353 U.S. 938, 77 S.Ct. 816, 1 L.Ed.2d 760, rehearing denied 353 U.S. 989, 77 S.Ct. 1282, 1 L.Ed.2d 1147; The Mandu, 2 Cir., 102 F.2d 459; Kloeckner Reederei und Kohlenhamdel v. A/S. Hakedal (The Western Farmer), 2 Cir., 210 F.2d 754, appeal dismissed 348 U.S. 801, 75 S.Ct. 17, 99 L.Ed. 633; The Kaiser Wilhelm Der Grosse, D.C.S.D.N.Y., 175 F. 215. Once the respondent has met the burden of showing that the interests of justice tend to require the action to be heard elsewhere, the district court may then exercise its discretion to retain jurisdiction, or to decline same. The meaning of "discretion" is defined in Langnes v. Green, 282 U.S. 531, 541, 51 S.Ct. 243, 247, 75 L.Ed. 520, as follows:

"The term `discretion' denotes the absence of a hard and fast rule. The Styria v. Morgan, 186 U.S. 1, 9, 22 S.Ct. 731, 46 L.Ed. 1027. When invoked as a guide to judicial action, it means a sound discretion, that is to say, a discretion exercised not arbitrarily or willfully, but with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of the judge to a just result."

Undeniably, the discretion of the district judge must be grounded upon correct legal principles as it is otherwise subject to reversal. When applied on proper legal principles, the discretion is of great weight. The Belgenland, supra; The Maggie Hammond, 9 Wall. 435, 76 U.S. 435, 19 L.Ed. 772; Canada Malting Co. v. Paterson Steamships, 285 U.S. 413, 52 S.Ct. 413, 76 L.Ed. 837, in which Justice Brandeis refers to the "unqualified discretion" of a district judge to decline jurisdiction in cases between foreigners.

In Canada Malting it is noted that libellant's motive for invoking the jurisdiction of a United States court was identical with the motive of the libellant herein, namely, to permit innocent cargo to recover full damages from the non-carrying vessel under the decisions in The Atlas, 93 U.S. 302, 23 L.Ed. 863, and The New York, 175 U.S. 187, 209, 210, 20 S.Ct. 67, 44 L.Ed. 126. Despite the difference in Canadian and United States laws relating to the rights of cargo, the United States Supreme Court affirmed the action of the district court in declining to exercise jurisdiction. In all material respects Canada Malting is essentially the same as the case at bar when we view the conditions imposed by the court as to an appearance in the Canadian action and the requirement to post security. Indeed, Justice Brandeis commented 285 U.S. 413, 52 S.Ct. 416:

"It is difficult to conceive of a state of facts more clearly justifying the refusal of a district court to retain jurisdiction in a cause between foreigners."

"Obviously, the proposition that a court having jurisdiction must exercise it, is not universally true; else the admiralty court could never decline jurisdiction on the ground that the litigation is between foreigners."

While Canada Malting was an in personam action, a foreign attachment was levied and security posted. True, the collision was between two Canadian vessels on the United States side of Lake Superior and the cargo had been shipped on a Canadian bill of lading, whereas we are here faced with a collision between British and Italian vessels on the high seas off the coast of Spain with cargo having been shipped on British bills of lading.

Respondent's offer to accept service of process in England or France, as libellant may elect, together with its agreement to waive the defense of limitation of actions or laches, and its willingness to post security in the European forum equivalent to the amount fixed by this court, has effectively established a forum common to all parties—a forum which is the libellant's home forum and concerning which libellant should not be heard to complain that "justice" is not complete merely because the laws of England (or France), although clearly in line with the majority of other nations, do...