Cliffs-Neddrill v. M/T RICH DUKE

• Decision Date: 22 March 1990
• Docket Number: Civ. A. No. 90-51-JLL.
• Citation: Cliffs-Neddrill v. M/T RICH DUKE, 734 F.Supp. 142 (D. Del. 1990)
• Parties: CLIFFS-NEDDRILL TURNKEY INTERNATIONAL-ORANJESTAD; Neddrill 2 B.V.; Neddrill (Nederland) B.V., Plaintiffs, v. M/T RICH DUKE, her engines, tackle, apparel, etc., in rem; Rich Ocean Tankers S.A.; Fuyo Kaiun Co., Ltd. in personam, Defendants.
• Court: U.S. District Court — District of Delaware

734 F. Supp. 142

CLIFFS-NEDDRILL TURNKEY INTERNATIONAL-ORANJESTAD; Neddrill 2 B.V.; Neddrill (Nederland) B.V., Plaintiffs, v.M/T RICH DUKE, her engines, tackle, apparel, etc., in rem; Rich Ocean Tankers S.A.; Fuyo Kaiun Co., Ltd. in personam, Defendants.

Civ. A. No. 90-51-JLL.

United States District Court, D. Delaware.

March 22, 1990.

COPYRIGHT MATERIAL OMITTED

Peter M. Sieglaff of Potter, Anderson & Corroon, Wilmington, Del., James J. Sentner, Jr. of Haight, Gardner, Poor & Havens and David E. Black of Griggs & Harrison, Houston, Tex., of counsel, for plaintiffs.

Wayne J. Carey of Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, Del., Joseph C. Smith and Wendy D. Ciolino of Burlingham, Underwood & Lord, New York City, of counsel, for defendants.

MEMORANDUM OPINION

LATCHUM, Senior District Judge.

I.BACKGROUND

On January 21, 1990, two ships failed to pass in the night.The tanker Rich Duke, while on a voyage from Puerto Miranda, Venezuela to Delaware City, Delaware, collided with the drillship Neddrill 2.Both ships were damaged.After reducing speed and exchanging radio messages, the Rich Duke continued on to Delaware.

Upon arriving in the territorial waters of Delaware on January 26, 1990, the Rich Duke was arrested pursuant to an in rem action filed against the Rich Duke, and an in personam action filed against the owner and manager of the Rich Duke.See Docket Item ("D.I.")1.The plaintiffs are Neddrill B.V., the Dutch owner of the Neddrill 2, Cliffs-Neddrill Turnkey International-Oranjestad, the time charterer, and Neddrill (Nederland) B.V., the operator of the Neddrill 2.¹These actions allege negligence in the operation and running on the part of those in charge of the Rich Duke.Seeid. at 4.

Just before the Rich Duke entered Delaware, however, Rich Ocean Tankers S.A., the Bahamian corporation who owns the Rich Duke, and Fuyo Kaiun Co., Ltd., the Japanese corporation managing the Rich Duke,² filed a limitation of liability action in The Netherlands.Defendants now move to vacate the arrest and dismiss the complaint on the grounds of forum non conveniens, or alternatively, comity.This Court has jurisdiction under 28 U.S.C. § 1333.

II.DISCUSSION

A.FORUM NON CONVENIENS

The Supreme Court's decision in Gulf Oil Corp. v. Gilbert,330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055(1947), provides the analytical framework for all forum non conveniens analyses.SeeLacey v. Cessna Aircraft Co.,862 F.2d 38, 42(3rd Cir.1988);In re Air Crash Near New Orleans,821 F.2d 1147, 1162(5th Cir.1987), vacated on other grounds sub nom., Pan American World Airways v. Lopez,___ U.S. ___, 109 S.Ct. 1928, 104 L.Ed.2d 400(1989);Alcoa S.S. Co., Inc. v. M/V Nordic Regent,654 F.2d 147, 150(2d Cir.), cert. denied,449 U.S. 890, 101 S.Ct. 248, 66 L.Ed.2d 116(1980);Chiazor v. Transworld Drilling Co., Ltd.,648 F.2d 1015, 1019(5th Cir.1981), cert. denied,455 U.S. 1019, 102 S.Ct. 1714, 72 L.Ed.2d 136(1982).Gilbert held that if the defendant moving for dismissal establishes the existence of an adequate alternative forum, a district court must then balance the public and private interests involved to determine whether dismissal is warranted.A motion to dismiss should only be granted if the defendant demonstrates that the private interests weigh "strongly" in favor of dismissal, and shows also that the public interests favor the alternative forum.Gilbert,330 U.S. at 508-09, 67 S.Ct. at 843.

Although Gilbert was a diversity case concerning a warehouse fire, the Gilbert analysis, as clarified by Koster v. American Lumbermens Mutual Casualty Co.,330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067(1947), Piper Aircraft Co. v. Reyno,454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419(1981), andVan Cauwenberghe v. Biard,486 U.S. 517, 108 S.Ct. 1945, 100 L.Ed.2d 517(1988), is fully applicable to all forum non conveniens motions, including in rem admiralty actions.SeeIn re Air Crash,821 F.2d at 1163;id. at 1163-64 n. 25;Perusahaan Umum Listrik Negara v. M/V Tel Aviv,711 F.2d 1231, 1236(5th Cir.1983);Veba-Chemie A.G. v. M/V Getafix,711 F.2d 1243, 1245(5th Cir.1983);Nordic Regent,654 F.2d at 148;id. at 153.

At the outset, the Court notes that the burden of proof on all elements of the forum non conveniens analysis lies with the defendant.SeeLony v. E.I. Du Pont de Nemours & Co.,886 F.2d 628, 632(3rd Cir.1989);Lacey v. Cessna Aircraft Co.,862 F.2d 38, 43-44(3rd Cir.1988);Tel Aviv,711 F.2d at 1240.

1.An Adequate Alternative Forum

This inquiry begins by determining whether the Netherlands is an adequate alternative forum.SeePiper Aircraft,454 U.S. at 254 n. 22, 102 S.Ct. at 265 n. 22;Lony,886 F.2d at 633;Lacey,862 F.2d at 43.Of course, in order for a forum to be an alternative it must be available for plaintiff to bring suit.This requirement can be satisfied in the present case by requiring the Rich Duke to consent to continued Dutch jurisdiction and to waive certain defenses as prerequisites to dismissal.SeeGetafix,711 F.2d at 1245;Tel Aviv,711 F.2d at 1239;Macedo v. Boeing Co.,693 F.2d 683, 687(7th Cir.1982).Indeed, defendants have already submitted to the jurisdiction of the Dutch court and represent that they"will not unilaterally or without consent of the plaintiffs discontinue any of the proceedings...."D.I. 28at 8-9.While this Court may impose additional conditions on dismissal, the court in the Netherlands is clearly available.

Similarly, the Dutch court is an adequate forum.A forum is adequate if the plaintiffs will be treated fairly and will not be deprived of their remedy.SeePiper Aircraft,454 U.S. at 254-55, 102 S.Ct. at 265-66;In re Air Crash,821 F.2d at 1165;Getafix,711 F.2d at 1250.The alternative forum need not offer all remedies and benefits of the plaintiffs' original choice.SeeZipfel v. Halliburton Co.,832 F.2d 1477, 1484(9th Cir.1987), cert. denied,486 U.S. 1054, 108 S.Ct. 2819, 100 L.Ed.2d 921(1988).

Interestingly, the Dutch plaintiffs claim that the Dutch court is not an adequate forum: "The Dutch system doesn't allow depositions.The Dutch system doesn't allow cross-examination by counsel.Under the Dutch system the court decides what issues will be tried and testimony taken on.There is no contemporaneous record and hearsay is freely admitted."D.I. 32at 11.While the defendants have not introduced any contrary evidence on this point, that failure is excused because these contentions were not raised by plaintiff until oral argument, after the close of all briefing on the motion.Nevertheless, the plaintiff has shown neither that they will be treated unfairly in the Netherlands nor that they will be deprived of a remedy.³This Court is not prepared to hold that the inquisitorial system of adjudication, in and of itself, constitutes an inadequate forum, and finds, as other courts recently have, that the Netherlands is an adequate forum.See, e.g., Belcher Co. of Alabama, Inc. v. M/V Maratha Mariner,724 F.2d 1161, 1165-66(5th Cir.1984)(staying action in United States pending the outcome of related suit in the Netherlands);Getafix,711 F.2d at 1249(holding that a Netherlands court satisfies the adequate alternative forum requirement).

2.Balancing Interests

Having concluded that an adequate alternative forum exists in the Netherlands, it is now appropriate to balance the private and public interests involved in this action.

a. Private Interest Factors

As a foreign plaintiff, Neddrill receives less deference than residents or citizens in their home forum.SeePiper Aircraft,454 U.S. at 255-56 & nn. 23-24, 102 S.Ct. at 265-66 & nn. 23-24.The Third Circuit has cautioned that this lessened deference does not mean that a foreign plaintiff's choice of forum is accorded no deference at all.SeeLacey,862 F.2d at 45-46;see alsoIn re Air Crash,821 F.2d at 1164 n. 26.Indeed, a district court abuses its discretion if it fails to state exactly what deference it shows a foreign plaintiff.SeeLony,886 F.2d at 632;id. at 634.

Plaintiffs who choose their home forum receive great deference in that choice because "it is reasonable to assume that this choice is convenient.When the plaintiff is foreign, however, this assumption is much less reasonable.Because the purpose of any forum non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiff's choice deserves less deference."Piper Aircraft,454 U.S. at 255-56, 102 S.Ct. at 266.Because mere convenience is the touchstone of the inquiry, the reluctance to defer to a foreign plaintiff's choice of forum "can readily be overcome by a strong showing of convenience."Lony,886 F.2d at 634.

Neddrill has brought a maritime in rem action.Such an action may only be brought in the district in which the res is located.SeeRiffe Petroleum Co. v. Cibro Sales Corp.,601 F.2d 1385, 1389(10th Cir.1979);Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel,569 F.2d 330, 333(5th Cir.1978);Rule C, Supplemental Rules for Certain Admiralty and Maritime Claims.Because an in rem action may only be brought in one district, that district, in most cases, should be deemed convenient.When bringing an in rem action, therefore, a foreign plaintiff takes a substantial step towards being put on the same footing as a domestic plaintiff, particularly when the suit is brought in the first district the defendant-vessel enters after a collision.SeeTel Aviv,711 F.2d at 1240 n. 24.Neddrill has done just that.Accordingly, this Court finds the Neddrill is on substantially "the same footing as a domestic plaintiff."Lony,886 F.2d at 634.⁴

The Third Circuit recently, and clearly, articulated the standard a district court must utilize when balancing the private interests in a forum non conveniens analysis.Twice in Lony v. E.I. Du Pont de Nemours & Co.the court stated that in order for a defendant to prevail, the private interest analysis must "`establish ......