Dawson v. Compagnie des Bauxites de Guinee

• Decision Date: 05 January 1984
• Docket Number: Civ. A. No. 82-407-JLL,82-426-JLL.
• Citation: 593 F. Supp. 20
• Parties: Janet C. DAWSON, in her own right and as personal representative for the Estate of Peter W. Dawson, Deceased, Plaintiff, v. COMPAGNIE DES BAUXITES DE GUINEE, a Delaware corporation, Defendant. Janet C. DAWSON, in her own right and as personal representative for the Estate of Peter W. Dawson, Deceased, Plaintiff, v. HALCO (MINING) INC., a Delaware corporation, Defendant.
• Court: U.S. District Court — District of Delaware

593 F. Supp. 20

Janet C. DAWSON, in her own right and as personal representative for the Estate of Peter W. Dawson, Deceased, Plaintiff, v. COMPAGNIE DES BAUXITES DE GUINEE, a Delaware corporation, Defendant.

Janet C. DAWSON, in her own right and as personal representative for the Estate of Peter W. Dawson, Deceased, Plaintiff, v. HALCO (MINING) INC., a Delaware corporation, Defendant.

Civ. A. Nos. 82-407-JLL, 82-426-JLL.

United States District Court, D. Delaware.

January 5, 1984.

Walter L. Pepperman, II and Eric C. Howard of Morris, Nichols, Arsht & Tunnell, Wilmington, Del., for plaintiff.

Wayne N. Elliott of Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, Del., for defendants.

OPINION

LATCHUM, Senior District Judge.

These two civil actions based on diversity of citizenship¹ seek to recover monetary damages for wrongful death and personal injuries arising out of a motor vehicle accident which occurred on July 12, 1980, in the Boke region of the Republic of Guinea in West Africa.²

The plaintiff in both actions is Janet C. Dawson, a citizen and presently a resident of Great Britain, who sues as the personal representative of the estate of her late husband, Peter ("Mr. Dawson"), who died as a result of injuries sustained in the accident, and in her own behalf for injuries she also sustained.

In the first suit filed on June 24, 1982, plaintiff named Compagnie Des Bauxites De Guinee ("CBG"), a Delaware corporation, as the sole defendant.³ The second action filed on July 7, 1982, named Halco (Mining) Inc., a Delaware corporation, as the only defendant.⁴

CBG is a company engaged in the mining, processing and shipping of bauxite in the Republic of Guinea and is 49% owned by the Guinean government and 51% owned by Halco. Halco is a closely-held Delaware corporation whose stock is 41% owned by aluminum producing companies incorporated in the United States and 59% owned by aluminum producers incorporated in foreign countries.⁵

In virtually identical amended complaints filed in the two actions, plaintiff alleges that the Dawsons were passengers in a Land Rover, owned by the defendants and being operated by Saliou Diallo ("Diallo"), a Guinean national and an employee of defendants, and were proceeding on the main road from Boke to Conakry, Guinea, when the Land Rover overturned. The amended complaints further allege that Diallo's negligent driving caused the accident and that the defendants are liable to plaintiff for damages based on the theory of respondeat superior because Diallo was acting within the scope of defendants' employment at the time of the accident.⁶

Each defendant has answered denying that Diallo was its employee⁷ and has moved to dismiss the actions on the ground of forum non conveniens.⁸ The Court consolidated the two cases for the purpose of considering defendants' forum non conveniens dismissal motions.⁹

I. BACKGROUND FACTS

Mr. and Mrs. Dawson were British citizens and resided in Great Britain prior to April, 1980.¹⁰ Mr. Dawson was employed as a licensed first class river pilot with the Liverpool Pilotage Association.¹¹ In April 1980, Mr. Dawson accepted employment with the Office D'Amermanagement de Boke ("OFAB") as a River Pilot moving barges loaded with bauxite at the Port of Kamsar, Guinea.¹² OFAB is an entity wholly-owned by the Guinean government which provides services to CBG, such as operating ports, railroads, part of a city, a hospital, etc., in connection with the transportation of bauxite from the mining area to various customers.¹³

When Mr. Dawson accepted his position with OFAB, he and Mrs. Dawson moved their residence to Guinea in order to fulfill his employment contract with OFAB.¹⁴ On July 12, 1980, plaintiff and her husband were passengers in a Land Rover which was traveling from Boke to Conakry in Guinea.¹⁵ The Land Rover overturned causing injuries to the plaintiff and her husband; Mr. Dawson died the following day.¹⁶ Saliou Diallo, a Guinean national, was operating the Land Rover when it overturned.¹⁷ At the time, he was driving the vehicle for the Kamsar Recreation Committee ("KSRC"), a Guinean social club whose dues paying members were expatriate employees of CBG, OFAB and other contracting companies.¹⁸ The Land Rover driven by Diallo was made available to KSRC by CBG.¹⁹ Plaintiff in the respective complaints alleges that Diallo was employed by CBG, in C.A. 82-407, and by Halco, in C.A. 82-426.²⁰

The Guinean Police investigated the accident.²¹ All of the witnesses to the accident are Guinean residents and all the passengers in the Land Rover, except for Mr. & Mrs. Dawson, were Guinean nationals.²² The only connection that the State of Delaware has with this accident is that CBG and Halco are incorporated in Delaware.

Additional facts pertinent to the pending motions to dismiss are set forth in the Court's discussion of the factors relevant to a forum non conveniens determination.

II. APPLICABLE STANDARDS

Under the doctrine of forum non conveniens, "a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 842, 91 L.Ed. 1055 (1947). The doctrine presupposes the existence of at least two forums in which the action could have been brought and it furnishes criteria for making a choice between them. Id. at 506-507, 67 S.Ct. at 842. Where two federal forums are available, 28 U.S.C. § 1404(a) permits the transfer of a case from one federal district court to another on forum non conveniens grounds; but where the other available forum is a foreign jurisdiction, the traditional forum non conveniens remedy of dismissal is appropriate. DeMateos v. Texaco, Inc., 562 F.2d 895, 899 (3d Cir. 1977); Dahl v. United Technologies Corp., 472 F.Supp. 696, 698 (D.Del.1979), aff'd, 632 F.2d 1027 (3d Cir.1980).

A. Adequate Alternate Forum

The initial question in this case is whether the Republic of Guinea is a suitable alternative forum. The Supreme Court has given guidance for this determination when it stated in Piper Aircraft v. Reyno, 454 U.S. 235, 254 n. 22, 102 S.Ct. 252, 265, 70 L.Ed.2d 419 (1981):

At the outset of any forum non conveniens inquiry, the Court must determine whether there exists an alternative forum. Ordinarily, this requirement will be satisfied when the defendant is "amenable to process" in the other jurisdiction. Gilbert, 330 U.S. at 506-507 67 S.Ct. at 842. In rare circumstances, however, where the remedy offered by the other forum is clearly unsatisfactory, the other forum may not be an adequate alternative, and the initial requirement may not be satisfied. Thus, for example, dismissal would not be appropriate where the alternative forum does not permit litigation of the subject matter of dispute.

454 U.S. at 254 n. 22, 102 S.Ct. at 265.

First, there is absolutely no question that CBG, although incorporated in Delaware, is amenable to process in the Republic of Guinea because its primary business activities of mining, processing and shipping bauxite is centered in that country.²³ The same, however, cannot be said of Halco; other than owning 51% of CBG's stock, it apparently does not have a place of business in the Republic of Guinea.²⁴ This fact, nevertheless, is not an insurmountable bar to dismissal of the Halco action because the Court can condition a dismissal upon Halco agreeing to submit to the jurisdiction of the Guinean courts if plaintiff institutes suit there. See Piper Aircraft Co. v. Reyno, 454 U.S. at 242, 102 S.Ct. at 258; Abiaad v. General Motors Corp., 538 F.Supp. 537, 540, 545 (E.D.Pa.), aff'd, 696 F.2d 980 (3d Cir.1982).

Furthermore, the record reveals that the Courts of the Republic of Guinea would provide a forum for the remedy which the plaintiff seeks.²⁵ In Guinea not only does a person have a right to bring a civil suit for injuries resulting from an automobile accident, but in fact this often happens and judgments have been awarded in such cases.²⁶ This Court is unable to conclude based on the credible evidence presented that the plaintiff will be provided with a remedy so clearly inadequate or unsatisfactory as to be no remedy at all. Piper Aircraft Co. v. Reyno, supra 454 U.S. at 254, 102 S.Ct. at 265. Additionally, any action brought by the plaintiff in Guinea will not be barred by a statute of limitations until ten years from the date of the accident.²⁷ Cf. In Re Air Crash Disaster Near Bombay, 531 F.Supp. 1175 (W.D. Wash.1982).

Plaintiff contends that the Republic of Guinea, since gaining its independence from France over 25 years ago, is a "Marxist-Communist state with a one-party system ruled over by a dictator ever since," that its legal system is subordinate to politics, that its bar has been nationalized, that it has no jury system as known in this country, that there would be difficulties in converting Guinean currency to British pounds if a judgment were obtained, that trial would take place at an inconvenient location, and that it would be difficult, if not impossible, to receive a fair trial against the partially owned CBG and its co-owner Halco.²⁸ These broadbased contentions of the plaintiff rely upon affidavits of herself,²⁹ her English solicitor,³⁰ a British psychiatrist,³¹ a river pilot, David Devey,³² and two experts, Dr. Francis G. Snyder³³ and Professor Morris Wolff.³⁴ The Court finds their affidavits unpersuasive in establishing that plaintiff would be left without a legal remedy in the Republic of Guinea. With respect to Dr. Snyder, it does not appear that he has ever entered, been present in, or visited the Republic of Guinea. Likewise, Professor Wolff lacks firsthand experience in the Guinean legal system and has made only one short stopover at Conakry Airport during a flight from Abidjan on the Ivory Coast of Africa.

Opposed to their evidence is the evidence presented by three members of the Guinea bar: Professor Joseph L. Dejian,³⁵ Koly Mamady Kourouma³⁶ ...