Empresa Lineas Maritimas Argentinas, S.A. v. Schichau-Unterweser, A.G.

Decision Date12 March 1992
Docket NumberSCHICHAU-UNTERWESE,A,No. 91-3221,91-3221
Citation955 F.2d 368
PartiesEMPRESA LINEAS MARITIMAS ARGENTINAS, S.A., Plaintiff-Appellant, v.G., and Stork-Werkspoor Diesel, B.V., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Robert B. Acomb, Jr., Grady S. Hurley, Jones, Walker, Waechter, Poitevent, Carrere & Dehegre, New Orleans, La., Donald Burke, Cardillo & Corbett, Robert A. Milana, Kirlin, Campbell & Keating, Richard H. Brown, Jr., Mary L. O'Connor, New York City, for Empresa Lineas Maritimas Argentinas, S.A.

Harold Lee Schwab, Lester, Schwab, Kate & Dwyer, New York City, Thomas J. Wyllie, Joel L. Borrello, Adams & Reese, New Orleans, La., Robert B. Pohl, Burlingham, Underwood & Lord, New York City, for Stork-Werkspoor Diesel, B.V.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before REAVLEY, HIGGINBOTHAM and DEMOSS, Circuit Judges.

REAVLEY, Circuit Judge:

The M/V ELMA TRES sank off Bermuda on November 26, 1981, taking 23 crewmen and $17 million in cargo with her. The vessel was bound for United States ports, carrying merchandise for American interests. All cargo claims having been settled, the remaining parties dispute the proper forum for trying the third-party product liability action of Empresa Lineas Maritimas Argentina (ELMA), the vessel's Argentinian time-charterer, against Stork-Werkspoor Diesel, B.V. (SWD), the Dutch manufacturer of the auxiliary diesel engines used to supply electrical power onboard the vessel. The district court granted SWD's motion to dismiss on the basis of forum non conveniens, and ELMA appealed. We affirm.


In 1981 and 1982, the American cargo interests (collectively "cargo") joined suit against Joachim Drescher (Drescher), the German shipowner, in New York federal court. Drescher responded by filing a complaint in New York under the Limitation of Liability Act, forcing cargo to consolidate their claims in the limitation action. Cargo also sued ELMA in the consolidated action. In 1984, cargo brought product liability claims against the German ship builder, Schichau-Unterweser, A.G. (SUAG), and against SWD. The court consolidated these claims with the ELMA claims for discovery purposes. SUAG was not subject to personal jurisdiction in New York, and never appeared. Discovery commenced in the consolidated action in 1984. Drescher eventually was dismissed from the action.

In 1985, SWD filed motions to dismiss cargo's claims for lack of personal jurisdiction and forum non conveniens. The court denied these motions, honoring the American cargo plaintiffs' forum choice. Substantial discovery followed. Then, in February 1988 after ELMA commenced its third-party product liability suit against SWD, SWD filed another motion to dismiss on grounds of lack of jurisdiction and forum non conveniens. By this time, ELMA had settled with cargo, leaving cargo with claims against SWD for the remaining losses. The court reserved its ruling on the 1988 jurisdictional motion, but denied the forum non conveniens motion because of the advanced stage of development of the case. The court doubted its jurisdiction over SWD, but nevertheless set a trial date. But the court subsequently transferred the case to the Louisiana federal court, without ELMA's opposition, because of SWD's presence in that state.

In August 1990, after settling the remaining claims of cargo, SWD filed its third forum non conveniens motion in New Orleans, claiming that the Netherlands was a more convenient trial location. ELMA and SWD were the only remaining parties. In February 1991 the district court dismissed the case on forum non conveniens grounds. This appeal followed.


We review the district court's decision-making process and conclusion to determine if the district court acted reasonably. Nolan v. Boeing Co., 919 F.2d 1058, 1068 (5th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1587, 113 L.Ed.2d 651 (1991). Our review follows the analysis set out in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947) and applied in In re Air Crash Disaster Near New Orleans, 821 F.2d 1147, 1165-66 (5th Cir.1987).

ELMA raises a procedural argument, that the district court did not uniformly require SWD to shoulder the burden on its motion. ELMA notes that this court once before required a defendant to bring "unequivocal, substantiated evidence presented by affidavit testimony" in order to carry its burden. Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1550 n. 14 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 430, 116 L.Ed.2d 449 (1991). The district court did not require SWD to make an affidavit showing on certain issues raised in the motion, including the existence of any SWD indemnity claim against SUAG; the existence of documents in SUAG's possession that were required for SWD's defense; whether SWD's former employees are unwilling to testify in the United States; whether current SWD employees are unwilling to testify in the United States; whether SWD has assets only in the Netherlands; and whether suit in the Netherlands would administratively burden the Dutch court or delay the trial.

As to the showing that a defendant must make to carry its burden against a plaintiff who has chosen a foreign forum, the Supreme Court in Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), rejected the contention "that defendants seeking forum non conveniens dismissal must submit affidavits identifying the witnesses they would call and the testimony these witnesses would provide if the trial were held in the alternative forum." Id. at 258, 102 S.Ct. at 267. The Court concluded that "[s]uch detail is not necessary." Rather, defendants "must provide enough information to enable the District Court to balance the parties' interests." Id. And Baris commented that a defendant need not present "a detailed development of the entire case," and that " 'the necessary detail [required by defendants] will depend upon the particular facts of each case.' " 932 F.2d at 1550 n. 14 (quoting Air Crash, 821 F.2d at 1165 n. 28).

We do not think that the Baris affidavit requirement extends to all elements of defendant's burden in every case. Baris involved an American plaintiff, and therefore the defendant was obligated to make a stronger showing of inconvenience than is SWD. Piper, 454 U.S. at 255, 102 S.Ct. at 266. And Baris discussed the affidavit requirement in the context of determining forum availability and adequacy in a case where these essential threshold requirements were not established. Id. at 1549-50. Further, the imposition of a blanket rule requiring affidavit evidence as to the kinds of matters ELMA raises would invite protracted discovery in every case, and would tend to inflict an impossible burden on defendants who are seeking dismissal for the very reason that they cannot compel evidence, including the evidence necessary to argue for dismissal. See Piper, 454 U.S. at 258, 102 S.Ct. at 267 (purpose of forum non conveniens doctrine defeated by requiring extensive evidence that lies beyond compulsory process). We think that SWD, under the particular facts of this case, has met its burden of supplying "enough information to enable the District Court to balance the parties' interests." Id.


This court previously has found the Dutch courts available and adequate for the resolution of maritime disputes. Belcher Co. of Alabama, Inc. v. M/V MARATHA MARINER, 724 F.2d 1161, 1165-66 (5th Cir.1984); Veba-Chemie A.G. v. M/V GETAFIX, 711 F.2d 1243, 1245 (5th Cir.1983). But ELMA argues that the Dutch forum is inadequate in this case because the extent of merits activity already completed by ELMA in anticipation of trial in the United States makes dismissal unfair. ELMA further argues that the Dutch forum is inadequate because the different "judicial culture" of the Dutch courts will prejudice ELMA's ability to present its case in the Netherlands, in part because depositions of key witnesses, including the sole survivor of the sinking, are not admissible.

SWD and SUAG both are amenable to process in the Netherlands, and Dutch law permits ELMA to litigate against SWD the type of claims that are the subject matter of this dispute. The district court specifically concluded that Dutch courts will hear maritime disputes between foreign parties arising from accidents on the high seas, and will recognize claims for damages in tort against a product manufacturer. Consequently, the court reasoned, the Netherlands affords an adequate forum for adjudicating ELMA's and SWD's third-party claims. We cannot say that the district court's conclusion was unreasonable. There exist in this case "at least two forums in which all defendants are amendable to process." Air Crash, 821 F.2d at 1164. And the alternate forum is adequate if differences in that forum's laws would not deprive the plaintiff of all remedies or result in unfair treatment. Id. at 1165. Absent unfairness, differences in the law of the alternate forum are not a substantial factor to consider. Piper, 454 U.S. at 254-55, 102 S.Ct. at 265.

ELMA urges that Dutch rules prohibiting admissibility of foreign depositions prejudice ELMA's ability to put on its case in the Netherlands. But ELMA does not attack the substance of SWD's rebuttal, that Dutch law does not render the critical depositions actually inadmissible, but rather makes their admissibility at trial subject to the judge's discretion. Further, while ELMA contends that Dutch courts are unable to compel the live testimony of certain German witnesses at trial, ELMA's Reply Brief cites no authority in support of that contention despite SWD's rebuttal. In light of the fact that ELMA's key German witnesses were deposed de bene esse, and the uncontested averment that the Dutch court has discretion to permit ELMA to introduce...

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