Kloeckner Reederei Und Kohlenhandel v. A/S Hakedal, 197

• Decision Date: 03 March 1954
• Docket Number: No. 197,Docket 22968.,197
• Citation: 210 F.2d 754
• Parties: KLOECKNER REEDEREI UND KOHLENHANDEL, G.M.B.H. v. A/S HAKEDAL. THE WESTERN FARMER.
• Court: U.S. Court of Appeals — Second Circuit

210 F.2d 754 (1954)

KLOECKNER REEDEREI UND KOHLENHANDEL, G.M.B.H. v. A/S HAKEDAL.

THE WESTERN FARMER.

No. 197, Docket 22968.

United States Court of Appeals Second Circuit.

Argued February 11, 1954.

Decided March 3, 1954.

William G. Symmers, Dow & Symmers, New York City, for appellant. William Warner, New York City, of counsel.

Charles S. Haight, Haight, Deming, Gardner, Poor & Havens, New York City, for appellee. Gordon W. Paulsen, New York City, of counsel.

Before CHASE, Chief Judge, and L. HAND and MEDINA, Circuit Judges.

L. HAND, Circuit Judge.

This is an appeal from a decree in the admiralty, dismissing the libel in a suit in personam for the loss of a cargo of coal. Judge Clancy refused to assume jurisdiction over the suit because, being between two foreign corporations, "the most just disposition" could be made in the English courts of admiralty. The libellant, a German corporation, had laded the coal upon the steamer, "Western Farmer," owned by an American corporation, bound from Norfolk, Virginia, to Bremerhaven, West Germany. In the British Channel the "Bjorgholm," a ship of the respondent, a Norwegian corporation, collided with the "Western Farmer," cut her in two, and caused the loss of all the libellant's coal. The owner of the "Western Farmer" sued the respondent in an English court of admiralty, and the parties have agreed to settle the suit upon the basis that the "Western Farmer" was 25% at fault, and the "Bjorgholm," 75%. The respondent thereafter filed a proceeding in England under which it has limited its liabilities to £85,354.10 ($238,992.60): £8 to the ton. It is the English law — apparently independently of the Brussels Convention — that the fault of the carrying ship is imputed to her cargo in the event of a collision (The Umona, L.R. 1914 Pro. 141), so that, if the libellant files a claim in the English limitation proceeding — the only English remedy now open to it — and if the "Western Farmer" is found partly at fault the libellant will recover only that proportion of its loss, quite aside from the existence of any other claims that will be entitled to share in the bond, posted by the respondent in the limitation proceeding. The libellant sued the respondent in personam in the Southern District of New York, hoping under the doctrine of The Atlas, 93 U.S. 302, 23 L.Ed. 863, to escape imputation to its cargo of any fault of which the "Western Farmer" might be found guilty; and in any event to make available upon its claim the value of the "Bjorgholm," which was much greater than eight pounds a ton. It attached another ship of the respondent, which the respondent released on giving security, and the suit stands in personam. Judge Clancy dismissed it because "the foreign court and the foreign limitation proceedings merit recognition where international trade and a collision on the high seas are involved." The respondent insists that, since concededly the decision lay in his discretion, it is beyond our power of review.

It is indeed true that in such cases the entertainment of a suit between two aliens for a collision on the high seas depends upon the discretion of the district court; but it is not true that we have no power to review the exercise of that discretion, as appears from The Mandu, 2 Cir., 102 F.2d 459, where we reversed just such a decree as this. As Bradley, J., said in The Belgenland, 114 U.S. 355, 365, 5 S.Ct. 860, 865, 29 L.Ed. 152: "although the courts will use a discretion about assuming jurisdiction of controversies between foreigners in cases arising beyond the territorial jurisdiction of the country to which the courts belong, yet where such controversies are communis juris, — that is, where they arise under the common law of nations, — special grounds should appear to induce the court to deny its aid to a foreign suitor when it has jurisdiction of the ship or party charged. The existence of jurisdiction in all such cases is beyond dispute; the only question will be whether it is expedient to exercise it." This language Bradley, J., followed by an exhaustive examination of the authorities decided up to that time; and it has never been questioned. We hold that, in the case of a collision on the high seas, an alien plaintiff has the privilege of suing an alien defendant wherever he can serve him, or attach his property; and that, if the defendant would avoid the suit, he must show that he will be unfairly prejudiced, unless it be removed to some other jurisdiction.

We therefore come to the possible considerations that may be, or are, urged in support of a removal of the suit to England; and first, as to the convenience of witnesses, who will of necessity be the crews of the two vessels. Although it may well be easier to bring the crew of the "Bjorgholm" to London than to New York, it will be highly inconvenient to bring the crew of the "Western Farmer" to London; and, indeed, it is most improbable that the libellant would be able to compel them to go there at...