Lykes Bros. Steamship Co. v. Sugarman

• Decision Date: 04 December 1959
• Docket Number: 25896.,Dockets 25897
• Citation: 272 F.2d 679
• Parties: LYKES BROS. STEAMSHIP CO., Inc., Petitioner, v. Hon. Sidney SUGARMAN, United States District Judge, Respondent. LYKES BROS. STEAMSHIP CO., Inc., Petitioner, v. Hon. Gregory F. NOONAN, United States District Judge, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

272 F.2d 679 (1959)

LYKES BROS. STEAMSHIP CO., Inc., Petitioner, v. Hon. Sidney SUGARMAN, United States District Judge, Respondent.

LYKES BROS. STEAMSHIP CO., Inc., Petitioner, v. Hon. Gregory F. NOONAN, United States District Judge, Respondent.

Dockets 25897, 25896.

United States Court of Appeals Second Circuit.

Argued November 2, 1959.

Decided December 4, 1959.

Arthur M. Boal, Jr., of Tompkins, Boal & McQuade, New York City, for petitioner.

Thomas J. Doyle, of Cooper, Ostrin & De Varco, New York City, for Lebert Bihm, plaintiff.

Before CLARK, Chief Judge, and HINCKS and WATERMAN, Circuit Judges.

CLARK, Chief Judge.

These are petitions for mandamus to compel the transfer under 28 U.S.C.A. § 1404(a) of a seaman's actions against the petitioner from the United States District Court for the Southern District of New York to that of the Eastern District of Louisiana. In the action which was later brought and involved a later injury than did the other, but which came on first on the motion to transfer, Civ. No. 137-258, Judge Sugarman wrote a reasoned opinion explaining his exercise of discretion to deny the transfer; and this he amplified in a second opinion denying reargument. In the other case, Civ. No. 130-12, Judge Noonan denied a like motion in a short memorandum which referred to Judge Sugarman's reasons for allowing the action to remain in the forum chosen by the plaintiff and then said: "I have not only these reasons which are sufficient in and of themselves, but also the fact that this other action will be tried in this court to aid me in my determination." We are now called upon in each case to review and reverse this exercise of discretion. Whatever might be the individual views of the majority with reference to the proper place of trial as an original issue, we both feel that we should not thus reject the considered conclusions of two careful and experienced district judges in a matter so peculiarly one for the exercise of judgment by those in daily proximity to these delicate problems of trial litigation. Indeed, to the writer of this opinion at least, it would appear that our learned brothers have acted wisely and responsibly.

The papers presented on these petitions appear to be somewhat skimpy and sketchy. But they show that Lebert Bihm, a seaman in defendant-petitioner's employ, has instituted two actions for successive injuries, sustained because of defendant's negligence and the lack of seaworthiness of its ships. The first injury occurred on September 12, 1957, in the harbor of Kaohsiung, Formosa, on the S.S. Margaret Lykes and was caused by reason of the vessel's greasy and oily deck. Plaintiff was treated in a hospital in Formosa for two days; he then returned to his ship and sailed to Manila, where he left it for further hospital treatment. After completion of this treatment he was brought back by plane to New Orleans on October 11, 1957, and thereafter had further treatment at the United States Public Health Service Hospital at New Orleans. He brought his first action on February 13, 1958, and issue has been joined by the service of an answer. Defendant moved to transfer on March 19, 1959, and this was denied by Judge Noonan on May 29, 1959.

In the second action, commenced on September 5, 1958, Bihm claimed damages for injuries sustained on the S.S. William Lykes while on the high seas en route to Genoa, Italy, where he was hospitalized on arrival on April 25, 1958. He also claimed maintenance and cure. When he returned to the United States he reported to the United States Public Health Service Hospital at New Orleans, where he was marked fit for duty on the same day after an examination. Issue was joined in the action by answer served on February 11, 1959, and defendant made its motion for transfer on February 26, 1959. Judge Sugarman's original denial of the motion was on April 23, 1959, and his order adhering to this decision on reargument was on May 14, 1959.

We should first note the proper limitations on our power of review, set in this type of proceeding so obviously a substitute for the interlocutory appeal not allowed by law. Thus it is forcibly stated in Ex parte Fahey, 332 U.S. 258, 259-260, 67 S.Ct. 1558, 91 L.Ed. 2041, that mandamus, prohibition, and injunction against judges "are drastic and extraordinary remedies" and as such "they are reserved for really extraordinary causes." The Eighth Circuit says bluntly: "We do not regard controversies between litigants, and between their counsel, as to where a case can most conveniently, fairly, efficiently and economically be tried as `really extraordinary.'" Great Northern Ry. Co. v. Hyde, 8 Cir., 238 F.2d 852, 857, adhered to 8 Cir., 245 F.2d 537, certiorari denied 355 U.S. 872, 78 S.Ct. 117, 2 L.Ed.2d 77. Like warnings against this type of interlocutory review have been forcibly stated in various cases, such as In re Josephson, 1 Cir., 218 F.2d 174, 183, and Clayton v. Warlick, 4 Cir., 232 F.2d 699, 706, while the governing principle on transfers was set forth some years ago in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055, thus: "But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed."

Possibly some courts may grant the writ more liberally than others, as the sharp difference of view in Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329, certiorari denied 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624, suggests; but both reason and precedent limit the grant to unusual cases. Against this background it would be strange, if not daring, for an appellate court to rule substantially as a matter of law that a seaman's claim for injuries — that most transitory of all actions usually heard in whole or part on deposition evidence — must be considered chained to a single spot, to wit, the home base of the employer. The result becomes all the more outre when it is noted that the accidents and resulting hospitalization occurred in distant parts of the world — surely as close for litigatory purposes to New York as to New Orleans — namely, Formosa, Manila, and Genoa. Let us therefore examine the parties' claims a little closer.

In each action Bihm asserts that he will have the benefit of testimony by a New York doctor — a different one in each action — who has examined him and who is prepared to testify as an expert. In the first and apparently the more important action he gives as his witnesses an able-bodied seaman whose last known address was Wilmington, California, and a boatswain whose last known address was New Orleans. In the second action it appears that three of the witnesses defendant expects to use are residents of Texas. On this general showing plaintiff's choice of New York as a forum seems at least understandable. Our experience teaches that although vitally necessary it is often not easy for a seaman to obtain the counsel and medical support which he trusts; when he has obtained both it is not unnatural that he wishes to utilize them as fully as he can. Against this defendant argues that both parties are Louisiana citizens and that New Orleans is a more convenient place of trial than New York because hospital records, treating physicians, its own records with reference to the payment of maintenance and cure, and sundry witnesses are more easily available there.

Examining the petitioner's contentions more closely it would appear probable that it does show greater convenience for itself in having the litigation at its home base. But certainly litigation in this district is not unusual for it; jurisdiction here with a local office in the city is so clear that it is not challenged, and the reported cases suggest even more litigation for it in our courts than elsewhere.¹ As to hospital records, those in New Orleans do not seem by any means the most important of the several involved. In any event, since such records are quite freely admissible, see Lorensen v. Sinclair Refining Co., 2 Cir., 271 F.2d 528, and cases cited, little more is needed than a pretrial order to produce them; and the same would be true as to the records of payment of maintenance. The testimony of doctors in New Orleans seems offset by the testimony of the doctors secured by the plaintiff in New York City.² As to the other witnesses, apparently members of the crews of the two ships, it seems that comparatively few actually claim New Orleans as home; others come from Texas, Mississippi, California, and so on, with some actually from New York. Defendant says it can produce the witnesses it needs more readily in New Orleans. But we do not believe that transfer "in the interest of justice," 28 U.S. C. § 1404(a), should be determined by a litigant's willingness to bring its witnesses to one forum and not to another. In all probability the testimony of these witnesses who sail the high seas will have to be taken by deposition anyhow, on some occasion when they happen to be available on shore leave.

All in all this seems a good example of a situation where "the doubtful omniscience" of reviewing courts should not obtrude to override findings of trial courts as to what the interests of justice require. See Wright, The Doubtful Omniscience of Appellate Courts, 41 Minn.L.Rev. 751, 776, 777 (1957), also quoting from Professor Green's comments in Jury Trial and Mr. Justice Black, 65 Yale L.J. 482, 494, n. 36 (1956), on this transfer statute: "As a delaying tactic it has few equals; as a control of jury trial its significance is unfathomable" — comments perhaps apt here in view of the delay already occasioned. We cannot say that justice absolutely requires a New Orleans trial;...