Olympic Corporation v. Societe Generale

• Citation: 462 F.2d 376
• Decision Date: 20 June 1972
• Docket Number: No. 628,Dockets 72-1019,688 and 689,72-1031 and 72-1040.,628
• Parties: OLYMPIC CORPORATION, Plaintiff-Appellant, v. SOCIETE GENERALE, A/S Havkong and Meyer Line, Defendants-Appellees. SOCIETE GENERALE, Defendant and Third-Party Plaintiff-Appellant and Cross Appellee, v. MANUFACTURE de PRODUITS CHIMIQUES PROTEX, Third-Party Defendant-Appellee and Cross Appellant. A/S HAVKONG (sued herein in its own name and as "Meyer Line"), Defendant and Third-Party Plaintiff, v. MANUFACTURE de PRODUITS CHIMIQUES PROTEX, Alpina Transports & Affretements S.A., Third-Party Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

462 F.2d 376 (1972)

OLYMPIC CORPORATION, Plaintiff-Appellant, v. SOCIETE GENERALE, A/S Havkong and Meyer Line, Defendants-Appellees.

SOCIETE GENERALE, Defendant and Third-Party Plaintiff-Appellant and Cross Appellee, v. MANUFACTURE de PRODUITS CHIMIQUES PROTEX, Third-Party Defendant-Appellee and Cross Appellant.

A/S HAVKONG (sued herein in its own name and as "Meyer Line"), Defendant and Third-Party Plaintiff, v. MANUFACTURE de PRODUITS CHIMIQUES PROTEX, Alpina Transports & Affretements S.A., Third-Party Defendants.

Nos. 628, 688 and 689, Dockets 72-1019, 72-1031 and 72-1040.

United States Court of Appeals, Second Circuit.

Argued May 8, 1972.

Decided June 20, 1972.

William J. Honan, III, New York City (Haight, Gardner, Poor & Havens and John C. Moore, New York City, on brief), for appellee A/S Havkong.

Daniel V. Duff, Jr., New York City (Kramer, Marx, Greenlee & Backus and John M. Kriz, New York City, on brief), for third-party defendant-appellee and cross appellant.

Joseph J. Magrath, New York City (Bigham, Englar, Jones & Houston, New York City, on brief), for plaintiff-appellant.

Guy M. Struve, New York City (Davis, Polk & Wardwell and Thomas P. Griesa, New York City, on brief), for appellee Societe Generale.

Before FRIENDLY, Chief Judge, and MOORE and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

In November, 1969, the Olympic Corporation of Cambridge, Massachusetts, (Olympic) sold 20,000 pounds of the chemical resorcinol to Manufacture de Produits Chimiques Protex (Protex), a French corporation, for use in its plant in Chateau Renault, France. Olympic made the shipment from New York on January 16, 1970, aboard the Havskar owned by A/S Havkong and managed by the Meyer Line, both Norwegian corporations (Havkong).

Protex had arranged with Societe Generale (Societe), a French bank, to open an irrevocable letter of credit in Olympic's favor through the First National Bank of Boston; however, when Olympic did not receive the bill of lading in Boston until January 27, 1970, the Boston bank refused to honor the draft because the documents were stale. It did, with Olympic's consent, transmit the papers to Societe for further instructions, with the explicit requirement that Societe hold them at Olympic's disposal, unless Societe gave instructions to honor the draft. After receiving no reply, Olympic cabled Societe on February 5 and February 11, 1970, seeking an answer. On February 12, Societe replied that it had no instructions from Protex, so on February 13 Olympic requested the immediate return of the documents from Societe.

On February 18, Olympic resold the resorcinol to a United States buyer at a much higher price, but on that same day, Societe advised that it had released the documents to Protex and that the Boston bank could honor the draft.

In the meantime, the resorcinol had arrived in Antwerp, Belgium, on January 27 and was surrendered by Havkong on January 30 to Protex's transfer agent, Alpina Transports & Affretements S. A. (Alpina), without presentation of the bill of lading but in return for Alpina's guarantee to hold Havkong harmless. Protex then used the resorcinol in its manufacturing process during the first week of February, 1970.

Olympic instituted this suit for damages against Societe for releasing the documents to Protex contrary to its instructions and against Havkong for conversion in relinquishing the resorcinol to Alpina without receiving the bill of lading. Societe then brought a third-party complaint against Protex for any claim which Olympic had against Societe on the ground that Protex was at fault in taking the resorcinol, without presenting the proper documents or making payment, and for failing to make a timely response to Societe's requests for instructions concerning the payment of Olympic's draft. Havkong also instituted a third-party action against Alpina and Protex under their guarantee to hold Havkong harmless.

Protex moved below to dismiss Societe's third-party complaint for lack of personal jurisdiction and on the ground of forum non conveniens. Societe then moved to dismiss Olympic's complaint on the ground of forum non conveniens, in the event that its third-party complaint was dismissed. Upon the condition that both Protex and Societe submit to the jurisdiction of the French courts and waive the running of any statute of limitations, the trial judge dismissed both the complaint and the third-party complaint on the grounds of forum non conveniens, 333 F.Supp. 121 (S.D.N.Y.).

Olympic has appealed from the dismissal of its complaint and Societe has filed a protective appeal in the event that Olympic succeeds in its appeal. Protex cross-appealed from the failure of the court below to dismiss the third-party complaint for lack of personal jurisdiction.¹

Viewing each complaint separately, there can be little doubt that the doctrine of forum non conveniens should be applied to Societe's third-party complaint against Protex,² but that it should not be applied to Olympic's complaint against Societe. In light of the similarity of the federal and state forum non conveniens doctrines, it is unnecessary to decide which one controls in this diversity action, Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); see also, Silver v. Great American Ins. Co., 29 N.Y.2d 356, 328 N.Y.S.2d 398, 278 N.E.2d 619 (1972).

In any situation, the balance must be very strongly in favor of the defendant, before the plaintiff's choice of forum should be disturbed, Gulf Oil, supra, 330 U.S. at 508, 67 S.Ct. 839, 91 L.Ed. 1055, and the balance must be even stronger when the plaintiff is an American citizen and the alternative forum is a foreign one, Thomson v. Palmieri, 355 F.2d 64 (2 Cir. 1966); Vanity Fair Mills Inc. v. T. Eaton Co., 234 F.2d 633, 645-646 (2 Cir.), cert. denied, 352 U.S. 871, 77 S.Ct. 96, 1 L.Ed.2d 76 (1956); Hoffman v. Goberman, 420 F.2d 423, 428 (3 Cir. 1970); Mobile Tankers Co. v. Mene Grande Oil Co., 363 F.2d 611 (3 Cir.), cert. denied, 385 U.S. 945, 87 S.Ct. 318, 17 L.Ed.2d 225 (1966); cf. Swift & Co. Packers v. Compania Colombiana & Del Caribe, 339 U.S. 684, 697, 70 S.Ct. 861, 94 L.Ed. 1206 (1950).

As between Olympic and Societe, a French banking corporation with a New York branch office, the advantages to each party to try the action in its home forum would be about equal. The transactions giving rise to the cause of action took place in both the United States and France, and neither party has shown a substantial disadvantage if forced to produce witnesses in the other's forum. There is a dispute over whether...