States Marine Lines, Inc. v. The M/V Kokei Maru

• Decision Date: 05 January 1960
• Docket Number: No. 27960.,27960.
• Parties: STATES MARINE LINES, INC., a corporation, Libelant, v. THE M/V KOKEI MARU, her engines, tackle, apparel, furniture, boats and equipment; Heromi Steamship Co., Ltd., a corporation; Daido Kaiun Kaisha, Ltd., a corporation; and Doe I, Doe II, Doe III, Respondents.
• Court: U.S. District Court — Northern District of California

180 F. Supp. 255

STATES MARINE LINES, INC., a corporation, Libelant, v. THE M/V KOKEI MARU, her engines, tackle, apparel, furniture, boats and equipment; Heromi Steamship Co., Ltd., a corporation; Daido Kaiun Kaisha, Ltd., a corporation; and Doe I, Doe II, Doe III, Respondents.

No. 27960.

United States District Court N. D. California, S. D.

December 29, 1959.

As Amended January 5, 1960.

Lillick, Geary, Wheat, Adams & Charles, San Francisco, Cal., for libellant.

Graham, James & Rolph, San Francisco, Cal., for respondents.

SWEIGERT, District Judge.

This is a libel in rem and in personam arising out of a collision between a vessel, owned by the libelant, States Marine Lines, Inc., a Delaware corporation, and the respondent vessel, owned by respondent Heromi S.S. Co., a Japanese corporation. The collision occurred in Japanese territorial waters, and more specifically within the harbor waters of Kobe, Japan.

Respondents have filed exceptions to the libel on two grounds. First, they contend that since the maritime tort occurred in foreign waters, libelant must, pursuant to the familiar rule adopted by federal courts, plead and prove the applicable foreign law in order to state a good cause of libel. Empresa Agricola v. Amtorg, D.C.S.D.N.Y.1944, 57 F.Supp. 649; Cuba Railroad v. Crosby, 1912, 222 U.S. 473, 32 S.Ct. 132, 56 L.Ed. 274.

Second, they contend that this Court should apply the admiralty principle of forum non conveniens on the basis of certain considerations herein discussed infra, decline jurisdiction of the present matter and, in effect, relegate libelant to the courts of Japan for relief.

Libelant argues, as to respondent's first exception, that so long as it has alleged sufficient facts to state a cause of libel under the International Rules for the Prevention of Collisions at Sea, as prescribed by the London Convention of April 23, 1948, to which both the United States and Japan are signatory, it need neither plead nor prove the applicable rules as to collisions stated therein, since the Court is bound to take judicial notice of these Rules. Respondent urges, however, that the International Rules may be inapplicable to determine the rights of the parties, since the collision occurred within the harbor waters of Kobe, and local regulations of the port, analogous to the American Pilot Rules for Certain Inland Waters, may operate to displace the otherwise governing effect of the International Rules, as expressly provided by Article 30.

We need not rule on this exception, since libelant has volunteered to amend its libel to assert applicable provisions of foreign law, and has requested, and is hereby granted, ten (10) days leave from the date of this filing to so amend.

As to respondent's second contention, the questions posed are: (1) whether a case has been made for dismissal under the familiar doctrine of forum non conveniens, and, if so, (2) whether the fact that libelant is an American corporation precludes application of the doctrine as a matter of law, or, at least, carries such weight in this Court as a factor of convenience that it outweighs other factors tending to support dismissal.

The United States Supreme Court in Swift & Co. Packers v. Compania Columbiana del Caribe, S.A., 1950, 339 U.S. 684, at page 697, 70 S.Ct. 861, at page 869, 94 L.Ed. 1206 states: "We need not now decide the abstract question whether United States admiralty courts may decline jurisdiction over libels brought by United States citizens." It also recognizes, however, that "Application of forum non conveniens principles to a suit by a United States citizen against a foreign respondent brings into force considerations very different from those in suits between foreigners." 339 U.S. at page 697, 70 S.Ct. at page 869.

Other authorities have pointed out that no court has ever applied the doctrine of forum non conveniens to decline jurisdiction to a United States citizen suing in his own right in the absence of some express agreement to seek his remedy in a foreign forum. See: The Saudades (Frazer v. Saudades), D.C.E.D.Pa., 67 F.Supp. 820, 1946 A.M.C. 1019; Braucher, The Inconvenient Federal Forum, 60 Harv.L.Rev. 908, 920-21, (1947).

Other authorities have implied that the doctrine may not be thus applied. United States Merchants' & Shippers' Ins. Co. v. A/S Den Norske Afrika Og Australie Line, 2d Cir., 1933, 65 F.2d 392, 1933 A.M.C. 919; Brewer Co. v. American President Lines, D.C.S.D.N.Y., 37 F.Supp. 230, 1941 A.M.C. 30; Isbrandtsen Co. v. Lloyd...