Petition — Alcoa Steamship Co. v. M/V Nordic Regent

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upreme Court, U.&

: FILED

} MAY 22 1980

Le ui : RODAK, R., ~ EE

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No. ----GO-4$8 57

ALCOA STEAMSHIP COMPANY, INC. (a New York corporation),

Petitioner,

against

M/V Norpic REGENT, her boilers, tackle, machinery and other appur-

tenances in rem and NORCROSS SHIPPING Co., INC. (a Liberian corpo-

ration), as her owner in personam,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

;

GORDON W. PAULSEN

One State Street Plaza

New York, New York 10004

(212) 344-6800

Attorney for Petitioner

CHARLES L. BLACK, JR.

169 Bishop Street

New Haven, Conn. 06511

Of Counsel

Opinions Below

PEE Ce Se

Questions Presented ..—.—s—s._iadz..................

Statutes Involved ..........

b. Litigation History ...

Reasons for Granting the Writ... .

an NG eM oe THEN ree Sot ear

1. This Court should (a) set guidelines as to when,

if ever, a United States plaintiff may be denied

the right of trial in the federal court in the district

in which it is resident and (b) by so doing resolve

a conflict among the circuits on this point.

a. The innovatory treatment of this question

by the court below demonstrates the need

for guidelines to be set by this Court

b. The holding of the court below as to the

citizenship issue conflicts with decisions of

the Third, Fifth, and District of Columbia

Circuits

2. The crucial precedential use of Farmanfarmaian

v. Gulf Oil Corp., 588 F. 2d 880 (2d Cir. 1978)

in the opinion below makes it certain that the

Court of Appeals has committed itself to the

doctrine that American citizenship, even when

coupled with American residence, is of no im-

portance as to forum non conveniens dismissal.

3. The holding below—that it is immaterial to

forum non conveniens disposition that the for-

eign court to which the case would probably

have to go would limit recovery to 8% of the

claim—is irreconcilable both with practical jus-

tice and with this Court’s holding and opinion in

Van Dusen v. Barrack, 376 U.S. 612 (1964) |.

4. This Court should define narrowly the role of

“discretion”, operating on such miscellaneous

and variable factors as “court congestion”, in

repelling Americans from their own courts .

Conclusion

Appendix A—Statutes Involved

Appendix B—Opinions and J udgments Below

Court of Appeals en banc opinion of Feb. 29, 1980

Dissenting opinion of Circuit Judge Oakes

Dissenting opinion of Circuit Judge Van Graa-

feiland

Court of Appeals panel opinion of January 10,

1979

Dissenting opinion of Circuit Judge Timbers

Court of Appeals panel opinion of August 31,

1978

Concurring opinion of Circuit Judge Waterman

Dissenting opinion of Circuit Judge Van Graa-

feiland

District Court opinion of January 17, 1978

PAGE

Citations

CASES

PAGE

Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972) ...... 6

Burt v. Isthmus Development Co., 218 F. 2d 353 (Sth Cir. Ds

cert. denied, 349 U.S. 922 (1955) MOM hat 10

Canada Malting Co. v. Paterson Steamships, Ltd., 285 U.S.

OW Re cern ay ee he es vas Be Wk a 5, 17, 18

Constructora Ordaz, N.V. v. Orinoco Mining Co., 262

eo Ue S| ere ere 11

Corfield v. Coryell, 6 F. Cas. 546 (C.C.E.D.Pa. 1823) wine

Re ORR Me A eee

Crandall v. Nevada, 73 U.S. (6 Wall) 35 (1867) ......_.. 9

a v. Petroleos Mexicanos, 398 F. Supp. 72 ©. Del. ns

WU oth Le hes RR ge en by gk

DeMateos v. Texaco, 562 F.2d 895 (3rd Cir. 1977), cert.

embet, GSS Uw. FOS CUPPED nw ee ei ceca 16

Farmanfarmaian v. Gulf Oil Corp., 588-F. 2d 880 (2nd Cir.

SRR Ree, CSIR 7? REM apy ce gh inc Cen, opi 9, 12-15

Fitzgerald v. Texaco, Inc., 521 F. 2d 448 (2d Cir. 1975) .. 5,18

Founding Church of Scientology v. Verlag, 536 F.2d 429

as Mas I ae eh kg wl des Rae s Gas il

Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) ........ 5,8

Hoffman v. Goberman, 420 F. 2d 423 (3rd Cir. 1970) . 1]

Kent v. Dulles, 357 U.S. 116 (1958) ............. 9

Kloeckner Reederei, und Kohlenhandel, G.M.B.H. v. A/S

Hakedal (The Western Farmer), 210 F.2d 754 (2d

+ SE RN RRR oa 8 SK Oh RT al Soe ea 18

Koster v. Lumbermens Mutual Co., 330 U.S. 518 (1947) . 5,8

Koupetoris v. Konkar Intrepid Corp., 535 F.2d 1392 (4

Cir. 1976) 17, 18

Leasco Data Processing . ed oe Vv. Maxwell, 468

F. 2d 1326 (2d Cir. 1972) . meee ae 83 5

Menendez Rodriguez v. Pan American Life Insurance Co.,

311 F. 2d 429 (Sth Cir. 1962), vacated, 376 U.S. 779

a I ala Sea tae Lag BOPP Dc RAE PRE ee 11

Mizokami Bros. v. Baychem Corp., 556 F.2d 975 (9th Cir.

1977), cert. denied, 434 U.S. 1935 (1978) .......... 11

Mobil Tankers Co. v. Mene Grande Oil Co., 363 F. 2d 611

(3rd Cir.), cert. denied, 385 U.S. 945 (1966) .. 10

PAGE

Norwood v. Kirkpatrick, 349 U.S. 29 (1955) ........... 16

Oceanic Steam Navigation Co. v. Mellor (The Titanic), 233

I NM og a Bi a dg Ge ctW kag Oe

Poe Vv. Marquette Cement Manufacturing Co., 376 F. Supp.

Pr eh oes vb aw ke ec 11

Reavis v. Gulf Oil Corp., No. 78-343 (D. Del., filed Feb-

ee cee. 11

Swift & Co. v. Compania Colombiana del Caribe, 339 U.S.

I ras REE poh fay 5 26 aa ea a 8,11

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336

Nuri © iin rktAul a lies ong eee ok ak Feo & 22

Van Dusen Vv. Barrack, 376 U.S. 612 (1964) .......... 5,15, 21

STATUTES

oe Ge a eg ee er ee , 2

Rae Se OO OO a ice cece if 2

ee I ov Sees 14

a a ree dee es ae 2

28 U.S.C. §1404(a) ......... na 16

CESS NE eG a et a 19

ee I 6 et da Aes 2

MISCELLANEOUS

Barrett, The Doctrine of Forum Non Conveniens, 35 CALi-

FORNIA L. REV. 380 (1947) ......... Deere es 7

Bickel, The Doctrine of Forum Non Conveniens as Applied

in the Federal Courts in Matters of Admiralty, 35

a es Oe ek ce ak 6, 7, 10

Bickel and Wellington, Legislative Purpose and the Judicial

Heng The Lincoln Mills Case, 71 Harv. L. Rev. 1

4.) Ee MS sn ee ee ra, gts > 9

Braucher, The Inconvenient Federal Forum, 60 Harv. L.

Rev. 908 (1947) ___... ae ahany ies 7

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

ALCOA STEAMSHIP COMPANY, INC. (a New York corporation),

Petitioner,

against

N/V Norpic REGENT, her boilers, tackle, machinery and other

appurtenances in rem and Norcross SHIPPING Co., INC. (a

Liberian corporation), as her owner in personam,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Petitioner prays that a writ of certiorari issue to review the

en banc decision of the United States Court of Appeals for the

Second Circuit dated February 25, 1980, vacating the judgment

and opinion of the panel on rehearing dated January 10, 1979

which, in turn, had reversed the judgment and opinion of the

same panel dated August 31, 1978. The en banc decision

affirmed the judgment of the United States District Court for

the Southern District of New York dated January 17, 1978,

dismissing this admiralty suit on forum non conveniens grounds.

Opinions Below

None of the opinions of the Court of Appeals in this case

has been officially reported, although all have been unofficially

reported in American Maritime Cases. The en banc slip opinion

of the Court of Appeals for the Second Circuit dated February

25, 1980 (1980 AMC 309) is reproduced in Appendix B at

page A-3.* The panel opinion dated January 10, 1979 (1979

* A—refers to the appendix herein.

AMC 1) is reproduced at page A-45 and the panel opinion

dated August 31, 1978 (1979 AMC 13) is reproduced at page

A-63. The District Court opinion dated January 17, 1978 (453

F. Supp. 10) is reproduced at page A-73.

Jurisdiction

The judgment of the Court of Appeals for the Second Circuit

was entered on February 25, 1980. This petition for certiorari

was filed within ninety days of that date. This Court’s jurisdic-

tion is invoked under 28 U.S.C. § 1254(1).

Questions Presented

1. Under what circumstances, if any, may a U. S. citizen,

having obtained personal jurisdiction over a defendant doing

business in the district, be dismissed, on forum non conveniens

grounds, from the federal court in the district in which it resides

and has its principal place of business, and relegated to the

courts of a foreign nation?

2. In considering a motion by a foreign defendant to dis-

miss, on forum non conveniens grounds, a suit brought by a

resident U.S. plaintiff, may a court disregard the fact that the law

of the alternative foreign forum would limit the American

plaintiffs recovery to less than ten percent of its claim?

3. May American plaintiffs, resident in the United States,

be dismissed out of United States courts and relegated to an only

nominal remedy, on the basis of a freely “discretionary” assess-

ment of mere “balance of convenience” factors, of a sort and

weight necessarily found in most causes of action arising outside

the United States?

Statutes Involved

Involved in this case are art. III § 2, cl. 1 (The “arising

under” and Admiralty Clauses) and art. IV, §2 cl. 1 (The

Privileges and Immunities Clause) of the Constitution of the

United States, and 46 U.S.C. § 183(a) (The Limitation of Ship-

owners’ Liability Statute}, which are printed in Appendix A.

Statement of the Case

a. The Facts

Petitioner Alcoz Steamship Company, Inc. (a New York

corporation) now has, and has had since 1925 an office and

principal place of business in New York City where all execu-

tive decisions are made and board meetings held.

Petitioner is in the business of transportation by sea of ore

and other bulk cargoes. It often charters and operates the ves-

sels required, and owns and operates a transfer-station ore pier

at Point Tembladora, Port of Spain, Trinidad.

Among the vessels sc used was the Liberian-flag M/V Nordic

Regent, with predominantly Italian officers and crew, which

Alcoa Steamship had chartered from Anglo Nordic Shipping

Ltd., the disponent owner of the vessel. Anglo Nordic, which

has offices in New York City, is the sole stockholder of and also

the New York general agent for the registered owner, Norcross

Shipping Co., Inc., a Liberian corporation. “he charter with

Anglo Nordic provides for service of process in New York and

litigation of disputes in the United States District Court for the

Southern District of New York.

On January 2, 1977, the Nordic Regent, pursuant to this

charter, was bound for Point Tembladora, Trinidad. The Master

of the Nordic Regent, approaching pilotage waters, radioed for

a pilot, and was informed that one would come. However, when

the pilot launch did not arrive immediately alongside the vessel,

the Master—despite his unfamiliarity with the waters—inexplica-

bly elected to forge ahead to Alcoa’s Point Tembladora pier

facility without pilot assistance. At about 2340 hours on January

2, 1977, the Nordic Regent collided with Alcoa’s pier, causing

approximately $8,000,000 damage.

b. Litigation History

On January 7, 1977, Alcoa Steamship brought suit in the

United States District Court for the Southern District of New

York in rem against the vessel and in personam against Norcross,

her owner, for the $8,000,000 damage, alleging that the Nordic

Regent, a moving vessel, was at fault for having collided with

the pier, a stationary object. Alcoa Steamship obtained in

personam jurisdiction over Norcross by serving its general agent,

Anglo Nordic.. Later, Alcoa Steamship obtained in rem juris-

diction when the defendant filed a claim of owner and gave secur-

ity in an amount equal to the value of the vessel to avoid her

arrest in Texas.

On January 18, 1977, respondent-defendant herein, Nor-

cross, commenced a limitation proceeding in Trinidad; the ap-

parent effect of success in that foreign proceeding would be

limitation to the amount of $570,000, or about eight percent of

the present claim, see opinion of the Court below herein, infra

at A-29.

Then, on February 4, 1977, defendant moved to dismiss the

present action on forum non conveniens grounds. Almost a year

later, on January 17, 1978, the United States District Court for

the Southern District of New York granted the motion. Alcoa

Steamship immediately appealed and the Second Circuit Court

of Appeals affirmed the District Court’s decision in a 2 to 1

opinion dated August 31, 1978. Upon rehearing, the same panel,

in an opinion dated January 10, 1979, reversed itself and the

District Court.

Upon further rehearing, this time en banc, the Court of

Appeals again affirmed the judgment of the District Court (with

two dissents*) in an opinion dated February 25, 1980—over

three years after this action was brought.

Reasons for Granting the Writ

Introduction

The Court of Appeals for the Second Circuit has here taken

* Judges Van Graafeiland and Oakes. Judge Waterman, who

voted with the majority in the January 10, 1979 decision in favor of

Alcoa Steamship, did not participate in the en banc decision.

two giant steps away from the law of forum non conveniens as

hitherto understood.

First, it has plainly treated American citizenship and res-

idence of plaintiffs as of no importance in shaping the decision

whether to dismiss their suits out of their own national courts

on forum non conveniens grounds. This casual treatment of

citizens’ rights of access to their own courts is an order-of-

magnitude jump away from repeated statements and holdings of

prior courts (including this Court), of all commentators—and

even, unequivocally, of the Second Circuit Court of Appeals

itself, as late as 1972, Leasco Data Processing Equipment Corp.

v. Maxwell, 468 F. 2d 1326, 1344 (1972).

Secondly, the Court of Appeals has held that the prospect of

virtual defeat of recovery (by limitation to some eight cents on

the dollar of the claim) in the forum to which plaintiff is re-

mitted is wholly immaterial as a matter of law, though it is in

truth the factor by far most plainly relevant to the practical

“justice of dismissal. This holding is not supported by Canada

Malting Co. v. Paterson Steamships, Ltd., 285 U. S. 413 (1932)

(the only Supreme Court authority cited in support by the court

below), is branded as contrary to “the interest of justice” by the

rationale of Van Dusen v. Barrack, 376 U. S. 612 (1964), and

sharply departs from the 1975 position of the Second Circuit

Court itself, Fitzgerald v. Texaco, Inc., 521 F. 2d 448, 453

(1975), analyzed infra, p. 18.

These two steps mark this case as one that calls urgently for

the attention of this Court.*

“ There are present in this case no factors at all of a kind or

weight sufficient to justify such dealings either with American citizen-

ship or with the commonsense practicalities of justice—much less

with these two things together.

There is no suggestion of vexation, harassment or imposition, the

prevention of which is the root reason of the forum non conveniens

device, Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947), see also

Koster v. Lumbermens Mutual Co., 330 U.S. 518, 524 (1947) as to

dismissal from plaintiff's home forum.

(Continued on following page)

1. This Court should (a) set guidelines as to when,

if ever, a United States plaintiff may be denied

the right of trial in the federal court in the dis-

trict in which it is resident and (b) by so doing

resolve a conflict among the circuits on this

point.

a. The innovatory treatment of this question

by the court below demonstrates the need

for guidelines to be set by this Court.

The starting-point may be the late Alexander Bickel’s classic

piece, The Doctrine of Forum Non Conveniens as Applied in

the Federal Courts in Matters of Admiralty, 35 CORNELL L.Q.

(Continued from previous page)

There is no showing or particularized allegation of serious incon-

venience to the defendant, which has a place of business and an agent

for receipt of process in the district of suit. Defendant has no ties

with Trinidad and Tobago, where the suit will probably have to go

if this dismissal stands. The cause of action is a normal one in

maritime tort, with facts called “simple and straightforward” even

by the court below.

There is no contractual arrangement for suit anywhere else, cf.

Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972). On the contrary,

the charter party between the plaintiff and defendant’s sole stockholder

provides for litigation of disputes in New York—something close to

an admission that a New York forum is not “inconvenient,” siace

many charterparty disputes might have involved just the sorts of

insubstantial “inconvenience” alleged here.

The suggestion that defendant might bring in a Trinidad pilot or

pilots’ association as a third-party defendant (see 453 F. Supp. at

13) is hardly even colorable, since the act of the defendant’s master

in proceeding immediately without the pilot was a conscious and

unjustified novus actus interveniens. Besides, no affirmative theory

on sage pilots’ liability could be predicated is suggested by anything

in the case.

In sum, this case involves no more difficulty than is sure to be

suggestible as to most causes of action arising in a country other

than the United States. If this holding is allowed to stand, American

citizens may be dismissed out of their own courts in most such cases,

for this one is in no way extraordinary.

12 (1949). In the world of which Bickel writes, only 31 years

ago, dismissal of such a case as this would be inconceivable:

[I]t is... not often crucial to determine whether a

constitutional guarantee of access to the courts protects

the American libeilant from dismissal. For there are

valid reasons why, if discretion exists, it should be sharply

restricted. ... And an American libellant after all pays

taxes toward the support of the Federal courts and is

therefore somewhat entitled, where a foreigner has no

claim at all, to burden them with a not excessive measure

of inconvenience. .. .

There should be dismissal only when flagrant injustice

would be done by allowing the suit to proceed. This

would mean cases in which ali factors of convenience

point to the defendant’s forum and the libellant’s only

possible purpose to bring suit here was to harass defendant

into an unfavorable settlement.

—35 CoRNELL L.Q. 12, 44-45 (1949) (emphasis

supplied )

Shortly before, Professor (now Justice) Robert Braucher,

had written of forum non conveniens:

But no court seems to have applied the doctrine to dismiss

a suit brought by an American citizen in his own right;

if the power exists, occasion for its application is ap-

parently rare.

—Braucher, The Inconvenient Federal Forum,

60 Harv. L. REV. 908, 921 (1947)

Also in 1947, Professor Edward L. Barrett, Jr.:

The plaintiff may be denied the right to sue in the

state where he resided at the time the cause of action

arose only in the rare cases when his suit is so obviously

vexatious and oppressive to the defendant as to far out-

weigh the convenience of suit at home.

—Barrett, The Doctrine of Forum Non Con-

veniens, 35 CALIFORNIA L. Rev. 380, 419

(1947) (emphasis supplied)

This Court has not thoroughly examined forum non con-

veniens since these articles appeared, just after Gulf Oil Corp. v.

Gilbert, 330 U. S. 501 (1947) and Koster v. Lumbermens

Mutual Co., 330 U. S. 518 (1947). Those decisions in no way

support this dismissal, though Gilbert, which did not involve the

present issues at all, was treated by the court below as the prime

authority. Both decisions were uttered against the background

(see the articles just cited) of exceeding spareness in dismissal of

plaintiffs’ home-forum actions; it is in this context that their

generalities must be understood. In Koster, to be sure, a New

York stockholder-plaintiff was dismissed to the more convenient

Illinois forum, where the corporate headquarters were, but sig-

nificant above all is the thoroughness with which the Court ex-

plores those extraordinary considerations deemed to justify the

extraordinary exception, clearly seen as such. Moreover, the

Koster dismissal was to have no more untoward result for the

plaintiff than having to sue in another state.*

It is of high significance that Mr. Justice Frankfurter, who

was of the Koster majority, just three years later, writing for the

Court in Swift & Co. v. Compania Colombiana del Caribe, 339

U. S. 684 (1950), saw as still altogether open the general “ab-

stract question whether United States admiralty courts may

decline jurisdiction over libels brought by United States citizens,”

339 U. S. at 697. Something passing strange has happened on

the way to the forum in just the last few years, if a decision such

as the present one can be thought so much as arguably right.

In the case at bar, the Court of Appeals of the Second Circuit

has utterly transformed forum non conveniens practice as to

Americans’ rights of access to their own federal courts, making

it over into a field for broad and free “discretion” in the

district courts—with (as this case surely illustrates) no pre-

* Even so, Justices Black, Rutledge, Reed and Burton dissented, a

fact which signais that even the Koster decision was at the very edge

of the law.

sumption in favor of the American piaintiff suing at home.*

The opinion below frankly bottoms its conclusion on a “trend,”

on a “dramatic recent evolution,” on “recent cases” (in the

state courts) that “favor a liberal application,” on the swinging

of a “pendulum,” (A-18-A-20, emphasis supplied). But it is the

proper responsibility of the Supreme Court of the United States

to say whether the pendulum has in this case swung, as pendu-

lums sometimes do, too far.

This recent “trend” importantly touches the privileges and

immunities of American citizenship—whether in their fully con-

stitutional sense or in their character as high national values.

Crandall v. Nevada, 73 U. S. (6 Wall) 35 (1867); Corfield v.

Coryell, 6 F. Cas. 546 (C. C. E. D. Pa. 1823) (No. 3,230)

(4 Wash. C.C. 37). The ultimate constitutional issue—whether

American citizens may ever be dismissed out of their own courts

on forum non conveniens grounds—need not be reached. It is

enough that this problem is in “the constitutional foothills,”

Bickel and Wellington, Legislative Purpose and the Judicial

Process: The Lincoin Mills Case, 71 Harv. L. Rev. 1, 31-32

(1957); Cf. Kent v. Dulles, 357 U. S. 116 (1958). Such a

development as this ought not to take place without scrutiny by

this Court. It cannot be left to the unexamined and unguided

holdings of the several Courts of Appeal, much less to the ad hoc

“discretion” of district judges, which is where the decision below

puts it and leaves it.

As Circuit Judge Oakes said in his dissent in this case below

(A-32):

In 1949 the late Alexander Bickel referring to the “de-

vice” of forum non conveniens, said, “The device has

been in use in admiralty in the United States for 150

years and more, and has never received an overhauling.

* The extent and meaning of * iis transformation ave established

and illustrated by the Court of Appeal’s decision in Farmanfarmaian

v. Gulf Oil Corp., 588 F. 2d 880 (1978), coupled with the use of

that decision in that Court’s en banc opinion herein. For the sake

of clarity, petitioner has reserved discussion of this important matter

until Point 2, infra pp. 12-15.

It needs one pretty badly.” .. . 35 Cornell L. Q. 12, 13

(1949).

Such an overhauling is even more necessary today; it still

has not occurred.

If an “overhaul” were needed in Bickel’s day, clarification

by this Court of this basic citizenship issue is the least that can

be thought needed now.

b. The holding of the court below as to the

citizenship issue conflicts with decisions of

the Third, Fifth, and District of Columbia

Circuits.

In Mobil Tankers Co. v. Mene Grande Oil Co., 363 F. 2d

611 (3rd Cir.), cert. denied, 385 U. S. 945 (1966), the plain-

tiff, a Venezuelan corporation having its principal place of

business in New York City, sued in federal court in Delaware

for cargo and vessel damage arising out of a fire and explosion

at an oil terminal which the defendant, a Delaware corporation,

operated in Venezuela. Mobil, a New York corporation and

parent of the plaintiff, intervened in the litigation as cargo owner.

Venezuelan law concededly governed. The district court dis-

missed on forum non conveniens grounds, 236 F. Supp. 362,

368. The Third Circuit reversed, saying that even though the

balance of conveniences favored the defendant, a U. S. citizen’s

election of a U. S. federal court “should not be disregarded in

the absence of persuasive evidence that the retention of jurisdic-

tion will result in manifest injustice to the respondent. . . . This is

so even though the more convenient forum may be the foreign

one... .” 363 F. 2d at 614 (emphasis supplied).

The same high standard prevails in the Fifth Circuit. In

Burt v. Isthmus Development Co., 218 F. 2d 353 (Sth Cir.),

cert. denied, 349 U. S. 922 (1955), a New York plaintiff brought

a contract action against a Texas corporation in federal court in

Texas. Mexican law governed, all the negotiations occurred in

Mexico, performance was to be in Mexico, and all the defendant’s

witnesses were there. The district urt dismissed on forum non

conveniens grounds. The Fifth Circuit reversed, saying:

It strikes us as being inconsistent with the very purpose

and function of the federal courts to hold that one may

decline to hear a case and thereby in effect decree that

a citizen must go to a foreign country to seek redress

of an alleged wrong.

—218 F. 2d at 357.

Finding it unnecessary in that case “to hold that no discretion

exists in any such case to decline jurisdiction,” referring to Swift

& Co. Vv. Compania Colombiana Del Caribe, S.A., supra,

the opinion went on to “. . . express the view that . . . courts

should require positive evidence of unusually extreme circum-

stances, and should be thoroughly convinced that material injus-

tice is manifest before exercising any such discretion to deny a

citizen access to courts of this country.” 218 F. 2d at 357* (em-

phasis supplied).

The Burt test was explicitly endorsed by the District of

Columbia Circuit in Founding Church of Scientology v. Verlag,

536 F. 2d 429, 435-36 (D.C. Cir. 1976). Although the Court

of Appeals in that case was convinced that the District of

Columbia was a somewhat inconvenient forum for the defendant,

it nevertheless reversed the district court’s dismissal on forum

non conveniens grounds because it did not appear that the plain-

tiffs choice of forum was “prompted by an intent to vex or

harass.” 536 F. 2d at 436. See, Bickel and Barrett, supra, p. 7;

see also, infra, p. 19.

* The Mobil and Burt opinions have been cited and followed

in later opinions in their respective circuits. See, Menendez Rodriguez

v. Pan Amer'can Life Insurance Co., 311 F. 2d 429 (Sth Cir. 1962),

vacated on other grounds, 376 U. S. 779 (1964); Hoffman v. Gober-

man, 420 F. 2d 423 (3rd Cir. 1970); Reavis v. Gulf Oil Corp., No.

78-343 (D. Del., filed February 20, 1980); D’Angelo v. Petroleos

Mexicanos, 398 F. Supp. 72 (D. Del. 1975); Poe v. Marquette

Cement Manufacturing Co., 376 F.Supp. 1054 (D. Md. 1974);

Constructora Ordaz, N.V. v. Orinoco Mining Co., 262 F. Supp. 90

(D. Del. 1966).

On the other hand, the Ninth Circuit, while citing Burt, seems in-

clined toward a view similar to the Court below. Mizokami Bros. v.

Baychem Corp., 556 F. 2d 975 (9th Cir. 1977), cert. denied, 434

U.S. 1035 (1978).

The decision of the district court herein, expressly ratified by

the court below, dismissed this action because of “the lack of a

substantial nexus between this controversy and the Southern Dis-

trict of New York combined with the inconvenience and possible

prejudice to the defendant resulting from the retention of juris-

diction here.” 453 F. Supp. at 12 (A-76) (emphasis supplied).

It is a long unpassable way, verbally and factually, from “possible

prejudice” to “manifest injustice.” It cannot be seriously thought

that the defendant’s motion below could have met the rigorous

standards of the Third, Fifth, and District of Columbia Circuits.

This Court’s guidance is needed.

2. The crucial precedential use of Farmanfar-

maian v. Gulf Oil Corp. 588 F.2d 880 (2d Cir.

1978) in the opinion below makes it certain

that the Court of Appeals has committed

itself to the doctrine that American citizen-

ship, even when coupled with American

residence, is of no importance as to forum

non conveniens dismissal.

An entire section of the Court of Appeals’ opinion herein is

headed simply, “FARMANFARMAIAN” (A-13). The refer-

ence is to Farmanfarmaian v. Gulf Oil Corp., 588 F. 2d 880 (2d

Cir. 1978). The exact nature of the lower court’s reliance on

Farmanfarmaian in this case is plainly symptomatic of serious

confusion concerning forum non conveniens practice in suits in

American courts by American citizens and evidences such a

departure “from the accepted and usual course of judicial pro-

ceedings ... as to call for an exercise of this court’s power of

supervision” (Rule 19).

The district judge, in Farmanfarmaian v. Gulf Oil Corp.,

437 F. Supp. 910 (S. D. N. Y. 1977), says the case contains

“all the ingredients of a fascinating novel,” 437 F. Supp. at 913

—a novel, it may be added, requiring translation from the orig-

inal Persian. Farmanfarmaian was an Iranian lawyer, resident

in Iran. It does not appear from the opinions whether he had

ever so much as been in the United States. His claims were of

almost impenetrable complexity, but the contracts, the breaches,

and the interferences with contract that he alleged, occurred, in

all this complexity, in Iran. Several Iranian corporations entan-

gled in his net of allegations were not even amenable to juris-

diction in the United States; one was a subsidiary of the National

Iranian Oil Co., a governmental corporation, so that Iranian

national policy might be implicated. The substantive law the

district court would have had to apply was Iranian law, pure if

not simple. Farmanfarmaian’s own expert witness testified that

interpretations of that law as codified would entail the use of

hermeneutic principles drawn from Islamic law, and from the

civil law of continental Europe. The official text would be in

Iranian. The district court’s dismissal of this exotic case, on

forum non conveniens grounds, was affirmed in the Second Cir-

cuit Court of Appeals.

It seems astounding that such a case could be thought to have

value as precedent for a suit like the present, asserting a simple

cause of action in maritime tort, sued on by a resident American

national in an American admiralty forum. The connection per-

ceived by the court below is that Farmanfarmaian, though

nothing but an Iranian in all respects, was to be exactly equated

to any American citizen, by virtue of a treaty guaranteeing

Iranian nationals access to American courts, “upon terms no less

favorable” than those applicable to American nationals. Thus,

since Farmanfarmaian dismissed on forum non conveniens

grounds a suit brought by an Iranian national, so may a court

dismiss a suit by a real American national.

Even granting the algebraic cogency of this equation, a case

like Farmanfarmaian is a poor vehicle indeed for settling finally

the rights of real American citizens; the equities underlying their

rights cannot have been sharply visible in Farmanfarmaian. But

certain more categorical points must be made.

In strong contrast with the situation of petitioner herein,

Farmanfarmaian was a foreign resident, a lifelong foreign

resident so far as appears from the reports. The parallel case

to Farmanfarmaian would then have to be that of a person tech-

nically an American citizen under one of the provisions of law

making that possible to a lifelong foreign resident, see 8 U.S.C.

§ 1401, but with no other tie to the United States. It may be

granted that the New York suit of such a person, resident in Iran,

practicing law there, and suing on a complex and ineradicably

Iranian cause of action, involving hard questions of law in a

system as good as intellectually inaccessible to an American judge,

might be dismissed on forum non conveniens grounds. The dif-

ficulty is in seeing what such a disposition, which would give

full force to the Farmanfarmaian equation, would have to do

with the present case wherein citizenship is coupled with resi-

dency.*

There is another most revealing point in Farmanfarmaian,

distinctly bridging to our case: The district judge in Farman-

farmaian, whose “discretion,” in “weighing” all the factors, was

deferred to as dispositive, 588 F. 2d at 882, had twice declared

that he considered Farmanfarmaian’s being an alien to be a

significant factor, 437 F. Supp. at 923, 927. The Second Circuit

Court of Appeals, though affirming the dismissal, felt “constrained

to comment” that consideration of this factor was impermissible

as a matter of law, because of the treaty provision. But if the

affirmance rests on deference to the district judge’s discretion

(and the Court of Appeals made this unusually plain, even saying

that it thought “the issue whether the action should have been

dismissed is perhaps somewhat closer than Judge Carter sug-

gested. . . ,” 588 F. 2d at 882), then how could it have been

known how the district judge’s “discretion” would have sized

up the factors remaining, had he known that one of the factors

.he expressly considered must, as a matter of law, be taken out

of the balance—especially in a case the Court of Appeals itself

thought to be rather close?

* In his dissent below in our case, Judge Van Graafeiland alludes

to certain facts of global political life that may often make quite

problematic the sending of American citizens from their courts. Of

those who think this concern exaggerated, one may ask, “How

would you now feel about having, in December 1978, sent an Ameri-

can citizen to litigate in Iran, in a simple case of maritime tort?”

The hidden premise (and here the case banefully connects

with ours) can only be that American citizenship of a plaintiff not

only fails to be a categorical bar to dismissal, but is of such

de minimis importance that it may be assumed that a forum non

conveniens motion would be decided with it just as it was decided

without it. This premise, brought to light, so transgresses com-

mon sense as to make unnecessary renewed citation of the uni-

formly contrary authorities. Yet it is the very premise that

underlies the decision in our case.

3. The holding below—that it is immaterial to

forum non conveniens disposition that the

foreign court to which the case would prob-

ably have to go would limit recovery to 8%

of the claim—is irreconcilable both with

practical justice and with this Court’s hold-

ing and opinion in Van Dusen v. Barrack,

376 U. S. 612 (1964).

The Court of Appeals’ opinion in this case says: “The pri-

mary concern of appellant [the present petitioner] in resisting

trial in Trinidad is that it may recover only $570,000 rather than

$8,000,000 from appellee [the present respondent], assuming the

latter to have been at fault” (emphasis supplied). With respect,

this is a startlingly backhanded way of putting the matter. The

immediately visible “resistance” is respondent’s “resistance”, ex-

pressed in its forum non conveniens motion, to trial of a suit

brought by an American plaintiff, of American residence, in an

American court indisputably seized of jurisdiction under the

Constitution and Acts of Congress. And of course respondent’s

“primary concern” expressed in this “resistance” is a well-founded

hope of limiting petitioner’s recovery (on the Court of Appeals’

own figures) to about eight cents on the dollar of liability.

Van Dusen v. Barrack, 376 U. S. 612 (1964), is the most

instructive authority on the question whether dismissal is proper

when the forum to which plaintiff is remitted will apply a law

drastically limiting recovery. This Court unanimously there held

it impermissible, as not being “in the interest of justice,” see

376 U. S. at 626, for a transfer of a case under 28 U. S. C.

§ 1404(a) to bring about the application of the law of the trans-

feree state, principally its law of damages, to the plaintiff's dis-

advantage. The case was remanded for reconsideration, but

under firm direction that transfer must be ordered, if at all, on

condition that the transferee court apply the law of the transferor

State.

While this management of the matter may not be available

as between nations, it is quite impossible that it can be not “in

the interest of justice” for a 1404(a) transfer to result in a changed

law greatly reducing damages, without its being likewise not “in

the interest of justice” to dismiss a case such as this, where the

real thing at stake is the virtual wiping-out of damages by the

law of what is in effect the transferee nation.* The requirements

for § 1404(a) transfer have been squarely held, in this Court,

to be easier than those for forum non conveniens dismissal, Nor-

wood V. Kirkpatrick, 349 U. S. 29, 32 (1955); this makes Van

Dusen a dispositive authority in the present case.** The judg-

ment of the court below in our case cannot live in the same world

with the equity and rationale of Van Dusen.

Even without the weighty authority of Van Dusen, petitioner

submits that to treat as entirely adequate the Trinidad remedy—

eight cents on the dollar—or to treat its inadequacy as immate-

rial to the justice of dismissal, is a course that should have been

rejected unless compelled by prior decisions. The court below

* In Van Dusen, moreover, the Court approvingly cites a HARVARD

LAW REVIEW Note saying, “It would be best . . . not to transfer at all

where the law . . . applied in the transferee forum would be materially

ar from that applied by the transferring court”, 376 U. S. 636,

n. 35.)

** Indeed, in DeMateos v. Texaco, 562 F. 2d 895, 899 (3rd Cir.

1977), cert. denied, 435 U. S. 904 (1978), the Third Circuit stated

that the principle of Van Dusen—that a 1404(a) transfer should not

result in a change in the applicable law—“is no less applicable to a

dismissal on forum non conveniens grounds.”

cites no authority close to compelling.* Canada Malting Co.

v. Paterson Steamship, Ltd., 285 U. S. 413 (1932), the only

cited authority coming from this Court, involved nothing but

Canada and Canadians, except that at the moment of collision

the two Canadian ships may “unintentionally” have wandered

into United States waters, 285 U. S. at 423-424. Even so, the

opinion by Mr. Justice Brandeis, affirming dismissal, “assumed”

that if the libellants were “entitled to have applied the law of the

United States” (which would have given a full recovery) the

Canadian court would so hold, 285 U. S. at 424. On the other

hand, it was left undecided and unclear whether the American

court, if it had kept the case, should or would have applied the

American rule more favorable to the libellant. 285 U. S. at 419.

Thus, any difference between the recoveries would have had to

flow from different conflicts-of-laws rules in the two nations;

nothing (as Justice Brandeis’s remark shows) pointed toward

such a difference. Moreover, the respective faults of the vessels

had not yet been judicially settled, 285 U. S. at 417-18; if the

undamaged vessel were found solely at fault, it would have to pay

all the damage, in Canada as well as in the United States. In any

event, the possibility of a lesser recovery, even under Canadian

law, was, in the view of this Court, created merely by the pos-

sibility that the damaged value of one of the colliding vessels

“might” be insufficient to pay its part. 285 U.S. at 418. There-

fore, for four clearly visible reasons, noticed by this Court, it

was uncertain whether a Canadian judgment would turn out to

be any smaller than an American judgment.

Koupetoris v. Konkar Intrepid Corp., 535 F. 2d 1392 (2d

Cir. 1976), also cited by the court below, involved a Greek sea-

man’s injury; the only American “contact” was in the accident’s

occurrence “off the coast of the United States” 535 F. 2d 1396.

That a Greek should be sent to Greek law with his claim against

* The treatment of the amount of recovery factor in the District

Court opinion in this case is brief, perfunctory, and without any sug-

gestion that the District Court appreciated that what was involved was

a virtual denial of recovery, 453 F. Supp. at 13 (A-77).

his Greek employer, as to a Greek-ship injury whose connection

with the United States was “purely fortuitous,” 535 F. 2d 1396,

cannot be a holding that an American plaintiff may be sent from

an American court, to a remedy of eight cents on the dollar.

The prospect of less favorable Greek law was only vaguely

alluded to; all the case suggests is that the possibility of some

unfavorable aspect in the foreign law does not compel the denial

of a motion to.dismiss on forum non conveniens grounds, how-

ever crushingly onesided the case may otherwise be.*

Koupetoris cites Fitzgerald v. Texaco, Inc., 521 F. 2d 448

(2d Cir. 1975). But Fitzgerald, read aright, looks the other way

from the present decision, in an instructive passage uttered by

the late Judge Anderson for the court:

A district court has discretion to dismiss an action

under the doctrine of forum non conveniens, however,

even though the law applicable in the alternative forum

may be less favorable to the plaintiff's chance of recovery.

Canada Malting Co., Ltd. v. Paterson Steamships, 285

U.S. 413, 418-20, 52 S. Ct. 413, 76 L.Ed. 837 (1932).

A contrary holding would emasculate the doctrine, for

a plaintiff rarely chooses to bring an action in a forum,

especially a foreign one, where he is less likely to recover.

But the issue remains one of, balancing the relevant fac-

tors, including the choice of law.

—521 F. 2d at 453 (emphasis supplied)

The final emphasized words are crucial. If they mean any-

thing, in the context, they mean that a court may and should take

into account the actual effect of remitting plaintiff to foreign law;

this is to be a “relevant factor.” Going on, Judge Anderson

finds it to be only a “minimal possibility”, in the very case, that

plaintiff would be “adversely affected by dismissal,” 521 F. 2d

at 453. This emphatically can not be said of this case.

* The final citation on this point (A-29) in the passage in the

opinion of the court below, Kloeckner Reederei etc. v. A/S Hakedal

(The Western Farmer), 210 F. 2d 754 (2d Cir. 1954), must have

been inserted by inadvertence; that case reversed dismissal of a suit

between two foreigners of differing nationality.

Turning from cases to the reason and justice of the matter:

How low would a recovery have to go to be a recovery in name

only? Four cents, two cents on the dollar? Eight cents on the

dollar is pretty low. It would not be an “adequate remedy at

law” for ancient equity-jurisdiction purposes. Law is a practical

subject; eight cents on the dollar is so close to no remedy at all

as to be treated, in law, as just that.

The court below has herein staged Hamlet without the

Prince of Denmark. It first emphasizes the highly “discretionary”

nature of the forum non conveniens dismissal; all relevant factors

are to be considered, in an open series unbounded by doctrine.

Then it proceeds to eliminate, as a matter of strict law, the over-

whelmingly dominant relevant factor—that the remedy to which

the American plaintiff-petitioner is remitted is 92% no remedy

at all. The only possible case in which such a rule would even

arguably conform to the “interest of justice” (see Van Dusen,

supra) would be a case in which harrassment, vexation or im-

position were plainly shown—a court might perhaps then say,

“Your invocation of our jurisdiction is so grossly improper that

we do not care what happens to you elsewhere.” That is also

the only sort of case in which, until quite recent times, home-

resident American citizens were thought dismissable out of their

Own courts on forum non conveniens grounds (supra pp. 6-12).

In two ways, then, the court below has treated the plaintiff in a

manner suitable only in cases of harrassment or imposition—

things not even allegedly present.

The laws involved here are the limitation of liability statutes

of the United States and of Trinidad and Tobago. The American

statute, particularly after its painstaking redrafting in 1935 and

1936, is a policy compromise constructed by Congress—setting,

in effect, not only upper but lower limits, as being just and

equitable in Congress’ view, see 46 U.S.C. § 183. An American

plaintiff should not be denied the benefit of that compromise,

where jurisdiction is unmistakeably present, under an Act of the

Congress itself.

There is startling asymmetry in this result. If this vessel had

been destroyed, and if respondent had brought one of her life-

boats into a United States port and petitioned for limitation, that

petition would have been retained and the petitioner invited to

come in and get its .002 mils on the dollar. Oceanic Steam Navi-

gation Co. v. Mellor (The Titanic), 233 U.S. 718 (1914). The

forum would not be “inconvenient” in that case. Indeed, this un-

fair asymmetry is pervasive. In many cases of this type, the stand

of the court below would mean that the defendant, rather than

the plaintiff, has his choice of forum. Many defendants are not

servable with process in the locus delicti without their consent.

On the other hand, the defendant always has a choice whether to

move for forum non conveniens dismissal in the plaintiff's home

court. Thus, a defendant might either make itself available for

suit in the forum loci delicti, and get the plaintiffs home suit

dismissed, or stay out of the foreign country, and wait for the

plaintiff to sue here or nowhere.

If one were to choose, as to fairness, between the two limita-

tion statutes involved, the American statute must prevail as to

this case. Limitation of liability is in derogation of the merits.

And the American statute has at least been reworked once in the

century now waning. The Trinidad and Tobago statute came

into force there by virtue of general doctrines as to applying

British law to the colonies. It dates from 1894, three years be-

fore Queen Victoria’s Diamond Jubilee. Its per-ton limitation

of £ 8 has outlived so much inflation as to be not merely inade-

quate but derisory; it has as much to do with practical modern

justice as 1894 rules on controlling horses have to do with the

safe piloting of jet aircraft. To send this respondent rejoicing

toward its all but total shelter would be to bestow a windfall

resulting from the merely inertial Trinidad failure to revise this

ancient statute, against the background of earlier failure of the

British Parliament to extend its own updatings to the Colonies—

a chain of mere legal accidents. The statute has, so far as peti-

_tioner can discover, never been judicially invoked in Trinidad

and Tobago, and therefore, if this petition fails of success, will

have lived out its fourscore and six years there toward the sole

end of allowing respondent herein virtually to escape liability

for its own egregious fault. This is not “in the interest of justice,”

Van Dusen v. Barrack, supra.

4. This Court should define narrowly the role of

“discretion”, operating on such miscellaneous

and variable factors as “court congestion”, in

repelling Americans from their own courts.

There is some ambiguity running through the opinions below

as to the matter of “discretion.” See, e.g., Judge Timbers’s dis-

sent, in the three-judge panel on first rehearing (A-52-53).

Petitioner here only suggests that an effective power (under

any name in any court) to send an American plaintiff to a foreign

forum, on assorted balance-of-convenience grounds, with as good

as no rule-bound guidance at all, is an unthinkable way to deal

with the problem of Americans’ access to their own judiciary.

It would result in the toleration of differing and unpredictable

results on this vital matter, from circuit to circuit, from district

to district, and even from judge to judge—and, as to all these,

from time to time. This Court is the sole proper authority to

mark generally—and strictly—the bounds of this “discretion”.

A major shift in the law of American citizenship should not

occur under the name of “deference” to the unfenced “discretion”

of district courts.

The disastrous effects of such unloosing of “discretion” may

be shown by specific reference to the use, in both courts below,

of the factor of court “burden” or “congestion” as of material

weight (A-18, A-74). To say that such “congestion” is to be a

factor, entering, into the striking of a “discretionary” balance, is

to say that the luck of American resident citizens in gaining ac-

cess to their own courts is to vary from district to district, and

from time to time in the same district, because the ‘“‘congestion”

factor itself must so vary. This is perhaps tolerable as to suits

between foreigners, wherein there is an element of accommoda-

tion, cf. Bickel, supra, p. 7. It is not tolerable that the access of

Americans to their courts depend on the respective states of the

dockets of the several judicial districts, as evaluated by district

judges from year to year—far less tolerable than it would have

been to remand to the state courts, on congestion grovuds,

properly removed diversity cases, see Thermtron Products, Inc.

v. Hermansdorfer, 423 U. S. 336, 344 (1976).

Free “discretion” herein would invite American litigants into

a mere guessing-game; they would have to divine whether their

desire for an American forum—a desire recognized as normal

and in no way reprehensible by all authorities—has, in prudence,

to give way to a chancy sizing-up of the likelihood of a “dis-

cretionary” dismissal, on forum non conveniens grounds, by the

particular district judge before whom the motion may come on—

with all the attendant expense and delay.* This cannot be a

satisfactory state of the law.

The result in this case—the “discretionary” dismissal of a

bona fide American plaintiff from United States courts, to a

foreign forum where the remedy is as good as non-existent, with

no showing of harassment, vexation, or imposition—has been

attained by piecing together sayings in past opinions, without

subjection of these to the control of the facts surrounding them,

or of the doctrinal context in which they were uttered. This Court

has never yet held that a home-resident American plaintiff can

be sent from the American forum to a foreign forum, or that any

plaintiff can be remitted to a remedy so partial as to amount to no

remedy. It has never even been whispered that these two things

could be combined, as they are here.

The issues thus framed are meet for this Court’s attention.

* The delays in this case are at least illustrative: The district court

opinion was not rendered until about a year after the motion was made

(during which time the Court could have, but did not, ask defendant to

give proof of its unsupported allegations concerning witnesses and

“necessary” parties) and the most recent opinion of the Court of

Appeals was rendered over three years after the action was brought.

All this in a case which undoubtedly would have been promptly

settled without trial if the district court had denied defendant's

motion.

Conclusion

For all the foregoing reasons, it is respectfully urged that

this Petition for a Writ of Certiorari be granted.

Dated: May 22, 1980

Respectfully submitted,

GORDON W. PAULSEN

One State Street Plaza

New York, New York 10004

(212) 344-6800

Attorney for Petitioner

CHARLES L. BLACK, Jr.

169 Bishop Street

New Haven, Conn. 06511

Of Counsel.

A-l

APPENDIX A

Statutes Involved

U.S. Const. art. III, § 2, cl. 1: “The judicial Power shall

extend to all Cases, in Law and Equity, arising under this

Constitution, the Laws of the United States, and Treaties made

. . . under their Authority; . . . to all cases of admiralty and

maritime Jurisdiction; ... .”

U.S. ConstT. art. IV, § 2, cl. 1: “The Citizens of each State

shall be entitled to all Privileges and Immunities of Citizens in

the several! States.”

46 U.S.C. § 183(a): “The liability of the owner of any

vessel, whether American or foreign . . . for any loss, damage,

or injury by collision . . . done, occasioned, or incurred, without

the privity or knowledge of such owner or owners, shall not...

exceed the amount or value of the interest of such owner in

such vessel, and her freight then pending.”

A-3

APPENDIX B

Opinions Below

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 1558—August Term, 1978

(Submitted to the En Banc

Court April 2, 1979 Decided February 25, 1980.)

Docket No. 78-7054

ALCOA STEAMSHIP COMPANY, INC.,

Plaintiff-Appellant,

M/V Norpic REGENT, Her boilers, tackle, machinery

and other appurtenances in rem, and NORCROSS

SHIPPING Co., INC., as her Owner, in personam,

Defendants-Appellees.

Before:

KAUFMAN, Chief Judge,

FEINBERG, MANSFIELD, MULLIGAN, OAKES, TIMBERS,

GURFEIN,* VAN GRAAFEILAND

and MESKILL, Circuit Judges.

—~

Judge Gurfein, who was a member of the en banc Court, unfortu-

nately died on December 16, 1979. Prior to his death, he had voted

to affirm the judgment of the district court. He did not have the

opportunity, however, to see this opinion prior to his death.

A--4

Court of Appeals En Banc Opinion

En banc reconsideration of an appeal from a judg-

ment entered in the Southern District of New York,

William C. Conner, District Judge, 453 F.Supp. 10

(S.D.N.Y. 1978), which conditionally dismissed an ad-

miralty action on the ground of forum non conveniens.

Judgment and opinion of panel on rehearing, ___

F.2d ____, vacated; judgment of district court affirmed.

J. WARD O’NEILL, Gordon W. Paulsen, Emil

A. Kratovil, Jr., and Haight, Gardner,

Poor & Havens, New York, N.Y., for

plaintiff-appellant Alcoa Steamship

Company, Inc.

HoLtis M. WALKER, Richard A. Corwin,

Vera E. Weinberg, and Walker & Corsa,

New York, N.Y., for defendants-appel-

lees M/V Nordic Regent and Norcross

Shipping Co., Inc.

DouGLas A. JACOBSEN, Robert S. Burrick,

and Bigham Englar Jones & Houston,

New York, N.Y., for American Institute

of Marine Underwriters, Amicus Cu-

riae.

TIMBERS, Circuit Judge (with whom Chief Judge Kauf-

man, Feinberg, Mansfield, Mulligan and Meskill, Cir-

cuit Judges, concur):

We have before us for en banc reconsideration an

appeal from a judgment entered in the Southern Dis-

trict of New York, William C. Conner, District Judge,

A-5

Court of Appeals En Banc Opinion

453 F.Supp. 10 (S.D.N.Y. 1978), which conditionally

dismissed an admiralty action on the ground of forum

non conveniens.

_ The essential question presented is what is the

proper standard for determining a motion to dismiss

an admiralty action on the ground of forum non conve-

niens when the action has been brought by an Ameri-

can resident libelant in a United States district court

and when there is an alternative forum abroad.

For the reasons below, we hold that the proper

standard is that set forth by the Supreme Court in

Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), and

recently adhered to by our Court in Farmanfarmaian v.

Gulf Oil Corp., 588 F.2d 880 (2 Cir. 1978). The dis-

trict court properly applied that standard in the in-

stant case. It held in the exercise of its discretion, after

carefully balancing the relevant factors, that condi-

tional dismissal on the ground of forum non conve-

niens was warranted. Since we hold that the district

court applied the proper standard and we find no abuse

of discretion on its part, we vacate the judgment and

opinion of the panel on rehearing, ___ F.2d ____, and

affirm the judgment of the district court.

The facts relevant to this appeal are simple and

straightforward.’

Shortly before midnight on January 2, 1977 the M/

V Nordic Regent (“the vessel”) collided with a transfer

1 We assume familiarity with the statements of fact set forth in

the opinion of the district court, 453 F.Supp. 10, and in the two

sets of panel opinions of this Court, ———— F.2d ————, slip op.

4587 (August 31, 1978) and ———— F.2d ————, slip op. 5367

(January 10, 1967). Our August 31 panel decision, by a divided

A-6

Court of Appeals En Banc Opinion

station ore pier owned by Alcoa Steamship Company,

Inc. (“Alcoa”) located in Port Tembladora, Trinidad, -

West Indies, causing, according to Alcoa’s claim, an

estimated $8,000,000 of damage to its pier. At the

time of the collision, the vessel was under charter to

Alcoa as an ore carrier. The vessel was owned by the

Norcross Shipping Co., Inc. (“Norcross”), a Liberian

corporation. Alcoa is a New York corporation engaged

in business here and abroad.

Alcoa claims that the collision was due chiefly to the

failure of the master of the vessel to take on a local

pilot before entering the harbor, as required by Trini-

dad and Tobago statutory law. See Empire Transport,

Inc. v. United States, 524 F.2d 1,5 (2 Cir. 1975). Ap-

parently the master was informed by radio that a pilot

would meet the vessel at a point about one-half mile

from the harbor. The pilot was not there when the

vessel arrived. Rather than waiting for the pilot, the

master proceeded into the harbor without a pilot and

attempted to tie up at the pier on his own. The colli-

sion between the vessel and the pier resulted.

Alcoa commenced the instant admiralty action in

the Southern District of New York to recover the prop-

erty damage to its pier in Trinidad claimed to have

resulted from the alleged negligence of the vessel and

its master. Alcoa named as defendants the M/V Nordic

Regent and its owner, Norcross. Process was served on

Norcross through its general agent in New York.

Norcross moved to dismiss the action on the ground of

forum non conveniens.

vote, affirmed the district court’s conditional dismissal of the action

on the ground of forum non conveniens. Our January 10 panel

decision, by a differently divided vote, withdrew the original panel

affirmance and reversed the district court. It is the latter panel

decision which is the subject of the instant en banc proceeding in

this Court.

A-7

Court of Appeals En Banc Opinion

The district court took the motion to dismiss on

submission, based on the pleadings, affidavits and

briefs of the parties—a practice long recognized as ac-

ceptable and followed from time immemorial in the

busy Southern District of New York in determining

forum non conveniens motions. E.g., Koster v. Lumber-

mens Mutual Casualty Co., 330 U.S. 518, 531 (1947);

Vanity Fair Mill, Inc. v. T. Eaton Co., 234 F.2d 633,

645 (2 Cir.), cert. denied, 352 U.S. 871 (1956).

On January 17, 1978, Judge Conner filed a thought-

ful, concise opinion, 453 F.Supp. 10, which set forth in

detail the contentions of the respective parties and

carefully balanced the factors which should be consid-

ered in applying the doctrine of forum non conveniens

under Gilbert, supra.? This was the crux of the judge’s

decision:

“This Court is persuaded that the lack of a sub-

stantial nexus between this controversy and the

Southern District of New York combined with the

inconvenience and possible prejudice to the defen-

dant resulting from retention of jurisdiction here—

2 We believe that it is neither necessary nor appropriate to recount

in detail the contentions of the parties in the district court or the

Gilbert factors relied on by Judge Conner in exercising his discre-

tion in granting the forum non conveniens motion. They are fully

set forth in the district court opinion. Moreover, the issue that

triggered the instant en banc proceeding was not whether the judge

had abused his discretion; rather, it was the legal issue as to what is

the proper standard for determining a motion to dismiss an ad-

miralty action on the ground of forum non conveniens. The panel

majority, in its January 10, 1979 opinion, held for the first time

that the Gilbert standard “does not, and should not, establish the

correct standard for determining when American citizens should

have access to their country’s. admiralty courts.” ———— F.2d at —

——-—, slip op. 5367, 5368. That was the proposition urged by Alcoa

in its petition for rehearing addressed to the panel; it was adopted

by the panel by a divided vote; and it is the central issue before us

in this en banc proceeding.

A-8

Court of Appeals En Banc Opinion

which substantially outweigh any inconvenience

plaintiff may suffer—renders this an inappropriate

forum; an evaluation of the contentions of the par-

ties compels the conclusion that the litigation of

this case can be conducted most expeditiously and

inexpensively in Trinidad.” 453 F.Supp. at 12.

Accordingly, defendant’s motion to dismiss on the

ground of forum non conveniens was granted—but not

unconditionally. The judge imposed two important con-

ditions which are best stated in his opinion:

“Finally, dismissal will not leave plaintiff

without any remedy. Defendant has agreed to sub-

mit to the jurisdiction of the courts of Trinidad as

a condition of dismissal of this suit; moreover,

defendant has already commenced a suit in Trini-

dad which establishes its presence there for pur-

poses of suit by plaintiff. Defendant has also

offered a letter of guaranty that a Trinidadian

judgment will be satisfied and agreed that this

may be made a condition of the dismissal of this

action.

. . . [DJefendant’s motion to dismiss is granted,

subject to reinstatement in the event that defen-

dant shall fail to submit to jurisdiction in Trinidad

with respect to the subject matter of this action

and execute the guaranty of satisifaction of judg-

ment described above.” [d. at 13.

From the judgment entered on Judge Conner’s opi-

nion, Alcoa appealed, resulting in the two panel deci-

sions referred to above, note 1, supra, and the instant

A-9

Court of Appeals En Banc Opinion

en banc proceeding which is directed to the second

panel decision.

With the foregoing brief summary of the facts and

prior proceedings in mind, we shall consider in the

remainder of this opinion (1) the applicability to ad-

miralty actions of the Supreme Court’s Gilbert stand-

ard, as reaffirmed by our Court in Farmanfarmaian,

for determining motions to dismiss on the ground of

forum non conveniens; (2) whether the admiralty na-

ture of the action or the American citizenship of the

plaintiff justifies creating a special rule of forum non

conveniens; and (3) whether the district court in the

instant case, in conditionally dismissing the action on

the ground of forum non conveniens, abused its discre-

tion under the Gilbert standard.

II.

We turn first to the applicability to admiralty ac-

tions of the Supreme Court’s Gilbert standard, as reaf-

firmed by our Court in Farmanfarmaian, for

determining motions to dismiss on the ground of

forum non conveniens.

(A) GILBERT

For more than three decades, Justice Jackson’s opi-

nion in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947),

has been recognized as the leading authority on forum

non conveniens. That case involved an action com-

menced in the Southern District of New York by a

Virginia plaintiff against a Pennsylvania corporation to

recover damages caused by a fire in a warehouse lo-

cated in Lynchburg, Virginia. Acknowledging that a

court “may resist imposition upon its jurisdiction”, 330

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Court of Appeals En Banc Opinion

U.S. at 507,° the Supreme Court, in reversing our

Court, approved the district court’s dismissal of the

action on the ground of forum non conveniens. In do-

ing so, the Court set forth the factors to be considered

by the trial court, in the exercise of its discretion, in

determining whether to grant or deny a motion to

dismiss on the ground of forum non conveniens.‘ These

are precisely the factors which the district court below

Scottish judges were the originators of the idea that a law court

could refuse to hear a case over which it had jurisdiction. The

distinction between forum non conveniens and forum non compe-

tens in non-admiralty cases first emerged in Scotland about 1845.

Braucher, The Inconvenient Federal Forum, 60 Harv. L. Rev. 908,

909 (1947) (hereinafter cited as Braucher). The English courts, how-

ever, generally were unsympathetic to the idea. E.g., Clements v.

Macauley, 4 Macph. 583, 592-93 (1866), cited in Braucher, supra, at

910. Even at the time of the Supreme Court decision in Gilbert, the

English standard for granting a motion to dismiss on the ground of

forum non conveniens required a showing that the trial of the case

in the chosen forum would be vexatious and oppressive—in effect,

the standard urged upon us by appellant in the instant case. Wil-

liams v. Green Bay & W. R.R., 326 U.S. 549, 554-55 n.4 (1946).

The factors set forth by the Court were the following:

“If the combination and weight of factors requisite to given

results are difficult to forecast or state, those to be considered

are not difficult to name. An interest to be considered, and the

one likely to be most pressed, is the private interest of the

litigant. Important considerations are the relative ease of access

to sources of proof; availability of compulsory process for atten-

dance of unwilling, and the cost of obtaining attendance of will-

ing, witnesses; possibility of view of premises, if view would be

appropriate to the action; and all other practical problems that

make trial of a case easy, expeditious and inexpensive. There

may also be questions as to the enforcibility of a judgment if one

is obtained. The court will weigh relative advantages and obsta-

cles to fair trial. It is often said that the plaintiff may not, by

choice of an inconvenient forum, ‘vex,’ ‘harass,’ or ‘oppress’ the

defendant by inflicting upon him expense or trouble not neces-

sary to his own right to pursue his remedy. But unless the

balance is strongly in favor of the defendant, the plaintiff's

choice of forum should rarely be disturbed.

Factors of public interest also have place in applying the doc-

trine. Administrative difficulties follow for courts when litigation

A-11

Court of Appeals En Banc Opinion

evaluated before conditionally granting the instant mo-

tion to dismiss. 453 F.Supp. at 11-13.

Gilbert recognized that “unless the balance [of con-

venience] is strongly in favor or the defendant, the

plaintiff's choice of forum should rarely be disturbed.”

330 U.S. at 508. The decision also made clear that

more than the private convenience interests of the liti-

gants—and much more than the plaintiff's subjective.

intent—should be considered by the federal courts in

acting on forum non conveniens motions. The interests

of justice and court efficiency also must be weighed.

The standard of Gilbert is thus a twofold one—inv-

olving both the court’s public interest concerns and the

private interests of the parties. As one commentator

put it, the Gilbert standard “nicely blends” consider-

ations of harassment by the parties with a balancing of

conveniences. Braucher, note 3, supra, at 923.

On the same day that Gilbert was decided, Justice

Jackson announced the opinion for the Court in

another forum non conveniens case. Koster v. Lumber-

mens Mutual Casualty Co., 330 U.S. 518 (1947). In

that case, a derivative action commenced in the East-

ern District of New York by a New York plaintiff

against Illinois defendants, the Supreme Court, in af-

is piled up in congested centers instead of being handled at its

origin. Jury duty is a burden that ought not to be imposed upon

the people of a community which has no relation to the litiga-

tion. In cases which touch the affairs of many persons, there is

reason for holding the trial in their view and reach rather than

in remote parts of the country where they can learn of it by

report only. There is a local interest in having localized con-

troversies decided at home. There is an appropriateness, too, in

having the trial of a diversity case in a forum that is at home

with the state law that must govern the case, rather than having

a court in some other forum untangle problems in conflict of

laws, and in law foriegn to itself.” 330 U.S. at 508-09 (footnote

omitted). ’

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Court of Appeals En Banc Opinion

firming our Court, again approved the district court’s

dismissal of the action on the ground of forum non

conveniens. In doing so, the Court stated:

“Where there are only two parties to a dispute,

there is good reason why it should be tried in the

plaintiff's home forum if that has been his choice.

He should not be deprived of the presumed advan-

tages of his home jurisdiction except upon a clear

showing of facts which either (1) establish such

oppressiveness and vexation to a defendant as to

be out of all proportion to plaintiffs convenience,

which may be shown to be slight or nonexistent,

or (2) make trial in the chosen forum inappro-

priate because of considerations affecting the

court's own administrative and legal problems. In

any balancing of conveniences, a real showing of

convenience by a plaintiff who has sued in his

home forum will normally outweigh the inconven-

ience the defendant may have shown.” 330 U.S. at

524 (emphasis added).

Contrary to appellant’s argument before us, we do

not believe that the Court’s decision in Koster es-

tablishes a standard other than that of Gilbert for

derivative actions, which in turn appellants urge

should be expanded for the benefit of American resi-

dent libelants in admiralty actions. Justice Jackson’s

opinion in Koster gives no hint of such a departure

from Gilbert. Indeed, the factors weighed by the Kos-

ter court are precisely those of the public and private

tests—judicial administration and harassment—disc-

ussed in Gilbert. The Court in Koster of course recog-

nized that “(t]he complexities and unique features of

[derivative] actions, however, are relevant to the forum

A-13

Court of Appeals En Banc Opinion

non conveniens issue ... .” 330 U.S. at 522. This

bespeaks not advocacy of a separate test for derivative

actions but a pragmatic application of the general equi-

table principles outlined in Gilbert. In short, we believe

that Koster should be read as a consistent, pragmatic

application of Gilbert, rather than an exception to it.‘

(B) FARMANFARMAI/ N

Hardly a year ago, our Court had occasion to con-

sider the matter of forum non conveniens. We con-

cluded that American citizenship alone is not a barrier

to dismissal on the ground of forum non conveniens

and that Gilbert still provides the controlling standard.

Farmanfarmaian v.Gulf Oil Corp., 588 F.2d 880 (2 Cir.

1978).

In Farmanfarmaian, which was decided before the

recent change of government in [ran, an Iranian citizen

commenced an action in the Southern District of New

York for breach of a contract with an Iranian subsidi-

ary of various American and European oil companies.

Plaintiff also claimed tortious interference with con-

tract rights. The contract was entered into in Iran. It

involved an option to purchase an Iranian company.

Evidence relating to the breach, and particularly the

role of the Iranian government, was in Iran. Iranian

law was to govern. Although plaintiff was a foreign

national, his suit nevertheless presented squarely the

question of the district court’s power to remit an

American plaintiff to a foreign forum. This was so

because a bilateral treaty between the United States

and Iran granted Farmanfarmaian “access to [this]

5 Moreover, the abuse of discretion standard appears to be the

same in both cases. Gilbert, 330 U.S. at 508-09; Koster, 330 US. at

531-32.

A-14

Court of Appeals En Bane Opinion

country’s courts on terms no less favorable than those

applicable to nationals of the court’s country.” 588 F.2d

at 882, citing 8 United States Treaties and Other In-

ternational Agreements 900, 902-03 (1957). For the

purpose of the forum non conveniens motion, there-

fore, the courts were obliged to, and did, apply the

same forum non conveniens standard as would have

been applied if Farmanfarmaian were an American citi-

zen.

In an opinion by Judge Feinberg, the Court affirmed

the dismissal of the action on the ground of forum non

conveniens. It follows, if this recent decision of our

Court means anything, that American citizenship is

not an impenetrable shield against dismissal on the

ground of forum non conveniens.

Aside from our concern for the preservation of a

uniform standard for determining forum non conve-

niens motions, Farmanfarmaian demonstrates another

policy reason for adhering to a uniform standard,

namely, not to run afoul of treaty obligations of the

United States. We maintain Treaties of Friendship,

Commerce and Navigation, or similar agreements, with

dozens of foreign nations. Many include “no less favor-

able” treatment clauses like the one found in the Ira-

nian treaty addressed in Farmanfarmaian.® The

6 Between 1946 and 1953 alone, the United States concluded nine

bilateral treaties (with China, Italy, Ireland, Uruguay, Colombia,

Greece, Israel, Ethiopia and Egypt), all of which provided for access

to each country’s courts on a “national treatment” basis, with eight

specifying access on a mostfavored-nation basis. Wilson, Access-to-

Courts Provisions in U.S. Commercial Treaties, 47 Am.J.Intl.Law

20, 45 (1953); 20 Harv. Int'l L.J. 404, 411 n.40 (1979) (relevant

treaties summarized). Other more recent treaties with similar provi-

sions include Agreement on Trade Relations, Mar. 17, 1978, United

States-Hungary, T.I.A.S. No. 8967; Treaty of Friendship, Establish-

ment and Navigation, Feb. 21, 1961, United States-Belgium, 14

A-15

Court of Appeals En Banc Opinion

approach urged upon us by appellant—requiring a

showing of vexation before an action may be dismissed

on the ground of forum non conveniens when the

plaintiff is an American citizen—would leave the fed-

eral courts on the horns of a difficult dilemma if the

action involved a plaintiff who is the beneficiary of

such a treaty clause. The courts either would be ob-

liged to apply this same vexation standard to foreign

nationals who are the beneficiaries of such clauses,

thus barring dismissal for all practical purposes and

crippling the concept of forum non conveniens, or they

would have to do violence to our treaty obligations

which of course are paramount under the Constitution.

Under the approach we take today—adhering to the

simple uniform standard of Gilbert in all instances—

this problem will not arise.

U.S.T. 1284, 1289; Treaty of Friendship, Commerce and Navigation,

Oct. 1, 1961, United States-Denmark, 12 U.S.T. 908, 912.

It might be argued that such provisions were not meant to govern

a forum non conveniens situation. Protocols to the Danish and

Belgian treaties mentioned above, for example, both refer specifi-

cally to entitlement to legal aid as being encompassed within the

term “access”. But as the Danish protocol makes clear:

“The term ‘access’ as used in Article V, paragraph 1, compre-

hends, among other things, access to free legal aid and right to

exemption from providing security for costs and judgment.” 12

U.S.T. at 937 (emphasis added).

Obviously, the protocol does not limit the meaning of access to

entitlement to legal aid or privileges relating to security (which

themselves are not unrelated to the typical forum non conveniens

issue). Nor is such a provision a constant in the treaties mentioned

above. The parallel Belgian protocol refers only to legal aid, 14

U.S.T. at 1309. The treaty involved in Farmanfarmaian contained

no such protocol provision at all. Further, the argument for a limit-

ing construction of the treaties based on such protocols would con-

flict with the clearest meaning of access to the courts. Such access

would have little value if the door that admits is a revolving one.

Finally, the chief flaw in this approach is that it is precisely con-

trary to the interpretation of the Iranian treaty reached by this

Court in Farmanfarmaian.

A-16

Court of Appeals En Banc Opinion

If.

We turn next to a consideration of whether the ad-

miralty nature of the action or the American citizen-

ship of the plaintiff justifies creating a special rule of

forum non conveniens. We hold that they do not.

(A) ADMIRALTY NATURE OF ACTION

There is neither reason nor authority for creating an

exception to the general forum non conveniens stand-

ard established in Gilbert simply because the case in-

vokes the admiralty and maritime jurisdiction of the

ccurt. Our Court consistently has applied the Gilbert

standard in reviewing dismissals on the ground of

forum non conveniens in admiralty cases. Fitzgerald v.

Texaco, Inc., 521 F.2d 448 (2 Cir. 1975), cert. denied,

423 U.S. 1052 (1976); Frangiskatos v. Konkar

Maritime Enterprises, 471 F.2d 714, 715 (2 Cir. 1972)

(per curiam); Grammenos v. Lemos, 457 F.2d 1067,

1074 n.5 (2 Cir. 1972); Fitzgerald v. Westland Marine

Corp., 369 F.2d 499, 501 (2 Cir. 1966) (Kaufman, J.).

Accord, Paper Operations Consultants Intl, Ltd. v. SS

Hong Kong Amber, 513 F.2d 667, 671 (9 Cir. 1975);

Yerostathis v. A. Luisi, Ltd., 380 F.2d 377, 378 (9 Cir.

1967); Texaco Trinidad, Inc. v. Astro Exito Navegacion

S.A., 437 F.Supp. 331, 333 (S.D.N.Y. 1977); Bernuth

Lembcke Co. v. Siemens A/G, 1976 A.M.C. 2175

(S.D.N.Y. 1976); Transomnia G.m.b.H. v. MIS Toryu,

311 F.Supp. 751, 752 (S.D.N.Y. 1970). See also Nor-

wood v. Kirkpatrick, 349 U.S. 29, 36 n.1 (1955) (Clark,

J., dissenting) ‘treating Gilbert, Koster and Canada

Malting, infra, as manifestations of a single doctrine of

forum non conveniens).

A-17

Court of Appeals En Banc Opinion

Ironically—in view of the special rule of forum non

conveniens for admiralty actions urged by appellant—it

is in the field of admiralty that our federal courts have

applied the doctrine of forum non conveniens most

flexibly and over the longest period of time. Bickel,

The Doctrine of Forum Non Conveniens as Applied in

the Federal Courts in Matters of Admiralty, 35 Cornell

L.Q. 12 (1949); Braucher, note 3, supra, at 920-21.

Forum non coveniens has been applied by our federal

courts in admiralty actions for almost 180 years. See,

e.g., Willendson v. Forsoket, 29 F.Cas. 1283 (D.Pa.—

1801) (No. 17,682). The Supreme Court has approved

its application in admiralty actions for many years.

Canada Malting Co. v. Paterson Steamships, Ltd., 285

U.S: 413 (1932); Charter Shipping Co. v. Bowring,

Jones & Tidy, Ltd., 281 U.S. 515 (1930); The Be-

lgenland, 114 U.S. 355 (1885).

The readiness of the courts to apply the doctrine of

forum non conveniens in maritime cases has stemmed

in part from admiralty’s equitable nature, see Gulf Oil

Corp. v. Gilbert, supra, 330 U.S. at 513-14 (Black, J.,

dissenting), and in part from the absence of the usual

venue requirements.’ In most other areas, venue stat-

utes for many years were expected to perform the

function of case distribution. In admiralty, where no

such statutes are applicable, forum non conveniens

grew up instead. The anomolous result urge upon us by

appellant would be this: whereas areas with venue stat-

utes have been recognized as appropriate for the appli-

cation of liberal forum non conveniens rules, one of the

few areas without effective venue requirements—adm-

7 In maritime cases, the transitory nature of the security available

to the libelant was thought to justify the application of the forum

rei sitae doctrine. Bickel, supra, at 45-46.

A-18

Court of Appeals En Banc Opinion

iralty—would be stripped of an important means of

controlling its allocation of cases.’ In view of the con-

centration of admiralty litigation in this Circuit, the

burden this would impose on the Southern and Eastern

Districts of New York would be considerable.

In short, admiralty and maritime law, far from be-

ing an exception to the general body of law on forum

non conveniens—as appellant suggests—actually is its

source.

(B) AMERICAN CITIZENSHIP OF PLAINTIFF

The trend of both the common law generally and

admiralty law in particular has been away from accord-

ing a talismanic significance to the citizenship or resi-

dence of the parties.

(1) The Common Law Generally—The State Courts

Few areas of the law have experienced such a dra-

matic recent evolution as the doctrine of forum non

conveniens. Responding as it has to changed circum-

stances with the flexibility that has long typified the

common law, the doctrine today must adapt to a world

whose nations—and litigants—are growing more closely

linked by bonds of commerce and culture.

In 1955 Justice Clark could find but a single juris-

diction, Scotland, which had permitted dismissal on

the ground of forum non conveniens against a resident

plaintiff. Norwood v. Kirkpatrick, 349 U.S. 29, 41

(1955) (Clark, J., dissenting). The pendulum has now

swung in the opposite direction. .

~ This is a fortiori so because in admiralty a foreign court usually

will be the alternative forumi—one of the few remaining areas where

28 U.S.C. § 1404(a) is not applicable.

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Court of Appeals En Banc Opinion

One of the most significant indications of this trend

was the rejection by the New York Court of Appeals in

1972 of its rule of long-standing that the New York

residence of either party to an action barred a New

York court from dismissing the action on the ground of

forum non conveniens. Silver v. Great American Insur-

ance Co., 29 N.Y.2d 356, 278 N.E.2d 619, 328

N.Y.S.2d 398 (1972).° Accord, Al Nyman & Son, Inc. v.

United States Lines, Inc., 44 A.D.2d 516, 353 N.Y.S.2d

8 (1st Dept. 1974) (per curiam), (conversion action dis-

missed on forum non conveniens grounds where tor-

tious acts occurred outside of New York, despite

plaintiffs New York residence and the fact that cor-

porate defendant’s principal place of business was in

New York); Heller v. National General Corp., 39

A.D.2d 688, 332 N.Y.S.2d 511 (1st Dept. 1972) (per

curiam) (Silver applied in dismissing New York

plaintiff's action on forum non conveniens grounds).

The crux of the Silver rule recently was summarized

by Judge Feinberg: “If litigation is in a clearly incon-

venient forum, why should defendant and the court be

burdened with its continuing there, if an alternative

forum now exists so that plaintiff will not be without a

remedy?” Schertenleib v. Traum, 589 F.2d 1156, 1163

(2 Cir. 1978).

) The Silver decision prompted Dean McLaughlin to remark: “At

long tast, the New York Court of Appeals has abandoned this primi-

tive rule.” N.Y. Civ. Prac. Law Rule 327 (McLaughlin, Practice

Commentary) (McKinney Supp. 1979).

Another commentator noted at the time of the decision in Silver

that sever states had “flatly ruled that a case may be dismissed

despite residence of a party.” (California, Delaware, Massachusetts,

New Jersey, Oklahoma, Pennsylvania, and Wisconsin). An interme-

diate appellate court of Florida had gone the other way. 39

Brooklyn L. Rev. 218, 223-24 & nn. 38-39 (1972).

A-20

Court of Appeals En Banc Opinion

The fallacy of conditioning forum non conveniens

relief solely upon the residence or place of incorpora-

tion of the plaintiff was stated forcefully by Chief

Judge Fuld in Silver:

“Although such residence is, of course, an impor-

tant factor to be considered, forum non conveniens

relief should be granted when it plainly appears

that New York is an inconvenient forum and that

another is available which will best serve the ends

of justice and the convenience of the parties. The

great advantage of the doctrine—its flexibility

based on the facts and circumstances of a particu-

lar case—is severely, if not completely, undercut

when our courts are prevented from applying it

solely because one of the parties is a New York

resident or corporation.” 29 N.Y.2d at 361, 278

N.E.2d at 622, 328 N.Y.S.2d at 402-03.

Since Silver the trend in that direction has accelerated.

The following recent cases favor a liberal application of

forum non conveniens rules in the state courts:'°

Turner v. Evers, 31 Cal. App. 3d Supp. 11, 107 Cal.

Rptr. 390 (App. Dep’t Super. Ct. 1973) (following

Silver, and applying California statute, rejected bar to

forum non conveniens based on residence of parties);

Of the scattered states which do not follow the doctrine, some

have declined to do so because of peculiar provisions of their state

constitutions which have been construed to guarantee residents a

local forum. E.g., McDonnell-Douglas Corp. v. Lohn, 557 P.2d 373

(Colo. 1979); Chapman v. Southern Ry., 230 S.C. 210, 95 S.E.2d

170 (1956). As indicated at note 12, infra, there is no such provision

where admiralty jurisdiction is concerned. Apparently the only state

where the court of last resort has continued to reject the doctrine as

a matter of common law is Florida. Houston v. Caldwell, 347 So.2d

1041 (4th Dist. Ct. App. 1977) (residency held not to be key to

deciding forum non conveniens motion), revd, 359 So.2d 858 (Fla.

1978).

A-21

Court of Appeals En Banc Opinion

Carr v. Bio-Medical Applications of Washington, Inc.,

366 A.2d 1089 (D.C. 1976) (rejected District of Colum-

bia residence of plaintiff as bar to forum non conve-

niens dismissal); Cray v. General Motors Corp., 389

Mich. 382, 207 N.W.2d 393 (1973) (rejected Michigan

residence of defendant as bar to forum non conveniens

dismissal); In re the Marriage of Dunkley, 89 Wash. 2d

777, 575 P.2d 1071 (1978) (applied forum non conve-

niens in dismissing proceeding involving petition for

modification of decree governing custody of children

by a Washington resident father); Werner v. Werner,

84 Wash. 2d 360, 371, 526 P.2d 370, 378 (1974) (over-

ruled earlier contrary position with comment, “Most of

the states in that minority [those that had rejected

forum non conveniens] have since reversed their posi-

tion and embraced the forum non conveniens doctrine

in some form.”). Indeed, the Michigan Supreme Court _

in Cray v. General Motors, supra, counted twenty-one

states which followed the doctrine of forum non conve-

niens in 1973. 389 Mich at 392, 207 N.W.2d at 397."

(2) Federal Law Generally

More than thirty years ago—shortly after Gilbert

and Koster were decided—Congress codified the princi-

ples underlying forum non conveniens in enacting 28

U.S.C. § 1404(a). See Reviser’s Note, stating that

§ 1404(a) “was drafted in accordance with the doctrine

of forum non conveniens”, quoted in Sullivan v. Behi-

mer, 363 U.S. 335, 363 n.14 (1960) (Frankfurter, J.,

11 The common law trend toward liberal application of the doctrine

of forum non conveniens has been reflected in legislation which has

achieved the same result in several states. E.g., Calif. Civ. Proc.

Code § 410.30 (West); Wis. Stat. § 262.19. The federal transfer

statute, 28 U.S.C. § 1404(a) (1976), was the forerunner of the state

statutes.

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Court of Appeals En Banc Opinion

dissenting). Section 1404(a) therefore codifies a part of

the district court’s “inherent power”, Gilbert, supra,

330 U.S. at 502, to transfer cases to more appropriate

places for trial.

The standard for obtaining a transfer of a case un-

der § 1404(a) is more easily satisfied than is the stand-

ard for obtaining dismissal on forum non conveniens

grounds. Norwood v. Kirkpatrick, supra, 349 U.S. at

32. Accordingly, for most cases in the federal courts,

the easier standard of § 1404(a) has superseded the

doctrine of forum non conveniens. Hoffman v. Blaski,

363 U.S. 335, 342 (1960). It would be anomalous for

us to hold—as appellant urges—that a standard stricter

than Gilbert should be applied in a range of cases

which is not covered by § 1404(a) and which had been

subject to a liberal dismissal rule before enactment of

§ 1404(a). Such an interpretation might be understand-

able if there had been no doctrine of forum non conve-

niens extant when § 1404(a) was enacted in 1948. In

that event it might be urged that Congress did not

wish to apply a more liberal dismissal standard to

cases not covered by the statute. But such an interpre-

tation makes no sense at all in light of the actual

situation, since it was the statement of the general

standard of forum non conveniens in cases such as

Gilbert which led to the enactment of § 1404(a).

Moreover, there are cases where federal courts—inc-

luding ours—have sanctioned sending an American citi-

zen to another forum for trial pursuant to a

defendant’s motion to dismiss on the ground of forum

non conveniens. The “reluctance” with which this has

been done, described in Vanity Fair Mills v. T. Eaton

Co., 234 F.2d 633, 646 (2 Cir.), cert. denied, 352 U.S.

871 (1956), appears not to be as profound as the lan-

A-23

Court of Appeals En Banc Opinion

guage might suggest. Indeed, in Vanity Fair — a land-

mark case in which Judge Waterman recognized the

precept that “[aJn American citizen does not have an

absolute right under all circumstances to sue in an

American court”, id. at 645—the precise issue of the

deference to be accorded the citizenship of an Ameri-

can plaintiff confronted with a motion to dismiss on

the ground of forum non conveniens was not squarely

involved in the court’s decision. Judge Waterman did

acknowledge, however, that “the balance of conven-

ience is strongly in favor of” the defendant, before

going on to explain the other factors also supporting

trial of the Canadian infringement claim in Canada. Id.

at 646-47.

In Mizokami Bros. of Arizona, Inc. v. Baychem

Corp., 556 F.2d 975 (9 Cir. 1977) (per curiam), cert.

denied, 434 U.S. 1035 (1978), the Ninth Circuit held

that it was proper to dismiss on the ground of forum

non conveniens, even though it resulted in an Ameri-

can plaintiff being sent to the Mexican courts for re-

lief. The court, after stressing both the degree of

discretion to be accorded the district court and the

clear Mexican locus of events which lead to the litiga-

tion, concluded:

“The plaintiff falls back on its United States

citizenship as the sole and only possible basis for

suing these defendants in a court of the United

States. This is not enough. In an era of increasing

international commerce, parties who choose to

engage in international transactions should know

that when their foreign operations lead to litiga-

tion they cannot expect always to bring their for-

eign opponents into a United States forum when

A-24

Court of Appeals En Banc Opinion

every reasonable consideration leads to the conclu-

sion that the site of the litigation should be else-

where.

There was no abuse of discretion.” Jd. at 978.

Similarly, in Mohr v. Allen, 407 F.Supp. 483 (S.D.N.Y.

1976), the plaintiff was an American citizen who sued

on the basis of a purported oral contract with a Mexi-

can national to develop a hotel property in Mexico.

Again, Mexico was the clear locus of events. Its law

would govern the outcome of the action. Notwithstand-

ing the citizenship of the plaintiff, the district court

dismissed the action conditionally, resting its decision

on forum non conveniens as an alternative ground.

(3) Plaintiffs Citizenship or Residence in Admiralty

Law

What is true of the law of forum non conveniens

generally—that citizenship or residence no longer are

absolutely determinative factors—is reflected in recent

developments in admiralty as well. For example, in

Texaco Trinidad, Inc. v. Astro Exito Navegacion S.A..,

437 F.Supp. 331 (S.D.N.Y. 1977), a Delaware corpora-

tion had been organized to run a business in Trinidad.

It sued foreign corporations in the Southern District of

New York for damages to its dock in Trinidad. The

court dismissed the action on the ground of forum non

conveniens.

True, there is some dicta in a few earlier cases to the

effect that an admiralty court should not dismiss an

action by an American libelant on forum non conve-

niens grounds.’? During the pre-Gilbert period, how-

12. +The original underpinning for this view, as stated in some early

cases (all, it so happens, in a single district court), was that the

A-25

Court of Appeals En Banc Opinion

ever, apparently no court had held, on the facts of the

case before it, that it was improper to remit an Ameri-

can libelant to the courts of another country.'* The

instant case appears to be the first one to come before

our Court involving an American libelant where the

balance of conveniences sufficiently favored another

forum to justify use of the doctrine.

This would suggest that the dicta in the earlier cases

reflected, not some special rule where admiralty plain-

tiffs were involved, but the general rule for all forum

non conveniens motions, as the rule was then under-

stood. In other words, even a land-based forum non

conveniens motion against a resident plaintiff would

have been subject to the same observations. Such dicta

clearly have been rendered obsolete by subsequent de-

velopments in the law, notably Gilbert. Thus, the lan-

constitutional grant of jurisdiction to the federal courts in such

cases (“The judicial Power shall, extend .. . to all Cases of ad-

miralty and maritime Jurisdiction”, U.S. CONST., art. III, § 2) re-

quired retention of every case. The Epsom, 227 F. 158 (W.D. Wash.

1915); The Falls of Keltie, 114 F. 357 (D. Wash. 1902); Bolden v.

Jensen, 70 F. 505 (D. Wash. 1895).

There are obvious infirmities in this interpretation. One respected

commentator has characterized it as a “dubious doctrine”. Bickel,

supra, at 43. See John Fabick Tractor Co. v. Penelope Shipping Co.,

278 F.Supp. 182, 183 (S.D.N.Y. 1967) (dictum). There are at least

three problems with this approach. First, the same might be said

with respect to the application of forum non conveniens to any case

grounded upon federal jurisdiction—such as a diversity action. Sec-

ond, it is inconsistent with the power of Congress to supervise the

inferior federal courts. U.S. CONST., art. II, § 2. Third, the United

States has signed treaties withdrawing from our courts jurisdiction

over actions between American crew members and foreign ship

masters. Such withdrawals of jurisdiction have been upheld. The

Albergen, 223 F. 443 (S.D.Ga. 1915), and cases cited at 444-45;The

Welhaven, 55 F. 80 (S.D.Ala. 1892); The Burchard, 42 F. 608 (S.D.

Ala. 1890).

13. As a practical matter, the cases that would give rise to such a

situation are rare. Swift & Co. Packers v. Compania Colombiana del

Caribe, S.A., 339 U.S. 684, 697 (1950); Braucher, supra, at 921.

A-26

Court of Appeals En Banc Opinion

guage of the pre-Gilbert cases should be viewed, not as

\. an admiralty exception to what is now the Gilbert rule,

but as expressions preceding Gilbert and antedating

the modern liberal trend in forum non conveniens.

Moreover, the earlier cases often were more liberal

than their dicta might indicate. For example, in U.S.

Merchants’ & Shippers’ Insurance Co. v. AlS Den

Norske Afrika Og Australie Line, 65 F.2d 392 (2 Cir.

1933) (L. Hand, J.), the Court spoke of a citizen’s “ab-

solute privilege of resort to its own courts,

independ[ent] of any inconvenience to the respondent.”

Id. at 392. That dictum reflected the then generally

held view, since rejected, that citizenship alone was a

bar to dismissal on the ground of forum non conve-

niens by any court, state or federal. The holding of the

case, however, was in accordance with the liberal trend

in forum non conveniens. The Court upheld the district

court’s decision which sent a United States corporation

to the courts of Norway to litigate its claim against a

Norwegian ship owner."*

In the related area of enforcement of contractual

choice of forum clauses which resulted in sending an

American plaintiff to a foreign tribunal, this Court was

a leader in the federal courts’ movement away from

the earlier parochial view that such clauses should not

be honored. E.g., Wm. H. Muller & Co. v. Swedish

American Line Ltd., 224 F.2d 806 (2 Cir.), cert. denied,

14‘ The asserted justification for the Court's apparent departure from

the “absolute privilege” was that the American libelant was acting

in the place of a Dutch shipper. This rationale strikes us as unper-

suasive, since the American underwriter already had paid the Dutch

shipper’s claim. The only interests left in the case were those of the

American underwriter and the Norwegian ship owner. Nevertheless,

the American plaintiff was sent to a foreign forum because the

district judge thought that “the balance of convenience was greatly

in favor of a Norwegian trial.” 65 F.2d at 392.

A-27

Court of Appeals En Banc Opinion

350 U.S. 903 (1955). But cf. Indussa Corp. v. S.S.

Ranborg, 377 F.2d 200 (2 Cir. 1967) (en banc) (choice

of forum clause held invalid in the specific context of

§ 3(8) of COGSA, 46 U.S.C. § 1303(8)). The movement

away from the former narrow rule was vindicated by

the Supreme Court in The Bremen v. Zapata Off-Shore

Co., 407 U.S. 1 (1972)."®

IV.

Finally, we turn to the question upon which this

appeal originally was argued and decided: whether, un-

der Gilbert, Judge Conner’s dismissal of the action on

the ground of forum non conveniens was an abuse of

discretion. We hold that it was not. Judge Conner’s

carefully considered opinion, 453 F.Supp. 10, constitu-

tes, in our view, the best demonstration of his sound

exercise of discretion.

The Supreme Court in Gilbert made it very clear

that application of the doctrine of forum non conve-

niens left a large measure of discretion to the trial

judge:

“Wisely, it has not been attempted to catalogue

the circumstances which will justify or require

either grant or denial of remedy. The doctrine

leaves much to the discretion of the court to which

15 Referring to the Bremen decision, a commentator concluded:

“As a result of this decision, and also of action taken at the

state level to give greater flexibility to the doctrine of forum non

conveniens [specifically, Silver], much progress has been made to

liberalize American rules and make them more consistent with

those prevailing in England and in many Continental countries,

at least in respect of freely negotiated agreements.” (footnotes

omitted). DeLaume, Choice of Forum Clauses and the American

_ Forum Patriae, Something Happened on the Wavy to the Forum:

Zapata and Silver, 4 J. Mar. Law & Com. 295, 297 (1973).

A-28

Court of Appeals En Banc Opinion

plaintiff resorts, and experience has not shown a

judicial tendency to renounce one’s own jurisdic-

tion so strong as to result in many abuses.” 330

U.S. at 508 (footnote omitted).

The Court wisely declined to try to define an all-pur-

pose rule. It did set forth the relevant factors to be

taken into account. The Court thus necessarily placed

heavy reliance on the discretion of the trial judge to

balance those factors.

Restatement (Second) of Conflict of Laws § 84, Com-

ment b (1971).

' Even before Gilbert, the existence of this discretion,

particularly in admiralty law, was well established.

E.g., The Mandu, 114 F.2d 361 (2 Cir.), cert. denied,

311 U.S. 715 (1940); Comment, Admiralty Suits In-

volving Foreigners, 31 Tex. L. Rev. 889, 889 n.5

(1953). And, as indicated above, it is a doctrine of

continuing current force which we have reaffirmed re-

peatedly. Farmanfarmaian v. Gulf Oil Corp., supra;

Schertenleib v. Traum, supra; Fitzgerald v. Texaco,

Inc., supra; Thomson v. Palmieri, 355 F.2d 64 (2 Cir.

~ 1966).

Appellant challenges the sufficiency of Judge

Conner’s finding that the Southern District is an incon-

venient forum. It points out that, whereas in Farman-

farmaian nine months of discovery was permitted on

the question of the appropriateness of the forum,

Judge Conner rendered his decision based only on affi-

davits. This ignores the fact that the two cases are

vastly different—Farmanfarmaian being a complex con-

tract action, Alcoa a simple tort action involving dam-

age to a pier. Moreover, it is the well established

practice in the Southern District of New York to decide

A-29

Court of Appeals En Banc Opinion

such motions on affidavits. Koster v. Lumbermens Mu-

tual Casualty Co., supra, 330 U.S. at 531; Vanity Fair

Mills v: T. Eaton Co., supra, 234 F.2d at 645.

The primary concern of appellant in resisting trial in

Trinidad is that it may recover only $570,000 rather

than $8,000,000 from appellee, assuming the latter to

have been at fault. Much is made by appellant of the

supposed inequity of forcing it to Trinidad where it

will be limited in its recovery to a lesser sum.'® It is

abundantly clear, however, that the prospect of a lesser

recovery does not justify refusing to dismiss on the

ground of forum non conveniens. Canada Malting Co.

v. Paterson Steamships, Ltd., 285 U.S. 413 (1932);

Koupetoris v. Konkar Intrepid Corp., 535 F.2d 1892,

1397 n.22 (2 Cir. 1976); Kloeckner Reederei und

Kohlenhandel, G.M.B.H. v. AlS Hakedal, 210 F.2d 754,

757 (2 Cir.), appeal dismissed by stipulation, 348 U.S.

801 (1954). Moreover, it is not at all unfair for appel-

lant to recover the lesser amount. Its pier was in Trini-

dad. It was not likely to go traveling. As long as it did

not, Trinidad’s damage limitation law governed. It

would be far more unfair to impose an additional re-

covery against appellee when appellant, fully familiar

with the law of the place where it maintained a perma-

nent business, could have insured its additional risk in

a prudent fashion. There is no reason to suppose that

it has not done so.

16 There is no suggestion in the record that Trinidad is not an

adequate forum. Appellee has submitted to the jurisdiction of the

courts there and has offered a letter of guaranty that a judgment

against it in Trinidad will be satisfied. ‘Those are express conditions

of the dismissal of the action. P. 4, supra. It would be another

matter if Judge Conner had remitted Alcoa to a foreign court in a

way that deprived it of security it otherwise would have had, e.g.,

Swift & Co. Packers v. Compania Colombiana del Caribe, S.A..,

supra, 339 U.S. at 697-08, or had remitted it to a judicial system

wholly devoid of due process. This is not that case.

A-30

Court of Appeals En Bane Opinion

All in all, although perhaps not all of us would have

reached the same result, we are satisfied that Judge

Conner did not abuse his discretion in conditionally

dismissing on the ground of forum non conveniens. We

tried to list the factors upon which he relied, in our

panel dissenting opinion of January 10, 1979, ___

F.2d at ___., slip op. at 5377-78: -

“The record established that the case involved an

accident that occurred in Trinidad. The damage to

Alcoa’s pier was in Trinidad. Regardless of where

the repair crews may come from, the repair work

will take place in Trinidad. Apart from experts

and the ship’s crew, whatever witnesses may be

called are in Trinidad. The alleged tortious conduct

of defendant Norcross and the master of the Nor-

dic Regent took place in Trinidad, as did the al-

leged negligent action on the part of the local

pilots’ association in Trinidad. The association may

be involved and might be impleaded if the case is

tried in Trinidad because the presence of a pilot on

the Nordic Regent was required by the statute law

of Trinidad and Tobago. The law of Trinidad and

Tobago also presumably determines the duty of

care owed by the various parties. Finally, the tides

and currents around Trinidad may figure prom-

inently in the trial of the case.’’ (footnotes omitted).

“We conclude that under Gilbert, the judge used the

correct standard in applying the doctrine of forum non

conveniens and did not err in conditionally dismissing

the action.

A-31

Court of Appeals En Banc Opinion

To summarize, we hold that:

(1) The Gilbert standard, as reaffirmed in Far-

manfarmaian, is the proper one for determining

motions to dismiss on the ground of forum non

conveniens, including those in admiralty actions.

(2) Neither the admiralty nature of an action

nor the American citizenship of a plaintiff justifies

creating a special rule of forum non conveniens.

(3) The district court in the instant case, in con-

ditionally dismissing the action on the ground of

forum non conveniens, did not abuse its discretion

-under the Gilbert standard.

As the Supreme Court said in another context:

“Admiralty practice, which has served as the ori-

gin of much of our modern federal procedure,

should not be tied to the mast of legal technicali-

ties it has been the forerunner in eliminating from

other federal practices.” British Transport Com-

mission v. United States, 354 U.S. 129, 139

(1957).

Accordingly, the judgment and opinion of the panel

on rehearing is vacated; the judgment of the district

court is affirmed.

Affirmed.

A-32

Dissenting Opinion of Judge Oakes

OAKES, Circuit Judge (concurring in dissenting opi-

nion):

I concur fully with Judge Van Graafeiland’s well-

reasoned opinion. I add these few words simply to

reiterate the view suggested in my dissent in

Fitzgerald v. Texaco, Inc., 521 F.2d 448, 456 (2d Cir.

1975), cert. denied, 423 U.S. 1052 (1976), that the

“entire doctrine of forum non conveniens should. . .

be reexamined in the light of the transportation revolu-

tion that has occurred since” Gulf Oil Corp. v. Gilbert,

330 U.S. 501 (1947), and Koster v. Lumbermens Mu-

tual Casualty Co., 330 U.S. 518 (1947), were decided.'

There are several jets a day between New York and

Trinidad to transport witnesses, documents, and law-

yers if need be. It is totally unrealistic in my view to

relegate these parties to trial in Trinidad.

As Judge Van Graafeiland points out, there is a

basic interest of the United States in exercising juris-

diction to avoid a failure of justice, one that would

occur here by virtue of the Trinidad limitation of liabil-

ity. It is not at all chauvinistic to suggest that the

avoidance of such a failure of justice has been a long-

standing principle of American admiralty law dating

back at least to The Belgenland, 114 U.S. 355, 368-69

(1885) (collision between Norwegian barque and Be-

lgian steamship). See Gkiafis v. S.S. Yiosonas, 387

l In 1949 the late Alexander Bickel, referring to the “device” of

forum non conveniens, said, “The device has been in use in ad-

miralty in the United States for 150 years and more and has never

received an overhauling. It needs one pretty badly.” Bickel, The

Doctrine of Forum Non Conveniens As Applied in_ the Federal

Courts in Matters of Admiralty [subtitled An Object Lesson in

Uncontrolled Discretion], 35 Cornell L.Q. 12, 13 (1949).

Such an overhauling is even more necessary today; it still has not

occurred,

A-33

Dissenting Opinion of Judge Oakes

F.2d 460, 462 (4th Cir. 1967) (Greek seamen suing

Panamanian vessel); Motor Distributors, Ltd. v. Olaf

Pedersen’s Rederi A/S, 239 F.2d 463, 465 (5th Cir.),

cert. denied, 353 U.S. 938 (1957) (suit against Norwe-

gian vessel by various foreign nationals). American liti-

gants are entitled to treatment at least as good as that

accorded to the foreign litigants in these cases.

And a limitation upon or denial of recovery is in and

of itself a ground for not dismissing on the basis of the

forum non conveniens doctrine. Bickel, The Doctrine of

Forum Non Conveniens As Applied in the Federal

Courts in Matters of Admiralty, 35 Cornell L.Q. 12,

28, 44, (1949). That doctrine, which is totally unrealis-

tic in a case of this nature, involving these sums, is

being applied here to wreak injustice on an individual

litigant for no reason that makes any sense to me. The

reference in the majority opinion to “court efficiency,”

majority op. at 6, rings very hollow: by what standard

is “court efficiency” improved by dismissing this case?

Is “court efficiency” a euphemism for something else?

In this respect, perhaps, I am a little chauvinistic.

American taxpayers, I think, have a certain basic right

of access to American courts when the latter have

jurisdiction—a right upon which judicially-made rules

in the supposed interests of “court efficiency” should

not unduly impinge.

A-34

Dissenting Opinion of Judge Von Graafeiland

VAN GRAAFEILAND, Circuit Judge, dissenting:

Liberia is a small country about the size of Ohio,

located on the west coast of Africa. Its population of

approximately 1.5 million people engages mostly in

agricultural pursuits, and it has relatively little foreign

trade. In 1976, Liberia’s imports amounted to approxi-

mately $400 million and its exports approximately

$457 million.! During that same year, however, the

Liberian merchant fleet consisted of 2,666 ships total-

ling over 76 million gross registered tons, making it

one of the largest single-flag fleets in the world.’ Libe-

ria is a “flag of convenience” country, and, by 1976,

fleets registered in the principal flag of convenience

countries represented 27.6 percent of the total world

fleet.®

Ships such as the Nordic Regent register in flag of

convenience countries because thuse countries subject

them to little or no control. Fees and taxes are low,

labor regulations and safety standards are minimal,

and ship movements are largely unhampered.‘ One

needs but little knowledge of American maritime law

to appreciate the advantages that flag of convenience

ships have over those in the heavily regulated mer-

chant marine of the United States. See Hellenic Lines,

Ltd. v. Rhoditis, 398 U.S. 306, 310 (1970); Lauritzen

v. Larsen, 345 U.S. 571, 587 (1953).

To those advantages, this Court now adds another.

Henceforth, these somewhat ersatz foreign nationals*®

l Statesman’s Year-Book 785 (1978).

2 Id. at 786.

3 Osieke, Flags of Convenience Vessels: Recent Developments, 73

Am.J. Int’! L. 604, 608 n. 14 (1979).

4 Id. at 604, 615.

5 In Jones Act cases, this Court “llooks] through the facade of

foreign registration” to the actual ownership behind it. Bartholomew

A-35

Dissenting Opinion of Judge Von Graafeiland

are to have the benefit of “liberal forum non conve-

niens rules” applied under “a more liberal dismissal

standard” in accordance with “the modern liberal trend

in forum non conveniens”, pursuant to which an

American plaintiff can be ousted from his Country’s

courts upon a simple balancing of conveniences as be-

tween the plaintiff and the defendant. Indeed, the de-

fendants in the instant case have succeeded in having

plaintiff's Southern District suit dismissed on the

ground that dismissal will satisfy the convenience of

essential witnesses, despite the fact that the record

does not disclose the name and address of a single such

witness or the substance of his anticipated testimony.

Of course, defendants’ failure to name their Trinida-

dian witnesses is not surprising considering that the

Nordic Regent was manned by an Italian crew, its

responsibility for the accident is clear, and plaintiffs

damages are concededly in excess of $570,000, the top

recovery permitted under Trinidad law. Dismissal of

plaintiffs complaint under such circumstances is an

unjustifiably extreme application of even “the more

liberal dismissal standard” that our brothers now es-

pouse.

By not insisting upon the identification of defen-

dants’ alleged witnesses and some indication of the

testimony they are expected to give, our brothers have

abandoned a well-established requirement of this Cir-

cuit and substituted a completely unacceptable stand-

ard in its place. Over a quarter of a century ago, Chief

Judge Kaufman, than a district judge, said that “{t]he

party seeking the transfer must clearly specify the key

v. Universe Tank Ships, Inc., 263 F.2d 437, 442 (2d Cir.), cert.

denied, 359 U.S. 1000 (1959). For a broader application of this

practice, see Chemical Carriers, Inc. v. L. Smit & Co.’s Interna-

tionale Sleepdienst, 154 F. Supp. 886, 889 (S.D.N.Y. 1957).

A-36

Dissenting Opinion of Judge Von Graafeiland

witnesses to be called and must make a general state-

ment of what their testimony will cover.” Jenkins v.

Wilson Freight Forwarding Co., 104 F. Supp. 422, 424

(S.D.N.Y. 1952). This has been the required practice in

this Circuit up to the present day.

“When a party seeks the transfer on account of

the convenience of witnesses under § 1494(a), he

must clearly specify the key witnesses to be called

and must make a general statement of what their

testimony will cover.” Factors Etc., Inc. v. Pro

Arts, Inc., 579 F.2d 215, 218 (2d Cir. 1978), cert.

denied, 440 U.S. 908 (1979).

Other courts of appeal are in accord. See Plum Tree,

Inc. v. Stockment, 488 F.2d 754, 756-57 (3d Cir. 1973);

Chicago, RJ. & P.R.R. v. Hugh Breeding, Inc., 232

F.2d 584, 588 (10th Cir. 1956), petition for cert. dis-

missed under Rule 60, 355 U.S. 880 (1957); Headrick

v. Atchison, T. & S.F. Ry., 182 F.2d 305, 310-11 (10th

Cir. 1950). Reputable form books have accepted this as

the proper practice, see, e.g., 1 Nichols’ Cyclopedia of

Federal Procedure Forms § 15.19 (2d ed. 1970), and

numerous state courts concur. see, e.g., Hurlbut uv.

Whalen, 58 A.D.2d 311, 316, motion for leave to ap-

peal denied, 43 N.Y.2d 643 (1977); States Marine Lines

uv. Domingo, 269 A.2d 223, 226 (Del. 1970). It is a

salutary requirement designed to prevent injustice and

facilitate appellate review. It should not now be dis-

carded by this Court.

We do not dissent, however, solely because we find

“The Tale of the Essential Witnesses” to be more fic-

tional than factual. We are making law today for cases

yet to come, and we are concerned about the casualness

with which our brothers are prepared to oust American

A-37

Dissenting Opinion of Judge Von Graafeiland

litigants from American forums. We disagree with our

colleagues’ decision to weigh the criteria for deciding

whether to send an American plaintiff to a foreign

country on the same scale that would be used in decid-

ing whether to send him to another state.

Justice Frankfurter once wisely observec that a

court should not be ignorant as judges of what its

members know as ren. Watis v. Indiana, 338 U.S. 49,

52 (1949). As men, we know that we live in a troubled

and turbulent world. As judges, we should view that

world as it is, not as we would like it to be. “One

World”, a world united in peace, with “liberty and

justice for ail”, has been the dream of men of good will

for countless generations. However, instead of “One

World”, our planet today is divided into at least three

“Worlds”, and perhaps four or five.* The economic de-

mands of the poorer countries and their nationalistic

treatment of foreign investments are evidence to some

of a “fissuring of planetary policy that is both wide

and deep”.’ “(BJarriers of emnity and fear” divide many

of this planet’s inhabitants.* Armed conflict, terrorism,

and rebellion vie for international headlines. American

citizens are held hostage in American embassies. Stable

governments and independent judiciaries are hardly

universal phenomena.

Despite all this, our brothers assure us that nations

today “are growing more closely linked by bonds of

commerce and culture” and dismiss as parochial the

oft-expressed reluctance of this Court and others to

6 Oliver, Legal Relations Among Legal Systems: Games, Pains, and

Some Pending Problems, 127 U. Pa. L. Rev. 909, 912-13 (1979).

7 Id. at 913-14.

s R. Sterling, Macropolitics: International Relations in a Global

Society 287 (1974).

A-38

Dissenting Opinion of Judge Von Graafeiland

deprive United States residents of the justice which

they know will be fairly dispensed in their own courts.°

Our brothers apparently feel that the condition of the

world has improved so much since 1966 that we need

no longer distinguish Gulf Oil Corp. v. Gilbert, 330

U.S. 501 (1947), as we did in Thomson v. Palmieri, 355

F.2d 64, 65-66 (1966), where we said that, in Gulf Oil,

“there was no question of seeking a forum in a foreign

state.” The headlines in our daily newspapers leave us

no choice but to disagree.’° Gulf Oil, which involved an

action in the Southern District of New York by a Virgi-

nia resident against a Pennsylvania corporation, is as

distinguishable in the instant case as it was in Thom-

son v. Palmieri.

On the other hand, in Koster v. Lumbermens Mutual

Casualty Co., 330 U.S. 518, 524 (1947), the Court said

that a plaintiff “should not be deprived of the pre-

sumed advantages of his home jurisdiction except upon

9 There are, of course, nations whose standards of justice are as

high as those of the United States. However, the majority's holding,

like Alexander Pushkin’s gray-haired magistrate, “contemplates alike

the just and the unjust.” We do not presume to identify those

countries falling within the latter category. Moreover, we think it

would prejudice this country’s foreign relations and place an intoler-

able burden of proof upon American litigants for courts to make

this factual determination on a case-by-case, country-by-country ba-

sis. See Menendez Rodriguez v. Pan American Life Ins. Co., 311

F.2d 429, 433 (5th Cir. 1962), judgment vacated on other grounds,

376 U.S. 779 (1964). Pending the millennium, it is better, we think,

to adhere to the traditional doctrine that, in the absence of un-

usually extreme circumstances and manifest injustice, the American

plaintiffs choice of his home forum should not be disturbed.

10 When a newsman returns from a foreign country with the report

that its imfmy.tants are “blind drunk with their hatred of the U.S.”,

see U.S. News & World Report, January 28, 1980 at 32, this Court

need not, indeed may not, accept it as an adjudicated fact. This does

not mean, however, that we should ignore it and the countless other

reports of a similar nature while we declare the traditional reluc-

tance of American tribunals to oust American litigants from domes-

tic forums to be exaggerated and obsolete.

A-39

Dissenting Opinion of Judge Von Graafeiland

a clear showing of facts which . . . establish such

oppressiveness and vexation to a defendant as to be

out of all proportion to plaintiff's convenience, which

may be shown to be slight or nonexistent. . . .” That

is the rule appellant asks this Court to apply. Appel-

lant says, as this Court has also said, that the applica-

tion of the rule is most appropriate where the

alternative to a plaintiff's home jurisdiction is the

court of a foreign state. See Olympic Corp. v. Societe

Generale, 462 F.2d 376, 378 (2d Cir. 1972).

Appellant does not contend, as the majority seem to

suggest, that American citizenship alone is a “barrier”

to or “impenetrable shield” against dismissal on the

ground of forum non conveniens. That is a man of

straw argument. Appellant’s argument, as illustrated

by the following quotation from its brief, simply

adopts the law as it has been expressed on numerous

occasions by this Court.

“As this court held in Leasco Data Processing

Equipment Corp. v. Maxwell, 468 F.2d 1326, 1344

(2d Cir. 1972, Friendly, Feinberg and Davis, JJ.),

even a balance of convenience in favor of trial

abroad ‘is not enough to justify a district court in

dismissing the complaint of an American citizen,

much less to warrant an appellate court’s requiring

it do so,’ quoting with approval the decision in

Burt v. Isthmus Development Corp., 218 F.2d 353,

357 (5th Cir. 1955), cert. denied, 349 U.S. 922

(1955) that ‘courts should require positive evidence

of unusually extreme circumstances, and should be

thoroughly convinced that material injustice is

manifest before exercising any such discretion to

deny a citizen access to the courts of this coun-

try.” Appellants’ Supplemental En Banc Brief at

21-22.

A-40

Dissenting Opinion of Judge Von Graafeiland

It was the Supreme Court in Koster, supra, not ap-

pellant, that established “oppressiveness and vexation”

as the standard for measuring whether a defendant’s

inconvenience is sufficient to deprive the plaintiff of

the right to litigate in his home forum. We followed

this standard in Thomson v. Palmieri, supra, 355 F.2d

at 66, where we said that “(t]he central question is one

of convenience, and we should respect plaintiff's choice

of forum as long as no harassment is intended.” The

Court of Appeals for the District of Columbia Circuit

has done the same. See Founding Church of Sciento-

logy v. Verlag, 536 F.2d 429, 436 (D.C. Cir. 1976);

Altman v. Central of Ga. Ry., 363 F.2d 284, 286 (D.C.

Cir.), cert. denied, 385 U.S. 920 (1966). So also have

the Third Circuit, see Hoffman v. Goberman, 420 F.2d

423, 426-27 (3d Cir. 1970), and the Fifth Circuit, see

Burt v. Isthmus Development Co., 218 F.2d 353, 357-

58 (5th Cir.), cert. denied, 349 U.S. 922 (1955). Among

the district court cases in accord are Top Form Mills,

Inc. v. Sociedad Nationale Industria Applicazioni Vis-

cosa, 428 F. Supp. 1237, 1253 (S.D.N.Y. 1977); Detrick

v. Baltimore & O.R.R., 330 F. Supp. 257, 259 (E.D. Pa.

1971); McCarthy v. Canadian Nat! Rys., 322 F. Supp.

1197, 1198-99 (D. Mass. 1971); Fiorenza v. United Sta-

tes Steel Intl, Ltd., 311 F. Supp. 117, 121 (S.D.N_Y.

1969).

The district court in the instant case, however, was

content to rest its decision upon a balancing of conven-

iences, finding that defendant's inconvenience substan-

tially outweighed plaintiff's and that the litigation “can

be conducted most effectively and inexpensively in

Trinidad.”"' We would reverse, because we think it bet-

1 In Leasco Data Processing Equipment Corp. v. Maxwell, supra.

468 F.2d at 1344, atter finding that the balance of convenience

A-41

Dissenting Opinion of Judge Von Graafeiland

ter to adhere to the traditional rule that simply balanc-

ing conveniences is not enough, when the result is to

oust an American plaintiff from his Country’s courts.

We would continue to hold that, unless the incon, en-

ience to the defendant is so great as to constitute

vexation and harassment and result in manifest injus-

tice, plaintiff's choiice of a domestic forum should not

be distubed.

We disagree with the majority’s contention that this

Country’s Treaties of Friendship, Commerce and Navi-

gation compel a different result. These treaties provide

in general for free “access” to United States courts, and

the term “access” is usually defined to comprehend,

among other things, access to legal aid and exemption

from providing security for costs. See, e.g., Treaty of

Friendship, Commerce and Navigation, Oct. 1, 1951,

United States-Denmark, [1961] 12 U.S.T. 908, 937,

T.LA.S. No. 4797; Treaty of Friendship, Commerce and

Navigation, Aug. 3-Dec. 26, 1951, United States-

Greece, [1954] 5 U.S.T. 1829, 1911, T.I.A.S. No. 3057.

Article XVII of the Treaty of Friendship, Commerce

and Navigation between the United States and Liberia,

entered into force on November 21, 1939, provides

that Liberian corporations and associations “shall enjoy

free access to the courts of law and equity, on conform-

favored a trial in England, this Court said “{bjut that is not enough

to justify a district court in dismissing the complaint of an Ameri-

can citizen. . . .” Similarly, in Mobil Tankers Co. v. Mene Grande

Oil Co., 363 F.2d 611, 614 (3d Cir.), cert. denied, 385 U.S. 945

(1966), the Court said that the election of his home forum by a

citizen of the United States “should not be disregarded in the ab-

sence of persuasive evidence that the rejection of juridiction will

result in manifest injustice to the respondent.” The Court then

concluded, “This is so even though the more convenient forum may

be the foreign one.” Jd. These statements of the law stand in

marked contrast to those of the district court in the instant case.

=”

A-42

Dissenting Opinion of Judge Von Graafeiland

ing to the laws regulating the matter, as well for the

prosecution as for the defense of rights in all the de-

grees of jurisdiction established by law.” See 54 Stat.

1739, 1746, T.S. No. 956.

No treaty requires that foreign nationals receive

more favorable treatment in our courts than would an

American litigant. See Note, The Convenient Forum

Abroad, 20 Stan. L. Rev. 57, 65 (1967). If defendants

were compelled to continue this litigation in the United

States, they could hardly contend that their treatment

was less favorable than that which would be accorded

an American defendant or that they had lesser access

to United States courts.

It is regrettable that our brothers refuse to give any

extra consideration to an American plaintiff's choice of

his home forum because they fear that Treaties of

Friendship, Commerce and Navigation would require

that similar consideration be given to a foreign

plaintiffs choice of the same forum. It is a strange

doctrine indeed that would deprive a citizen of legal

rights because, otherwise, the same rights might have

to be given to an alien.

In any event, there is no reason for the majority to

fear that a rule contrary to the one they have adopted

would require this Court to treat foreign plaintiffs as if

they were residents of the Second Circuit. For venue

purposes, residents of other states who bring suit in

the Southern District of New York are not treated as if

they were residents of New York. See, e.g., Haase v.

Mallenkrodt, Inc., 451 F. Supp. 889, 890-91 (S.D.N.Y.

1976); Pesin v. Goldman, Sachs & Co., 397 F. Supp.

392, 394 (S.D.N.Y. 1975). Treaties of Friendship, Com-

merce and Navigation do not require that foreign na-

tionals be given greater access to New York courts

A-43

Dissenting Opinion of Judge Von Graafeiland

than would be given to Texans or Californians. Those

treaties are not violated, therefore, when the door of

access that “revolves” for Liberians, “revolves” as well

for Americans. In short, the grant of access has not

eliminated the laws and doctrines of venue.”

In this age of jet transportation, where, as here, two

reasonably affluent corporations are engaged in finan-

cially significant litigation, the convenience of a few

witnesses should be a minor consideration. “(T]he de-

posing of witnesses abroad or bringing them to the

United States is a relatively simple and inexpensive

matter in a suit of this size.” Fitzgerald v. Texaco, Inc.,

521 F.2d 448, 456 (2d Cir. 1975) (Oakes, J., dissent-

ing), cert. denied, 423 U.S. 1052 (1976); see Note, The

Application of Forum Non Conveniens in Maritime

Personal Injury Actions Brought by Foreign Seamen in

Federal Courts, 1 Hastings Int'l] & Comp. L. Rev. 77,

97-99 (1978). The doctrine of forum non conveniens

“was designed as an ‘instrument of justice,” Williams

v. Rogers v. Green Bay & W.R.R., 326 U.S. 549, 554

(1946) (quoting Guaranty Trust Co., 288 U.S. 123, 151

(1933) (Cardozo, J., dissenting)), and courts should be

concerned more with whether justice will be served by

a change of venue than with whether one party or the

12 Under the venue provisions of 28 U.S.C. § 1391(a) a resident of

the Southern District of New York may be sued in any other district

of the United States by a resident of that district. He may be sued

by a non-resident alien only in the Southern District of New York or

where the claim in suit arose. Under the majority's interpretation of

the Treaties of Friendship, Commerce and Navigation, the non-

resident alien should be able to sue the New York resident in any

district in the United States; otherwise the residents of those dis-

tricts have greater “access” to their courts than do the non-resident

aliens. Obviously, this cannot be what the Treaty signatories had in

mind.

Dissenting Opinion of Judge Von Graafeiland

other will save a few dollars in the preparation of his

proof."

Our review of the instant case has left us with an

abiding concern that justice will be ill-served if this

litigation is removed to Trinidad. Justice will continue

to be ill-served if this Court, adopting a “they knew

what they were getting into” approach, persists in

ousting American litigants from American forums un-

der the “liberal forum non conveniens rules” to which

our brothers now express adherence.

13. We are not so naive as to believe that the dispute between the

parties on this appeal concerns the convenience of witnesses. This

Court is really being asked to decide whether the defendants may

reduce their obvious liability to the plaintiff by being given the

benefit of Trinidad’s limitation of liability statute. If this litigation

is removed to Trinidad, the odds are overwhelming that not a single

witness will be called; the case will be settled for about ten cents on

the dollar of plaintiff's loss.

A-45

Court of Appeals Panel Opinion of January 10, 1979

UNITED STATES COURT OF APPEALS

For tHE Seconp Circuit

— "

No. 826—September Term, 1977.

(Argued April 4, 1978 Decided August 31, 1978.)

(Petition for Rehearing filed

September 18, 1978 Decided October 30, 1978.)

(Opinion filed January 10, 1979.)

Docket No. 78-7054

ae.

Autcoa STEAMSHIP Company, INc.,

Plaintiff-Appellant,

M/V Norpic Recent, her boilers, tackle, machinery and

other appurtenances in rem, and Norcross Suippine Co.,

Inc., as her Owner, in personam,

Defendant-A ppeliee.

ee.

Before:

WatTreRMAN, TrmBers and VAN GRAAFEILAND,

Circuit Judges.

Appellant’s motion for rehearing following affirmance of

district court’s judgment dismissing complaint on ground

of forum non conveniens having been granted and recon-

sideration had, order of affirmance withdrawn and judg-

ment appealed from reversed.

Me.

A-46

Court of Appeals Panel Opinion of January 10, 1979

J. Warp O’Nem., New York, N.Y. (Haight,

Gardner, Poor & Havens, New York, N.Y.,

Gordon W. Paulsen, Emil A. Kratovil, Jr.,

New York, N.Y., on the brief), for Appel-

lant Alcoa Steamship Company, Inc.

Hottis M. Waker, Jr., New York, N.Y.

(Joseph T. Stearns, David L. Linden, and

Walker & Corsa, New York, N.Y., on the

brief), for Defendant-Appellee.

Francis M. O’Recan, New York, N.Y. (Bigham

Englar Jones & Houston, New York, N.Y.),

Attorneys for American Institute of Marine

Underwriters, Amicus Curiae.

Van GRAAFEILAND, Circuit Judge:

We granted reargument because of appeilant’s conten-

tion that Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947),

cited as authoritative precedent by both the district court

and this Court,’ does not, and should not, establish the

correct standard for determining when American citizens

should have access to their country’s admiralty courts.

Appellant argued also that our decision in this case con-

flicts with prior decisions of this Court. A thorough anal-

ysis of Gulf Oil, placed in its proper historical setting,

convinced us that appellant’s contentions had merit and

that our holding should be re-examined.

1 After evaluating the factors found significant in Gulf Oil, the dis-

trict court concluded that “the litigation of this case can be conducted

most expeditiously and inexpensively in Trinidad.” We affirmed, relying

upon the district court’s consideration of the relevant factors set forth

in Gulf Qil and the district court’s finding of a “significant imbalance”

in favor of the defendant.

A-47

Court of Appeals Panel Opinion of January 10, 1979

Long before Gulf Oil, there existed a well-recognized

rule of law that a court possessing jurisdiction had to ex-

ercise it unless there were compelling reasons why it

should not. Sce, e.g., Kline v. Burke Construction Co.,

260 U.S. 226, 234 (1922); Chicot County v. Arkansas, 148

U.S. 529, 534 (1893); Cohens v. Virginia, 19 U.S. 264, 403

(1821). This appears also to have been the law of Eng-

land. See Gibb, International Law of Jurisdiction, 212-13

(1926), cited in Williams v. Green Bay & W. R.R., 326 U.S.

549, 554.n.4 (1946). Article IIT, section 2 of the Constitu-

tion extends the judicial power of the United States “to

all Cases of admiralty and maritime Jurisdiction,” and

Congress by its various enabling enactments has placed

admiralty and maritime jurisdiction in the district courts.

See 28 U.S.C. § 1333. Nonetheless, from an early date, dis-

trict judges have exercised their discretion in deciding

whether to accept jurisdiction in an admiralty suit between

foreigners. See Canada Malting Co. v. Paterson Steam-

ships, Ltd., 285 U.S. 413, 421-23 (1932). However, the rule

mandating retention of jurisdiction was generally followed

where the plaintiff was an American citizen seeking vindi-

cation of his own rights.? See Norwood v. Kirkpatrick, 349

U.S. 29, 41-42 (1955) (Clark, J., dissenting); The Neck,

138 F. 144, 148 (W.D. Wash. 1905); The Falls of Keltie,

114 F. 357, 358 (N.D. Wash. 1902). An American plaintiff

was seldom if ever deprived of the opportunity to seek

2 This Court, among others, recognized the right of access to American

admiralty courts by an American suing in his own right in those cases

where it refused to extend the same right to the American subrogee

or assignee of a foreign claimant. The Mandu, 102 F.2d 459, 462

(2d Cir. 1939); United States Merchants’ § Shippers’ Ins. Co. v. A/S

Den Norske Afrika O. Australie Line, 65 F.2d 392, 393 (2d Cir. 1933);

see Asiatic Petroleum Corp. vy. Italia Societa Anonima Di Navigazione,

119 F.2d 610, 613 (3rd Cir. 1941); Wittig v. Canada S.S. Lines, Ltd.,

59 F.2d 428, 430 (W.D.N.Y. 1932); Goldman v. Furness, Withy § Co.,

101 F. 467, 468 (S.D.N.Y. 1900).

A-48

Court of Appeals Panel Opinion of January 10, 1979

justice in the courts of his own country. See Swift & Co.

Packers v. Compania Colombiana Del Caribe, S.A., 339

U.S. 684, 697 (1950); Braucher, The Inconvenient Federal

Forum, 60 Harv. L. Rev. 908, 921 (1947). Outside the field

of admiralty law, even in cases where dismissal would not

deprive the plaintiff of an American forum, it was gen-

erally assumed that a plaintiff had an absolute right of

access to the courts of his place of residence. See Norwood

v. Kirkpatrick, supra, 349 U.S. at 41 (Clark, J., dissenting) ;

Barrett, The Doctrine of Forum Non Conveniens, 35 Cal. L.

Rev. 380, 390 (1947).

This, then, was the general state of the law when Gulf

Oil was decided. Because that case was a common law

negligence action brought in the Southern District of New

York by a Virginia resident against a Pennsyivania corpo-

ration, the Court did not undertake to modify the settled

practice of giving favored jurisdictional treatment to resi-

dent plaintiffs. The Court’s citation of Gregonis v. Phila-

delphia & Reading Coal & Iron Co., 235 N.Y. 152 (1923),

which held that New York courts could not refuse to exer-

cise jurisdiction in a tort action by a resident against a

non-resident, demonstrated the Court’s recognition of the

fact that, as of that date, forum non conveniens was applied

generally to non-resident plaintiffs. This was demonstrated

further by the Court’s statements that “the principle of

forum. non conveniens is simply that a court may resist

imposition upon its jurisdiction” and that “the open door

may admit those who seek not simply justice but perhaps

jastice blended with some harassment.” 330 U.S. at 507

(emphasis added). In short, Gulf Oud dealt with a situa-

tion in which the plaintiff was a non-resident, and the

Court’s holding should be considered in this light.*

3 It is clear from the Court’s subsequent opinion in Swift ¢ Co.

Packers v. Compania Colombiana Del Caribe, S.A., supra, 339 U.S. at

A-49

Court of Appeals Panel Opinion of January 10, 1979

On the same day that the Court decided Gulf Oil it also

decided Koster v. Lwmbermens Mutual Casualty Co., 330

U.S. 518 (1947). This case had also been dismissed below

on the ground cf forum non conveniens. It was a deriva-

tive action brought in the Eastern District of New York by

a policvholder of the nominal corporate defendant against

the corporation’s president and others, The plaintiff was

a resident of the Eastern District of New York and the

defendants were all domiciled in Illinois. Because of the

peculiar nature of derivative actions the Court affirmed

the dismissal of the New York action, stating that the

plaintiff was only one of “hundreds of potential plaintiffs,

all equally entitled voluntarily to invest themselves with

the corporation’s cause of action and all of whom could

with equal show of right go into their many home courts”

and therefore the balance of conveniences indicated that

it would be proper to have this case trie in Illinois rather

than in the Eastern District of New York.

While so stating and so ruling, the Court observed, how-

ever, in an observation pertinent to the case before us that

“(w]here there are only two parties to a dispute, there is

good reason why it should be tried in the plaintiff’s home

forum if that has been his choice”, and that plaintiff should

not be deprived of his choice except upon a clear showing

of such oppressiveness and vexation to the defendant as to

be out of all proportion to plaintiff’s convenience. Jd. at

524.

This Court should look to the reasoning of Koster, rather

than of Gulf Ou, in determining the rights of a resident

plaintiff. See Swift € Co. Packers v. Compania Colombiana

697 (1950), that it did not consider Gulf Oil to have answered the

question whether United States admiralty courts might decline juris-

diction over libels brought by United States citizens.

A-50

Court of Appeals Panel Opinion of January 10, 1979

Del Caribe, S.A., supra, 339 U.S. at 697. Moreover, where

dismissal of plaintiff’s suit will relegate him to litigation

in the courts of a foreign country, the Koster standards

should be strictly applied. That is the course which this

Court and other circuits have followed. Before a resident

citizen suing in his own right will be dispatched to the

courts of a foreign country, there must be positive evidence

of unusually extreme circumstances making it materially

unjust to the defendant that jurisdiction be retained in

the American courts, Leasco Data Processing Equipment

Corp. v. Maxwell, 468 F.2d 1326, 1344 (2d Cir. 1972);

Mobil Tankers Co., S.A. v. Mene Grande Oil Co., 363 F.2d

611, 614 (3d Cir.), cert, denied, 385 U.S. 945 (1966) ; Burt

v. Isthmus Development Co., 218 F.2d 353, 357 (5th Cir.),

cert, denied, 949 U.S. 922 (1955). Inconvenience to the

defendant will not satisfy this criterion without a further

showing of an intent by the plaintiff to vex or harass.

Thomson v. Palmieri, 355 F.2d 64, 66 (2d Cir. 1966) ;

Founding Church of Scientology v. Verlag, 536 F.2d 429,

436 (D.C. Cir. 1976) ; Hoffman v. Goberman, 420 F.2d 423,

426 (3rd Cir. 1970); Altman v. Central of Georgia R. Co.,

363 F.2d 284, 286 (D.C. Cir.), cert. dented, 385 U.S. 920

(1966) ; Mobil Tankers Co., S.A. v. Mene Grande Oil Co.,

supra, 363 F.2d at 614. As this Court stated in Thomson

v. Palmieri, supra, 355 F.2d at 66, “we should respect plain-

tiff’s choice of forum as long as no harassment is intended.”

See Top Form Mulls, Inc. v. Sociedad Nationale Industria

Applicaziom Viscosa, 428 F, Supp. 1237, 1253 (S.D.N.Y.

1977).

Suit in an American court could not have come as a

surprise to defendant. When defendant accepted the bene-

fits attending the use of American port facilities, it must

a 4

A-51

Court of Appeals Panel Opinion of January 10, 1979

have been familiar with the age-old maritime tradition that

gives libelants in rem jurisdiction where the vessel is

found. See Kloeckner Reederei Und Kohlenhandel v. A/S

Hakedal, 210 F.2d 754, 756 (2d Cir.), appeal dismissed per

stipulation, 348 U.S. 801 (1954) ; Motor Distributors, Ltd. v.

Olaf Pedersen’s Rederi A/S, 239 F.2d 463, 467 (5th Cir.

1956), cert. denied, 353 U.S. 938 (1957); cf. Article I(1)

(b) of the Brussels Convention of 1952. Even if plaintiff

were a foreigner, defendant would not have been entitled

to dismissal of the district court suit unless it established

tnat otherwise it would be unfairly prejudiced. Kloeckner

Reederei Und Kohlenhandel v. A/S Hakedal, supra, 210

F.2d at 756. Plaintiff is in fact a United States citizen,

and its choice of a local forum is entitled therefore to

greater consideration than if it were made by a non-resident

alien. Swift & Co. Packers v. Compania, Colombiana Del

Caribe, S.A., supra, 339 U.S. at 697. American courts “are

maintained to give redress primarily to their own citizens.”

United States Merchants’ & Shippers’ Ins. Co. v. A/S Den

Norske Afrika Og Australie Line, supra, 65 F.2d at 392;

see Burt v. Isthmus Development Co., supra, 218 F.2d at

356. They should consider the convenience of American

citizens, whose taxes keep the courts in existence. Douglas

v. New York, N.H. d H. R.R., 279 U.S. 377, 387 (1929).

In the instant case, appellant’s convenience will be served

by suit in the United States because its damaged dock is

being repaired by a United States contractor under the

supervision of appellant’s United States employees. This

was sufficient to negate any charge of vexation, oppression,

or harassment, and the district court made no finding that

appellant had any such intention. The district court’s

weighing-of-inconveniences test, which led it to conclude

that the litigation could be conducted “most expeditiously

A-52

Dissenting Opinion of Judge Timbers

and inexpensively in Trinidad”, was an improper basis for

dismissal.

Upon reconsideration, the judgment appealed from is

reversed.

Ae.

Timsers, Circuit Judge, dissenting:

Until today’s majority decision on a petition for rehear-

ing addressed to the panel, the issue throughout this litiga-

tion in this Court has been whether the district court

abused its discretion, within the meaning of Gulf Oil Corp.

v. Gilbert, 330 U.S. 501, 508 (1947), in dismissing the action

on the ground of forum non conveniens, That was the

issue which was fully briefed and argued before us on

April 4, 1978. That was the issue to which all three opinions

were addressed in our 2-1 panel decision of August 31,

1978 affirming the district court’s exercise of discretion.

— F.2d —— (2 Cir. 1978), slip op. 4587 (August 31,

1978).?

1 In view of the sputtering course this case has taken in our Court,

I think it is important briefly to recount the proceedings here for

their bearing on the central issue of whether the district court abused

its discretion.

The majority refers to the “order of affirmance” which it has with-

drawn. It is true that the proposed order of affirmance, holding that

the district court did not abuse its discretion in dismissing on the

ground of forum non conveniens, was withdrawn to permit a dissenting

opinion to be filed.

Eventually a short one page majority opinion was filed on August 31,

1978 affirming on the ground that “the district court did not abuse its

discretion” (Timbers, J.). Slip op. 4587, at 4588. An even shorter

concurring opinion was filed at the same time which concluded, “I

cannot hold with my dissenting colleague that Judge Conner abuscd

the discretion vested in him to exercise and that we should in this case

reverse the order below on the ground of such an abuse.” (Water.

man, J.). Jd. at 4589. A dissenting opinion also was filed, stating,

“Because I believe that the district court abused its discretion in dis-

A-53

Dissenting Opinion of Judge Timbers

Now on a petition for rehearing—after the most cursory

briefing? and no oral argument at all—the present majority

holds for the first time that the Gulf Oil standard “does

not, and should not, establish the correct standard for de-

termining when American citizens should have access to

their country’s admiralty zourts.” ——— F.2d at ——. The

majority then proceeds to carve out for those litigants

who invoke the admiralty and maritime jurisdiction of the

federal courts an absolute immunity from dismissal on

the ground of forum non conveniens—no matter how con-

clusively the long recognized balancing factors may point

toward another more appropriate forum. This special

privilege which the majority creates in the courts of the

United States in favor of one class of litigants—chiefly,

marine insurance underwriters’—not only is unprec-

missing, I can not concur in my brothers’ decision to affirm.” (Van

Graafeiland, J.). Id. at 4590. (emphasis added).

There followed a petition for rehearing, see note 2 infra, to which

today’s majority and dissenting opinions are addressed.

2 Alcoa’s petition for rehearing, submitted late and in excess of the

length provided for by our rules, nevertheless was accepted by an order

of our Court dated September 18, 1978. After deciding that Norcross

Shipping Co., Inc., the appellee, should be permitted to respond to the

petition for rehearing, Norcross on September 21 was granted until

September 27—4 business days—to get in its answering papers.

Three weeks later, on October 16, an amicus brief supporting the

petition for rehearing was filed by the American Institute of Marine

Underwriters (AIMU). This amicus brief appears to have provided

substantial support for today’s majority opinion, particularly for its

rejection of the Gulf Oil exercise of discretion standard.

No opportunity was afforded to appellee Norcross to respond to the

AIMU amicus brief, despite the majority’s significant change of the

ground of its decision.

As is customary in our Court, no oral argument was heard on the

petition for rehearing.

3 See AIMU amicus brief, pages 1-2:

“In filing this brief amicus curiae AIMU is acting in support of

the American marine insurance market.”

a _ *

[footnote continued on following page]

A-54

Dissenting Opinion of Judge Timbers

edented; it strikes a blow at our most precious heritage of

equal justice for all. I dissent.

I do not believe that in the courts of the United States

the American residence of a plaintiff is, or should be, an

inflexible barrier to dismissal on the ground of forum non

conveniens when all the other indicia of an appropriate

forum are lacking.

The power of a federal court to decline to exercise its

jurisdiction in an appropriate case in reliance on the doc-

trine of forum non conveniens has been recognized since

the earliest days of the Republic, See, e.g., Gulf Oil Corp.,

supra. It extends to admiralty as well as to all other fields

of law. Canada Malting Co. v. Peterson Steamships, Ltd.,

285 U.S. 413, 421-23 (1932).

The doctrine of forum non conveniens is not a neat di-

vider, like a fence, which separates the cases where juris-

diction should be retained from those where it should not.

Instead, it meanders, like a river; and as a river with time

may change its course by the erosion and build-up of its

banks, so too the judge-made doctrine of forum non con-

veniens develops new twists and bends, shrinking and

growing as it confronts novel factual situations. As the

Supreme Court stated in the seminal forum non conveniens

case:

“Wisely, it has not been attempted to catalogue the

circumstances which will justify or require either grant

“[TAIMU] is a national trade association of 122 insurance compa-

oles...” 3 8 1h

a * *

“AIMU’s member companies underwrite more than 90% of the

marine insurance written in the United States....” Id. at 1.

A-55

Dissenting Opinion of Judge Timbers

or denial of remedy. The doctrine leaves much to the

discretion of the court to which plaintiff resorts, and

experience has not shown a judicial tendency to re-

nounce one’s own jurisdiction so strong as to result in

many abuses.” (footnote omitted) Guf Oul, supra,

330 U.S. at 508,

While the Court eschewed a bright line rule for the doc-

trine, it did enunciate the factors to be considered in ap-

plying it: ease of access to sources of proof; availability

of compulsory process for unwilling witnesses; the cost of

obtaining attendance of willing ones; the opportunity to

view the premises; the need for application of an unfamiliar

foreign law; and others.‘ The evaluation and balancing

of these factors is a factual matter necessarily committed

to the judgment of the district court. See Restatement

(Second) of Conflict of Laws $84, Comment b (1971). Its

determination should not be set aside lightly.

Here, that determination was based on a record consist-

ing chiefly of affidavits—a procedure long recognized as

acceptable and the procedure followed from time im-

memorial in the Southern District of New York. See, e.g.,

Koster v. Lumbermans Mutual Casualty Co., 330 U.S. 518,

531 (1947); Vanity Fair Mills v. T. Eaton Co., 234 F.2d

633, 645 (2 Cir.), cert. denied, 352 U.S. 871 (1956). The

record established that the case involved an accident that

occurred in Trinidad. The damage to Alcoa’s pier was in

Trinidad. Regardless of where the repair crews may come

4 While the majority correctly urges that we consider “the convenience

of American citizens, whose taxes keep the courts in existence,” I

suggest by the same token that we not overlook the convenience of

the courts: “A ainistrative difficulties follow for courts when liti-

gation is piled up in congested centers instead of being handled at

its origin.” Gulf Oil, supra, 330 U.S. at 508. Clogged courts are

costly for taxpayers and litigants in terms of time as well as taxes.

*”"

A-56

Dissenting Opinion of Judge Timbers

from, the repair work will take place in Trinidad. Apart

from experts and the ship’s crew, whatever witnesses may

be called are in Trinidad. The alleged tortious conduct of

defendant Norcross and the master of the Nordic Regent

took place in Trinidad, as did the alleged negligent action

on the part of the local pilots’ association in Trinidad.

The association may be involved and mighi be impleaded

if the case is tried in Trinidad because the presence of a

pilot on the Nordic Regent was required by the statute law

of Trinidad and Tobago. The law of Trinidad and Tobago

also presumably determines the duty of care owed by the

various parties. Finally, the tides and currents around

Trinidad may figure prominently in the trial of the case.

Under these circumstances, I fail to see any abuse of dis-

cretion whatsoever on the part of Judge Conner in dismiss-

ing on the ground of forum non conveniens,' since clearly

this is a case that should be tried in’ Trinidad, where the

accident occurred, the damage exists, the witnesses will be

found, and whose law will apply.’

5 See Restatement (Second) of Conflict of Laws §147 (1971). The

problem of Buchanan v. Rucker, 9 East 192 (K.B. 1808), “Can the

island of Tobago pass a law to bind the rights of the whole world?”

(per Lord Ellenborough, C.J.) is thus not posed.

6 As a result of the majority’s shifting of the ground of its decision,

thus abandoning the exercise of discretion standard, we seem to have

lost sight of Judge Conner’s thoughtful, concise opinion which care-

fully balanced the factors that should be considered in applying the

doctrine of forum non conveniens under Gulf Oil—which everyone,

including Judge Conner, thought was controlling until today’s majority

decision.

Judge Conner’s excellent district court opinion, which has been re-

ported at 453 F.Supp. 10 (8.D.N.Y. 1978), is annexed to this dissenting

opinion as an APPENDIX.

7 The instant case is strikingly similar to Tezaco Trinidad y. Astro

Evito Navegacion, S.A., 437 F.Supp. 331 (8.D.N.Y. 1977), where a

maritime action was dismissed on the ground of forum non conveniens.

A-57

Dissenting Opinion of Judge Timbers

II.

This case is said to be different, however, because plain-

tiff Aleoa is a New York corporation and commenced this

action in the Southern District of New York. It is true that

our courts have been more solicitous of opposition to a

forum non conveniens dismissal motion when its grant will

force a United States citizen to a foreign forum for its day

in court. Olympic Corp. v. Societe Generale, 462 F.2d 376,

378 (2 Cir. 1972) ; Vanity Fair Mills v. T. Eaton Co., supra,

234 F.2d at 645. But that is not to say that American

residence gives a plaintiff an absolute right to be in the

federal court, without regard to the circumstances of the

particular case. 15 Wright, Miller and Cooper, Federal

Practice and Procedure: Jurisdiction §3828, at 180 nn. 16-17

(1976); see Vanity Fair Mills v. T. Eaton Co., supra, 234

F.2d at 645 (trademark infringement).

Only recently we have acknowledged that, while there is

“some support” for the proposition that “our courts should

be quite cautious in dismissing on forum non conveniens

grounds when suit is brought by an American citizen,”

forum non conveniens dismissal still may be appropriate.

Farmanfarmaian v. Gulf Oil Corp., —— F.2d ;

(2 Cir. 1978), slip op. 703, 708 (Dee. 18, 1978) (Feinberg,

J.).° In that case, an Iranian citizen sued for breach of a

8 Although we followed the Vanity Fair standard in Leasco Data Proc-

essing Equipment Corp. v. Maxwell, 468 F.2d 1326, 1344 (2 Cir. 1972),

it should be noted that Judge Friendly recognized that the forum

non conveniens issue was not among those certified by the district

court and therefore the issue “technically .. . may not be before us.”

468 F.2d at 1344.

9 Until today’s majority opinion, Gulf Oil has been followed without

deviation by our Court in a long line of decisions right down to the

present time. In addition to Farmanfarmaian, supra, see also Scher-

tenleib v. Traum, —— F.2d ——, —— (1978), slip op. 661, 667-70,

678-81 (Dec. 15, 1978) (Feinberg, J.).

A-58

Dissenting Opinion of Judge Timbers

contract between him and an Iranian subsidiary of various

American and European oil companies, The contract was

entered into in Iran. It involved an option to purchase an

Iranian company. Evidence relating to the breach, and

particularly the role of the Iranian government, was to be

found in Iran. Iranian law was to govern. Although the

plaintiff was a foreign national, we recognized that, under

bilateral treaties between the United States and Iran, he

was entitled to access to the United States courts on a basis

“no less favorable” than that available to Americans, and

therefore should enjoy the same consideration as a domes-

tic plaintiff in resisting a forum non conveniens dismissal.

We nevertheless affirmed Judge Carter’s conditional forum

non conveniens dismissal, thus allowing the action to pro-

ceed in Iran and noting that Judge Carter had “applied

the same forum non conveniens standards as would be

applied were the plaintiff an American citizen.” Jd., at 708.

It follows, if our most recent holding means anything, that

American residence is not an impenetrable shield against

dismissal on grounds of forum non conveniens.

Indeed, in view of the statutory codification of the doc-

trine which permits transfer of an action from one district

court to another essentially on grounds of forum non con-

veniens, 28 U.S.C. §1404 (1976), the result of guaranteeing

an American forum in admiralty cases where there is an

American plaintiff would be to strip the doctrine vi~ ‘ually

to a state of total ineffectiveness, since one of ‘»: few

areas where it is still needed is where a foreigner and an

American are involved in a maritime accident abroad and

the accident has no nexus whatsoever to the district where

the American. party chooses to commence the action. I think

it would be a grave mistake to write such a talismanic ap-

proach into a part of the law i ‘ended to promote the

A-59

Dissenting Opinion of Judge Timbers

courts’ flexibility.*° Cf. 7B Moore’s Federal Practice 1404,

at JC-601 (1977) (discussing 28 U.S.C. $1404). Moreover,

the trend of the common law would appear to be away

from such a view. While Mr. Justice Clark in 1955 could

find but a single jurisdiction—Scotland—which allowed a

forum non conveniens type of dismissal against a resident

plaintiff, Norwood v. Kirkpatrick, 349 U.S. 29, 33 (1955)

(Clark, J., dissenting), many jurisdictions do so now. One

of the most dramatic shifts is that of the State of New

York as reflected in Silver v. Great American Insurance

10 In Silver v. Great American Insurance Co., 29 N.Y.2d 356, 361, 278

N.E.2d 619, 622, 328 N.Y.S.2d 398, 403 (1972), Chief Judge Fuld put

it this way:

“Although such residence [of one of the parties] is, of course, an

important factor to be considered, forum non conveniens relief

should be granted when it plainly appears that New York is an

inconvenient forum and that another is available which will best

serve the ends of justice and the convenience of the parties. The

great advantage of the doctrine—its flexibility based on the facts

and circumstances of a particular case—is severely, if not com-

pletely, undercut when our courts are prevented from applying it

solely because one of the parties is a New York resident or corpo-

ration.”

Especially when corporate citizenship is involved, the claim to an

absolute right to sue in the home forum must be scrutinized with

special skepticism. As the Supreme Court stated in Koster:

“Place of corporate domicile . . . might be entitled to little con-

sideration under the doctrine of forum non conveniens, which resists

formalization and looks to the realities that make for doing justice.”

Koster v. Lumbermans Mutual Casualty Co., supra, 330 U.S. at 528.

While I recognize that Alcoa’s link to New York is a substantial one,

unlike the purely pro forma sort the Supreme Court worried might

occur under modern corporate laws, id.; see, e.g., Texaco Trinidad v.

Astro Exito Navegacion, S.A., supra, 437 F.Supp. at 333-34, it is not

without significance that the particular Alcoa operation here involved

appears to have been centered in Trinidad. While it may not come as

a surprise to Norcross to be sued in New York, as the majority points

out, where it has a general agent, it most assuredly can be no surprise

to Alcoa that Trinidad law may limit its recovery to $570,000. Being

a prudent corporation, it either has, or easily could have had, adequate

insurance to cover such additional risk.

A-60

Dissenting Opinion of Judge Timbers

Co., supra. Finally, the Supreme Court never has con-

sidered local residence a guarantee of a local forum in all

matters. See, e.g., Koster v. Lumbermans Mutual Casualty

Co., supra, 330 U.S. at 525.

ITI.

The question therefore boils down to whether, in the

instant case, sufficient prejudice has been shown to over-

come the admittedly high barrier to transferring an action

by an American citizen to a foreign forum for trial. See

Restatement (Second) of Conflict of Laws $84, Comment f

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